SMT. RAVI SUSHA  : PRESIDENT

      This complaint filed U/S 12 of Consumer Protection Act 1986  relates to unexpected coma stage happened to Mrs.Janu W/o 1^st complainant, aged 50 years following cardiac arrest after administering spinal Anesthesia for surgery on 16/3/2013 on the operating table of operation theatre under the super vision of 1^st opposite party Orthopedic surgeon Dr.M.P.Dhanapalan at 4^th OP hospital.  Complainant also alleged of medical negligence and deficiency of service resulting to the coma stage of Mrs.Janu.  The 1^st OP Dr.M.P.Dhanapalan is a Ortho Surgeon, 2^nd OP Dr.Arun Kumar is the Anesthetist, 3^rd OP Dr.K.P.A Siddique Medical Superintendent of  Indira Gandhi Co-operative Hospital,Thalassery and 4^th OP Mr.V.K.Divakaran is the Managing Director of  Indira Gandhi Co-operative Hospital .  OPs 1&2 were being worked in 4^th OP Hospital in their respective fields.

      The case of the complainants  is that the wife of 1^st complainant, Koodakkal  Janu was admitted to 4^th OP hospital on 13/3/2013 following a fall on her home and sustained injury on her left knee and admitted there as an in patient.  1^st OP examined the patient and X-ray was taken  and informed the  1^st complainant  that there was dislocation of knee cap and her left leg can be put in plaster for the time being and after 3 days a small operation was to be conducted  on her left leg and can be cured.  Believing the assurance made on the part of 1^st OP, the complainant agreed for the treatment.  It is submitted that the wife of the complainant was healthy in all respect except her pain on her left leg due to the fall.  She was never consulted for any other illness and  not suffered any heart problem till that date.  The operation was fixed on 16/3/2013, in the evening of 15/3/2013 the 2^nd OP visited the patient  and informed that anesthesia would be given in the morning of 16/3/2013. .  On 16/3/2013 morning the patient  Janu was taken  to operation theatre for  operation  for her leg.  Around 10.a.m 1^st OP came out of the  operation theatre and informed the complainant’s and neighbors that there was some problem in anesthesia and  the patient developed complications following the  anesthesia and operation could not be conducted. Then another consent form also got signed by complainants Sajesh and Biju and informed that the patient was unconscious  and removed to ventilator.  After 20 minutes 1^st OP again came out of the operation theatre and informed the complainants to take the patient to another hospital for further treatment, considering the complications. Then the complainant to take her to Pariyaram Medical College.  Then the 1^st OP objected to it and suggested  that since ambulance with ventilator facility was not available, take the patient to Baby Memorial Hospital Kozhikode tomorrow morning and he has arranged everything  for the same.  There was no other option  available to complainant except to heed to his demand.  Thereafter the patient was admitted to BMH Kozhikode on 17/3/2013 only and put in ventilator.  When the doctor at BMH  informed the complainant that an ECG was entrusted with him from 4^th OP hospital  saying that the patient had treated for heart problem earlier.  Actually it was not correct and she had not treated for heart disease earlier.  It was for the  first time she developed such complications.  It is submitted that the OPs concocted false  documents to misled the doctors at BMH,Kozhikode and save the  liability of doctors who treated at 4^th OP hospital.  She was treated for 38 days at BMH,Kozhikode and was in ventilator for that period  spent Rs.8 lakhs.  Thereafter the patient was taken to Vellore CMC Medical  college for expert treatment.  The complainant has to spent Rs.9lakhs there, for her treatment.  Complainant submitted that there was carelessness and negligence on the part of  OPs in the treatment  of Janu.  The said unfortunate incident was happened only because of their negligence.  The OPs should have checked her ECG variation if any before scheduling the operation.  If any such chance for complications was informed, the complainant would not have consented  for operation.  All these complications were  caused due to the mal administration of anesthesia drugs without considering the health of patient by 2^nd OP.  1^st OP has not taken necessary care and  caution in the operation scheduled to  conduct  on the patient.  3^rd OP took over al charge on other OPs and concocted documents to prove that they are not negligent in treating the  patient. Even after the  incident instead of saving the life of patient, they have not tried to give better treatment immediately by approaching higher centre.  There is inordinate delay in  approaching higher centre, tried to make things to protect themselves and hide their faults. Due to the deficiency in service on the part of OPs the patient suffered much and  became unconscious and bed ridden and the complainants lost happy family life.  Hence this complaint.

          The Opposite parties 1,2 and 4 filed their version jointly and denied all the allegations of the complainant.  It is contended that there is no negligence or deficiency in service as alleged by the complainant  and he is not entitled to get any relief as prayed for  the complaint  It is submitted that the complainant’s wife Janu was brought to the 4^th OP hospital around 4.30 p.m on 13/3/2013 with history of injury due to fall at her home.  X-ray examination revealed inter-condylar fracture of lower  end of her left femur,  under all aseptic care the 1^st OP put the affected limb in an above knee POP slab immobilization.  As per the nature of fracture revealed on radiological  assessment,  the patient required surgery for fracture fixation, chances for mal union and non-union were more with  conservative treatment.  The relative were well informed about the  nature of fracture and its required surgical treatment for fracture fixation and they agreed and consented for surgery.  1^st OP advised  necessary pre-operative investigations  and physicians consultation for assessment of fitness for surgery.  Blood investigations were found normal and since the physician noticed lateral wall ischemic  changes as per ECG, the patient was examined by cardiologist Dr.Venkitesh D.M and conducted Echo cardiogram and gave fitness of surgery.  On the basis of pre-operative evaluation the surgery was posted  to 16/3/2013. Further on the previous day of surgery 2^nd OP Anesthetist had seen the patient for pre-anesthetic checkup.  In view of her old age and  ECG changes 1^st and 2^nd OPs had informed the patient and her relatives about ECG findings and involved risk factors and a high risk written informed consent was taken from the complainant before proceeding with surgery.  The patient as well as the complainant voluntarily  gave  written informed consent after fully knowing about all the pros and cons  of surgery including  the risk factors and surgery was posted  to 16/3/2013.  Further contended that the patient was taken to operation theatre and under all  aseptic care and precautions, the   2^nd OP  had administered spinal anesthesia in strict regard to accepted medical practice. After adequate pre-loading  with  IV fluids spinal anesthesia with 2.5 ml of 0.5% bupivacaine was administered at 6.30 a.m.  Repeated and regular monitoring of   BP,  heart rate, SPO2 and ECG showed within normal limits there was  no unexpected BP fall or heart rate variation. After stabilization of the spinal level, the patient was positioned supine and fractured limb elevated and scrubbed by way of preparation.  The entire procedure of process of preparation  and positioning from the time of  administration of anesthesia took about one hour  the patients BP,  heart rate, SPO2 and ECG maintained within normal limits.  When the  1^st OP was about to start the surgical procedure  at around 7.20 a.m, the patient  suddenly developed brady cardia and went  into  cardiac arrest.   Heart rate dropped  to 30-35 beat per minute and pulse volume dropped.  Immediately  IV Atropine 0.6 mg and IV Mephentaramine 3 mg were administered.  The 2^nd OP had intubated the patient and connected to ventilator.  Cardiac  compression was given as part of cardio pulmonary resuscitation.  Defebrillator  was connected and shocks were given along with supportive medication.  Adrenalin, Dexamethasone and Dopamine infusion were given and the patient was managed with the help of physician and other OT staff trained in CPR procedure.  The patient was revived to normal sinus rhythm after third shock.  Following return of NSR the patient  was given IV manitol, IV sodabicarbonate 1 amp.  By timely resuscitation pulse, BP and oxygen saturation  were restored  back to normal.  Surgery was abandoned and above knee slab was re-applied.  The patient was electively ventilated and kept under observation in operation theatre for 2 hours.  Once the patient attained hemodynamic stability she was shifted to cardiac ICU and continued ventilator support.   The sudden occurrence of cardiac arrest was intimated to the patient’s relatives.  The  patient was closely monitored and supportive care as per standard protocol was given under the care of the cardiologist and neurologist.  On 17/3/2013 the patient was shifted to Baby Memorial Hospital  for further management in an ambulance with ICU support.  ECG reports  taken as part of pre operative evaluation were handed over to the patient’s bystanders. All precautions  were taken in the administration of anesthesia and the patient went  into cardio respiratory arrest due to factors beyond the control of the OPs. The allegation that anesthesia  was administered and operation was conducted without ascertaining patient’s fitness by conducting proper clinical examination and laboratory investigations is unfounded and unsustainable and hence denied. Further allegation that anesthesia was not given to the patient in appropriate dosage is not tenable or sustainable and hence denied.  The 1^st OP did not conduct surgery as the patient went into cardiac arrest before starting surgery and the allegation that the 1st OP had shown carelessness  without taking precautions before surgery is not correct.  The  allegation that the 3^rd OP conspired together with 1^st OP and forged medical records of the patient and made her condition worse is   highly ill motivated  and hence denied.  Ops 1&2 are well qualified and sufficiently experienced in  their fields and  the allegations that the 4^th OP deputed unqualified, inexperienced and incompetent doctors for treatment of the patient rendering her condition deathly is highly ill motivated and hence denied. The OPs  have treated the patient with all reasonable degree of skill and care expected  from qualified and experienced medical practitioners in an identical situation.  There is no fault or failure, negligence or deficiency in service on the part of OPs.  Hence prayed for the dismissal of the complaint.

      During pendency of the complaint, the 1^st complainant Azheekoden Nanu died and his legal representatives were impleaded as additional complainants 2 to 5 vide order in IA 213/2022 dtd.30/9/2022.  Additional complainants filed vakalath and proceeded the case in further.

   On behalf of complainants, 2 PWs were examined  including the 1^st complainant as PW1 and one nursing staff of 4^th OP hospital Mr.Anish.K as PW2.  Documents Exts.A1 to A7 and Ext.X1&X2 series.  Ext.X1 is the Disability certificate issued by Govt.Medical College Hospital Kozhikode and Ext.X2 series are the original case sheets(4 in Nos.) of 4^th OP hospital pertaining to the subsequent  treatment availed by the patient Mrs.Janu after the treatment from Christian Medical College Hospital Vellore from 14/8/2013 to 16/12/2013.  On behalf  of OPs, OPs 1&2 have filed their evidence on  affidavit and were examined as  DWs 1&2 and marked photo copy of case sheet(since the original was seized by police  officials) pertaining to the treatment availed by the patient from 4^th OP hospital and Baby Memorial Hospital, Calicut.  After that the learned counsels of parties have filed their respective written arguments with citation of case laws.

   Main argument of the complainants were based on the failure of the Anesthetist in administering anesthesia drugs without considering the health of the patient by 2^nd OP injury caused to the patient will be cured without surgery, application of  Res-Ipsa Loquiture  and compensation etc.  OPs raised contentions, that X-ray examination of the patient revealed inter-condylar fracture of lower  end of her left femur, hence patient required surgery for fracture fixation, chances for mal union and non-union were more with  conservative treatment.  The relative were well informed about the  nature of fracture and its required surgical treatment for fracture fixation and they agreed and consented for surgery.  1^st OP advised  necessary pre-operative investigations  and physicians consultation for assessment of fitness for surgery.  Blood investigations were found normal and since the physician noticed lateral wall ischemic  changes as per ECG, the patient was examined by cardiologist and conducted Echo cardiogram and gave fitness of surgery.  Further on the previous day of surgery 2^nd OP Anesthetist had seen the patient for pre-anesthetic checkup.  Further contended that in view of ECG changes 1^st and 2^nd OPs had informed the patient and her relatives about ECG findings and involved risk factors and a high risk written informed consent was taken from the complainant before proceeding with surgery.  The patient as well as the complainant voluntarily  gave  written informed consent after fully knowing about all the pros and cons  of surgery including  the risk factors.  Further submitted that 2^nd OP  had administered spinal anesthesia on the surgery date 16/3/2013 at 6.30 A.M at the operation theatre after adequate pre-loading  with  IV fluid spinal anesthesia with 2.5 ml of 0.5% bupivacaine  .  According to OPs the patients BP,  heart rate, SPO2 and ECG showed within normal limits about one hour after administration of anesthesia.  Further when the  1^st OP was about to start the surgical procedure  at around 7.20 a.m, the patient  suddenly developed brady cardia and went  into  cardiac arrest.  Then also all resuscitative measures including  medicines were taken  up and the same was brought to the notice of the complainant and referred to higher centre with all connected reports were handed over to the complainant  .

   In the light of the documents available on record, evidence adduced by the parties and also the submissions of the learned counsels appearing for the parties, the commission is to examine as to whether there was medical negligence amounting to deficiency of service on the part of the OPs and in order to determine the above , the following points are made.

1. Whether the consent obtained by the OPs from the 1^st complainant or relatives of the patient was an informed and valid consent, as required by law or not?
2. Whether there was mal administration of anesthesia drugs by the Anesthetist is deficiency of service or not?
3. Whether doctrine of Res-Ipsa-Loquitur is applicable in the facts and circumstances of the case?
4. Burden of proof?

Point No.1:    According to OPs as per the nature of fracture  revealed on X-ray the patient required surgery for fracture fixation chances for mal union and non union  were more  with conservative treatment.  The relatives were well informed  about the nature of  fracture  and its required surgical treatment for fracture fixation and they agreed  and consented for surgery.  On the other hand complainant has stated that 1^st OP after examination of X-ray  of fracture site, informed the complainant that there was dislocation of knee cap and her left leg can be put in plaster for the time being and after 3 days a small operation was to be conducted on her left leg and can be  cured .  Believing the assurance made on the part of 1^st OP, the complainant agreed for the treatment.  Further OPs contended that in view of ECG changes OPs 1&2 had informed the patient and her relatives  about ECG findings and involved risk factors and a high risk written  informed consent was taken from the  complainant  before proceeding with surgery. The patient as well as complainant  voluntarily  gave written  informed  consent after fully knowing about all the pros and cons of surgery including  the risk factors and surgery was posted to 16/3/2013.  With regard to this contention, complainant’s averment is that the patient Janu had never suffered any heart problem till the incident date  and further OP has fixed the surgery on 16/3/2013 and in the evening of 15/3/2013 the nurses obtained signature of 1^st complainant in the consent form.  Complainant further stated that 1^st OP could have informed about the risk factors of surgery to him before conducting surgery.  In the chief affidavit of OPs, both OPs have stated that they obtained a high risk written informed consent was taken from the complainant before proceeding  with surgery in view  of her old age and ECG changes.  Complainant in his chief affidavit stated that if 1^st OP informed about the risk factors, he would have given consent for the surgery.  From the statement of OPs and complainant, it is to be found out whether informed consent was obtained by the OP doctors before fixing surgery and conducting surgery.  During cross-examination the counsel of OP put a definite question to the 1^st complainant(PW!) in page 4  ഓപ്റേഷന് മുൻപ് ഓപ്റേഷൻ വഴി ഉണ്ടാകാവുന്ന ബുദ്ധിമുട്ടുകളെകുറിച്ച് OPs നിങ്ങളോട് പറഞ്ഞ് ബോധ്യപ്പെടുത്തിയിരുന്നു എന്നു പറഞ്ഞാൽ(Ans.) ശരിയല്ല .

   It is well established that the physician must seek and secure his patient’s consent before commencing an operation or other course of treatment.  This means that the doctor should disclose the nature and procedure of the treatment and outline of the substantial risk.

   Complainant in his complaint, chief affidavit  and also during cross- examination, categorically stated that the risk factors  in the surgery was not  informed to him prior to conduct the surgery.  According to complainant on 16/3/2013 morning the patient  Janu was taken  to operation theatre for  operation  for her leg.  Around 10.a.m 1^st OP came out of the  operation theatre and informed the complainant’s and neighbors that there was some problem in anesthesia and  the patient developed complications following the  anesthesia and operation could not be conducted. Then another consent form also got signed by complainants Sajesh and Biju and informed that the patient was unconscious  and removed to ventilator.  After 20 minutes 1^st OP again came out of the operation theatre and informed the complainants to take the patient to another hospital for further treatment, considering the complications.

   Here as far as complainants are concerned, believing the assurance made on the part of 1^st OP, that a small operation was to be conducted on the leg of the patient, the patient and her relatives were uninformed about the  complication prior to  the surgery and while the patient was in the theatre.  It is not possible for the complainants to know what had actually happened in the operation theatre though something wrong had happened in the operation theatre resulting into the complication ad becoming the unconscious condition of the patient on the  operation  table of the operation theatre.  In such circumstances, the burden is on the hospital 4^th OP and the doctors concerned OPs 1&2 to say that there was no negligence involved in giving anesthesia or in the treatment and  an informed and valid consent was obtained.

   It is seen that no such written consent letter either of the patient or complainants has been produced by the OPs to prove their contention with regard to obtaining  consent letter after informed risk in the surgery and about variation in ECG. Complainant’s have stated that the patient had no previous  history of cardiac problem and had not  availed any such treatment.  In Baby Memorial Hospital from  where she obtained subsequent treatment, the case record shows that, she had no history of ‘CAD’.

   From the facts as stated above, we are of the opinion that no valid or informed consent was obtained by the OPs at any point of time after informing the high risk factors or about the variation in the ECG wither to the patient or to the complainant.  Such action of the OPs are negligence amounting to deficiency of service.  The 1^st Point is found accordingly.

   Point No.2:

    Dr.Arunkumar, Anesthetist has stated  that he is having qualification of MBB,MD(Anesthesia) with experience of 15 years as an Anesthetist at the time of consultation of Mrs.Janu.  He has not submitted his qualification certificate before the commission.  He has been examined as DW2 before the  commission.  He has mentioned  in his cross-examination that he had obtained high risk informed consent from the complainant.  He has also stated that after giving anesthesia(one hour) patient developed cardiac arrest.  In the chief  affidavit he has stated about the dose and medicine given to the patient  ie after adequate preloading with IV fluids spinal anesthesia with 2.5ml of  anesthesia with 2.5 ml of 0.5% bupivacaine was administered at 6.30 A.M and he claimed to  have done the necessary regular monitoring of BP, heart rate, SPO2 and ECG and also claimed that no unexpected BP  fall or heart rate variation  but no record  of giving pre-anesthetic check up nor any record/note for monitoring  were produced before the commission to substantiate and corroborate his version.  It is not seen  in the case record the dosage and name of anesthetic medicine given to the patient  as contended by 2^nd OP.  Further 2^nd OP has stated that about one hour after administering the spinal anesthesia the patient’s BP,  heart rate, SPO2 and ECG maintained within normal limits and when  1^st OP was about to start the surgical procedure  at around 7.20 a.m, the patient  suddenly developed brady cardia and went  into  cardiac arrest.   But no record to substantiate the said contention also not produced before the commission.  In the case record it is stated that at 7.35 A.M, call attendant(OT) the patient had a cardio respiratory arrest. CPR started and COETT(alread)  Heart rate and rhythm already regained. Put on ventilator.  The aid record and non mentioning of time of cardio respiratory arrest, presume that cardio respiratory arrest might have happened prior to 7.20.A.M.

   In the complaint and in chief affidavit, complainant has stated that the complication were caused due to the mal-administration  of anesthesia drug.  According to complainant the 2^nd OP had not given proper dosage of anesthetic medicine  to the  patient.  During cross examination the counsel of  OPs put a question to PW1 “  അനസ്ത്യേഷ്യ അളവ് കൂടിയതാണ് പ്രശ്നത്തിന് കാരണം എന്ന്  ഞാൻ ഊഹിച്ച് പറഞ്ഞതാണ് “.  The learned  counsel argued that it is a vital part of evidence.  Further stated that the  allegation in not based on scientific facts despite based on apprehensions.

   Here we are of the opinion that the complainant cannot be blamed for giving such an  answer because 2^nd OP the Aesthetic medicine  and its dosage in the case record as claimed by him in his version as well as  in chief  affidavit.  Moreover in all medical records issued from the higher medical centres that after spinal anaesthesia, the patient developed cardiac arrest.  In this situation it is for the hospital or the doctor concerned to discharge the burden of proving that no negligence was committed and all possible case was taken prior to or during the operation.  In the absence of production of record stating that the name and dosage of medicine or monitoring note, it is not possible for us to accept the statement given  by Anesthetise and this  non-production of record monitoring note would justify for us to draw adverse inference against the OPs, therefore, we are of the  opinion that the OP hospital  and the 2^nd OP Anaesthetist have failed to discharge their burden and as such  there is negligence  amounting deficiency in service.  Thus the point No.2 also found against the opposite parties.

Point No.3:

   This is a case where the doctrine of Res-Ipsa-Loquitur  is applicable  considering the consequence of events, inability to find  out the exact cause of cardiac arrest leading to  Hypoxic Ischemic Encephalopathy, impossibility of the  complainant to know  what had happened inside the operation theatre , cardiac arrest of the patient taking place on the operating table.  OP’s contention   is that during pre-operation  investigation, the blood investigations were found within normal limits and the physician noticed lateral wall ischemic changes  as per ECG and advised  cardiac consultation.  Further cardiologist had conducted Echo cardiogram.  According to OP considering the ECG changes and old age, conducting surgery involved risk factors and a high risk written informed consent was taken from complainant(not produced).  Further contended that after administering spinal anaesthesia on regular monitoring of BP, heart rate,SPO2 and ECG showed within normal limits.  Further in discharge summary of BMH, it is mentioned that No h/o CAD.

   In such circumstances, only the facts speak for themselves and tell their own  story” are the ingredients of the doctrine of Res ipsa Loquitor.  If the cause of the incident   is unknown and no reasonable explanation as to the cause is coming forth from the OPs.  Further in the case record Ext.B1 in discharge summary given  for shifting to CMC Vellore, it is seen recorded that HOP 1: complaints of fall at home and  sustaining condylar fracture left femur for which she was admitted to Indira Gandhi Co-operative Hospital(OP) and was planned for surgical reduction on 16/3/2013.  After spinal anaesthesia  she developed cardiac arrest and she was resuscitated .  She developed one episode of GTCS after that IVo h/o DM HTN,CAD or seizures.  O/E on conscious, afebrile, on ET tube with Ambu bag ventilation.  Diagnosis:- HP/POXIC Inschaemic Brain injury(on tracheotomy) cardiac arrest surviver, fracture condyle left femur.  PC: un consciousness following cardiac arrest on 17/3/2013.  Fall and fracture of condyle of left femur-3 days back.

In the discussion portion: It is stated that ECG was normal and Echodone from outside showed good LV contractility.  Her routine blood investigations done here showed polymorph nuclear leukocytosis.  LF+ and RFT were normal.  Consultant cardiologist saw her, who after doing an Echo ruled out any thrombus or dilatation  of heart chambers.  Also stated that as she would have required prolonged  ventilator support, tracheotomy  was done on 20/3/2013.  DW2 Anaesthetist also deposed that as per history of patient was not a heart patient.  DW1 deposed in page No.3 that after giving anaesthesia, the patient developed complication?(Ans:) Yes- after 45 minutes to an hour also.

      Here the facts regarding the patient was taken for surgery and the administration of spinal anaesthesia are not in dispute.  It is also not in dispute that cardiac arrest happened after giving anaesthesia while the patient was in operation  theatre.  It was under these  circumstances the principle of Res ipsa loquitur against OPs 1&2 was fully proved since the OPs 1&2 themselves have admitted to the above facts.  Here no credible evidence has been produced by the OPs that they had taken due precautions during the administration  of  anaesthesia and after that regular monitoring of BP,ECG etc were noted.(lack of monitoring note in the case record.)

       Therefore, based upon Ext.X2, Ext.B1,  we are constrained to hold OPs 1&2 also should have committed deficiency in  service.

   The learned counsel of OPs submitted that based on the complaint filed by the complainant before the police, the police obtained report from District level Committee wherein the experts opinioned that there was no negligence.  The complainant challenged the said old and the state level committee considered the matter again and up held the decision of the District level committee.

   We can see that that DW1 deposed that in page 4 that the statement in the Medical Board committee is correct.  Further added that “ what I meant was criminal Medical negligence”.  There is decisions of Apex court that the observations in District level as well as state level Expert committee were limited only  with regard to the prosecution of Doctors for the offence under Sec.304 A, IPC.  In view of the decisions of Apex court, the expert opinion of any doctor or board should not be taken  as a  decision making factor of a Medical negligence case filed under Sec.12 of Consumer Protection Act.

   The learned counsel of OPs submitted certain citation of apex court in argument note and judgements produced. In 2019(2) SCC 282, in AIR 2022 SC 204, to prove the negligence of a doctor the medical evidence of an expert in the field is required. 

   Considering the facts and circumstances of this case, the opposite parties,  hospital and  OP doctors failed to discharge their burden to prove that there was no negligence involved in giving anaesthesia and  an informed and valid consent was obtained.  A doctor  has to seek and secure the consent of the patient before commencing a ‘treatment’ or surgery’.  The consent so obtained should be  real and valid, which means that the patient should have the capacity and competence to consent, his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows  what he is consenting to’’.  Here PW1 categorically deposed that OPs have not informed about the risk factors in the surgery due to  variation  in ECG and others and neither complainant nor the patient given  high risk written informed consent.  Further 2^nd OP did not prove his qualification  and medical skill in Anaesthesiology.  Though in the case record  2^nd OP failed to note the name of anaesthesia medicine given to the patient and its quantity and monitoring note.  Further it is to be noted that OPs contended that immediately after cardiac arrest, they were administered IV Atropine 0.6mg and IV Mephentaramine  3mg(to keep the  heart beat normal to control high blood pressure after heart attack).  But  an analysing Ext.B1 case record P.20, no such IV injections were given to the patient.

   In such circumstances our  view that it is not necessary for the complainant to adduce expert evidence.

   Another decision Keshavaroa 2021(1)CPR (NC) 701 the Hon’ble National commission held “The unexpected cardiac arrest during spinal anaesthesia is rarely seen”.  Here OPs have failed to produce monitoring note and consent statement, name of medicine administered on  the patient, we cannot accept the above said decision and come to a conclusion that since cardiac arrest during spinal anaesthesia is rarely seen, there is no medical  negligence on the part of opposite parties.

   Further availing subsequent treatment from OP’s hospital after coming from Vellur CMC Hospital cannot be assumed that OP doctors can be exempted from negligence.

   In our considered view in the instant case the complications arised on the patient and unconscious state of the 1^st complainant’s wife Koodakkal Janu due to lack of proper care and negligence on the part of opposite party doctors and also of the  opposite party hospital.  Complainant submitted that after prolonged treatment the patient in this case  died.

   It is also requires to be noted here that the patient in the instant case was a house wife.  It is a fact that after the incident, the patient never came to a normal life till her death.  In such situation no amount of money can ever compensate the sudden loss of normal life of a house wife between the age of 34 to 59 as such who were active in life.

   In the instant case, we are of the view that there is negligent act on the part of  both of the treating  doctors and also the hospital attributing to the complication ie unconscious stage Hypoxic Ischemic  Brain injury kept in ventilator from 16/3/2013 to 29/3/2013 and  continued her basis needs completely with the help of dependent and availed treatment from  BMH Calicut, Vellur CMC Hospital and from 14/8/2013 till 16/12/2013 at 4^th OP hospital.  On consideration of the case, we are of the opinion that opposite parties Nos 1 to 4 are jointly and severally liable  for the  gross medical negligence  amounting to deficiency in service.  In the result complaint is allowed in part.  No evidence to show that complainant had spent Rs.9 lakhs at Vellur Hospital and Rs.8 lakhs at BMH,Calicut.

1. For the treatment expenses as per the medical bills                    Rs.2,23,571/-
2. For the physical damage, mental agony and hardship caused

to the patient JanuRs.5,00,000/-

3. For the mental agony and hardship caused to the complainants Rs.2,50,000/-
4. Cost o the proceedings of the complaint                                       Rs.25,000/-
5.  

          The awarded amount Rs.9,98,571/- shall be paid by the opposite parties  1 to 4  to the complainants within a period of one month from the date of receipt of this order.  In case of default of payment, the awarded amount  of Rs.9,98,571/- shall carry 9% interest from the date of order till realization .  Complainants can realize the awarded amount from the opposite parties 1 to 4 by filing execution application as per the provisions stated in Consumer Protection Act 2019.

Exts:

A1- Paper publication Daccan cronical daily

A2-Copy of the complaint to DMO Kannur

A3-Copy of  complaint to Human Rights Commission

A4-Reply of Ext.A3

A4- Prescriptions 59 Nos.

A6-Medical bills 158 Nos.

A7-Report of the police Superintendent to Kerala Human Rights Commission dtd.7/10/2013(subject to proof)

X1- Disability certificate MCH,Kozhikode

X2(series)- Case sheet   (in patient report) 4 in Nos.

B1- Discharge summary  issued by CMC Velloor

PW1-Nanu Azheekodan- Complainant   

PW2-Anish.K.-witnessness of complaianant

DW1-Dr.Dhanapalan.M.P-1^st OP

DW2- Dr.Arunkumar Kunhiraman- 2^nd OP

Sd/                                                                Sd/                                                                               Sd/

PRESIDENT                                  MEMBER                                           MEMBER

Ravi Susha                             Molykutty Mathew                                     Sajeesh K.P

eva                                                                  /forwarded by Order/

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