ADV. RAVISUSHA, MEMBER.

            Complainant’s case is as follows:

            The deceased Lekshmi Krishna @ Lekshmi Santhosh, aged 25 was the wife of the 1^st complainant.   The 2^nd complainant is the minor daughter of 1^st complainant born to deceased Lekshmi Krishna  She was working as staff nurse at VSM Hospital, Thattarambalam, Mavelikkara and was waiting in PSC rank list for obtaining appointment in Government Service.  On 14.12.2004  she along with her husband was about to attend a marriage at Vavvakkavu.  But she felt some pain at the left side of her abdomen and hence for the convenience of attending the marriage she along with her husband made an urgent consultation  at Parabrahma Speciality Hospital and Research  Center, Oachira, during her way to Vavvakkavu and consulted with the duty doctor at 8 a.m. she was given injunction and medicine and the pain subsides.  Then the duty Doctor Dr. Ajith .M.B.B.S. , directed Lekshmi to consult with the Surgeon also.  But the surgeon after preliminary check up directed the patient to consult with Gynecologist Dr. Girija.   She also confirmed that Lekshmi has no serious problem.   Again for confirmation of presence of stone in Kidney she advised for X-ray and in preparation of that, Enema was applied to Lekshmi.   After completing the process of enema, she was also administered I.V.  Disp  for curing her tiredness.   When the disp drained half, it was disconnected and X-ray was taken.   She and her husband also took tea and light refreshment from the canteen and went to the third floor by foot and continued the I.V. Drip.   Meanwhile, blood test result obtained, and found normal.   Then a Nurse came and administered an injunction through I.V. set.   Suddenly Lekshmi began to struggle for respiration and alarmed the same immediately to the duty doctor

 and hence she was taken to the intensive Care Unit and administered Oxygen.  Then the  consultant physician Dr. Ravikumar, who attended the patient in the intensive care unit   advised the 1^st complainant that  she was to be taken to a hospital in which Ventilator facility is available.  Immediately the matter was communicated to the VSM hospital, Thattarambalam, Mavelikkara.   They sent their Ambulance to the opp.parties’s hospital and the patient was rushed to VSM Hospital, Thattarambalam.   The first opp.party was accompanying the patient from Parabrahma Hospital, Oachira.   The mother of the deceased along with the first complainant was waiting outside the IC Unit.   Then a duty nurse from IC Unit came out and disclosed that Lekshmi Krishna is dead.  Actually the patient died even at Parabrahma Hospital at about 11.30 A.M.   But the first opp.party  as well as  Dr. Girija and Dr. Ajith suppressed that fact from the first complainant and the dead body was unnecessarily shifted to VSM Hospital in an Ambulance in order to gave an impression that she was alive.   The above drama was played by opposite parties in order  to put the blame of a negligence to some others and to hide out their culpable negligence.  Lekshmi Santhosh died due to the culpable negligence of the doctors of Parabrahma Specialty Hospital and Research Centre who administered ampicillin injection through I.V without giving test dose.   The deceased was an energetic young lady who was working as staff nurse and was waiting for better prospectus in Government service and the complainants lost her love and affection, consortium and they are suffering in mental agony and are  aggrieved due to the culpable medical negligence of the opp.party.   The 1^st complainant became lonely as his dear departed, the 2^nd complainant lost her beloved mother at her infancy which would cause adverse consequences in her life and the mother lost her life blood, all due to the negligence of the opp.parties for which they are jointly and severally liable to compensate.  Since the 2^nd opp.party is the employer of the 1^st opp.party he is vicariously liable to pay the compensation.   The deceased being an earning member of the family drawing Rs.3500/- plus perks per month from her job and was also waiting for being appointed in Government service as she was in the rank list  of PSC the complainants are entitled to the  compensation of Rs.20,00,000/- [twenty lakhs].  Hence filed this complaint.

          1^st opp.party filed version contending  that the complaint is not maintainable either in law or on facts.  The  forum lacks territorial  and pecuniary jurisdiction to entertain and adjudicate upon the dispute.   The alleged death of Lekshmi Santhosh occurred at VSM Hospital, Mavelikkara which is outside the territorial jurisdiction of this forum.  So also the amount claimed by the complainant is outside the pecuniary jurisdiction of this forum.   The definitions of complainant, complaint and consumer dispute as defined U/S. 12 [1] of the act do not cover the claims arising under the present dispute and that the complainant is not a consumer  and the controversy involved in the complaint is not a consumer dispute.  As per the OP records maintained by the 2^nd opp.party in the usual course of business it is understood that the patient came at 8.02 a.m. at the casuality of the 2^nd opp.party and met the duty doctor.   After examining the patient the duty doctor has noted that there is tenderness over the left hypochodrisem  and he has also noted bowel sounds and he has advised injection cyclopam I ampule IM for abdominal colic and he has also given syrup digenene 5 ml. stat thrice daily and Raveprazole 20 mg stat given.  It is to be noted here that the above 2 medicines are anti ulcer drugs.  1^st opp.party  has never worked as the duty doctor of the 2^nd opp.party hospital and that 1^st opp.party was working as the consultant Physician of the 2^nd opp.party hospital from August 8^th 2004  to 25.12.2004.   As stated  above paragraph the patient was seen first by the duty doctor of the 2^nd opp.party hospital and the patient was referred to the surgeon.   From the out patient records it is clear that the surgeon Dr. Sivaramakrishna Pillai saw the  patient and he has written query of pelvic  inflammatory disease and referred the patient to Gynecologist Dr. Girija Gynecologist after  examination of the abdomen of the patient has noted tenderness of the left loin and she has written with query of Renal colic and admitted the patient.   That is clear from a glance on page No.3 of the OP records.  It is once again submitted that 1^st opp.party had never worked as duty doctor.   From the IP records it is understood that Ampicillin 500 mg. IV was given to the patient after test dose injection, Pantodac IV, ringer  lactate 2 pints were given on the advise of the Gynecologist.   From the IP records it is seen that the Gynecologist has advised plain X-ray KUB, after enema and Blood routine TC. DC. ESR and Hemoglobin.   As advised by the Gynecologist   ampicillin was administered on the patient after test dose by 11 a.m. and at about 11.15 a.m. the patient was seen by the casuality medical officer by name Dr. Ajith .  He has administered injection dexona injection Efcorlin and O2 inhalation and the patient was shifted to ICCU and Dr. Ajith has reported in the IP record that the matter should be informed to the physician, Anesthetist, surgeon and Gynecologist.  According to the IP record Dr. Ajith has given injection diazepam 1 ampule IV and patient was intubated by the Anesthetist Dr. Mathew.  Thereafter on the advice of Dr. Ajith injection Efcorlin 2vial given and IV fluids given and this is clear from IP records.   It is submitted here that the 1^st opp.party saw the patient for the first time at about 11.35 a.m. after the completion of the above mentioned modulations of the treatment by various doctors.   When the 1^st opp.party saw the patient at ICCU, the patient had already been intubated and ambubag respiration has been given and ECG monitor was showing cardiac activity.  After 11.35 a.m. 1^st opp.party examined the patient and found that the patient pulse was not palpable.  BP not recordable, pupils not reacting to the light .  In order to increase the BP Dopamine drip was given on 1^st opp.party advice.   The patient was shifted to VSM hospital as per the request of the husband .  Considering the request, the Gynecologist ,Dr. Ajith referred the patient  to VSM Hospital.  Considering the critical condition of the patient and to expedite  the procedure  at VSM hospital  1^st opp.party accompanied the patient to VSM hospital and the patient was admitted at the ICCU  alive and in the presence of the 1^st opp.party.  The Doctors at VSM hospital  administered injection adrenalin intra tracheal and intravenous and patient was connected to the ventilator.  1^st opp.party was present in the ICCU at VSM hospital for nearly 1 hour.  It is to be noted here that at no stretch of imagination it can be believed that  VSM hospital will not admit a person brought dead as alleged in the complaint especially considering the fact that the deceased as well as her mother were working in the very same hospital as staff nurse.  It may be noted that if the deceased was taken to the VSM hospital as dead definitely the VSM hospital should have noted this fact in the case sheet and should have informed the police.   This fact will make it clear once again the fact that the deceased was not taken to the VSM hospital as dead but she was taken to the hospital alive.  It may be noted that as the deceased and her mother was working in the hospital the complainants has purposefully avoided in bringing the truth before the forum with certain ulterior motive .  It is once again submitted that till the first opp.party was at the VSM hospital the  deceased was alive. It is submitted here that the husband and other relatives of the deceased along with certain disgruntled elements returned to the 2^nd opp.party hospital and forcefully obtained certificate in the form of a death certificate from this opp.party.  Immediately after the same 1^st opp.party  filed the complaint bearing petition No.638/04 before Oachira Police Station and the same is pending investigation.  It is also submitted here that based on the complaint filed by the complainant herein Karunagappally Police Station has registered crime No.378/04 and the entire records were taken by the police and the matter is pending investigation.  Reasonable  care and attention was given to the patient and there is no negligence or deficiency on the part of  1^st opp.party. 

          The 2^nd opp.party filed separate version contenting  that the complaint is not maintainable .  The complainant is not a consumer as defined in section [2] [1] of the Consumer Protection Act and as such the complaint is liable to be dismissed summarily on this ground alone.  The Forum  has neither territorial jurisdiction  nor pecuniary  jurisdiction to entertain and adjudicate upon the dispute involved as the alleged  death  occurred at VSM hospital, Mavelikkara, which is  outside  the territorial jurisdiction of this Forum and the claim amount exceeds the pecuniary jurisdiction of this forum.  The 2^nd opp.party is not properly represented.  The Administrator is not competent to represent Oachira Parabrahma Speciality hospital.   The hospital belongs to the Oachira Parabrahma Temple which is administered by an elected body as per its constitution.   The working committee of the Temple Administration Board as per its decision dated 15.9.2000 appointed Dr. Sivaramakrishna Pillai as the Director of the hospital and conferred power on him regarding appointment, administration etc.  In the same meeting the executive committee of the administration board was constituted as the governing body of the hospital and the Secretary of the temple board was nominated as the chairman of the governing body.   Neither the director nor chairman of the governing body [both of whom are necessary parties] are impleaded to represent the hospital and the complaint is bad for non joinder of necessary parties.  The deceased Lekshmi had consulted the  duty doctor of Parabrahma Hospital on 14.12.2004 morning, all other facts are with in the personal knowledge of the  complainant, which has to be proved by him.  Neither there  were any medical negligence nor lack of reasonable care on the part of the doctors of the 2^nd opp.party and the said allegation in the petition is absolutely false.  It is true that on 14.12.2004  the patient was seen by the duty doctor in the casualty.   After examiniing the said patient the doctor took 2^nd medical opinion by referring the patient to surgeon who in turn referred the patient to Gynecologist, to rule out any gynecological problems.   The gynecologist suspected as a case of Renal Colic and admitted the patient.   The Gynecologist advised X-ray  KUB [after enema] and blood examination.   The Gynecologist advised to give Inj. Ampicillin [after test dose], Inj. Pantodac and I/V fluids and also advised Urology consultation.  But the statement that the Gynecologist confirmed that the deceased Lekshmi has no serious problem is totally  false and made with ulterior motives and in fact there was no occasion which warrants such a statement since the process of investigation and tests were under way.   Further, the statement that Dr. Ravikumar was the duty doctor and he advised to consult the surgeon is also false.   The further statement that the deceased went out on foot for taking tea and light refreshment is also not true since the patient are not allowed to go out of the hospital without prior permission.  The Gynecologist, who suspected Renal colic, admitted the patient and advised X-ray KUB [after enema] and blood examination and further advised to give Inj. Ampicillian  ATD [after test dose] and Inj. Pantodac & IV fluids and also recommend Urology consultation.  The nurse gave the injection Ampicillin after giving test dose as advised by the  Gynecologist.   Test dose was given at 10.5 a.m and since no signs of reaction  were traced, full doze of Inj. Ampicillin was given at 11 a.m. . . By about 11.15 a.m. the patient complained of dyspnoea and the duty nurse started O2 and immediately informed the duty doctor, who in turn examined the patient and he suspected the patient is having fits.   Thereupon the duty doctor directed to take the patient to the Intensive Care Unit and  immediately the matter was reported to Gynecologist, Physician and Surgeon.   Then Dr. Ravikumar [physician] came.  On reaching the ICCU, it is confirmed that the patient was having fits and Inj. Diazepam was given and the patient was intubated by the Anesthetist, IV fluids & Efcorlin injection was also given.   Subsequently, the duty doctor came to know from the bystander that she is an Epileptic  patient, which was not revealed at the  time of admission.  Later on the doctors learned that the deceased Lekshmi Santhosh was a chronic Epileptic patient under the treatment of the Neurologist of VSM hospital and she was exempted from taking night duty.  It is true that Dr. Ravikumar advised the first complainant, that the patient must be taken to a hospital where ventilator facility is available.   The 1^st complainant also wanted the deceased to be taken to VSM hospital since she was a staff of that hospital and thereupon she was transferred to VSM Hospital, Thattarambalam, Mavelikkara, where her mother was also working .  It is also true that Dr. Ravikumar also accompanied the patient in the Ambulance to the said hospital.   Except the aforesaid facts all other averments in the said para are totally false and hence denied.  At VSM Hospital she was treated in the ICCU .   The specialists at VSM hospital were confident of saving the life of the patient.  But , after 2 p.m. the patient was declared dead. The allegation that the patient actually died at Parabrahma hospital and only the dead body was shifted to VSM hospital, is totally wrong and misleading.  Had that been the case the VSM hospital doctors and authorities recorded it as a case “Brought Dead” and informed the police and also requested for postmortem, especially when considering the fact the deceased as well as her mother were working in the very same hospital as staff nurse.  Moreover, the hospital records at VSM Hospital reveals that they had treated the patient.  No one will ever treat a dead body.   The true facts are as stated above and since the death occurred in the VSM hospital , Mavelikkara this forum has no jurisdiction to entertain the complaint.   The complaint is also bad for non joinder of the said necessary parties.  The husband of the deceased Lekshmi Santhosh and other, relatives forcefully obtained a signed paper in the form of a death certificate from Dr. Ravikumar .   Regarding that matter Dr. Ravikumar  had already fied a petition [petition NO.638/04/Rptn./04/c2] before Oachira Police Station and the matter is under investigation.   Further, police authorities under the supervision of Dy. Superintendent of Police, Karunagappally is conducting an investigation on he alleged death as viz.  Cr.No.378/04.   The original records were taken over by the Sub Inspector of Police, Karunagappally on 22.12.2004 and all original records related to the incident is with them.   Dr. Ravi Kumar was not the concerned doctor, and the  statements in the certificate shows that it was obtained by force.  The patient died at VSM hospital at  Mavelikara and the certificate alleged to have  been received from Dr. Ravikumar [not admitted so] will not bind the opp.party since he has no right to issue such a certificate.   The 2^nd opp.party is not liable to pay any amount as compensation.  The Partabrahma Hospital Doctors, including  Dr. Ravikumar, as well as Nurses and other staff had provided reasonable care and attended the patient in time and also took a second opinion as and when the situation warranted and investigated the case at regular intervals properly and the hospital is having trained staff and adequate  infrastructure and referred the case to another hospital as and when the need arose and moreover Dr. Ravikumar, accompanied the patient to the referred hospital.   Thus the doctors as well as other para medical staff  exercised fair, reasonable and competent degree of skill in exercise of their profession.  Apart from that the Doctors prescribed proper diagnostic and pathological tests such as blood test, x-ray etc.   Thus the Parabrahma Hospital Doctors, including Dr. Ravikumar, as well as nurses and other staff followed standard medical practice and adopted well recognized methods and techniques of treatment and kept proper records of treatments and there was no laxity in extending proper and reasonable care and hence at no point of time when the deceased was under our treatment no injury was caused by medical negligence and any consequently there is no deficiency in the service and therefore the management of the hospital is not vicariously liable for the alleged incident.

The opp.party 3 and 4  filed version contenting that there was no negligence  or deficiency inservice on the part of these opp.parties   As submitted in the version filed by the 2^nd opp.party there was no medical negligence nor lack of any reasonable care on the part of the doctors of Parabrahma hospital.  Reasonable care and treatment was given to her.   The duty doctor later on came to understand that the deceased was an Epileptic patient under the treatment of the neurologist of VSM hospital.   The patient died at the VSM hospital.   The allegations of the complainant that the patient died at Parabrahma hospital is false and informed the police and requested for postmortem.  The hospital records of VSM hospital reveals that they had treated the patient.   Since the death occurred at Mavelikara this authority has no territorial jurisdiction to entertain the complaint. The husband of deceased Lekshmi and other relatives forcibly obtained a signed paper in the form of a death certificate from Dr. Ravikumar.   Regarding that matter Dr. Ravi Kumar has filed a petition before the Oachira Police Station and the matter is under investigation.   The alleged death is also under investigation.  The original records are taken over by the SI, Karunagappally.   Dr. Ravikumar was not the concerned doctor and he was not competent to issue such a certificate and it will not bind the other opp.parties.    The Parabrahma hospital authorities including concerned doctors and nurses and other staff had provided reasonable care to the deceased.   The authorities followed standard medical practice and adopted well recognized  methods and techniques.   There was no negligence or deficiency in service.  No amount was received by the hospital for the treatment of the deceased.   Since there was no negligence or deficiency in service these opp.parties are not liable to pay any amount as compensation.

The opp.parties 5 and 6 filed version contenting that  opp.parties 5 and 6  impleaded as per order in IA 56/08 and the complaint amended as per order in IA 55/08 the opp.parties filed the version and the main contention of the version filed by the 5 & 6 is that the complaint is legally and factually not maintainable.  The signatory in the complaint is not competent to represent the minor.  Opp.parties 5 and 6 admitted the paragraphs 3,4, and 5 in the complaint and denied para 6,7,8 and 9 and raised the question of non-joinder  of  necessary parties.   The hospital in which the deceased was admitted and treated and death occurred must be a necessary party.   The 5 & 6 opp.parties denied specifically that as per their opinion the deceased was taken to VSM hospital.  It is done as per the request of the 1^st complainant.   The 5 & 6 opp.parties done all their effort to protect the life of the deceased.   The death occurred beyond their control.   To protect the VSM hospital the complainants not impleaded  them as parties .  There is no liability on 5^th and 6^th opp.parties and the amount claimed in the complaint is veryt high and not sustainable in law.  The complainants not raised any objection and not insisted for the postmortem of the body.  In any way the complaint should be dismissed and prays for the same.

The points that would arise for consideration are:

1.     Whether the Dist. Forum has territorial jurisdiction to entertain the complaint?

2.     Whether the complain t is bad for non joinder of necessary parties?

3.     Whether there is any negligence on the part of the opp.parties?

4.     Reliefs and costs?

For the complainant PWs1 to 4 were examined and marked Exts. P1 to P10

No oral evidence  for the opp.parties.  Exts.D1  and D2 marked.

X1 to X5 marked.

THE POINTS:

The first question to be decided is as to whether this Forum lacks territorial jurisdiction to entertain this complaint.   Complainant’s case is that Lekshmi Santhosh attended the Parabrahma Specialty Hospital, Oachira with a complaint of  abdominal pain on 14.12.2004 at 8 A.M..   Then the duty doctor Dr. Ajith [5^th opp.party] directed Lekshmi to consult with the surgeon.  But the surgeon after preliminary check up directed the patient to consult with Gynecologist  Dr. Girija [6^th opp.party].   She also confirmed that Lekshmi has no serious problem.  But the Gynecologist has noted tenderness   in the left side  of the abdomen and suspected as a case of Renal colic and admitted the patient.   For confirmation of presence of stone  in kidney she advised for X-ray and in preparation of that Enema was  applied to Lekshmi.  After completing  the process of enema, she was also administered I.V. Drip for curing her tiredness.  When the drip drained half, it was disconnected and X-ray was taken.  Blood  test also  found normal.   After refreshment I.V Drip continued.   Then as per the direction of 6^th opp.party the Nurse administered an injunction through I.V. set.   Suddently Lekshmi  began to struggle for respiration and she has been taken to ICU and administered Oxygen and treated by  5^th opp.party.   Then the consultant physician opp.party 1 Dr. Ravikumar attended the patient and advised that  the patient has to be taken to hospital  where ventilator facility is available.  According to the complainant the patient died at Parabrahma Hospital at about 11.30 A.M.  But the first opp.party as well as  Dr. Girija and Dr. Ajith suppressed that fact and the dead body was unnecessarily shifted to .VSM hospital and Lekshmi Santhosh died due to the culpable negligence of the doctors at Parabrahma specialty hospital.

          The power of attorney holder of 1^st  complainant Smt. A.T. Mony [Mother of the deceased] was examined as PW.1 and exhibits P1 to P10 documents were marked through her.   The cardiologist of VSM Hospital was examined as PW.2 and Dr. Deepak Gopinath of VSM Hospital was examined as PW.3.   The  Director of Health  Service Dr. M.K. Jeevan was examined as PW.4 and the copy of the entire file was marked as Ext. X3.   The first opp.party summoned Station House Officer. Oachira for producing the documents.  The copy of complaint filed by the 1^st opp.party before the  Police Station was marked as Ext. X4  and the complaint registers of the station was marked as Ext. X5.

          The opp.parties would submit that  deceased Lekshmi Santhosh was treated at VSM Hospital , Mavelikkara and died there and not at Parabrahma Hospital, Oachira and thus this forum has no territorial jurisdiction to entertain this case.   The learned counsel for the 1^st opp.party argued  that PW.3 Dr. Deepak Gopinath of VSM Hospital during his deposition  {Q] “You  have not noted in X1 that the patient is died ? [a] No. [Q] Exhibits X1 and P6 shows that Lekshmi Santhosh was dead at your hospital” [a] yes.  Moreover PW.4 has deposed that the patient was treated at VSM Hospital at 1240 PM and the patient was declared as dead at VSM Hospital.

          Complainant’s main contention is that Smt. Lekshmi Santhosh died due to the culpable negligence of the doctors of Parabrahma Specialty Hospital at Oachira.          The complainant’s contention is supported by Ext.P5 certificate issued by 1^st opp.party Dr. Ravikumar dated 19.12.2004.  In Ext.P5 certificate it is stated that Smt. Lekshmi Santhosh aged 24 OP.No.41298   came to this hospital at 8.02  a.m. on 14.12.2004  to the causality with abdominal pain.   She expired due to reaction of Ampicillin due to cardiac respiratory arrest at 11.30 AM on the same day in opp.party hospital.  In the version the 1^st opp.party says that  the above certificate was forcibly obtained by the husband and other relatives of the deceased.   For proving that the 1^st opp.party summoned Oachira Police Station Officer and marked Ext. X4  the copy of complaint filed by 1^st opp.party and Ext. X5 the complaint register of the station.  But the 1^st opp.party has not cared to enter into the box and depose the circumstances compelled him to issue Ext.P5 certificate.  More over the 1^st opp.party has  only marked Ext. X4 and X5.  But did not care  to examine  Head of Police station to  bring out the veracity of  Ext. X4 complaint and what was the further proceeding about the Ext.X4  complaint.  Only marking of  Ext. X4 and X5 is not sufficient to prove that Ext.P5 certificate was issued by the 1^st opp.party under threatening by the husband and other relatives of the deceased.   Moreover  1^st opp.party is a senior most doctor having years of experience.  He has a qualification of M.B.B.S, M.D [ non-medicine].  Such a senior most doctor is never expected to issue a certificate like Ext.P5 under pressure.   So from the above facts it is inferred that Ext.P5 certificate is a genuine one and what is stated in it is true.   More over there is no dispute that CBCID investigated the matter and laid charge before the  Session’s Court, Kollam and the case is pending trial before the 1^st Additional Sessions Court, Kollam.   That  fact also shows that the crime  against the occurrence was registered at Oachira Police Station ie. Within the territorial jurisdiction of this Forum.   Ext. X1 case sheet of VSM hospital and Ext.P6 certificate issued by PW.2  the doctor of VSM Hospital shows  details of the condition of the patient at 12.40 p.m. on 14.12.2004 the admission time at VSM hospital.  In Ext. X1 and P6 it is mentioned that “No spontaneous respiration, pulse not felt, heart sound not heard, pupils b/8L-dilated and fixed.   Monitor showing asystole   In view of uncertainty  regarding time of death resuscitation was attempted, to which the patient did not respond.”  The above conditions mentioned in Ext. X1 and Ext.P6 certainly shows that the patient was brought dead at the admission time at VSM hospital.

          The pertinent point to be noted that this case is filed alleging Medical negligence against the opp.party doctors.

          Sec. II [2] of Consumer Protection Act states that “a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction [a] the opp.party or each of the opp.parties, at the time of the institution of the complaint resides or carries on business or has a branch officer or [c] the cause of action wholly or in part, arises.”

          Here the complainant alleges  negligence of treatment against the treated doctors working in Parabrahma Hospital, Oachira which is within the jurisdiction of this Forum.”  Hence as per Sec.II [2] [c] this forum has ample jurisdiction to entertain this complaint.   The place where death occurred is not a  ground for preferring jurisdiction.    Considering all the above facts we are of the opinion that this Forum has ample jurisdiction to entertain this complaint.   The point found accordingly.

          The next point is whether the complaint is bad for non joinder of necessary parties?

          The 1^st opp.party raised contentions that patient was first seen at the causality at 8.02 a.m. by the duty doctor Dr. Ajith [OP.5] and opp.party 5 had noted there is tenderness over the left side of abdomen and he has also noted  bowel sounds and he had referred the patient to the surgeon Dr. Sivarama Krishna Pillai.   The surgeon saw the patient and has noted a query pain below the Umbilicus.   Then he had referred the patient to Gynecologist Dr. Girija [Opp.party 6] and  she had admitted the patient and treated and developed severe breathlessness and was immediately seen by Dr. Ajith who was the causality medical officer and  administered injection Diazepam, efcorlin, dexona and then the patient became moribund and  the patient was seen by  Anesthetic Dr. Mathew.  Thereafter the physician Dr. Ravikumar saw the patient and discharged and  referred  to VSM Hospital.   According to 1^st opp.party, all the treated doctors must be impleaded as opp.parties .  Here the  complainant alleges  negligence of treatment  against the treated doctors.  Moreover  the version of 1^st opp.party   says that the severe breathlessness and other problems developed from the treatment of opp.parties 5, 6.  The  complainant was under the impression that the complications arised from the treatment of 1^st  opp.party also.  According to the complainant there was no negligence on the part of Drs. at VSM Hospital , the patient  dead at Parabrahma Hospital.  The opp.parties 1, 5 and 6 suppressed the fact from the deceased’s husband that the patient dead and the dead body was unnecessarily shifted to VSM hospital in an Ambulance in order to gave an impression that she was alive .  According to the complainants death of Smt. Lekshmi Santhosh happened due to the negligence on the treatment of  opp.parties 1, 5 and 6 alone.   Hence there is no defect in the complaint as non-joinder of necessary parties.   The point found accordingly.

          The next point to be decided is whether there is any negligence on the part of opp.parties 1, 5 and 6 in treating Smt. Lekshmi Santhosh.

          It is  an admitted fact that  Smt. Lekshmi Santhosh attended the Parabrahma Specialty Hospital, Oachira with a complaint of abdominal pain on 14.12.2004  at 8 a.m.   The duty doctor 5^th opp.party attended the patient, treated her referred to 6^th opp.party, the gynecologist of the  hospital.   The first opp.party, the physician of the hospital in version states that when he saw the patient in ICCU at about 11.35 a.m.,  her condition was very critical with pulse and B.P were not recordable and ambubag  respirations were being given.  According to first opp.party, the patient was attended and  treated till he saw her at 11.35 a.m. by Dr. Ajith and Dr. Girija.   The version of 1^st opp.party  further says that Dr. Girija after examination of the abdomen of the patient noted  tenderness  of the left loin and admitted the patient with query of Renal colic and ampicillin 500 mg   injection was given through  IV after  test dose.   As per the advise of 6^th opp.party, injection demona, efcorlin and O2  inhalation and the patient was shifted to ICCU .  In case sheet of opp.party hospital,  Ext.P7, shows that at 10.5 a.m. injection Ampicillin test dose given, 11 a.m. injection Ampicillin full doze  given.  11.15 a.m. dyspnoea started.  Patient was shifted to ICCU and  intubated  and ambubag started.   Opp.party 6 at 11.30  a.m. given Dizepam, Efcorlin and  Dexona.  Complainant’s main case is that the ampicillin 500 mg [full doze] injection given to the patient without test dose  is the root cause and negligence on the part of the  treated doctors.  Injection diazepam given as intravenous, when there was no recordable BP and pulse  is another culpable negligence on the part of the opp.party doctors and failed to administer adrenalin injection, the most life saving medicine at that stage.

          In Ext.P7 case sheet it is seen that at 10.30 a.m. injection Ampicillin test dose given, no reaction.  Then at   11 a.m. Ampicillin full dose given.  But in X3 the final investigation file in page 138 there is  a fax message forwarded from Dr. Ravikumar [1^st opp.party] to Dr. M.K. Jeevan  Director of Health Services who was the convener of the  body constituted as per circular No.73304/SSB3/2007/Home dated16..6..2008 to analyze the cause of death of Lekshmi Santhosh which shows that “the treated doctors of Lekshmi Santhosh at Parabrahama Hospital till 11.35 a.m. did not take the previous history or the vital para meters [pulse rate, blood pressure, temperature] .  Another point is that the 5^th and 6^th  opp.parties noted that the patient has pain in the left side of abdomen and the surgeon noted she has pain below the umbilicus.   This difference of opinion is also a notable point.   The opp.party 6 writes renal colic  and admits her in the maternity ward and also advises injection Ampicillin A.TD without any indication.   This injection Ampicillin causes allergic reaction since test dose was not done properly”.  This fax message sent by a Senior most doctor to a higher authority cannot be neglected  or discarded.    When such a contradiction prevails it is the duty of opp.parties 5 and 6 to establish their version by producing original case sheet of opp.party hospital and convince the Forum that Ampicillin injection given after test dose and gave evidence before the Forum. Without adducing such evidence,   from the fax message of opp.party 1, we are of the opinion that in  Ext.P7 the concerned  page was prepared as an   after thought  and opp.party 6  administered Ampicillin full doze without test dose .  Moreover case sheet  Ext. P7 shows that opp.party 6 Gynecologist  has a doubt of Renal colic to the patient and she prescribed to take X-ray .  But that was also not proved by opp.party 6.  Without any diagnosis, opp.party 6 admitted the patient without taking any previous  history of the patient, injected Ampicilin full dose.  Anyway it is certain from Ext.P7 case sheet and from the available evidence that dyspnoea developed and anaphylactic shock happened to the patient due to administration of Ampicillin ..  Moreover opp.party 6 Dr. Girija is a Gynaecologist.   The complaint of patient suspected by opp.party 6 at the consultation time  was ? renal colic.  It is not  a gynec problem. The patient came to the opp.party hospital for a consultancy during her way to Vavvakkavu with her husband and child for attending a marriage.   That shows that she has no serious problems.   The duty doctor when given injection      and medicine for  anti ulcer drugs,  the  pain subsided.  Opp.party 6 also at the first time confirmed that Lekshmi has no serious problem.  Then without proper diagnosis and without taking prior  history and without consulting  with Urologist she admitted the  patient, treated her by injecting medicine like ampicillin ATD without proper test dose is a gross negligence on the part of opp.party 6 gynecologist Dr. Girija to an young educated lady. Opp.party 6 ought   to have referred the patient to Urologist. Opp.party 5 and opp.party  6 have filed only a vague version before the Forum.   They not even cared to enter in to the box and give their evidence before the forum.

          As against 5^th opp.party  the Medical Officer Dr. Ajith from case sheet, Ext. P7  the  doctors opp.party 5 and opp.party 6 have treated the patient and reached the patient in  a critical stage and death occurred.  From Ext.P7 case sheet it is seen that at 11.15 a.m. subsequent to the injection Amplicilin the patient developed?  fits [not confirmed  that means some type of shock developed] and the patient became unconscious and admitted at ICCU  pulse and  BP not  recordable.   At 11.30 a.m. instead of giving adrinalin injection, a  most  life  saving medicine at that stage,  opp.party 6 has given diazepam injection Efcoolin and Dexoia without consultation with any another specialized doctors required at that stage.  For anaphylactic reaction, injection Diazepam is an absolute contradictory  . Administration of two injections Like Ampicillin and Diazepam to the patient resulted the death of Smt. Lekshmi Santhosh. .  Here the anaphylactic shock  could not traced out.  Because the autopsy was conducted only after one month.   Since the body was in a state of decomposition, anatomical features of anaphylactic   shock  cannot be detected.  It is noted that the chemical analysis report shows there was no positive evidence of  natural diseases or violence to account for death.  Chemical examination did not reveal any poison in the viscera.  Hence the anaphylactic shock developed in the body after injecting Ampicillin cannot be  rule out.   Any way Ext.P7 shows that after injecting ampicillin some type of shock developed in the body of the patient.   The opp.party 5 noted ? fits.  Without confirming which type of stock, opp.party 6 administered diazepam injection 

 Both opp.party 5 and 6 did not try to prove their versions.  Both opp.parties 5 and 6 did not try to take  the previous history of the patient and without proper diagnosis,  administered these two injections.  Hence from the available evidence we are of the view that there is gross  negligence on the part of opp.party 5 and 6  in treating the patient Smt. Lekshmi Santhosh.   As against opp.party 1 Dr. Ravikumar, from the Ext. P7 case sheet and from the available evidence he saw the patient only at 11.35 a.m.   At 11.35 a.m., the condition of the patient was as per P7 case sheet and other evidence, that no pulse, pupils  dilated not reacting to light, No B.P and intubated Ambubag respirator these conditions shows that the patient was almost died.   The case sheet Ext.P7 reveals that opp.party 1   had given only Dopamine drip and not given any other medicines.  During the argument time, the learned counsel for the complainant also argued that there was no willful negligence on the part of first opp.party in treating the patient Lekshmi Santhosh.  More over opp.parties 5 and 6 have no further explanation  after seeing the version  of opp.party 1,    that opp.party 1  treated the patient before 11.30 a.m.,  or they have no case that  version of opp.party 1 is not correct .   In the absence of such facts,   we believe the  version of opp.party 1 that he was  seen  .   the patient  only at 11.35 a.m. Hence we are of the view that there is no negligence on the part of 1^st opp.party  in treating the deceased.

          On considering the entire evidence we are of the view that Smt. Lekshmi Santhosh, the young and educated lady having only 24 years  of age died due to reaction of Ampicillin and diazepam injected by opp.party 5 and 6 to the patient without proper diagnosis and without knowing the previous history of the patient.  Hence there is gross negligence on the part of opp.parties 5 and 6 in treating Smt. Lekshmi Santhosh.

          The next point to be decided is whether hospital opp.party 2, opp.party 3 and opp.party 4 are liable.

          “In the decision of Hon’ble Apex Court in the case of Savita Garg V National Heart Institute, V1 [2004] SLT 385 IV [2004] CPJ 40 [SC] it is observed that it is for  the hospital or institute to produce the treating physician concerned and has to produce evidence that all care and caution  was taken by them or their staff to justify that there was no negligence involved in the matter.  It was further observed “once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent and that  as  a result of such negligence the patient died, then the burden lies on the hospital and the doctor concerned who treated the patient that there was no negligence involved in the treatment.  In any case the hospital is  in better position to disclose what care was taken or  what  medicine was administered to the patient.  It is the duty of the hospital to satisfy that there was no lack of care or diligence”  Here the hospital authority  were stood away from the box of the Forum.  Not  even a single one did not try to enter into the  box and  gave  evidence.   Therefore, doctor alone could not have been held responsible for anything which goes wrong, in the treatment of the patient.  Hospital will have to own its responsibility.  Therefore hospital authorities ie . opp.party 2 , opp.party 3 and opp.party 4 have to be held vicariously liable for the negligence of their employees. 

          The next point to be decided is  what is the quantum of compensation?

          The age of the deceased is not disputed by opp.parties.   At the time of death she was working as a nurse in VSM hospital, Mavelikkara and was drawing a monthly salary of Rs.3600/- Ext.P9 issued by the above hospital.   At the time of death she was in the rank list, published by the Kerala Public Service Commission to recruitment of staff Nurse to the State Health Service.   After her death advice memo dated 11.7.2006 was issued from the District office of Kerala Public Service Commission which is produced and marked as Ext.P10.  The loss sustained to the complainant’s the minor 1½ years of aged daughter of the deceased, and her husband and members of her family was heavy.  Considering Ext.P9 and P10, Rs.10 lakhs on account of loss of income, Rs. 2 lakhs on account of love and affection to child Rs. 2 lakhs as compensation for mental agony, 1 lakh on account of loss of companionship and Rs.10,000/- as cost of proceedings.

          In the result,  complaint is allowed.  Opp.parties 2 to 6 are directed to pay Rs.15 lakhs as compensation to the complainants and also directed to pay Rs.10,000/- as cost of the proceedings.  The compensation amount Rs.15 lakhs to be shared by the complainants equally.   The opp.parties are liable to pay the compensation amount jointly within two months.  If not paid, the amount of compensation shall carry interest  at the rate of 9% till payment.

          Dated this the 24^th day of December, 2012.

I n d e x

List of witnesses for the complainant

PW.1. –A.T. Money

PW.2. –James F Shalone

PW.3. – Deepak Gopinath

PW.4. – Dr. M.K. Jeevan

List of documents for the complainant

P1.    Power of Attorney

P2. – Death certificate

P3. – Postmortem certificate

P4. -  Postmortem report [Chemical examination report]

P5. – Copy of certificate issued  by opp.party 1 dated 19.12.2004

P6. - Certificate  issued by VSM Hospital

P7. – Copy of case sheet

P8. – Copy of FIR [Forn No.1]

P9. – Salary certificate

P10. – Advice memo

X1. – Patient record

X2. –Report of Apex body dt. 27.2.2010

X3. –Investigation report of Directorate of Health Service, Thiruvananthapuram

X4. – Death certificate

X5.  Copy of extract of the Registers remark book

List of documents for the opp.parties

D1. – Circular Memorandum

D2. - Nammudearogyam