IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA Dated this the 24th day of September, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) O.P.No. 129/04Between: 1. Gayathri Pradeep, a Hindu- Minor, aged 13 years, rep. by her father P.N. Pradeep, Palazhy, Manganam, Kottayam. 2. Goutham Pradeep, a Hindu- Minor, aged 7 years, his father P.N. Pradeep, Palazhy, Manganam, Kottayam. 3. P.N. Pradeep, Hindu, agerd 36 years, Palazhy, Manganam, Kottayam. (By Adv. M.S. Anil Kumar) ..... Complainants And: 1. M/s. Mar Gregorious Memorial Muthoot- Medical Centre, rep. by the Secretary, Kozhencherry – 689 641. (By Adv. G.M. Idiculla) 2. Dr. Susan Tharian, Anesthetist, -do. -do. 3. Dr. Renu Jolly Mathew, Gynaecologist & Surgeon, -do. –do. (By Adv. P.K. Mathew) 4. Mrs. Chidambaram (Ambari) Somanatha- Pillai, Lekshmi Nivas (Kottarathil), Mundapuzha, Ranni. P.O., Pathanamthitta. ...... Opposite parties. O R D E RSri. N. Premkumar (Member): Complainant filed this complaint for getting a relief from the Forum. 2. Fact of the case in brief is as follows:- The 3rd complainant is the husband of deceased Beena Pradeep and 1st and 2nd complainants are their daughter and son. The 1st opposite party is the Medical Centre at Kozhencherry and 2nd and 3rd opposite parties are Anesthetionist and Gynecologist surgeon respectively. The 4th opposite party is the mother of deceased Beena Pradeep. Dr. Mathew Joseph, whose whereabouts are at present not known was then employed in the 1st opposite party, medical centre as head of the Department of Anesthesia. 3. On 28.11.1998 Beena accompanied by his father went to 1st opposite party’s medical centre for consultation to undergo laproscopic sterilization. She had registered in the O.P and consulted Dr. V.K. Sajeev, a physician employed in the 1st opposite party. Thereafter a variety of pre-operative tests were done. She was certified medically fit for laproscopic sterilization on 31.12.1998. Surgery was fixed on 31.12.1998. 4. On 31.12.1998, morning Beena was admitted at about 8.30 a.m. she was carried to the operation theatre. Her parents were waiting outside the theatre. In the operation theatre Dr. Susan Thariyan, anesthetist induced general anesthesia to Beena. In the operation theatre, anesthetist did commit procedural irregularity in attending her patient, which had created a ‘problem’ in the opinion of surgeon and she deferred the surgery. On account of overdose of anesthetic drug injected, and for drug reaction or because of any other reason, best known exclusively to the persons who were then present in the operation theatre and when the doctors acted upon without considering the physique of Beena, the complication arose. Immediately she had developed (S.V.T) hypertension followed with a cardiac arrest and Beena fell in a critical condition. 5. The patient was kept under observation. When the condition of Beena became worse, though Dr. Michael Joseph came and attended the patient, he failed to give immediate DC cardio version, which was required in the well-equipped operation theatre of the medical centre. Both the anethetists did not rise upto the expectation in the circumstances required. They failed in discharging the duty with the ordinary skill of an anesthetist in similar situation and thereby acted negligently. It amounts to deficiency in service in rendering medical service by the anesthetists. 6. The parents of Beena were not informed of the developments till 4 p.m. Dr. Gopakumar of Medical College, Kottayam, who is the brother-in-law of third complainant came to the Medical Centre and he understood that Beena was lying in a critical condition from 9-30 a.m. Beena breathed her last at Noon on 01.01.1999 in the Medical Centre. The Junior Anaesthetist was inexperienced. A laproscopic surgery does not even require general anaesthesia. It could have been done under regional anaesthesia with special advantages. It was the duty of anaesthetist to administer the dose of anaesthetic drug and maintain the body’s life system while the patient is under general anaesthesia and Dr. Soosan Thariyan did it negligently. The very advantage of laproscopic sterilization is that regional anaesthesia is sufficient to perform the surgery. Dr. Renu Jolly Mathew, Surgeon who is accountable for this anaesthetic accident did not attempt to exploit the advantage of this type of surgery under regional anaesthesia whereby she became negligent and it amounts to deficiency in service rendered by the surgeon. 7. The above-mentioned three doctors were negligent in their duty and therefore their employer i.e. first opposite party is vicariously liable. Beena Pradeep and her heirs are consumers under C.P. Act. Beena Pradeep was a young lady and mother of complainant’s 1 and 2 and was leading a very happy life with her husband, the third complainant, who is the owner of P.N.P Tyres, Kottayam. He has business in Real Estates and Beena Pradeep was a Partner in his business. She was robust built and keeping sound health. Because of her untimely death her children lost the motherly affection and guidance in life at a very tender age. The third complainant lost his faithful companion. The loss suffered cannot be measured in terms of money. Having considered the relevant facts, the complainant’s claim a just and fair compensation of 15,00,000. Hence this complaint. 8. It is seen that originally this case has been filed before the Hon’ble CDRC, Thiruvananthapuram as O.P.No.26/00. When the proceeding has going on complainants withdrawn the case with the permission of CDRC and re-filed before this Forum as O.P.No.129/04. 9. The first opposite party entered appearance and filed version stating that Mrs. Beena Pradeep on 28.12.1998 attended the outpatient department seeking video laproscopic sterilization. The pros and cons of laproscopic sterilization were explained in detail to the patient by the Gynaecologist and she was advised to get required investigation done, like blood routine, urine routine, X-ray chest, ECG, as she requested general anaesthesia. The patient was advised to see the Anaesthetist and Physician to get medical fitness for surgery. 10. The patient was seen preoperatively on 28.12.1998 by the Anaesthetist and Physician with the investigation reports. The patient was found medically fit for surgery by the Physician and Anaesthetist. The patient was asked to come on 31.12.1998 morning on empty stomach for Video Laproscopic Sterilization. Accordingly, on 31.12.1998 the patient came to the outpatient department. The patient was given necessary preoperative preparation and sent to the pre-medication room to see the Anaesthetist. An informed written consent for surgery and anaesthesia was obtained in line with standard hospital protocol. 11. The patient was reviewed with medical records in the pre-medication room and after fresh evaluation. Pre-medication was given at 9-10 a.m. Patient was taken into O.R. No.1. Anaesthesia machine was checked according to the protocol. After fixing the monitors (ECG, Pulse Oximeter, NIBP, Capnograph) anaesthesia was induced with intravenous. Thiopentone and Suxamethonium and patient was intubated. After intubation, patient developed irregularity the rhythm of heart beat ventricular tachycardia/injection Xylocard 100 mg. intravenous bolus was given followed by external Cardiac massage. Heart reverted to normal sinus rhythm within 2 minutes. Patient was ventilated with 100% oxygen. Meantime another Anaesthetist from adjoining theatre joined in the management. As soon as the patient developed ventricular tachycardia, emergency calls were sent to the Physician and the Cardiologist and all arrived immediately. Further care was given with the guidance of Cardiologist, Physician and another Anaesthetist. Meantime patient developed hypotension. Dopamine infusion was started and titrated according to blood pressure and heart rate. Xylocard infusion was also started. Surgery was abandoned and the relatives were informed about the developments. 12. Patient became haemodynamically stable and was breathing spontaneously. Patient was extubated at 10-25 a.m. (Trial Extubation). Patient was awake and responding to commands. As the patient developed breathing difficulty, she was re-intubated at 10-50 a.m. The patient was maintained on ventilation with oxygen and connected to mechanical ventilator with PEEP. Necessary medications were also administered. Patient was haemodynamically stable with adequate urine output. After 3 hours of ventilation, patient was extubated at 01.50 p.m. since all the vital parameters were stable. Respiration was adequate and oxygen saturation was maintained on oxygen mask. A close doctor relative of the patient Dr. Gopakumar from Medical College, Kottayam, arrived in the hospital complex around 01.00 p.m. and was fully briefed about the patient’s medical problem and current status, but he refused to see the patient. Patient’s husband was taken into the operation theatre and the patient was shown to him. 13. As the patient developed restlessness, a team of doctors evaluated and reintubated at 04-45 p.m. and ventilated mechanically. Oxygen saturation, CVP and all vital parameters were continuously monitored. Patient was shifted to Post Operative Intensive Care Room at 11-15 p.m. Ventilation and continuous close monitoring was maintained in the ICU under the medical supervision by a team of consultant doctors. On 01.01.1999 around 02-45 a.m. patient developed high fever and was treated for the same. Patient was continuing on Dopamine support and vital parameters were maintained. On 01.01.1999 around 08.00 am. patient developed hypotension. Inspite of all resuscitative measures general condition of the patient started to deteriorate. At 09.00 a.m., the condition of the patient was discussed with Dr. Mahadevan, Prof. and Head of the Department of Anaesthesiology, Medical College, Trivandrum, and he advised to continue the same management. At 10-30 a.m, Dr. Sarasamma Abraham, Prof. and Head of the Department of Anaesthesiology, Medical College, Kottayam was contacted and she also advised to continue the same treatment and agreed to come around 01-00 p.m. to see the patient. 14. The patient has sudden Cardiac arrest at 11-20 a.m. Immediately Cardio Pulmonary Resuscitative measures were started by the team of doctors according to the protocol. Defibrillation with different jules were given. CPR stopped at 11-45 a.m., since there was no sign of recovery. Hospital authorities requested for a post mortem examination, which was rejected by the relatives in writing. Body was handed over to the relatives. First opposite party denied the allegation of procedural irregularities and the references like ‘over dose of anesthetic drug, injected and/or drug reaction or because of of any other reason’ etc. It shows that the complainants have no definite idea or allegation regarding the illness or cause of death of Beena Pradeep. They admitted the participation of Dr. Michael Joseph for the betterment of the patient, Beena. They also admit that Dr. Gopakumar of Kottayam Medical College arrived at first opposite party’s Medical Centre. But he refused to see Beena Pradeep. Had he seen the patient and the arrangements, he would naturally got himself satisfied and advised Beena’s relatives to refrain from this vexatious complaint. 15. According to first opposite party, second opposite party is an experienced doctor who had served in major hospitals, inside and outside India. She is a Post Graduate in Anaesthesia and her medical qualification is MBBS, DA, MD. She passed her D.A. in 1985 and M.D. in 1987 after the basic MBBS degree. The team of doctors having found that General Anaesthesia is best suited for Beena and as requested by her, the same was done to her. There was informed consent also for the same. There was no negligence at any time by the anaesthetist in giving the same to Beena. There was no negligence on the part of opposite parties 1 to 3. The opposite parties were never negligent at any point of time in treating Beena. There was a positive indifference and purposeful omission on the part of the complainants to deny the postmortem of the deceased even after request for the same by the opposite parties. Innocence of opposite parties would have been proved if postmortem was done. It is the duty of the complainants to prove the negligence of the opposite parties by expert witnesses and unless the same is proved no negligence can be inferred. This complaint has been filed as a trial complaint to see whether anything can be grabbed from opposite parties 1 to 3 for alleged service sought without any consideration. Hence first opposite party canvassed for the dismissal of the complainant with cost. 16. Opposite parties 2 and 3 entered appearance and filed joint version stating that Beena Pradeep, the patient attended the out patient Department of 1st opposite party hospital, on 28.12.1998 seeking Video Laproscopic Sterilization. The Pros and Cons of Video Laproscopic Sterilisation were explained on detail to the patient by the 3rd opposite party and she is advised to get required investigations done, like blood routine, urine routine, X-ray chest, ECG, as she requested General Anesthesia. The patient was advised to see the duty anesthetist and physician to get medical fitness for surgery. The patient was seen pre-operatively on 28.12.1998 by the duty anesthetist and physician with the investigation reports. The patient was found medically fit for surgery by the physician and duty anesthetist. The patient was asked to come on 31.12.1998 morning, on empty stomach for video laproscopic sterilization under General Anaesthesia. 17. On 31.12.1998 the patient came to the out patient Department. The patient was given necessary pre-operative preparation and sent to the pre-medication room to see the Anaesthetist. An informed written consent for surgery and local and general anaesthesia, was obtained in line with standard hospital protocol. The patient was reviewed by the second opposite party, who was the Anaesthetist for O.R. No.1, with the medical records in the pre-medication room and after fresh evaluation, pre-medication was given at 09-10 a.m. Anaesthesia machine was checked according to the protocol. After fixing the monitors (ECG, Pulse Oximeter, NIBP, Capnograph), with utmost care and caution, anaesthesia was induced, with intravenous Thiopentone and Suxamethonium and patient was intubated. After intubation, patient developed irregularity in the rhythm of heart beat ventricular technycardia. Injection Xylocard, 100 mg. intravenous bolus, was given, followed by external cardiac message. Heart reverted to normal sinus rhythm within 2 minutes. Patient was ventilated with 100% oxygen. Meantime, another Anaesthetist, Dr. Michael Joseph from adjoining theatre joined in the management. As soon as the patient developed ventricular tachycardia, emergency calls were sent to the Physician and the Cardiologist and all arrived immediately. Further care was given with the guidance of a team of doctors, consisting of Cardiologist, Physicians, Gynaecologist and two Anaesthetists. Meantime, patient developed hyptension. Dopamine infusion was started and titrated according to blood pressure and heart rate. Xylocard infusion was also started. Surgery was abandoned and the relatives were informed about the developments immediately. 18. Patient became haemodynamically stable and was breathing spontaneously. Patient was extubated at 10-25 a.m. (trial extubation). Patient was awake and responding to commands. As the patient developed breathing difficulty, she was re-intubated at 10-50 a.m. The patient was maintained on ventilation with oxygen and connected to mechanical ventilator with PEEP. Necessary medications were also administered. Patient was hemodynamically stable with adequate urine output. After 3 hours of ventilation, patient was extubated at 1-50 p.m. since all the vital parameters were stable. Respiration was adequate and oxygen saturation was maintained on oxygen mask. 19. A close doctor relative of the patient, Dr. Gopakumar from Medical College, Kottayam arrived in the operation theatre complex around 1-00 p.m. and the patient’s medical problem and current status were discussed in detail with Dr. Gopakumar. The third complainant was taken into the operation theatre and the patient was shown to him and the patient’s medical problem and current status were informed to him. As the patient developed restlessness, she was duly evaluated by the team of doctors and decided to re-intubate the patient. The patient was re-intubated at 4-45 p.m. and ventilated mechanically. Oxygen saturation, CVP and all vital parameters were continuously and closely monitored. Patient was shifted to post operative intensive care room at 11-15 p.m. Ventilation and continuous close monitoring was maintained in the ICU under the medical supervision by a team of consultant doctors. 20. On 01.01.1999 around 2-45 a.m., the patient developed high fever and was treated for the same. Patient was continuing on dopamine support and vital parameters were maintained. On 01.01.1999 around 8 a.m., the patient developed hypotension. Inspite of all resuscitative measures, general condition of the patient started to deteriorate. At 9 a.m., the condition of the patient was discussed with Dr. Mahadevan, Prof. and Head of the Department of Anaesthesiology, Medical College, Thiruvananthapuram. He advised to continue the same management. At 10-30 a.m., Dr. Saramma Abraham, Prof. and Head of the Department of Anaesthesilogy, Medical College, Kottayam was contacted and she also advised to continue the same treatment and agreed to come around 1-00 p.m. to see the patient. The patient had sudden cardiac arrest at 11-20 a.m. Immediately, Cardio pulmonary resuscitative measures were started by the team of doctors according to the protocol. Defibrillation with different jules was given. CPR stopped at 11-45 a.m., since there was no sign of recovery. Hospital authorities requested for a post-mortem examination, which was rejected by the relatives in writing. Body was handed over to the relatives. 21. According to opposite parties 1 and 2, Dr. Michael Joseph was not the Head of the Department, he was the other Anaesthetis who joined the team of doctors in resuscitative measures and he is far junior to others. The second opposite party has more than 20 years experience and has worked in teaching institutions abroad. On 31.12.1998, the patient came to the out patient department. The patient was given necessary pre-operative preparation and sent to the pre-medication room to see the Anaesthetist. An informed written consent for surgery and local and general anesthesia was obtained in line with standard hospital protocol. The patient was reviewed by the second opposite party who was the anesthetist for O.R.No.1, with the medical records in the pre-medication room and after fresh evaluation pre-meditation was given at 9.10. a.m. Patient was taken into O.R.No.1. Anesthesia machine was checked according to the protocol. After fixing the monitors (ECG, Pulse Oximeter, NIBP, Capnograph) anesthesia was induced. There was no procedural irregularity on the part of 1st opposite party. Anesthesia machine was checked according to the protocol. After fixing the monitors (ECG, Pulse Oximeter, NIBP, Capnograph) anesthesia was induced. The 2nd opposite party gave anesthesia according to the guidelines given in standard textbooks of anestheology. Only appropriate dose of anesthetic drugs were given to the patient and no overdose of anesthetic drug was given. Utmost care and caution were taken pre-operatively and during the anesthesia and the dose of drugs were calculated as per the body weight according to the protocol and guidelines given in standard text books. Patient had developed SVT and Cardiac arrest is patently untrue and hence denied. After intubations patient developed irregularity in the rhythm of heart beat-ventricular tachycardia which was promptly detected and treated. There was no cardiac arrest. 22. After intubations patient developed irregularity in the rhythm of heart beat-ventricular tachycardia. Immediately injection xylocard 100 mg. intravenous bolus was given, followed by external cardiac massage. Heart reverted to normal sinus rhythem. Patient was ventilated with 100% Oxygen. DC cardio version was not given because it was not required, as the rhythm reverted to sinus rhythm immediately after giving injection xylocard and cardiac massage. Dr. Michael Joseph was called from adjoining theatre and the joined in the management. According to text book, “Heart Disease” by Eugene Braunwald, (Fourth Edition, Volume 1, Chapter 24) Ventricular Tachycardia Management: states: Ventricular Tachycardia that does not cause hemodynamic decompensation can be treated medically to achieve acute termination by administering intravenous lidocaine (Xylocard). Striking the patients chest some times called “thumb version” can terminate ventricular tachycardia. If the arrhythmia does not respond to medical therapy electrical DC cardio version can be exployed. As per the textbook description of management of ventricular tachycardio version was not indicated in the patient, since the heart reverted to normal sinus rhythm with medical management. Hence there was no failure of discharge of duty. Utmost care and caution were taken immediately by the 2nd opposite party. Hence there was no negligence or deficiency in service on the part of 2nd opposite party. The 3rd opposite party informed the parents of the patient regarding the postponement of surgery when the patient developed ventricular tachycardia. A close doctor relative of the patient, Dr. Gopakumar from Medical College, Kottayam, arrived in the operation theatre complex around 1 p.m. and the patient’s medical problem and current status were discussed in detail with him. Dr. Gopakumar was not willing to see the patient in the operation theatre. The 3rd complainant was taken into the operation theatre and the patient was shown to him and the patient’s medical problem and current status were informed to him. The 2nd opposite party is a qualified senior anesthetist of the institution having 15 years of experience after post graduation in anesthesia from Christian medical College, Vellore and has worked in major reputed institutions in India and abroad. When the patient attended the outpatient Department of the 1st opposite party hospital on 28.12.1998 seeking Video Laproscopic Sterilisation, the pros and cons of video Laproscopic sterilisation, were explained in detail to the patient by the 3rd opposite party and was advised to get required investigation done, like blood routine, urine routine, x-ray chest, ECG, as she requested General Anesthesia. The patient demanded surgery without pain and discomfort even on her first visit to the outpatient Department and requested for general anesthesia. Hence all necessary investigations were done and the patient was seen by the physician and duty anesthetist and found to be fit for surgery under general anesthesia. A written informed consent for surgery under General Anesthesia was obtained from the patient and relatives. According to the Textbook “An Introduction to Reproductive health care” by Dr.Rajan et.al, Chapter on Principles and Practice of Operative Laproscopy (Page 20) General Anesthesia is most preferred in Operative Laproscopy, based on factors (1) Steep Trendelenberg Position, (2) High pressure insufflation of the abdomen with carbondioxide and (3) Intraoperative irrigation with lactated finger’s solution and the need for muscle relaxation, general anesthesia with controlled ventilation through an endotracheal tube is required. The 2nd and 3rd opposite parties had performed their duties according to the accepted practice, for the benefit of the patient, in good faith. Hence there was no negligence or deficiency on service on the part of 2nd and 3rd opposite parties. 23. After intubation, the patient developed irregularity in the rhythm of heart beat Ventricular tachycardia which is one of the accepted adverse effect of anesthetic drugs well described in the Textbook of pharmacology – Martindale and textbook of Anesthesia – Miller. When the patient had ventricular tachycardia immediate and prompt treatment was given by a team of doctors consisting of cardiologist, physicians, Gynaecologist and Anesthetists. Utmost care and caution were taken in the treatment of the patient. The petitioners claimed an exorbitant amount as compensation for an accepted complication well described in textbooks, to harass the opposite parties. The complainants had filed a criminal complaint against the 2nd and 3rd opposite parties herein, in the Aranmula Police Station alleging gross negligence. The matter was investigated into and a report was obtained from a panel consisting of the District Medical Officer, Pathanamthitta. The said panel held that there was no negligence on the part of these opposite parties and hence these opposite parties were exonerated. The allegations are mere repetition of the aforesaid complaint and are hence totally devoid of any basis or substance. 24. When there are different responsible schools of thought about management of a clinical situation, preferring one method cannot be a shortcoming on the part of a doctor. The choice of the most appropriate and effective method in a particular case depends on the general condition of the patient, at the time of ailment and the experience of the attending doctor. 25. According to 2nd and 3rd opposite parties, the patient was not a partner in the business of the complainant. She was only a housewife. The compensation claimed is having no legal basis. The reference to “concerned IMA” is lacking in clarity. The IMA has no liability in the matter and no nexux between the complaint made and the IMA. The claim for compensation is unsustainable in law and unsustainable on facts. This complaint filed without reasonable causes, merely to injure the reputation and standing of the opposite parties. Therefore, opposite parties 2 and 3 canvassed for the dismissal of the complaint with cost. 26. The 4th opposite party has neither appeared nor filed version. Hence declare as exparte. 27. From the above pleading following points are raised for consideration: (1) Whether the complaint is maintainable before the Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs and Costs? 28. Evidence of the complainant consists of the proof affidavit filed by the 3rd complainant along with certain documents. He was examined as PW1 and the documents produced by him have been marked as Ext.P1 to P13. Apart from PW1, the deceased Beena’s father was examined as PW2 and one expert Dr. Meena Vijayaraghavan was examined as PW3. 29. Evidence of opposite parties consists of the proof affidavit filed by the 1st, 2nd and 3rd opposite parties. Opposite parties 2 and 3 were examined as DW1 and DW2 and the documents produced were marked as Ext.B1 to B5. Two experts were examined as DW3 and DW4. After the closure of evidence, both parties were heard. 30. Point No.1:- On a perusal of material on record, it is seen that 1st opposite party charged amount for the treatment of the deceased Beena Pradeep. Therefore, complainant’s in this case is the consumer of opposite parties and dispute herein is a consumer dispute and hence this complaint is maintainable before this Forum. 31. Point Nos. 2 & 3:- In order to prove the complainant’s case, 3rd complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced by him were marked as Ext.P1 to P13. Ext.P1 is the copy of legal notice issued to opposite parties. Ext.P2 is the deceased, Beena’s O.P. ticket at the time of admission at 1st opposite party’s hospital issued by 1st opposite party. Ext.P3 is the reply notice of Ext.P1. Ext.P4 is the attested copy of medical bill dated 31.12.1998 for the treatment of Beena Pradeep. Ext.P5 is the attested copy of medical bill dated 31.12.1998 for the treatment of Beena Pradeep. Ext.P6 is the attested copy of medical bill for the treatment of Beena Pradeep. Ext.P7 is the attested copy of Beena’s identity card. Ext.P8 is the death certificate of Beena Pradeep issued by 1st opposite party. Ext.P9 is the copy of partnership deed. Ext.P10 is the unserved legal notice and acknowledgment card sent to Dr. Michal Joseph. Ext.P11 is the consent for constructing building issued by Vijayapuram Panchayat to Beena Pradeep. Ext.P12 is the case records of Beena Pradeep produced by 1st opposite party. Ext.P13 is the copy of Medical Text, principles and practice of medicine 7th Edition. Ext.P13(a) is the relevant page of Ext.P13. 32. In order to prove the opposite parties contention, opposite parties filed proof affidavit along with certain documents. 2nd and 3rd opposite parties were examined as DW1 and DW2. Documents produced were marked as Ext.B1 to B5. Ext.B1 is the copy of panel opinion in crime No.5/99 of Aranmula Police Station. Ext.B2 is the copy of FIR in Crime No.5/99 of Aranmula Police Station. Ext.B3 is the copy of FIS in Crime No.5/99 of Aranmula Police Station. Ext.B4 is the copy of mahazar in Crime No.5/99 of Aranmula Police Station. Ext.B5 is the final report in Crime No.5/99 of Aranmula Police Station. 33. On the basis of the contention and averment of the parties, we have perused the entire material on record. It is seen that there is no dispute regarding the treatment of deceased Beena Pradeep in 1st opposite party’s hospital for Video Laproscopic Sterilization. The pre-operative test revealed that she was fit for undergoing laproscopic surgery on 31.12.1998. Complainant’s case is that opposite parties wrong and improper administration of anesthesia in operation theatre caused complication and developed Ventricular Tachycardia with hypotension resulted in cardiac arrest and death. According to them, opposite parties 2 and 3 failed in discharging their duties in treatment and in not administering D.C shock, which resulted in the death of Beena Pradeep. 34. According to opposite parties, there is no procedural irregularity in inducing anesthesia and treatment to Beena Pradeep. Utmost care and caution were taken by the 2nd opposite party immediately after developing the complication. All that was possible was done in the course of treatment of deceased Beena Pradeep. Therefore, there was no laches or negligence on the part of opposite parties. 35. According to complainants’, regional anesthesia is sufficient to perform laproscopic surgery to Beena Pradeep. But the contention of opposite parties in their version that the deceased Beena Pradeep made a request for general anesthesia. But by cross-examination of DW1 (Page No.9) she differ her earlier stand which is stated as follows:- “FXrI£nIfpsS version /span> ]dbp¶Xpt]mse patient G.A Bhiys¸«ncpt¶m?” Ans: “ AXv patient Bhiys¸«n«nÃ. General procedure Bbn sN¿p¶XmWv. Consent form /span> General Anesthesia thWsa¶v patient request sNbvXn«pmbncp¶¦n page 36 /span> record sN¿p¶Xn\v XSnÃmbncp¶tÃm? Ans: “ patient Ft¶mSv G.A sImSp¡Wsa¶v ]dªn«nÃ. km[mcW G.A sImSp¡p¶Xv”? 36. Even though 2nd opposite party is a qualified doctor having MBBS, DA, MD and experience she seems to be not familiar or ignorant in certain medical test relating to local anesthesia which is evident in her deposition (in page No.6) as stated below:- “In textbook of Gynaecology by C.S. Devan Edition 9th Page 601 “advantages of laproscopic sterilisation, mini anesthesia, local with sedation”. What is your opinion about it? Why you did not follow it? Ans: “This is a Gynaecology textbook. I did not read it till now”. 37. Though the anesthetist has the discretion to opt local, general or any other mode of anesthesia why the opposite parties raised in their contention that the deceased had made a request for G.A. Is it a standard medical practice? Why the DW1 has made a ‘U’ turn in her deposition? Is it an escape from the liability of wrong decision to opt G.A instead of regional anesthesia and shifting the burden to the deceased Beena Pradeep? All this pointing that laproscopic surgery does not require general anesthesia only regional anesthesia would have been sufficient, if it done the anesthetic complication and death would not happened. 38. It is admitted that after the intubation of anaesthesia, Ventricular Tachycardia developed in Beena Pradeep. Complainants’ case is that V.T. with hypotension developed and second opposite party has not administered D.C. shock, which is the well-accepted standard procedure as per standard text book, Ext.P13. But according to second opposite party, D.C. shock was not inducted because it was a case of V.T. with normal pressure followed by hypotension. Therefore, xylocord was started. But this contention has not raised in their version by opposite parties. 39. On a perusal of Ext.P12, it is learnt that the deceased developed V.T. at 9-40 a.m. No B.P. check recorded at that time. The B.P. check record is at 9-42 a.m. In the case sheet, it is recorded as B.P. not recordable. According to complainants, V.T. and hypotension occurred together at 9-40 a.m. Patient was not given D.C. shock. At 9-42 again B.P. was not recordable and D.C. shock was not given. If it be the situation, there occurred severe negligence and inaction on second opposite party’s part. 40. On a perusal of material on record, it is crystal clear that at 9-40 a.m., B.P. is not recorded. It means that B.P. is not recordable. It is due to hypotension or shock. According to complainants, V.T. and B.P. occurred together. Therefore, it is a case of V.T. with hypotension and D.C. cardio version is the best treatment. Second opposite party has not provided D.C. shock thereby the main organs like brain lungs, heart etc. got damaged resulting in ARDS (Acute Respiratory Distress Syndrome). In Ext.P12, page No.74, death certificate, recorded that cause of death is “cardiac arrest and ARDS’. ARDS is the severe shock (severe hypotension or B.P. not recordable) with no blood circulations to internal organs. It is well documented that severe hypotension (B.P not recordable) is a cause of ARDS, which is the cause of death. Even after sometime patient’s B.P. improved and patient made some movements irreversible permanent damage has occurred within this time and subsequently patient died. 41. It is pertinent to note that DW3, the expert, Dr. V. Mahadevan also support the complainants’ case by stating that after the induction of anaesthesia, patient developed V.T. with hypotension. His deposition in page No.11 is as follows: “V.T. with hypotension was the discase of patient in this case, after starting anaesthesia”. 42. It is an admitted fact that after the induction of anaesthesia, complication developed to the deceased. According to second opposite party, D.C. shock was not provided because it was V.T. with normal B.P. But there is no convincing evidence to show that deceased Beena Pradeep’s B.P. was normal after induction of anaesthesia, which is evident in PW1’s deposition as shown below (page No.14): 43. “BP not recorded F¶v t]Pv \¼5/span> ]dªn«pv.? Ans: Dv. G.A sImSp¯v F{X an\n«v IgnªmWv sirus rythm/span> F¯nbXv? Ans: 9.40 a.m. anesthesia sImSp¯t¸m¯s¶ complication Dmbn. 2 minite-\p tijw 9.42 a.mmWv normal rythm/span> h¶Xv. 9.50 a.m. v ECG FSp¯n«pv. AXn normal BWv. Stip DÅ machine CÃmbncp¶p. Monitor/span> Dmbncp¶p. 9.50 a.m hsc patientâ heart normal stage/span> h¶n«nà F¶p ]dbp¶p. icnbÃ. (A) 9.42 a.m v heart normal Bbn F¶p ImWn¡p¶ ECG chart Dtm? Ans: ECG chart CÃ. 44. PW3, the expert witness Dr. Meena Vijayaraghavan also pointed out the need of inducing D.C shock for V.T. Her deposition in Page No.23 is as follows:- “Cu patientâ Cu situation/span> D.C shockw drug w Ds¦n BZyw adapt sN¿p¶Xv D.C shock BWv”. 45. On a perusal of Ext.A12, medical record by evaluating the line of treatment, DW3, Dr. V. Mahadevan’s comment is also relevant in this case. His deposition in page No.9 is follows: “It is mentioned in page No.20 of case sheet severe pulmonary endema soon after induction of anaesthesia also altered consciousness. Why it happened? Ans: I have no explanation”. It is admitted that the deceased Beena Pradeep was medically fit to undergo laproscopic sterilization. Anaesthesia was induced. After intubation, the patient developed irregularity. V.T. developed at 9-40 a.m. No B.P. check records in the case sheet at that time. The next B.P. check records is at 9-42 a.m. It is written in the case sheet, B.P. not recordable. Therefore, it is understood that V.T. with hypotension developed simultaneously. D.C. shock was not provided. Surgery was deferred. Patient was ventilated with 100% oxygen. Xylocard infusion and dopamine infusion were started. Inspite of all resuscitative measures, the patient died on 01.01.1999. 46. From the above facts and circumstances, it is seen that the wrong line of treatment adopted by the second opposite party caused the death of Beena Pradeep in the pre-operative and medication stage. She ought to have a duty of care in deciding what treatment is to be given and also have a duty to take care in administration of treatment. Lack of special skill and diligence in opting G.A. instead of Regional Anaesthesia and the fail use to comply utmost care and caution in providing D.C. shock, which are the draw back. The second opposite party failed in discharging the said duties. 47. It is not a case of complicated surgery or a case of transplant of limbs and organs in human body. It is a case of wrong administration of anaesthesia. It may due to an over dose of anaesthetic drug or on account of drug reaction and without considering the physique of the deceased or due to any other cause that happened within the four wall of the operation theatre. In these circumstances, the principle laid down in the case of V.Krishna Rao Vrs. Nikhil Super Specialty Hospital (2010 5 SCC 513) would be applicable in this case. In that case, where negligence is evident, the principle of res ipso loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. Therefore, in this case, as per the principle of res ipso loquitur, the burden is on the doctor concerned who treated the patient in defence to substantiate their allegation and there was no negligence. 48. Opposite parties produced Exts.B1 to B5 to substantiate their contention. Ext.B1 is the panel report of experts consisting of DMO. DMo has not examined to prove the authenticity of Ext.B1. Moreover, in the light of expert evidence sighted by both sides, Ext.B1 is not convincing and Ext.B2 to B5 having no effect at all. Hence opposite parties failed in their attempt to disprove complainants’ case. 49. From the above discussion and based on the available evidence and fact and circumstances of the case, we are of the view that the death of Beena Pradeep resulted in anaesthetic complication caused due to lack of care and caution and reasonable skill and knowledge on the part of Anaesthetist in discharging the duty of treatment, which is a clear deficiency of service. Therefore, the second opposite party is liable for the inaction and negligence. Since the first opposite party is the hospital, they are also vicariously liable to compensate the negligence of second opposite party. Hence first and second opposite parties are jointly and severally liable to compensate the complainants. Since the death of Beena Pradeep is due to anaesthetic complication, the evidence on record does not reveal the active involvement of third opposite party, the Gynaecologist. Therefore, third opposite party is not found negligent and therefore not liable to pay any compensation. Even though complainants have the allegation of the treatment of another Anesthetist Dr. Michel Joseph, materials on record does not show the alleged involvement. Therefore he is not liable for any negligence. 50. The deceased Beena Pradeep was a young lady of 26 years. Ext.P9 shows that she have some income from partnership. Ext.P11 shows that she is having ownership of land. Moreover, she was a house wife having 2 children of 8 years and 2 years. Taking into consideration of her valuable care and services to them and the family for a period of 15 years will have to be considered. Therefore, a sum of Rs.3,500/- per month is entitled to get her family. With regard to the quantum of compensation, we follow the guidelines as stated in Johnson Thomas Vrs. Bishop Vayalil Medical Centre (III 2010 CPJ 164 NC). Hence by applying the multiplier of 15, the compensation comes to Rs. 6,30,000/- (3500 x 12 x 15). Each of the complainants is also entitled to get Rs.2,00,000/- (Rupes Two lakhs only) towards the loss of companionship, love and affection etc. 51. In the result, complaint is allowed, thereby the first and second opposite parties are directed to deposit Rs.12,30,000/- (Rupees Twelve lakhs thirty thousand only) with 7% interest per annum from the date of filing of this complaint till this date. Out of the total amount, Rs.6,30,000/- (Rupees Six lakhs thirty thousand only) and its interest is to be shared by the complainants and 4th opposite party based on the Succession Act as applicable to them. The amount so awarded is to be deposited before this Forum within one month from the date of receipt of this order, failing which the whole amount will follow 10% interest per annum from this date, till the realisation of the whole amount. Pronounced in the Open Forum on this the 24th day of September, 2010. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainants: PW1 : P.N. Pradeep. PW2 : G. Somanatha Pillai. PW3 : Meenavijaya Raghavan. Exhibits marked on the side of the complainants: P1 : Advocate notice issued by the complainants to the opposite parties. P2 : Patient Identity Card issued by the dated 28.12.1998 issued by 1st opposite party. P3 : Reply notice dated 24.2.2000 issued by the opposite parties to the complainants advocate. P4 : Attested copy of the pharmacy bill dated 31.12.1998 for Rs.194.93 issued by the opposite party to Beena Pradeep. P5 : Attested copy of the bill dated 31.12.1998 for Rs.125.87 issued by the opposite party to Beena Pradeep. P6 : Attested copy of the pharmacy bill dated 31.12.1998 for Rs.782.44 issued by the opposite party to Beena Pradeep. P7 : Attested copy of Ext.P2 patient identity card. P8 : Attested copy Death Certificate dated 1.1.1999 issued by Dr. Mathew Varghese, Muthoot Medical Centre, Kozhencherry. P9 : Photocopy of the deed of partnership. P10 : Unserved legal notice issued to Dr. Michael Joseph. P11 : Photocopy of the permit dated 4.5.1996 issued by the Secretary, Vijayapuram Grama Panchayat. P12 : Case records of Beena Pradeep produced by the 1st opposite party. P13 : Photocopy of the Text Book of Cardio Vascular Medicine. P13(a): Relevant page of Ext.P13. Witness examined on the side of the opposite parties: DW1 : Dr. Susan Tharian. DW2 : Dr. Laila Divakar. DW3 : Dr. Renu Jolly Mathew. DW4 : Dr. V. Mahadevan. Exhibits marked on the side of the opposite parties: B1 : Photocopy of proceedings of the panel opinion in case No.5/99 of Aranmula Police Station. B2 : Photocopy of FIR in Crime No.5/99 of Aranmula Police Station. B3 : Photocopy of FIS in Crime No.5/99 of Aranmula Police Station. B4 : Photocopy of mahazar in Crime No.5/99 of Aranmula Police Station. B5 : Photocopy of final report in Crime No.5/99 of Aranmula Police Station. (By Order) Senior Superintendent Copy to:- (1) P.N. Pradeep, Palazhy, Manganam, Kottayam. (2) The Secretary, M/s. Mar Gregorious Memorial Muthoot Medical Centre, Kozhencherry. (3) Dr. Susan Tharian, Anesthetist, -do. –do. (4) Dr. Renu Jolly Mathew, Gynaecologist & Surgeon, -do. –do. (5) Mrs. Chidambaram (Ambari), Somanatha Pillai, Lekshmi Nivas (Kottarathil), Mundapuzha, Ranni. P.O., Pathanamthitta. (6) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
