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Supreme Injustice Res Ipsa Loquitur: The Thing Speaks For Itself

"No man's opinions are better than his information" -- Paul Getty

"The greatest obstacle to discovery is not ignorance - it is the illusion of knowledge."-- Daniel J. Boorstin

In the landmark judgment in V. Kishan Rao V. Nikhil Super Speciality Hospital & Another (Civil Appeal No. 2641 of 2010), MARCH 8, 2010 their Lordships G.S. Singhvi And Asok Kumar Ganguly, invoking the doctrine of res ipsa loquitur, had held that the facts of the case and the evidence on record was sufficient to conclude that 'it was a case of simple malaria that was treated for typhoid, resulting in death of the patient.' That no expert opinion or independent medical assistance was needed to conclude the same.

The judgment has been relied upon in several cases to conclude similarly.

Case details as abstracted in the judgment:
The appellant's wife was suffering from intermittent fever with chill and was admitted in the respondent no. 1hospital. She underwent certain tests but the tests did not reveal malaria. The patient did not respond to the medicines administered to her and her condition deteriorated day by day. She was finally shifted to Y hospital in a very precarious condition and was virtually clinically dead.

The Y hospital issued a death certificate which disclosed that the patient died due to cardio respiratory arrest and malaria. The doctor R of the respondent no. 1 hospital deposed that the appellant's wife was not treated for malaria.

A medical analysis of the evidence on record in the case, however, reveals the contrary. Facts speak for themselves.
Court's Observations:
  • Patient admitted for intermittent fever with chills and rigor.
  • Peripheral blood film examination at the admitting hospital initially was negative for malaria parasite.
  • Later examination revealed presence of Plasmodium Falciparum.
  • It was a simple case of malaria.
Medical interpretation:
  • Detection of malarial parasites in peripheral blood needs repeated examinations. In case of P Falciparum, whence the parasitized RBCs are incarcerated or sequestered in microvasculature, as occurs in Cerebral Malaria caused by P Falciparum, it is not visible in peripheral blood, and requires repeated examinations of peripheral blood to catch them in appropriate life cycle of P Falciparum.
  • The detection of P Falciparum on later examination in a comatose patient having ARDS, the infection was most likely to be Cerebral Malaria.
Courts observation/finding:
  • Patient was a simple case of malaria.
Medical interpretation of the record:
  • A P Falciparum positive patient with total leukocyte count of 30900/cumm) with ARDS (Acute respiratory distress syndrome) was not a 'simple case of malaria'
Evidence on record:
  • Smear for MP-Positive-ring forms & Gametocytes of P.Falciparum seen Positive index-2-3/100RBCS, deranged prothrombin levels (PT-TEST-22 sec CONTROL-13 sec, APTT-TEST-92 sec CONTROL-38 sec), CBP-HB-3.8% gms, TLC-30.900/cumm, RBC-1.2/cumm, C X R � s/o ARDS.
  • Raised leukocyte count of over 30 thousand shows that the patient simultaneously suffered from severe bacterial infection.
  • The patient suffered from life-threatening bacterial infection and cerebral malaria, a deadly combination.
  • This is substantiated by the treatment of the patient with broad-spectrum antibacterial antibiotics and injectable chloroquine, as documented in the records available.
Relied by the court for cause of death of patient:
  • Cause of Death certificate : "Cardio respiratory arrest-malaria"
Medical interpretation:
  • It is grossly improper Cause of Death Certificate as-
  • 'Cardio-respiratory arrest' is not a cause of death. It is mode of death. No one dies without his heart and respiration stopping.
  • 'Simple malaria' does not kill.
  • With the evidence available to the certifying doctor the cause of death certificate should have been-
  • Underlying condition (cause) : Septicemia shock and ARDS
  • Antecedent conditions: Severe bacterial infection and
  • ?cerebral Malaria
  • A vital legal document executed incorrectly in such a casual manner. Had a proper cause of death certificate, executed on the basis patient record, been available to the court they would not have come to the conclusion that the patient died because a 'simple case of malaria was treated for typhoid.'
Court's observation/findings:
  • Patient treated for Typhoid and not for malaria

Medical evidence:
Patient was treated with:

The first two, Monocef and Cifran are broad spectrum antibiotics used to treat wide spectrum of bacterial infections that includes Typhoid bacilli. In acute conditions a combination of broad spectrum antibiotics are used to cover all possible life threatening bacterial infections pending identification of specific microorganism.
  • Simultaneously the patient is covered for possible malarial infection.
  • Inject able Chloroquine is a standard antimalarial drug against P Falciparum malaria.
  • The conclusion of the Hon'ble court that the patient was exclusively treated for typhoid is contrary to the available evidence on record. Same is true for the inference that patient was not treated for malaria.
  • This was based on the lack of proper appreciation, interpretation and understanding of the medical evidence on record. The medical evidence of severe bacterial infection, septicemia, ARDS and cerebral malaria were too complex to be interpreted by lay persons without the availability of medical expertise. The court's decision that no such assistance was needed or called for is what has resulted into gross injustice, medically speaking.
The conclusion of the Hon'ble court that it was a straight forward case of medical negligence, evident on the face of it (a case of 'malaria' treated for 'typhoid') on the basis of lay interpretation of the treatment of complex medical conditions, is presumptuous to say the least.

It was a supreme injustice to the medical profession.

The medical evidence on record speaks for itself.

Res ipsa loquitur � the thing speaks for itself

In this landmark Supreme Court judgment in the case of V Krishna Rao v Nikhil Superspeciality Hospital and Another (Civil Appeal No. 2641 of 2010), March 8, 2010, their Lordships GS Singhvi and Ashok Kumar Ganguly, invoked the doctrine of res ipsa loquitur (the fact speaks for itself) to hold that the facts of the case and the evidence on record was sufficient to conclude that a case of "simple malaria" had been mistaken for, and wrongly treated as, typhoid, resulting in the death of the patient. Their lordships believed that no expert opinion or independent medical assistance was required for them to arrive at this conclusion.

Unfortunately, this judgment is seriously flawed inasmuch as it was made without resorting to expert medical opinion. No matter how learned a judge might be, he is still a layman and is hardly competent to comment on matters, such as those related to medical science, that lie beyond his comprehension.

Unfortunate, too, is the fact that this this judgment has been relied upon in several subsequent cases where similar conclusions have been drawn by judges who were equally unqualified to draw such conclusions at all.

Here is a summary of the case as abstracted from the judgement. It has been edited for clarity.

The appellant's wife was suffering from fever and chills and was admitted into hospital. She underwent some tests which did not reveal malaria. The patient did not respond to treatment given at this hospital (henceforth called Respondent no. 1) and her condition steadily deteriorated. She was finally shifted to another hospital in a moribund condition where she died shortly thereafter. The second hospital issued a death certificate which stated that the patient died of"cardio respiratory arrest and malaria".

The Court based its judgment on the following:
  1. The patient was admitted for intermittent fever with chills and rigor.
  2. Even though examination of the blood (by what is known as a peripheral blood smear (PBS)) at the admitting hospital was negative for malarial parasites, subsequent examination at the hospital to which the patient was shifted showed the presence of malarial parasites (Plasmodium falciparum).
The judges opined that this was a "simple case" of malaria. They also opined that the patient was treated wrongly for typhoid instead of malaria, implying negligence on part of Respondent No. 1.

Several Points Here Need To Be Considered:
  1. Did the first hospital (Respondent 1) make an erroneous diagnosis or was there any evidence of negligence?
  2. Was the death certificate issued by the second hospital correct?
  3. Was the opinion of the judges sound? Was it over-reaching?
Let us examine these in some detail.

Was The Diagnosis By The First Hospital Erroneous?
Malaria is not always easy to diagnose. The text-book description is one of fever with chills, the fever having a certain rhythmic pattern that varies with the particular species of the infecting malarial parasite. On the other hand, there are any number of infections that can cause fever, and in India, typhoid fever is one of them.

It behoves a medical practitioner to consider malaria as a possible cause of fever with chills by performing a PBS. This was, indeed, carried out by the first hospital (Respondent no. 1). Significantly, malarial parasites may be undetectable on the first PBS, necessitating repeated examinations.This is especially true of Plasmodium falciparum where the affected red blood cells might be sequestered in the smaller blood vessels (such as in the brain) and escape detection on a PBS.

Supportive evidence (a very high white blood cell count) favoured a bacterial, rather than a malarial, infection and the first hospital rightly instituted antibiotic therapy with powerful antibiotics for a bacterial infection, presumed to be typhoid. It is also pertinent to note that while the doctors at the first hospital favoured a diagnosis of typhoid, they added an antimalarial drug (chloroquine) to the treatment as they were unable to exclude malaria despite a negative PBS.

Was the death certificate issued by the second hospital correct?
The death certificate (DC) listed the cause of death of the patient as "cardio-respiratory arrest". This is incorrect because death equals absence of heart beat and breathing. Its like saying the cause of death was death! With the exception of brain death (which is a phenomenon not relevant to this discussion), death is defined as cessation of all body activities.

Listing "cardio-respiratory arrest" as a cause of death is unfortunately a near-universal phenomenon in Indian hospitals and is testament to the poor attention being paid in the medical curriculum and to on-the job-training on how to prepare a death certificate. What needs to be entered in a DC is the underlying disease and its complications that lead to death.

The patient under reference here had falciparum malaria which had involved the brain (cerebral malaria) and developed, additionally, lung complications called adult respiratory distress syndrome (ARDS) and bacterial infection, likely to be pneumonia. A proper death certificate would list all these but not "cardio-respiratory arrest". Despite it being an important legal document, the matter of an incorrectly filled DC seemed to have escaped their lordships' attention.

Was the opinion of the judges sound? Was it over-reaching?
Their lordships commented that this was a case of "simple malaria". How wrong they were!

This patient was comatose and was very likely to be suffering from cerebral malaria, a highly dangerous and frequently fatal form of the disease. This might explain (as already stated earlier), the negative PBS for parasites on initial testing. Additionally, the patient developed ARDS with pneumonia, as evidenced by her clinical condition, chest X Ray and a very high blood white cell count.

She also developed blood coagulation problems as evidenced by abnormalities in tests such as the prothrombin time and activated partial thromboplastin time. With these feared complications, the malaria was anything but simple.

The medical evidence of cerebral malaria complicated by severe ARDS and pneumonia are too complex to be interpreted by lay persons (including the judiciary) without the availability of medical expertise. To brush away the case as one of "simple malaria" was preposterous and resulted in the serious miscarriage of justice.

Medicine is not as exact a science as people might think. There is so much overlap in the presentations of various illnesses that a treating doctor is not infrequently required to exercise what is called clinical judgement. Clinical judgement relies on, among other things, professional experience and the gut feelings of the treating doctor. It is the medical equivalent of what legal circles call "applying one's mind". Admittedly, doctors can and do make mistakes. The more complicated a case, the more likely it is for such errors to creep in.

What those dispensing justice need to do is to recognise this fact and summon for expert medical opinion to explore if such errors were avoidable or not. Wading into medical matters beyond their comprehension is not what is expected of rational and just judges.

Written By: Dr. Shri Gopal Kabra
Ph no: 8003516198
15, Vijaya Nagar, D-block, Malviya Nagar, Jaipur-302017

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