BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
C.C. No.73 OF 2011
Between:
- Smt Narra Malleswari
W/o late Parvathaneni Raghavendra Rao
Aged 43 years, Occ: AAO, AP TRANSCO
R/o Flat No.405, C-Block, Kalyan Kuteer
Street No.1, Bhavani Nagar, Nacharam
Hyderabad-500 076
- Baby Parvathaneni Kiranmayi
D/o Late P.Raghavendra Rao
Aged about 10 years, Occ: Student
R/o Flat No.405, C-Block, Kalyan Kuteer
Street No.1, Bhavani Nagar, Nacharam
Hyderabad-500076, rep. by her
Natural Mother and guardian
Smt Parvathaneni Malleswari
*** Complainants
A N D
- Nizam’s Institute of Medical Sciencies
Panjagutta, Hyderabad-500082
Rep. by its Director
- Dr.Pinjala Rama Krishna
Prof. & Head of the Department of
Vascular Surgery, Department of
Vascular Surgery, NIMS
Panjagutta, Hyderabad-500082
- Dr.M.Srinivas
Anaesthesiologist, Dept. of Anaesthesiology
NIMS, Panjagutta, Hyderaad-500082
- Dr.P.Sunil Bablu
Anaesthesiologist, Dept. of Anaesthesiology
NIMS, Panjagutta, Hyderabad
- The Oriental Insurance Co.Ltd.,
Regd. & Head Off, A25/27, Hasfall Road
New Delhi-11002, rep. by its Regional Manager
Office at Snehalatha Apartments,
Opp. Blue Moon Hotel, Begumpet,
Hyderabad (Policy bearing No.431300/48/2011/3331,
Issued by the Oriental Insurance Co.Ltd.,
D.O.6, Hyderabad valid from 31.05.2010 to midnight
-
*** Opposite parties
Counsel for the Complainants: Sri V.Gourisankara Rao
Counsel for the Opposite Parties No.1&2 Sri MVG Anandam
Counsel for the opposite party no.3 Sri M.Subramanyam Reddy
Counsel for the opposite party no.4 Held sufficient
Counsel for the opposite party no.5 Sri K.V.Rao
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
TUESDAY THE FIFTH DAY OF DECEMBER
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is a complaint filed under section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainants to direct the opposite parties to refund a sum of Rs.51,02,196/- towards loss of earning, medial expenditure, loss of consortium and compensation together with costs of Rs.25,000/-.
2. The case of the complainant in brief is that the husband of complainant no.1 late P.Raghavendra Rao while suffering from Vascular Veins of his left leg approached the opposite partyno.2 who after examination of the patient suggested for an operation for his varicose veins as such he was admitted in the opposite party no.1 hospital on 02.08.2008. The pre-operative medical status of the patient was healthy. All routine investigations of the patient was normal inspite of having gall bladder stone. Having satisfied with all the investigations, opposite party no.3 gave clearance and declared that the patient was fit for surgery from the anaesthetic point of view.
3. On 03.08.2010 at about 10.00 the patient was taken into operation theatre for surgery where the opposite parties no.2 to 4, the concerned anaesthesiologists and the paramedical staff were present. At about 1.00 pm. The patient was brought out of the operation theatre in unconsciousness condition. When asked by the complainant no.1 and other attendants, the doctors told that the patient developed the complications like hypotension and bradycardia due to which he underwent coma. The patient was shifted to Respiratory Intensive Care Unit (RICU) and was put on ventilation. Inspite of giving treatment for 50 days, the patient died on 21.09.2010 in opposite party no.1 hospital in comatose condition. The Death Summary of the patient shows that the death was due to acute myocardial ischemia and hypoxic ischemic encephalopathy. The complainant no.1 alleged that since there was no proper treatment except supportive treatment and there was no proper response form the opposite parties, the complainant no.1 filed a complaint on 20.09.2010 before the Human Rights Commission against the opposite partyno.1 hospital and on the very next day the patient died and the complainant no.1 withdrawn the complaint from the Human Rights Commission with liberty to file a fresh complaint before the appropriate forum claiming compensation.
4. Hence, the complainant no.1 filed the present complaint alleging that the opposite parties have not followed standard protocols in administering spinal anaesthesia. The records/case sheet were not properly maintained. The case sheet reveals that the BP has fallen down from 120 to 80 and pulse from 80 t0 60 for which proper measures were not taken to counter them. Hypoxia was over looked. Appropriate measures were not taken concentrating on hypoxia. Had proper oxygen supply was maintained the brain damage could have been avoided. The anaesthesia chart was poorly maintained. The timings of anaesthesia and drugs were not properly mentioned. The development of the complications after 2-3 minutes was not accurate. The inj. Atropine and mephentin were not mentioned. Mephentin is not a standard drug of choice in spinal anaesthesia hypotension. Inj. Ephedrine is the right drug. The doses of adrenaline were inadequate. Oxygen saturation was not mentioned before the procedure and during the procedure which will warn hypoxia status which is a mandatory observation as per Indian Society of Anaesthesiologist and American Society of Anaesthesiologist.
5. There are various discrepancies/differences in the records/documents maintained by the opposite parties. The opposite partyno.3 has not property monitored CPR which is a choice method of resuscitation to support circulation to increase oxygen supply to the brain to prevent in hypoxia by Capanogrpahy. The opposite parties raised before the HRC that the patient was having severe diabetic, hypertension, obesity which may lead to cardiac problem or hypoxic ischemic encephalopathy at any point of time before surgery or post-operative period and that hypotension following spinal anaesthesia may occur in 10 to 30% of the patient but the opposite partyno.3 never explained either to the patient or to the complainant no.1 about the same. The medical literature of American Society of Anaesthesiologist (ASA) clearly discloses that hypotension is a preventable cause of death. The opposite parties have not take any measures for DM Autonomic Neuropathy complications. He ought o have taken proper steps for maintaining airway without disturbing oxygen supply to the brain. Spinal anaesthesia is less risky anaesthesia. The hypotension and brain damage of the patient was only because of improper administration of spinal anaesthesia and failure to properly monitor/manage the anaesthesia which resulted in irreparable brain damage and premature death of the patient.
6. On 21.09.2010 a complaint was lodged before SHO Punjagutta PS by the brother of the deceased against the opposite parties and to that effect an FIR no.751/2010 was registered on 21.09.2010 by the said PS.
7. The husband of the complainant no.1 was aged 44 years at the time of his death and was working as an administrative officer in Sri Chaitanya Junior Kalasala drawing a monthly salary of Rs.35,000/- i.e., Rs.4,30,000/- p.a. Even if 1/3rd of the salary is deducted there would be net contribution of Rs.20,000/- p.m. to his family i.e., Rs.2,40,000/-. Since the deceased patient was only 44 years at the time of his death, multiplier 14 applies i.e., Rs.33,60,000/-. Future prospectus @ 30% is added as per Sarala Varma’s case, it would come to Rs.10,08,000/- totalling to Rs.43,68,000/-. The opposite parties charged Rs.1,97,000/- towards medical bills and the employer had paid the said amount besides the complainant no.1 directly paid Rs.2,32,196/- to oppositepartyno.1. The complainant no.1 purchased medicines worth Rs.55,000/- outside of the hospital. Thus the complainant no.1 spent a total sum of Rs.4,84,196 for the treatment of her husband. As the complainant no.1 was aged about only 43 years, she lost her consortium. The complainant no.2 is the only daughter aged about 10 years, lost her paternal care love and affection forever.
8. The complainant no.1 alleged that because of the failure of the opposite parties in conducting all the necessary preoperative investigations and because of improper administration of spinal anaesthesia, failure in monitoring proper oxygen supply resulting in hypotension and hypoxia ischemic encephalopathy which result in premature death of the patient on 21.09.2010. Hence, they filed the present complaint with reliefs as stated in paragraph no.1 supra.
9. The opposite parties no.1 and 2 filed counter affidavit denying the allegations made in the complainants. They contended that the patient was admitted in the opposite party no.1 hospital on 02.08.2010 to undergo surgery for varicose veins and after preoperative evaluation, the husband of the complainant no.1 was taken for surgery on 03.08.2010. Preoperative assessment revealed that patient weighed 110 kgs, BP was 110/70 mm Hg, HR 78 mm. The husband of the complainant no.1 was diabetic for 8 years and was on pioglitazone 15 mg per day, glibenclamide 2.5 mg per day and metformin 250 mg per day. The husband of the complainant no.1 blood sugar was 129 mg%. The patient had history of cholelithaisis. Other routine investigations were normal. Informed consent was taken from the patient and the complainant no.1 by explaining the risks including those related to cardiovascular and cerebrovascular systems.
10. The husband of the complainant no.1 was taken to the operation theatre at 11.10 a.m. on 03.08.2010 and intravenous line was secured and routine ECG, pulse oxymeter and non-invasive blood pressure monitoring modalities were connected. Ringer lactate infusion was started. BP was 120 mm Hg systolic and Heart rate was 80 beats per minute. ECG on the monitor was normal. Spinal anaesthesia L3-L4 level with 3 ml., of 0.5% bupivacaine with 25 micrograms of fentanyl was administered in sitting position. After the spinal anaesthesia procedure, patient was placed in supine and as per standard procedure oxygen was administered through face mask. After 5 minutes, the blood pressure dropped from 120 mm Hg to 80 mm Hg with heart rate dropping from 80 to 60 beats/min. At this time, intravenous atropine and mephentermine were given. Respiration was laboured. Patient was intubated with 8.5 sized endotracheal tube an connected to ventilator with 100% oxygen. Invasive arterial blood pressure line was secured and connected to the monitor which revealed a BP of 50 mm Hg. Life saving drugs atropine, mephentermine, adrenaline were given and triple lumen catheter was secured via right internal jugular vein. Noradrenaline infusion was started along with intravenous colloid. BP increased to 70 mm Hg and then to 100 mm Hg with heart rate increased to 100 and then to 140 beats per min. Arterial blood gas analysis showed acidosis which was corrected by intravenous soda bicarbonate. Resuscitation continued and a standard 12-lead ECG was taken. ECG revealed sinus tachycardia with sT-T changes in the lateral leads. Resuscitative measures artificial ventilation with 100%, intravenous fluids and noradrenaline infusion continued. Patient was shifted to Respiratory Intensive Care Unit (RICU) with a probable diagnosis of acute myocardial ischemia induced by hypotension. During transport to RICU, 100% oxygen was given with artificial ventilation with AMBU bag.
11. The husband of the complainant was shifted to RICU at 2.00 p.m. and connected to ventilator with 100% oxygen. At this stage HR was 140/min and BP of 90/60 mm Hg, central venous pressure of 7 mm Hg. Pupils were reacting to light. Dopamine infusion was started and nonadreanaline infusion was continued. Continuous insulin infusion was started with monitoring of blood sugar levels. Opinion of Cardiologist and Neurologist was sought. Investigations i.e., 12-lead ECG, cardiac enzymes including troponin-T and other routine blood tests were sent. In the next few hours BP improved and patient was weaned off dopamine and noradreanaline. At 7.00 p.m. blood pressure was 150/90 mm Hg and he was started on NTG infusion. 2D- echocardiography was done and following findings were noted:
“Poor Echo window, no regional wall motion abnormalities, ejection fraction 60%, no MR, AR, No PE. Troponin-T was negative. LDH was 395 IU/L and CPK was 253 IU/L. Artificial ventilation with monitoring of blood gases and other routine investigations continued”.
12. Cardiologists and the Neurologists were called for their consultations and they opined to continue same supportive measures. On 05.08.2010 patient was drowsy but vital signs were normal. MRI brain revealed multiple areas of restricted diffusion noted involving bilateral cerebral hemispheres predominantly gray matter. The findings were suggestive of hypoxic ischemic encephalopathy. Tracheostomy was done on 09.08.2010. The patient sensorium ranged from drowsiness to spontaneous eye opening and occasionally responding to painful stimuli. Weaning off the artificial ventilation commenced from 12.08.2010. Patient was breathing spontaneously via T-piece with oxygen supplementation from 05.08.2010 to 16.09.2010. The MRI brain was repeated on 15.09.2010 which revealed the following findings:
Hyperintensities were notied involving bilateral temporal basifrontal, perisylvian, reginal periventricular region with relative sparing of occipital region.
13. The findings were suggestive of hypoxic ischemic encephalopathy. On 16.09.2010 patient had cardiac arrest and was revived successful with external cardiac massage, 100% oxygen with artificial ventilation and all life savings drugs. The blood pressure and heart rate were maintained on very high doses of life saving drugs. Since then patient continued to require high doses of life saving drugs. On 21.09.2010 at 12.45 p.m. patient had cardiac arrest and resuscitation attempts failed and he was declared dead at 1.38 p.m.
14. The standard protocol was followed for monitoring blood pressure reduction following the administration of spinal anaesthesia is seen upto 30% of the patient and also reduction in heart rate. A conscious patient was taken as a monitor for hypoxia along with pulsoximetry during the period of reduction in blood pressure and heart rate. The records are maintained properly by the opposite parties and recorded everything and taken steps to safeguard the health of the husband of the complainant. Mephenteramine is a recommended rug for use during hypotension and hence can be given in the event of ephedrine is not been available. Also in lieu of ephedrine, phenylephrine is recommended by ASA guidelines which was given as mentioned in the anaesthesia chart abbreviated by “PE”.
15. The doctors are highly qualified and experienced in the field of anaesthesiology and running the RICU with the state of the art with all life saving drugs and devices. The RICU unit of NIMS is the best among others in rendering respiratory services. Since the inception of the Institute there was no reported cases from any corner about the deficiency/negligence of the services on the part of the doctors of anaesthesiology department of NIMS. The institute have taken an insurance coverage for all medical professional and other staff for their actions in treating the patient. The policy issued by the opposite partyno.5 is valid from 31.05.2010 to 30.05.2011. All necessary peri-operative measures were taken to monitor and manage a patient under spinal anaesthesia hence no deficiency of service can be construed. All guidelines for administration of spinal anaesthesia were followed. The claim of the complainant is exorbitant and without any reasonable calculations. The complainant is not entitled to any compensation from the opposite parties since they have discharged their duties effectively and followed the standard procedures and made their efforts to save the life of the husband of the complainant no.1. Therefore, the opposite parties no.1 and 2 prayed for dismissal of the complaint.
16. Though the opposite party no.3 filed separate counter affidavit but the said counter is replica of the counter affidavit of the opposite parties no.1 and 2 and hence there is no need to mention the same once again.
17. The opposite party no.5 filed written versions contending that the complainants did not mention any deficiency of service on the part of the opposite party no.5. The allegations mentioned in the complaint are not in the knowledge of the opposite party no.5. The opposite party no.5 had issued Errors and Omissions – Medical Establishments Policy to the opposite party no.1 and the opposite partyno.5 is liable to indemnify only to the opposite party no.1 subject to the terms, warranties, conditions and exclusions of the policy. However, the Director, NIMS, Hyderabad cannot implead opposite party no.5 in accordance with the terms, conditions and exclusions of the policy. The opposite partyno.5 shall reimburse to opposite partyno.1 in case of any order against to them. However, such reimbursement shall be subject to the terms, warranties, conditions and exclusions of the policy. Any order passed against the opposite partyno.1 within the ambit of the policy shall be reimbursed by opposite partyno.5 to the Director of NIMS, Hyderabad. No cause of action arose against the opposite partyno.5 at any point of time as the opposite partyno.5 had not committed any deficiency of service against anybody more particularly in respect of opposite party no.1. Hence, the opposite partyno.5 prayed that keeping in view of the principle of privity of contract between opposite partyno.1 and opposite party no.5 appropriate orders may be passed.
18. The opposite parties no.1 to 3 have filed additional written version contending that without prejudice to the contentions raised in the counter, for abundant caution, NIMS and its employees are covered from the professional indemnity under the insurance policy known as “ Error and Omission – Medical Establishment Policy” and further the indemnity also applies to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by or in professional service rendered by the Institute or the employees of the Institute. Based on the said insurance policy, if the institute is held liable to pay any compensation on any account in any claim of whatsoever nature, the said insurance company alone is liable o make the loss good to the institute. The said insurance company is the proper and necessary party to the complaint and liable to pay compensation if any to the complainants on behalf of the opposite parties no.1 to 3. In view of the above, the opposite parties no.1 to 3 prayed for dismissal of the complaint against them.
19. On behalf of the complainants, the complainant no.1 filed his evidence affidavit and additional evidence affidavit and got Exs.A1 to A9 marked. On behalf of the opposite parties, the Executive Registrar I/c has filed evidence affidavit on behalf of the opposite party no.1, the opposite parties no.2 and 3 have filed their respective evidence affidavits and got Exs.B1 to B3 marked and the Regional Manager of the opposite party no.5 has filed his evidence affidavit and got Ex.B4 marked.
20. The clerk of the counsel on record for the complainants, the Record Assistant of opposite party no.1 Institute, opposite party no.3 party in person and counsel for the opposite party no.5 are all present and was heard. Written arguments of both sides are filed.
21. The complainant filed affidavit by way of evidence and reiterated the facts in the complaint.
22. Ex.A1 is the Case Sheet issued by opposite party no.1 consists of admission record, consent for surgery, history, progress reord/doctor’s orders, inpatient record nurses daily record and pathological records. Ex.A2 is the copy of cash receipt dated 02.08.2010 for rs.10,000/-. Ex.A3 is the copy of Credit Card for Treatment of the deceased issued by Transmission Corporationof Andhra Pradesh Limtied. Exs.A4 and A5 are the copies of letters dated 03.09.2010 and 23.08.2010 from Transmission Corporation of Andhra Pradesh Limited to the Director of opposite party no.1 recgarding credit card for continuation of treatment. Ex.A6 is the copy of death information dated 21.09.2010. Ex.A7 are the copies of bunch of medical bills. Ex.A8 is the copy of order in HRC dated 03.03.2011 and Ex.A9 is the copy of death summary dated 01.09.2011 issued by opposite party no.1.
23. Opposite parties no.1 to 3 and 5 also filed affidavits reiterating the facts in their counters.
24. Ex.B1 is the copy of insurance policy issued by the opposite party no.5 in favour of the opposite party no.1 for period from 31.05.2010 to 30.05.2010. Ex.B2 is the copy of insurance policy issued by the opposite party no.5 in favour of the opposite party no.1 for period from 31.05.2011 to 30.05.2012. Ex.B3 is the copy of letter dated 13.12.2013 addressed by the opposite party no.1 to the Standing Counsel of Opposite partyno.1 requesting him to implead the opposite party no.5 as a party to the proceedings. Ex.B4 is the insurance policy issued by the opposite party no.5 in favour of the opposite party no.1 for period from 31.05.2010 to 30.05.2010.
25. The points that arise for consideration are :
1. Whether deficiency in service is made out against all or any of the
opposite parties?
2. What is the quantum of compensation if any payable to the
complainants?
26. POINTS NO.1 AND 2 There are several issues which has been raised by the complainant with respect of medical negligence and we address them as follows.
27. The first contention of the complainant is that according to the opposite party no.3 the patient was healthy enough to receive spinal anaesthesia, however, one crucial pre-operation test was not done to rule out autonomic neuropathy. In support of her contention the complainant cited the opinion of Dr.Ajay Yadav who opined that in without ruling out autonomic neuropathy spinal anaesthesia, a farm of regional anaesthesia should not be given. It is the case of the opposite parties no.1 to 3 that autonomic Neuropathy can be unmasked during spinal anaesthesia but does not require pre anaesthesia test if patient has no complaints related to autonomic nervous system and in the present case the patient had no complaints of autonomic neuropathy in the pre-operative period and that the citing of Dr.Ajay Yadav is not supported by evidence-based medical literature prevalent at that time i.e., 2010. We have gone through the reply given by the opposite party no.4 to the interrogatories of the complainant wherein at question no.47 the complainant posed a question as follows:
Q.47. I suggest you that the opposite parties have not evaluated the patient as he was suffering from peripheral/autonomic neuropathy?
Ans: “ it is incorrect to suggest that the case sheet does not disclose that OP’s Have done necessary preoperative tests/measures for DM and Autonomic europathy complications. Autonomic Neuropathy can be unmasked during spinal anesthesia but does not require pre-anesthesia test if patient has no complaints related to Autonomic Nervous System. Peripheral neuropathy does not cause any hemodynamic problems related to anesthesia”.
28. In Ex.A1 of case sheet of opposite party no.1 in the record of History, the deceased nowhere complained about the complaints of autonomic neuropathy. When the patient had no complaints related to autonomic nervous system, it is not necessary to do the test relating to autonomic neuropathy
29. It is apparent from a review of the risks of surgery associated with diabetes mellitus that the assessment and reduction of risk require an individual assessment of the particular patient and the surgery being undertaken. Unless there is a specific complaint about the neuropathic problem it is not necessary to do the test relating to autonomic neuropathy. Opposite party no.4 is a qualified anaestheologist who administered the anaesthesia. Opposite party no.1 hospital is well equipped operation theatre with modern anaesthesia machine with availability of all resuscitative devices and drugs. Qualified anaesthesiologists helped by qualified supportive personnel in the operation theatre undertook resuscitative measures.
30. The complainant further submitted that the opposite party no.1 was recorded that the patient had ulcers ad his heals on his left leg and that blood flowed from the ulcer and it was also recorded. The complainant had also questioned in her interrogatories at question no.48 that if the patient is suffering form peripheral neuropathy, regional anaesthesia should be given for that the opposite partyno.3 gave the answer that peripheral and autonomic neuropathy are independent. In fact the ulcers related to varicose veins. Ulcers due to neuropathy are dealt by specialist neurologists/endocrinologists while taking care to add insulin injections in addition or replacement of oral medications to control blood sugar. Patient before getting to ulcers due to neuropathy will also suffer from other manifestations of peripheral neuropathy such as tingling and numbness of hands and feet. The patient never complained such type of complaints in his history. Therefore the contention of the complainant that the opposite parties had not done crucial test to rule out the autonomic neuropathy is not sustainable.
31. The next contention of the complainant is that the case sheet were not given serial numbers in such a case pages in the case sheet can be changed from one place to another. These are apprehensions of the complainant only but she has not alleged any manipulation of case sheet or changing of case sheets. What all we have to see is whether any negligence committed by the anaesthetist in administration of spinal anaesthesia or that before administration of anaesthesia they conducted required tests or not.
32. The complainant also contended that Dr.M.Sirnivas claimed that hyper baric bupivacaine was administered but in the anesthesia record the patient was administered bupivacaine along with 25 miccro gms of Fentanyl were administered. Fentanyl is the opioid which has been widely used in combination with local anaesthetics to relieve pain. Clinical experience suggests that fentanyl in an initial dose of 50-100 micrograms with bupivacaine produces good analgesia, which can be extended with continuous infusion.
33. The allegation of the complainant is that the anaesthesia chart was poorly maintained by the opposite parties and the timings of anaesthesia and drugs were not properly mentioned. The opposite parties stated that resuscitation started at about 11.20 a.m. resuscitative measures consisted for intravenous administration of emergency drugs (atropine, adrenaline, mephentermine, phenylephrine) endotracheal intubation with artificial ventilation with 100% oxygen at 11.30 am. Insertion of triple lumen catheter through internal jugular vein for administration of life savings drugs director femoral artery cannulation at 11.45 a.m. fro direct blood pressure monitoring and also to facilitate monitoring of blood gases. At about 12.40 pm. Bolus administration of emergency drugs was stopped and noradrenaline infusion was continued to maintain the blood pressure. All events were recorded in the anaesthesia chart. The anaesthesia chart shows that as per the practice of the anaesthesia department, represents 10 min. As stated in the counter, drugs in emergency and all efforts are directed towards resuscitation measures and hence it is not possible for accurate readings of events and measurement details may have not been mentioned/recorded in the proper time sequence. During the resuscitative measures, the dose and frequency of drugs administered are based on the responses, there will be no bench mark that only a particular does should be given. We find force in the contention of the opposite parties that the it is not possible for accurate readings of events and measurement details in the proper time sequence.
34. We also rely on the requisites of the medical practitioner as described by Halsburys Laws of England:
35. The degree of skill and care required by a medical practitioner is so stated in Halsburys Laws of England (Fourth Edition, Vol.30, Para 35):-
The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basts it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.
36. Keeping in view the arguments, the material on record and the medical literature filed we are of the considered opinion that the complainants failed to establish that anaesthesia was not administered properly and there was no proper monitoring.
37. In the instant case except for the allegation of the complainant that the patient died due to negligence of the opposite parties in administering anesthesia and also not taking proper resuscitative measures , non-supply of oxygen to prevent brain damage and the patient being kept in supine position, their contentions are not supported by any documentary evidence wherein the complainants could establish that the opposite parties course of treatment fell below the standard of a reasonable competent practitioner in that field. A medical practitioner faced with an emergency ordinarily tries his best to redeem patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with negligence.
38. We find it relevant here to rely on the decision of the Apex Court in Dr.Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole and Anr. (1969) I SCR 206 discussed the duties which a doctor owes to his patients. The Court held that a person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for that 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 be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.
39. In the instant case the complainant did not establish that the opposite parties have performed any breach of these duties which gives right of action for negligence to the patient.
40. The Apex Court in INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owns to his client a duty in tort as well as in contract to exercise reasonable care in giving advise or performing services.
Supreme Court then opined as under:
The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
41. To sum up, based on the evidence and the pleadings put forward and also the medical evidence on record, we see no negligence on the part of the opposite parties and this complaint is liable to be dismissed .
In the result this complaint is dismissed without costs.
PRESIDENT MEMBER
05.12.2017
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
Nil
EXHIBITS MARKED
For Complainants :
Ex.A1 Copy of case sheet of NIMS
Ex.A2 Copy of cash receipt dt.02.08.2010
Ex.A3 Copy of AP Transco Credit Card for treatment
Ex.A4 Copy of AP Transco Credit Card for treatment dt.03.09.2010
Ex.A5 Copy of AP Transco Credit Card for treatment dt.23.08.2010
Ex.A6 Copy of death information dt.21.09.2010
Ex.A7 Copies of bunch of medical bills
Ex.A8 Copy of order in HRC dt.03.03.2011
Ex.A9 Copy of Death Summary dt.01.09.2011
For opposite parties no.1 to 4
Ex.B1 Copy of Policy for the period from 31.05.2010 to 30.06.2011
Ex.B2 Copy of Policy for the period from 31.05.2011 to 30.06.2012
Ex.B3 Letter dated 13.12.2013 of NIMS
For opposite party no.5
Ex.B4 Policy for the period from 31.05.2010 to 30.06.2011
PRESIDENT MEMBER
