BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of September 2011
Filed on : 11/09/2007
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 283/2007
Between
1. Unnikrishnan, : Complainant
S/o. Velayudhan,
Chulliyil house, (By Adv. Promod)
Nenmanikkara Village & Desam,
Mukundapuram, P.O.
Puthukkadu-680 301.
2. Sajitha,
W/o. Unnikrishnan,
-do-
And
1. Managing Director, : Opposite parties
Amrita Institute of Medical Science
and Research Centre,
Amrita Enterprises Pvt. Ltd.,
(AIMS), Amrita Lane,
Elamakkara, P.O. Kochi-26).
2. Dr. Meenakshidhar,. (O.Ps.1.2,3,5&6th by Adv.
P.R. Ajithkumar,
-do- Amrita Niketan, Plakkat
Colony, Kaloor,Kadavanthra,
Road, Kochi-682 017.)
3. Dr. Sujithra S,
-do-
4. Dr. Nidhin, (4th O.P by adv.
Biju Hariharan,
-do- K.N.B. Nair Associates
2nd floor, Morning Star
Building, Kacheripady,
Cochin-682 018.)
5. Dr. Sasidharan,
-do-
6. Dr. Suresh G Nair (S.G.N)
-do-
7. National Insurance Company, (7th O.P.By Adv. Rajan P.
Ernakulam Branch, Kaliyath, 42/1824, Near Mazjid
Ernakulam. Kombara, Market road,
Kochi-18.
O R D E R
Paul Gomez, Member.
The complaint stems out of the following facts.
The complainant’s daughter Midhila Krishnan aged 9 years succumbed to an ophthalmic operation done to correct the infirmity of squint in her right eye. The said procedure was conducted by the 2nd opposite party with the assistance of opposite parties 3 to 6 in 1st opposite party’s hospital on 04-04-2007. The complainants allege that the mishap happened due to negligence in administration of anesthesia. Also it is alleged that pre-operative precautionary measures had not been taken before admission of the child for surgery. Another imputation raised against the opposite parties is that the risk factor involved in the surgical procedure was not explained to the complainants before taking their consent. Complainants hold the view that the hospital records produced in the Forum was manipulated by the opposite parties. The only prayer in the complaint is that Forum may direct the opposite parties to pay Rupees twenty lakhs towards compensation for deficiency in service.
2. Opposite parties 1 to 6 filed version. They admitted the fact of squint operation that was performed in the 1st opposite party’s hospital on the deceased girl. She was not having any pre-existing disease. Even though surgery began at 8.45 AM, there was nothing unusual till 10.20 A.M., when the patient developed eardiac asystole from which the patient recovered due to the resuscitatory steps taken by a team of doctors. The surgery was resumed at 10.30 A.M. Once again the patient relapsed into cardiac arrest but the incessant medical efforts exercised by the doctors this time did not bear fruits and ultimately the girl was declared dead at 6.10 p.m. Hence it is contended by the opposite parties 1 to 6 that the complaint is devoid of merit.
3. 1st complainant was examined as PW1. Exts. A1 to A7 marked on the side of complainants. Witness for complainants was examined as PW2. 6th opposite parties was examined as DW1, witness for opposite party was examined as DW2. National Insurance Company, Ernakulam Branch has been impleaded as 7th additional opposite party. The learned counsel appearing on both sides were heard.
4. The following points deserve settlement.
i. Whether pre-operative tests were completed before operation?
ii. Whether consent secured from the complainants was legally fool-proof.?
iii. Whether there was any negligence in administration of anaesthesia?
iv. whether there was any negligence in resuscitative measures taken by the doctors?
v. Whether the records have been manipulated by the opposite parties?
vi. What are the reliefs, if any, allowable in this case?
5. The squint operation performed on the girl child of 9 years in the 1st opposite party by 2nd opposite party ophthalmic surgeon, forms the heart of the complaint. Unfortunately, to the surprise of the kith and kin of the deceased girl, she did not survive the otherwise harmless procedure. Loss of life of their beloved one is perceptibly unbearable to the unfortunate parents . They suspect negligence on the part of the treating doctors for this mishap which has triggered the eternal misery in their life. It is to vindicate their rights under consumer law, they have moved the Forum with this complaint seeking compensation to the tune of Rs. 20 lakh which is the maximum relief that can be allowed by this Forum in terms of money.
It is the natural human tendency to raise accusing fingers against some body when some loss has occurred to any body. This tendency of human beings in the context of medical negligence has been highlighted by the apex court in Martin F D’ Souza V. Mohd Isfaq 2009 CTJ 352 (SC) (CP)in the following words.
“ Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient”
Even though, as rightly pointed out by their Lordships, that it is the human tendency to accuse anybody and everybody for something that has gone wrong, it is not the same always. There are certainly instances where misery is brought forth by the careless, negligent and callous method of performing one’s duty that one owes to another. The instant complaint, in our view provides a good example for the above proposition for several reasons than one. We shall analyze the points involved in the episode one by one.
6. Point No. i. The first allegation raised against opposite parties 1 to 6 is that pre-operation/precautionary measures have not been taken in full with regard to the deceased patient. In this regard, it will be profitable for us to turn to pages 28 and 30 of the Ext. A7 document coupled with deposition of DW2. Page 28 is the pre-operative check list where at point 4, against allergies it is noted that “Not known”. This is further corroborated by the recording at page 30 under the title, “allergies/Drug reaction”, it is stated that “allergic reaction to drugs-Details not known”. To the pointed question whether it was mandatory to have conducted the sensitivity test on the patient, DW2 replied that it was not necessary to have conducted such a test. Such an opinion can be taken only with a pinch of salt. It is a well known fact that medical men invariably conduct sensitivity tests to drugs and anesthetic agents as a routine before surgery. The answer of the expert smacks of bias. Admittedly it was not an emergency operation. There was ample time for the doctors to conduct the pre operative tests with meticulous devotion. When the cause of cardiac failure has not be precisely identified, if one alleges that it might have occurred due to allergic reaction of the physical system of the girl, the burden lies upon the doctors to dispel such a doubt. Here the opposite parties have not cared to do so. When it is admitted that a usual pre-operative test has been skipped without any justification, such situations are governed by the doctrine of ‘Res ipsa loquitur’ which means that things speaks it self. Here also this lapse is so patent that it serves tongues to speak of negligence of the treating doctors.
6. Point No. ii. As it has been indicated earlier, squint surgery falls within the category of cosmetic surgery. Here also, a 9 year child could have pulled on well and completed her cycle of life after, say, seventy or eighty years, but for this unfortunate incident without much hardship in her life. The surgery involved in this case is not a do or die affair for the deceased child and her parents. Had they been given a proper opportunity to evaluate whole situation keeping in mind the special risks involved, they could have better walked out of the hospital without undergoing the impugned procedure. In our view such an opportunity has been denied to them in as much as the consent obtained in the instant case was not an informed one in that sense of the term. His Lordship justice Raveendran has made an authoritative exposition of law on the doctrine of ‘informed consent’ in Samira Kohli V. Dr. Prabha Manchanda 2008 CTJ 226 (SC) (CP) His Lordship has defined consent as follows:
“consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure”.
Then the lordship has set out the parameters of the concept of ‘adequate information’ in the following words:
“The adequate information to be furnished by the doctor (or a member of his team) who treats the patient, should enable patient to make a balanced, judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect (b) alternatives if any available, (c) an outline of substantial risks and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade by a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.”
By applying the above dictum, one can conclude that the stereo typed consent obtained as a matter of routine in this case fell short of the legal requirement, given the nature of risk involved in the operation. The doctor ought to have explained the special risk in the surgery in view of the exclusive knowledge in the command of the doctor alone. The extract of Page No. 763 of the well known book, ‘clinical Anaesthesiology authored by G Edward Morgan Jr. etc. has been produced to explain incidence of auto cardiac reflex in children where it is categorically stated,
“ The oculo cardiac reflex is most common in pediatric patient undergoing strabismus surgery… Retrobulbar blockade or deep inhalational anesthesia may also be of value, but these procedures impose risks of their own. Retrobulbar blockade, can in fact, elicit the oculo cardiac reflex.”
This description leads us to the conclusion that squint surgery is a tight rope walking for the patient, and slight carelessness either in surgery or anesthesia is enough to push the patient to the unfathomable depth of death. That being the case, the doctors ought to have explained the special risk peculiar to the squint operation particularly when it is done to a Pediatric Patient. The treating doctors have failed in securing an informed consent from the parents of the deceased after explaining to them the special risk involved in the surgery. The consent registered at page 26 of Ext. A7 obtained from the mother of the deceased looks ritualistic. Hence conclusion is irresistible that 2nd opposite party has failed in obtaining informed consent from the guardian of the patient.
7. Point No.iii. The third point pertains to the negligence in administration of anaesthesia. It is alleged that the 5th and 6th opposite parties were not present in the operation theatre at the time of surgery and it was 4th opposite party who has actually administered the medicines of anaesthesia. But 4th opposite party contends that he is only a post graduate student and therefore he was only watching the procedure. The Allegation of the complainant regarding absence of 5th and 6th opposite parties in the operation theatre is only a bald accusation without anything produced to substantiate it case. 4th opposite party has filed separate version where it is stated that he is doing first year DNB training in Anesthesiology. He urges on us to absolve him from liability. We think his prayer has to be conceded as the complainant has failed to establish any negligence on the part of 4th opposite party. Moreover, he being a student cannot take any decision of his own. Hence he rightly deserve complete absolution and we order accordingly.
2nd opposite party is the ophthalmic surgeon who conducted the surgery and opposite parties 3 to 6 were assisting her in the operation theatre and the resuscitative measures. The principal allegation raised by the complainant is that it is the deficiency in service in providing adequate Anaesthesia in correct measure and by selecting wrong medicine as anesthetic agent has caused the death of the child. When Dr. Rajaram, who had conducted the post mortem of the body, was in the witness box, the doctor has replied to a pointed question regarding oculo cardia reflex in the following terms:
“When the surgery is carried out without the administration of intravenous atropine, it may result in OCR especially in children were squint surgery is performed.”
He maintained,
“Intravenous atropine may have to be given prior to the surgery while the patient is on the operation theatre.”
After perusing Ext. A7, he added,
“I am not in a position to see intravenous atropine being given to the patient and the same has been given several times after the cardiac arrest”.
It was admitted by DW1 that atropine was administered when cardiac arrest occurred. He has stated in his deposition that atropine was not administered at the pre-operative stage because it has its own complication. Also he has asserted that in lieu of atropine glycol pyrolac was administered at the pre-operative stage which is also effective in reducing mouth secretion. This Forum, for that matter, any judicial body is incompetent to sit in judgment over the selection of a particular medicine in preference to another. The wisdom and learning of the physician at the right spot is the proper person to take decision as to such matters and the wisdom of such experts must be respected. Therefore we do not make any comment on the selection of glycol pyrolac in preference to atropine at the pre-operative stage.
In Ext. A3 post mortem report a tacit suggestion has been made that the impugned squint surgery had not in fact been performed on the patient when it is observed that there was no external injury seen on the girls body. It is further corroborated by his statement that he was not able to feel by touch the remains of stitch. In this context, the following statement contained in X1 report is gainfully extracted:
“We have also seen the video recordings of the Microscopic surgery. Regarding the allegation of non-performance of surgery the following points are to be considered. As a cosmetic surgery minimally traumatizing procedure is said to be done. Suture material is invisible to naked eye. Dissection of Eye muscle is not done during postmortem examination”.
In the light of the above observation we do not think it is not advisable to rely much on the finding of the post Mortem report. Close scruting of the video recording need to be done only in criminal proceedings. Hence our considered view is that the girl had in fact undergone the impugned surgery and it cannot be said that the child breathed her last even before the operative procedure commenced.
The next question pertaining to the impugned surgery is whether retrobulbar block was given in the instant case or not. It was deposed by DW1 that retrobulbar block was given at 8.30 am before the microsurgery commenced. He added that in Ext. A7 there will be no indication to show this fact and he stated that it was administered by the surgeon. He also disclosed that retrobulbar block is essential to prevent cardiac arrest. He explained that this is only a routine procedure especially for squint surgery. In the version filed on behalf of opposite parties, it is stated that retrobulbar block was administered. On the reverse page of case Record of the Department of Anaestheology it is stated the names of medicines administered at 8.30 a.m. Nothing is specified regarding retrobulbar block. Physician’s Progress notes also is blank with regard to retro bulbar block. At many places it is mentioned that the surgery was performed under general anaesthesia. We have perused the ‘ophthalmology operation Record. Where we have not found any noting regarding the retrobulbar block. In that view of the matter, the conclusion is inescapable that before the commencement of the operation, no retro bulbar block was effected. Keeping in view the admission that retro bulbar block was inevitable to avoid cardiac arrest, it is crystal clear that the operating team has failed in that respect. It is not clear whether the duty is that of the surgeon or the anesthesiologist to administer the same. Also it is pertinent to take into account the opinion of DW1 stating that retro bulbar block is a routine process for every patient and especially for squint surgery.
8. Point No. (iv). The next point that stands out for settlement is whether there was any laches, lapses or negligence on the part of the doctors in resuscitative steps to revive the normalcy of the child. On a bare reading of the complaint, proof affidavit and deposition of the complainant it is obvious that they have not got much complaint in this regard. In the version it is stated that at 10.20 A.M. the patient suddenly developed sudden cardiac asystole. This has been corroborated by the deposition of DW1 that cardiac arrest occurred at 10.20 am. When we puruse Ext. A7 physician’s progress notes, and nurses Reports it can be seen that what has been averred by opposite parties was right. The above documents give an account of what has been done by the doctors including opposite parties 5 and 6 to bring the child to normal life. It can be seen that the doctors have worked in unison on war footing to save the child. They could not succeed unfortunately to the misfortune of parents. We make it clear that opposite parties 4 and 5 ought not to have made a party to this complaint. They are in no way responsible for the untimely demise of the child.
9. Point No. (v). 5. It is also alleged that the hospital records submitted by the opposite parties were being manipulated by the opposite parties. This seems to be a wild allegation without any basis. The complainant has not succeeded in producing cogent materials to establish their case except putting some questions to DW1 regarding authenticity of some parts of the record. It is to be borne in mind that a criminal case was filed that it was subsequently referred. Moreover it is a cumbersome procedure to unravel truth when allegation of fabrication of records is made. The proceedings in consumer Fora being of summary in nature. We are not well equipped to pronounce upon such a disputed point unless there is no dearth of evidence to show that.
10 Point No.(vi). The last point at issue is the reliefs allowable to the complainants.
The only prayer in the complaint is to allow Rs. 20,00,000/-(Rupees twenty lakhs only ) towards compensation for the loss of life of their child due to the deficiency in service on the part of the opposite parties. We make it clear that opposite parties 4 and 5 are not liable in any manner for the death of the deceased child. In the aforesaid detailed discussion we find that opposite parties 1,2,3 and 6 are directly liable on account of the following omissions.
(1) The consent obtained from the parents of the patient fell short of the requirements of in formal consent in as much as the special risk involved in the ophthalmic surgery was not properly conveyed to the complainant.
(2) the pre operative procedure followed was in adequate so as to insulate the patient from potential risks on surgery by exhaustively completing the pre-operative stage clinical tests. The relevant records are eloquent as to reveal that allergy and sensitivity tests have been left out.
(3) Even though DW 1 asserted that retrobulbar block has been given, the records speaks otherwise. DW1 has admitted that the said procedure is essential to keep cardiac arrest at bay. Having found that opposite parties 2, 3 and 4 are liable for deficiency in service, we are unable to identify the specificity of liability to each one of them. Keeping in view that 1st opposite party also is liable vicariously for the negligence of these servants as their master, we conclude that the liability shall be solely discharged by 1st opposite party. But 1st opposite party hospital has insured it from its own liability as well that of its employees with 7th opposite party insurance company. Accordingly 7th opposite party insurance company shall pay the amount directed to be paid in this order.
The Hon’ble Supreme court had the occasion to address the question of quantum of compensation in medical negligence case of Malay Kumar Ganguly Vs. Sukumar Mukharjee (Dr III (2009) CPJ 17 (SC). Where the court referring to compensation has said,
”It is based on the principle of restitution interregnum. The said principle provides that a person entitled to damages, should as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.”
Keeping in view this rule of the thumb regarding quantification of the amount of compensation, it is practically impossible to calculate the loss of child. We say so because all the currency notes that are printed in the security press perhaps are not enough to wipe out the tears of the parents who have lost their most precious asset. Also we know that all the children on this planet put together will not be a substitute for their child, because still they will be perpetually haunted by the memory of the child till they breath their last. The parents and the kith and kin of the deceased girl face the eternal pain of loss of companion ship of the girl. The parents are also suffer loss of income that would have accrued to them had the child were alive. Also the relatives lose their opportunities to be nursed and looked after by the girl at their rainy days. One cannot make a rough and ready calculation on the basis of the above counts. We will be benefited by the guide lines provided by the Apex Court in its several decisions. In Ghaziabad Development Authority V Balbir Sign 2004 CTJ 605 (SC) (CP) the word compensation has been given the following interpretation:
“ Under civil and consumer law compensation paid for medical negligence is neither punishment nor reward. The principle on which damages for medical negligence are assessed is that they are to be regarded as compensation for the injury sustained or death and not as punishment for the wrong inflicted.”
Then the Hon’ble court has maintained in New India Assurance Company Ltd. Vs. Satender and others (2006) 13 SCC 60 as under:
“The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non earning person. The future of a child is uncertain where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guess work”
Some amount of speculation in calculation cannot be avoided as underlined in the cited case. Therefore we come to the conclusion that 1st opposite party as employer is liable to pay Rs. 6 lakhs along with interest @ 12% from the date of this order till payment. But as indicated above, 7th opposite party as the insured shall make the payment to the complainant. To wind up, we allow the complaint as follows.
7. 7th opposite party shall pay to the complainants Rs. 6,00,000/- (Rupees six lacks only) along with interest @ 12% p.a. from the date of this order till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of September 2011.
Sd/- Paul Gomez, Member.
Sd/- A Rajesh, President.
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : O.P. ticket
A2 : Copy of FIR.
A3 : Copy of post mortem certificate
A4 : Inpatient collection & Appropriation
A5 : Copy of lawyer notice with Regd. AD.
A6 : Copy of reply notice dt. 27-06-2007
A7 : FIR etc. 7 series
X1 : Enquiry report dt. 22-08-2007
Opposite party’s exhibits: Nil
Depositions:
PW1 : C.V. Unnikrishnan,
PW2 : Dr. Rajan
DW2 : P.S. Girija Devi
DW1 : Dr. Suresh G. Nair.
