Dr. Kaligounden                          .. Petitioner 
                            Vs
N.Thangamuthu                          .. Respondent

BEFORE: Hon'ble Mr. Justice M.B.Shah, President, 
               Mrs. Rajyalakshmi Rao, Member.

Per Mrs. Rajyalakshmi Rao, Member:

     These two petitions arise out of the order dated 11.7.2002 of the Tamil Nadu State Commission in Appeal No. 61/1999 and 171/2002. The relevant facts are as follows:

2) The Respondent's wife, Smt. Tulsimani, aged 42, consulted the Petitioner Dr. Kaligounden on 29.4.1996 for gynaecological problem of excessive bleeding. Dr. Kaligounden advised surgery for removal of uterus and admitted her in his hospital, Kovin Hospital, Erode in the morning of 30.4.1996 and operated on her in the evening on the same day and removed her uterus. Her stay in the hospital up to 4th May is said to be normal and uneventful. On 5th May she complained of vomiting and giddiness and Dr. Kaligounden requested Dr. Elango a Physican to examine her. Dr. Elango who attended on her on 5th to 6th May, suspected Septicaemia and prescribed some antibiotics. As he wanted to make sure that her Kidney functioning is normal, Dr. Kaligounden summoned Dr. Shanmugam, a Urologist to see her on 6th evening. As her condition still did not improve, Dr. Ramalingam, running the Kidney Centre, Erode, was contacted by Dr. Kaligounden on phone on the 7th morning. On the advice of Dr. Ramalingam the patient was shifted immediately in an ambulance along with the nurse to the Kidnney Centre. However, in the night of the 7th May the patient died at the Kidney Centre. The death certificate issued indicated the cause of the death as due to renal failure and Septicaemia.

3) The husband of the deceased, N.Thangamuthu filed a complaint (OP No. 148/1996) before the District Forum. The same was dismissed for default on 11.3.1997. The Complainant filed a restoration petition M.P. No. 54/1997 before the District Forum and it was also dismissed on 19.3.1997. The Complainant however filed a fresh complaint O.P. No. 105/97 before the Forum on 17.4.1997 without disclosing that his earlier complaint was dismissed for default. In the meanwhile he also filed an Appeal No.427/97 before the State Commission. After he filed a fresh complaint before the District Forum his above appeal was dismissed as withdrawn on 25.1.1999.

4) Two seperate orders were passed by the District Forum on 21.12.1998. A majority order by two Members holding that there was no negligence on the part of Dr. Kaligounden, the Opposite Party; and a minority order by the President holding that there was negligence on the part of Dr. Kaligounden. The plea was taken by the Opposite Party before the District Forum that the Complaint No. 105/1997 is not maintainable being hit by the doctrine of res-judicata. Both the orders however held that the complaint is not hit by the doctrine of res-judicata and hence is maintainable. Appeal No. 61/1999 was filed by the Complainant against the majority order holding that there was no negligence on the part of Dr. Kaligounden. Dr. Kaligounden filed an appeal No. 171/2002 against the finding of the majority order that the complaint is not hit by res-judicata. The State Commission disposed of both the appeals by a common order dated 11.7.2002 holding that there is negligence on the part of Dr. Kaligounden and reversing the majority order of the District Forum. The State Commission also ordered that Dr. Kaligounden should pay compensation of Rs.4,50,000/- within two months from the date of the order and in case of failure, to further pay an interest @12% p.a. till realisation. The State Commission also confirmed the finding of the District Forum that the complaint was maintainable and not hit by the doctrine of res-judicata.

5) In addition to contesting the decision on merits, the Revision Petitioner reiterated before us to other contentions mainly regarding the maintainablility of the original complaint and that the medical treatment given by him does not amount to service under the CP Act, 1986 since he had not charged any money for the service except for receiving a payment of Rs.955/- to the Anestheist who helped in the surgery. We can dispose of both these issues in the first instance. It is an admitted fact that Dr. Kaligounden was running his Kovin Hospital for profit and he charges his patients. In the light of the Supreme Court decision in the case of Indian Medical Association vs. V.P.Shanta & Ors. [(III) (1995) CPJ 1 (SC)], the medical treatment provided by him would clearly be covered within the ambit of "services" under Section 2(1)(o) of the Act. As regards the question of res-judicata, the matter has been dealt with at length by the Learned State Commission. There is no question of res-judicata as the complaint was not decided on merits but was dismissed for default. As observed by the State Commission, we hold that this is not a case where the Complainant instituted a fresh complaint in a bid to harass the Opposite Party for the abuse of the process available under the Consumer Protection Act, 1986. The lower fora held that the complaint instituted by him was once dismissed for default obviously on the ground of his inability to come before the forum on the day when the complaint were scheduled for hearing. In cannot be said that the Complainant has been filing a series of complaints one after the other and allow them to get dismissed for default and subsequently institute fresh complaints so as to drag the Opposite Party Dr. Kaligounden before the redressal fora. We therefore see no reason to interfere with the concurrent findings of lower fora that the complaint is maintainable.

6) Coming to the merits of the case, the arguments of the Respondent, which have also been accepted by the State Commission are that Septicaemia developed in the patient due to an ulcer in the cervix (Uterus). The Surgeon failed to detect the existence of ulcer in the uterus by way of pre-operative assessment because he never carried out any pre-operative assessment. The patient approached the Doctor complaining of excessive bleeding during menstrual cycle accompanied by white discharge, which should have alerted the doctor to the possibilities of infection. He should have carried out a series of tests to find out the condition of the uterus. Without doing any of these things, the doctor admits the patient in the hospital in the morning and removes the uterus in the evening. There was no emergency and it was not an emergency operation which should have been rushed in such a way. Secondly, it is certified that the death was due to renal failure. The Operating Surgeon before resorting to the operation should have carried out various laboratory tests like blood test, urine test, etc. to ascertain whether the patient was fit enough to undergo the surgery in question. As observed by the State Commission, he had not carried out any tests like blood test, urine analysis, urine culture, etc. to ascertain the condition of her respiratory system or renal problem, if any, leave alone conducting tests relatable to uterus which was to be removed by way of surgery.

7) As against the above, the plea of the Revision Petitioner is that the patient first approached Dr. Shyamala, Gynaecologist who recommended that it is a fit case for removal of uterus. His argument is that since the patient was thoroughly examined by the Gynaecologist and only after such thorough examination, suggested removal of her uterus, he did not find it necessary to carry out any further tests. It is argued that if there is an ulcer in the uterus Dr. Shyamala should have noticed it. His argument is that his surgical equipment was properly sterilised, his surgical theatre and hospital are in a very clean condition without any infection and no infection leading to Septicaemia was possible because of the Surgery. There is no negligence whatsoever on his part and he took all steps to call a variety of specialists, a physician, a urologist and a nephrologist when the patient developed septicaemia on 5th May 1996 onwards.

8) At the time of hearing of this matter, learned Sr. Counsel Mr. Reddy submitted that there is no evidence to show that septicaemia developed because of unhygienic condition in the hospital or because of the use of unsterilized equipment. He therefore submitted that the impugned order passed by the State Commission cannot be sustained.

9) In this case there can be only two reasons for septicaemia: one because of the operation and the other could be prior to operation. From the record and postmortem report, it is apparent that patient died of acute renal failure and septicaemia.

     In our view the submission of Learned Counsel for the Petitioner cannot be accepted. For the first reason it would be sufficient to refer to relevant para from the Concise Oxford Textbook on Medicine at the relevant passage upon which reliance is placed as under: "Reasons for Septicaemia in hospitalized patients are the portals of entry for organisms which are provided by surgical wounds and urinary vascular catheters". "The most common focus of infection is urinary tract. The next common source of Septicaemia is probably the surgical wound. Included in this category are deep-seeded processes such as mediastinitis, leaking intestinal anastomoses, vaginal cuff infections and infection of the renal transplant bed. In any of these, there may be no evidence of infection in the surface incision. If the patient has recently had an operation, one should be very unwilling to consider any other source of Septicaemia".

     From the aforesaid extract, it is apparent that in a case if the patient has undergone recent operation one should be very unwilling to consider any other source of septicaemia. As stated above, septicaemia is probably the surgical wound which includes deep-seeded process such as mediastinitis, leaking intestinal anastomoses, vaginal cuff infections and infection of the renal transplant bed. In the present case it is admitted that Smt.Tulsimani, aged 42, had undergone the operation for removal of uterus on 30.8.96 and within few days thereof this complication arose, she developed septicaemia.

     For the second reason the State Commission has also discueed in detail how there was negligence on the part of the petitioner in not examining the patient Tulsimani before operation and no credibility can be attached to the argument of the Petitioner Surgeon, that Dr. Shyamala, the Gynaecologist has referred the case to him with a report that it is a fit case for removal of the uterus. Neither the referral letter nor the report stated to have been given by Dr. Shyamala, Gynaecologist have been produced on record. As observed by the Learned State Commission, we feel that this is an argument invented by the Surgeon to escape from the legal consequences of not performing any preoperative assessment. The above theory has been floated only with the purpose of explanation as to why he had not conducted any laboratory tests at pre-operative stage. The real fact appears to be that the peitioner Surgeon is known for long time to the family of the patient, having surgically removed the Uterus of the cousin sister of the patient earlier and it is for that reason alone that the patient approached him with her gynaecological problem.

10) In the case of persons having renal problem or disorder, certain antibiotics or drugs if administered are likely to activate renal failure and ensure death. In persons with impaired renal function, there is danger of drug accumulation and toxic effects. Amikacin administered to the patient is one such drug which causes Nafrotoxicity and requires careful administra-tion. The State Commission has made reference to this aspect of the case. While we cannot come to any final conclusion that administration of this drug had in fact aggravated the renal functioning it is clear that the Surgeon never carried out any tests to assess the renal functioning of the patient before resorting to the surgery in such a hurry for which there was no urgency whatsoever. Had tests for renal functioning being carried out preoperatively, the Surgeon would have known the condition of the patient, and would have either treated her before surgery or would have postponed the surgery.

     In view of the above discussion, we uphold the decision of the State Commission that there is deficiency of service on the part of the Petitioner. The Revision Petition is dismissed and the order of the State Commission is confirmed.