FIRST APPEAL NO. 716 OF 2012
MURLIDHAR R. CHHABRIA
BREACH CANDY HOSPITAL TRUST & 2 ORS.
Decided on 07.07.2020 by the NCDRC, NEW DELHI
Appellant/Complainant, a senior citizen, was admitted in Respondent No.1/Opposite Party No.1 Hospital in Mumbai on 18.09.2005 for Coronary Artery Bypass Graft (CABG). Respondent No.2/ Opposite Party No.2 conducted the operation on 20.09.2005. However, on 28.09.2005 as blood was found oozing from his chest, re-suturing was done on 01.10.2005. After re-suturing, the Complainant was shifted to the ICU. According to the Complainant his wife noticed that his left palm and fingers were got burnt. The doctor who examined him stated that his hand probably got burnt during re-suturing process. Operating doctor examined the patient on the next day and cleaned and dressed the blisters on the Complainant’s hand. The Complainant alleged that he was informed that the hand must have been got burnt due to the heater placed in the operation theatre. Respondent No.3/Opposite Party No.3 performed surgery on 09.11.2005 on the thumb and ring finger, but to his surprise, found that Respondent No.3 amputated his middle and little fingers and he was informed that this was due to development of gangrene. Being a diamond broker and expert in assortment of diamonds, the absence of fingers was not only a loss of body part but would also hamper his income earning capacity.
The Complainant was admitted for CABG operation which was carried out with his full consent with the attendant risks involved. The Patient was also having a history of long standing diabetes, which finally led to Tropical Diabetic Hand Syndrome (TDHS.) Patients with diabetes are immunologically impaired to combat infections. Breach Candy Hospital/Respondent No.1 was equipped with warm air blowers, which automatically cut off at 420 C. No heaters were used in the operation theatre or in the ICU in the Respondent Hospital. It could not be the case that the hand of the Complainant accidentally touched the heater, resulting in burning of his hand during the re-suturing process. The symptoms of heater burn and TDHS are similar and could be distinguished only by histopathological analysis and not clinically. Expert opinion was filed to show that TDSH results in burning of hand lead to gangrene and therefore, second grafting was suggested. Cautery burns as alleged by the Complainant in the rejoinder was denied stating that cautery machines were not being presently used and even if used, had safety device which prevent any kind of burn.
In the affidavit evidence given by Respondent No.1 it was stated that it was not a case of heater burns in the operation theatre. The final histopathological diagnosis did not show that the patient suffered from cautery/heater burns. Case reference is given to the report of Pathologist Dr. Shetty. Clinical TDHS burns had similar signs and one could be mistaken for the other. In the expert opinion of Dr. Suvin Shetty histopathology report given by Dr. Sanjay Naavani is quoted as follows: –
“Tissue from left palm with amputation of middle finger
GROSS Skin and soft tissue fragments aggregating to 6 x 4 cms exhibiting a necrotic shaggy lining are received. Their cut surfaces show necrotic material. The distal phalanx of the middle finger measures 2.5 x 1.5 x 1 cm. Its cut surface shows soft, necrotic areas.
MICROSCOPIC Sections reveal necrotic soft tissue and bone. No vasculitis is identified. No underlying pathology is identified. There is no evidence of tuberculosis or malignancy.
DR. SANJAY JAVINI M.D.”
Respondents categorically mention that no heaters were used in the operation theatre or in the ICU in the Respondent Hospital. It cannot be the case that the Complainant’s hand had accidentally touched the heater resulting in his hand burning during re-suturing process. Cautery burns were also ruled out as cautery machines were not being used and even if used had inbuilt safety devices in order to prevent burns. Symptoms of heater burns and TDHS were similar and could be distinguished only by histopathological analysis and not clinically. TDHS results in burns of hand leading to gangrene and therefore grafting was suggested. When there were no chances of any burn caused due to heaters in the OT/ICU or of any cautery burns as alleged by the Complainant, one does not understand as to why blisters on the hand were not taken seriously but only treated normally as burns. Consultation with Diabetologist and Dermatologist ought to have been done in the first instance. In fact, all through the patient’s diabetes was being treated with only mild medication. Dyanase, a mild diabetic drug was only being given. Small tapering doses of insulin were administered only during the operation and post operative care. From the treatment administered, it seems to be only a case of mild diabetes and not of prolonged history of diabetes. Having ruled out burns due to any external factor by the Respondents, the Respondents ought to have been more careful in clinching the so called underlying problem of TDHS, instead of merely resorting to dressing and repeatedly recording and treating it as mere burns. In many of the daily order sheets also, there was no mention of the burns on the left hand. It was recorded that the patient was doing well and no residual deformity was expected and dressing for about three weeks should suffice. Never the case was treated as TDHS. Only in the affidavit, 2 years after treating the Complainant, ‘Wisdom’ and ‘Gyan’ appears in the affidavit filed by Dr. Aditya Kaushik where burns and TDHS are explained. Record only shows burn injuries in OT during bypass surgery. If it is a case of other than burns, and was TDHS, attempt should have been made to diagnose the problem. Histopathological analysis ought to have been done at the earliest, rather than doing it as a matter of routine after the amputation of the finger ends. In the histopathological report there are signs of microscopic necrosis and no vasculitis, and no underlying pathology is identified. If this is due to the prolonged diabetes leading to gangrene, pathology in the blood report should be seen. There is also mention of sensation in the hands in the record which indicates that the gangrene may not be due to neuropathy. No vasculitis shows that there is no disease in the thermal arteries leading to gangrene formation. The seriousness of the problem should have been appreciated by the Respondents and it was their duty to counsel the patient/Complainant of the consequences of the same. There is no record to show that he was properly counselled of the consequences before amputation was done. If the case was taken seriously and diagnosed properly, the Respondents were obliged to treat the patient and counsel him of the consequences. Merely treating it as burns, repeatedly recording it, and not expressing iota of doubt of any other cause of burns and coming up with the theory of TDHS in their defence, seems to be a mere afterthought. Amputation of finger ends involves loss of bone, a very serious consequence for the Complainant. No effort has been made to properly diagnose the problems/disease, the abnormal condition of the hand in time, ultimately leading to amputation of finger ends. This is certainly a case of gross medical negligence on the part of the Respondent Hospital and the Complainant is to be compensated for loss of body parts, trauma, agony and source of livelihood
A detailed review of the entire record reveals that it is a case of gross medical negligence, involving loss of body parts, business and mental agony to the Complainant who is a senior citizen aged 74 years, during the course of treatment given in the Respondent Hospital. Theory of TDHS has been floated only as a cover up to their medical neglignce, resulting in permanent injury to the patient. Host of expert opinions have been padded to lend ‘credibility.’ If only proper diagnosis and treatment would have started early, the Complainant could perhaps have been saved from permanent injury and damage. We direct the Respondents/Opposite Parties to pay a compensation of Rs.7.5 lakhs to the Complainant within 30 days from the date of this order, failing which the amount shall carry interest of 9% per annum till full payment. In addition, cost of Rs.20,000/- towards litigation expenses is awarded.