O R D E R

SMT. G. VASANTHAKUMARI, PRESIDENT.

            Complaint filed  Under Section 11,12 and 13 of the Consumer Protection Act, 1986 alleging medical negligence on the part of the opp.parties.

          Complainant’s case is as follows:. The complainant is the wife of Sri. Chesterfield Alfenso who had undergone treatment in the Bishop Benzigar Hospital as inpatient with Reg.No.0203/15137 for the period from 7.10..2002 to 21..10..2002 and now living in a vegetable stage, that the first opp.party is the hospital  in which the complainant’s husband had undergone treatment and it is represented by its director and the 2^nd opp.party is its administrator, that the3rd opp.party is working as the Orthopedic Surgeon, 4^th  and 6^th opp.parties are the consultant Anesthetists and the  5^th opp.party is the consultant physician respectively, of the first opp.party hospital for the period from 7.10..2002 to 21..10..2002, that the 1^st opp.party   is a hospital rendering service  to consumers who avail the facilities in and around Kollam,  that the director and administrator of the said hospital   are in charge of and responsible for the day today conduct of the business in the said hospital,,  that the complainant and her husband had hired the service of the opp.parties and the opp.parties had rendered professional service to the complainant  and her husband on receipt of consideration, that Mr. Chesterfield had met with a road traffic accident on 6.10.2002 while he was standing in front of his house and trying to start his scooter as a result of which he had sustained  fracture of the left tibia,, that he was initially admitted in the Holy Cross Hospital, Kottiyam from where he was shifted to the Bishop Benzigar Hospital for expert management,  that from 7.10..2002 till 14.10.2002 he was treated in the hospital in connecion with the fracture and it was said that he was being evaluated for pre surgical fitness, that the specialists including opp.parties 3  to  6 saw him and good prognosis was predicted and it was also informed that there was no reason to worry about any complication on any fronts,  that on 14.10..2002 as planned, Mr. Chesterfield was subjected to surgical correction under spinal anesthesia, that opp.party 4 administered the anesthesia, that though the surgery was planned to conduct early in the morning it was adjourned to post noon stating some inconvenience to the specialists concerned,  that to utter dismay the patient was brought out from the operation theater in a comatose state,  that he required ionotrope support and mechanical ventilation for his continued survival, that on enquiry with the opp.parties 2 to 6 above it was told that Mr. Chesterfield had suffered a cardiac arrest while on the operation table and the reason for the same was likely to a complication called pulmonary embolism, that it was told  by opp.parties 3 to 6  that the condition of the patient was likely to improve with passage of time and truly believing those words he continued to be treated in the same hospital till 21..10..2002 , that even though  Ventilator support was withdrawn on the 5^th day there was hardly any improvement in the neurological status and he continued to be in a vegetative state, that left with no other alternative and due to the lackadaisical and hopeless attitude of the concerned doctors and also the para medical staff in the hospital, the complainant had requested for a reference, that armed with a reference card issued by Dr. George Varkey, the consultant Anesthetist and Dr. Raichel Daniel, the consultant physician, the complainant had transferred Mr. Chesterfield to the Amrita Institute of Medical Sciences, Cochin., that Mr. Chesterfield’s was referred to be a case of pulmonary embolism causing repeated episodes of cardiac arrest on the operation table while attempting internal fixation of the fracture after administration  of anesthesia, that  the alleged story of the cardiac arrest is an afterthought and actually the patient has not suffered any such cardiac arrest, that there is no previous or subsequent course of cardiac problem to Mr. Chesterfield, that at Amritha Hospital, the patient was evaluated thoroughly and it was found that there was no evidence of pulmonary oedema CT Brain done on 22..10..2002 showed evidence suggestive of severe degree of generalized non specific disturbance of electrical function, that it was also noted that the condition of the patient was suggestive of global ischemic insult, that after detailed investigation it was also found that there was absolutely no evidence suggestive of pulmonary embolism, that the condition of Mr. Chesterfield at this point of time is quite dismal, that he is prone to recurrent respiratory tract infections and for that a permanent tracheostomy was done and for gastric feeding, a percutaneous endoscopic gastrotomy, was also done, that he merely grimaces on painful stimuli and does not even verbally respond to his near and dear ones, that the expert at the Amrita Hospital, Ernakulm, have predicted a very bad prognosis, that he was discharged from the Amrita Institute of Medical Sciences on 11..11.2002 with advice to continue general nursing care in a local hospital, that thereafter he was admitted to the Sankar Institute of Medical Science and Research Center, Kollam where he underwent general nursing care till 25..5..2003,  that at the time of admission the patient was in a state suggestive of persistent vegetable state with CT and EEG findings of global severe cerebral  dysfunction, that during the stay at the  hospital the patient had suffered Chest and Urinary infections, that  sadly Mr. Chesterfield has no recognition for faces or voices, that it is also borne out from the relevant medical records that the reason for the devastating condition of Mr. Chesterfield was due to the negligent mode in which anesthesia was administered on the fateful day for carrying out the surgery on Mr. Chesterfield, that the instant case was not a case of life saving emergency surgery but a  planned routine procedure involving a fracture of the tibial bone,  that opp.parties 3 to 6 have not adopted the proper course of pre anesthetic evaluation and they also have not properly and adequately diagnosed the condition of the heart and the cardio vascular system by conducting proper investigation and treatment prior to declaring the patient fit for operation, that they have also  not taken any corrective measures before operation by foreseeing the possibility of embolism, that the anesthesia also was administered in a careless manner  without taking adequate precautions and no proper steps  or prescribed procedure was adopted when the condition of Mr. Chesterfield  worsened at the table, that it is also clear that even if cardio respiratory arrest had occurred as alleged there was undue delay in resuscitation causing irrecoverable irreparable and extensive damage to the Brain, that the opp.parties 3 to 5 has not acted in accordance with accepted procedure followed by experts in similar disciplines., that it is common knowledge that the risks involved in procedures of this nature are very minimal and the aforesaid plight had occurred to Mr. Chesterfield solely due to the lack of care and diligence on the part of opp.parties 3 to 5 , that the associated risk involved in the surgery was not made mention of  either  to Mr. Chesterfield, the complainant or to any of their relatives, that it is also evident that opp.parties 3 to 6  have not taken the necessary precaution to guard against any untoward occurrence that may occur at the time of surgery, that the opp.parties 3 to 6  have not brought to their task a reasonable degree of skill and knowledge and also have not exercised a reasonable degree of care,  that the concerned specialists also failed to act in accordance with the standards  of reasonably competent medical men of the same discipline at that time, that the opp.parties  have also failed to observe the precautions, which were normal in the course of treatment they had given, that it is a clear case of negligence and deficiency in service, that the opp.parties are therefore  jointly and severally liable to compensate the complainant for the lack of skill and negligence on their part, that the acts of the opp.parties also amount to deficiency in service, that Mr. Chesterfield is the sole bread-earning member of the family, that he was employed handsomely in the Gulf and he had returned to India solely for taking care of his aged parents, that he was earning his livelihood by running various financial schemes, that he used to earn a sum of Rs.15,000/- per mensum from his businesses, that he has two daughters  then aged 12 and 8 respectively, that he was very enterprising and  loving towards all and due to blatant negligence of  the opp.parties  his dependants are left with no hope, that the condition in which he has been put to by the negligence of all  the opp.parties  is such that the prospect for Mr. Chesterfield living his life normally like he was doing before is very bleak, that the pain and suffering to which he has been put to is inestimable, that he would permanently need medication, super specialty medical help, permanent assistance even for his daily needs, loss of ability to walk or do anything he wishes etc, that   loss of enjoyment of life is absolute and total, that there is nothing but a deep vacuum in his life, that the complainant had spent a sum of Rs.4,92,000/- solely for medical and surgical charges till date of filing this complaint  which fact is evidenced by bills, that Mr. Chesterfield was aged 44  at the time of incident and he was very healthy, that  his income would have improved by leaps and bounds, that he is therefore entitled to a sum of Rs.10 lakhs towards compensation on account of loss in future earnings, that towards loss of active life the complainant is entitled to receive a sum of Rs.2,00,000/- , that towards future costs of treatment  elaborate  medical support systems, medicines and constant medical attention  he is entitled to realize a sum of Rs.1,00,000/- , that towards untold mental agony and physical torture he is entitled to receive a sum of Rs.1,00,000/- , that the complainant therefore conservatively estimates that a sum of Rs.18,92,000/- would compensate  her and her family for the gross misfortune that has befallen upon them,  that  the 1^st and 2^nd opp.parties are the masters of the opp.parties 3 to 6  and therefore is vicariously responsible for their act of blatant negligence , that opp.parties  are therefore jointly and severally liable to compensate  for the injury sustained to the complainant and her  husband and her family members, that the complainant had got direct and personal knowledge regarding the acts done to her husband while he was undergoing treatment under the opp.parties, that due to the negligence of the opp.parties, the complainant’s husband is now in a vegetable stage and thus she was forced to file this complaint.

              Opp.parties 1 and 2 filed joint version contending that, the complaint is not maintainable either in law or on facts, that Mr. Chesterfield who is the husband of the complainant had met with a road traffic accident on 6.10..2002,  while he was standing in front of his house and trying to start his scooter, as a result of which he sustained a facture on the left Tibia and Fibula, that he was initially admitted in the Holy Cross Hospital, Kottiyam from where he was shifted to the opp.party hospital for better treatment,  that from 7.10..2002 till 21..10..2002 he was treated in the hospital in connection with the fracture and it was said that he was being evaluated for pre surgical fitness, that the specialists in the hospital examined him thoroughly that on 14..10..2002 as planned, Mr. Chesterfield was subjected to surgical correction under Spinal Anesthesia, that  Dr. George Varkey, Consultant Anesthetist administered the Anesthesia, that when the complainant’s husband was brought to the hospital on 7.10..2002 after the treatment in the Kottiyam Holy Cross Hospital, he was on a lower tibia traction, that he was treated by the team of Orthopedic Surgeons, that his vital signs were found to be stable, that  Haemathrosis of the knee was present, that there was no neurovascular deficit, that the haemathrosis was relieved by aspirating 50 cc of blood from left knee joint, that compression bandage was given, that static quadriceps exercises and range of movement exercise of ankle and foot were instituted from the first day of admission,  that Lower tibial traction was continued, that injection Dexamethasone and Analgesics along with parenteral antibiotics were started from the first day of admission, that the patient was comfortable all through the pre OP Phase, that ankle and toe movements were full range, that there was no stretch pain of gastrosoleus, that there was no chest signs, that Post tibial and Dorsalis Pedis-pulsation good, that Mr. Chesterfield  was evaluated for pre-surgical fitness by physician and Anesthetist, that relevant investigations were carried out, that the patient   was keenly observed and medication was administered, that during the period patient was prepared for surgery and Anesthesia as per standard procedures, that he  was posted for operation on 14..10..2002 for open reduction and stabilization with buttress plate and screws [ORIF} after a thorough evaluation and assessment, that written consent was obtained from the patient and the complainant, that Anesthetist made a detailed examination before he was accepted to the operation theatre for surgery and Anesthesia, that in the operation theatre, he was given spinal anesthesia by the 4^th opp.party who is the well qualified and experienced Anesthetist taking all standard precautions, safety measures, meticulous care, adopting prescribed standard and technique and protocol, that the patient was put back to supine position, that after achieving the required block in the lower limbs, patient was handed over to the surgeons, that Head up tilt was maintained throughout to prevent spinal anesthesia from ascending up above the umbilicus [T 10 Dermatome level], that the level of T 10 was required to anaesthetise the iliac crest area for taking bone grafts, that the patient was given anxiolysis with 7.5 mg Diazepam IV slowly, that the patient remained haemodynamically stable while the surgeons were positioning the patient on the orthopedic table, that at 03.47 PM,  ECG monitor showed a few ventricular premature contractions [VPC] , which  led on the  ventricular bigeminy, that it was immediately treated with IV Xylocard 80 mg bolus.   that at that point of time, the 4^th  opp.party  asked the patient if there was any discomfort for which he answered in the negative, that VPC settled , that  the BP remained stable for the next 3 to 4 minutes, that suddenly the patient complained of discomfort and the BP was found to be low, that Upper level of spinal anesthesia was rechecked and confirmed to be as T 10 , that the  patient was symptomatically treated with vasopressors and fast running IV fluids, that one more IV canula was put and IV fluids infused,  but BP did not improve and immediately inotropic support with dopamine was started,  but in 2 minutes the patient suffered a cardiac arrest, that he was effectively tackled by immediately starting standard procedure of cardio respiratory resuscitation adopting well accepted and well known techniques, drugs and actions by a team of doctors and hospital staff, that Cardiac Rhythm was restored with adequate blood pressure, but SPO2  remained low in spite of best ventilator efforts with 100% O2, that Inotropic supports with dopamine was continued and ECG taken did not show any evidence of Myocardial infarction and this ECG was issued to the patient at the time of discharge of the patient from the hospital at request, that vital signs did not remain stable in spite of adequate support with inotropes and correction of acidosis, that ECG was taken which did not reveal any evidence of Myocardial infarction sinus tachycardia, and  since saturation of O2 remained  low a provisional diagnosis  of massive pulmonary embolism was made, that whenever the BP dropped, adequate and appropriate external cardiac compressions were provided to produce better stroke volume from the heart, that then patient again sustained cardiac arrest and was resuscitated immediately with standard protocol, that BP was maintained for some time after the 2^nd resuscitation, but throughout this period SPO2 remained low which in turn was causing persistent hypoxia to heart, brain and other vital organs  and since Haemodynamic status maintained reasonably within normal limits on inotropic support, patient was shifted to Intensive Coronary Care Unit with O2 enriched ventilation through ambubag, monitoring ECG and SPO2 during transit for further management and unfortunately while  in the Intensive Coronary Care Unit, he developed another cardiac arrest which also was tackled in the standard way with accepted techniques and protocol, that after the resuscitation, the SPO2  which was remaining low till then, suddenly picked up and became 100%,  that  in the Coronary Care Unit, on subsequent days he was managed by a team of doctors including Orthopedic Surgeons, Physician, Pulmonologist, Neurologist and Anesthetist, that on 19..10..2002 he was weaned off the ventilator and oxygenation was maintained on T-Piece,  that on 21..10.2002  at the  request  of the relatives of Mr. Chesterfield he was shifted to Amirtha Hospital, Ernakulam and thereafter these opposite parties have no information about his illness or about the details of his treatment, that this opp.party was rendering best service available coupled with the assistance of sophisticated equipments and expert doctors and experienced theatre staffs, that the injured was taken from the hospital by the relatives on their own will, that the patient was accompanied by  the 4^th opp.party to the Amritha Hospital because of the sincere effort on the part of the hospital and doctors to save the patient,  that patient  had a severe attack of massive pulmonary embolism which resulted in the consequential complications, that  in the operation theatre he was given spinal anesthesia by the 4^th opp.party who is the well qualified and experienced Anesthetist taking all standard precautions, safety measures, meticulous care, adopting prescribed standard and technique and protocol, that the 1^st opp.party hospital is a well known multi speciality hospital with 550 in-patient beds, that there are number of Super Specialists/Specialists, highly qualified with very reputed service records working in the hospital as senior doctors and consultants, that some unit chiefs are very eminent and former professors of Medical Colleges, that some very senior doctors are from Government Health Services, that the doctors who treated the patient were highly qualified and efficient, having very reputed service records and they rendered the best available service with reasonable degree of care and skill,  that the first opp.party hospital  has a standing service of over 55 years with treatment and care of the ailments to the public at large, that the hospital has  competent medical services and some of the  service highlights are ultra modern coronary care unit, 24 hours blood bank and  Pathology, 24 hours Lab, X-ray and Pharmacy, dietary services, Trauma services, Pastoral Care Unit, that the medical expenditure shown  in the complaint is baseless and the complainant should be put to strict proof, that the amount claimed is highly excessive and imaginary, that the patient was  shifted to Amirtha Hospital accompanied by the 4^th opp.party  at the request of the relatives of the patient, that the medical details were sent by fax to Amirtha Hosapital on 20.10.2002 as per the request of the relatives of the patient, that the complainant never requested these opp.parties to issu a copy of case sheet, that  on 22.7..2003 a person who was unknown to these opp.parties came to the hospital after office hours and requested for handing over the file, that the Administrator told him that the complainant should come during office hours and then only the file would be handed over to him on  proper acknowledgement, but the complainant  did not  turn up,  that these opp.parties are not liable to pay any compensation to the complainant and the complaint is only to be dismissed  with costs of the opp.parties.

     Opp.parties 3 to 6 filed joint version contending that the complaint is not maintainable either in law or on facts, that there is no negligence or deficiency in service as alleged by the complainant that the complainant is not entitled to get any relief as prayed for in the complaint, that there is also no consumer relationship between the complainant and the opp.parties herein since these opp.parties have not received any consideration from the complainant or her husband, that further the complainant herein has no locus standi to file this complaint since admittedly she has preferred this  complaint for and on behalf of her husband who is alive  and who is not otherwise  legally  incompetent  to file this complaint , that these opp.parties are employees of the first opp.party hospital  under the 2nd opp.party and have not received any consideration from the complainant and her husband, that the complainant’s husband was admitted in the first  opp.party hospital on 7.10.2002 with Bicondylar fracture of left tibia with depression and subcondylar extension and fracture of fibula with alleged history of having suffered the injury in road traffic accident on 6.10..2002 afternoon, that the patient was referred  from Holy Cross Hospital, Kottiyam  where he was initially treated, that the patient had severe pain and swelling of left knee and left knee joint was tense, that  the patient was under the management of the 3^rd opp.party, the Orthopaedic Surgeon of first opp.party,  that the X-ray  and blood investigation reports brought from Holy Cross Hospital were seen by the 3^rd opp.party, that the patient was already on lower tibial traction using a Steinmann pin and the same was given from Holy Cross Hospital , that the patient had Hemarthrosis left knee and subsequently developed blebs over the proximal leg and had oedema of the injured leg, that under strict aseptic precautions, the 3^rd opp.party have aspirated over 50 cc of altered blood with fat globules from the left knee joint on 7..10..2002, that compression bandage was given, that the patient was given analgesics, antibiotics, steroids, static quadriceps exercises and range of movement exercises of left foot and ankle, that at the request of the 3rd opp.party, medical consultation was done by the physician on 9..10..2002, that the physician after thorough physical examination and after doing necessary investigations including X-ray, ECG and hematological tests, and after evaluation of these investigations and further after a review examination on 10..10..2002 pronounced the patient as fit for anesthesia and  surgery,   that these opp.parties had not examined the patient and had not given any assurance that the 5th opp.party  also had not seen   the patient  before  anesthesia and had not given any assurance, that the third opp.party had  seen  the patient  but no such  assurance was given, that the 4^th opp.party had seen  the patient and made the final preoperative and pre-anesthetic check up, but had not given any assurance as alleged, that the patient and his relatives were given the  proper explanation regarding the injury, the treatment planned and all possible related complications, that the 4^th opp.party, did a pre-anesthetic evaluation and after noting the history, investigations and after doing a proper examination found that there was no contraindication for anesthesia and surgery, that the patient was prepared for anesthesia and surgery, namely  Operative Reduction and Internal Fixation [ORIF] and bone grafting, that  Test doses for local anesthetics were already given and were found to have produced no reactions, that the 4^th opp.party explained the procedure and type of anesthesia to the patient and his relatives, that written informed consent for anesthesia and surgery was taken before anesthesia and surgery, that at 3.15 pm. in the operating room, the patient was connected to cardiac monitor, Pulse Oximeter, Automated non-invasive blood pressure monitor and patient was given oxygen by mask at 4 liters per minute and IV fluids,  that after  monitoring normal status of BP, Cardiac rhythm, SPO2 and heart rate, the patient was properly positioned carefully and after local infiltration with 1% xylocaine, under strict asepsis and with extreme care, the 4^th opp.party did a subarachnoid puncture with 23 G disposable spinal needle and after confirming free flow of CSF, administered slowly 3 ml of 5% bupivacaine at 3.25 pm., that the patient was put back to supine position, that after achieving the required block in the lower limbs, patient was handed over to the surgeons, that head up tilt was maintained throughout to prevent spinal anesthesia from ascending up above the Umbilicus [T 10 dermatome level], that the level of T !0 was required to anesthetize the iliac crest area for taking bone grafts, that the patient was given anxiolysis with 7.5 mg diazepam IV slowly, that the patient remained haemodynamically stable while the surgeons were positioning the patient on the Orthopedic table, that at 3.47 pm, ECG monitor showed a few ventricular premature contractions which led o n to ventricular bigeminy and it was immediately treated with IV xylocard 80 mg bolus, that at that point of time, the 4^th opp.party asked the patient if there was any discomfort for which he answered in the negative , that VPC settled, that the BP remained stable for the next 3 to 4 minutes, but  the patient suddenly  complained of discomfort and then BP was found to be low, that the Upper level of spinal anesthesia was re-checked and confirmed to be at T 10 , that the patient was symptomatically treated with vasopressors and fast running IV fluids, that one more IV cannula was put  and IV fluids infused, that BP did not improve, that immediately inotropic support with dopamine was started,  but in 2 minutes the patient suffered a cardiac arrest, that immediately cardio pulmonary Resuscitation measures were executed by the team of doctors and nurses present in the theatre, according to standard protocols like awake endotracheal intubation and positive pressure ventilation with 100 % oxygen via Brain’s circuit from anesthesia machine,  external cardiac compression, IV atropine, IV adrenalin and defibrillation, that cardiac rhythm was restored with sinus tachycardia and adequate blood pressure, but  pulse oximeter monitor showed low SPO2 as 70% in spite of good positive pressure ventilation with 100% O2 and bilateral good air entry heard on auscultation of chest, that controlled  ventilation was facilitated with neuromuscular blockade with Vecuronium 4 mg IV,  that Acidosis was corrected with 7.5 % NaHCO3 IV  given slowly , that adequate IV fluids were given to avoid any hypovolemia, that inotropic supports with dopamine was continued and ECG taken did not show any evidence of myocardial infarction and this ECG was issued to the patient’s relatives at the time of discharge of the patient from the hospital at request, that vital signs did not remain stable in spite of all the aforementioned supports, that  the 5^th opp.party was informed and she arrived soon and joined the team of  resuscitators,  that since saturation of O2 in the arterial blood as monitored in the pulse oximeter remained very low in spite of all the aforesaid supports, a provisional diagnosis of massive pulmonary embolism was made,   that while the resuscitation procedures were in progress, the 6^th opp.party also joined briefly to assist the team of resuscitators, that in spite of  continued support with inotrope dopamine and positive pressure ventilation with 100% O2, the patient again suffered cardiac arrest and was resuscitated immediately according to standard recommended protocols, that  BP was maintained for sometime after the 2^nd resuscitation from cardiac arrest, but  throughout this period SPO2 remained low, inspite of ventilation with 100% oxygen, that in the meanwhile, Dobutamine infusion was also started as 2^nd inotrope,  when the heamodynamic status was maintained relatively  stable, the patient was shifted to CCU for continuing intensive support,  that in CCU the patient again  suffered cardiac arrest, that the cardio-pulmonary resuscitation was continued with IV atropine, IV adrenalin and defibrillation, that sinus tachycardia rhythm came  once and again deteriorated to cardiac arrest, that with repeated external cardiac compressions and IV adrenalin and defibrillation, rhythm picked up to sinus tachycardia, that in CCU the patient was  on mechanical ventilatory support, that an ECG was taken after arrival in the CCU and it showed sinus tachycardia, S wave in lead I, AVL, Q in lead III, and T inversion in lead III, that these changes are consistent with acute pulmonary embolism in the appropriate clinical setting of the patient,, that the SPO2 which was showing very low values picked up as shown by the ABG at 6.27 pm and gradually became 100% probably because embolus which was causing obstructive symptoms got fragmented and dislodged,  that since then the patient’s haemodynamic status remained stable, that the patient was transferred to AIMS with proper care and monitoring, that the patient was accompanied in the ambulance by the 4^th opp.party and an orthopedic surgeon and the nursing staff of  opp.party hospital,  that the patient’s vital parameters were normal at the time of transfer, that the patient was managed in the CCU of  4^th opp.party hospital by a team of doctors consisting of  opp.parties 3 to 6  and with assistance from the Pulmonologist and Neurologist, that other causes of repeated cardiac arrest were also considered and ruled out by appropriate investigations and analysis of available data, that D Dimer study showed raised levels of 800 mg/ml, that the clinical setting of the patient and the investigation findings including ECG and lab results are consistent with the diagnosis of massive pulmonary embolism, that  acute massive  pulmonary embolism is a transient catastrophic clinical scenario in which the emboli lodge in the pulmonary artery causing obstruction to pulmonary arterial circulation, that the aim  of cardio pulmonary resuscitation is to provide ventilation of the lungs and to ensure circulation, that these aims of resuscitation were successfully achieved in the case of the patient, but the repeated cardiac arrests and hypoxia, which the patient suffered, were the result of the pulmonary embolism, that the embolism was transient and the SPO2 values picked up suddenly after being low for over 2 hours inspite of prompt and efficient resuscitation efforts by a team of doctors.

      It is further contented that the cause of brain damage, the patient suffered is not because of any delay in resuscitation  but because of the afore mentioned pathology of massive pulmonary embolism, which led to persistence of hypoxia documented by low SPO2  values even when circulation was reasonably maintained, that the surgery was not planned in the morning and the patient was taken up for surgery at the first available opportunity when the theatre was free, that the patient was discharged as per the requests of the patient’s  relatives  against medical advice on 21.10.2002 with one ECG taken on 14.10.2012 and chest x-ray taken on 18.10.2002, that the 4^th and 5^th opp.parties had given a case summary on the condition of the patient on 20.10.2002 which states that the patient developed hypotension and Cardio Respiratory Arrest and that the patient was intubated and CPR under standard protocols started and that the patient was de-saturated even  with  ventilation  with 100% Oxygen making the possibility of pulmonary embolism likely, that the patient was only being  positioned on the Orthopedic table when he developed problems and no internal fixation was done or attempted on the patient, that the statement that there was no evidence of pulmonary embolism after detailed investigations at Amritha Hospital does not  disprove the diagnosis of pulmonary embolism as the possible cause of cardiac arrest of the patient during Anesthesia and following attempts at positioning of the  fractured leg, that there was no negligence in administration of anesthesia  to the patient as alleged  anesthesia was administered to the patient by the 4^th opp.party by taking adequate precautions and not in a careless manner as alleged in para 11 of the complaint, that the patient was given spinal anesthesia, which is safe  and well accepted   for lower limb procedures , that the patient was  constantly monitored during anesthesia, that unlike in general anesthesia, patient remains conscious while under spinal anesthesia, that it was also ensured that the level of spinal anesthesia was kept to T10 level with adequate precautions, that Mr. Chester Field’s vital signs were closely monitored before and after administering spinal anesthesia, that before  surgery was planned for the patient, proper precautionary  measures to prevent embolism were adopted by the 3^rd opp.party, the Orthopedic surgeon for the patient  as the patient’s physical condition, his fracture and associated complications like haemarthrosis permitted, that the patient was given static quadriceps exercises and range of movement exercises of left foot and ankle, that the patient was not given anticoagulants [Heparin] because the complication of hemarthrosis which the patient had would worsen with anticoagulant medication, that the resuscitation measures which were provided after Mr. Chesterfield sustained cardiac arrest were timely and   without  causing any delay and was in accordance with standard protocol prescribed and  followed by experts, that the opp.parties 3 to 6 have done their best in resuscitating the patient and there is no negligent or deficiency of service on the part of the opp.parties 3 to 6 , that opp.parties 3 to 6 have given the best possible treatment, care and attention to the patient when he was under  their care, that the 5^th opp.party was associated with the treatment of the patient only after he sustained cardiac arrest, that the 6th opp.party was not associated with pre -operative, pre- anesthetic  or post-anesthetic treatment of the patient except for a brief assistance in resuscitating the patient and hence opp.parties 3 to 6 are not liable to compensate  to the complainant, that the first opp.party hospital where the opp.parties 3 to 6 are working is a well equipped  hospital  with modern facilities and enjoys good reputation among the people of Kollam, that there is no negligence or deficiency in service on the part of the opp.parties 3 to 6 as alleged in the complaint and the complainant is not entitled to get any amount as compensation from the 3^rd, 4^th, 5^th and 6^th opp.parties and the complaint is only to be dismissed with cost to these opp.parties.

Points that would arise for consideration are:

1.     Whether there is any deficiency in service on the part of the opp.parties?

2.     Reliefs and costs?

For the complainant PW.1 was examined and marked Exts.P1 to P17.

For the opp.parties DWs.1 to 4 were examined and marked Ext. D1.

THE POINTS:

     In this case the complainant who is none other than the wife of the patient was examined as PW.1.  Ext.P1 is the medical report from Bishop Benziger Hospital, Kollam, Ext.P2 is discharge summary from Amritha Institute of Medical Science and Research Centre, Ernakulam, Ext.P3 is discharge summary from  Sankers Hospital, Kollam, Ext. P4 is Chelan dated 22..4..2002,, Ext. P5 is Chellan dated 2..5..2003, Ext.P6 is Chelan dated  20..8..2001, Ext.P7 is  receipt for Rs.74,700/- dated 7.10.2004 from the Janatha Physiotherapy clinic, Ext.P8 is the certificate issued by Dr.  M.A. Suveen of Janatha Physiotherapy Clinic , Ext.P9 is certificate dated 8.10.2004 issued from Sanker’s Hospital Kollam  stating that Mr.Chesterfield is still in the same vegetative state,Ext.P10. is receipt dated 16..7..03 for Rs.1,76,078/- from Sanker’s Hospital, Kollam, Ext.P11 is discharge bill dated 25..5.2003 for Rs.1,76,078/- from Sanker’s Hospital, Kollam, Ext.P12 is computed tomography examination result and report dated 21.10.2002 from Amritha Hospital, Ernakulam, Ext.P13 series is bills from Bishop Bensigar Hospital, Kollam [opp.party hospital] for Rs.29,947/-, Ext.P14 series is bills from Holy Cross Hospital, Kottiyam for Rs.3,906/-, Ext.P15 series is bills from Amritha Hospital, Ernakulam for Rs.35,911/-, Ext.P16 series is bills from Sanker’s Hospital, Kollam for a sum of Rs.2031416/-, Ext.P17 series is medical bills from other medical stores  which comes to  Rs.23,920/-

     Dr. Aneesh Cheriyan [Opp.party3] was examined as DW.1, Dr. George Varkey Anesthetist [Opp.party4] was examined as DW.2,Dr. Raichel Daniel, Consultant physician [opp.party 5] was examined as DW.3 and Dr. G.Vijayaraghavan, consultant Cardiologis ,KIMS. Hospital, Thiruvananthapuram [Expert witness] was examined as DW.4.    Case file of Bishop Benzigar Hospital, Kollam  [opp.party hospital] was marked as

 Ext. D1.

     There is no dispute that Sri. Chesterfield Alfenso, husband of the complainant was admitted in the 1^st opp.party hospital on 7.10.2002 for the treatment of his fracture on left tibia,  and he was treated by opp.parties 3 to 6 .  It is also not in dispute that Sri. Chesterfield Alfenso was discharged from the 1^st opp.party hospital on 21..10..2002 and now living in a vegetable stage.

     Admittedly he met with a road traffic accident on 6.10.2002 while he was standing in front of his house and trying to start his scooter as a result of which he had sustained fracture on left tibia and immediately taken to Holy Cross Hospital, Kottiyam where he was treated initially and from there  he was shifted  to the 1^st opp.party hospital for expert management.  From 7.10.2002 till 14.10.2002 he was treated in the hospital in connection with the fracture and he was under various evaluative procedures and on 14.10.2002  as planned the patient was subjected to surgical correction under spinal anesthesia.  However there is dispute regarding the administration of anesthesia.   When the complainants would say that the reason for the devastating condition of the patient was due to the negligent mode in which anesthesia was administered on 14.10.2002 for carrying out the surgery on the patient, the contention of the opp.parties is to the effect that there was no deficiency in service or negligence on the part of any of them in treating the patient and everything happened because of the development of pulmonary embolism which resulted in recurring cardiac arrest on the operation table while attempting  internal fixation of the fracture after administration of  anesthesia and because of this cardiac arrest the damage to the brain has caused.  But the complainants specific case is that the alleged story of cardiac arrest is an afterthought and actually the patient has not suffered any such cardiac arrest.  Moreover, there is no previous or subsequent case of cardiac problems to her husband.

     Considering the allegations and contentions, let us examine whether the alleged formation of pulmonary embolism and recurring cardiac arrest in this case is an invented story which has not occurred\happened in this case and the same is made only to escape from the reasons for causing damage to the brain?  It is the admitted case of the opp.parties that it was not a case of life saving emergency surgery but a planned one.  When it is a planned surgery the attending doctors are expected to foresee all the casualities which can occur in a case of this nature.   The expert witness DW.4, has also opined in the cross examination that when the surgery is a planned one the doctors will get sufficient time to look into all the pros and cones of the case in hand  According to the opp.parties the entire casualities  occurred because of the formation of pulmonary embolism.  So at first the opp.parties have to show and prove  that pulmonary embolism has been occurred in this case.   In page No.2 of Ext. D1  it is stated that “on 14.10.2002 patient was taken for surgical correction under regional anesthesia.   After spinal anesthesia got fixed dermatomal level  of T10 [after 15 minutes] while being positioned in the fracture-table , patient developed frequent VPC’s followed by hypertension and cardio-respiratory arrest.  Intubated and CPR  under standard protocols started .  Though  the cardiac rhythm could  be attained during resuscitation patient was desaturated  even after ventilation with 100% oxygen  making the possibility of pulmonary embolism highly likely.”  Apart from the above statement  in Ext. D1 nothing is produced in this case to show that there was pulmonary embolism and because of the formation of the same all the casualities have occurred.   Expert witness, DW.4 also  spoken only about the possibility of  pulmonary embolism.  When definite question was put to DW.4 regarding this DW.4  would  swear before the  forum that ‘What are the possibilities you think as the reasons for the repeated cardiac arrest of the patient[Q]   6^th October  the patient had RTA, leg was immobilized  from 7^th .  On 14^th the patient was taken for surgery with this background.  1^st possibility is pulmonary embolism [A] Further when the patient was examined at Amritha Hospital, Ernakulam it was observed that there was no sign of any pulmonary embolism on the body of the patient.   While DW.4  was in box learned counsel appearing for opp.parties 3 to 6 tried to clarify  the same through DW.4.  DW.4 would swear before the forum that “whether this observation is correct or not? 11/11 to be correct on that day.   That statement do not  mean there is  no evidence on 14/10.”   It strengthens the case of the complainant   so also in this case the expert witness neither seen the patient nor treated him at any point of time, but has answered the questions going through the case sheet of the 1^st opp.party hospital.  Here   it is pertinent to note that complainant has a case that  the entire case sheet has been manipulated.

     So at first, opp.parties has to prove that pulmonary embolism has occurred in this case.  So also they have to prove that they have  taken all necessary measures to avert the formation of pulmonary embolism in this case and  even after that it happened and the condition was beyond their control.   The expert witness Dr. Vijayaraghan was examined for  the specific purpose to establish that on going through the case sheet, there is chance of pulmonary embolism and the same  can cause cardiac arrest.  But he is also not sure about  whether pulmonary embolism has occurred in this case.  He only says, there is a possibility .   Regarding the second point when definite questions were put to DW.4  he has admitted that “ case sheet  sIm­v  embolism        Ft¸mÄ XpS§n F{X t\cw \o­p F¶p ]d-bm³ Ign-bptam [Q] 7 mw XobXn apX 14 mw XobXn hsc patient traction  Bbn-cp-¶p.

B ka-b-¯m-bn-cn¡mw  CXv D­m-bXv Pulmonary embolism diagonise   sN¿mt\m Dt­m F¶p IWp-]n-Sn-¡mt\m test   IÄ [mcmfw D­v F¶m AsXm¶pw 100%  specific or substantive Aà [A]” “CXp-t]m-se-bp-ff fracture  ambn Hcp  patient  h¶m pulmonary embolism   D­m-Im-\p-ff km[-yX IqSp-X-em-sW¶v doctor   And-ªn-cn-¡-W-atÃm [Q] AsX [A]  “Further down he would swear before the Forum that “ Ext. D1  page II para bn making  the possibility of pulmonary embolism highly likely F¶p ]d-ªn-«p­v    Cu report pulmonary embolism BsW¶p  confirm sNbvXn-«n-ÃtÃm [Q] Cà [A]  pulmonary embolism  I­p-]n-Sn-¡m³ Fs´-¦nepw measures Dt­m [Q] D­v ,[A]

     Dr. Aneesh cherian, the orthopaedic surgeon who was examined as DW.1 also not sure that the casualities happened is due to pulmonary embolism.  He would swear before the Forum that “Complainant  sâ brain damage F´p-sIm-­m-sW-¶mWv \n§ÄIcp-Xp-¶Xv [Q] pulmonary embolism BsW-¶mWv  provisional diagnosis [A] “A{]-Icw confirm sNbvXn-«pt­m [Q]A{]-Imcw Xs¶ BsW-¶mWv A\p-am\w[A] He would  further swear before the Forum that “Fracture D­m-bm embolism  D­m-Im³ Hcp \nÝnX i\-am\w km²-yX D­v.” He is the orthopaedic surgeon, who attended the patient and the person to foresee all the said casualities.  He has no case that he has taken  any precaution to avert the formation of pulmonary embolism.   As we have  already mentioned DW.4 also admitted that there is clear ways to find out the presence of pulmonary embolism and other ways to avert it DW.4 would swear before the Forum that “pulmonary embolism diagonise sN¿mt\m Dt­m F¶p I­p-]n-Sn-¡mt\m  test IÄ [mcmfw  D­v.  F¶m AsXm¶pw   100% specific or sensitive AÃ.  CXp-t]m-se-bp-ff  fracture ambn  Hcp patient h¶m  pulmonary embolism D­m-Im-\p-ff km[-yX IqSp-X-em-sW¶v     Doctor Adn-ªn-cn-¡-W-atÃm [Q] AsX   [A]  AXn-\p-ff km²-yX XS-bm³    preventive measures  Dt­m [Q]  one is Heparin.   Further down DW.4 would swear before the Forum that “Ext. D1   ]d-bp¶ t]mse-bp-ff Hcp   fracture \p fat embolism ¯n\pff km²yX Iq-Sp-X BWv  [Q]  icn-bmWv Any embolism [A]  AXp-sIm­v  admit sN¿p¶ kabw apX AXv  avoid  sN¿m-\p-ff measures   FSp-¯n-cn-t¡-­-XtÃ[A]   km²-y-am-b-sXÃmw FSp-¯n-cn-t¡-­-XmWv [A] A§s\ sNbvXn-cn-¶p-sh-¦n OP  D­mbn F¶p ]d-bp-¶ Xc-¯n-ep-ff Hcp pulmonary embolism  Hgn-hm-¡m-am-bn-cp-¶tÃm [Q] \à iX-am-\-t¯mfw Hgn-hm¡mw [A]  Further down DW.4 would swear before the Forum that “case sheet    A\p-k-cn¨v CXv Hcp planned surgery  BWv.   Emergency surgery  Aà planned surgery  Bb-Xn-\m Doctors \v FÃm precautionary measures þw   FSp-¡m³ Ignbpw  “cardiac arrest sâbpwBrain damage  sâbpw aqe-Im-cWw pulmonary embolism BtWm  [Q] BIm-\mWv km²-yX IqSp-X [A]  When  a question regarding pulmonary embolism was put by learned counsel appearing for Ops 3 to 6, DW.4 would swear before the Forum that  “What is meant by massive pulmonary embolism [Q] In any individual in complete rest can have spontaneous cloting of blood specifically in the legs.  More so when the leg is immobilized suddenly when that leg is mobilized the blood cloat can move to the lungs and block lungs blood flow.   This causes low oxygen, low blood pressure, slow heart rate, heart arrest in many patients.   This is massive pulmonary embolism”  In para 6 of the written statement put in by Opp.parties 3 to 6 it is stated that “The patient was given analgesicsj  antibiotics, steroids, static quadriceps exercise  and range of movement exercises of left foot and ankle.”   In argument note also it is stated that the patient was given analgesics, antibiotics, steroids  and static quadriceps exercise and range of movement of exercise of left foot and ankle..  Admittedly the patient sustained fracture of left tibia.  It follows that there is no evidence to show that the left leg of the patient was immobilized  and suddenly when that leg was mobilized  at operation table the blood cloat moved  from leg to the lungs and blocked lungs blood flow and caused repeated cardiac arrest.   Then the case of the complainant that the alleged formation of pulmonary embolism and recurring cardiac arrest in this case is  an invented story which has not occurred/happened in this case and the same is made only to escape from the reasons for causing damage to the brain cannot be brushed  aside.

Further, it is argued by the learned counsel appearing for the complainant that every complications in this case has caused because  of the maladministration of Anesthesia to the patient .  But according to the opp.parties  the repeated cardiac  arrests due to pulmonary embolism  ultimately resulted  in hypoxia  It is pertinent to note at his juncture  that  DW.2  Dr.  George Varkey  who had administered Anesthesia has seen the patient only on 14.10.2002 in the operation table.   The Doctor who is administering Anesthesia has to see the patient before administering  Anesthesia.    All tests are to be done.    Consent  from patient or relatives to be obtained.      But DW.2  has not done any pre anesthetic evaluation or he had any occasion to have an interaction with the patient.   DW.2 would swear before the forum that Cu tIknse      patients\ \n§ÄBZ-y-ambn ImWp¶-Xpv Ft¸mgmWv-[Q]  Rm³ BZ-y-ambn ImWp-¶-Xpv 14.10.2002 D¨bv¡vv  2.30\mWv.  Cu patient sâ operation pre anesthetic  check up   FSp-¯n-cn-¡p-¶-Xp 12/10 \mWp . Rm³ vpatient s\  ImWp-¶-Xpv operation theatre  t\mSp tNÀ¶p-ff   pre-medication room  h¨mWv .”  Further DW.2 would swear before the Forum that patient sâ body condition  ]cn-tim-[n¨Xmbn case sheet  Fhn-sS-sb-¦nepw tcJ-s¸-Sp-¯n-bn-«pt­m[Q] Cà [A]  But in the version put in by opp.party 3  to 6 it is stated as “ the 4^th  opp.party,  namely Dr. George Varkey,  did a pre-anesthetic evaluation and  after noting the history, investigations and after examination found that there was no contra  indication and surgery.  It follows that the  necessary  parameter which has to be  taken by an anesthetist  before fixing the operation has not been taken in this case and version filed in such a way to show that there are no latches  on his part.

          Further the complainant has a case that in this case at first epidural  anesthesia was fixed  and without informing  the patient or his relatives and without obtaining any written consent from them, the doctor [opp.party 4]  has changed the   epidural anesthesia to spinal anesthesia.  But it is argued by the learned counsel appearing for  the opp.parties 3 to 6  that spinal anesthesia is the appropriate procedure in  areas of lower extremities, hip, perineum, lower abdomen and lumbar spine.   DW.2 would swear before the forum that “Cu   patient s\  Dr. Prathapan I­n-cp¶p   Ext. D1  DR. Prathapan Cu  Patient s\ I­-Xm-bnt«m hnh-c-§Ä tcJ-s¸-Sp-¯n-b-Xm-bnt«m CÃ.   page 23  tcmKn-bpsStbm relative sâ tbm H¸nà [Q]  AXnsâ Bhiyanà  [A] Epidural anesthesia amän    spinal B¡n-b-t¸mÄ patient   sâtbm relativessâ tbm  consents hm§n-bn-«n-ÃtÃm    [Q] {]tX-y-Iw hm§n-bv¡m-dnÃv [A] In Ext. D1 page 23 type of anesthesia seen written as E.A. and  then  after scoring that  S.A. seen inserted It is also seen  recorded as at 3.25 pm. L3 L4-L2 L3 failed.  Level kept at T10 with Head up positioning.

Further the complainant has a case that  the anesthesia was administered in an illegal manner.   According to DW.2, anesthesia was fixed  at the umbilicus  level and not above level of umbilicus .  DW.2 would swear before the Forum that “ Hip bone graft sNt¿­ patient  \p above umbilicus level anesthesia fix  sN¿p-¶-Xtà D¯aw~[Q] Umbilicus level  anesthesia  fix sN¿p-¶-Xm-Wpv D¯aw A]  But according to the complainant  the anesthesia level has been fixed at above umbilicus level  and in such cases if the doctor is not so vigilant in monitoring the process of travel of anesthesia, there is every chance of going the  same  to upper level and causing discomfort to the patient in his breathing and the same will result in  serious respiratory complications and other complications to the blood circulation to the vital organs.  If  such a situation happens ,  first the patient will feel difficulty in breathing  and then he will be put to the other complications.   According to the complainant, here also the same thing happened.   DW.2 would swear before the Forum that “3.52  \mWv patient \pv  hmbn hcĨ A\p-`-h-s¸-Sp¶-Xmbn ]d-ª-Xpv.  CXn-\p-tijw   patient \n§-tfmSv Fs´-¦nepw]d-ª-Xmtbm \n§Ä Fs´-¦n-epw-tNm-Zn-¨-Xmtbm  Ext. D1 sIm­p ImWp-¶nà [Q]  CÃ.  ImcWw 2 an\n-«n-\Iw patient   \p vcardiac arrest  D­m-Ip-Ibpw AXnsâ `mK-am-bn«p iz-k-\m-f-¯n tube  C«p.  3.52 \p discomfort h¶p  patientsâ t_m[w complete   Bbn \jvSs¸«tÃm [Q]   B kabw unconscious Bbn-Ã.  conscious  BsW¶v    page NO.23   record   sNbvXn-«nà {Q]  Cà [A]  Discomfort]d-ª-Xn\p 2 an\n«v Ign-ª-ti-j-am-Wpv  cardiac arrest D­m-b-Xpv   So  the definite case of the complainant  that the patient went into  coma immediately after the administration of the anesthesia and he never became conscious afterwards and this happened only because of the failure in fixing the point of anesthesia cannot be brushed aside.  Further the definite case of the complainant is that in a case where bone grafting is being done to patient the anesthesia  has to be fixed at  neck level  and all these are subsequent inventions.   DW.2 would swear before the Forum that” Cu tIkn tF-Xp-`mKw hsc ac-hn-¸n¨p  [Q] s]m¡n-fn-sâ-`mKw  hsc (F-gn-Xnbn-«n-­pv)  Hip     \n¶pwbone grafting  \S-¯p¶  patient \pC3 level (Igp-¯p-hsc) achn-¸n¸vthW-atÃm [Q]      Bh-i-y-anà [A] Anesthesia ico-c-¯nsâ tF-Xp-`mKw hsc  F¯n F¶-dn-bp-hm³ tFXp   test\S¯n  [Q]  pin pick test \S¯n  [A]   Cu tIÊn pin pick test     \S¯n BWpv level fix sNbvX-sX¶p ]d-ªn-«pt­m  [Q]km[m-cW KXn-bn AXpv Fgp-Xm-dn-Ã.[A] km[m-cWpin pick test  \S-¯n-bn-sÃ-¦n anesthesia upper level    te¡v  t]mIp-hm³ kmZvy-X-bp­ptÃm [Q] km[m-cW   bodyDf-f  patient\pv Cu dose acp-¶p-sIm-Sp-¯m upper level te¡v t]mIp-hm³ km²-yX CÃ.  Cu tIkn  C3 level  BWp anesthesia   BZyw  fix  sNbvX-Xpv [Q]  Aà T10 level .  T10 levelF¶pv kw`w-h-¯n\p tijw Ext. D1  amäw hcp¯n Fgp-Xn-b-Xtà [Q] AÃ[A]  Here it is pertinent to note that the complainant  has a case that the entire case sheet has been subsequently manipulated to show that there are no latches on Opp.parties part.   According to DW.2 he has    rechecked the anesthesia when the complications arose.   He would swear before the Forum that “ Re check sNbvX-Xmbn Fgp-Xn-bn-«n-Ã.   Hypotension D­m-b-t¸m-gm-Wpvrecheck sNt¿­p¶ AhkvY D­m-b-Xpv”  “ Further down he would swear before the Forum that 3.52 \pv discomfort feel  sNbvXp  3.54 \pvheart attack D­mbn F¶p ]d-bp¶    patient  \p tFXpv method   D]-tbm-Kn¨p recheck \S¯n [Q] 3.52  patient Ft¶mSv kwkm-cn-¨p.  At¸mÄ pinpick  h¨p recheck \S-¯n.[A] Here page No.23 of Ext. D1 assumes  more importance.  According to DW.2 he  rechecked the anesthesia at 3.52 P.M.   But the complication started at 3.54. But in Ext. D1 page No.23 it is seen recorded that at 3.52 developed hypotension.   In the column below it is seen recorded as Hypotension  remained .   So  Dopamine  started – Brady cardiac.   Desaturated – cardiac -In the column below it is seen recorded as 3.54  arrest – CPR started  i  Ext. cardiac compression- awake Intn  done AE checked fixed .  In the column below it is seen recorded  as “at 22 cms at the angle of mouth.   Repeated dose of  atropine given.”  The above  entries with other  entries above and below are seen written at a stretch with black pen  from top to bottom.   Time, BP, pulse, Resp seen written with blue pen in another handwriting.  How  he has rechecked the anesthesia on a patient who sustained cardiac arrest at 3.54 p.m.   According to him  he rechecked   anesthesia at 3.52 p.m.  But there is no such entry in Ext. D1 page 23 .  On going through  Ext. D1 the case of the complainant that 3.54  entries  also is suspicious cannot be brushed aside even   by a perusal of the same.  So what he has stated in cross examination that at 3.52 p.m. the patient talked to him and at that time he rechecked the anesthesia  cannot be believed.   Why he has rechecked anesthesia also stands  unsubstantiated.

          Further he would swear before the Forum that  “tFXpa-\p-j-y\pw     “   oxygen supply  Ipd-ªm   brain damage D­mImw.”   Further down he would swear before the Forum that “  A§s\ masc hgn oxygen supply   sN¿p¶ Hcp patient \pv s]s«¶v supply\n¶p-t]m-bm  brain damage hcp-atÃm {Q]   kz-b-ambn izm-tkm-¨mkw \S-¯p¶vpatient \pv   brain damage hc-W-sa-¶nÃv  {A]   It is argued by the learned counsel appearing for the opp.parties that regarding  brain damage opp.parties never contended that there is no brain damage; and on the other hand the contention of the opp.party is that there is no total or 100% brain damage as alleged by the complainant.  But here how brain damage occurred is important.   DW.4, expert would swear before the Forum that “spinal anesthesia sImSp-¡p-¶-Xn   deficiency D­m-bm AXp-apew brain  te¡p-ff oxygen supply   bn Ipd-hp-h-cptam[Q] spinal anesthesia   aqew blood pressure t\m blood circulation   t\m hy-X-n-bm-\w-h-¶m D­mImw [A] It follows that one of the possibility according to expert is that due to the deficiency in administering spinal anesthesia  if it causes any change in the blood pressure and blood circulation in human body it can cause  brain damage.   Any way from the available evidence we can see that the entire incident started from the point where the anesthesia was administered to the patient.   So the case of the complainant that after administering the spinal anesthesia the doctor failed to monitor its subsequent developments and  thus the same shoot up and caused obstruction to the oxygen supply and the same  resulted in causing extensive damage to brain    assumes    significance.

          The next point argued by the learned counsel appearing for the complainant is that the damage caused to the brain was not  detected  or even after  detection of the same was left without attending and by providing  better and efficient treatment for the same and without giving any treatment to the damages caused to the brain, the patient was kept in the 1^st opp.party hospital for a long period and thus  entire complication to the patient has occurred.  But the learned counsel  for opp.parties 3 to 6 would submit that repeated  episodes of cardiac arrest  which the patient sustained in the operation theatre and subsequently in the coronary ICU all  treating doctors were suspicious about the  outcome of the patients brain function from 14/10 onwards.   To support the brain as well as other vital organs, the patient was ventilated  artificially to maintain adequate  oxygenation and ventilation.  Intropes were  continued to sufficient period of time in order to maintain adequate blood  pressure.   These measures were  deployed as soon as, after the 1^st episode of cardiac arrest which happened in the operating theatre.  Here it is to be noted that even though the complainant has a case that the 1^st opp.party hospital is an average hospital having no ambulance to carry the patients, no C.T or EEG facility, after filing version the [opp.parties 1 and 2] have not adduced any evidence in this case  apart from the production of Ext. D1 case sheet.   The hospital is bound to  answer why  and how the patient was  retained in such a hospital for days together without referring him to a better hospital for availing better treatment for the damages caused to the brain.  It is for the  hospital to say whether the patient was attended by a qualified neurologist, whether he was given proper neurological treatment, had the damage caused to the brain has been properly diagnosed and proper treatment was given to  him or proper  intimation given to his relatives.  It is seen from case sheet Ext. D1 at page 41 that one doctor Jaideep who according to opp.parties 1 and 2 is the neurologist attached to the hospital has seen the patient.  But he was   neither summoned nor examined before the Forum.  What is the diagnosis by him and what is the treatment given by

 him not made mention of in Ext. D1  DW.4, expert witness would swear before the Forum that “ Brain damage kw`whn¨Xpv  cardiac arrest Dw pulmonary embolismDw D­mb ZnhkwXs¶ Bbn-cnbv¡mw.”  It means immediately after the incident the damage to the brain has been  suspected.  If that be so, they ought to have got examined him  by an expert neurologist, but that was not done so. It is pointed out by the learned counsel appearing for the complainant that the non availability of expert neurologist or even at least the damage caused to the brain not  divulged to the relatives of  the patient.  It is in evidence that even though the relatives of the patient compelled  for a  reference to a better hospital at the earliest  the opp.parties avoided the same by saying he cannot be transported at this stage.   Here, it is pertinent to state that after saying so, they have taken the patient  outside the hospital for taking C.T. scan.   It is also pointed out that  better  neurological treatment are available in various hospitals in Kerala and there was well equipped ambulance service for taking patients with any kind of serious ailments.   This service was also not provided to the patient.  Had the patient been referred at the first in point of time the damage to the brain could have been minimized .  It is also to be noted that here it is not a case that the damage to the brain has not been  detected  at any point of time till the  date of reference .All the witnesses , even the expert witness DW.4  are of the opinion that the damage to brain has been detected  and in this case  from the nature the brain damage has to be anticipated by a doctor   According to DW.1 [opp.party3] inadequate oxygenation has been occurred in this case and  there is CT scan facility or EEG facility  available in the hospital and the relatives got the reference/discharge under compulsion . He would swear before the Forum that “ Hypoxia F¶m F´mWv [Q] In -adequate Oxygenation  to the brain [A] “3.55 \p   ventilator   B¡n-bn-«p-­pv oxygen \ÂIn-bn-«p-­pv Ext.D1  Fhn-sS-sb-¦nepw  brain \pv damage kw`-hn-¨-Xm-bn- \n-§Ä I­p ]nSn¨p F¶p ]d-ªn-«pt­m  [Q]  AsX¸än ]d-bm³ Rm³ competent  Aà  [A] \n§-fpsS hospital    Â C.T. scan kwhn-[m\hpw EEG FSp-¡m-\p-ff kwhn-[m\hpw B-Im-e-¯pv CÃm-bn-cp-¶tÃm [Q]  CÃm-bn-cp-¶p.   EEG Dt­m F\nbv¡p ]d-bm-\m-hnà  neurologist \p am{Xsa ]d-bm³ Ign-bp.v [A] “Dr. sâXmbn ]d-bp¶ Hcp `mK¯pw patient \pv EEG FSp-¯-Xmbn¸d-ªn-«oà [Q] Rm³ advice sNbvXn-«nà AsX¡p-dn¨p decide sNt¿­Xv Neurologist   BWp"EEGv  bpsS result sâ benefit        s\ Ipdn¨p F\n-¡p-]-d-bm³ Ign-bn-Ô.  Ext. D1 page 25A\p-k-cn¨p ASp¯ Znhkw FSp¯ C.T. scan{]Imcw patient  sâ brain \p Hcp vdamageDw Df-f-Xmbn  ImWp-¶nà F¶mWv  ]d-ªn-cn-¡p-¶-Xpv  [Q] Radiologist sâ  reportA\p-k-cn¨p A§-s\-bm-Wpv ImWp-¶-Xpv  A.  “:Cu C.T. scan  report  brain damage  Cà F¶v \n§Ä a\;-]qÀÆw FgpXn hm§n-b-Xtà [Q]Aà [A] Brain damage  kw`-hn¨ hnhcw Xm¦Ä DÄs¸-sS-bp-ff doctors  patient  sâ relatives  \n¶pw a\;-]qÀÆw ad¨p-h-¨-XtÃ[Q]  Aà [A]  On going through the deposition of DW.2 [opp.party 4] we can see that according to him the damages caused to the brain of the patient has been diagnosed before the date of discharge.  But at the same time in the  refer report it is stated as ‘  Neurological status could not be assessed.”  At this juncture the argument put forward by the learned counsel for the complainant that the above statement in refer report alone is sufficient  proof to  discredit  the whole story of the opp.parties that they have  detected  the damage caused to the  brain and proper medical  attention was given,   assumes more importance.  Complainant has also  a case that in CT scan report obtained by the opp.parties also damage caused to the brain are suppressed.   DW.2 would swear before the Forum that “Refer report 1^st page   neurological status could  not be assessed F¶m-WtÃm  ]d-ªn-cn-¡p-¶Xp [Q] AsX [A]  21 þ#w XobXn¡Iw Ft¸m-sg-¦nepw patient\v  brain damage  kw`-hn-¨-Xmbn At§bv¡v a\-Ên-emtbm [Q] a\-Ên-embn [A] O.P. Hospital  C.T. scan Cà  I.C unit Dff  Ambulance Dw CÃ.   25-þmw  page  [Ext. D1]  brain condition normal F¶mWv Fgp-Xn-bn-c#n¡p-¶Xv pulmonary embolism  tFXp  ka-b¯pv tFXp `mK¯p cq]-s¸«p F¶v ]d-ªn-«nÃtÃm [Q] CÃ[A]   Ext. D1 1^st page  Insta speciality Lab  Fsâ  `mcy Pathologist  Bbn tPmen-sN¿p¶p  C§-s\-bp-ff Hcp  specimen report \n§-fpw -\n-§-fpsS `mc-ybpw tNÀ¶p IrXn-a-ambn D­m-¡n-b-Xtà [Q] Aà [A]

          At this juncture the deposition of DW.3 also assumes  much importance.   It is true  that  she has deposed about the treatment  given to the patient after the brain injury.  But  the way in which she gave answers is to be looked into .  She would swear before the Forum that “ Sn   patient Ct¸mgpw ]qÀ®- Btcm-K-y-ap-ff Hcp lrZ-b-hp-ambn Ign-bp¶p F¶p Adn-bptam   [Q]      Ad-nbnÃ, At\-z-jn-¨n-«p-anÃ[A]      Affidavit – 17-#w  para bn  C.T. brain taken on that day was within normal limits F¶p-]-d-ªn-«p-­pv   icn-bmWpv  patient  þsâ brain  \v   Hypoxia  aqew damage ]än F¶v  ]ntä¶v a\-Ên-embn   Ext.P1   patient \pvbrain damage  Df-f-Xmbn ]d-ªn-«pt­m   {Q]  D­pv{A]    So according to her on the next day  she knew that the patient has sustained damage to his brain and she has referred the patient to the neurologist and what is done by neurologists is mentioned in page 41  of Ext. D1    But in page No.41 of  Ext. D1 there is only some scribbling.   When a question was put to her regarding whether she has informed the situation of the patient to the bystanders, her answer is quite surprising “  patient s\  Amritha hospital  sIm­p-t]m-Ip-¶-Xn\p ap³]pv Ft¸m-sg-¦nepw    patient \pv kw`-hn¨  Cardiac Arrests\tbm    Brain damage s\tbm kw_-Ôn-¨vp Fs´-¦nepw tcJ-IÄ  hospital  \nt¶m,  Xm¦-tfm,  patient sâ by- standers \v sImSpt¯m  {Q]   patient sâ By standers  Bh-i-y-s¸-«n-«n-Ã.  sImSp-¯n«pw Cà {A] .  So also another question was  put to her regarding the referral of the patient to another hospital.  Her answer is “ surgery   bpsS ]ntä Znhkw  brain damage  D­mbn F¶p a\-Ên-em¡nb tijw Hcp  expert hospital tebv¡p   patient s\ refersN¿-W-sa¶v tXm¶ntbm [Q]  AXnsâ Bh-iyw D­m-bn-cp-¶nÃ[A]     Further according to the expert witness DW.4  the damage caused to the brain on the 14^th in the operation table because of the oxygen deficiency is minimal.   Further according  to the expert witness DW.4  it is common knowledge that when a patient sustained cardiac arrest he shall suspect a consequent brain damage.   Why this  has not been suspected or rather suppressed in this case?     No evidence.  So also  according to DW.4  it is not seen any where in the case sheet that any test has been conducted by the opp.parties  to ascertain whether the patient had sustained any brain damage.   Following the above discussion we have no hesitation to hold that there is quite imperfection, shortcoming and inadequacy in the quality, nature and manner of performance which is required to be maintained has not been performed and thereby they are guilty of  grave negligence.

          It is argued by the learned counsel appearing for the opp.parties that in this case the complainant alone entered the box and neither  examined any expert witness  nor doctors subsequently treated at Amritha Hospital  to prove negligence, but on the other hand the opp.parties have examined an independent expert witness DW.4. Hon’ble Supreme Court in  Martin FD’ Sonza’s  case [2009 NCJ 193 [SC] held that “To determine medical negligence, matter should be  referred to specialist in related field to ascertain whether there appears to be any substance in the allegations.  Hon’ble Supreme Court has now in K. Krishna Rao V/s. Nikhil Super specialty hospital and another [2010 Scc. 513] held that “Expert opinion is required only  when a case is complicated enough warranting expert opinion or facts of a case are such that Forum cannot resolve an issue without experts assistance.”  In the case on hand also according to us even without experts assistance the issue involved in the case can be resolved.  Moreover, opp.party examined DW.4 expert and the complainant can also rely on his evidence. So it cannot be treated as fatal to complainant’s case.  Non – examination of subsequently treated doctors at Amritha Hospital is also not fatal according to us as far as the facts and circumstances of this case is concerned.  Even though opp.parties are fully aware that the brain of the patient is damaged the patient was retained in the opp.party hospital for days together [from 14.10.2002 to 21.10.2002] without  referring him to a better hospital for  availing better treatment for the damages caused to the brain and without intimating his relatives.  It is in evidence that better  neurological treatment are available in various hospitals in Kerala and there was well equipped ambulance service for taking patient with any kind of serious  ailments.  If the patient was referred  at that   golden hours the damage to the brain could have been minimized.  It is nothing  but the   negligence and deficiency in service on the part of the opp.parties  Following the above discussion we have no hesitation to hold that opp.parties failed to act with reasonable care and caution and that there is negligence and deficiency in service on the side of the opp.parties.

          In this case the complainant has claimed compensation to the tune of Rs.18,92,000/-, towards expenses incurred by the complainant by way of medical and surgical charges in 1^st opp.party hospital and thereafter towards future costs of treatment, Elaborate medical support systems, Medicines and constant medical attention, towards compensation on account of loss in future earnings towards  untold mental agony to complainant, towards loss of   active life etc.   Considering the facts and circumstances of this case medical bills produced, treatment taken, pain and suffering  mental agony to complainant loss of family life etc.  she is entitled to get more than claimed.  But we are limiting the same to Rs.15,00,000/-.  The 1^st and 2^nd opp.parties are the masters of the opp.parties 3 to 6  and therefore  are vicariously responsible for their act of negligence.  The opp.parties are therefore jointly and severally liable to pay the amount.

          In the  result, the complaint is allowed in part.   The opp.parties are directed to pay the complainant a sum of Rs.15,00,000/- [Rupees fifteen lakhs]  and cost  Rs.10,000/- .  The order is to be complied with within one month from the date of this order failing which interest @ 12% per annum will be paid on the above sum.

          Dated this the 17^th day of July 2012.

.

I n d e x

List of witnesses for the complainant

PW.1. -   Edna Chesterfield

List of documents for the complainant

P1. – Medical report from Bishop Benziger Hospital, Kollam.

P2. – Discharge summary  from Amritha Hospital, Ernakulam

P3. – Discharge summary from Sankers Hospital, Kollam.  

P4. – Chelan dated 22.4.2002

P5. – Chellan dated 2.5.2003

P6. – Chellan dated 20.8.2001

P7. – Receipt for Rs.74,700/- dated 7.10.2004

P8. – Certificate issued by Dr. M.A. Suveen of Janatha Physiotherapy Clinic
P9. – Certificate issued from Sanker’s Hospital, Kollam dt. 8.10.2004

P10. – Receipt for Rs.1,76,078/- dated 16.7.2003 

P11. – Discharged bill for Rs.1,76,078/- dt. 25.5.2003

P12. – Tomography examination result and report dt. 21.10.2002

P13. – series Bills from Benzigar Hospital, Kollam for Rs.29,947/-

P14. – series bills from Holy Cross Hospital, Kottiyam for Rs.3,906/-

P15. – series bills from Amritha Hospital, Ernakulam for Rs.35,911/-

P16. – series bills from Sanker’s Hospital, Kollam  for a sum of Rs.20,31,416/-

P17. – series  Medical bills  Rs. 23,920/-   

List of witnesses for the opp.parties

DW.1. – Dr. Aneesh Cheriyan

DW.2. – Dr. George Varkey

DW.3. – Dr. Raichel Daniel

DW.4. -  Dr. Vijayaraghavan         

List of documents for the opp.parties

D1. – Case file of Bishop Benzigar Hospital, Kollam