IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the   30^th   Day of  July  2020

  Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                        Smt.S.Sandhya Rani, BSc,LL.B, Member

          Sri.Stanly Harold, B.A.LLB, Member

                                                        CC No.01/2008

Samuel Aniyan Kunju

Vennattilsseru Veedu,Cheravalli,

Kayamkulam (P.O.)

Karthikappally Taluk,Alappuzha.                         :           Complainant

 (By Adv. George Varghese)

V/s

1. Fr.Ferdinand Peter,

Managing Director,

Bishop Benziger Hospital, Kollam

(By Adv.Riyas S.)

2. Dr.Joseph Edward,

Bishop Benziger Hospital, Kollam

(By Adv. A.Sudheer Bose)

3. Dr.R.Mohan Kumar,

Bishop Benziger Hospital, Kollam

(By Adv. A.Sudheer Bose):Opposite parties

ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

1.         This is a case based on a consumer complainant filed Under Section 12 of the Consumer Protection Act. 

The averments in the complaint in short are as follows:-

2.         The complainant is the father and one the legal heirs of the deceased Philip.  The complaint has been filed by the complainant for himself and on behalf of other legal heirs who are the mother and siblings of the deceased Philip.  The said Philip had undergone Maxillofacial surgery at the 1^st opposite party Benziger Hospital, Kollam  for removing the defects of  his face and died while he was under post-operative treatment.  According to the complainant in order  to avoid the defects of the face , the deceased Philip approached the 2^nd opposite party doctor  Joseph Edward who suggested to conduct an Orthogenetic surgery to his  mid face. The 3^rd opposite party is the consultant Anaesthetic.  As advised by the 2^nd opposite party doctor   the deceased Philip  got admitted at the  1^st opposite party hospital on 04.06.2007.  Investigations were conducted by the doctors of the said hospital and they found that the deceased was fit for undergoing the surgery.  On the next day ie, on 05.06.07 at about 11 am surgery was started by 2^nd opposite party Dental surgeon and  Anaesthetic Dr.Mohan Kumar and it was ended only at 7.30 pm.  After surgery the patient  was shifted to the post-operative ward of the 1^st opposite party.  On the next day ie, on 06.06.07 at 10 am endotracheal tube was extubeted from the patient by the 3^rd opposite party.  As the  patient developed respiratory distress  which affected all the vital organs and caused Cardiac arrest which was avoided by an emergency stab tracheostomy.  The cause of death was due to respiratory distress after the extubatian of endotracheal tube.  As the difficulties experienced by the patient could not be managed properly by the 2^nd and 3^rd opposite parties and other doctors in exact time,  vital organs such as brain, kidney etc. failed and caused death of the deceased Philip due to  cardiac arrest.  The respiratory distress were developed from the edima of the neck of the patient due to negligent and inexperienced conduct of orthogratic surgery by opposite party 2^nd and 3^rd. Hence the opposite party doctors and the management of the1st opposite party hospital are liable for the death of the deceased Philip and they are also answerable under criminal and tortuous liabilities.

3.         It is further alleged that opposite party No.1 to 3 ought to have sought the assistance of expert doctors including  General Surgeon or plastic surgeon in conducting the surgery.  But they failed to do so.  The lack of experience of the 2^nd opposite party doctor in conducting operation complicated the matter and ultimately the patient died.  Though the opposite parties were having sufficient knowledge that there is every chance of causing death due to the inexperience and lack of knowledge of the doctor who conducted operation,  they have concealed that fact and also denied permission to the relatives of the deceased to remove the patient to a higher center  for better management.  Opposite party No.1 to 3 have not granted permission inspite of repeated request only to conceal  the inefficiency and negligence of the doctor who conducted operation.  It is further alleged that the police has registered Crime No.691/07 of Kollam East Police Station in respect of the death caused due to the negligence of the opposite parties.  But police has not filed final report due to the influence of the opposite party hospital and doctors.  They have not completed the investigation till date by finding out baseless reasons and also fabricating false evidence solely with a view to protect the opposite parties from the clutches of law.

4.         It is also alleged that the deceased Philip was a B com II^nd year student at MSM College Kayamkulam.  He was a best student and have passed all the examination written by him with high marks.  Furthermore he is a member of family having high status that his parents and brothers are living in high status. Even during the studies the deceased Philip was very helpful to the family and the society that he was having a very good character and promptly carried out his duties and was having  high status in the society.  The untimely death of the deceased has caused much grievance to his parents and other family members and have caused much difficulty in suffering the impact of the untimely death of the deceased.  If he was alive he would have protected his parents and brothers and his contribution to the family by his earnings education and direction cannot be calculated at all.  He would have attained a very better job and would have earned much to the family. In the absence of the deceased Philip the loss caused to the family is very heavy.  If at all any compensation would not make amend the loss caused due to the death of the deceased,  the complainant’s would claim Rs.15,00,000/- as compensation.  Hence the complaint.

5.         Opposite parties No.1 to 3 entered appearance in response to the notice issued from the Forum and contested the matter with tooth and nail by filing separate written version.  The following are the common contentions of all the three opposite parties.  The complaint is not maintainable either in law or on facts.  The complaint is frivolous, vexatious  and devoid of truth and bonafides.  There is no negligence or deficiency in service on the part of opposite party 1 to 3 as alleged by the complainant.  The complainant is not entitled to get any relief as prayed for in the complaint.

6.         However the opposite parties No.1 to 3 would admit the following.  The 2^nd and 3^rd opposite parties are the Consultant Maxillofacial Surgeon and Consultant Anaesthetic working in the 1^st opposite party Bishop Benziger  hospital.  The son of the 1^st complainant Mr.Philip had consulted the 2^nd opposite party doctor on 02.06.2007 with the complaint of defect involving mid face(long face with gummy smile, incomplete lips and retruded chin).  After due examination the 2^nd opposite party diagnosed the condition of the patient as vertical maxillary excess increased lower 3^rdfacial (mandibular body height, deficient chin).  Inorder to correct the above deformity the major maxillofacial surgery constituting of cutting the Maxilla(upper jaw bone) and Mandible(lower jaw bone) separating it reducing it by 6-7 mm and re-fixing in its original place with mini plates and screws was required. Considering these facts the 2^nd opposite party advised the patient Philip to undergo orthoganthic surgery lefort one oestenotomy impaction by 6-7mm vertical height reduction plus advancement genioplasty. 

7.         According to opposite party No.1 to 3 the said surgery is delicate and time consuming one.  After obtaining free informed consent from the patient and his brother, the patient was referred to 3^rd opposite party for anesthetic checkup.  He has advised routine investigation, ECG and X-ray chest.  The patient was admitted for surgery on 04.06.2007 following which he was once again examined by the 3^rd opposite party and found to be fit for undergoing the proposed surgery on the next day(05.06.2007) under general anesthesia.  The patient was re accessed in the operation theatre and given the  requisite pre-medication by observing the standard protocol.  The patient was administered General Anesthesia through a prefixed nasal endotracheal tube with muscle relaxants and controlled ventilation.  Intra operative period was uneventful.  Surgery lasted from 11 am to 7 pm.  Patient was given 5 units of intravenous fluids and one unit of blood in the intra operative period.  In view of the prolonged intra oral surgery, endotracheal tube was left in place anticipating airway compromise in the immediate post operative period due to the post operative oadema as a result of tissue trauma.  Patient was shifted to post operative ICU and monitored with multichannel monitor.  After shifting the patient to post operative ICU, the relatives of the patients were called inside and they saw the patient.  They even interacted each other.  The patient remained haemodynamically stable overnight, breathing spontaneously and adequately through the endotracheal tube.  Necessary medicines were also administered. 

8.         On 06.06.2007 at 10 am the endotracheal tube was extubated  by the 3^rd opposite party under the general protocol and precautions in the presence of the 2^nd opposite party and Dr.John Ferns, who is another anesthetist of  1^st opposite party  hospital, prior throat suction was done to cleat secretions debris, fiborptic bronchoscope and ventilator, oxygen mask and ambubag were kept ready.  Steroids and nebulization with levoline and flohale were given before extubation.  Following extubation, the patient was conscious, talking and SPO 2 maintained 100% with room air.  Patient was given oxygen by face mask.  15 minutes after extubation, the patient developed respiratory distress with dropping of Oxygen saturation.  On detecting respiratory distress, the patient was given oxygen by  face mask and forceful ventilation.  Re-intubation was attempted by the 3^rd opposite party and by the 2^nd Anesthetist and was found difficult.  Steroids were given.  Intubation was again tried with fibro-optic-bronchoscope, but failed.  Hence ambu bag ventilation with oxygen followed by needle cricothyroid puncture and oxygen was given.  Airway was finally secured by an emergency stab tracheostomy.  Patient then developed cardiac arrest which was resuscitated promptly.  A team of doctors consisting of the 2^nd opposite party Anesthetist, Neuro Surgeon Dr.Jacon John, Cardiologist Dr. Thomas Mathew and Physician  Dr.John Zachariah carried out resuscitation and further management of the patient. 

9.         As soon as the patient’s condition became stable, the 2^nd and 3^rd opposite parties informed the relatives about the patient’s condition.  The relatives were taken inside the post-operative ICU, shown the patient and detailed the condition of the patient to them.  Every day the patient’s condition was explained to the relatives and patient was shown to them.  Except on 06.06.2007(immediately after cardiac arrest when the patient was  not in a position to shift to another hospital), patient’s relatives were given the option of shifting the patient to some other hospital, but they were satisfied with the treatment at the 1^st opposite party hospital.   As requested by the  complainant a treatment summary was issued on 09.06.2007 for consulting Dr.MarthandanPillai, but they never insisted for shifting the patient to some other hospital.  Till 11.06.2007 the patient showed the signs of improvement by way of pupillary reaction.  On 11.06.2007 in spite of reversing neuro-muscular blockade, tapering off propofol infusion, patient’s neurological condition did not show any improvement.  However the patient’s renal function was deteriorating, suggesting that the patient was going into multi organ failure.  Immediately, Nephrologist was consulted and other life saving measures were continued. 

10.       The critical condition was explained to the patient’s relatives who became agitated and demanded shifting of patient to some other hospital immediately.  An earnest attempt was made by hospital authorities and patient’s relatives to shift the patient to some other hospital.  Doctors of the 1^st opposite party hospital directly talked to the doctors of Amritha Hospital, Cochin, Anathapuri Hospital and KIM’s Hospital, Trivandrum, but they were not willing to take the patient.  As the patient could be shifted only in an ambulance fitted with Ventilator the patient could not be shifted to some other hospital.  A team of doctors in post operative ICU and Neuro ICU continued to manage the patient, but the patient developed cardiac arrest on 12.07.2007 from which the patient could not  be revived.  Police intimation was given immediately and they seized the case sheet and body was taken to the Medical College, Trivandrum for post mortem examination. 

11.       It is further contented on behalf of  1^st opposite party hospital that it has a standing service of 60 years with treatment and care of ailment to the public at large.  The 1^st opposite party hospital is a reputed Super Specialty Hospital in Kollam which provides service in super specialties like cardiology, neuro surgery, neurology, anesthesiology, oral& maxillofacial surgery, General surgery, nephrology, urology, plastic surgery, ophthalmology, orthopedics, obstetrics & gynecology, psychiatry, general medicine, pediatrics, emergency and casualty services.  The hospital is provided with most modern operation theatre and ICU equipped with state of art facility and equipments including multi channel monitors, most modern anesthesia equipments like Boyels Machines with nitrolock and oxygen failure alarms, anesthesia ventilators, central pipe line system for oxygen, nitrous oxide, air suction.  The post operative ICU is adjacent to the operation theatre which is fully equipped and staffed with qualified and experienced personnel with all modern infrastructure, ICU ventilators, central pipe line system, monitors and centralized air conditioner with backup generators.  The Department of Anesthesiology is equipped with State of the art equipment and infra structure and it is headed by 3 fully qualified and experienced Anesthesiologists.  All the three Anaesthetists were jointly involved in the management of the patient in an attempt to provide best possible medical care. 

12.       It is also contended that the relatives and other bystanders were well informed about the status of the patient from time to time.  The relatives were allowed only to see the patient for five minutes and the patient’s face was oadematous and disfigured, is false and hence denied.  After the surgery, the patient was shifted to post-operative ICU in view of the prolonged intra oral surgery, Endotracheal tube was left in place overnight anticipating airway compromise in the immediate post-operative period.  After shifting the patient to post-operative ICU, patient’s relatives were called inside and patient was shown to them.  It is true that the relatives were allowed only a short period because high quality asepsis has to be maintained in any post operative ICU since there are several patients in the ICU who have undergone surgery. Moreover, following any surgery of the face there is usually oedema and the face appears disfigure.  However this oedema usually reduces within a week.

13.       The allegation of the complainant that the relatives of the deceased came to know about the death from words of ASI Kollam East Police Station is false and hence denied.  From the time when the patient was taken into the operation theatre, the relatives were informed the status of the patient.   The 1^st Opposite party informed the relatives about the condition of the patient from time to time.  The allegation of the complainant  that instead of taking 2 hours to complete the surgery the opposite parties  took 7 and odd hours goes to show the ignorance, inexperience and lack of  qualification of  the opposite parties are false and hence denied.  The patient and his relatives were informed prior to the surgery that this surgery requires a lot of time. 

14.       The 2^nd and 3^rd opposite parties are experienced doctors.  Both the 2^nd and 3^rd opposite parties are highly qualified and well experienced Maxillofacial and Anaesthetists respectively.  The 1^st opposite party hospital has competent medical faculty infrastructure facilities to perform such major operations.  Some of the service highlights are ultra modern intensive care units, 24 hours blood bank and pathology, 24 hours laboratory, x-ray and pharmacy, dietary services, trauma services etc.  The service of the committed religious nuns and eminent and educated consultants, devoted nursing care, friendly hospital atmosphere, paediatrics and neo natal ICUs, registration of medico legal cases, audiology and speech therapy, physiotherapy and separate ophthalmology hospital, eye bank, diabetic clinic and ambulance at hospital campus and all these services are facilitated with all modern life saving equipment and technology. 

15.       According to opposite party No.1 to 3 the allegation of the complainant that the 1^st opposite party hospital authorities have influenced the police  to manipulate the investigation in their favor, is false and hence denied.  Opposite parties never influenced the police authorities.  The compensation claimed by the complainant is exaggerated and without any basis.  The complainants are not entitled to get any amount as compensation from any of the opposite parties.  There is no negligence or deficiency in service on the part of the opposite parties.    The complaint is a frivolous and vexatious one only to harass the opposite parties.

16.       The 2^nd opposite party would further content that he had taken his BDS from  Rajas Dental College, Thirunelveli in the year 1995 and after working as Dentist in the 1^st opposite party hospital for about one and half years he joined for MDS in Oral Maxillofacial Surgery and completed his Post Graduation in the year 2000.  Thereafter he worked in Holy Cross Hospital, Kottiyam for a short period and then he joined the 2^nd opposite party hospital as a consultant oral maxillofacial surgeon.  There was one more dental surgeon by name  Restine Kafeel and visiting  Orthodontist  Dr.George Abraham.  The 2^nd opposite party is presently working as Professor and Head of Department of oral and Anesthetic surgery, Azeezia Dental College, Kollam. 

17.       The 3^rd opposite party also would content that he is a qualified Anaesthetist having 23 years of  professional experience.  He is having a Diploma in Anesthesiology from Thiruvananthapuram Medical College and also obtained MD in Anesthesiology from Medical College Hospital, Thiruvananthapuram in the year 1985.  Thereafter he was working as Anesthesiologist in the Government Victoria  Hospital, Kollam and District Hospital, Kollam and have retired from health service he has been working as Consultant Anaesthetist in Benzigar Hospital, Kollam that he was a paid employee of the 1^st opposite party and the principle of  vicarious liability of the employer is squarely applicable in this case.

18.       In view of the above pleadings the points that arise for consideration are:-

1. Whether  the death of the deceased Philip was on account of negligence of 1^st opposite party hospital authorities and also due to the negligent way of conducting maxillofacial surgery and also due to lack of qualification, experience and skill of opposite party No.2&3 who conducted the surgery and attended the  pre-operative and post-operative care as alleged?
2. Whether there is any deficiency in service or medical negligence on the part of the 1^st opposite party hospital and opposite party No.2&3 doctors who treated the deceased Philip?
3. Whether the complainant is entitled to get compensation for the death of the deceased Philip, if so what would be the quantum of compensation to be awarded?
4.  Relief and costs.

19.       Evidence on the side of the complainant consists of the oral evidence of PW1 to 9 and Ext.P1 to P8 documents.  Out of the 9 witnesses examined by the complainant PW1 is none other than the complainant and father of the deceased Philip.  PW2 is Santhosh Samuel the brother of the deceased.  PW4 is the DYSP who conducted investigation  in the  crime registered in respect of the death of the deceased Philip.   PW3, 5 to 9 are doctors who treated the deceased Philip at the 1^st opposite party Benziger Hospital, Kollam. 

20.       Ext.P1 is the copy of FIR cum FIS dated 12.06.2207, Ext.P2 is the post mortem  certificate dated 12.06.2007, Ext.P3 is Anesthesia chart, Ext.P4 is death certificate, Ext.P5 is office copy of advocate notice , Ext.P6 is Higher Secondary Examination certificate of deceased Philip, Ext.P7 is the course and conduct certificate issued from MSM College, Kayamkulam and Ext.P8 is Photograph of deceased Philip. 

21.       Evidence on the side of the opposite parties consists of the oral evidence of DW1 to 6 and Ext.D1 file containing photocopy of Medical records of Bishop Benzigar Hospital.  Ext.X1 to X3 have also been got marked in evidence.  Ext.X1 is circulation memorandum, Ext.X2 is a copy of expert report  and Ext.X3 is the request filed under  RTI Act 2005 and its reply.

22.       The learned counsel appearing for the complainant and the 1^st opposite party, 2^nd and 3^rd opposite parties have filed notes of argument. 

23.       Before discussing the points for consideration the reason for the inordinate delay in disposing of the case is to be explained. This is one of the oldest case pending  on the file of this Forum as it has been pending for the last 12 years.  Actually recording of  evidence was over as early on 28.05.13.  Thereafter the then Bench Clerk reported that deposition of PW6 was missing.  The fact was reported to the Hon’ble CDRC and with the permission of  the CDRC  the witness was again examined as PW6.  Matter was finally heard on 24.02.2015 by the then President and Members and posted for disposal to 27.03.2015.  Thereafter on 25.05.15 the case was re-opened and posted for further hearing.  Later on 19.01.16  the  then President of the Forum has addressed CDRC to transfer the case to some other Forum since the then lady member Smt.Ravisusha  was having some indirect Academic connection of one of  the opposite party doctor.  However later the said suo moto transfer petition has been closed on 23.04.2018  by the CDRC by finding that member on whose difficulty transfer was requested already demitted the office and there is no further ground to transfer  the complaint to another station and also directed to send the case records to this Forum along with a direction to dispose of the case expeditiously  in accordance with law. 

24.       However  on 24.09.18 the learned counsel appearing for  the complainant has appeared and submitted that the complaint is not called in the  bench till date even though the case was received back by this  Forum 2 months back and requested to call the case in the bench.  On the basis of the above submission the then Bench Clerk was directed to verify and find out the case records if any received and call in the bench on 09.10.18 after giving notice to both sides.  Accordingly the case file received from the CDRC was traced out and called for in the bench on 09.10.18. 

25.       The opposite parties appeared subsequently and the matter was heard afresh by this Forum on 13.05.19 and posted for disposal to 31.05.19.  On that day it was found that neither the original complaint nor even a copy of the same is available in the case bundle,  as it was missing from the case file  received  from the State Commission after closing TP proceedings which is clear from the index of  case records  received.  Hence the Forum has addressed the State Commission to send the original complaint if any available or accord sanction to re-construct the  missing original complaint.    However on 22.06.2020 the original complaint was traced out at the State Commission and forwarded to this Forum.

26.       Heard the advocates appearing for the complainant and opposite parties No.1 to 3 again on 30.06.2020 and taken up for order.

Point No.1&2

27.       For avoiding repetition of discussion of materials these 2 points are considered together.  The specific case of the complainant is that the deceased Philip who was an young man of 21 years, hale and healthy undergone Maxillofacial surgery happened to die solely  due to the negligence of the 1^st opposite party hospital authorities and also due to the negligent way of conducting operation and attending post-operative care at that hospital  by the 2^nd and 3^rd opposite party doctors.  The complainant would also allege lack of knowledge and experience of the opposite parties No. 2 & 3 and that they have done the surgery as an experiment.  It is also alleged that the 2^nd opposite party made the victim as well as his brother(PW2) to believe that the operation to set right the similar deformities in the face is a simple surgery which requires only 2 and odd hours but the opposite parties have taken as much as 8 hrs to complete the operation which itself would indicate that there is  lack of knowledge and in-experience in conducting similar operations by opposite party No.2&3 doctors. That opposite party 1 to 3 failed to seek assistance of expert doctors.  Yet another allegation of the complainants is that inspite of repeated requests from the relatives of the victim the opposite parties have refused to refer the patient who was in a critical stage to any other higher medical centre  for expert management by fearing that the higher medical centre would find out the negligence and lapses of the opposite parties in conducting the surgery.  It is further alleged that though a crime has been registered on the basis of P1 FI statement of the brother of the deceased(PW2) the hospital authorities  who are having high influential capacity in the society influenced the police authorities spoiled and stalled the investigation and managed to obtain a biased  medical board certificate (Ext.X2).   

28.       All the opposite parties resisted the above allegations by denying all the allegations raised against 1^st opposite party hospital and 2^nd and 3^rd opposite party doctors who treated the deceased Philip.  They would also content that the 1^st opposite party hospital is a very reputed super specialty hospital in Kollam which provides various super specialty treatment including Maxillofacial surgery, that the hospital is having superficiality faculties and  most modern facilities including ICU, ICU ventilators, multi channel monitors, most modern anesthetic equipment like Boy less machines with nitro lock etc.  The hospital authorities have also provided fully equipped operation theatre with all lifesaving equipments and technologies along with qualified and experienced doctors and devoted para medical staffs and the 1^st opposite party has attempted to provide best medical care to the deceased Philip.  Opposite party No.2&3 would content that there is no negligence or deficiency in service on their part and they are well qualified and experienced doctors in conducting maxillofacial surgery which is a delicate surgery, that the patient was given requisite pre-medication by observing standard protocol.  Intra operative and post operative care was given to the deceased as per standard protocol.  However the patient developed cardiac arrest on the early morning of 12.06.2007 from which the patient could not be revived. 

29.       The pertinent question to be considered is whether the pre-operative, intraoperative and post-operative care and management by the opposite parties to the victim Philip was as per standard protocol.  The following are the admitted rather undisputed facts in this case.  The 1^st opposite party is the Managing Direction of Bishop Benziger Hospital, Kollam and opposite parties No.2&3 are the doctors working under the 1^st opposite party hospital were the deceased Philip has undergone surgical corrections of his gums(Maxillofacial surgery).  The deceased Philip was having 21 years age  hale and healthy and was also completed his 1^st  year B.Com Degree examination.  Under the impression that the 2^nd opposite party doctor working at 1^st opposite party hospital is a  capable maxillofacial surgeon, the deceased Philip approached the 2^nd opposite party doctor  at the 1^st opposite party hospital.  The deceased Philip consulted the 2^nd opposite party doctor on 02.06.2007 with a complaint of defect involving mid face (taÂNp­v A¸w DbÀ¶v \n¶v A`wKn tXm¶n-b-Xn-s\-XpSÀ¶v).  The 2^nd  opposite party doctor Sri.Joseph Edward advised him to undergo a surgical operation by which the defect could be corrected and also directed to undergo preliminary medical investigation such as X-rays of the gums and teeth, ECG etc were also taken on the same day.  Thereafter the 2^nd opposite party Mr.Joseph Edward the Maxifilo  Surgeon and 3^rd opposite party Sri.R.Mohan Kumar who was the Anaesthetist informed the deceased Philip and his relatives to prepare for surgical operation.  Later on 04.06.2007 the deceased Philip got admitted at the 1^st opposite party hospital with the assistance of 2^nd opposite party.  On the next day ie, on 05.06.17 the deceased Philip was shifted to operation theatre.  The operation started at about 11 am and after completing the surgery  the patient was shifted to the post-operative ward of the 1^st opposite party hospital.  After the operation the relatives were allowed to see the patient for 5 minutes and at that time the face of the deceased Philip was appeared swollen and disfigured.

30.  On the next day ie, on 06.06.2007 the complainant and other relatives contacted the 2^nd opposite party doctor and enquired  about the condition of the patient and also informed the doctor that they are prepared to shift the patient to elsewhere for specialized treatment if necessary.  Thereupon the 1^st opposite party hospital authorities told that it is not possible to shift the patient to anywhere in that stage as the functioning of the brain was stopped and the patient is in the ventilator.  On 11.06.2007 the relatives were informed that  there is some problem that the kidney of the patient has not been functioning and a period of 48 hrs is required to recover the said illness and also requires dialysis and hearing the same the complainant and relatives of the deceased suspected some foul play in the treatment of the opposite parties and even feared that the patient is in danger.  Hence they made hue and cry at the 1^st opposite party hospital and thereupon the hospital authorities informed the matter to the police and police officials arrived at the hospital and pacified the complainant and other relatives by stating that on the next day  the patient  will be transferred to Thiruvananthapuram in an ambulance having ventilator facility.  Later the patient was shifted to Neuro ICU and on the next day ie on 12.06.2007 at about 4 am one nurse invited the complainant and relative to the ICU.  Thereupon they rushed to the ICU and found the deceased patient lying without any ventilator connection as if he is dead but actually he was not dead at that time.

31.        It is also brought out in evidence that at about 5.35 pm a van full of police men came and enquired about the dead body of the deceased and intimated the death of the deceased Philip to PW2 and other relatives. The complainant and other family members who belongs to Penthicose faction together conducted a prayer at about 6 a.m by standing at the side of the dead body of the deceased Philip .  Immediately the police has removed the dead body of the deceased Philip and brought the same to the road near the east police station and kept there for about one and half hours and after preparing inquest the police removed the dead body to  the Medical College Hospital for conducting post mortem.  Police has also recorded Ext.P1 FI Statement of PW2 registered Crime No.611/07 of Kollam East Police Station U/s 174Crpc and prepared the FIR.  After conducting postmortem the dead body was received back by the complainant and buried as per religious rites  and customs. 

32.       The learned counsel for the 2^nd and 3^rd opposite party by relying on the dictum in laid down by the National Commission in Maddan Surgical and Maternity Hospital V/s Smt. Santhosh kumara and another reported in 2014(2) CPR 351(NC) has argued that there is no presumption of or inference of negligence merely because of an unfortunate result might have occurred despite of reasonable care and that physicians are not liable for errors of judgment unless it is proved that an error of judgment was result of negligence.  In the said decision it has been held that in order to determine whether an error is one of judgment or whether it constitutes negligence, the court or forum is to look at whether the error is so “ egregious” as to constitute negligence.  A question should be formulated as whether it was a judgment of error that would have been made by a reasonably competent and diligent medical practitioner.  It is also held in said decision that doctor is not liable for every injury suffered by patient.  He is liable only for those that are consequences of a breach of his duty.  The complainant has to prove the existence of a duty and breach of duty and causation. 

33.       The oral evidence of  PW1&PW2 would show that the complainant was having only a simple deformity of exposing gum while laughing.  When the said Philip consulted a Dentist for cleaning his teeth at the  Dental hospital functioning at the Muthoot shopping complex, Kayamkulam.  Thereupon the said Dentist informed him that Sri.Joseph Edward(op2) used to visit his hospital once in a week and he would state the remedy after consulting the said doctor.  However when 2^nd opposite party visited said Dental hospital the doctor of that hospital at Kayamkulam informed deceased Philip over phone.  Accordingly the deceased Philip reached at the hospital and thereupon told him that \nkm-c-amb Hcp Hm]-td-j-\n-eqsS CXv amäm³ Ign-bp-sa¶v tPmk^v FtUzUv ]d-ªp.  Ipsd t^mt«mkv ImWn-¨p.  AXp-IqSn I­-t¸mÄ Hm]-td-j-³ sN¿-W-sa¶v A\p-P\v XmÂ]-cyw tXm¶n.  sImÃw s_³knKÀ tlmkv]n-ä-en h¶v At¸m-bnâvsaâv  FSp-¯mse Hm]-td-j-³ \S¯p F¶p ]d-ªp.  B hnhcw ho«n h¶v ]d-ª-X-\p-k-cn¨v R§Ä IqSn-bm-tem-Nn¨v 02.07.2007 Rm\pw A\p-P\pw IqSn sImÃw s_³knKÀ tlmkv]n-ä-en t]mbn  Sn-bms\( op2 )ImWm³ At¸m-bnâvsaâv  FSp-¡p-Ibpw þþ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ

34.       There is no much dispute regarding the above evidence of  PW1&2 which would indicate that the deceased Philip was persuaded by  2^nd opposite party when he  consulted him at the  Dental Hospital, Muthoot Shopping Complex, Kayamkulam.  On the basis of the above representation of 2^nd opposite party doctor the deceased Philip and his family members decided to undergo the silly (\nÊm-c-amb) operation suggested by 2^nd opposite party doctor.  Accordingly on 02.07.2007 both the deceased and PW2 went to the 1^st opposite party  hospital where 2^nd opposite party was employed.  The deceased Philip has also under gone pre-operative check up on the same day and the 2^nd opposite party has fixed the operation date as 05.07.2007 booked the theatre and also booked one room for the stay(of the patient and PW2) at that hospital.  Accordingly on 04.07.2007 the deceased Philip along with PW2 went to the hospital got admission and stayed at the room arranged by the 2^nd opposite party doctor at the 1^st opposite party hospital. 

35.       It is also brought out in evidence that after pre-surgery examination by opposite party 2  doctor and the 3^rd opposite party Anaesthetist.  Thereafter both opposite party 2^nd and 3^rd directed the deceased Philip that he is mentally and physically fit to undergo the operation and get ready for operation on the next day.  According to PW1 the 2^nd opposite party has made the deceased Philip to believe that he requires about 2 hrs to conduct operation and the deceased Philip was having no physical or mental problem to undergo operation and that the Benzigar hospital is having all modern facilities to carry out.  According to PW1 when the deceased Philip was got admitted at the 1^st opposite party hospital on 04.06.2007 he was having no physical deformity nor having any problem to his heart, kidney etc and he was a young man having full health and beauty and other capabilities.  PW1&PW2 further denied the suggestion made by the learned counsel for the 2^nd and 3^rd opposite parties that prior to the operation 2^nd opposite party has informed the fact that the deceased Philip has to undergo a major operation.  The oral evidence of  PW2 would show that himself and the deceased Philip has not felt that a second opinion has to be sought whether he has  undergo operation or not.  As on  02.06.2007 when they made the 1^st  visit of the hospital itself,  the 2^nd opposite party doctor has sent the deceased Philip to Anaesthetist and Physician and subjected him to undergo various tests such as blood, ECG, X-ray etc and on the basis of that he was directed to take admission at the 1^st opposite party hospital on 04.06.2007.  During the re-examination PW2 has deposed that 6þ8 aWn-¡qÀ \o­p-\n¡p¶ Hm¸-td-j³ BsW¶v t\ct¯ ]d-ªn-cp-¶n-Ã.  A§s\ ]d-ªn-cp-s¶-¦n Hm¸-td-j³ sN¿p-am-bn-cp-¶n-Ã. Admittedly Maxillofacial surgery is not a life saving treatment nor even absolutely necessary to lead an ordinary life. Ext.P8 photographs of the deceased Philip taken before he underwent operation would reveal that there is no disfiguration on his face even if any operation is not done.  In the circumstance the oral evidence of PW2 that if himself and the deceased brother were aware of the fact that the said surgery going to be done is a complicated one taking 6-8 hours, they would have avoided the same cannot be brushed aside.  The object of undergoing reconstructive Maxillofacial surgery is to minimise discomfort and complications and optimise the desired outcome.  In view of the lesser degree of discomfort experienced by the deceased Philip the 2^nd opposite party out to have decided that a complicated and prologued Maxillofacial surgery is not warranted in the case of the deceased Philip.  Instead 2^nd opposite party has shown ugly haste in conducting surgery without even granting breathing time to the deceased and his relatives to seek a 2^nd opinion.

36. According to the learned counsel for the complainant the 2^nd and 3^rd opposite parties are not having sufficient knowledge experience and skill to carry out the lengthy and complicated Maxillofacial surgery but they carried out the same on an experimental basis in a what come may attitude without the assistance any other specialist doctors which resulted in the entire complications.  It is brought in evidence that the 2^nd opposite party made the patient and his relatives including PW2 to believe that he is experienced and efficient in conducting Maxillofacial surgery and the will carry out the said surgery with the assistance of other expert Maxfillo surgeon. It is clear from the available materials that the 2^nd and 3^rd opposite parties made earnest attempt to prove that  another Maxfillo surgeon by name (PW6) has assisted the  2^nd opposite party in conducting the surgery.  But  PW6 when he was in the witness box denied having given any assistance to the said surgery which would indicate that the 2^nd opposite party  himself has conducted the surgery without the assistance of any other doctor having super speciality qualification or having lesser qualification and experience.  The 2^nd opposite party when he was in the witness box as DW12 has admitted that PW6 has not assisted him but himself has only consulted PW6.  Even if it is believed PW6 is only a senior lecturer at Assisia Dental College, Kollam and he is only a subordinate of the 2^nd opposite party and not having sufficient experience to assist DW1 while doing a complicated maxillofacial surgery. In the circumstances it is crystal clear that the 2nd opposite party has violated the duty cast upon him to carry out complicated surgery like the Maxillofacial surgery without the  assistance of any experience doctor and also violated the terms of the consent deed contained in Ext.D1 case sheet. 

37.       It is to be pointed out that as per accepted medical practice a major and complicate surgery  having high risk has to be conducted by a team of doctors  having minimum 3 doctors at least one such doctor should have super speciality qualification.  But in this case it is clear that DW1 has violated the said medical ethics and thereby committed breach of duty.  In view of the nature of surgery conducted on the deceased Philip and time consumed we are of the view that a Senior ENT Surgeon, Sr. Anaesthetist, Cardiac Vascular Surgeon, Nuero surgeon another Maxillofacial surgeon along with 2^nd and 3^rd opposite party ought to have been present while conducting surgery and 2^nd opposite party ought to have obtained timely advise from the above specialist doctors and in such even the precious life of the victim could have been saved.

38.       It is further to be pointed out that such a lengthy Maxillofacial surgery ought not have been conducted on the same day.  Medical team under the supervision of 2^nd opposite party ought to have conducted surgery on the left or on the right side of the gum of the victim at one time and after curing, the surgery on the other side has to be carried out and in such event no severe complication ought to have been occurred to the victim.  Instead of doing so the 2^nd opposite party by himself has carried out the entire lengthy surgery by taking 8 hours which resulted in edima and its complications. 

39.       The definite case of the complainant is that the 2^nd & 3^rd opposite parties are not having requisite qualification experience and skill in conducting Maxillofacial surgery  and hence all the complications occurred . The opposite parties would claim that the 2^nd opposite party who conducted surgery is a qualified and experienced doctor .  Even if it is believed that the 2^nd opposite party has acquired MDS degree that was in the year 2000.  After acquiring the said qualification he is having only about 7 years experience as on the date of  carrying out the complicated surgery on the victim.  A doctor who is having only about 7 years experience cannot  be termed as an experienced doctor having sufficient skill to carry out a complicate surgery like the one done on the victim.  It is well accepted that a surgeon who is having a minimum of 15 years experience after obtaining at least a master degree can be considered as an experienced doctor. 

40.       Though the 2^nd opposite party would claim that he is having experience in conducting Maxillofacial surgery and that he had already carried out 30 Maxillofacial surgery he has not produced any evidence either oral or documentary to prove the same, though the complainant has challenged his qualification skill and experience in the field.

41.       Though the 1^st opposite party would claim as a super specialty hospital for Maxillofacial surgery  the 1^st opposite party hospital has not even deputed an experienced Maxillofacial surgery to assist the 2^nd opposite party in carrying out the said surgery. The management of 1^st opposite party hospitals has also not seen provided necessary equipments such as nasogastric tube, fully equipped and readily available suction, epinephrine spray pulse oxi-metre equipments for actinography etc were not readily available at the bed side to save the life of the patient.   In view of the reasons discussed about it cannot be considered that opposite party No. 1 hospital is a super specialty hospital for the purpose of conducting  Maxillofacial surgery.  Not arranging sufficient experienced and having super specialty qualification and skill and necessary lifesaving equipments by the hospital authorities definitely amounts to breach of duty which ultimately caused the death of the victim.

42.       The learned counsel for the opposite parties by relying on the dictum laid down by the National Commission in Radhashayam Pradapsing V/s Women Clinic & Nursing home reported in 2011(4) CPR 230 (NC) and also the dictum laid down in Mrs.Nalini V/s the Chief cardiac surgeon, Manipal hospital and another has argued that question of Medical Negligence is to be ascertained by expert team and in a complicated case without the support of any expert opinion complaints of alleged medical negligence cannot be accepted only on the basis of affidavit or some entries in the medical record.  It is true that the complainants have not examined any expert to prove medical negligence but they are mainly relying on the oral evidence of PW1 to 7 and the admission of DW1 to 6 to substantiate their case. The learned counsel for the complainant would rely on the dictum laid down by the Supreme Court in Krishnarao V/s Nikhil Super Speciality Hospital and another reported in 2010 KHC 4333.  Wherein it is held that examination of expert witness is not always required and medical negligence can be proved even on the basis of facts and circumstances of a particular case. In the said decision the  Hon’ble Supreme Court has held that in appropriate medical negligence case examination of expert may be made and the matter is left to the discretion of the forum and in the facts and circumstances of the case expert evidence is not required.  It is well settled that Hon’ble Supreme Court and National Commission has laid down different dictum in one and same aspects the dictum laid down by the Hon’ble Supreme Court is to be followed as the Supreme Court  is the apex court of the land and having jurisdiction over all other judicial and quasi-judicial bodies including National Commission.  Therefore the dictum laid down that the Hon’ble Supreme Court in the above quoted decision is binding.

43.       It is clear from the available materials that the 2^nd opposite party has shown over enthusiasm and ugly haste in conducting surgery on the victim Philip.  He has not seen given sufficient time and opportunity to the victim and his relatives to decide whether they have to seek a second opinion from any other expert doctor.  It is clear from the available materials that on 02.06.2007 when the deceased Philip along with PW2 arrived at 1^st opposite party hospital and consulted him he directed the deceased to undergo various pre-operative test and obtained the result and directed to get admission at the hospital on 04.06.2007.  The 2^nd opposite party has also booked operation theatre of that hospital and arranged room for residing the deceased Philip and his brother.  According to the learned counsel for the complainant the degree of haste  and over enthusiasm shown by 2^nd opposite party would indicate that he was in a hurry mood to conduct experimental surgery on deceased Philip by himself without even seeking the assistance of any expert in the field. The over enthusiasm and ugly haste shown by the 2^nd opposite party is definitely against medical ethics and the same amounts to deficiency in service as well as unfair trade practice on the part of the 2^nd opposite party. 

44.       If the 1^st opposite party hospital management and 2^nd and 3^rd opposite party were aware of the fact that Maxillofacial surgery is a complicated and time consuming surgery and it will take about 8 hours the surgery would have be undertaken by a team of doctors including expers.  It is true that the 2^nd opposite party would raise contention in his written version and also when he was in the witness box as DW1 that Maxillofacial surgery was conducted on the deceased with the assistance of another expert and Anaesthetist .  According to DW1 he conducted surgery with the presence and assistance of doctor Murali Krishna but the said Murali Krishna when he was in the witness box as PW6 denied having been present as a member of supporting team nor even assisted PW1 in conducting surgery on the deceased Philip.  According to PW6 A¶v tUmIvSÀ tPmk^v(OP2)  BWv kÀPdn \S-¯n-b-Xv.  kt¸mÀ«nwKv Sow Bbn A\-kvtX-jy tUmIvSÀ taml³ IpamÀ(OP3), ]mcm-sa-Un-¡Â Ìm^v F¶n-hÀ D­m-bn-cp-¶p.  Rm³ kÀPdn \S-¯n-bn-«n-Ã.  kt¸mÀ«nwKv Sow Bbpw hÀ¡v sNbvXn-«n-Ã.  kÀP-dn¡p ap¼v  Rm³ Sn tcmKnsb ]cn-tim-[n-¨n-«n-Ã. 05.06.2007 \p tijhpw Sn tcmKn¡v Fsâ `mK¯p \n¶pw NnInÕ H¶pw sNbvXn-«n-Ã.  During cross examination PW6 would state that he came to the operation theatre on the date of operation on academic interest as he is also a maxillofacial surgeon.  Even if it is considered that PW6 was in the operation theatre at the time of conducting operation he has not done any assistance to DW1 in carrying out the operation nor even examined the patient at the pre-operative or post-operative stage.  Even if it is considered that PW6 was present at the operation theatre he is not an experienced doctor as he was having only around 35 years as on the date of operation and as on those days he was not a maxillofacial surgeon working  at any hospital.  But he was only a senior lecturer at Azeesia Dental college and the junior companion of  2^nd opposite party when the later was working  as HOD of oral surgery department of that college.  Even though both opposite parties and PW6 were colleagues at Azeesia Dental College even then PW6 has not supported false claim raised by the opposite parties.

45.       It is true that in page No.4&5  of Ext.D1 case sheet would contain Anesthesia chart wherein it is stated that the name of Mohan Kumar OP3/DW2 was the Anaesthetist and  Joseph Edward and Dr.Murali(PW6) were the surgeons who conducted the surgery.  It is seen from paragraph 3 of the proof affidavit filed by DW1 that the surgery started by 11 am I was assisted by Dr.Murali Krishnan, MDS(PW6) who is a qualified Maxillofacial Surgeon,  and Assitant Professor in Maxillofacial surgery of Azeezia Dental College, Kollam.  In fact even according to PW6 he was not an Assistant Professor but only a Senior lecturer of that hospital as on those days.  However DW1would admit in page No.2 of cross examination by the learned counsel for the complainant that  Fs¶ AknÌv  sN¿m\mbn Akoknb sUâ tImtf-Pn t{]m^-kÀ Bbn hÀ¡v sNbvXn-cp¶ tUmIvSÀ apcfo IrjvW³ IqsS-bp-­m-bn-cp-¶p.  But in page No.3 DW1 would admit that Snbm³ AknÌv sNbvXn-«nÃm F¶pw Zqsc amdn \n¶p F¶pw samgn X¶n-«p­v? AXv icn-bmWv Fs¶ AknÌv sNbvXXv kntÌgvkv BWv.  apcfo IrjvW³ just ImWm³ h¶-Xm-Wv.  Rm³ Hä-bv¡mWv Hm¸-td-j³ \S-¯n-bXv F¶v ]d-ªXv icn-bm-Wv.  Further down he would admit that the averments in the  version and chief affidavit that Murali Krishna has assisted in the  operation is incorrect and he(op2) has only sought opinion of PW6 whether the operation done is correct or not.  According to the learned counsel for the complainant the 2^nd opposite party has sought opinion to the said Murali Krishna who is a very junior doctor and is having less experience than DW1 in conducting surgery he himself was inefficient and in experience in conducting similar surgery.  In view of the above materials available on record it is cristal clear that the version of the 2^nd and 3^rd opposite parties that the 2^nd opposite party was assisted by PW6 Dr.Murali Krishna is incorrect and the said Murali Krishna as on those days was working only as a Senior Lecturer in Azeezia Dental College and out of curiosity he arrived at the operation theatre and overlooked the surgery done by DW1 and never assisted 2^nd opposite party in conducting the surgery. 

46.       As the Maxillofacial surgery is to be conducted on the face and mouth where blood circulation is very heavy and there is chance of having high risk which is clear from Medical Literature produced by opposite parties Furthermore DW1 &2 would very well know that the surgery will take as much as 8 hours.  A single doctor is not expected to manage such a lengthy surgery by himself.  It ought to have been done by a team of expert doctors including cardiologist, nephrologist another Maxillofacial  surgeon, Anaesthetist having super specialty qualification etc would be members of the team.  But in this case the evidence available on record would go to show that the 2^nd opposite party who is having only around 7 years experience in the filed has chosen to carry out the surgery by himself which is against the medical ethics and hence amounts to deficiency in service.

47.       Page No.3/29 of Ext.D1 case sheet is the alleged consent deed obtained from the deceased Philip and his elder brother(PW2) wherein also it is stated that the operation Orthognathic  surgery under GA/RA under the leadership of Dr.joseph Edward by a Senior doctor of 1^st opposite party hospital or doctor of the same department .  This was the information passed to the  victim as well as to the brother of the victim(PW2) while obtaining consent.  But the 2^nd opposite party(DW1) would admit during cross examination that he himself has conducted surgery the so called assistant( PW6 Murali Krishna) Senior Lecturer in Azeezia Dental College only stood to over see the operation done by him.  Therefore we have no hesitation to hold that the surgery done was not in accordance with the consent deed obtained from the victim as well as his relative(PW2) which is also against medical ethics and amounts to unfair trade practice.

48.       Now we shall consider whether there is any medical negligence in the post-operative care and management of the patient by the opposite parties. It is clear from the available materials that after conducting surgery the victim was shifted to post-operative ward on the next day at about 10 a.m. another anaesthetist Dr.John Fernandez (PW9) extubated the endotracheal tube .  Thereupon respiratory distress developed on the patient which adversely affected organs and ultimately resulted in cardiac arrest which was avoided by an emergency tracheostomy which was done by Jacob John (PW5) neuro surgeon.  Subsequently it was noticed during x-ray examination that there was secretion in the right lung. Hence the service of Dr.Sumithran (PW3) who is a cardiothoracic surgeon working at Parumala St.Gregoreous Cardio Vascular Centre was obtained he reached at the 1^st opposite party hospital  at about 12.30 noon and examined Philip and cleaned the lung secretion by means of bronchoscopy.  It is clear from the available materials including Ext.D1 case sheet that the cause of death was due to recipracory   distress after extubation of endotracheal tube.  According to the complainant such difficulty of the patient could not be managed by the opposite parties 2 and 3 properly in exact time hence vital organs such as brain kidney etc failed which ultimately resulted in cardiac arrest.  According to the learned counsel for the complainant the reciprocory  distress were developed on the patient due to the negligence and in experience on the part of 1^st 2^nd and 3^rd opposite parties who had not made necessary arrangements to get the timely service of a cardiac thoracic  surgeon to carry out bronchoscopy to the patient at proper time and therefore according to the learned counsel the 1^st opposite party hospital management the 2^nd opposite party Maxillofacial surgery who conducted surgery on the deceased Philip and the 3^rd opposite party anaesthetist who had give anaesthesia to the victim are equally liable .  We find much force in the above argument.  The oral evidence of PW2 and 3 and other circumstances brought out in evidence would support the above allegation of the complainant.  It is clear from the oral evidence of PW3 Dr.Sumithran that during the relevant period he was working as cardiac thoracic surgeon at Paumala St.Gregorious St.Gregorious Cardio vascular centre which is situates in Alappuzha district and more than 50 kms away from 1^st opposite party Benziger Hospital, Kollam.  The evidence of PW3 would further shows that he received information from the 2^nd opposite party at about 10 a.m that he reached at 1^st opposite party hospital at 12.30 noon and conducted bronchoscopy.  According to him izm-k-tIm-i-¯n secretion sIm­v AS-ªn«v izm-k-tIm-i-¯n-te¡v air IS-¡m¯ AhØ amäm-\m-bn-cp-¶p. 

49.       According to PW3 Tricostomy was conducted after occurring recipiratory arrest PW3 has further added that sdkn-¸n-td-ädn arrest D­m-bm blood  se HmIvkn-P³ content Ipd-bp-Ibpw Xe-t¨m-dn\v HmIvkn-P³ In«msX Xe-t¨mÀ \in-¨p-t]m-Ip-Ibpw sN¿pw.  Heart \v HmIvkn-P³ In«msX hcp-t¼mÄ cardiac arrest D­m-Ipw.  ico-c-¯nse FÃm Ah-b-h-§-tfbpw AXv _m[n-¡pw.    Heart s\ _m[n¨v Ign-ªm “izm-k-tIm-i-¯n \oÀs¡«v” (pulmonary edima) D­mIpw AXv Hgn-hm-¡m-\mWv bronchoscopy sNbvX-Xv.  Hgn-hm-¡m-\à Rm³ sNÃp-t¼mÄ beat \n¶p-t]mbn (Ans).  It is also brought out in evidence that PW3 has noted his findings in page No.11/35 of Ext.D1 case sheet and he has also noted the physical condition of the patient Philip when was visited the patient at the 1^st opposite party Hospital as follows.  Pupil dilated sluggish reaction to light PW3 has further deposed that dilated  F¶v ]d-bp-¶Xv arX-amb Ah-Ø-bm-Wv. It is clear from the evidence of PW3 due to the non management of a cardiac thoracic surgeon says at proper time severe consequences to the life of the victim occurred. 

50.       The oral evidence of PW2 would further indicate that 06.07.2007  DW2 (Dr.Mohan) t\mSv izm-k-tIm-i-¯n t]mb fluid F§s\ FSp¡pw F¶v Rm³ tNmZn-¨-t¸mÄ AXn\v sshZ-Kv²-y-ap-ff Hcp doctor ChnsS Cà F¶p ]dªp.  However DW2 anaesthetist managed to obtain the service of Soumithran PW2 who reached at the 1^st opposite party Hospital and conducted horoscopy at noon of that day.  When PW3 came out after conducting bronchoscopy he told that there is only 5% chance of the victim coming back to life.  That he has removed only  50% of the fluid and the remaining 50% would be removed if the victim Philip survived.  In view of the above evidence of PW2 and PW3 it is crystal clear that the belated bronchoscopy done by PW3 was not successful.  It is also to be inferred that the remaining 50% of the secretion left at the recipracary system has created further complication which ultimately resulted in the cardiac arrest and death of the patient Philip.  It is also brought out in evidence though PW9 John Fernandez who was the other anaesthesia doctor who assisted the 2^nd opposite party.  According to PW9  he has done the intubation of the tube 10-15 minutes of starting recipiratory distress and oxygen was given with ambubag.  Though they tried to introduce endotracheal tube but failed and the resipiratory distress continued.  PW5 neuro surgeon conducted emergency tube tracheotomy after cardiac arrest  or artificial breathing.  It is clear from the evidence PW5 that after extubation of endotracheal tube recipiratory objection started due to edima of the neck of the patient. This recipiratory obstruction could not be  avoided in the proper time hence ultimately the patient died due to failure of vital organs such as brain kidney etc which resulted in cardiac arrest.

51.       It is clear from the above evidence of PW3 and PW9 that the patient was suffering from recepratory distress for more than 2^nd ½ hrs as no cardiothoracic surgeon was readily available at 1^st opposite party hospital to carry out bronchoscopy in time which would not have affected the vital organs of the victim.  It is highly unfortunate to note that the service of cardiothoracic surgeon was not available at the 1^st opposite party hospital even though all the opposite parties would claim that 1^st opposite party hospital is a super specialty hospital having all facilities to carry out Maxillofacial surgery.  The medical literature produced by both sides would clearly indicate that the service of an ortho thoracic surgeon to carry out bronchoscopy in is highly inevitable while conducting lengthy Maxillofacial surgery.  Opposite parties 1 to 3 have thoroughly failed to arrange the service of a cardiothoracic surgeon in proper time. Hence there is violation of medical ethics which amounts to deficiency in service.  

52.       Opposite parties No.1 to 3 would claim that 1^st opposite party is a reputed Super specialty hospital in Kollam which provides super specialty services like Maxillofacial Surgery etc. and the hospital is fully equipped  with  qualified experienced personals with modern infrastructure facilities and equipments.  It is further contented that most modern Anesthesia equipments like boyless machines with nitro lock and oxygen failure alarm , central pipe line system of oxygen, nitrous oxide air and suction are available at the 1^st opposite party hospital.  But none of the above equipments are seen used in this case of while giving Anesthesia and conducting surgery on the victim.  Even according to the complainant only general anesthesia was given  and modern equipments like boyless machine  has not been used even according to the opposite parties. 

53.       The complainant has a case that the 2^nd opposite party who conducted surgery was not a qualified and experienced doctor and having lack of knowledge and skill in conducting similar surgery and that he has also not even sought the assistance of an experienced maxillofacial surgeon of that hospital or from outside as stated in a consent deed.  In the light of materials available on record we find force in the above allegation in the complaint.  Though DW1 would claim in paragraph 7 of his proof affidavit that he is having 11 years of professional experience is the totally incorrect.  It may be correct as on the date of filing the affidavit by DW1 which is on 16.01.2012. But the operation was on 05.06.2007.   It is clear from the remaining sentences in paragraph 7 that he had passed BDS from Rajas Dental College, Thirunelveli in the year 1995 that after working as a Dentist in the 1^st opposite party hospital for around one and half years he joined MDS in oral and maxillofacial surgery and completed his post-graduation in 2000 and joined in the 1^st opposite party hospital as a consultant oral and maxillofacial surgeon.  It is further to be pointed out that even DW1 has no claim that he passed his post-graduation in the year 2000.  Though the complainant would challenge the qualification and experience of the 2^nd opposite party he has not produced and got marked  his original certificate showing  that he had passed MDS in oral and maxillofacial surgery either before court or before the medical Expert panel..  It is true that the learned counsel for 2^nd opposite party has produced copies of Degree and PG certificate of 2^nd opposite party without even either by the same.  Advocate or by the 2^nd opposite party and therefore not marked in evidence why the 2^nd opposite party is reluctant to produce his certificates is not known to the Forum. Even if it is considered that he has passed post-graduation in oral and Maxillofacial surgery which was in the year 2000.  The disputed surgery taken place during the month of June 2007. Hence it is clear that 2^nd opposite party is having only 7 years experience as oral and maxillofacial surgeon and not having 12 years experience as claimed.  Even as per his proof affidavit he was having only 34 years old as on the date of conducting the disputed surgery.  In the circumstance the claim of the opposite parties including the 1^st opposite party that  the hospital is a super specialty hospital having employed doctors having sufficient qualification and experience and skill and also having most modern equipments is devoid of any merit though DW1 would claim in paragraph 7 of the proof affidavit that apart from himself there was a dental surgeon Dr.Rustle Kafeel and visiting Orthodontist  Dr.George Abraham attending that hospital.  But none of the above dental surgeon and Orthodontist were  present and assisted the 2^nd  opposite party in conducting maxillofacial surgery on the deceased Philip.

54.       It is further to be pointed out that the 1^st opposite party has a case when PW2 was in the witness box that the relative of the deceased have not paid the balance bill  amount due to the hospital and in order to avoid the clearance of medical bill the complainant has foisted this case.  The learned counsel for the 1^st opposite party has also argued that effect. We find no merit in the above contention also due to the following reasons. Ext.P1 is the FIR registered by the Kollam East Police on the basis of the FI statement lodged by PW2.  On perusal of the said F.I statement which starts from the reverse side of the FIR that PW2 has given the said F.I statement at about 6 am on 12.06.17 itself which shows that there is absolutely no delay in lodging the FI statement and the same has been lodged  within half an hour of knowing the fact that his brother dead at the 1^st opposite party hospital while undergoing treatment at the post-operative stage.  In the said FI statement also PW2 has stated facts  in tune with his above allegation before the Forum. Towards the end of FI statement  PW2 has specifically expressed a doubt by stating  that his brother deceased Philip has died due to the negligent treatment of the doctors at that hospital.  In view of the averments in the FI statement it is cristal clear that the brother who accompanied the deceased Philip and stood as a bystander from the very beginning till the death and thereafter till the removal of the dead body to  Medical College Hospital, Thiruvananthapuram for postmortem has expressed his doubt within half an hour for the death of the deceased Philip.

55.       The learned counsel for the 2^nd and 3^rd opposite party by relying on the dictum laid down in 2017 (4) CPR 695 (NC) has argued that medical negligence has to be proved by expert evidence and oral evidence the victim and relatives who may have no technical knowledge to depose regarding medical negligence.  It is also argued on behalf of the 2^nd & 3^rd opposite party doctors that simply because a patient dies it cannot be construed to be on account of negligence of the doctors unless it is established that the doctors are not adhered to stands of normal medical parlance.  It is further argued that negligence can be attributed to the treating doctors only if they have not exhibited skills or reasonable care in treating the patient.  The learned counsel for the complainant per contra by relying on the dictum laid down by the Supreme Court in Kirishna Rao Vs V.Nikhil Super specialty hospital reported in 2010 KHC 4333(SC) has argued that only in appropriate cases examination of experts may be made and the matter is left to the discretion if the Forum and in a case were negligence is evident the principle of res-ipsa-loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself.

56.       It is further to be pointed out that PW2 has specifically stated in Ext.P1  FI statement that Hm¸-td-j³ Ignª aäp tcmKn-Isf _Ôp-¡sf ImWn-¡p-¶p-­m-bn-cp-¶p.  Fsâ A\p-Ps\ am{Xw ImWn-¨n-Ã.  tcmKn(^n-en-¸v) shân-te-ä-dn InS-¡p-¶-Xp-sIm-­mWv ImWn-¡m-¯-sX¶v Hcp knÌÀ h¶p ]d-ªp. The above evidence of PW2 would indicate that immediately after conducting surgery the patient has been ventilated which means the condition of the  patient has become  very worse during intra operative stage itself.  It is also clear from the oral evidence of PW1 and 2 that by realising the fact that there are complications in the surgery and post-surgery care and management.  They have demanded to shift the victim to any other higher medical centre which would go to show that they are doubtful regarding the treatment at the 1^st opposite party hospital by 2^nd and 3^rd opposite party.  It is further to be pointed out that the complainant has caused to send Ext.P5 lawyer notice alleging negligent conduct of surgery by the opposite parties which resulted in the death of  deceased Philip which would probabilise the evidence of  PW1&2 regarding the allegation of medical negligence of opposite party 1  to 3.

57.       It is clear from the materials available on record that the 2^nd opposite party has made assurance to the complainant and PW2 that the operation to be conducted to set right the defective gum of the deceased Philip is only a simple surgery which would take around 2 hours.  The pleadings and evidence tendered by opposite parties No.2&3 would indicate that after pre-operative examination the 2^nd opposite party doctor diagnosed the condition of the patient as vertical maxillary excess increased lower 3^rd facial (mandibular body height, deficient chin) and in order to correct the above deformity a surgery cutting the maxilla upper jaw bone and mandible lower jaw bone separating it, reducing it by 6-7 mm and re-fixing in its original place with mini plates and screws is required and the 2^nd opposite party advised the patient Philip accordingly.  But actually what happened is noted in Ext.D1 copy of case sheet and Ext.P2 post mortem certificate dated 12.06.2007.  The anti mortem injuries seen noted in Ext.P2 are  curved surgical sutured wound 7-5 cm long and 0.3 cm deep on the lower alveolar margin extending on either side from the 2^nd molar to 2^nd molar.  Mandible was seen separated transversely and was wired. A metallic implant with 4 screws was seen fixed to the mandible vertically in mid line.  Anti mortem injury No.9 is contusion 7x3x0.5 cm on the tongue 4.5 cm behind its tip, dark red in colour (found on dissection).  The above anti mortem injuries noted in Ext.P2 post mortem certificate would indicate that the extent or area of operation is not 6-7 mm but around 7.5 cm in length extending on either side from the 2^nd molar to the 2^nd molar.  In view of the above materials on record we find merit in the allegation of the complainant that the 2^nd opposite party who conducted operation has taken much time as the length of the areas of lower alveolar margin was very lengthy and mandible was separated transversely which would indicate that there is utter negligence on the part of the 1^st opposite party.  It is also clear from the above materials that the 2^nd opposite party has conducted surgery for about 8 hrs.  Though he made the complainant and his relatives to believe that the surgery will be completed within 2-3 hrs and if the 2^nd opposite party doctor proposed to conduct such a major surgery taking 8 hours for a simple deformity  the victim Philip and his relatives would not have conceded to conduct such a surgery which is evident from the oral evidence of PW2.

58.       Yet another allegation of the complainant is that the 2^nd and 3^rd opposite parties were having no knowledge, sufficient skill and has not given proper treatment to the victim at the appropriate time and in the 1^st opposite party hospital is not equipped with sufficient experienced doctors to conduct  Maxillofacial surgery and the 1^st opposite party hospital authorities have not given timely information relating the critical condition of the patient and if they understood that the condition of the patient was worse they would have taken deceased Philip to some other higher centre for better management when he felt that the post- operative treatment given at the 1^st opposite party hospital is not effective or not proper.  But the opposite parties deliberately not permitted the complainant and his relatives to take the patient to some other better hospital to save the life of the deceased.  It is alleged in the complaint and deposed by PW1 & 2 that the opposite parties have not permitted to remove the patient for a higher centre for better management by fearing that they would find out the negligent conduct of operation done on the deceased Philip. According to PW1 & PW2 if the deceased Philip was removed to any higher centre his life would have been saved.

59.       However the 2^nd and 3^rd opposite party would contend that there is no negligence of any sort on their part surgery done to the patient was completely uneventful and the death of the patient was due to unforeseen complications which arose post-operative stage one  day after surgery and the same turned to be out of control and management of the doctors.  But the complaint has been filed on the wrong notion and presuming negligence on the part of treating doctors.  They would also contend that except on 06.06.2007 patient’s relatives were given the option of shifting the patient to any other hospital if they so desired, but they were satisfied with the treatment being given by the 1^st opposite party hospital.  As requested by the relatives of the patient treatment summary was issued on 09.06.2007 for consulting Dr.Marthandan Pillai.  But they never insisted to shift the patient to any other hospital.  According to the opposite parties they have made earnest attempt to contact with several higher hospital but all of them were reletant to receive the patient at that critical stage.   In the light of the materials available on record we find no merit in the above contention .  We shall point out the relevant evicence in this regard.  PW2 is the bystander and elder brother of the deceased Philip.  The oral evidence of PW2 would show that on 06.06.2007 after 12 hours of the surgery the ventilator tube was extubated and thereupon the fluid collected at the throat entered into the lungs and occurred respiratory distress.  The attempt to fit the ventilator failed and thereupon tracheostomy was done with the assistance of Nuero surgeon and reinstated the ventilator tube and at this juncture PW2 by realizing that there is lack of experience and skill in the post operative treatment respiratory distress occurred insisted to shift the victim Philip to some other higher centre.  But thereupon the opposite parties did not allow his request.  According to PW2 A\p-Ps\ hnZKv² NnInÕbv¡mbn shift sN¿-W-sa¶v Rm³ ]d-ªp.  Ct¸mÄ shift sN¿m³ ]än-Ã.  R§Ä¡v 48 aWn¡qÀ kabw Xc-W-sa¶v ]d-ªp.  It is also clear from the oral evidence of PW2 that he made a personal contact with Dr.Marthandan Pillai working at Ananthapuri hospital, Thiruvananthapuram by meeting him at his residence to get a better treatment to the victim Philip.  It is came out in evidence through PW2 that when he personally met Dr.Marthandan Pillai and contacted Dr.Sumithran (PW2)he came to know that the line of post-operative treatment was not proper which worsened the condition of the victim Philip very critical.  PW2 has also seen made an attempt to bring Dr.Marthandan Pillai to 1^st opposite party Hospital to give effective treatment.  But that attempt was not materialised as Dr.Marthandan Pillai has to attend a conference sponsored by IMA at Palaghat.   In view of the evidence discussed above it is clear that the opposite parties were reluctant to refer the victim Philip to any other hospital till 11.06.2007.  The oral evidence of PW2 in this regard would show that on each day himself and other relatives of the victim Philip demanded and insisted to refer the patient to some other hospital but the authorities of 1^st opposite party hospital and 2^nd opposite party were not willing to refer the patient by stating that “Xe A\-§n-bm ac-W-s¸-«p-t]m-Ip-sa¶v `b-s¸-Sp-¯p-I-bm-bn-cp-¶p. 

60.    It is also brought out in evidence thorugh PW2 that on 09.06.2007 as directed by the Amrutha Hospital, Kochi, PW2 obtained treatment report till that date and sent the same through fax and after studying the report they informed PW2 that Cu  report kX-y-k-Ô-am-sW-¦n R§Ä AhnsS h¶v patient s\ collect sN¿m-sa¶v ]d-ªp.  Cu hnhcw And-bn-¨-t¸mÄ patient s\ discharge sN¿m³ Benziger Hospital A[n-Ir-XÀ hnk-½-Xn-¨p.  ho­pw 48 aWn-¡q-À kabw thW-sa¶v AhÀ Bh-i-y-s¸-«p.  It is also clear from the oral evidence of PW2 that on 11.06.2007 when the condition of the patient has become very critical just one day before the death of the victim Philip the 2^nd opposite party hospital made on enquiry it was understood that the ventilator facility at Amrutha hospital was full at that time R§Ä Bh-i-y-s¸-«-t¸mÄ \n§Ä A\p-h-Zn-¨n-Ã.  Ct¸mÄ ventilator  full BsW¶pw Hgn-bp-t¼mÄ h¶v FSp-¡m-sa¶pw Ad-nbn-¨p.  But at this juncture the 1^st opposite party hospital insisted to refer the patient .  Thereupon PW2 insisted that 1^st opposite party hospital has to arrange an Ambulance having ventilator facility and from the morning of 11.06.2007 till 11 p.m on the night there occurred wordy quarrel with regard the discharge/reference of the patient Philip.  According to PW2 A¶p cmhnse 11 aWn apX hospital (1^st OP) A[n-Ir-X-cp-ambn Cu Imc-y-¯n hm¡p-XÀ¡w \S-¶p.  cm{Xn Kollam East police CS-s]«v t]meokpw management ambn NÀ¨ \S¯n Benziger sâ sN-e-hn  ICU kÖo-I-c-W-ap-ff Bw_p-e³kn 12.06.2007  tcmKnsb discharge sN¿m-sa¶v k½-Xn-¡p-Ibpw sNbvXp.  cm{Xn 12 aWn-¡p-tijw Joseph Edward (OP2) room  h¶v hnZKv² NnIn-Õbv¡v sIm­p-t]m-Ip-¶-Xnsâ `mK-ambn A\p-Ps\ Xmgs¯ ICU   hnte¡v amäpw F¶v ]d-ªp.  12.06.2007 shfp-¸n\v 5 aWn Ignªv Joseph Edward phone  hnfn¨v Philip \v Aev]w IqSp-X-emWv F¶v ]d-ªp¶  R§Ä Xmgs¯ ICU hn sN¶-t¸mÄ ICU AS-¨n-«p.  R§sf AXn Ib-än-bn-Ã.  5.35 a.m \v police h¶v Philip sâ body FhnsS F¶v R§-tfmSv tNmZn-¨p. police km¶n-²-y-¯n R§Ä A\pPsâ arX-tZlw I­p .  B ka-b¯v ventilator Hm atä-sX-¦nepw D]-I-c-Wtam LSn-¸n-¨n-cp-¶n-Ã.  Ah-cpsS tPmen XoÀ¡p-¶-Xnsâ `mK-ambn ventilator Ducn hn«v A\p-Ps\ AhÀ sImÃp-I-bm-bn-cp-¶p. Doctors sâ  Adn-hn-Ãm-bvabpw A{i-²bpw aqe-am-Wv C§s\sbms¡ kw`-hn-¨-Xv.  sNt¿­ Imc-y-§Ä ka-bm-k-a-b-§-fn Doctors sNbvXn-Ã.  AhÀ¡v AXn-\p-ff ]cn-N-bhpw D­m-bn-cp-¶n-Ã.

61.       The above evidence of PW2 would also indicate that under the pretext of referring the patient ventilator facilities were disconnected which accelerated the death of the patient Philip.  Though PW2 was cross examined in length by the 2 learned advocates appearing for 1^st opposite party 2^nd and 3^rd opposite party respectively nothing material has been brought out in evidence to disbelieve the above evidence of PW2.  It is clear from the oral evidence of PW2 that opposite party 1 & 2 were not willing to discharge and refer the patient to any better hospital inspite of the best effort made by PW2 and other relatives and there is utter negligence in the intra-operative and post operative treatment given to the victim Philip by the  2^nd and 3^rd opposite parties and that they were not having sufficient knowledge, experience and skill in treatment of the victim and that they failed to give proper and timely treatment to the victim and the death of the victim Philip was due to the culpable negligence of opposite party 1 to 3 and that the contentions of opposite parties No.1 to 3 to the contrary are devoid of any merit.

62(a).  According to PW2 on 06.07.2007 (Subsequently PW2 has corrected that the entire incident taken place during the month of June and it was mistakenly stated the month as July.  Hence month July is to be react as June where ever he mistakenly stated. 

63.       It is also brought out in evidence through PW2 when he asked  Dr.Mohanan (3^rd OP) that izmk-tIm-i¯n t]mb fluid F§s\ FSp-¡pw.  Thereupon 3^rd opposite party replied that  AXn\p sshZ-Kv²-y-ap-ff tUmIvSÀ ChnsS CÃ.  and therefore opposite parties have arranged Dr.Sumithran(PW4) who was working in a local hospital, Padmavathi Hospital Baranikkavu) and the said doctor was having busy schedule not working at that hospital and also.  However PW4 reached subsequently from Parumala, Mannar St.Gregorious Cardiac Thoracic Centre at about noon and started Bronchoscopy at 12.30 noon.  Thereafter when the said doctor came out from the operation theatre PW2 enquired about the condition of his brother Philip.  Thereupon PW4 Sumithran told that 95 % H¶pw ]d-bm-dm-bn-«n-Ã.  A\p-P³ sNdp-¸-am-b-Xp-sIm­v Pohn-X-¯n-te¡v aS§n hcm³ 5 % km[-y-X-bp-s­¶pw ]d-ªp.  Fluid apgp-h\pw FSpt¯m F¶v tNmZn-¨-t¸mÄ 50% Hmfw FSp-¯n-«p-s­¶pw _m¡n-bp-f-fh c£-s¸-Sp-s¶-¦n FSp¡mw F¶v ]d-ªp.

64.       It is true that PW3 Dr.Sumithran (who was brought from Mannar Parumala St.Gregoreous Cardiac Vascular Centre formerly working at the Padmavathy Medical faculties Sasthamkotta) a Cardio thoracic surgeon conducted bronchoscopy on the victim has answered to a specific question put by the learned counsel for 2^nd and 3^rd opposite party that after seeing the patient and after understanding  the treatment procedure adopted by the doctor at the Benziger Hospital and also after seeing the facilities at the Hospital he could not be able to attribute any negligence on the part of the doctors and hospital treated the patient Philip.  But PW3 would admit during cross examination of 2^nd opposite party and 3^rd opposite party itself that after removing Endotracheal Tube there occurred resiprocary obstruction which resulted in pulmonary edema and the chance of having collection of secretary   in the lungs.  The evidence of the witness would further show that though he received information at 10 a.m he could start only after half an hour from Parumala, Mannar which is at eastern extremity of Alappuzha District.  He (PW3) would fairly admit that if any delay occurred in carrying out bronchoscopy  it would worsen the problems and therefore   bronchoscopy is expected to be done at the earliest.  But here in this case it is (PW3) himself would admit that he had taken 2.30 hours to reach at the Benziger hospital after getting information from Benziger hospital. If a cardiac thoracic surgeon was available at Benziger hospital which is claimed to be a super specialty hospital timely Bronchoscopy treatment could have been done.  The opposite parties have also failed to arrange one Cardiac Thoracic Surgeon while conducting a complicated Maxillofacial  surgery where bronchoscopy is necessitated. .  In the circumstance there is culpable negligence on the part of opposite parties especially on the 2^nd opposite party who conducted Maxillia surgery by himself without anybody’s help except the help of anaesthetist.  It is further to be pointed out that usually death will not occur due to orthogenetic surgery but in this case the deceased Philip died while he was in the post-operative care after the said surgery which would speak by itself that there is negligence on the part of opposite party 1 to 3.

65.       PW3 has started at the re-cross examination that the time noted in page No. 1 and 2 in D1 case sheet is incomplete and he could be able to give an enact answer only after verifying the original but the original case sheet is not made available by the 1^st opposite party. The learned counsel for the complainant has argued that there is some manipulation in Ext.D1 case sheet and that is why the same is not made available.  The complaint has a specific case when PW4 was in the witness box that Ext.D1 (case sheet)  lmP-cm-¡n-bn-cn-¡p¶ record  hospital sâ `mK¯p \n¶pw D­mb negligence sâ portions FÃmw Hgn-hm-¡n-bmWv At\-z-j-W-¯n-\m-bn -sIm-Sp¯Xv F¶p ]d-bp-¶p.  A§s\ ]d-bm³ ]än-Ã.  (ans).  According the opposite parties the case sheet has been seized by the police while removing the dead body itself and subsequently the same was not returned.  Hence it cannot be produced before the forum.  It is also contented that as the case sheet has been seized by the police immediately on getting information there is no chance of manipulating anything in the case sheet.  We are not satisfied with the above explanation.  There is no chance of seizing any document by police from a super specialty hospital before starting investigation in a crime.  PW4 who was the investigating officer has deposed that he had taken over investigation only on 29.06.2007 that he had received the operation records from the hospital that on 12.11.2007 which is 5 months after the death of the victim Philip.  The case sheet has been received at the police station and that fact is recorded at the police station.  If that be so there is sufficient time to manipulate necessary entries and also remove necessary pages showing negligence in the treatment as alleged by the complainant.  It is true that police has subsequently deposed that the case sheet was seized while preparing inquest.  But according to PW2 the dead body was removed from the 1^st opposite party hospital at 6 a.m which is about ½ hour of the time of death and prepared the inquest report at the road near East Police Station where the dead body was kept in the Ambulance.  No seizer Mahazar or inquest report or its copy are produced before the forum to prove that at the case sheet was seized while conducting inquest report.  The learned counsel for the complainant has argued that some additional entries seen in the Ext.D1 case sheet which are written by one and same person in hard black ink apart from removal of certain pages and if the original is produced subsequent writing can be easily understood.  On perusal of Ext.D1 case file there are certain entries which are seen written subsequently with another ink which is clear even from the copy.  It is further to be pointed out all the pages of case sheet are not seen attached to D1 case file.  According to PW7 John Sacharia has also deposed that on 07.06.2007  he treated the patient when the patient sustained cardiac arrest.  He would also admit that the date of his treatment mentioned in Ext.D1 copy of case sheet is not clear.

66.       PW9 is John Ferus another anaesthetist attached to Benziger Hospital however he has not participated in the surgery conducted by the 1^st opposite party on the victim on 05.06.2007.  However he would admit that he has assisted the anaesthetist Mohankumar to excubate the entrotricical  tubeon 06.06.2007 and 15 minutes have taken to remove the tube.  And after 10-15 minutes of receiving the tube the victim sustained resiprocary obstruction.  He also would assert edima is the reason for resiprocary obstruction due to edima breathlessness occurred and thereby resiprocary  distress happened.  According PW9 as a consequence of the resiprocary  distress the heart rate and pulse rate will be lowered and there is every chance of sustaining cardiac arrest.

67.       It is true that PW 5 to 9 have not fully supported the complainant’s case .  They are either the doctors working at 1^st opposite party hospital or the doctors who used to attend at 1^st opposite party hospital and carry out certain treatment on the request of opposite parties.  Therefore there is no chance of giving evidence against the 1^st opposite party hospital or against the treatment of 2^nd   and 3^rd opposite parties.  Even though they have not been supported the complainant’s case other materials including admissions of DW1 to 4 are sufficient to substantiate the case of the complainant.

68.       DW1 is Dr.Joseph Edward who is none other than the 2^nd opposite party.  DW2 is Dr.R.Mohan Kumar who is the anaesthetist attached to Benziger Hospital who has given anaesthetist to the victim Philip.  Both of them have sworn in the proof affidavit in support of the case of the opposite parties.  But during cross examination they would admit certain aspects which are in support of the complainant’s case.

69.       The learned counsel for the opposite party 2 and 3^rd has argued that the expert panel constituted as per Ext.X1 Govt. circular has filed  report dated 06.09.2007.  Ext.X2 wherein it is stated that there is no negligence at the time of pre-operative evaluation intra-operative and post-operative care given to the patient Philip which were as per standard protocol.  Hence the forum has to exonerate them from liability.  But the learned counsel for the complainant would argue that Ext.X2 report is purely based on Ext.D1 copies of case sheet and the expert doctors have not studied the case well nor conducted an independent enquiry by recording the statement of the complainant or any of the relatives of the victim.  It is also argued by the learned counsel for the complainant that Ext.X2 is a biased report managed to be  obtained  by the management of the 1^st opposite party hospital who are having high influential capacity that the opposite parties have influenced the police well before the death of deceased Philip and managed things in their favour and that they have influenced the expert panel also and obtained Ext.X2 report in their favour which is not acceptable for several reasons.  The learned counsel for opposite party 2^nd and 3^rd would argue by relying on the dictum laid down in 2016(2)CPR 14(NC) that the forum shall not sit in appeal against the findings of the medical expert panel report.  It is true that the Forum is not expected to sit in appeal over the expert panel report.  But being a quasi-judicial Forum we are duty bound to consider whether there is any merit in the allegation of the complainant against X2 report and whether X2 can be acted upon in this case.

70.       Ext.X1 is the Govt.circular (Circular Memorandum) dated 16.06.2008  as per this circular the DySP who is in charge of the investigation of the crime alleging criminal negligence registered against medical practitioners either working in Govt.sector or in the Private sector shall immediately after taking over investigation refer the case to an expert panel consisting of the following four members.

1. The District Medical Office of Health (Convenor)
2. District Govt.Pleader-Public prosecutor
3. Sr.Govt.Doctor in the concerned specialty as nominated by the respective medical officer
4. Forensic Expert from the nearest Medical college.

71.       It is to be pointed out that Ext.X1 is dated 16.06.2008 and the same is seen communicated to the officers concerned only on 16.10.2008.  There is no mention in the said circular that it has retrospective application.  Hence an expert panel constituted under the circular of 2008  is not expected or possible to prepare Ext.X2 report dated 06.09.2007 which is more than one year prior to the date of Ext.X1 circular.​

72. However on perusal of Ext.X2 expert pannel report the District Govt.pleader and public prosecutor who is expected to be the 2^nd member to represent the state as well as the victim is not a member in the expert panel.The DySP who is in charge of the investigation is also not participated in the enquiry.Therefore it is crystal clear that while preparing the X2 report the interest of the State/victim is not protected.It is further to be pointed out that the four members participated in the expert panel committee has not studied the case properly which is evident from the evidence of DW3 to 5 who are 3 members participated in the expert panel committee out of which DW3 Dr.Babu paul was the chairman Dr.Sumithran, Professor in Govt.Dental College, Thiruvananthapuram (DW4) Madhusoodanan Pillai, the Associate Professor of Anaesthetist at Medical College Hospital, Thiruvananthapuram(DW5).All the above 4 witnesses have uniformly deposed that they have only perused the case sheet and prepared Ext.X2 report though prosecution could allege in Ext.P1, FIR cum FIS that 1^st opposite party hospital and 2^nd and 3^rd opposite party doctors have committed culpable negligence while treating the deceased Philip and death was caused due to the negligent and in experienced hands of the doctors who treated the victim and that the non-availability of bronchoscopy doctor at the time of respiratory distress was also reason for the death of the victim and that the doctors were incompetent nor were having requisite skill etc.But the expert committee has not enquired about any of such allegations of the complainant found in Ext.P1, FIR/FIS.It is pertinent to note that even PW4 the investigating officer has not relied on Ext.X2 report and he continued with the investigation even after getting the said expert report.

73. It is brought out in evidence that Ext.D1 copy of the case sheet has been supplied to the expert committee.On perusal of Ext.D1 it is clear that the same has not been prepared noting the date and proper time of treatment given and procedure adopted. Ext.D1 case sheet is not seen arrayed in a chronological order.Page No.1 written in hard black ink is the original 31^st page.Page No. 2 is the original 30^th page which is seen scored off.Page No.3 is the original.29^th page which is the consent deed.The expert committee has not seen looked into the consent deed which is a printed form and most of the columns remain unfilled.At any stretch of imagination it cannot be considered as an informed consent deed obtained from the patient and his relatives.Furthermore as per Ext.D1 copy of case sheet Dr.Joseph Edward(1^st OP) and Dr.Murali(PW6) are the doctors who conducted Maxillofacial surgery Dr.Mohan Kumar DW2 was the anaesthetist, but it is clear from the available materials that Dr.Murali has not at all participated in the surgery.As per the deposition of thatDr.Murali who has been examined as PW6 he has not at all participated in the surgery conducted by Dr.Joseph Edward (OP1) but the members of the expert panel including Chairman are under the impression that the surgery was done by a team of doctors consisting of Mohan Kumar anaesthetist Joseph Edward and Murali Krishnan as shown in Ext.D1 case sheet.It is clear from the available materials that the members of the expert panel have not verified any other document except Ext.D1 case sheet.In this connection it is pertinent to note the oral evidence of DW4 Soumithran, who is then professor in Dental college, Thiruvananthapuram.Dr.Joseph Edward, Dr.Murali IqSn-bmWv kÀPdn \S-¯n-bXv F¶v Ext.X2 sIm­v ImWp-¶p.  Sn doctors kÀPdn sNbvXp F¶v case sheet  ImWp-¶-Xp-sIm-­mWv ]d-ª-Xv.  Dr.Murali kÀPdn \S-¯n-bn-«nà F¶p ]d-ªm X2 hni-z-kn-¡mtam? Case records  Sn c­v   doctors sâbpw t]cp-­v.  In the light of the above materials on records we are of the view that there are obvious irregularities and illegalities in Ext.X2 report.  Therefore we are no prepared to exonerate the opposite parties by accepting X2 expert pannel report. 

74. Even a junior civil surgeon or any person who is capable of reading the handwritingseen in Ext.D1 case sheet can peruse it and can prepare a report like X2.But what is expected from an expert panel is not to prepare a report after reading the Ext.D1 unauthenticated photocopy of case sheet alone.They are expected to study the case analysis the allegations contained in the FIS-FIR and to evaluate the merit of the allegations and to find out whether the doctors and the hospital authorities followed standard protocol and medical ethics in treating the victim but unfortunately for the reasons best known to the chairman and panel members they have not seen applied their mind while reparing the report.But unfortunately the expert panel have not done so for the reasons best known to them which is to be viewed very seriously.

75. It is further to be point out that even if Ext.X2 is considered as a duly prepared report the same is applicable only for the criminal investigation and subsequent trial where the prosecution has to prove culpable negligence beyond reasonable doubt.But the X2 report is not applicable to civil court and Quasi-Judicial Forum where the allegations of negligence is to be proved according to the principles of preponderance of probability and not beyond reasonable doubt.

76. The learned counsel for the all opposite parties have argued by relying on Ext.X3 reply letter received from the Public Information Officer Kollam East Police Station and also on the basis of the evidence tendered by DW1 and 2 that as per the request of PW4 the investigating officer the expert panel have considered the matter perused the case sheet and found that there is no medical negligence on the part of the doctors concerned which resulted in the death of the deceased Philip.Though PW4 has initially not accepted the Ext.X2 report the police has finally closed the investigation by writing UN report.The said fact is mentioned in 2^nd para of Ext.X3 letter which reads ‘ Kollam East Police Station Crime 611/2007 –mw \¼À case kollam Crime Detachment DySP At\-z-jn-¨n-«p-f-fXpw BbXv UN report Fgp-Xn-bn-«p-f-f-Xp-am-Wv.  However no copy of the UN report is attached to Ext.X3 but it is stated that since the case relates to 7 years back more time is required to find out the file and to take copy of UN report.  PW4 was the investigating officer but he has not referred the case even after getting X2 Expert panel report .  Even according to PW4 he proceeded with the investigation as he was not satisfied with Ext.X2 report.  It is interesting as well as surprising to note that crime No.611/2007 registered alleging medical negligence against Hospital and treating doctors have been referred as UN (undetectable)  It is to be pointed out that originally the crime has been registered U/s 174 CrPC which itself would indicate that a suspicious death took place.  Even the opposite parties have no case that the victim Philip has not died while under post-operative treatment at the 1^st opposite party hospital and 2^nd opposite party and 3^rd opposite party are not the doctors who treated the deceased.  Ext.P2 is the post-mortem certificate of the said victim.  Hence the only question to be considered is whether there is any culpable negligence on the part of the hospital authorities and the treated doctors.  If the answer is positive charge sheet has to be prepared and has to be filed before the court concerned.  If the answer is in the negative the case has to be referred as false/mistake of fact and note as undetectable as if it is a hit and run case or a theft case where the thief and the stolen properties were not found out. In such case UN report can be prepared and filed by the investigating agency.   It is to be pointed out that even if any UN report is filed and accepted by the court concerned the same can be reopened on getting sufficient materials. 

77. On evaluating the entire materials available on record we have no hesitation to hold that the death of the deceased Philip was on account of negligence of 1^st opposite party hospital management and also due to the negligent way of managing pre-operative, intra operative and post-operative treatment of the victim Philip and also due to the lack of care, skill and experience on the part of 2^nd and 3^rd opposite parties and that the complainant has established medical negligence deficiency in service and unfair trade practice against 1^st opposite party hospital and 2^nd and 3^rd opposite party doctors who treated the deceased Philip. The points answered accordingly.

Point No.3

78.       In view of the materials discussed under point No.1 & 2 it is clear that there is medical negligence on deficiency in service, unfair trade practice on the part of opposite party 1 to 3 and therefore the complainant being the father and one of the legal heirs of the deceased Philip is entitled to get compensation from opposite party 1 to 3 .  Now regarding the quantum of compensation to be awarded. Admittedly the deceased Philip was an young man of 21 years and was studying for the 2^nd year B.Com degree examination in the reputed MSM College at Kayamkulam and had already competed the first year of the course.  It is also an undisputed fact that he was hale and healthy and also belongs to a reputed family.  According to PW1 and 2 if the deceased Philip was alive he would have earned much wealth and reputation to the family and the death of the deceased Philip caused much mental agony apart from financial loss to the family.  It is also brought out in evidence through PW2, who is the elder brother of Philip that he was employed in gulf country as on those days though he was present at the native place and accompanied the decease Philip in the 1^st opposite party  Hospital and was a bystander of the victim.  PW2 has deposed that there is every chance to get a very good job to his young brother at gulf country if he was alive.  It is also brought out in evidence that due to the untimely death of the deceased Philip irreparable loss and injury has been caused to the complainant and other legal heirs whom the complaint represented.  Complainant claimed compensation to the tune of Rs.15,00,000/- during the year 2008. On evaluating the entire materials available on record we are of the view that the compensation of Rs.15,00,000/- claimed in the complaint is quiet reasonable.

79.       The 1^st opposite party is the Benziger hospital management where the victim was treated the 2^nd opposite party is the Maxillofacial surgeon who conducted surgery in a careless manner and 3^rd opposite party is the anaesthetic who failed to manage the anaesthetic problems in the post-operative care. In view of the materials discussed under point No.1 and 2 it is crystal clear that all the three opposite parties are guilty of medical negligence.  Furthermore opposite party 2^nd and 3^rd are admittedly the employees of 1^st opposite party hospital. Hence the 1^st opposite party hospital is vicariously liable for the medical negligence and consequent death of the deceased Philip. In the circumstances opposite party 1 to3 are jointly and severally liable to pay compensation to the complainant on behalf of the legal heirs of the deceased Philip. 

Point No.4

            In the result the complaint stands allowed in the following terms.

(a)Opposite parties No.1 to 3 are directed to pay Rs.15,00,000/-(Fifteen lakhs) as compensation along with interest at the rate of 6% per annum from the date complaint till realization.

(b)The opposite parties No.1 to 3 are also directed to pay Rs.10,000/- to the complainant as costs of the  proceedings.

(c)The opposite party 1 to 3 are directed to pay the above compensation with interest and cost as ordered above to the complainant within 45 days from the date of receipt of a copy of this order failing which the complaint is entitled to recover Rs.15,00,000/- (Fifteen lakhs)with interest at the rate of 9 % per annum from the date of complaint till realization along with cost Rs.10,000/- (ten thousand) from opposite party 1 to 3 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  30^th   day of  July   2020.

                                                                                                                                                         E.M .MUHAMMED IBRAHIM:Sd/-                                       

S.SANDHYA   RANI:Sd/-

STANLY HAROLD:Sd/-

                                                                 Forwarded/by order

                                                                Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :           Samuel Aniyankuju (Father of the decease Philip)

PW2                :           Santhosh Samuel(Elder brother of the Philip)

PW3                :           Dr.Sumithran S/o M.K.Gangadharan, Cardio Thoracic

 Surgeon, Padmavathy Hospital, Sasthamkotta

PW4                :           T.F.Xavior, DySP, Crime Detachment, Kollam

PW5                :           Jacob John, Xemo surgeon, Benziger Hospital, Kollam

PW6                :           Dr.Murali Krishnan, Associate Professor, Sree Gokulam 

                               Medical College

PW7                :           Dr.John Zacharia, Physician, Benziger Hospital, Kollam

PW8                :           Dr.Thomas Mathew, Cardiologist

PW9                :           John Ferus, Anaesthetist, Benziger Hospital, Kollam

Documents marked for the  complainant

Ext.P1             :           Copy of FIR and FIS dated 12.06.2007

Ext.P2             :           Postmortem certificate dated 12.06.2007

Ext.P3             :           Anaesthesia chart(only a part of record) dated 05.06.2007

Ext.P4             :           Death Certificate dated 10.08.2007

Ext.P5             :           Office copy of Advocate notice dated 20.11.2007

Ext.P6             :           Higher Secondary Examination certificate of Philip

Ext.P7             :           Course and conduct certificate issued from MSM College,

                               Kayamkulam to Sri.Philip

Ext.P8             :           Photograph of the deceased Philip

Witnesses Examined for the opposite party:-

DW1               :           Dr.Joseph Edward (2^nd OP), Consultant oral and

                                    Maxillofacial surgeon, Azeezia College, Meyannoor

DW2               :           Dr.R.Mohankumar (3^rd OP), Consultant Anaesthetist,   

                                    Bishop Benziger Hospital, Kollam

DW3               :           Dr.Baby Paul, Professor, Department of Medicine,

                                    Medical College, Thiruvananthapuram

DW4               :           Dr.Soumithran, Professor and Head of Department of Oral

                                    and Maxillofacial surgery Govt.Medical College, Calicut.

DW5               :           Dr.Madhusoodhanan Pillai, Associate Professor of

                                    Anaesthesia, Govt.Medical College, Thiruvananthapuram.

DW6               :           Dr.Praveen Namboothiri, Consultant Nephrologist in

                                    different hospitals

Documents marked for opposite parties:-

Ext.D1            :           File containing photocopy of medical records of

                                    Bishop Benziger Hospital

Third party Exhibits:-

X1                   :           Circular Memorandun of Govt.of Kerala, Home SSB,

                                    Thiruvananthapuram dated 16.06.2008

X2                   :           Report of expert committee and covering letter

                                    dated 29.05.2008

X3                   :           Reply under RTI Act 2005 and copy of RTI application.

                                             E.M .MUHAMMED IBRAHIM:Sd/-   

                                                                                                                      S.SANDHYA   RANI: Sd/-

 STANLY HAROLD:Sd/-

                                                                        Forwarded/by order

                                                                                                                                                                   Senior Superintendent