BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC.39 / 2001 TUESDAY THE 6th DAY OF JULY 2010. Mr. Arunachalam, No.54, Bankmen Colongy, Alemelurangapuram, Vellore – 9. . … Complainant. - Vs – M/s. Sandhya Hospital, Rep. by its Proprietor, Dr. Mrs. Sandhya Babu, Sandhya Hospital, No.88, Guruthope, Sathuvachari, Vellore – 9. … Opposite party. . . . . This petition coming on for final hearing before us on 15.6.2010, in the presence of Thiru. M. Sampathkumar, Advocate for the complainant and Thiru. T.L. Narayanan, Advocate for the opposite party and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant’s wife Mrs. Valarmathy, aged 42 years, had a consultation with the opposite party at the Hospital run by her in the name and style of Sandhya Hospital on 21.3.01 for the complainant’s wife abdominal ailment and for gynecological problem. Previously she had a consultation with the opposite party for the same problem on 10.8.00 also. On 21.3.01 the opposite party had examined her and advised that if she undergoes a surgery and get her uterus removed, all the gynecological problems would be solved once for all. At the time of consultation, the opposite party told the patient that opposite party were an expert in that type of surgery and no risk would be involved in that process. Believing the opposite party’s coaxing words the complainant’s wife was convinced and decided to remove the uterus. Then the opposite party fixed a date for surgery and advised the patient to admit in the opposite party’s hospital on 28.3.01 at 9.00 a.m. For doing surgery the opposite party have received a sum of Rs.6,000/- as advance for which they have not issued any receipt. After completion of pre-operative formalities she was taken to operation theatre on the same day by 1.40 p.m. While complainant and his relatives were waiting eagerly in front of the operation theatre the opposite party came out from the theater and said to the complainant that patient have had serious breathing problem in the middle of the surgery and the condition of the patient has became worsen. The opposite party referred the patient to the Christian Medical College and Hospital asked complainant to shift the patient to CMC and Hospital for further treatment. Then the patient was shifted to CMC and hospital by 4.55. p.m. after performing sub total hysterectomy surgery. In the CMC the patient was kept in SICU for ventilatory support and intensive monitoring. In spite of all ventilatory supports complainant’s wife died on 30.3.01 by 12.35 p.m. The complainant incurred nearly Rs.60,000/- as medical expenses in CMC Hospital. Before performing surgery the opposite party has not taken proper tests and even the opposite party did not care to examine/ assess the patient’s body condition properly and opposite party did not think it whether she is a fit person for surgery. Performed the surgery in a negligent and reckless manner and the service rendered by the opposite party was not only unsatisfactory but also deficient and the opposite party has adopted causal approach to a serious problem and played with the life of complainant’s wife. He has 2 daughters and 2 sons all are unmarried and all are below the age of 22 years. Now the children of the complainant lost their mother’s care and guidance. He issued a notice dt. 18.6.01 through his advocate to the opposite party. Having received the notice the opposite party has sent a letter dt. 21.6.01 to the complainant’s counsel. The complainant prayed for directing the opposite party to pay a sum of Rs.6000/- collected by her towards the surgery and to pay a sum of Rs.60,000/- the amount spend towards treatment and drugs at the CMC Hospital, Vellore, cremation expenses and etc and to pay a sum of Rs.4,25,000/- as damages for the mental agony, distress, hardship and etc., sustained by the complainant and to pay a sum of Rs.5000/- as cost of this complaint. 2. The averments in the counter filed by the opposite parties are as follows: The opposite party denies and repudiates all such averments in the complaint save such a those which are expressly admitted herein. The opposite party told the patient that she was an expert in that type of surgery and no risk would be involved in that process, is a blatant false hood. As per the practice adopted no fee is charged at the time of admission and surgery and upto discharge no money was paid by the complainant or his wife nor received by the opposite party. Only after the necessary and routine medical checkup the patient was accepted for surgery. Due to no fault of the opposite party or the Anesthetist the patient developed HYPO TENSION which is a sudden medical occurrence. Immediately revival measures were taken. Patient revived and the surgery was successfully competed. It is not true to state that the opposite party referred her to CMC Hospital, Vellore but the complainant got the patient discharged against medical advise, and removed her from the bed to the CMC Hospital, Vellore. The surgery was performed with all due care and caution and it is false to allege that the surgery was done in a negligent and reckless manner. It is absolutely baseless to allege that the opposite party adopted a casual approach and played with the life of the complainant’s wife. It is denied that the complainant is sick and bed ridden and also denied that he had spent a huge-heavy amount” in the CMC Hospital by way of medical and hospital expenses. The opposite party is not liable to pay any amount to the complainant as claimed, but is entitled to compensatory costs from the complainant for this false, malicious and vexatious complaint. The patient suffered hypotension shock during surgery which is a sudden unforeseen occurrence an inherent complication associated with all surgical procedures and immediately proper and prompt resuscitative procedures were undertaken and only after she completely revived surgery was completed successfully. Only after being fully appraised of the treatment proposed, the patient consented for the surgery, signing the declaration in the present of the complainant who duly attested the same. When she suddenly developed cardiac arrest, immediate steps were taken to revive her within seconds with cardiopulmonary resuscitation and intubated with endotracheal tube. Her pulse rate and blood pressure became normal and her breathing also became normal. As she need ventilatory support, the complainant was informed, who immediately decided to shift her to CMC Hospital. In fact the opposite party and the Anesthetist accompanied the complainant and the patient to the CMC hospital and were by her side till she was admitted in the intensive care unit, put on the respirator and settled well. The opposite party had throughout adopted standard prescribed medic 1 procedures and always exercised due and reasonable care and skill. The complaint is therefore without any merits and may be deservingly dismissed with costs not only on the normal scale but also u/s 26 of the C.P.Act with compensatory costs. 3. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite parties? b) Whether the complainant is entitled to the reliefs asked for?. 4. Ex.A1 to ExA6 were marked on the side of the complainant and Ex.B1 to Ex.B3 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. 5. POINT NO. (a):- It is admitted case of the parties that the complainant’s wife Mrs. Valarmathy visited the opposite party’s hospital with complaints of pain in the Lower Abdomen and back, Menorrhogia and congestive Dysmenorrhoea for the past three months. Dr. Mrs. Sandhya Babu examined the complainant with ultrasound which showed a uniform enlargement of the uterus and she has been having excessive bleeding and severe pain during her menstruation. The complainant’s wife decided to undergo hysterectomy on 28.3.01. Accordingly she admitted in the opposite party hospital on 28.3.01 morning. During the surgery the patient suffered hypotension shock and immediately proper and prompt resuscitative procedures were undertaken and only after she completely revived surgery was completed. She was shifted to CMC Hospital, on the same day at 4.55. p.m. for further treatment and she was died on 30.3.01 12.35 p.m. 6. The complainant contended that before performing surgery the opposite party has not taken proper tests and the opposite party did not examine or assess the patient whether she is a fit person for surgery. Performed the surgery in a negligent and reckless manner and the service rendered by the opposite party was not only unsatisfactory but also deficient and the opposite party has adopted causal approach to a serious problem and played with the life of complainant’s wife. If the opposite party exercised reasonable skill and care before performing the surgery complainant’s wife Mrs. Valarmathi, could not have died in the CMC, Hospital. Vellore. 7. The opposite party contended that Mrs. Valarmathi, suffered hypotension shock during the surgery which is a sudden unforeseen occurrence, an inherent complication associated with all surgical procedures and immediately proper and prompt resuscitative procedures were undertaken and only after she completely revived surgery was completed successfully. It is further contended that only after being fully appraised the treatment proposed, the patient consented for the surgery, signing the declaration in the present of the complainant who duly attested the same. When she suddenly developed cardiac arrest, immediate steps were taken to revive her within seconds with cardiopulmonary resuscitation and intubated with endotracheeal tube. Her pulse rate and blood pressure became normal and her breathing also became normal. She was shifted to CMC Hospital, with necessary artificial respiratory support and oxygen. Even when Mrs. Valarmathi suffered from the inherent risk of shock and the Anaesthetic who attend on Mrs. Valarmathy exercised reasonable care and sill and proved standard treatment procedures. Had she not adopted standard resuscitation procedure Mrs. Valarmathy would have expired in the operation theatre itself. There the opposite partly neither for any breach of duty nor for not exercising reasonable care and skill owned to the wife of the complainant. Therefore the opposite party is not liable to pay any kind of damages to the complainant. 8. From the perusal of Ex.B2, Doctor Sheet issued by the opposite party’s hospital, it is mentioned that the complainant’s wife Mrs. Valarmathi was admiited on 28.3.2001 at 9.45. a.m. with complaints of pain in the Lower Abdomen and back, Menorrhogia and congestive Dysmenorrhoea and severe pain O/E mild pallor B.P. 130/80 Plus – 88 / mm . No pedal edema CVS / 148 ABS: Tenderness in the suprapulic region At 10.15 a.m. Dr. K.Anandaraj, Anesthetist examined the patient and gave opinion that the patient, GC fair : not anemic. Pulse : 100 / mt BP `130/80 CVS : SIS, heard no added sounds. RS : RR. 20/wt normal verticular brath sound heard on both sides. Investigations reviewed GB 11.2.gm. R aodom blood sugar 100 mgs%. Ivea 20mg ECG – within normal limits x-ray chest P.A. - normal patient is fit for TAH at 10 a.m. Fit for surgery posted for TAH at 1.30 p.m. 9. The contention of the opposite party that Mrs. Valarmathi was given pre medication and taken to the operation Theatre for surgery at 2.00. p.m. She was given Spinal Anaesthesia by Dr. k. Anandaraj, and her Abdomen was opened and surgery was proceeded. After 15 minutes of Surgery patient developed, bradycardia (low heart rate) and hypotension (fall in BP). Hence I.V. fluids was administered at higher rate. Inj. Ephedrine, Inj. Atropine & Inj. Hydrocortisone was administered. As the patient developed Cardiac arrest, she was given Cardio-pulmonary resuscitation and intubated with endotracheal tube. Thereafter, cardiac function improved and 02 saturation was 100 %. Her pulse rate, and Blood Pressure came to normal and her breathing was normal. Subsequently surgery was proceeded and sub total hysterectomy was performed so as to save some time from Anaesthesia. As she needed ventiltory support, she shifted to CMC Hospital, Vellore for intensive care management. 10. From the perusal of Ex.A1 dt. 15.5.01 death summary of complainant’s wife, issued by the CMC Hospital, Vellore, it is mentioned that the complainant’s wife Mrs. Valarmathy, who was posted for total abdominal hysterectomy for fibroid uterus in a Private Hospital (Vellore) under spinal Anastasias on 28.3.01 at 2.00 pm. Had a cardia arrest on the table at around 2.30 p.m. she was resuscitated and intubated within 3-4 mins. She was shifted to CMCH by 4.55 p.m. after performing sub total hysterectomy. ON EXAMINATION : Patient was intubated. GCS: 25 / 15. Patient has mild pallor, mild pedal edema. BP. : 130/80 mmGh Pulse: 120/min. CVS: S1 S2 heard. No murmurs. Rs: Bilateral crepitations present. Pupils 3 mm bilaterally not reating to light. Urine out put – 1000 ml in the bag. CNS: Tone flaced, Reflexes bilaterally absent. Plantor no response. Impression: Hypoxic Encephalopathy. She was shifted to SICU for ventilatory support and intensive monitorying. She was started on antibiotics. She was started on ionotropic supports. She was given 2 pints of blood as her PCV was 25. There wa no intraabdominal bleeding On 29.3.01 The ionotropic supports were unwanted off, she was haemodynamically stable. She developed bloody suction from PT tube. On 30.3.01 she had cardiac arrest at 4.30 p.m – resuscitated and started on supports with Dopamine, Dobutamine and adrenaline. She continued to have blood stained secretion from ET tubes and PCV dropped to 23 for which pint of packed cells was given. She was not maintaining saturation on ventilation or on hand bagging. Deteriorating condition of the patient was explained to the relatives and patient was discharged at request. Patient had cardia arrest at 12.35 p.m and declared dead. Inspite of all ventilatory supports, patient died and a diagnosis of severe Hypoxic Encephalopathy was made. 11. On perusal of Ex.B2, Doctors Sheet, it is seen that during the surgery she suddenly developed cardiac arrest, immediate steps were taken to revive her within seconds with cardiopulmonary resuscitation and intubated with endotracheal tube. As she need ventilatorty support, immediately, she shifted to CMC Hospital, Vellore for intensive care management. On perusal of Ex.A1, death summary it is seen that when the patient admitted in the CMC Hospital on the same day at 4.55.p.m, the patient was intubated. B.P. 130/80 mmHg, Pulse : 120/min CVS: S1 S2 heard. No murmurs. RS: Bilateral crepitations present. Pupils output – 1000 ml in the bag. CNS. Tone flaced, reflexes bilaterally absent. Plator no response. Impression: Hypoxic Encephalopathy. Patient was shifted to SICU for ventilatory support and intensive monitoring. On 30.3.01 again she had cardiac arrest at 4.30 p.m. – resuscitated and started on supports with Dopamine. Again patient had cardiac arrest at 12.35. p.m. and declared dead. Therefore, it is clear that when Mrs. Valarmathi admitted in the CMC Hospital, Vellore she suffered 2nd time cardiac arrest on 30.3.01 at 4.30 p.m. 12. According to the complainant before performing the surgery, the opposite party has not taken proper tests and even the opposite party did not care to examine / assess the patient’s body condition properly. According to the opposite party when the complainant’s wife visited the opposite party’s hospital on 21.3.01, she was investigated with Ultrasound which showed a uniform enlargement of the uterus. She has been having excessive bleeding and severe pain during her menstruation. Hence to get total relief from the complaints, Mrs. Valarmathy was advised to undergo Hysterectomy on 28.3.01 and she was advised preliminary investigation. After the preliminary investigation the complainant’s wife was admitted in the opposite party’s hospital on 28.3.01 at 9.45 a.m. After examined the patient, Dr. Anadaraj, Anaesthetist gave opinion that she is fit, S.A./G.A-ASA 1. Her preoperative pulse was 80/Min regular and Blood pressure 130 / 80 mm Hg. Thereafter she was taken to the operation theater for surgery at 2.00 pm. she was given Spinal Anaestheisa and her abdomen was opened and surgery was proceeded. After 15 minutes of surgery patient developed, bradycardia (low heart rate) and hypotension (fall in BP). Therefore it is clear that the opposite party exercised reasonable care and skill and provided standard treatment procedures before the surgery. The learned counsel for the opposite party has argued that bare allegations in the complaint would not establish charge of negligence on the part of the 1st opposite party. The burden of proof on the medical negligence lies on the complaint, but in this case, the complainant has not proved the allegation made in the complaint against the opposite party through medical records or expert evidence. In this connection the learned counsel for the opposite party is relying upon the following Judgments of Hon’ble Supreme Court and National Consumer Disputes Redressal Commission, New Delhi. I. (2009) 7 Supreme Court Cases 130 C.P. SREEKUMAR (DR.), MS (ORTHO) ..Vs.. S.RAMANUJAM Wherein the Hon’ble Supreme Court is held that “ As already observed in Jacob Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In Jacob Mathew case it has been observed as under: (SCC pp.32-33, para-48) “(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratantal 7 Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’ , ‘breach’ and ‘resulting damage’ (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the par of a medical professional. II. 2007 (2) CPR 260 (NC) N. Krishna Reddy ..Vs.. Christian Medical College and Hospital Rep. by its Medical Superintendent & Anr. Wherein the Hon’ble National Commission, New Delhi is held that, “ Consumer Protection Act, 1986 – Sections 21(a)(i) – and 2 (1) (g) – Complaints about medical negligence – Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the affidavits filed by Hospital and doctors. “ 13. In the present case before the surgery, the patient was investigated on 21.3.01 and she was advised preliminary investigation and decided to undergo Hystorectomy on 28.3.01. During the surgery the patient suddenly developed cardiac arrest; immediate steps were taken by Dr. Santhiyababu to revive her within seconds with cardiopulmonary resuscitation and intubated with endotracheal tube. After her pulse rate and blood pressure became normal. She was immediately shifted to CMC, Hospital, Velore on the same day at 4.55 p.m. for intensive care management. On 30.3.01 at 4.30 p.m, she again suffered from the cardiac arrest. The doctor who gave treatment to the complainant’s wife in CMC, Hospital, Vellore have not made any commends or adverse remarks in Ex.A1 death summary about the contention of the complainant that before performing surgery the opposite party has not taken proper test and even the opposite party did not care to examine / assess the patient’s body condition properly. 14. The nature of the medical profession is such that there are many courses of treatment in each disease. The diagnostic procedure may by vary, and the approach by each doctor will be different and the treatment given to a patient differs from man to man. It is for the doctor treating the patient to decide the best course of action and if she has done the job exercising due diligence with such standard of care that is required of her. Unless it is shown that the Doctor has failed to opt a particular precaution or failed to follow the procedure and such failure has called to the ultimate result or complication. In the present case, from the perusal of Ex.B2 Doctors sheet issued by the opposite party’s hospital, it is seen that the opposite party had throughout adopted standard prescribed medic 1 procedures and always exercised due and reasonable care and skill before and after the surgery. The doctors who gave treatment to the complainant’s wife in CMC hospital, Vellore have not made any commends or adverse remarks about the treatment given by the opposite party, in Ex.A1 death summary of CMC, Hospital, Vellore. Therefore except the complaint there is no medical record or expert evidence to prove that before performing surgery the opposite party has not taken proper tests and even the opposite party did not examine / assess the patient’s body condition properly and performed the surgery in a negligent and reckless manner. Hence, there is no deficiency in service on the part of the opposite party. The authorities cited by the learned counsel for the opposite party are squarely applicable to the facts and circumstances of this case. 15. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A6 and Ex.B1 to Ex.B3, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 16. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 17. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 6th day of July 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 15.5.01 - X-copy of Death Summary issued by the CMC Hospital, Vellore Ex.A2 – 16.4.01 - X-copy of Death Certificate issued by the CMC Hospital, Vellore. Ex.A3- 18.6.01 - Office copy of the notice issued by the complainant. Ex.A4- 21.6.01 - Postal Ack. card. Ex.A5- 21.6.01 - Letter by the opposite party. Ex.A6- 16.7.01 - Reply by the opposite party. Opposite party’s Exhibits: Ex.B1 – 28.3.01 - X-copy of letter of consent given by complainant’s wife Ex.B2- 28.3.01 - X-copy of Doctor’s notes. Ex.B3- 28.3.01 - X-copy of Doctors Report. MEMBER-I MEMBER-II PRESIDENT. | 
