BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, 21st day of January, 2016
FIRST APPPEAL No. 28/2008
1. Udhiya @ Udhiyakumari,
W/o Kanniakumar
2. Minor. Sharmiladevi,
D/o Kanniakumar
3. Minor. Suganya,
D/o Kanniakumar
(Minor appellants are rep. by their mother
and natural guardian, the 1st appellant herein)
……………. Appellants
Vs.
1. Ashok Nursing Home, Rep. by its
Managing Director Dr.Anandavelu,
Puducherry.
2. Dr.Rajendiran
3. Dr.Vijaya Nirmala
(Respondents 2 and 3 are employed at
1st respondent Hospital.) ……………. Respondents
(On appeal against the order passed in C.C.No.68/2003, dt.31.12.2007 of the District Consumer Disputes Redressal Forum, Puducherry)
C.C.No.68/2003
1. Udhiya @ Udhiyakumari,
W/o Kanniakumar
2. Minor. Sharmiladevi,
D/o Kanniakumar
3. Minor. Suganya,
D/o Kanniakumar
(Minor appellants are rep. by their mother
and Natural guardian, the 1st appellant herein)
……………. Complainants
Vs.
1. Ashok Nursing Home, Rep. by its
Managing Director Dr.Anandavelu,
Puducherry.
2. Dr.Rajendiran
3. Dr.Vijaya Nirmala
(Respondents 2 and 3 are employed at
1st respondent Hospital.) ……………. Opposite Parties
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
TMT. K.K.RITHA,
MEMBER
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANTS:
M/s M.Lakshmi Narasimhan, S.Vimal,
Advocates, Puducherry.
FOR THE RESPONDENTS/O.Ps:
Thiru S.S.Thanasekaran – for R1
M/s Law Solvers - For R2 and R3.
O R D E R
(By Tmt.K.K.Ritha, M.A., M.H.R., B.L., Member)
The appellants filed the present appeal against the order of the District Forum, Puducherry in C.C.No.68/2003, dated 31.12.2007.
2. The brief facts of the case are that in July, 2002 one Kanniakumar suffered pain while urinating. He consulted the respondent No.2 and underwent relevant tests, diagnosed as growth of stone in liver. He was advised to undergo surgery immediately to remove the stone from gall bladder. The surgery was fixed on 27.07.2002 and he was admitted in respondent.No.1's nursing home by making a payment of Rs.15,000/- as advance.
3. At 1.00 p.m., 2nd and 3rd respondents rushed to the operation theatre. At 3.00 p.m., the patient's relatives were informed that the operation would be completed in an hour and at 5.30 p.m. and they were allowed to see the patient in the operation theatre. At that time, the patient was seen with a tube in his neck and hands were stiff and stretched out. The 2nd and 3rd respondents informed that operation could not be proceeded because the patient was having some complicated cardiac problem. At the instance of the patient's relatives, a cardiologist was called, who rushed in and felt the pulse of the patient and declared dead long back. The 2nd respondent issued medical certificate stating the cause of death as 'pulmonary edema' and 'myocardial infarction. Such a state of events caused emotion and rage to the relatives of the deceased. The respondents informed the police and registered a case in F.I.R.No.204 of 2002. Post mortem of the deceased was conducted at JIPMER, Puducherry and reports awaited. The 2nd respondent sent messenger to the appellants for a personal meeting and ready to return Rs.12,500/-, the fees paid for the surgery and also Rs.3,50,000/- as compensation. But, the offer was not accepted by the appellants. The 2nd respondent has sent a cheque for Rs.12,500/- and a bill with some noting.
4. The patient died due to lack of care and right treatment in opt time by all the respondents which amounts to deficiency in service. The histopathology and chemical examination reports, dt.23.08.2002 and 06.09.2002 along with the final report, dated 17.09.2002 found the cause of death was due to the "injection of thiopental" were forwarded to Judicial Magistrate, Puducherry. By the death of Kanniakumar at the age of 45 years, the appellant No.1 lost her husband at a prime age and appellants 2 and 3 lost their father at a tender age who was the sole bread winner of the family. Thus, the appellants pray to direct the respondents/Opposite Parties 1 to 3 jointly and severally to pay Rs.19,00,000/- (Rupees Nineteen Lakh only) with interest at 18% p.a. and Rs.10,000/- (Rupees Ten-Thousand only) as cost of the proceedings.
5. The reply version of 1st respondent is as follows:
Kanniakumar, the husband of appellant No.1 had consultation with 2nd and 3rd respondents at their clinic in Lal Bahadur Sastri Street, Puducherry and on their advice, the patient was admitted at Madhava Uro Clinic functioning in the 2nd floor wing of Ashoka Nursing Home complex for lease wherein, they had separate units of reception, billing section, hospitalization, operation theatre and other medical facilities as lessee under 1st respondent. Thus, the 1st respondent did not receive any fees or any service to the deceased Kanniakumar. Hence, the appellants have no locus standi to implead the 1st respondent in the present complaint and to claim any compensation jointly and severally along with 2nd and 3rd respondents. The 1st respondent further denied the averment that their employees received Rs.15,000/- as advance for the surgery for which no documentary evidence has been filed by the appellants. The records have been inscribed by 2nd and 3rd respondents and the 1st respondent has nothing to do with the page of case sheet produced by the appellants, except the case sheet bears the name of 1st respondent. Nursing Home. Hence, the 1st respondent submits that it is not liable to pay compensation to the appellants for any omission, negligence or deficiency in service by 2nd and 3rd respondents and prays to dismiss the appeal with costs.
6. The 2nd and 3rd respondents submit their reply version as follows:
The 2nd respondent is a post-graduate in surgery and specialist in Urology and the 3rd respondent is a specialist in Anesthesia. On 02.07.2002, Kanniakumar, aged 45 years complained of penile pain and dysuria (difficulty and pain passing urine). The 2nd respondent found that the patient was having two large stones in the gall bladder and he was treated conservatively. Five years before he was treated for the same complaint and underwent removal of ureteric stone by giving spinal anesthesia. With regard to gall stones, he was advised to take treatment when the symptoms became worse or undergo laparoscopic Cholesystectomy. The patient was never told that he had to under operation immediately. Again on 25.07.2002, the patient reported and opted voluntarily to undergo laparascopic cholecystectomy for abdominal pain and discomfort. After undergoing investigations, the surgery was fixed on 27.07.2002 at 1.00 p.m. The surgery was a planned elective one and not an emergency operation, as alleged by the appellants. The patient was taken to the operation theatre at 1.00 p.m. and he was connected to the monitor and induced to anesthesia at 1.20 p.m. with 250 mg of thiopental, the normal dose being 3 to 5 mg per kg of body weight. The patient was 70 kg weight and thiopental of 250 mg administered for inducing him to anesthesia was within the tolerated limit and injection scoline 100 mg was also given. Intubation was resorted which involved in passing of an endotracheal tube into the airway (throat), but could not be passed due to large leafy epiglottis. Intubation was done for the second time, but failed. Since surgery was an elective one and not an emergency surgery, it was decided to abandon and shift the patient to the ward. Necessary injection was given through I.V.to prevent any laryngeal edema. Also laryngeal mask was introduced, a high tech gadget to maintain airway and administer oxygen in case of difficult intubation. The patient maintained blood pressure and heart rate and around 3.30 p.m., he fully recovered from anesthesia. Around 4.00 p.m., the patient developed profound pulmonary edema and treatment was given for it. Tracheostomy was done since oxygen level was coming down. Then pulmonary edema was controlled for a while but at 4.20 p.m., the patient developed hypertension leading to myocardial infarction. It was an unexpected development in the patient and so Dr.Manimaran, Cardiologist was called, who reached at 4.30 p.m. In the meantime, cardiac resuscitation drugs were given. Dr.Manimaran was fully satisfied with the treatment given and left after advising to continue the same treatment. After that B.P. dropped and the patient developed brady cardia. Though necessary medicines were given, B.P. continued to remain low and heart-rate was 30 per minute. Around 4.35 p.m., when the patient suffered myocardial infarction, the relatives of the patient were called, explained the situation and allowed them to see him. At that time, he was alive. At 5.00 p.m., monitor tracing showed the heart-rate as 36 per minute and oxygen saturation as 70. The 2nd and 3rd respondents explained the sudden development of the patient's condition, but the relatives were not satisfied and they man-handled 2nd respondent. and threatened him. The appellants made several attempts to extract money claiming compensation from 2nd and 3rd respondents, even though reasonable care was taken in treating the patient. The advance payment of Rs.12,5000/- paid for the operation was offered to be returned, since it was not taken place, but denied to have offered Rs.3,50,000/-. The claim of the appellants of Rs.19,00,000/- (Rupees Nineteen Lakhs) under various heads is only to extract money from the 2nd and 3rd respondents, when there is no deficiency in service on their part and prays to dismiss the complaint with costs.
7. Before the District Forum, on the side of the appellants/complainants, CWs 1 and 2 were examined and Exs.C1 to C28 were marked. The Opposite Parties examined RW1 to RW4 and marked documents, Exs.R1 to R18 (series).
8. This Commission heard the arguments advanced by learned counsels on both sides and gone through the documents and depositions of the parties.
9. Primarily, the point for determination in this appeal is
Whether the appellants are consumers of 1st respondent and is a necessary party to the complaint or not?
10. POINT No.1:
The appellants alleged that on 27.07.2002 Kanniakumar was admitted in Madhava Uro Clinic functioning in the second floor wing of Ashoka Nursing Home which belonged to the 1st respondent The employees of R1 had received Rs.15,000/- as advance payment for the patient's treatment and care. The copy of a page of the case sheet, Ex.C7, bears the name of the Ashoka Nursing Home, i.e. 1st respondent. Thus, the appellants contended that consideration had been passed by payment of Rs.15,000/- and service was rendered by Ashoka Nursing Home to the patient. Hence, the appellants fall within the ambit of consumer as per Section 2(d)(ii) of the Consumer Protection Act, 1986.
11. On behalf of R1 Dr.S.Anandavelu, the Managing Director of Ashoka Nursing Home, where Kanniakumar was admitted, had been examined as RW4. He deposed that he had leased out the 2nd floor wing of Ashoka Nursing Home Complex to Madhava Uro Clinic, wherein they had their own unit of reception, billing section, operation theatre, hospitalization and other medical facilities. He denied that his employees received Rs.15,000/- as advance and there is no proof filed by the appellants to this effect. Hence, 1st respondent had never received any fees and rendered any service to the deceased Kanniakumar. Regarding the allegation that case sheet bears the name of Ashoka Nursing Home, RW4 deposed that their stationery were kept at the premises and were accessible to the 2nd and 3rd respondents and he is not responsible for such usages. Thus, RW4 concluded that the appellants are not consumers to 1st respondent, since no fee was collected and no service was rendered to the patient Kanniakumar.
Finding:
12. Kanniakumar, the patient was admitted for undergoing surgery at Madhava Uro Clinic which belonged to the 2nd and 3rd respondents, which was functioning in the 2nd floor wing of Ashoka Nursing Home Complex of respondent No.1. Prior to his admission, he had consulted the 2nd and 3rd respondents at their clinic at Lal Bahadur Sastri Street, Puducherry. So, Kanniakumar was a patient of 2nd and 3rd respondents and he was admitted for surgery in their clinic, namely, Madhava Uro Clinic. Madhava Uro Clinic which is a separate entity with their own billing section, operation theatre and other medical facilities. Dr.S.Anandavelu, RW4, had leased out the 2nd floor wing of Ashoka Nursing Home to Madhava Uro Clinic. Moreover, subsequently he had sold out the hospital and he is no more the Managing Director of Ashoka Nursing Home.
13. From the document Ex.C10, it is seen that 2nd respondent had refunded Rs.12,500/- to the appellants, since surgery did not take place. From this, it is clear that 1st respondent had not received Rs.15,000/- as advance for the surgery, as alleged by the appellants.
14. The above facts brought to light that 1st respondent had neither given treatment nor received money from the patient. When there is no service rendered and no consideration passed, the appellants cannot come under the purview of consumer, as per Section 2(d)(ii) of the Act which states
“2(d)(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid any partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.”
15. Hence, the appellants are not consumers of 1st respondent under the Act and R1 is not a party to the proceedings of this complaint.
16. The main allegation of the appellants rests on the usage of excess dose of thiopental, unsuccessful intubations twice, unnecessary infliction of trachea wound, usage of medicines, hypoxia and aftermath complications caused by inexperienced anesthetist, lack of basic care and right treatment in apt time by respondents No. 2 and 3 leading to the cause of death of Kanniakumar.
17. POINT No.2:
Whether the death of Kanniakumar was due to administration of excess dosage of anesthetic drug, viz. thiopental by the 3rd respondent?
To establish whether there was excess dosage of thiopental, Dr.M.J.E.Ambroise, Chief Medical Officer, Department of Forensic Medicines, JIPMER, Puducherry was examined as CW1. He deposed that in his experience this is the only case where the cause of death is thiopental eventhough thiopental is most widely used drug and it is ultra short acting barbiturate. Medically, this drug has got its effect on five important organs of the body in a periodical or phased manner, first on the brain and then on other fatty tissues when prolonged and it can have its effect on the heart also thereby even killing the patient. A single dose of thiopental when administered to a healthy individual, the blood level of this drug after 256 minutes should be zero. But, in this case, the deceased was under effect of this drug for 315 minutes. The toxicity of this drug has played a key role causing the death of the patient. The possibility is that the actual time of death should have occurred within 256 minutes and not as mentioned by anaethetist notes and also if there was some defect in the chemical nature or antigenic structure of the drug which has been administered. The doctor stated that the dosage mentioned in the case-sheet is 350 mg of thiopental which a normal dosage. For an autopsy, pathologist’s opinion is based upon the evidence provided by the chemical examiner. The level of 14.5 micrograms of thiopental found in the blood is not within the therapeutic concentration. Further, thiopental alone cannot produce hypoxia. Instead, during administration of anesthesia, there has been some act by the anesthetist which has resulted in hypoxia or air hunger. The evidence lies in the cadaver in the form of tracheotsomy wound inflicted by the anesthetist on the deceased and histopathology’s report states there is anoxic damage to the brain. Thus, thiopental has caused the death of the individual following an additive effect of hypoxia which has been inflicted on the patient. Even in prolonged operations like cardiac surgery tracheotsomy is not inflicted upon the patient.
18. Chemical Analyst has given his opinion that there was 14.5 microgram of thiopental/ml of blood. He has cited Clark’s Isolation and Identification of Drugs Ex.C3, blood concentration of thiopental in fatalities is from 6 to 392 mcg/ml of blood. The chemical analyst in an expert in chemical analysis and in his capacity he has offered his opinion that there was 14.5 microgram of thiopental/ml of blood. His opinion is admissible to this extent in evidence under Section 45 of Indian Evidence Act and not to give his opinion regarding the cause of death.
19. Dr.M.Ravishankar, Professor and Head of the Department of Anesthesiology and CCU, JIPMER, Puducherry was examined as respondents’ witness No.1 regarding the usage and effect of thiopental. The expert opinion is very vital to decide whether the dosage of thiopental was the cause of death of the patient. According to the expert, thiopental is used very commonly in day-to-day practice for inducing anesthesia intravenously and daily about 20 patients are given this to induce general anesthesia since it is quite safe for induction in normal patients. Usually, for an adult patient, 250 mg will be given initially and additional doses of 50 to 100 mg. will be given as per requirement of the patient. In this case, the patient had received, as per records, 250 mg of thiopental and an additional dose of 100 mg during the second attempt of intubation and this is normal for a person weighing 70 kgs. Further, the non-circulating blood after death is not the same thing as circulating blood before death, and evidence that the concepts of normal or therapeutic drug concentrate can be applied to blood from dead bodies is severely lacking. If the blood concentration at the time of death cannot be known with certainty then it is not possible to extrapolate time and amount of drug injected before death. Thus, the expert opinion that there is no excess dosage of thiopental used and there is no authenticity in the result of the blood sample taken after the death of the patient.
20. The Doctor has produced Editorial of Forensic Science in the dock – Postmortem measurements of drug concentration in blood have little meaning, in which, it is revealed that :
If the blood concentration at the time of death cannot be known with certainty, then how it is possible to extrapolate the time and amount of drug ingested before death? The simple answer is that such extrapolations are prone to considerable error and generally should be viewed as unreliable and not evidence based. Despite these limitations, such calculations are frequently and wrongly produced during court proceedings even though the problems we outlined have been widely known for many years.
21. Post mortem measurements of drug concentration in blood have scant meaning except in the context of medical history, the sequence and circumstances surrounding death, and necropsy findings. The paucity of evidence based science, coupled with the pretence that such science exists in regard to postmortem toxicology, leads to the abuse of process, almost certainly to the miscarriage of justice, and possibly even to false perceptions of conspiracy and cover up.”
22. Challenging the order of acquittal of respondents 2 and 3 by the Chief Judicial Magistrate, Puducherry in STR No.92/2004, dated 18.05.2005, on the appellants’ side one Chinnasamy, as petitioner/PW1 filed a Criminal Revision before the Hon’ble High Court, Madras to set aside the order of acquittal and remit the matter back to the trial court for fresh disposal.
23. The Hon’ble Madras High Court, summoned the expert in the field of Anesthesia, one Dr.T.Venkatachalam, Professor, Dept. of Anesthesia, Madras Medical College & Hospital, Chennai and examined him as a court-witness. The doctor deposed that “ in the case on hand, 14.5 micro grams/ml of thiopental was found which according to me is well within the possible level of drug to be administered to produce anesthesia. Going by the level of thiopental found in the blood of the deceased in this case, I am sure that 14.5 micro grams of thiopental found in the blood of the deceased would not have caused the death at all. I differ from the opinion offered from the doctor who had given opinion and conducted post mortem, in respect of cause of death. In my definite opinion, the cause of death in this case surely was not due to the presence of 14.5 micro grams of thiopental/ml of blood”
24. Dr.Venkatachalam, the anesthetist concluded that 14.5 mg of thiopental was not the cause of death of the patient. Hence, the allegation that excess dosage of thiopental has caused the death of the patient has to be rejected as not true.
Finding:
25. The Hon’ble High Court, Madras has quoted “State of Himachal Pradesh Vs. Jail Lal and Others” A.I.R. 1999 SC 3318, wherein the Hon’ble Supreme Court while considering the scope of Section 45 of Evidence Act in para 17 has stated as…….
“17. Section 45 of the Evidence Act which makes opinions of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law; or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impression are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.”
26. According to the Evidence Act, the opinion of CW1 that the presence of 14.5 mg. of thiopental in the blood samples was the cause of death cannot be taken into consideration and has to be discarded on the sole ground that he is only a Forensic Expert and not an expert in the field of Anesthesia. Hence, the finding of Dr.Ambroise (CW1) has to be rejected.
27. The Chemical Analyst’s opinion that there was 14.5 microgram of thiopental present in the blood Ex.C3, has to be taken as valid and not his opinion that the cause of death was due to excess dosage of thiopental since he is not an expert to give his view in the field of anesthesia.
28. Thus, Dr.Ravishankar, Anesthetist concluded that blood concentration before death and after death differ and there is no authenticity in such findings. According to the Doctor, 350 microgram of thiopental present in the blood is normal and there was no excess dosage of it. The Doctor is a skilled person in the field of anesthesia and he is an expert to give his opinion as per Section 45 of Indian Evidence Act para 17. Hence, his view that there was no excess dosage of thiopental and 14.5 microgram of thiopental used is well within the normal range, has to be taken into consideration.
29. .Dr.Venkatachalam, Anesthetist, Madras Medical College, Chennai opined that 14.5 micrograms of thiopental found in the blood of the deceased is well within the permissible level of drug to be administered to induce anesthesia. The Doctor categorically denied there was excess dosage of thiopental in the blood of the deceased and the cause of death was not due to its effect. Thus, the opinion given by the expert is the ultimate and final.
30. From the above context, the opinion of Dr.Venkatachalam and Dr.Ravishankar, Anesthetists only has to be considered since they are the experts in the field of Anesthesiology to give their opinion as per Section 45 of Indian Evidence Act, para 17. Hence, their view that 14.5 microgram of thiopental present in the blood is within the normal range to produce anesthesia. It is proved that there was no excess dosage of thiopental used by R3 and the cause of death of the patient was not due to its effect. The allegation of the appellants that the death was due to excess dosage of thiopental is not valid and has to be discarded.
31.POINT No.3:
Whether there was any negligence on the part of respondents 2 and 3 during the administration of thiopental?
According to the appellants, as fixed for the surgery for removal of stone in gall bladder on 27.07.2002 at 1.00 p.m., the respondents No.2 and 3 rushed to the O.T. The surgery was an elective one. At 3.00 p.m., the relatives of the patient were informed that the operation would complete in an hour and at 5.30 p.m., they were allowed to see the patient. They saw the patient with a tube in his neck, hands were stiff and stretched out. At that time, the respondents 2 and 3 informed them that the patient was having some complicated cardiac problem and they could not continue the operation. Seeing the condition of the patient, the relatives insisted to call Dr.Manimaran, Cardilogist and then only he was called. The Doctor rushed into the O.T. and felt the pulse of the patient and declared dead long back. The cause of death according to respondents 2 and 3 as ‘Pulmonary Oedema and Myocardial Infarction’.
32. The respondents No.2 and 3 contended that the patient was taken to the O.T. at 1.00 p.m. on 27.07.2002 for surgery. He was connected to the monitor and induced anesthesia at 1.20 p.m. with 250 mg of thiopental. A dosage of 250 mg of the dose was within the tolerated limit for a person of 70 kg. . Scoline 100 mg. was given. Intubation by passing of an endotrecheal tube into the airway was done twice, but failed due to large leafy epiglottis. Then, they decided to discontinue the surgery since it was not an emergent one and to shift the patient to the ward. To prevent any laryngeal oedema, injection was given through I.V. To maintain airway, oxygen, laryngeal mask was adopted. At 3.30 p.m., the patient fully recovered from anaesthesia and the blood pressure and heart-rate were normal. At 4.00 p.m., suddenly the patient developed profound pulmonary 0edema and medicines were given for that. Then, tracheostomy was done, since oxygen level was coming down. Though Pulmonary Oedema was controlled for a while, at 4.20 p.m., he developed hypertension leading to Myocardial Infarction which was unexpected. Then, Dr.Manimaran, Cardiologist, was called and he saw the patient at 4.30 p.m. The cardiac resuscitation drugs were given and Dr.Manimaran was fully satisfied with the line of treatment given by respondents 2 and 3 and advised them to continue the same treatment. After Dr.Manimaran left, the BP of the patient dropped and developed brady cardia. Inspite of giving proper treatment, BP continued to be low and heart-rate was 30 per minute. Then, at 4.35 p.m., the patient suffered Myocardial Infarction. The patient’s relatives were allowed to see him and explained the sudden development of the patient’s condition. At 5.00 p.m., the monitor showed the heart-rate as 36 per minute and the oxygen saturation as 70. The relatives of the patient were not satisfied and they manhandled the 2nd respondent. At 6.00 p.m., the patient died.
33. Now, we have to make an observation of the above paragraphs (paragraphs 31 and 32) to derive what actually happened to the patient on 27.07.2002 in the O.T. to conclude whether there was any negligence on the part of respondents 2 and 3.
34. From the depositions of R2 and R3, the following chart has been made
:
10.00 a.m. - Pre-anesthesia check-up (Ex.C28 – Anesthesia record)
1.00 p.m. - Entered O.T. respondents 2 and 3
1.15 p.m. - Anesthesia induce started (Patient received 250 mg of Thiopental)
1.21 p.m. - Patient under anesthesia (Scoline 100 mg. given … muscle relaxant)
After second dosage of scoline, gave another 100 mg of Thiopental
1.24 p.m. - First intubation- failed
1.20 – 2.30 pm Patient was in anesthesia
2.20 p.m. - Second Intubation (failed) – 2nd intubation was attempted for another
four minutes (When failed, immediately taken out the
mask and gave oxygen
Decodrin, efcortin 100 mg were used intravenously to prevent laryngeal
Oedema E.T.tube could not be inserted because of difficulty in seeing
the glottis (Upper airway)
Given second dose of scolin 75 mg
Adjusted position of head upwards.
3.30 p.m. - Recovery from anesthesia – blood pressure and heart-rate normal
4.00 p.m. - Developed profound pulmonary edema – medicines given
4.05-4.10 pm Trecheostomy (making a hole in the neck was done) (S.P.O. – 2 coming
down due to pulmonary edema
2 injections given one after another – 20 to 30 seconds between the
beginning and end of injecting lasix
Intracardia line started
Nebulisation – 30 seconds.
NTG patch was applied, inotrotes (Dopa and dobutamine drip) and NTG
drip started.
4.20 p.m. - Developed hypertension leading to myocardial infarction
4.30 p.m - Dr.Manimaran, Cardiologist saw the patient and left – No notings
recorded
4.35 p.m - Suffered myocardial infarction.
5.00 p.m. - Monitor shows heart-rate 36 p.m. and oxygen saturation as 70.
6.00 p.m. - Patient died.
6.30 p.m. - Police seized the record.
10.30 p.m. - Police came to O.T. – seized materials (R3 was present in the corner of
the same Room)
11.00 p.m. - Photographs taken (Monitor)
35. From the depositions of R2 and R3, the above sequence of events have occurred in the O.T. First intubation was at 1.24 p.m. and the second intubation was at 2.20 p.m. There was a gap of one hour between first and second intubation and the reason for which has not been explained by the Anesthetist. The question is how the patient was maintained without intubation from 1.24 p.m. to 2.20 p.m. What was the condition of the patient during that time is not explained. When there was difficulty in intubating the patient and aftermath complications like inflicting tracheotomy wound and pumping unnecessary medicines, the Anesthetist could have sought the assistance of a senior Anesthetist which would have avoided the fate of the patient. It is a clear case that there was lapse on the part of Anesthetist who handled the patient alone in dire circumstances. The doctor has wasted time when complications arose and making several attempts by herself to rescue the patient instead of getting help from senior Doctors who can reach the spot in no time as Dr.Manimaran, Cardiologist was called. When we trace the sequence of events, it is apparent that the death was due to hypoxia or air hunger caused by unsuccessful intubations and also unnecessary medicines added to the cause of death.
36. According to R3, the monitor, Ex.R18 is the device having cables that connect “the monitor to the patient. For heart-rate electrodes are attached over the chest of the patient Kanniakumar. I myself handled the device called monitor. If any particular entry in monitor is wrong, then, anesthetist will check the patient manually. Then after checking the patient we can always correct particulars shown in the monitor by keying appropriate numbers by use of the key pad attached to the monitor “.
37. Ex.R18 is a vital document which shows that the monitor recording can be altered. Thus, there is no authenticity or genuineness of the monitor recording and has to be discarded because it can be a dubious one. The photographs in the monitor were taken around 11.00 p.m. on 27.07.2002 and R3 was very much present in the room according to her deposition. As such, there is no veracity in Ex.R18 and cannot be considered for deciding this case.
38. In the operation theatre, as per the deposition of R3, the anesthetist was assisted by anesthesia technician Selvi, Maria Selvi – theatre nurse, Ramesh and Babu – two male attendants. R3 could have examined one of them if there is any truth in her narration. If there is any veracity in the stand taken by R3 that the patient died at 6.00 p.m. and not earlier, as alleged by the appellants, they could have examined Dr.Manimaran, Cardiologist who saw the plight of the patient in the operation theatre. This question was raised while examining R3 and the reply was “I have to discuss with my advocate.” Thus R3 failed to examine any of the individual who was present in the O.T. to establish her stand.
39. Dr.Manimaran, Cardiologist in his affidavit, Ex.R17 states that on 27.02.2003 around 4.15 p.m. he saw the patient who had already connected to a monitor. He found the treatment already given by the doctor adequate with the normal practice followed in such cases. The condition of the patient, who was alive was bad and nothing more could be done. He advised the doctors to continue the same treatment and left the nursing home. From the affidavit, it is clear that Dr.Manimaran had not given any treatment or left any noting. It is clear that the patient was beyond the stage to save and Dr.Manimaran could do anything concrete. According to R3, Dr.Manimaran had seen the patient at 4.30 p.m. and left at 4.35 p.m. After he left at 4.35 p.m., the patient suffered myocardial infarction. If so, why Dr.Manimaran was not called back to attend the patient. All these are lacunae on the part of R3 which shows nothing but the patient had already died before Dr.Manimaran’s visit, as alleged by the appellants.
40. It is noticed in R3’s deposition on 07.12.2005 stating, “ I remember the word ‘half-life period’ in the context of thiopental. I cannot say about it without referring books.” On 08.02.2006 R3 deposed that “ Even though I was specifically questioned on word “half-life period” in context of thiopental and even though I have stated I can say about it by reference to books, I have not referred any book for that purpose till date, because I have no time and also there was no electricity supply on the previous day in both my house and in my clinic. My house is at Bharathi Street at Ellapillaichavady. My clinic is at Nellithope. I don’t have an inverter or generator in my clinic”.
41. Even though there was two months gap between the first and second depositions (17.12.2005 and 08.02.2006), R3’s reply that she had no time and there was no electricity on the previous in her clinic as well as in her residence seems to be an evasive reply. Such statement made by the Anesthetist shows her callous approach.
42. For a common surgery like removal of stone from the gallbladder of the patient who had no other health problems as per medical records, this Ex.C5, turned out to be fatal. Simple anesthetic procedure for the surgery became so complicated due to lack of seriousness and devotion to save a life. We have observed that two failed intubations, hypoxia and also plenty of medicines were pumped into the patient. When everything failed to save the patient tracheotomy was also done. Finally, it was beyond the control of the concerned Doctor to save a precious life. Thus, the lapse on the part of R3 amounts to medical negligence.
43. Negligence is defined by the Hon’ble Apex Court in Spring Meadows Hospital Vs. Harjon Ahluwalia held that gross medical mistake could always result in a finding of negligence. The position of law has been explained very clearly in para 9 of the aforesaid case. The relevant portion of which is reproduced hereunder:
Para 9 ……” very often in a claim for compensation arising out of medical negligence, a plea is taken that it is a case of bona fide mistake which, under certain circumstances, will be excusable, but a mistake which would tantamount to negligence cannot be pardoned. “
44. In “Dr.Laxman Balakrishna Joshi Vs. Dr.Trimbak Bapu Godbole” A.I.R. 1969 SC 128, “the doctors owe a duty of care to the patients. Failure to show due care or skill in medical treatment resulting in death, injury or pain of the patient gives rise to a cause of action in negligence. A person who holds himself out ready to give medical advice and treatment implied undertakes that he possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, or a duty of care in the administration of the treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.”
45. In “Bolam Vs. Friern Hospital Management Committee” 1957 (II) ALL ER 118, “the test of reasonable care in medical profession is to be judged by the standard of the ordinary skilled man exercising and professing to have that special skill at that time.”
46. In “Jacob Mathew Vs. State of Punjab & Another’ 2005 (VI) SCC 1, the Hon’ble Apex Court while dealing with negligence had given the following “ actionable negligence consists in the neglect of use of ordinary care causing towards a person to whom the defendant owes a duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property…… the definition involved three constituents of negligence: 1) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of their duty; 2) breach of the said duty; and 3) consequential damages. Cause of action for negligence arises fully when damage occurs; for, damage is a necessary ingredient of this tort.”
47. Dr.Rajendiran – R2 was supposed to conduct surgery for the removal of stone in the gall bladder of the patient after the anesthetic procedure. At 1.20 p.m., R3 only connected the patient. to the monitor induced anesthesia, two futile attempts were made to intubate, tracheotomy was done and medicines were given.. The deposition of R2 revealed that his role was yet to start and before it could start, the patient collapsed on the table Since the patient collapsed before the surgery, R2 has no role to play. Up to that point of time, the patient was handled by 3rd respondent only. So, 3rd respondent is responsible for all the complications stems from the anesthetic procedure which was made complicated by her and not the 2nd respondent. Accordingly, R2 cannot be entangled with any medical negligence in this case. The appellants cannot claim any compensation from R2 since there was no medical negligence on his part.
48. FINDING:
From the facts and circumstances of the case and deposition of R3, the following are the lacunae on the part of R3 leading to deficiency in service and medical negligence.
1.22 p.m. Patient was induced with thiopental 250 mg. + Scolan 100 mg.
1.24 p.m. First intubation attempt failed.
2.20 p.m. Second intubation Then from 1.24 p.m. to 2.20 p.m. how R3 had maintained the patient without intubation? R3 has failed to explain how the patient was maintained and what was his condition during that time. In the Operation theatre R3 was assisted by technical staff only who is not on par with a senior Anaesthetist.
49. Because of failed intubations, trechetomy and hypoxia patient developed pulmonary edema and myocardial infarction, which shows nothing but lack of technical skill and lacunae on the part of Anesthetist
4.20 p.m. Developed myocardial infarction. ECG evidence not produced before
this Commission.
4.30 p.m. Dr.Manimaran, Cardiologist visited the patient The cardiologist was supposed to give treatment for myocardial infarction. Who no noting of cardiologist furnished. It is clear that cardiologist could do nothing to save the patient, who had already breathed his last. During the Cardiologist's visit the patient had already died and that was the reason why the Doctor had left within 5 minutes.
Failed to examine Dr.Manimaran, Cardiologist to bring out the truth
Failed to seek the assistance of senior Anesthetist in apt time.
Failed to examine any of the assistants in the operation theatre to establish the truth.
The document Monitor Ex.R18 shows the reading from 16.20 to 16.55 hrs.
The reading from 1.20 to 4.20 p.m. has not been furnished.
Since the monitor can be altered manually as deposed by R3, the recordings in Ex.R18 cannot be taken as genuine.
50. From the above act of R3, it is clear that during the administration of anesthesia to the patient, due to the negligent act and lack of skill has resulted in hypoxia or air hunger. There is lack of basic care and apt treatment in proper time.
51. The appellants claimed Rs.19,00,000/- for loss and damage with interest at 18% p.a. and Rs.10,000/- towards costs. The deceased Kanniakumar died at the prime age of 45 years when he was earning and lading a decent life by educating his two minor daughters in reputed schools like St.Joseph of Cluny and St.Patric’s School at Puducherry. From the records it is evident that he is the sole bread winner of his family. After the sudden demise of the head of family, we can realize the sufferings and pain of a young widow how much difficulties the family would have undergone due to the loss. Definitely the family would have been crippled emotionally and financially. Such a case as this deserves due award atleast to compensate them
52. The District Forum had dismissed the complaint on the grounds that there was no excess dosage of thiopental and that was not the cause of death of the patient. The District Forum had failed to deal with the negligence part as discussed above by this Commission. Hence, the findings of District Forum is set aside.
53. Medical negligence on the part of Anesthetist, R3 is proved beyond reasonable doubt and is liable to compensate the appellants:
The Anesthetist R3 is directed to pay:
i) Rs. 15,00,000 (Rupees fifteen lakh only) towards deficiency in service and medical negligence for the loss and damages.
ii) Rs.10,000/- (Rupees Ten-Thousand only) towards cost of the proceedings.
The amount shall be payable within 45 days from the date of receipt of this order, failing which, the said amount shall carry interest at the rate of 9% p.a. The appeal is dismissed as against R1 and R2.
Dated this the 21st January, 2016
(Justice K.VENKATARAMAN)
PRESIDENT
(TMT.K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
