BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD
C.D.NO. 50 OF 2006
Between:
1. Raj Kumar Agarwal
S/o Vinod Kumar Agarwal
Age 33 years, Occ: Private Service
2. Yashna Agarwal D/o Raj Kumar Agarwal
age 7 years occ: Student
(rep. by her natural father Sri Raj Kumar Agarwal)
3. Naman S/o Raj Kumar Agarwal
age 7 months (baby)
(rep. by her natural father Sri Rajkumar Agarwal)
All are resident of Flat No.106, 11-20-16/106
Sravanti Apts., Huda Complex, Saroornagar
Hyderabad. Complainants
A N D
1. Farhat Hospital, rep. by Dr.Farhat
Hisamuddin, age Major, Occ: Doctor
Saleem Nagar Colony, Malakpet
Hyderabad
2. Dr.M.Hisamuddin,
age Major Occ; Director (Admn)
Farhat Hospital, Saleem Nagar Colony
Malakpet, Hyderabad
3. Dr.Basheer Ahmed Khan
age Major Occ: Anesthetist, C/o Farhat
Hospital, Saleemnagar Colony, Malakpet
Hyderabad
4. Yashoda Hospital,
Nalgonda X Roads, Malakpet, Hyderabad
5. Durgabai Deshmukh Hospital
Andhra Mahila Sabha, Vidyanagar
Hyderabad
(Impleaded as per order in I.A.No.2908/2006
dt.22.8.2007)
6. The Sr.Divisional Manager
The New India Assurance Co., Ltd.,
No.6-3-862/A/B, II Floor, Lal Bunglow
Green Lands, Ameerpet, Hyderabad
(impleaded as per order in I.A.No.573/09
29.4.2009)
Opposite parties
Counsel for the Complainant Sri Pratap Narayan Sanghi
Counsel for the Opposite parties No.1 to 3 Sri Jalakam Sathyaram
Counsel for the Opposite party No.4 Smt P.Niveditha Reddy
Counsel for the Opposite party No.5 Sri G.Venugopal Rao
Counsel for the Opposite party No.6 Sri K.N.V.Radhakrishna
QUORUM:
SRI SYED ABDULLAH, HON’BLE MEMBER,
AND
SRI R.LAXMINARASIMHA RAO, HON’BLE MEMBER
WEDNESDAY, THE TWELFTH DAY OF MAY,
TWO THOUSAND TEN.
Oral Order: (Per Sri R.Laxminarasimha Rao, Hon’ble Member)
The complaint is filed seeking direction to the opposite parties no.1 to 6 to pay an amount of Rs.11 lakhs towards compensation for physical shock and mental agony, Rs.11 lakhs for loss of amenities of life, Rs.3 lakhs to the complainant no.1 for the loss of matrimonial comfort and Rs.5 lakhs to the complainants’ no.2 and 3 for the loss of love, affection and motherly superintendence and Rs.two lakhs towards medical expenses and Rs.25,000/- towards the legal expenses.
The averments of the complaint are that the complainant no.1 got married to Smt Rekha Agarwal on 7.12.1996. After the marriage they were blessed with the second complainant on 1.6.1999. The second complainant was born through caesarian section in the opposite party no.1 hospital and during the delivery the wife of the complainant no.1 had a minor fluctuation of blood pressure which was explained by the doctors of the opposite party no.1 hospital to be a normal situation for a woman who undergoes for the first delivery. The wife of the complainant no.1 was admitted to the first opposite party no.1 hospital on the advice of the second opposite party on 19.3.2006. On 20.3.2006 the second opposite party advised for caesarian section as there was no possibility of improvement in labour pain. About 9 a.m. on 20.3.2006 the wife of the complainant no.1 was taken to the operation theatre for performing caesarian section and at 10.30 p.m. the second opposite party informed the first complainant that a male child was born.
The wife of the complainant no.1 was not brought out of the operation theatre after two hours of the caesarian operation. The staff of the first opposite party hospital informed the complainant no.1 at 12.30 p.m. that his wife developed some breathing problems and manual oxygen was introduced to her as the opposite party no.1 was not having automatic oxygen inhaling system. At 1 p.m. the complainant no.1 and his father were allowed to see the wife of the first complainant who was on manual oxygen. The doctors in the opposite party no.1 hospital had not informed the complainant no.1 that his wife suffered cardiac arrest and a cardiologist visited the opposite party no.1 hospital. At 4 p.m. the management of the opposite party no.1 hospital negotiated with the opposite party no.6 hospital and the second opposite party insisted on the complainant no.1 to give his consent to shift his wife to Yashoda Hospital Malakpet and she was informed that there was no regular or automatic ventilator in the opposite party no.1 hospital which was essential since his wife suffered from breathing problem. The opposite party no.1 hospital had informed the complainant no.1 that the problem would be cured in a couple of days since his wife developed the breathing problem due to anxiety during the surgery. Believing the version of the opposite parties no.1 and 2 the complainant no.1 had given consent on 20.3.2006 for shifting of his wife from the opposite party no.1 hospital to the opposite party no.6 hospital.
The complainant no.1 for the first time was informed in the opposite party no.6 hospital that his wife was administered with excess dose of anesthesia during the course of caesarian section and consequently there was a cardiac arrest. The first complainant came to know later that anesthetist by name Dr.R.Ramakrishna was summoned by the opposite parties no.1 to 3 to overcome their lapse and his wife was shifted to the opposite party no.6 hospital by the opposite parties no.1 to 3 acting on the advice of the anesthetist as to the seriousness of the issue due to administration of excess anesthesia. Dr.A.Krishna Reddy of the opposite party no.6 hospital had informed the complainant that due to excess dose of anesthesia during the course of caesarian section the complications had developed and the condition of wife of the complainant no.1 was very critical. Due to excess dose of anesthesia the wife of the complainant also developed some neurological problems.
Dr.M.Ramakrishna and Dr.A.Krishna Reddy of the opposite party no.6 hospital informed the complainant that there was hardly any hope for survival of his wife whereupon the complainant no.1 had sought for second opinion from Durga Bai Deshmuk Hospital, Andhra Mahila Sabha, Hyerabad where the doctors opined for the same and promised to make some effort. On 25.3.2006 the complainant no.1 got his wife discharged from the opposite party no.6 hospital and got her admitted to Durga Bai Deshmuk Hospital where she had undergone treatment for five days and ultimately she could not recover any further, she died on 1.4.2006. The complainant no.1 lodged a complaint with the P.S. Malakpet and a case of negligence was registered by the police in Cr.No.91 of 2006 against the opposite parties no.2 and 3. The police raided the opposite partyno.1 hospital and ceased some of the documents from the possession of the opposite party no.1 hospital.
After the death of the complainant no.1 on 1.4.2006, her body was subjected to postmortem examination and the doctor who conducted the PME opined that the death of the wife of the complainant no.1 was due to complications of anesthesia. The opposite parties are guilty of medical negligence. At the instance of the opposite parties no.1 and 2 the third opposite party administered general anesthesia. In the case of caesarian operation general anesthesia is not advisable. Only local anesthesia is always advisable in the case of caesarian section. The case sheet has been tampered, varied and manipulated. The case sheet has not been maintained properly by the opposite party no.1. The treatment given to the patient immediately before she was shifted to the operation theatre and subsequently during and after the operation has not been mentioned in the case sheet. It is only around 12 noon it was mentioned that there was cardiac arrest. After the complications developed during the caesarian section, the case sheet was prepared at one stroke. The opposite parties have not only administered excess dose of anesthesia, they had committed breach of duty in treating the patient. Hence prayed to allow the complaint.
The opposite party no.1 has resisted the claim by filing the counter and contending that the complainant wants to gain the sympathy of this commission by misrepresenting and suppressing the fact. The Dr.Farhat Hisamuddin is a doctor having passed MBBS and DGO from Osmania University and had an experience of 31 years as Obstetrician and Gynaecologist. She worked as Asst. Surgeon in the Government Hospital from 1966 to 1979 and thereafter worked as Asst. Professor, Obstetrics and Gynaecology from 1979 to 1980 at Govt. Maternity Hospital, Hyderabad and from 1980 to 1984 she worked as Obstetrician and Gynaecologist in Kingdom of Saudia Arabia. The opposite party no.1 hospital is equipped with operation theatre with instruments for anesthesia and surgery including Boyles Apparatus, pulse oxymeter, ECG machine, Electro Cautery Machine, Laparoscopic instrument and CTG machine and it is supported by a clinical laboratory for routine investigations and a standby generator.
The caesarian section was done on the wife of the complainant no.1 by the Dr.Farhat Hisamuddin under general anesthesia administered by the opposite party no.3 on 20.3.2006. The patient was admitted on 19.3.2006 for elective caesarian section on 20.3.2006. She was gravida-III, para-I, first LSCS, second ectopic pregnancy ( Left) indication for caesarian section. Previous caesarian section with previous ectopic with relative CPD in early labour. The Dr.Farhat Hisamuddin had made an incision through scar of previous caesarian section. Lower segment was opened after dissecting and pushing down the UV fold of peritoneum, liquid was cleared and head was above the brim. A male baby of 3.5 kgs was delivered by forceps at 10.34 a.m. The baby was vigorous and cried immediately, plancenta with membranes were removed entirely, uterus was well retracted and closed in layers. Adenexae were explored, right tube and ovary were normal. Left tube was absent due to the previous salpingectomy done for ectopic pregnancy and left ovary was normal. Blood loss was minimal. After finishing surgery and after the patient was extubated, Dr.Farhat Hisamuddin scrubbed out and started writing the operation notes in the operation theatre. While shifting the patient from the operation theatre table to the trolley the opposite party no.3 noticed that the patient was cyanosed. The opposite party no.3 after informing the Dr.Farhat Hisamuddin resussicated the patient. The patient was pulse less. Dr.Farhat Hisamuddin assisted the opposte party no.3 in resuscitating the patient and monitored the vital signs i.e., pulse rate, blood pressure, SPO2 and frequently checked for any bleeding PV.
Dr.Farhat Hisamuddin informed the attendants and the complainant no.1 of the patient about the complications and told them that if need arises the patient could be shifted to Superspeciality hospital. On request of the opposite party no.2 Dr.Farhat Hisamuddin called Dr.Mukesh Rao, Cardiologist, Yashoda Hopsital Hyderabad who gave his findings and his advice was followed. Dr.Farhat Hisamuddin had contacted Yashoda Hospital and arranged for an ambulance with ventilator support. At 3 p.m. the vital signs of the patient became stable and at that time the opposite parties no.2 and 3 decided to shift the patient to Yashoda Hospital for better ventilator support and further management. The condition of the patient and requirement for ventilator support was explained to the attendants of the patient and after obtaining the written consent of the complainant no.1 and his father the patient was shifted to Yashoda HOospital Malakpe Hyderabad.
Under the supversion and management of Dr.Ramakrishna, anesthetist Yashoda Hospital, the patient was shifted to Yashoda Hospital with ventilatory support at 3.30 p.m. on 20.3.2006 after taking endorsement on the referral letter for taking over the patient by Dr.Ramakrsihna of Yashoda Hospital. The patient had her first caesarian section conducted by the Dr.Farhat Hisamuddin about six years prior to the date of her admission for the second time delivery. Unforeseen complications do arise in the medical field. The cardiac arrest which occurred after the operation was detected immediately and handled properly by the opposite partyno.3. The routine test needed during the pregnancy was done for the patient. The operation notes were written and the sequence of events and treatment given in detail were written by the opposite partyno.1 in the case sheet then and there in the operation theatre.
On 24.4.2006, the A.P.Medical Council sought for explanation in regard to the treatment given to the patient by the opposite parties no.2, 3 and Dr.Farhat Hisamuddin and they submitted their explanation in the form of affidavit to the opposite party no.1 who in turn forwarded the same to the Registrar, Andhra Pradesh, medical Council, Hyderabad. The A.P. Medical Council had given expert opinion on the treatment given to the wife of complainant no.1 at opposite partyno.1 hospital through letter 19.9.2006 in the case in regard to the complaint lodged by the complainant no.1 with the police PS Malakpet. Expert opinion was that “ the caesarian section was performed by Dr.Farhat Begum, the Sr. experienced gynecologist. There was no complication during surgery, the observation of the ethical and malpractices committee were placed before the general body of A.P.Medical Council in its meeting held on 10.9.2006. The general body has accepted the observation of the ethical and malpractice committee.
The most experienced and competent anesthetist opposite partyno.2 was called to administer to the wife of the complainant no.1. The senior anesthetist was called to give anesthesia as and when required to the patient in the oppose partyno.1 hospital. The opposite party no.3 is not the employee of opposite parytno.1 hospital. The original case sheet containing 30 pages, three ECGs have been in the possession of the police, PS Malakpet since 21.3.2006. There was no negligence on the part of the opposite party no.1. Hence, prayed for dismissal of the complaint.
The opposite party no.2 in his counter has reiterated the contents of the counter filed by the opposite party no.1 besides contending that he had done pre-operative assessment on 20.3.2006 whereby he checked the pulse rate, BP and found them normal as also the heart and lungs. Pre-medication atropine .06mg IM given two hours prior to the surgery. Nothing by mouth over night was reconfirmed . The informed consent was confirmed. General anesthesia was planned by him. The patient was shifted to the operation theatre where BP, SPO2 and pulse rate were checked. IV line was working well with 5% dextrose running at the rate of 100-120cc/hr. A surgical team headed by Dr.Farhat Begum was given signal to start the case. The opposite party no.3 started anesthetizing the patient. He gave pre-oxygenation for three minutes. At 10.20 a.m. he had given injection thyiopentone sodium 350 mg IV given slowly followed by injection Suxamethonium 100mg IV given. Endotracheal tube No.7 was passed and cuff inflated. N2O + O2 + vecuronium 4mg IV was given and IPPV was continued. Dr.Farhat Begum started the case and patient delivered a male baby at 10.34 a.m. Placenta was removed completely. At that time the opposite partyno.3 gave injection Syntocinon 10 units in 5% dextrose injection taxim IG IV given after the delivery of the baby boy.
After the surgery everything was found normal. Dr.Farhat scrubed out and started to write the case sheet in the theatre itself. All the vital signs namely, PR, BP SPO2 were found within normal range through out the intraoperative procedure. The patient was reversed by giving atropine 1.2 mg + Prostigmine 2.5 mg IV. Endotracheal toilet was done. Endotracheal tube was removed. The patient developed normal reflexes. Then the opposite party no.3 gave injection fortwin 30mg diluted in 10cc IV slowly for post operative analgesia. At 11 a.m. while shifting the patient from the operation theatre table to the trolley the opposite party no.3 noticed that the patient became cyanosed and he checked the radial pulse, carotid pulse were absent and heart sound was very feeble. Cardiac arrest was noticed. He immediately gave a pre-cardial thump and cardiac compressions and 100% oxygen was given. The patient was re-intubated by him again with cuffed endotracheal tube no.7 cuff inflated and 100% oxygen was instituted. He immediately called for help and the Dr.Farhat Begum was present there started to help in doing CPR.
Dr.Mukesh Rao of Yashoda Hospital was summoned by the opposite party no.1.. The CPR was successful. The heart of the patient picked up the rhythm and later on a regular sinus rhythm was established but tachy cardia was persisting . At 1.p.m. 100% oxygen was continued to be given . The patient was improving. Her pupils were reacting to light. At 2p.m. th patient shown further more signs of recovery following the advice of the cardiologist and keeping in view of the prevailing situation, the opposite partyno.1 decided to shift the patient to Yashoda Hospital at 3 p.m. after the anesthetist from Yashoda Hospital examining the patient and ascertained all the findings of the opposite parties no.1 to 3.
The patient was treated with utmost care and skill at opposite party no.1 hospital. When the complications arose they were detected immediately and efficiently handled without any delay. On 21.3.2006 at about 7 p.m. the Inspector of Police, Malakpet PS came to the opposite party no.1 hospital and informed them that they received a complaint from the complainant no.1 that the doctors at the opposite party no.1 hospital negligently treated his wife. The police had seized the case sheet along with three ECG reports of the patient after the opposite party no.1 had taken the Xerox copies of the document. The opposite party no.2 had submitted explanation to the A.P. Medical Council regarding treatment given to the wife of the complainant no.1. The explanation of the opposite parytno.2 was based on the explanation of the opposite party no.3 and Dr.Farhat Begum.
The complainant no.1 had not paid Rs.30,000/- to the opposite partyno.1 hospital. He had paid a sum of Rs.9,225/- only to the opposite party no.1 hospital.
The opposite party no.3 has reiterated the contents of the counter filed by the opposite parties no.1 and 2 besides contending that there was no tampering variation or manipulation of the case sheet and that excess dose of anesthesia was not administered by him to the patient. Had there been any excess dose of anesthesia the patient would have developed cardiac arrest, even before the surgery was begun. No operation could be undertaken unless and until the patient is anesthetized with table parameters. The case was closed by the police after conducting investigation and coming to the conclusion that a false complaint was lodged by the complainant no.1.
The opposite party no.4 has filed counter contending that there are no allegations of negligence in the complaint against the opposite party no.4 hospital. The entire allegations in the complaint are made against the opposite parties no.1 to 3. The opposite party no.3 is not responsible for the condition of the patient complained of. The patient was shifted to opposite party no.4 hospital on the evening of 20.3.2006 and she was shifted therefrom to the opposite party no.5 hospital on 25.3.2006. The opposite party no.4 hospital tried its level best to revive the condition of the patient. The opposite party no.4 has not advised the opposite party no.1 to shift the patient from the opposite party no.1 hospital. The patient was admitted to the opposite party no.4 hospital in critical condition. On the request of the complainant no.1 the patient was discharged from opposite party no.4 hospital. The opposite party no.4 had not informed the complainant no.1 that the condition of the patient was due to negligence on the part of the opposite parties no.1 to 3. The opposite party no.4 hospital has not refused to furnish the copies of the documents sought for by the complainant no.1. In the matter of caesarean operation, there is no universal rule that general anesthesia should not be given. The complainant no.1 has discharged his wife from the opposite party no.4 hospital against the medical advice and admitted her in the opposite party no.5 hospital. The opposite party no.4 is not responsible for the events resulting in the death of the wife of the complainant no.1.
The complainantno.1 has filed his affidavit. The documents on behalf of the complainants are marked as ExA1 to A9.
The opposite parties no.1 to 3 have filed their respective affidavits and got marked ExB1 to B30.
The points for consideration are:
1. Whether there was deficiency in service on the part of the
opposite parties in treating the deceased wife of the complainant
no.1?
2. To what relief?
POINT NO1: The wife of the complainant no.1 and the mother of the complainants no.2 and 3 was pregnant and on 19th March,2006she was admitted to the opposite party no.1 hospital for caesarean section to be conducted on 20th March,2006. She was Gravida III with 2nd ectopic pregnancy. On 20th March,2006 Mr.Farhat Hisamuddin performed cesarean section under general anesthesia given by the opposite party no.3 who was assisted by Dr.Geetha and a nurse, Linymol Varhese. A male baby was delivered, the uterus was well retracted and closed in layers.While shifting the patient from the operation theatre table to the Trolley, the opposite party no.3 observed that the patient was cyanosed and he had called for the opposite party no.1.
Mr.Farhat Hisamuddin has stated that the operation theatre in the opposite party no.1 hospital was equipped with instruments with for anesthesia and surgery including Boyles Apparatus, pulse oxymeter, ECG machine, Electro cautery Machine, Laparoscopic instruments and CTG machine. She has stated that the hospital was supported by a clinical laboratory for routine investigations and a standby generator of 6.5 KV. This statement of the opposite party no.1 has been reiterated in the counter filed by the opposite party no.2. The facilities stated to have been available in the hospital of the opposite party no.1 in the light of the contention of the complainants that there was no oxymeter and such other like equipments in the opposite party no.1 hospital.
The complainant no.1 has stated that the opposite party no.1 hospital had lacked the essential equipments and his wife was kept on manual oxygen as there was no automatic oxygen inhaling system. The opposite party no.1 has stated that the hospital was well equipped and as a full fledged operation theatre with all the necessary equipment and instruments such as pulse oxymeter and Boyle’s Apparatus. The opposite parties no.1 and 2 have not filed any documents in support of their contention that the opposite partyno.1 hospital was well equipped to combat any grave situation.
The complainants’ version is that the opposite parties no.1 to 3 had mishandled the wife of the complainant no.1 and they had not negligently treated her as also they kept the complainants in dark about the condition of the patient. The complainant no.1 lodged complaint before the Police, Malakpet Police Station, Hyderabad in regard to the negligent treatment at the opposite party no.1 hospital. The police registered a case in crime number 91 of 2006 under section 336 of IPC. The patient was shifted to Durgabai Deshmukh Hospital on 25th March,2006 for better treatment where on 1st April,2006 she died while undergoing treatment.
Dr.Farhat Hisamuddin has stated that after the operation when the patient was shifted from the operation theatre to the Trolley, the opposite party no.3 has noticed that the patient was cyanosed and called the opposite party no.3 and told her that the patient was cyanosed and suffered cardiac arrest. The opposite party no.3 resuscitated the patient while the opposite party no.1 had monitored the vital signs such as pulse rate, blood pressure, SPO2 and checked for any bleeding PV. She has informed about the patient’s condition to the complainant no.1 and his mother about the complication and the likelihood of the patient being shifted to Yashoda Hospital. Further, she has stated that on the advice of the opposite party no.3 she has called Dr.Mukesh Raj,cardiologist, Yashoda Hospital whose advice was followed and the patient was shifted to Yashoda Hospital when the vital signs of the patient became stable at 3 P.M. on 20th March,2006.She has stated that the cardiac arrest was detected immediately and was handled properly by the opposite party no.3
The opposite party no.3 is the anesthetist. He has stated that he had done preoperative assessment in the morning on 20th March,2006 and found the pulse rate, blood pressure, heart and lungs normal. He had given premedication atropine 0.6mg 1M half an hour prior to surgery. He has stated that all the vital signs of the patient were in normal range through out the intra operative procedure. Further, he has stated “ the patient was reversed by giving Atropine 1.2mg + Prostigmine 2.5mg IV, Endo tracheal toilet was done. Endo tracheal tube was removed. At this state patient developed normal reflexes”. According to the opposite party no.3 he had injected Fortwin 30mg diluted in 10CC IV for post operative analgesia and at 11.00 a.m. he had noticed that the patient become cyanosed while she was shifted from the operation table to the trolley.
The complainants have submitted that the obstetric case record issued by the opposite partyno.1 hospital is tampered with as also the opinion of the A.P.Medical Council was arbitrary and not based on the relevant documents. The A.P. Medical Council had given reply dated 19.9.2006 to the letter dated 18.4.2006 issued by the Inspector of Police, Malakpet that the ethical and malpractices committee observed that there was no time lost in recognition and carrying out the necessary resuscitative measures and obtaining advice from Specialist. The ethical and malpractices committee was of opinion that there was no negligence on the part of the doctors of the opposite partyno.1 hospital, the opposite party no.4 and opposite partyno.5. The Obstetric case record issued by the opposite party no.1 hospital has a mention of examination of the new born baby, consent said to have been obtained from the complainant no.1 and his deceased wife, laboratory investigations etc. A perusal of the obstetric case record issued by the opposite party no.1, makes it clear that at page 13 the progress and the treatment details are mentioned at 7 a.m., 8 a.m. and thereafter 12 noon on 20.3.2006. Interestingly, at the 15th page an endorsement has been made that it is anesthesia notes and continued from last pages. Again the proceedings were noted from 11 a.m. and it has been recorded till 3.30 p.m. A genuine doubt can be entertained as to what made the opposite parties no.1 to 3 to record the case proceedings at page no.14 despite the fact that it was recorded at page 13 of the case sheet. Besides the material discrepancy aforementioned, there is an unauthorized correction of time at page 14 as 3.45 p.m. while it was originally written 3.30 p.m. Another material discrepancy is with regard to the values of the PR, BP etc., mentioned at page 13 which are recorded as 150/mt, 90 (systolic) respectively which again have been noted at page 19 corresponding to the same time i.e., 12 noon, as 180, 60/20. the opposite parties no.1 to 3 have not explained as to the discrepancy relating to the recording of value of PR and BP differently at different pages relating to the same time.
The contention of the learned counsel for the complainant is that the opinion expressed by A.P.Medical Council is not based on the relevant records. The A.P. Medical Council has given its opinion in regard to the query made by the Inspector of Police, PS Malakpet. Interestingly, the A.P. Medical Council has expressed its opinion that there was no negligence on the part of the doctors of the three hospitals, the opposite parties no.1, 4 and 5 hospital whereas the Inspector of police has just sought its opinion in regard to the negligence of the doctors at opposite party no.1 hospital as the complaint was lodged and FIR was issued against the opposite party no.1 hospital. The learned counsel for the complainants had submitted that the A.P.Medical Council had not based its opinion on the report of PM Examination which is an essential document insofar as the medical negligence of the doctors who treated the disease was concerned. Admittedly, the A.P.Medical Council are the Ethical and Malpractices Committee which had considered the complaint lodged by the police, Malakpet, case record and ECG reports had not referred to nor considered the report of PM Examination before coming to a conclusion whether there was negligence or not on the part of the doctors who treated the deceased.
The Hon’ble Supreme Court in “Ramesh Chandra Agarwal Vs Regency Hospital Limited and others” reported in 2010 NCJ 1 held that the evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. The Apex Court concluded that “where the experts give no real data in support of their opinion, the evidence even though admissible may be excluded for consideration as affording no assistance in arriving at the correct value”.
It is pertinent to note that the cause of death as seen from the report of postmortem examination is due to “complications of anesthesia”. The opposite parties no.1 to 3 have not made any whisper in regard to the complications that arose on account of the administration of anesthesia to the deceased wife of the complainant no.1. This attitude of the opposite parties no.1 to 3 is exhibited by suppression of the purpose of visit of Dr.Rama Krishna, Anesthetist who had transferred the patient from opposite party no.1 hospital to opposite party no.4 hospital. The version of the opposite parties no.1 to 3 is that they had called for Dr.Mukesh Rao, Cardiologist of opposite party no.4 and followed his advice from 12 noon till 3.30 p.m. in such case, the question as to why the anesthetist from opposite party no.4 hospital was required to come to the opposite party no.1 hospital is left unanswered. The complainants have contended that the opposite party no.3 who administered the anesthesia to the patient was inefficient. The complainant no.1 has stated that they had senior anesthetists at their disposal and as per availability it would engage their services. However, there was no explanation forthcoming from the opposite party no.1 as to the visit of Dr.Ramakrishna, anesthetist from the opposite party no.4 hospital when there was no any complications relating to the anesthesia given to the patient.
The whole gamut of the case rests on the aspect of anesthetist complications. The opposite parties no.1 to 3 against whom it was strenuously contended that the negligence was apparently manifest while treating the deceased during the time she was admitted to the opposite party no.1 hospital till she was shifted to the opposite party no.4 hospital. As aforesaid, the opposite party no.3 has stated that he had done pre-operative assessment in the morning on 20.3.2006 whereby he had checked pulse rate, BP and lungs functioning. He had given pre-medication atropine .6mg 1M half an hour prior to the surgery. In the operation theatre, he states that, he had checked BP SPO2 and pulse rate. IV line was working well with 5% dextrose running at the rate of 100 to 120 cc per hour. He gave pre-oxygenation for three minutes. At 10.20 a.m. he had given injection Thiopentone Sodium 350 mg IV followed by Suxamethonium 100 mg IV, Endo tracheal tube no.7 was passed and cuff inflated. N2O + O2+ Vecuronium 4mg was given and IPPV continued. After the operation, he had given Syntocinon 10 units in 5% dextrose. Inj. Taxim IG IV after the delivery of baby boy. He had given atropine 1.2mg + Prostigmine 2.5 mg IV so that the patient is reversed and he had removed the endotracheal tube.
The opposite party no.3 had preferred to administer general anesthesia to spinal anesthesia. He had stated that in the morning on 20.4.2006 he had done pre-operative check of the patient. He had not mentioned how much time prior to the time of operation he had conducted the pre-operative check up. The opposite party no.3 had not examined the mouth as to any abnormality of the teeth, nasal passage, temporomandipular joint moment, cardio vascular system, respiratory system to ascertain these parameters were normal and that there was no anatomical abnormality. There can be no second opinion about the doctor or the anesthetist adopting a course of treatment. When the two procedures, general anesthesia and spinal anesthesia are available to the opposite party no.3, it is for him to choose any of those procedures, however, the interest of the patient should be the paramount consideration while adopting the procedure, general anesthesia. Usually it is said that spinal anesthesia compared to the general anesthesia is less risk prone and in the circumstances, it is for the opposite party no.3 to come out with a clear explanation as to why he had adopted general anesthesia. As aforesaid, adopting the procedure itself is not a criterion to find fault with the treatment of the patient administered by the opposite party no.3. However, the opposite party no.3 keeping silent and by not bringing forth the circumstances wherein he had chosen to adopt general anesthesia would certainly point out the finger of suspicion, in regard to the procedure adopted, at him.
The complainants have established the onus of proof initially lies upon them that the deceased wife of the complainant no.1 was hale and healthy on 20.3.2006 and all the complications that occurred on the same day or on account of administration of excessive anesthesia and negligent treatment of the opposite parties no.1 and 2 and thus the complainants have established the cumulative effect of negligence on the part of the opposite parties no.1 to 3. The opposite parties no.1 to 3 had not adduced any evidence except stating that there was no negligence on their part and placing reliance on the opinion of Ethical and Malpractices Committee which as aforesaid had not considered all the aspects before coming to a conclusion in regard to the aspect of the negligence on the part of the opposite parties no.1 to 3.
In “Savita Garg (Smt.) v. Director National heart Institute, VI (2004) SLT 385”, the Hon’ble Supreme Court held that “"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital.
In “Spring meadows Hospital and another V. Harjol Ahluwalia through K.S.Ahuluwalia and another” reported in I(1998) CPJ 1 (SC), the Apex Court held “ gross medical mistake will always result in a finding of negligence. Use of wrong gas during the course of anaesthetic will frequently lead to the I positon of liability and in some situations even the principle of res ipso loquitor can be applied.”
The opposite party no.4 has placed on record the admission record of the deceased wife of the complainant no.1. At page no.10 the cardiologist, Dr.Mukesh Rao has recorded the history as revealed to him by the opposite party no.3 that on telephonic call he (Dr.Mukesh) at 11.30 a.m. he was informed that the patient suffered “post-operative cardio respiratory rest”. Immediately after the surgery as the patient was extubated and shifted on to the trolley anesthetist noticed cyanosis with feeble pulse and unrecordable BP. Then she was immediately intubated and CPR was done/IV atropine/ IV adrelene given; by the anesthetist. At that time I have seen the patient at 12 noon on my arrival to private nursing home”. Thus according to the cardiologist of opposite party no.4 hospital surgery was done at 11 a.m. and he was given a telephonic call at 11.30 a.m. The opposite party no.3, Basheer Ahemed Khan has stated that he had given pre-oxygenation at 10.20 am for three minutes and the opposite party no.1 started the case and delivered a male baby at 10.34 a.m. It is his version that he had resuscitated the cardiac arrest being helped by Dr.Farhat Hisamuddin and even before the cardiologist from opposite party no.4 hospital arrived at 12 noon, the resuscitation process was completed.
The complainant no.1 has stated that the opposite party no.1 hospital had not informed him about the cardiac arrest suffered by his wife nor was he informed about the visit of the cardiologist of the opposite party no.4 hospital till 4 p.m. on 20.3.2006. He has stated Dr.Farhat Hisamuddin insisted him to write a letter giving consent to shift his wife to opposite party no.4 hospital and he was made to give consent on being informed that there was no regular or automatic ventilator in the opposite party no.1 hospital as the ventilator is essential for breathing problem suffered by his deceased wife. It is the case of the complainants that the opposite party no.1 had informed him that the problems arose on 20.3.2006 in the opposite party no.1 hospital to his deceased wife would be cured in a couple of days therefrom as those problems arose on account of anxiety of his wife during the course of surgery.
Dr.Mukesh of opposite party no.4 hospital had not recorded any suggested treatment on his arrival at the operation theatre of the opposite party no.1 hospital. The admission record of opposite party no.4 hospital containing findings of cardiologist Dr.Mukesh runs as under:
Patient was resuscitated and CPR was already done. And she was advised to be shifted to higher centre in view of critical condition. Guarded prognosis explained to the anesthetist and treating gynaecologist. The need for shifting to higher centre explained to anesthetist and gynaecologist
The cardiologist of opposite party no.4 had suggested the opposite parties no.1 to 3 to shift the patient to the opposite party no.4 hospital in view of the critical condition of the patient as also for the reason that the opposite party no.4 is a higher centre compared to the opposite party no.1 hospital. Even according to the opposite parties no.1 to 3, the cardiologist of opposite party no.4 hospital advised them to shift the patient to a higher centre at 12 noon and the patient was shifted to the opposite party no.4 hospital from the opposite party no.1 hospital at 3.30 p.m. or as per the correction of time made in the record of the opposite party no.1 hospital at 3.45 p.m. Admittedly, the patient was undergoing a critical condition and she was immediately to be shifted to the higher centre as seen from the advise of Dr.Mukesh of the opposite party no.4 hospital.
The complainant no.1 has stated that on 20.3.2006 Dr.Farhat Hisamuddin had informed him that his wife has to undergo ceasarean section else there would be a threat to the mother and the ward. At 9.30 a.m. the deceased was taken to the operation theatre and at 10.30 a.m. Dr.Farhat Hisamuddin informed him that he was blessed with a male child. It is the contention of the complainants that the opposite parties had not recorded in the case sheet the treatment undertook by the doctors immediately or before taking the patient to the operation theatre or during the course of operation. Thus, according to the complainant no.1 the opposite parties no.1 to 3 had not informed him of the treatment to be undertaken prior to the operation and during the course of operation. The opposite party no.2 had stated that nothing had been kept in dark with the patient by Dr.Farhat Begum. Dr.Farhat has stated that she has informed the patient’s attendants repeatedly of the developments. The complainant no.1 has stated that the opposite party no.1 informed the parents of the deceased that she developed some breathing problems and at no point of time the opposite parties no.1 to 3 had informed that the deceased suffered cardiac arrest. This fact takes us to the aspect of consent mentioned at page nos. 4 and 5 of Obstetric Case Record issued by the opposite party no.1 hospital. The consent form shows that the complainant no1 and his deceased wife signed both the forms, one for the deceased to undergo ceaserean section and another for sterilization. In the wake of the contention of the complainant no.1 that he was not informed of the treatment given by the opposite parties no.1 to 3, the endorsement on the consent for application for sterilization operation gains much significance as it reads “ patient consented for lap sterilization after six months after the child grows strong….” By this endorsement an inference can be drawn that the complainant no.1 and his wife were not informed of the nature of operation, liabilities and complications resulting from the operation and anesthesia .
In “Samira Kohli Vs Dr.Prabha Manchanda and another” in Appeal (civil) 1949 of 2004 the Apex Court held as follows:
'when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy'. The doctor, therefore, is required to communicate all inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely effect if the patient remained untreated. This stringent standard of disclosure was subjected to only two exceptions : (i) where there was a genuine emergency, e.g. the patient was unconscious; and (ii) where the information would be harmful to the patient, e.g. where it might cause psychological damage, or where the patient would become so emotionally distraught as to prevent a rational decision. It, however, appears that several States in USA have chosen to avoid the decision in Canterbury by enacting legislation which severely curtails operation of the doctrine of informed consent.’
The opposite parties no.1 to 3 failed to prove that there was no negligence on their part. As aforesaid the opposite parties no.1 to 3 had rendered negligent medical service to the deceased wife of the complainant no.1. We do not intend to proceed against the opposite parties no.4 and 5 in the absence of specific allegation of medical negligence against them. The opposite party no.6 is the insurer of the opposite party no.4 hospital. The opposite party no.6 had issued error and omissions insurance policy (Professional Indemnity) for the period from 1.4.2005 to 31.3.2006. The treatment rendered by the opposite party no.4 to the wife of the complainant no.1 was during the period the policy was in force. However, as the complainants had not made specific allegation in regard to the medical negligence on the part of the doctors of the opposite party no.4 hospital, as such the opposite party no.4 hospital cannot be held liable to pay any amount to the complainants. In the circumstances, the opposite party no.6 being the insurer cannot be saddled with the liability of payment of any compensation since the insurer’s liability is co-existent with the liability of the insured, in this case the doctors of the opposite party no.4 hospital. In the circumstances, the complaint deserves to be allowed against the opposite parties no.1 to 3 and is liable to be dismissed against the opposite parties no.4 to 6.
Coming to the question of quantum of compensation to be awarded, it is stated on behalf of the complainants that the deceased was 31 years old at the time of her death and was a housewife. Though it is mentioned in the consent form that she was a private employee, there is no evidence nor any plea by the complainants to the effect. Her income as the housewife can only has to be considered. The complainants claimed an amount of Rs.32,25,000/- which has not been substantiated nor supported by any evidence. The complainants no.2 and 3 being minors aged 7 years and 7 months old respectively as on the date of filing of the complaint and taking consideration of loss of affection, motherly superintendence, feeding etc., and also the loss suffered by the complainant no.1, we award an amount of Rs.3 lakhs on all counts. Accordingly the complaint is allowed.
In the result the complaint is partly allowed directing the opposite parties no.1 to 3 to pay a sum of Rs.3 lakhs together with costs of Rs.2000/-. On deposit of the amount, a sum of Rs.2.50 lakhs shall be invested in fixed deposit with any nationalized bank by the office in the name of the complainants no.2 and 3 till they become major and the complainant no.1 entitled to withdraw the balance amount of Rs.50,000/- and interest accrued on the amount deposited in the name of the complainants no.2 and 3. Time for compliance four weeks. The complainant against the oppose parties no.4 to 6 dismissed.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANTS OPPOSITE PARTIES
PW1 Mr.Raj Kumar Agarwal (complainant) None
DOCUMENTS MARKED
FOR COMPLAINANTS:
Ex.A1 Copy of letter dated 21.03.2006 addressed by the complainant
no.1 to the SHO Malakpet
Ex.A2 Copy of FIR dated 21.03.2006
Ex.A3 Copy of requisition for PM examination dt.2.4.2006
Ex.A4 Copy of letter dt.18.04.2006 addressed by the SI of Police
Malakpet to the Registrar AP Medical Council
Ex.A5 Copy of letter dated 19.4.2006 addressed by the Registrar to the
Medical Superintendent Farhat Nursing Home
Ex.A6 Copy of letter dated 19.9.2006 addressed by the Registrar to the
Inspector of Police
Ex.A7 Copy of Obstetric Case Record
Ex.A8 Copy of Death Certificate dated 1.4.2006
Ex.A9 Vakalat
FOR OPPOSITE PARTIES
Ex.B1 Copy of Case Sheet of mrs Rekha Agarwal
Ex.B2 Copy of letter of Inspectof of Police, PS Malakpet dt.18.4.2006
Ex.B3 Copy of expert opinion by the Registrar A.P.Medical
Council dt.19.4.2006
Ex.B4 Copy of letter dated 2.5.2006 addressed by Farhat Hospital to
the Registrar A.P.Medical Council
Ex.B5 Copy of affidavit of Dr.Mrs Farhat Begum submitted to the
the Registrar APMC
Ex.B6 Copy of Registration Certificates
Ex.B7 Copy of expert opinion dt.19.9.2006
Ex.B8 Copy of receipt of original case sheet
Ex.B9 Copy of Obstetric Case Record
Ex.B10 Copy of cash memo dated 21.3.2006
Ex.B11 Copy of letter dt.18.04.2006 addressed by the SI of Police
Malakpet to the Registrar AP Medical Council
Ex.B12 Copy of letter dated 19.4.2006 addressed by the Registrar to the
Medical Superintendent Farhat Nursing Home
Ex.B13 Copy of affidavit of Dr.M.Hisamuddin
Ex.B14 Copy of MBBS certificate
Ex.B15 Copy of Medical Registration Certificate
Ex.B16 Copy of affidavit of Dr.Farhat Begum
Ex.B17 Copy of MBBS Certificate of Farhat Begum
Ex.B18 Copy of Affidavit of Dr.Basheer Ahmed Khan
Ex.B19 Copy of MBBS Certificate
Ex.B20 Copy of Receipt dted 3.5.2006
Ex.B21 Copy of letter dated 19.9.2006 addressed by the Registrar to the
Inspector of Police
Ex.B22 Copy of Obstetric Case Record
Ex.B23 Copy of letter dt.18.04.2006 addressed by the SI of Police
Malakpet to the Registrar AP Medical Council
Ex.B24 Copy of letter dated 19.4.2006 addressed by the Registrar to the
Medical Superintendent Farhat Nursing Home
Ex.B25 Copy of letter dated 2.5.2006 addressed by Dr.M.Hisamuddin to
the Registrar APMC
Ex.B26 Copy of affidavit of Dr.Basheer Ahmed Khan
Ex.B27 Copy of MBBS Degree of Basheer Ahmed Khan
Ex.B28 Copy of letter dated 19.9.2006 addressed by the Registrar to the
Inspector of Police
Ex.B29 original Case sheet of Yashoda Hospital
Ex.B30 Letter dated 18.3.2008 of Yashoda Hospital to the Sr.Divisional
Manager, the New India Assurance Co., Ltd.
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