- Pharmacology & Physiology in Anesthetic Practice, Fourth Edition By
Robert K. Stoelting, MD and Simon C. Hiller M.B.
Brady Cardia- Related Death:
“Profound Bradycardia and asystole after administration of propofol have been described in healthy adult patients despite prophylactic anticholinergics. The risk of bradycardia-related death during propofol anesthesia has been estimated to be 1.4 in 1,00,000. Severe refractory, and fatal bradycardia in children in the ICU has been observed with long term propofol sedation. Propofol anesthesia, compared with other anesthetics increases the incidence of the occulocardiac reflex in paediatric strabismus surgery, despite prior administration of anticholinergics.
- Millers Anesthesia, Sixth Edition, Edited by Ronald D. Miller-Vol-2.
Outcome after in-hospital Resuscitation:
Discharge survival rates after in-hospital cardiac arrest and resuscitation range from 8% to 21% with most reports demonstrating an average survival rate of approximately 14%. These reports usually include cardiac arrests in both ICUs and general wards. In a retrospective review of 668 cardiac arrests over a three year period, the discharge survival rate was 3.3% in ICU patients and 14.0% in non-ICU patients. In a small retrospective study of 24 consecutive patients who had an intraoperative cardiac arrest between 1986 and 1994, the survival rate was 38%. A primary cardiac event was presumed to be causative in 50%. An accompanying invited commentary pointed out that much of the credit for these favourable outcomes is attributable to advances in intraoperative management by anaesthesiologists. In any case, it is certain that anaesthesiologists well trained in resuscitation can play a decisive role in the management of patients with intraoperative cardiac arrest.
- Cardiopulmonary Resuscitation and Cerebral
Preservation in Adults – Chapter 2.1
Hypoxic brain damage and death always result if resuscitation is delayed, is not implemented, or is unsuccessful. In fact even if the cardiorespiratory system is resuscitated and stabilized, hypoxic brain damage and death may result, if during resuscitation, or prior to it, the cerebral circulation has been compromised, leading to irreversible damage and death of nerve cells within the brain.
Cardiac arrest is a dreaded complication during surgery and anaesthesia, it can also complicate investigational procedures – pleural, peritoneal or pericardial paracentesis, intravenous pyelography, cardiac catheterization and coronary or cerebral angiography.
Objectives and Principles of Management
Since irreversible brain injury or death can occur within 4-6
minutes of the onset of arrest, immediate treatment is mandatory.
Time is of essence, and every single second counts.
Permanent brain damage and a vegetative state are the sequelae
even if the CPR is successful.
External chest compression achieves only around 5 per cent of normal cerebral flow rates (40) and this is clearly less than the flow needed to maintain cerebral metabolism. This inability to maintain adequate levels of cerebral blood flow during closed chest CPR is the reason for brain death, neurological sequelae and the overall poor survival rates, even when resuscitation is apparently thought to be successful.
Stopping Efforts to Resuscitate:
Mere survival in a vegetative state can be an unfortunate sequel of
CPR.
“Alteration in the state of consciousness is a frequent sequel of cardiopulmonary resuscitation. This alteration may take the form of coma, a vegetative state, a ‘locked in’ state or stupor. Coma is an unconscious state with absence of verbal communications inability to respond to or to localise noxious stimuli, and an absence of spontaneous opening of the eyes. A vegetative state is similar to coma except that the patient open his eyes spontaneously, and may appear to look around.”
Circulation – Journal of the American Heart Association
Post Cardiac Arrest Brain Injury:
“Post-cardiac arrest brain injury is a common cause of morbidity and mortality. In a study of patients who survived to ICU admission but subsequently died in the hospital, brain injury was the cause of death in 68% after out-of hospital cardiac arrest and in 23% after in-hospital cardiac arrest. The unique vulnerability of the brain is attributed to its limited tolerance of ischemia and its unique response to reperfusion.”
Post-Cardiac Arrest Prognostication:
“With the brain’s heightened susceptibility to global ischemia, the majority of cardiac arrest patients who are resuscitated successfully have impaired consciousness, and some remain in a vegetative state.”
8.1) Learned counsel for the complainant mainly depended on the evidence of Dr. Mahendra Vyasabattu to establish that there is medical negligence. In the cross-examination to certain questions his answers were to the following effect:
“It is not true to suggest that the pulse oxymeter readings and the blood pressure monitoring readings have been mentioned in Ex. B18. The witness adds that only a single reading prior to starting of the procedure is shown.
What do you mean by continuous readings?
Ans: The pulse oxyprobe is attached to the patient and connected to a monitor which displays the readings on a continuous basis. If there is dropping in saturation it will be reflected on the readings, to continuous monitoring of patient’s breathing is also performed during sedation such that if breathing is slowed patient can be intubated and ventilated in time to avoid hypoxic/and oxic brain damage.
From page 30 onwards the pulse oxymeter readings are mentioned in Ex. B18 but after cardiac arrest there are no readings between 3.30 p.m. 14/5 to 3.50 on 14/5 i.e., 20 minutes of procedure did not record any readings, certainly pre cardio respiratory arrest sequence is not recorded.
In the record shown to me there is an obstruction. In Ex. B18 at page 31 the doctor notes show that there is an obstruction. The witness adds that only the doctor who is performing the procedure could know whether there is an obstruction or not.”
8.2) It is on account of said readings not being recorded in between 3.30 and 3.50 p.m. the said doubts were expressed by the said doctor. It is true that no record is provided for, for the said period and Ex. B18 categorically establishes the fact that there is no record in between said 3.30 and 3.50 p.m. The said doctor is only a General Physician. He is not specialized either in Cardiology or Gastroenterology. The best persons to speak as to whether ERCP procedure which was adopted by Op1 at the time of operation is correct or not, in our considered view are either a Gastroenterologist, a Cardiologist or an Anaesthetist .
8.3) An Expert Committee was constituted by the Superintendent, Osmania General Hospital as per the instructions of Police Authorities pursuant to registration of crime, consisting of four experts viz., Professor in Medicine, Professor in Surgery, Professor in Gastroenterology and Professor in Anaesthesia. The said doctors have clearly opined that said surgery at that relevant point of time cannot be treated as medical negligence and it is only this particular doctor i.e., Dr. Mahender Vyasabattu who opined that there is medical negligence. Further, to the interrogatories posed by Op1 which were sent to the Superintendent of Osmania General Hospital by this Commission, Dr. Chandrasekhar, Superintendent of Osmania General Hospital has categorically submitted that it does not amount to medical negligence. When weighed the evidence of Dr. Mahender Vyasabhattu with that of the evidence of Expert Committee and the Superintendent of Osmania General Hospital, we shall come to the conclusion that there is no medical negligence with regard to ERCP procedure. Apparently, the medical record which was marked as Ex. B18 establishes certain lacunae for the reason that there is no recording of readings in between 3.30 and 3.50 p.m. which could not be answered by any one. In fact, Dr. Chandrasekhar who was answering the interrogatories has observed that recording of readings is not mandatory and in those circumstances it cannot be said that there is any medical negligence on behalf of Op1.
9.1) The crucial issue involved in this case is as to how the patient who was hale and healthy while admitting into Op1 hospital on 13.5.2008 except for complaint of abdominal pain and jaundice went into COMA on 14.5.2008 immediately after commencement of ERCP procedure. Admittedly, even according to Op1 they abandoned the ERCP procedure and shifted the patient to emergency room for revival of patient. It is the version of OP1 Yashoda Hospital that during ERCP procedure the patient developed sudden cardiac arrest and immediately they have taken up resuscitative measures to bring him back to normalcy but they failed, despite the fact that the patient was under their control for the past two and half years. The condition of the patient has become irreversible and irretrievable. For all this period the condition of the patient is such that he is neither alive nor dead but in a state of awake coma/brain dead. Counsel for the complainant vehemently argued that the patient was put into the hands of Op1 hospital with a minor complaint but they brought the patient out of operation theatre in a state of COMA, and after struggling for almost two and half years, he passed away on 12.10.2010.
9.2) It is an undisputed fact that the patient went into COMA on 14.5.2008 immediately after commencement of ERCP procedure and they abandoned the procedure as the patient developed sudden cardiac arrest. Even according to the counsel for the complainant, he is not finding fault with ERCP procedure. He is only harping on administration of anaesthesia and non-observation of patient at very crucial period, as the medical record filed by Op1 is silent and no readings were recorded in between 3.30 and 3.50 p.m. on the day on which ERCP procedure was conducted. This static silence on the part of Op1 Yashoda Hospital in not mentioning any observations with regard to Blood Pressure, Pulse Oxyo-meter readings etc. would unflinchingly support that the condition of the patient worsened immediately after administration of anaesthesia.
9.3) According to learned counsel for Op1 Mr. P. Keshava Rao, the drug which was administered to the patient before going ahead with ERCP procedure was ‘Propofol’. Before, looking into administration of anaesthesia aspect, we would like to throw a light on ‘Propofol’.
The Royal College of Anaesthetists, London issued the following guidelines for the use of Propofol Sedation for Adult Patient undergoing Endoscopic Retrograde Cholangiopancreatogrpahy (ERCP) and other Complex Upper GI Endoscopic Procedures.
Sedation with propofol should be viewed as a completely separate entity from its use as a general anaesthetic. It is recognised that there are certain circumstances where general anaesthesia may be more appropriate.
THE USE OF PROPOFOL FOR SEDATION
The use of propofol for sedation requires specific training and skills because it has:
- Potential to cause rapid and profound changes in sedative/anaesthetic depth.
- No specific antagonists.
- Marked synergy with other sedative drugs.
As a consequence its use for sedation results in significantly different challenges from the use of intravenous benzodiazepines and/or opioids. Further, propofol’s general anaesthetic properties reduce its margin of safety for sedation purposes. These challenges must not be underestimated, particularly in respect of patients who often present with significant co-morbidities. Widespread experience indicates that propofol alone provides excellent sedation for the majority of patients; if opioids are also required, only small doses are needed and are best administered first, with sufficient time allowed for their peak effect to be reached. The synergistic effects of benzodiazepines in combination with propofol and opioids greatly increase the risk of the onset of general anaesthesia. Previous BSG guidance has indicated that there is ‘No room for complacency’ with regard to sedation and the American Society of Anesthesiologists (ASA) have stated that, ‘the use of propofol for sedation requires special attention.
PERSONNEL RESPONSIBLE FOR ADMINISTERING PROPOFOL FOR SEDATION AND TRAINING
There are stipulated stringent regulations and demonstration of clearly defined competencies. A formal mentored training programme and achieving an appropriate qualification in the practice were strongly advised and self-training discouraged.
At the present time in the UK, the administration and monitoring of propofol sedation for such potentially complex endoscopic procedures should be the responsibility of a dedicated and appropriately trained anaesthetist. or an appropriately trained Physicians’ Assistant (Anaesthesia) working under the supervision of a consultant anaesthetist at all times; this will ensure that the potential complications of sedation and anaesthesia in such patients are appropriately managed.
PATIENT SELECTION
Patients with significant co-morbidities are likely to present greater challenges and risks for deeper sedation with propofol. The consultant anaesthetist with responsibility for sedation in the facility providing endoscopy must also ensure that appropriate assessment and selection of suitable patients is effectively carried out in their institution. Whilst they may not need to review all the patients personally, they should ensure an adequate pre-assessment procedure is followed for all potential patients. Patients with morbid obesity, a history of obstructive sleep apnoea, severe respiratory or cardiovascular disease, and also patients with known or predictably difficult airways would be examples of those who should be very carefully assessed prior to consideration for sedation techniques that include propofol in the endoscopy environment. It may be more appropriate to use general anaesthesia with controlled ventilation for ERCP for some of these patients.
MINIMUM REQUIREMENTS FOR EQUIPMENT AND THE ENVIRONMENT
- A self-contained endoscopy unit including recovery area.
- Piped oxygen and suction in all areas.
- Appropriate equipment for supporting respiration.
- Appropriate ‘tilting’ trolleys.
- Monitoring as identified below
- Full resuscitation facilities.
It is recommended that hospitals have identified sessions for the delivery of propofol sedation and that these are developed collaboratively between departments of gastroenterology and anaesthesia within individual hospitals. The Working Party considers that an anaesthetic machine is not essential when propofol is the sole agent used for sedation although it can automatically fulfil several of the requirements stipulated above. They include need for pulse oximetry, ECG and automatic non-invasive blood pressure monitoring and as per the recommendations all these are used on all patients undergoing endoscopic procedures with propofol sedation. Oxygen should be administered from the commencement of sedation for the procedure through to readiness for discharge from recovery.
Monitoring of respiration with continuous waveform capnography is also recommended for all sedated patients and is essential for those whose ventilation cannot be directly observed. Such monitoring devices are now widely available and should be used for patients receiving propofol sedation for ERCP
MINIMUM STAFFING LEVELS AND GENERIC TRAINING
In addition to the anaesthetist there should be a trained endoscopy assistant and suitable equipment for providing airway support must be immediately available and the staff working in the area must be trained in their use to assist the sedationist in an emergency. This means competence in assembling airway adjunct devices (including supra-glottic airways, laryngoscopes and tracheal tubes) and assisting in their use. If the endoscopy suite is in a ‘remote’ site, regular (at least annual), scenario training sessions should be undertaken by all staff to ensure they remain up to date with resuscitation guidelines and such sessions should be led by the consultant anaesthetist with specific responsibility for sedation. There should be a lead consultant anaesthetist and consultant endoscopist responsible for the development of audit and governance of safe sedation practice.”
9.4) It is clear from the above medical literature that aforesaid “Propofal’ would be fatal to the patient, if it is not handled by a trained person and if proper precautionary measures were not taken before administration of said drug.
9.5) Coming to the case on hand, during the course of ERCP procedure the patient developed sudden cardiac arrest whereby the doctors who were attending on the patient abandoned the procedure, and moved the patient to Emergency Unit for necessary resuscitative measures. The principle of Res Ipse Loquitor aptly applies in this case for the reason that: firstly it seems the doctors who have attended on the patient did not conduct necessary exercise before administering “Propofol”. The American Society for Gastrointestinal Endoscopy emphasizes the need for endoscopist to accurately assess the clinical appropriateness of ERCP, it is important to have a thorough understanding of the potential complications of this procedure. Secondly, it is not a case where the patient came with multiple complications and that some unknown complications have arisen during the course of administration of said drug, and thirdly it is apparent on the face of record that medical record filed by Op1 i.e., Ex. B18 is silent as to what had happened during the crucial period in between 3.30 and 3.50 p.m. Mishandling or negligence for a spur of moment would adversely affect the life of a patient. In the instant case, as opined by experts, within no time, immediately after administration of said propofol drug, the patient developed cardiac arrest which ought to have been avoided, had the doctors made proper precautions before administering the said drug. In other words, they ought to have enquired with the patient and made appropriate assessment as to whether the said drug can be administered or not. It seems in a routine manner the doctors administered the said drug and the consequential results are before us. The anaesthetist ought to have taken due care and justification before administering the said drug, and the carelessness on his part ultimately landed the patient in a state of awake coma. The British Society of Gastroenterology and the American Society of Anaesthesiologists (ASA) have stated that ‘ the use of Propofol for sedation requires special attention. According to the Royal College of Anaesthetists the techniques using multiple drugs/anaesthetic drugs should only be considered where there is a clear clinical justification, having excluded simpler techniques.
9.6) Further, we observe from the record that Op1 Yashoda Hospital did not choose to examine the concerned Anaesthetist who has administered the said Propofol drug nor filed his affidavit evidence to elicit the truth or otherwise. The affidavit evidence of one Dr. Shivanand Patil, Consultant Gastroenterologist of Op1 hospital was filed which is nothing but reiteration of averments made in their written version.
9.7) It is evident that it is only on account of side effects of the said drug all this had happened. The patient or his attendants may not be aware as to who is responsible and at whose hands all these complications have arisen. In such a scenario, the Hospital and its doctors are vicariously liable for the damage caused to the patient. Of course, Op1 hospital has tried its level best for all these years to get him back to normalcy however, it failed in its attempts. The patient had undergone physical suffering and trauma during the said period. The complainant and the attendants of the patient exhausted the entire AAROGYA BHADRATHA SCHEME financial support and ran from pillar to post to see that the patient becomes normal but their efforts went in vain. In the light of above discussion, we have no hesitation to come to the conclusion that the said death of the husband of the complainant was solely on account of medical negligence on the part of Op1 Yashoda Hospital.
10) We have put reliance upon several judgments on Medical Negligence delivered by Hon’ble Supreme Court of India and the courts in UK which have commented upon the reasonable care and the standard of medical practice.
In Sidaway vs. Governers of Bethlem Royal Hospital (1985) AC 871, The House of Lords (UK) has held:
“ a practitioner who specializes in any particular area of medicine must be judged by the standard of skill and care of that Specialty”.
As per Lord Bridge: Broadly, a doctor’s professional functions may be divided into three phases: diagnosis, advice & treatment. In performing his functions of diagnosis and treatment, the standard by which English Law measures the doctor’s duty of care to his patient is not open to doubt.
In the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men… The true test for establishing negligence in diagnosis or treatment on the part of a doctor or ordinary skill would be guilty of if not acting with ordinary care….
In “Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors. with Dr. Kunal Saha Vs. Dr. Sukumar Mukherjee & Ors. [AIR 2010 Supreme Court 1162].”
We may hold a medical practitioner liable to indemnify the complainant only where his conduct falls below the standard of a reasonably competent professional in his field. The medical professional is expected to exercise reasonable degree of skill, a reasonable degree of care and should possess knowledge of an expert in the field which is comparable with a standard medical practitioner. Neither the very highest nor a very low degree of competence is contemplated.
In “Kishori Lal Vs. E.S.I. Corporation” [II (2007) CPJ 25 (SC)], the Supreme Court has observed that:
“the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence.
In Poonam Verma Vs. Ashwin Patel & Ors, (1996) 4 SCC 332, the Apex Court held that negligence, as a tort, is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something, which a prudent and reasonable man would not do.
Therefore, the whole concept is about performing or not performing an act which a prudent and reasonable man would perform or not perform. The decision in Bolam vs. Frien Hospital Management Committee, 2 All ER 181. A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.
In Laxman Balkrishna Joshi (Dr.) Vs. Dr. Triambak Bapu Godbole, AIR 1969 SC 128 it was held that a doctor when consulted by a patient owes him certain duties, namely,
(a) A duty of care in deciding whether to undertake the case;
(b) A duty of care in deciding what treatment to give; and
(c) A duty of care in the administration of the treatment.
A breach of any of these duties, gives a cause of action for negligence to the patient. His summing up to the jury in the action of Hatcher v. Black and others,(1954) Times, 2nd July, the trail judge said:
“In the case of an accident on the road, there ought not to be any accident if everyone used proper care and the same applies in a factory; but in a hospital, when a person goes in, who is ill and is going to be treated, no matter what care you use, there is always some risk. Every surgical operation involves risks. It would be wrong, and indeed bad law, to say that simply because a misadventure or mishap occurred, thereby the hospital and the doctors are liable. Indeed it would be disastrous to the community, if it were so. It would mean that a doctor examining a patient or a surgeon operating at a table, instead of getting on with his work, would, for ever be looking over his shoulder to see if someone were coming up with a dagger. For an action for negligence against a doctor is, for him, like unto a dagger. His professional reputation is as dear to him, as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not, therefore, find him negligent simply because something happens to go wrong, as for instance, if one of the risks inherent in an operation actually takes place or because some complications ensue which lessen or take away the benefits that were hoped for, or because, in a matter of opinion, he makes an error of judgment. “You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful/medical man. In short, when he deserves of censure – for negligence in a medical man is deserving of censure.”
In the case of Roe and Woolley v. The Ministry of Health and An Anaesthetist, (1954) 2 All ER 131, which went to the Court of Appeal, it was held that neither the Anaesthetist nor any other member of the hospital staff had been guilty of negligence and when delivering his judgment Lord Justice Denning said:
“Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches, in a hard way.”
Finally, it is observed that vital question is always, whether, the practitioner exercised reasonable skill and care, in the circumstances? The circumstances inevitably vary from case to case.
In Bolam v. Frien Hospital Management Committee, (1957) 2 All ER 118 the Court was required to deal with a case where plaintiff was suffering from mental illness and the consultant advised to undergo electro–convulsive therapy. There was evidence that in such therapy, there was a risk of fracture. That may be small, namely, one in thousands. On second occasion, when treatment was given, the Plaintiff sustained fractures. No relaxant drugs or manual control were used, but a male nurse stood on each side of the treatment couch, throughout the treatment. It was admitted that use of relaxant drugs would have excluded the risk of fracture. Proceedings were initiated for damages.
In the said case, it was observed that, the medical evidence shows that competent doctors held different views on desirability of using relaxant drugs and restraining the patient’s body by manual control and also on the question of warning a patient of the risk of electro conversant therapy. Justice M. C. Nair observed that in the case of medical man, negligence means:-
“In the case of a medical man, negligence means, failure to act in accordance with the standards of reasonably competent medical men at the time. This is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms to one of those proper standards then he is not negligent. Counsel for the plaintiff was also right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defense, unless that belief is based on reasonable grounds. That again is unexceptionable.”
“A doctor is not 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.”
The Court in Laxman Balkrishna Joshi (Dr.) v. Dr. Triambak Bapu Godbole (AIR 1969 SC 128 = (1969) 1 SCR 206) has held as under :
“A person who holds himself out ready to give medical advice and treatment, impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes him certain duties, namely, 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 that treatment.”
The aforesaid principles are reiterated by Apex Court in A.S. Mittal v. State of U.P, (1983) 3 SCC 223.
In Indian Medical Assn. v V.P. Shantha, (1995) 6 SCC 651, Hon’ble Supreme Court approved the following passage from Jackson and Powell on Professional Negligence (SCC p. 666, para 22)
“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 owes to his client, a duty in tort, as well as in contract, to exercise reasonable care in giving advice or performing services.”
11.1) As we have already held that there is medical negligence and the death of complainant’s husband was solely on account of said medical negligence, the point which has to be gone into by us is as to what is the amount of compensation that has to be awarded?
11.2) The very purpose of providing compensation is to see that the family of the deceased gets out of distress on account of sudden death of the deceased and it shall not be to enrich the family of the deceased. There are several beneficial legislations such as Land Acquisition Act, Motor Vehicles Act and for that matter the present Act i.e., the Consumer Protection Act which enables the Courts to award compensation. While awarding compensation, the Courts have to take various aspects into consideration such as status of the family, loss of earning capacity, loss of consortium, loss of savings etc. Even if we take these factors into consideration and suffering, by no stretch of imagination it can be said that amount of compensation can be above Rs. 95 lakhs as claimed by the complainant. Even if the complainant’s husband is alive, it cannot be dreamt that he would have earned Rs. 95 lakhs during his life time. It is a fact that he died at the age of 49 years and probably he would have survived for another 20 years, and he would have probably earned and saved maximum amount of Rs. 10 lakhs or 15 lakhs. Hence, the said amount of Rs. 95 lakhs as claimed by the complainant is highly imaginary and not supported by any evidence.
11.3) Initially, when the complaint was filed she restricted her claim to Rs. 21 lakhs only but there after for the reasons best known to her the same is enhanced to Rs. 95 lakhs. Of course, she has come forward with several defences as to how she is entitled to Rs. 95 lakhs. As stated supra, the said amount of Rs. 95 lakhs is nothing but imaginary and by any stretch of imagination the deceased would not have earned or saved the said amount during his life time had he lived.
11.4) The complainant filed IA 628/2011 seeking enhancement of compensation from Rs. 21 lakhs to Rs. 95 lakhs and the said application was listed before the Additional Bench. In fact, the complainant did not file the said application alone and along with said application, she has also chosen to file several other applications viz.,
CCIA 1731/2010 for providing existing facilities to the husband of the complainant in Op1 hospital
CCIA 1944/2010 to appoint an Expert Committee.
CCIA 1945/2010 to call for Medical Record from Op1 hospital from 13.5.2008 till date.
Having given an opportunity to the learned counsel for the complainant and also after hearing counsel for the Opposite Parties, the Additional Bench dismissed the said applications by its order Dt. 5.12.2011. Be that as it may, for some reason or other, the said case was withdrawn from Additional Bench and was transferred to the Main Bench of this Commission. Here, it may be pertinent to note that said applications including the application seeking enhancement of compensation from Rs. 21 lakhs to Rs. 95 lakhs filed by the complainant was dismissed, and thereafter only the said case was withdrawn from Additional Bench and was transferred to Main Bench. From this it is clear that said application seeking enhancement of compensation was dismissed. For that reason also this Commission is unable to accept that it can be more than Rs. 21 lakhs. Taking the fact that there is medical negligence and the family of the deceased is in distress, this Commission is of the view that an amount of Rs. 10 lakhs can be awarded.
11.5) Of course, it is the contention of learned counsel for the complainant that by virtue of said transfer of the case from Additional Bench to Main Bench it shall be deemed that said applications including the application for enhancement of compensation is also transferred along with main C.D. We are unable to appreciate the said submission. At the cost of repetition, we may once again reiterate and state that Additional Bench allowed the counsel to advance arguments on the petition seeking for enhancement of compensation and accordingly the counsel has advanced arguments and it is only after hearing both counsel, the Additional Bench has dismissed the said application. May be it is a fact that main case itself was withdrawn and transferred but it does not mean that said application seeking for enhancement was also transferred. When once the order is passed, the said order is binding on the parties and if any party is aggrieved on account of said order, he may have to approach the appropriate forum to revert the said order but cannot advance arguments that application still survives for the reason that the matter is withdrawn and transferred. In those circumstances, we have no option but to restrict the said compensation as claimed by the complainant to Rs. 21 lakhs only and not Rs. 95 lakhs.
12.1) Coming to the quantum of compensation, the patient has not even completed 50 years of age by the time he joined in the hospital. He was in a state of awake coma for almost 2 ½ years in Op1 Yashoda Hospital. The patient is a constable having almost 8 years of service and he is blessed with a son and daughter who are prosecuting their graduation in Engineering. The complainant also lost her consortium. Taking into consideration the facts and circumstances of the case, we are of the opinion that a reasonable compensation of Rs. 10 lakhs would meet the ends of justice.
12.2) In the result this complaint is allowed in part directing Op1 Yashoda Hospital to pay Rs. 10 lakhs to the complainant with interest @ 9% p.a., from the date of complaint till the date of payment and also pay costs of Rs. 10,000/-. Time for compliance four weeks. The complaint against Ops 2 to 4 is dismissed as not pressed but without costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANT OPPOISTE PARTIES
Pw1 Dr. Mahendera Vyasabhattu None
DOCUMENTS MARKED FOR COMPLAINANT:
Ex. A1; ECG report of patient.
Ex. A2; Medical advice issued by Op1 Yashoda Hospital dt. 10.5.2008 to
the patient.
Ex. A3; Plain & Contrast CT Scan Abdomen of patient dt. 14.5.2008 of
Op1 Yashoda Hospital
Ex. A4; Certificate dt. 21.7.2008 issued by Op1 Yashoda Hospital to extend credit facility under ABS Scheme to the patient as he is in awake coma.
Ex. A5; Authorization letter dt. 24.7.2008 issued by Secretary, ABS Scheme to extend treatment to the patient in terms of ABS Scheme.
Ex. A6; Certificate dt. 27.9.2008 issued by Op1 Yashoda Hospital
stating that the patient is in a state of awake come and
needs few more days stay in the hospital for further management.
Ex. A7; Certificate dt. 18.9.2008 issued by Op1 Yashoda Hospital
showing the expenditure incurred on the patient for an
amount of Rs. 2,07,325/-
Ex. A8; Complaint of complainant dt. 22.10.2008 lodged with the
S.H.O., Chanderghat P.S., Hyderabad.
Ex. A9; Complaint of complainant dt. 23.10.2008 addressed to
A.P. Human Rights Commission, Hyderabad.
Ex. A10; Order of A.P. Human Rights Commission in SR No. 7224/2008
Dt. 23.10.2008.
Ex. A11; Counter Affidavit filed on behalf of Opposite Parties in HRC No.
3972/2008 before the A.P. Human Rights Commission, Hyd.
Ex. A12; Reply Affidavit filed by the petitioner in HRC No.
3972/2008 before the A.P. Human Rights Commission, Hyd.
Ex. A13; Order of A.P. Human Rights Commission in HRC No. 3972/2008
Dt. 7.1.2009.
Ex. A14; Colour Photographs of the patient 4 Nos.
Ex. A15; Observations of Mahender Vysabattu on the medical records
furnished by counsel for complainant dt. 5.2.2012.
Ex. A16; Medical Registration Certificate of Vyasabattu Mahender dt.
14.02.1996 issued by A.P. Medical Council.
Ex. A17; The American Board of Internal Medicine attests that Mahender
Vysabattu as a Diplomate in Internal Medicine and certified for
the period 2006 through 2016.
DOCUMENTS MARKED FOR O.P1 YASHODA HOSPITAL:
Ex. B1; G.O. Ms. No. 345 Home (Police Dept) Dt. 27.11.1998 about
Arogya Badhratha Scheme.
Ex. B2; Circular Memorandum No. 6/ABS/2001 dt. 26.2.2011 issued by
A.P. Police – Arogya Bhadrata
Ex. B3; Circular Memorandum No. 2/ABS/2000 dt. 14.3.2000 issued by
A.P. Police – Arogya Bhadrata
Ex. B4; A.P. Police Dept. Health & Medical Welfare Trust, Hyderabad
Bye-laws updated upto 31.5.2004.
Ex. B5; G.O. Ms. No. 65 Health, Medical & Family Welfare (K) Dept.
Dt. 16.2.2001 on Medical Reimbursement under ABS by the
Police personnel.
Ex. B6; Pre-authorization Requisition Form issued under ABS
dt.11.5.2008.
Ex. B7; Letter dt. 12.5.2008 of Dy. Commissioner of Police, East Zone,
Hyderabad addressed to Op1 Yashoda Hospital.
Ex. B8; Undertaking given by the patient in Annexure-II under ABS
Scheme.
Ex. B9; Hospitalization Extension Request and Approval Forms of the
to Ex. B11. Patient
Ex. B12; Credit Bill dt. 5.8.2008 for an amount of Rs. 6,64,608/- issued by
Op1 Yashoda Hospital to Arogya Bhadratha Trust, Hyd.
Ex. B13; Disallowance Form relating to the patient.
Ex. B14; Copy of Ex. A5.
Ex. B15; Copy of Ex. A7
Ex. B16; Letter dt. 30.6.2009 addressed by the Superintendent,
Osmania General Hospital, Hyderabad to S.I. of Police
Chaderghat P.S., Hyderabad enclosing the opinion of
the Committee Constituted to scrutiny the case sheet
and medical records of the patient.
Ex. B17; Medical Report of the Committee constituted in respect of
the patient in question.
Ex. B18; Entire original case record of patient maintained by Op1
Yashoda Hospital.
Ex. B19; Professional Indemnity Policy obtained by Op1 Hospital
From the New India Assurance Company Ltd.
Ex. B20; Letter of Op1 Yashoda Hospital addressed to New India
Assurance Company about the legal proceedings in
CC NO. 1/2009 on the file of APSCDRC, Hyderabad.
Ex. B21; Order of A.P. State Human Rights Commission in
HRC No. 3972/2008 dt. 28.11.2008.
Ex. B22; Medical Report along with covering letter of Superintendent,
Osmania General Hospital, Hyderabad dt. 30.6.2009.
1) _______________________________
PRESIDENT
3) ________________________________
MEMBER
*pnr
UP LOAD – O.K.
