Date of Filling      :  25.08.2014.

                                                                                            Date of Disposal  :  18.08.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                     TMT.  S.  SUJATHA, B.Sc.,                          …    MEMBER - I

Consumer Complaint No.57/2014

(Dated this Thursday the 18^th day of August 2016)

1. M. Jayaprakash,

S/o. Mr. Murugesan,

No.15, Punitha Anthoniar Street,

Charles Nagar,

Chennai - 600 072.

2. Minor Guru Prasaad,

S/o. Mr. M. Jayaprakash,

No.15, Punitha Anthoniar Street,

Charles Nagar,

Chennai - 600 072.

2. Minor Kishorekumar,

S/o. Mr. M. Jayaprakash,

No.15, Punitha Anthoniar Street,

Charles Nagar,

Chennai - 600 072.… Complainants.

/ Versus /

1.   Grace Hospital,

      C.T.H. Road,

      Pattabiram,

      Chennai - 600 072.

2.  Dr. Mrs. Chellarani David,

     Grace Hospital, 

     C.T.H. Road,

     Pattabiram, Chennai - 600 072.

3.  Dr. Ashok,

     Grace Hospital, 

     C.T.H. Road,

     Pattabiram,

     Chennai - 600 072.

4.  Dr. C. B. Anandhi,

     Grace Hospital, 

     C.T.H. Road,

     Pattabiram,

     Chennai - 600 072.

5.  Nila Hosptial,

     No.A-1/1, C.T.H. Road,

     Ambattur,

     Chennai - 600 053.                                            … Opposite parties.

This complaint is coming upon before us finally on 27.07.2016 in the presence of the M/s. V.J. Arul Raj, Counsel for the complainant, M/s. A.R. Poovannan, Counsel for the 1 to 4 opposite parties and the Dr. B. Cheran, Counsel for the 5^th opposite party and having perused the documents and evidences and written arguments of both sides this Forum delivered the following,

                                            ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

          This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 to 5 opposite parties for seeking compensation of Rs.19,50,000/- for mental agony caused to the complainant and deficiency in service on the part of the opposite parties with cost Rs.25,000/-.

2.       The brief averments of the complaint is as follows:-

          The 1^st complainant admitted his wife G. Kalaivani for the second delivery in the 1^st opposite party’s hospital on 20.05.2014 at about 12:15 P.M.   From the time of the first examination till her admission at the 1^st opposite party’s hospital for delivery, she was maintain good health and her child in the womb also did not have any abnormality.  Her Hemoglobin was normal.  The 2^nd opposite party performed the delivery on 20.05.2014 at 4:30 P.M. and the 3^rd complainant was born with weight of 2.900 kgs.  The 3^rd complainant Apgar score in the first minute is 9/10 and 5 minutes 10/10 and 10^th minute 10/10.

3.       Then his wife Kalaivani opted for sterilization to prevent future pregnancy at the request of the 2^nd opposite party.  The 2^nd opposite party suggested elective laproscopy sterilization and fixed it on 22.05.2014.  The first opposite party obtained routine consent letter on 22.05.2014.  No proper informed consent was obtained from the 1^st complainant or his wife explaining the benefits and complications of said surgery.  That on 22.05.2014, the 4^th opposite party assessed the 1^st complainant’s wife and gave fitness certificate to undergo laparoscopy sterilization surgery.  The 4^th opposite party assessed the 1^st complainant’s wife AS Grade I and advised Regional Anesthesia/ General Anesthesia.  The 3^rd opposite party is the Laparoscopy Surgeon.

4.       Thereafter, his wife was transferred to operation theatre at 05:15 P.M. on 22.05.2014.  The 1^st complainant was waiting outside the operation theatre along with his mother.  Being a simple procedure the 1^st complainant expected that the operation will be completed in shortest possible time.  Around 06:00 P.M. the opposite parties came and informed the 1^st complainant that her wife developed fits and she became unconscious.  The opposite parties suggested for immediate ventilator facility.  Hence as directed by the 2^nd opposite party, the 1^st complainant took his wife along with the 4^th opposite party to Mahalakshmi Hospital for Ventilator facility.  At Mahalakshmi Hospital, they informed that they are not having ventilator facilities.  Hence after a great delay and difficulty the 1^st complainant admitted his wife in the 5^th opposite party’s hospital at about 22:00 hours on 22.05.2014.  There has been total negligence, casual, lethargic attitude of the 1 to 4 opposite parties to save the patient within the ‘Golden hour’ as initially Mahalakshmi Hospital was referred and then to the 5^th opposite party’s hospital resulting in delay of about atleast one hour.

5.       The 1^st complainant’s wife died in the 5^th opposite party’s hospital on 22.05.2014 at 12:45 P.M..  The cause of death as per death certificate issued by the 5^th opposite party is the death due to GTCS / leading to Cardio Pulmonary arrest.   The 1^st complainant immediately, after the death of his wife lodged a complaint before the T-9, Pattabiram Police Station and a complaint was registered in Cr. No.362/2014 under section 174 of Cr. P.C.  Thereafter, the post mortem was conducted on 24.05.2014.  As per the post mortem report signed on 19.07.2014 Viscera sent for chemical analysis and the opinion as to the cause of death is reserved, pending report of chemical analysis.

6.       The 1^st complainant’s wife died due to utter negligence of the treatment of the 1 to 4 opposite parties.  The 1^st opposite party obtained consent on Dangerously III list.  It is against the code of ethics that would amount to deficiency in service.  The consent letter was obtained on 22.05.2014 for undergoing anesthesia and surgery.  The nature of surgery and name of the surgery was not mentioned in the consent letter dated:22.05.2014.  Hence it is not construed as properly informed consent.  Obtaining such consent is illegal as per the ruling of the Hon’ble Supreme Court in Samira Kohali case. 

7.       In surgical case sheet dated:22.05.2014 it is written that pre-medication was not given.  But Enema was given on the said day.  As per the TPR chart recording was done upto 08:00 A.M. only.  The drug chart also reveals drugs were given upto 08:00 A.M. only.  There was no nursing care or Doctors care can be found in the case sheet, after 08:00 AM. The next entry is 05:15 P.M. only.  As per the history recorded by the 5^th  opposite party the patient developed sudden cardiac arrest / post (stricked) Begin (stricked) anesthesia has (Stricked) developed GTCS.  It clearly established that only after anesthesia procedure, complications developed.   The 1^st complainant states that there was lot of variations and contradictions in the discharge summary issued by the 2^nd opposite party and nothing recorded in the case sheet.

8.       The 1^st opposite party did not have the ventilator facility.  The opposite parties ought not to have undertaken any surgery without having life saving measurement.  The 1 to 4 opposite parties failed to obtain the opinion of the cardiologist for immediate revival of the heart.  The post mortem certificate reveals that Sub Arachnoid Hemorrhage present all over the brain surface.  It established that heart was not revived within 3 minutes.  The doctrine of “Res ipsa loquittor” applies to this case.   No where in the case sheet, the 2^nd opposite party explained how the 1^st complainant’s wife developed fits.  Everything happened inside the operation theatre.  No body was allowed to see the patient inside the operation theatre.  It is for the opposite parties to explain how it has happened.       The death has happened due to negligent treatment of the 2 to 4^th opposite parties.  The 1^st opposite party is lack of infrastructure facility.  Hence in law, they are entitled to claim Rs.19,50,000/- as compensation for mental agony and for deficiency in service.  The delay in issuing the reports are willful and wanton that too after request under RTI Act.  Hence this complaint.

9.       The contention of written version of the 2^nd  opposite party and adopted the 1, 3 & 4^th opposite parties is  briefly as follows:-

The 1 to 4 opposite parties denies the various complaints made by the complainants except those that are specifically admitted herein.  The 2^nd opposite party submits that the patient was under her care not only for this delivery and sterilization operation but also for the 1^st delivery and subsequent immunization and other treatment for her and her family.  The 2^nd opposite party is like her family doctor for the past 3 years.  It is highly false to say that the 2^nd opposite party suggested elective laparoscopy sterilization and fixed it on 22.05.2014.  Infact, the patient, the 1^st complainant and their family members opted sterilization and laparoscopic sterilization method after they were explained about all the mentods for sterilization by the 2^nd opposite party and singed the “Family Planning Consent Form” supplied by the Tamil Nadu Government.

10.     The patient Mrs. J. Kalaivani was in the hospital room for more than 49 hours before the surgery.  At that time, she and the 1^st complainant including the 1^st complainant’s mother-in-law and mother were given explanation about the available methods of sterilization and the advantages and disadvantages of each method several times collectively and also individually.  The 2^nd opposite party submits that they were clarified with their queries during the 2^nd opposite party’s routine rounds on 20.05.2014 at 10:00 P.M., 21.05.2014 and 22.05.2014 apart from their visits to the 2^nd opposite party’s consultation time.  Thus, the allegation that they were not aware of the complications and the consent was not obtained after explaining the consequences and it was obtained as a routine procedure are all false.

11.     The 2^nd opposite party submits that the patient was taken to the operation theatre at 05:15 P.M. on 22.05.2014.  During the preparation before Anesthesia or Surgery the patient developed convulsions and became restless.  At that point of time, at  05:45 P.M. on 22.05.2014her BP was 230/ 130 mm /hg.  Immediate information was given by the 2^nd opposite party to the 1^st complainant and his mother who were waiting outside the operation theatre.  As a family doctor of the patient, the 2^nd opposite party had given information about the patient’s condition every half an hour till the patient was referred to a higher centre for ICU and ventilator support at 08:45 P.M. on 22.05.2014.  Further the 1 & 2^nd opposite parties had taken the support of a consultant physician in addition to the help of 3 & 4 opposite parties.  Further, it is submitted that at 07:15 P.M. on 22.05.2014, the patient’s BP dropped and she went into cardiac arrest.  She was revived with cardiac massage and with treatment her BP picked up to 80/ 60mm/ hg.  While shifting the patient with ventilator ambulance, the patient’s condition was as follows:

Oxygen Saturation                99%

Pulse rate                             77/mt

BP                                        80/60 mm /hg

Patient responded to call and opened her eyes.

The patient was accompanied by the Anesthetist, Duty doctor and theatre assistant along with the 1^st complainant and others.

12.     The 1 to 4 opposite parties received information that the patient died in the 5^th opposite party’s hospital on 23.05.2014 at 00:45 hours and not on 22.05.2014 at 12:45 P.M. as mentioned in paragraph no.8 of the complaint.  The 2^nd opposite party denies the allegations that the death caused due to utter medical negligence of the 1 to 4 opposite parties.  It is submitted that in the operation theatre before starting the procedure the patient’s psychological fear had turned in high BP and convulsions.  This situation is very rare in the medical history.  The 2^nd opposite party states that the patient signed the General Consent Form on her admission on 20.05.2014 at 12:15 P.M..  This consent form is meant for normal situations as well as to the emergency situations also because sometimes the normal situation may turn into an emergency situation.  In the admission record the diagnosis is mentioned as ‘Labour Pain”.  The patient and the 1^st complainant did not raise any objection while signing the General Consent Form, which in is Tamil.  The complainant now turned hostile and claiming against his own consent.

13.     The patient and the 1^st complainant signed the Consent Letter dated: 22.05.2014 for giving Anesthetist and for surgery in the 1^st opposite party’s hospital.   The consent letter has 4 pages.  The 4^th page is Surgical Case Sheet in which, the surgery details, surgical team etc in detail is mentioned.  The 2^nd opposite party submits that the universal procedure for any elective surgery is that the patient  abstains from oral food and fluid intake “Nil Oral” for 6 – 8 hours to prevent pulmonary aspiration of stomach contents during general anesthesia.  That is why, there is no entry recorded in the Drug Chart between 08:00 A.M. to 05:15 P.M. on 22.05.2014 that is “Surgery Day”.  The allegation that “There was no nursing care or doctors care to be found in the case sheet after 08:00 A.M. the next entry is 05:15 P.M. only” are absolutely wrong.  The 2^nd opposite party submits that Premedication is a check list like for surgery that TT injection, Antibiotic injection etc are given or not.  For the patient Mrs. J. Kalaivani,  TT injections were given periodically during the Antenatal check up and since the mother feeds, the baby till they enter the theatre, no premedication will be given.  For the patient Mrs. J. Kalaivani antibiotic injection was given just prior to surgery.

14.     Since the patient was referred to a higher centre the 1^st complainant received only the referral letter to higher centre.  Because it was an emergency, the birth certificate & Discharge summary were not delivered / collected by the complainant himself.  The 1^st complainant never approached the 1 or 2^nd opposite parties for the records.  The 2^nd opposite party submits that on request of the 1^st complainant through his letter the same was sent to him by Registered post by the 2^nd opposite party.  Thus, there is no willful reason for sending the birth certificate, discharge summary subsequently by post.  The 2^nd opposite party submits that there is no negligence on the part of the opposite parties and the complainant without any merits filed this false complaint.  Hence this complaint is liable to be dismissed with exemplary cost.

15.       The contention of written version of the 5^th opposite party is  briefly as follows:-

The 5^th opposite party does not admit any of the allegations in the complaint except those that are specifically admitted herein.  Most of the allegations in the complaint are false, concocted, frivolous, vexatious and in imaginary and unsustainable4 in law and on facts.  It is submitted that the documents filed along with the complaint do not evidence any sort of negligence on the part of the 5^th opposite party.  The 5^th opposite party namely Nila hospital was found by Dr. Raja Subramanian M.B.B.S, DA.  It was started with the main purpose of providing quality medical care at an affordable cost.   The hospital is equipped with excellent diagnostics facilities like Ultrasound Scan, ECG, Spirometry and a 500 mA.  X-ray machine capable of handling advanced radiological procedures.  It also has a 24 hour lab.  The OT Complex has Two operation Theatres,  CSSD, Drug Room and Post – OP Unit, Labour suits and Neonatal facilities.  The ICU has centralized oxygen Multi- Para Monitors, Defibrillators, External Pacers, Ventilators and other hi-tech facilities.  It has 24 hours in-house Pharmacy.   24 hours MBBS Duty Doctors and Intensive care Anesthetist are offering excellent cover to all patients.

16.     With reference to 20^th paragraph, it is alleged that the 1 to 5 opposite parties are in negligent and unwarranted manner done the procedure.  The 5^th opposite party was not involved in doing any procedure and it is only 1 to 4 opposite parties who had performed procedure.  Hence the 5^th opposite party had been wrongly included.  There is no cause of action. The 5^th opposite party has not committed any omission or commission.  The alleged loss and damage is not due to any negligence, deficiency or action of the 5^th opposite party.  Hence this complaint is liable to be dismissed.

17.     In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A12 were marked.   While so, on the side of the 1 to 4 opposite parties, the proof affidavit is filed  and Ex.B1 & Ex.B2 were marked and on the side of the 5^th opposite party, the proof affidavit is filed and no documents is marked on his side for his evidence.

18.    At this juncture, the point for consideration before this Forum is:-

1. Whether there is any medical negligence on the part of the 1 to 5 opposite parties?

2. Whether the complainant is entitled for any compensation as prayed  

for in the complaint? If it is so, how much amount of compensation to be awarded?

19.     Written arguments filed on both sides and oral arguments adduced on the side of the complainant and 5^th opposite party.  In spite of sufficient time given for adducing oral arguments on the side of the 1 to 4 opposite parties, they have not come forward to adduce oral arguments and hence it is closed.

20.     Point no.1:-

On careful perusal of the averments of the complaint as well as the proof affidavit of the 1^st complainant, it is learnt that the 1^st complainant’s wife was admitted in the 1^st opposite party’s hospital for Elective Laproscopy Sterilization on 22.05.2014 and she was transferred to operation theatre at 05:15 P.M. on the same day and for which,  Ex.A1, consent letter for giving Anesthesia attached with the case sheet is marked and around 6:00 P.M. the 1 to 4 opposite parties informed the 1^st complainant that his wife developed fits and she became unconscious and suggested for immediate ventilator facility.   It is further learnt that as directed by the 2^nd opposite party the 1^st complainant took his wife to Mahalakshmi Hospital for Ventilator facility along with the 4^th opposite party and there it was informed that they are not having such facilities and after a great delay and difficulty, the 1^st complainant admitted his wife in the 5^th opposite party’s hospital.  There, on 22.05.2014 at 12:45 P.M., the 1^st complainant’s wife died due to GTCS/ leading to Cardio Pulmonary arrest for which the case sheet along with the consent letter given by the 1^st complainant and his deceased wife is marked as Ex.A1.  The Ex.A2 is discharge summary and  Ex.A3 is the History, Progress Notes, Hourly Nurse Record, Drug Record and Hematology Report of the 1^st complainant’s wife issued by the 5^th opposite party.   Ex.A4 is the Death Intimation of the 1^st complainant’s wife by the 5^th opposite party.  It is further narrated by the 1^st complainant that immediately, after the death of his wife, the complaint lodged the complaint before T-9 Pattabiram Police Station and in this connection, F.I.R. was registered in Crime No.362 / 2014 u/s 174 Cr. P.C. which is marked as Ex.A5.  Thereafter, the post mortem was conducted on 24.05.2014 and the Viscera sent for   chemical analysis which reveals the opinion that the cause of death is intracranial bleeding.  The Post Mortem Certificate is marked as Ex.A6 and the final opinion given by the Department of Forensic Medicine is marked as Ex.A12.     Ex.A7 & Ex.8 are the letters sent by the 1^st complainant to the 1 to 5 opposite parties.   Ex.A9 & Ex.A10 are the letters sent by the 1^st complainant to the Inspector of Police, the Public Information Officer and the Government Kilpauk Medical College and Hospital to furnish the certain documents under R.T.I. Act.   The reply given by the 5^th opposite party is marked as Ex A11.

21.     On the other hand, on going through the evidences of the 1 to 4 opposite parties, it is stated that the 1^st complainant’s wife, and the 1^st complainant and other family members were all explained about all the methods for sterilization and they signed i.e. the Family Planning Consent Form supplied by the Tamil Nadu Government which is marked as Ex.B1 and it clearly explains about the difficulties and advantages of the said method several times collectively and also individually.   It is further narrated that during the preparation before Anesthesia or Surgery, the patient developed convulsions and became restless and at that point of time, that is by 05:45 P.M. on 22.05.2015 her BP was 230/ 130 mm /hg and the family members of the patient was informed the patient’s condition every half an hour till the patient was referred to higher centre for ICU and ventilator support  at 08:45 P.M. on 22.05.2014.   It is further learnt that at 07:15 P.M. on 22.05.2014, the patient’s BP dropped and she went into cardiac arrest and she was revived with cardiac massage and with treatment she picked up to 80 /60 mm/ hg and while shifting with the patient with ventilator ambulance, the patient’s condition was “Patient responded to call and opened her eyes” and she was accompanied by the Anesthetist, Duty Doctor, theatre assistant along with the 1^st complainant and others.

22.     On further perusal of the proof affidavit of the 1 to 4 opposite parties, it is learnt that before starting the procedure in the operation theatre, the patient’s psychological fear had turned into high BP and convulsions and it is very rare in medical history and they are not aware of the procedures followed at the 5^th opposite party’s hospital.  The 1^st complainant’s Admission Record, Consent Letter for the surgery, Investigations Chart, Nurse’s Record, Drug Chart etc are marked as Ex.B2.  It is further stated that it not correct to say that there are contradictions in the version in the Case Sheet and Discharge Summary and it is only a difference between language adopted in the Case Sheet and Discharge Summary and therefore, there is no negligence on the part of the 1 to 4  opposite parties.   Since, “the profession negligence or medical negligence as want of reasonable decree of care and skill or willful negligence on the part of medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established so as to lead his bodily injury or loss of life” and also the complainant has not submitted any expert opinion to support his allegations.

23.     While so, on the side of the 5^th opposite party, it is seen from his evidence that he was wrongly included in this compliant.  The only allegations in the complaint is that he failed to give the medical records on a specious plea of RDO enquiry and however on the receipt of the 2^nd letter from the complainant the 5^th opposite party obtained legal opinion and had immediately issued the relevant papers and infact there is no specific allegations in regard to their duties as Doctors.

24.     At this juncture, on careful perusal of the rival submissions put forth on either side, it is an admitted fact that the 1^st complainant’s wife admitted for Elective Laproscopy Sterilization on 22.05.2014 in the 1^st opposite party’s hospital and thereafter, she was transferred to operation theatre at 05:15 P.M.  on the same day and  such facts has been clearly seen from the Ex.A1, Case Sheet.  Further, it is seen from Ex.A1, Case Sheet that she suddenly had convulsions  and became restless and at that time, her BP raised up to 230 /130mm / hg. It is further learnt that around 07:45 P.M. on 22.05.2014 suddenly the patient’s BP dropped and she went into cardiac arrest and she revive with cardiac massage, given Atropine and Adrenclinic injections and given oxygen and drip her BP picked up from 70 / 40mm /hg  to 80/ 60 mm /hg.  Thereafter, it was decided to shift the patient to a higher centre with ICU facility with ventilator and immediately, a fast ambulance was called for with Portasa ventilator and the patient was shifted at 8:45 P.M.  It is seen from Ex.A1, Case Sheet while shifting “the patient responded to call and opened her eyes”.  These above facts are all admitted one.  From the above facts, which are seen from Ex.A1, Case Sheet and the averments made in the proof affidavit of the complainant as well as of the 1 to 4 opposite parties, it is crystal clear that the patient was shifted to the higher centre at 08:45 P.M only.    Further, it is an admitted one that the 1^st opposite party’s hospital has no ventilator facility.

25.     At the outset, on careful perusal of the Ex.A3, it is clearly seen that the wife of the 1^st complainant was admitted in the 5^th opposite party’s Hospital at 10:00 P.M. on 22.05.2014 only.  That is, after the delay of 04 hours 45 minutes from the time of transferring the patient to the operation theatre in the 1^st opposite party’s hospital.  It is further seen from the Progress Note issued by the 5^th opposite party’s hospital, it is mentioned as, ‘developed GTCS Cardio Pulmonary Arrest’ at the time of admitting in the 5^th opposite party’s hospital.  From the time of admission in the 5^th opposite party’s hospital itself, the patient was unconscious till her death at 00:45 hours (12:45 A.M.) on 23.05.2014.  Furthermore, it is mentioned in the history given by the 5^th opposite party’s hospital that patient developed “Sudden Cardiac Arrest Anesthesia had developed GTCS”.  If it is so, there is no mentioning about the development of GTCS either in the Ex.A1, Case Sheet or in the Ex.A2, Discharge Summary given by the 1^st opposite party.   Furthermore,  from the Progress Note issued by the 5^th opposite party, it is seen that inspite of giving ventilator support and continuous CPR, Cardiac function cannot be rescued and declared dead at 12:45 A.M. on 23.05.2014.

26.     From the above perusal and observations made, it is clearly seen in the Death Intimation given by the 5^th opposite party that the patient died due to GTCS leading to Cardio Pulmonary Arrest.  At this point of time, from Ex.A12, Forensic Lab Report, the final opinion given is that the death would appear to have died of “INTRA CRANIAL HEMORRHAGE”.

27.     At the outset it is clearly observed from the written version of the 1 to 4 opposite parties as well as proof affidavit by them, the deceased wife of the 1^st complainant was shifted to the operation theatre at 05:15 P.M. and there after she was developed the Cardio Pulmonary arrest at 07:15 P.M. on 22.05.2014 and then only she was transferred to the higher centre at 08:45 P.M.   If it is so, the period between 05:15 P.M. to 07:15 P.M. is the golden hours of treatment as narrated by the complainant, but the same were not at all explained in the Case Sheet which is marked on the side of the complainant but the 1 to 4 opposite parties has failed to produce the same on their side.  Therefore, this Forum could not able to assess the nature of treatment given by the 1 to 4 opposite parties in the above said vital time between 05:15 P.M. to 07:15 P.M.  Moreover, the 2^nd opposite party does not written anything about that the patient had received anesthetics.  In this connection, no anesthesia record was filed before this Forum on the side of the 1 to 4 opposite parties which created great doubt regarding the part of treatment of the anesthetics.  At this point of time, this Forum has already stated above that as per the Ex.A3, death was due to GTCS that lead to Cardio Pulmonary Arrest.  It can be easily presumed that the anesthesia complication is the only reason for the patient developed major cardio arrest.

28.     At this juncture, on bare reading of the text, it is learnt that there may be a unexpected allergic reaction to the anesthetic drugs that are given.  The anesthetist test may make misjudgement or error, perhaps by giving too much of drug or giving the wrong drug.  However modern anesthetic techniques, training, monitor and equipment mean that death caused by anesthetic error which are very rare.   Very rarely brain damage can happen because a complication or error has resulted in inadequate oxygen delivery to the brain for sometime during the operation.  Drugs used by anesthetists have effects on the brain (causing unconsciousness) but also on other body organs. They affect the heart, blood pressure, breathing and lung function and other organs such as the kidney.  It is usually  these other effects that increase the risk of death or brain damage during the anesthetic.

29.     From the above factors, it is learnt that the risk of death may cause during anesthetics by affecting the heart, blood pressure, breathing and lung function etc. by the drugs used by anesthetics.  Though it is rare, the anesthetists should be trained to use anesthetic drugs with care, taking into account of the all relevant factors and highly access the condition of the patient before the operation, to make sure that the drugs and techniques used are as safe as possible for the patient concerned.  In such a way, in the case on hand, the concerned anesthetics who attended the wife of the 1^st complainant has taken precautious measures and followed the procedure and techniques as prescribed and trained to him during the state of such course is in question,  since there is no medical reports or records found available before this Forum to show about the above said factors.

30.     At the outset, this Forum wants to enlighten that the Anesthesiologist should have insisted upon the hospital authorities to buy an automatic ventilator or to fix on rent basis as it is an essential equipment.  Furthermore, it is also a settled principle that a specialist is required to know the latest techniques for management of the patient and if he is ignorant about it, then he could be considered to be negligent in following his profession.  At this point of time, this Forum wants to highlight that if one of the tests of medical negligence is that something which required under medical practice to be done was not done or what was done was contra indicated.

31.     At this juncture, on careful perusal of the Ex.A1, case sheet the patient was transferred to operation theatre at 05:45 P.M. for Elective Laparoscopy Sterilization and subsequently, it was informed by the opposite parties that the patient was developed fits and she became unconscious and as per Ex.A1, case sheet itself, i.e. around 07:45 P.M., the BP of the patient was dropped and she went into cardio arrest and thereby, it was decided by the 2 to 4 opposite parties to shift the patient to the higher centre with ICU and ventilator facilities.   So, it is crystal clear that 1^st opposite party’s hospital is not at all having the above said facilities.  Though there is no mentioning about the part of Anesthesiologist in the case sheet, it can be presumed that immediately, the patient was shifted to the operation theatre and in between 05:15 P.M. to 07:45 P.M. it was certainly something acted by the Anesthesiologist in preparing for the operation.   Furthermore, as per the text though it is stated that the risk of death is very rare during General Anesthesia, the Anesthesiologist, who being the expert in that field ought to have known the techniques and required equipment if any risk factors will arise.    If it is so, the Anesthesiologist should insisted upon the hospital authorities to buy or to fix on rent an automatic ventilator as it is essential equipment and he should have advised for recruitment about Technical staffs / Nurses to part, such equipment in order to avoid the risk factors and to save a life of the patient.  It is a well known fact that the 1^st opposite’s hospital is not at all having the ventilator facility.  In such circumstances, the Anesthesiologist ought not to have selected the 1^st opposite party hospital for surgery since the said hospital is not at all having necessary equipments and facilities.  Not only that, the 2 & 3 opposite parties are also ought not to have selected the 1^st opposite party’s hospital for surgery.  On having much confident, to select the said hospital, they ought to have arranged the above such equipments before the surgery and taken the other precautionary measures.  If such precautionary measures would have been taken by the 2 to 4 opposite parties, certainly the death of the patient ought not to have happened and the life of the young mother would have been saved.  But there is no proof of having done so, on the part of the 1 to 4 opposite parties.  More so, as per Ex.A1, case sheet, it is learnt that the patient had developed fits and she went into cardio arrest.  There is no evidence to substantiate that, whether Neurologist and the cardiologist had been present at that time or made to any arrangements for the presence of the said specialist.

32.     Furthermore, it is pertaining to note that because of non availability of the ventilator facilities and other equipments, the patient was shifted to the higher centre by the 2 to 4 opposite parties, that too, after a long delay of 04 hours and 45 minutes i.e. the patient was shifted at 08:45 P.M. and reached the higher centre at 10:00 P.M. which causes inordinate delay.  At this crucial point of time, this Forum wish to state that since because the 1^st opposite party’s hospital not having the necessary facilities, the delay has occurred in managing the further treatment of the patient would not have fulfilled which clearly reveals the fact that it is fully due to the medical negligence and incorrect assessment of the 2 to 4 opposite parties.  In medical cases, even a minute of delay can endanger to human life.   But in the case on hand, the delay of 04 hours and 45 minutes is an inordinate one and it cannot be easily thrown out.  In such circumstances, this Forum wish to state that the decisions relied upon in I (2008) CPJ 56 (SC) Samira Kohli Vs Prabha Manchanda (DR.) & Another and IV (2009) CPJ 9 (NL) Joginder Singh Vs Dr. Rajeev Kumar Majumdar & others are squarely applicable to the facts of the case on hand.

33.       In the light of above facts and circumstances and observations made, it is crystal clear that there is lack of vital and necessary equipments and not taken necessary precautionary measures before commencing the surgery to the complainant’s wife.  It is pertinent to note that complications arose and the patient went into unconscious stage within four walls of the operation theatre where nobody was allowed to see the patient, then the Anesthetist, Dr. Anandhi, the duty Doctor and theatre assistant have only to explain the events what has happened inside the operation theatre.   In this case, the 2 to 4 opposite parties have not been able to explain the events and the ultimate outcome i.e. death of the patient.    Moreover, in the fake end of the day, the 1 to 4 opposite parties have decided to shift the patient to the higher centre which also clearly reveals the negligence of the 1 to 4 opposite parties.  Hence it is clear that the maxim, “Res ipsa loquittor” has applied to the complainant’s wife death.  Therefore, this Forum without any hesitation to decide that there is medical negligence on the part of the 1 to 4 opposite parties which is also clearly established by the complainant.  In respect of the 5^th opposite party, there is no specific averments, despite of medical negligence, have not been made in the complaint as well as the proof affidavit of the complaint.  Not only that, on careful perusal of the documents and evidences, there is no proof or evidence to show that there is medical negligence on the part of the 5^th opposite party.  Thus, point no.1 is answered accordingly.

34.     Point no.2:-

As per the decision taken in point no.1, the act of medical negligence by the 1 to 4 opposite parties is clearly established before this Forum.    So, it needs to see that, to what reliefs the complainants are entitled to?   At the outset, no proof has been adduced before this Forum to show that the deceased wife of the complainant was employed or was running a business but the deceased wife was a homemaker and the responsibility of the homemaker is enormous one.  Though it is difficult to assess exact income of the homemaker, who is managing the household duties but the age of the deceased wife is 29 years and on considering the life span of 60 years, the minimum loss of income goes to Rs.5,00,000/- which is highly reasonable.   Further, the 1^st complainant, being the husband had lost his lovable wife, for the loss of love and affection, he is entitled for a sum of Rs.1,00,000/- towards consortium.   The 2 & 3^rd complainant’s are the children of the deceased wife, who lost their motherly care in this childhood days, they should require love and affection atleast upto the age they attain adulthood and even after that, to some extent since a mother is irreplaceable.   Therefore, this Forum deems fit to award Rs.4,00,000/- for the 2 & 3^rd complainants (Rs.2,00,000/- each).  Furthermore, this Forum decides to award Rs.50,000/- towards compensation for miscellaneous items such as medical expenses, conveyance, funeral / last rites expenses etc. in total of Rs.12,50,000/- with cost of Rs.10,000/-.  The total amount awarded is Rs.12,60,000/-

34.     In the result, this complaint is allowed in part.  Accordingly, the 1 to 4 opposite parties are jointly and severally directed to pay a sum of Rs.5,00,000/- for loss of income due to death of the deceased wife of 1^st complainant, being a home maker, a sum of Rs.1,00,000/- towards consortium and for love and affection to the 1^st complainant, a sum of Rs.4,00,000/- for motherly care, love and affection to the 2 & 3^rd complainants, a sum of Rs.2,00,000/- towards mental agony and physical pain and a sum of Rs.50,000/-  towards miscellaneous items such as medical expenses, conveyance, funeral / last rites expenses etc. totally of Rs.12,50,000/- (Rupees twelve lakhs and fifty thousand only)  for committing medical negligence which certainly leads to deficiency in service on the part of the 1 to 4 opposite parties with cost of Rs.10,000/-.  Total amount awarded is Rs.12,60,000/- (Rupees twelve lakhs and sixty thousand only).  In respect of the 5^th opposite party, this complaint is dismissed.

 The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 18^th   August  2016.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 2^nd  opposite party, who adopts the 1, 3 & 4^th opposite parties:-

List of documents filed by the 5^th  opposite party:-

Nil.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT