IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 24th day of August, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 61/2007 (Filed on 03.05.2007)
Between:
1. Annie Cheriyan,
W/o Late Cheriyan Thomas,
Kollamparambil House,
Cheruthana P.O.,
Alappuzha.
2. Annamma Thomas,
Kollamparambil House,
Cheruthana P.O.,
Alappuzha. … Complainant.
(By Adv. Vidhu. M. Unnithan &
Jayan. P.)
And:
1. The Chief Executive Officer,
Pushpagiri Medical Society,
Thiruvalla.
(By Adv. G.M. Idiculla for 1st &
Addl. 5th opposite party)
2. Dr. Antony Joseph,
ENT Surgeon,
Pushpagiri Medical College Hospital,
Thiruvalla.
3. Sunil John,
Anaesthetist,
Pushapgiri Medical College Hospital,
Thiruvalla.
(By Adv. P.K. Mathew)
Addl.4. New India Assurance Co. Ltd.,
Salim Buildings, Changanassery.
(By Adv. P.D. Varghese)
Addl.5. The Executive Director,
Pushpagiri Hospital, Thiruvalla. … Opposite parties.
ORDER
Sri. Jacob Stephen (President):
The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.
2. The brief facts of this complaint is as follows: Complainants are the legal heirs of deceased Cheriyan Thomas being the wife and mother of the deceased. Opposite parties 1 to 3 and additional 5th opposite party are the management representatives and the doctors of Pushpagiri Medical College Hospital, Thiruvalla and the additional 4th opposite party is the insurance company to which opposite party hospital is insured at the relevant time.
3. The complainants’ case is that the deceased Cheriyan Thomas was admitted at the opposite party hospital on 22.11.2005 at 7 p.m. as per the instructions of the second opposite party for complaints of slight obstruction while breathing through the nose. Subsequent to the admission, medicines and I.V. were administered till 24.11.2005 the day on which the operation of nasal surgery was fixed to the deceased. Thereafter, he was taken to the operation theatre after giving an injection at his back. The said injection was given as per the instruction of the third opposite party who is the anaethetist of the opposite party hospital. The operation started at 10-30 a.m by the 2nd opposite party. After 2 hours, he was taken to another room from the operation theatre. The first complainant was permitted to enter into that room for seeing the patient. When she entered into the room, she felt something wrong as the nose of the patient was fully covered with plaster. His mouth and eyes were also closed. There was no substitute device for breathing. On seeing this, the first complainant called the duty nurse and pointed out this aspect. The duty nurse then asked the first complainant to open the mouth of the patient by using fingers. Accordingly, she opened his mouth and to her surprise she saw blood clotted inside his mouth, his tongue was not in position as it is seen folded and she felt the patient was in comae. Thereafter she called the second complainant from outside and on checking the pulse of the patient, it is found that the pulse is very low. Then the duty nurse tried to call the duty doctor and she could not get him over phone and after 10 minutes, the second opposite party came and examined. After that he took about ½ an hour to take the patient to the ICU. The relatives including the complainants were informed that there is nothing wrong and everything will be all right within a short span of time. Thereafter, the patient was in the ICU till his death on 30.11.2005 at about 8-15 p.m. During this period, the patient’s actual condition was not informed to the relatives. All these days, the patient lived with life supporting systems. The complainants were prepared to take the patient to any other hospital having more facilities. But the opposite parties did not allowed by concealing the actual condition of the patient. The death of the patient caused due to the improper and negligent treatment of the opposite parties.
4. On the basis of the first information given by the first complainant, Thiruvalla police registered a crime under Sec. 174 of Cr.PC and post mortem was conducted at Medical College Hospital, Alappuzha. The preliminary opinion as to the cause of death is shown as Aspiration Pneumonia following nasal surgery. According to the complainants, if the opposite parties had applied reasonable skill and care, the death would not have been happened. The opposite parties did not noticed the condition of the patient immediately after the surgery or before taking the patient to the post operative room. For the treatment of the patient, the complainants incurred an expense of ` 50,000. The deceased was an young energetic person of 32 years and was employed at Gulf. He had no serious or other health hazards except a mild obstruction in his nose. The negligent and improper act of the opposite parties took away the life of the patient and the opposite parties are liable to the complainants for their deficiency in service. Hence this complaint for the realization of ` 18 lakhs from the opposite parties under various heads.
5. Originally, this complaint was filed against the Administrator of the opposite party hospital and 2 doctors of the said hospital. Subsequently, the first opposite party Administrator was deleted and in that place the Chief Executive officer of the opposite party hospital was arrayed as the first opposite party. Thereafter, the insurance company and the Executive Director of the opposite party hospital were impleaded as additional opposite parties 4 and 5 respectively.
6. All the opposite parties entered appearance and opposite parties 1 and additional opposite parties 4 and 5 filed separate versions and opposite parties 2 and 3 filed a common version. The contentions raised in the versions of opposite parties 1 to 3 and additional 5th opposite party were one and the same.
7. The main contentions in the versions of opposite parties 1 to 3 and 5 is as follows: Opposite parties admitted the admission and treatment of the deceased. According to the answering opposite parties, opposite parties 2 and 3 are the Consultant ENT Surgeon and Consultant Anaesthesilogist respectively working in the Pushpagiri Medical College Hospital, Thiruvalla. The patient consulted the second opposite party with complaints of nasal obstruction. On examination, he had gross deviation of nasal Septum (DNS) with anterior dislocation of the septum, concha bullosa, hypertrophied turbinate and septal spur. He was admitted and posted for Septoplasty with FESS (Functional Endoscopic Sinus Surgery). He was investigated fully for the above operation and was found to be normal. The pre-anaesthetic check-up was done by the third opposite party on 23.11.2005 and was found to be fit. Patient was accepted under ASA Grade 1. All the possible complications and limitations of surgery and anaesthesia were well explained to the complainant, who accepted them and signed the informed consent. Third opposite party advised injection Deriphylline 2cc and injection Demamethasone 8mg. on the day of surgery since the patient gave a history of allergic cough when he is exposed to the air conditioner. The injections were advised with the intention to prevent reflex bronchospasm, if any, during the course of anaesthesia. Tab Nitrazepam was given on the morning of the surgery as a kore-anaesthetic medication to reduce the anxiety of the patient was well as to decrease the dose of anaesthesia. The patient was prepared for surgery and transferred to the operation theatre on 24.11.2005. ECG monitor, pulse oximeter and sphygmomanometer were connected and checked and IV line started. Endotracheal tube, laryngoscope and suction were checked. Patient was given 100% oxygen with Boyle’s apparatus with nitro lock. Patient was induced with Inj. Morphine, Ondansteron and Thiopentone. This was followed by scoline 100mg, a short acting muscle relaxant. Endotracheal intubation was done with 8.5mm cuffed endotracheal tube. Throat was packed. Bilateral air entry confirmed and patient was given IPPV (Intermittent Positive Pressure Ventilation) with the ventilator. Inj. Pancuronium IV was given. The operation started at 10 a.m. and finished by 11.15 a.m. Intraoperative period was uneventful. Vital signs were stable. Patient was reversed by giving Inj. Neostigmine 2.5mg. and Inj. Atropine 1.2mg. intravenously. Throat pack removed. After ensuring spontaneous breathing and obeying commands like opening of eyes and return of reflexes, patient was extubated. Patient was shifted to the Operation Theatre recovery room. Here the pulse, blood pressure and oxygen saturation was monitored and was found to be within normal limits. Patient had recovered from anaesthesia and there was no evidence of bleeding or airway obstruction. After monitoring for about 30 minutes and since the patient was found to be stable, awake and responding to commands, he was shifted to the ENT ward recovery room at 12.15 p.m. Ten minutes after shifting out of the OT recovery room, ward staff informed OT that the patient had vomited. Since the second opposite party had started the next operation, ENT Assistant doctor, Dr. Ike who was in the OT, rushed immediately to the ENT recovery room. He in turn informed the theatre that the patient had severe hypotension and pulse was not recordable. Immediately, Senior Anaesthetist Dr. Jacob and 2 other Anaesthetists rushed to the ENT recovery room and saw the patient. The patient’s pulse and BP were not recordable. The Anaesthesiologist immediately started resuscitation measures like endotracheal intubations, ambu-ventilation with oxygen and cardiac massage. Inj. Andrenaline Img. was given twice. The heart picked up after 10 minutes of CPR (Cardio Pulmonary Resuscitation) and continued till the cardiac activity returned. He was shifted to Surgical ICU and was connected to the ventilator CMV mode. Cardiology and Neurology consultation was advised. Second post operative day, patient continued to be unconscious suggestive of anoxic encephalopathy. Chest physician was consulted and the impression was aspiration pneumonia. Third post operative day, patient appeared to be developing acute renal failure and hence Nephorology consultation was advised. 5th post operative day, transcutaneous tracheostomy was done. Subsequently, patient developed diabetes, hypernatraemia, hypotension, acute renal failure and septicaemic shock. 7th post operative day, patient had cardiac arrest twice. Resuscitation and cardiac massage was done until pupil was dilated and not responding to light. Patient was declared dead at 8.45 p.m. on 31.11.2005.
8. All the other allegations of the complainants are denied by the opposite parties as the said allegations are baseless and devoid of truth. The medicines and treatments given to the patient were warranted in the circumstances of the patient. The allegations that the relatives are not allowed to see the patient and the actual condition of the patient was not informed to the relatives were also false. None of the relatives ever asked for shifting the patient to some other hospital and such a shifting was not advisable as the patient was critical. Opposite parties given utmost care and caution in the treatment of the patient and there was no negligence from their part as alleged by the complainant. The patient was shifted to the O.T. recovery room and the ENT ward as his condition was fit at that time for such a shifting. In the case of this patient, he had vomited the swallowed blood which got aspirated resulting in severe lanyngospasm, hypoxia and cardiac arrest ending in death. The doctors are in no way responsible for the chain of events because it is something which can never be predicated or prevented. This is one of the known and dreaded, but uncommon complications of general anaesthesia. The death was triggered by aspiration as per the postmortem report. The allegation that the third opposite party administered anaesthesia is not correct. He had only done pre-anaesthesia check-up. Another anaesthetist Dr. Jacob had administered the anaesthesia with utmost care and caution and the survey went on smoothly without any complication. The allegation that the patient’s complications started at the time of surgery is false. No doctor ever shift a patient out of the O.T. when the patient is in a critical situation. The complication of the patient was not due to any act of omission or commission on the part of the opposite parties. The services of the Physician, Cardiologist, Nephrologist, Anaesthesiologist and the Nursing staff given continuously in bid to save the life of the patient. The medical expenses of ` 50,000 is natural and should not be considered as unnecessary. The compensation claimed are exaggerated and without any basis. No difficulties or inconveniences were caused due to any negligence or deficiency of service on the part of the opposite parties. The first opposite party hospital is one with a Medical College and all super specialty facilities with qualified doctors in every branch. This complaint is frivolous and vexatious, filed only for harassing the opposite parties. With the above contentions, opposite parties except additional 4th opposite party prays for the dismissal of the complaint with their cost as they have not committed any deficiency in service or negligence in the treatment of the patient.
9. In addition to the aforesaid contentions, opposite parties 2 and 3 also contended that they are the paid employees of the first opposite party and the principle of vicarious liability of the employer is applicable in this case and the additional 5th opposite party submitted that they have a valid insurance policy with the additional 4th opposite party and they are liable to indemnify the first opposite party in the event of any finding against them.
10. Additional 4th opposite party filed their version contending that they are not necessary parties in this proceedings as they have not issued any insurance policy in favour of other opposite parties to cover the risk as alleged in the complaint. With the above contentions, additional 4th opposite party also prays for the dismissal of the complaint against them with their cost as they have no liability to indemnify the other opposite parties for want of an insurance policy.
11. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
12. The evidence of this complaint consists of the oral testimony of PWs. 1 to 7 and DWs.1 to 4 and Exts. A1 to A6 and B1 and B2. After closure of evidence, both sides except additional 4th opposite party filed their argument note and they were heard.
13. The Point: The complainants’ allegation is that her son was admitted for a nasal surgery at the opposite parties’ hospital on 22.11.2005 and the opposite parties 2 and 3 conducted a surgery on 24.11.2005 under general anesthesia. Thereafter, the patient was brought to the recovery room where the complainants were allowed to see the patient. On seeing the patient, they realized that the patient is in comae. This matter was intimated to the duty nurse who called the doctors and thereafter the patient was taken to the ICU. The patient was in ICU till his death on 30.11.2005 at 8-45 p.m. During this period, the complainants were not allowed to see the patient or the doctors did not inform the actual condition of the patient and they are not allowed to take the patient to some other hospitals for better treatment. According to the complainants, opposite parties have not given any proper care to the patient and their treatment was also negligent which resulted in the death of the patient and the opposite parties are liable to the complainants for the same.
14. In order to prove the case of the complainants, second complainant filed a proof affidavit in lieu of her chief examination. On the basis of the proof affidavit, she was examined as PW1. Apart from PW1, 5 doctors and one police officer were also examined for the complainants as PWs. 2 to 7. Six documents were also marked for the complainants as Exts.A1 to A6. Exts. A1 series (58 in number) are the medical bills issued from the first opposite party hospital in connection with the treatment of the patient. Ext. A2 is the copy of the Expert Panel Committee Report dated 08.09.2009 prepared by expert panel committee consists of 5 doctors on the basis of the request dated 22.03.2008 by the Deputy Superintendent of Police, CBCID, Pathanamthitta in connection with the death of the deceased. Ext. A3 is the attested copy of the treatment records of the patient in respect of the treatment of the patient at first opposite party hospital. Ext. A4 is another Expert Panel Committee Report prepared in the meeting on the expert panel committee held on 17.08.2007 at District Medical Office, Pathanamthitta. Ext. A5 is the postmortem certificate dated 02.12.2005 issued from Alleppey Medical College in respect of the postmortem of the deceased. Ext. A6 is the final opinion as to the cause of death of the deceased from Alleppey Medical College.
15. On the other hand, the contention of the opposite parties is that they have not committed any negligence or deficiency of service to the deceased. According to the opposite parties, subsequent to the surgery, complication of aspiration pneumonia developed in the patient. Thereafter diabetes, hypernatraemia, hypotension, acute renal failure and septicaemic shock and cardiac arrest also caused to the patient. Aspiration pneumonia is an unpredictable complication. As per the postmortem report also, the cause of death was due to aspiration pneumonia. All the complications developed in the patient was not due to the negligence of the opposite parties. As and when this complication was diagnosed, they have given all possible treatment with the help of different specialists doctors to the deceased till his death. What all procedures followed in this case are standard and proper and is one i.e. universally accepted in such a condition. With the above contentions, opposite parties prays for the dismissal of the complaint as they have not committed any deficiency in service or negligence in the treatment.
16. In order to prove the contentions of the opposite parties, the Medical Superintendent of the first opposite party hospital was examined as DW1. Third opposite party was examined as DW2, second opposite party was examined as DW3 and the Additional Medical Superintendent of the opposite parties was examined as DW4. Exts. B1 and B2 were also marked for the opposite parties. Ext. B1 is the copy of the insurance policy issued by the additional 4th opposite party in favour of the first opposite party hospital for the relevant period. Ext. B2 is the relevant portion in page No.44 of Ext. A3.
17. Additional 4th opposite party has not adduced any oral or documentary evidence in their favour and not even cross-examined the witnesses.
18. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute regarding the admission of the patient, the surgery and other treatments except the alleged negligence in the treatment. According to the complainants, the deceased was a healthy young man without any serious ailments other than the nasal problem till his admission at the hospital for his nasal surgery. His surgery was also successful. But he died at the hospital subsequent to the surgery and during the course of treatment as a result of the complications developed after the surgery due to the negligence of the doctors. But the contentions of the opposite parties is that they have not committed any deficiency of service or negligence in the treatment of the deceased. What all treatments they have given are proper and medically accepted. According to the opposite parties, the cause of death was due to aspiration pneumonia which is a known complication caused not due to the negligence of the opposite parties. They also argued that the postmortem certificate of the deceased also supports their contentions.
19. On the basis of the rival contentions of the parties, we have gone through Ext. A3 treatment records. Ext.A3 treatment records shows the complete details of the various tests, treatments, observations and everything done by the doctors in connection with the treatment of the deceased from his admission to his death except the procedures done in between 12-25 p.m. to 2 p.m. on 24.11.2005 i.e. the immediate post operative period. In view of this fact, the allegations of the complainants that the opposite parties have not given much care or caution to the complications developed to the patient immediately after the surgery is very relevant. Absence of proper medical attendance to the deceased during the immediate post operative period, as revealed from Ext. A3, and the complainants’ allegations are read together discloses a clear negligence against the opposite parties. It is also revealed from Ext. A3 treatment records that the patient had vomited immediately after the shifting of the patient from the operation theatre. Every medical professional are well aware that vomiting in an unconscious stage may cause aspiration which may lead to aspiration pneumonia. But the opposite parties diagnosed the patient’s aspiration pneumonia only on the second post operative day as evidenced from Ext. A3 medical records. This also indicates some laches in diagnosing the complications of the patient. Thus, it is clear that if the opposite parties have given much care and caution to the patient during the immediate post operative period, the complications caused to the patient could have been avoided and thereby the unfortunate death of an healthy young man who was admitted without any serious or other health hazardous except a mild obstruction in his nose. Everything happened within the 4 walls of a well equipped hospital with a medical college having highly qualified and experienced medical professionals. Further, the unfortunate event happened, when the patient was in the hands of eminent doctors. Hospitals are supposed to be the most safest shelter and the medical professionals are supposed to be the most blessed saviours for saving the life of human beings. But what happened in this case is against the above said principle. Exts. A2 and A4 expert committee reports also shows that proper medical attendance was not received by the patient at the relevant time. Therefore and in the circumstances we find clear deficiency of service and negligence from the part of opposite parties 1 to 3 and additional 5th opposite party. Hence they are liable to the complainant. Since the negligent doctors are the employees of the hospital, the principle of vicarious liability is applicable in this case and in the light of the Ext.B1 insurance policy of the additional 4th opposite party, additional 4th opposite party is liable to indemnify the other opposite parties. However, if the complete liability of the opposite parties is fastened to addl. 4th opposite party it will be a green signal to the hospitals for washing their hands for the negligence of their employees which is not encouragable . So we are not inclined to fasten the entire liability to the additional 4th opposite party.
20. Because of the aforesaid unfortunate incident, the second complainant had lost her married son without any issues and the wife of the deceased and the daughter-in-law of the second complainant left the second complainant. Everything put the second complainant to severe mental agony along with financial loss. Considering the entire facts and circumstances of this complaint, this complaint is allowed as follows:
21. In the result, this complaint is allowed, thereby the additional 4th opposite party is directed to pay a lumpsum compensation of ` 5,00,000 (Rupees Five lakhs only) to the second complainant and the additional 5th opposite party, being the legal authority representing the Pushpagiri Medical College Hospital, Thiruvalla, is directed to pay a lumpsum amount of ` 50,000 (Rupees Fifty thousand only) to the 2nd complainant being the treatment expenses and the cost of this proceedings incurred by the second complainant. Parties are directed to comply this order within 30 days from the date of receipt of this order, failing which the second complainant is allowed to realize the whole amount from the concerned parties with 10% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 24th day of August, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Annamma Thomas.
PW2 : Dr. A.R. Isha Bai.
PW3 : Dr. K. Sasikala.
PW4 : M.A. Muraleedharan.
PW5 : Dr. Anilkumar. P.T.
PW6 : Dr. K. Valsala.
PW7 : Dr. Ajay. B.
Exhibits marked on the side of the complainant:
A1 series : Medical bills (58 in number) issued from the first opposite
party hospital in connection with the treatment of the
patient.
A2 : Copy of the Exert Panel Committee Report dated
08.09.2009 prepared by expert panel committee consists
of 5 doctors.
A3 : Attested copy of the treatment records of the patient in
respect of the treatment of the patient at first opposite
party hospital.
A4 : Expert Panel Committee Report prepared in the meeting
on the expert panel committee held on 17.08.2007
at District Medical Office, Pathanamthitta.
A5 : postmortem certificate dated 02.12.2005 issued from
Alleppey Medical College in respect of the postmortem of
the deceased.
A6 : Final opinion as to the cause of death of the deceased
from Alleppey Medical College.
Witness examined on the side of the opposite parties:
DW1 : Dr. P.A. Jacob.
DW2 : Sunil John.
DW3 : Dr. Antony Joseph.
DW4 : Dr. P.T. Thomas.
Exhibits marked on the side of the opposite parties:
B1 : Copy of the insurance policy issued by the additional 4th
opposite party in favour of the first opposite party
hospital.
B2 : Relevant portion in page No.44 of Ext. A3.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Annamma Thomas, Kollamparambil House,
Cheruthana P.O., Alappuzha.
(2) The Chief Executive Officer, Pushpagiri Medical Society,
Thiruvalla.
(3) Dr. Antony Joseph, ENT Surgeon, Pushpagiri Medical
College Hospital, Thiruvalla.
(4) Sunil John, Anaesthetist, Pushapgiri Medical College
Hospital, Thiruvalla.
(5) New India Assurance Co. Ltd., Salim Buildings,
Changanassery.
(6) The Executive Director, Pushpagiri Hospital, Thiruvalla.
(7) The Stock File.
