Tamil Nadu

StateCommission

A/105/2016

Dr. S.Subramaniam - Complainant(s)

Versus

P. Viswanathan & anr - Opp.Party(s)

J. Dharmarajan

04 Feb 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

              Tmt. Dr. S.M.LATHA MAHESWARI   ... MEMBER

F.A. No.105 of 2016

(Against the Order, dated 02.03.2016, passed in CC No.166/03 on the file of the DCDRF, Chennai (South))

                                                                                            

                                                                           Orders pronounced on: 04.02.2022

            

Dr.S.Subramaniam,

2-C, 23, Desikachari Road,

Chennai 600 004.                                                                                                      … Appellant / 1^st O.P.

vs.

 

1.P.Viswanathan,

Flat No.1A, Coral Sudha,

16 Eldams Road,

Chennai 600 018.                                                                                                       … R1/ Complainant

 

2.Dr.Umesh Mehta,

The Director,

H.M. Hospital,

No.130, St.Marys Road,

Chennai 600 028.                                                                                                               … R2/2nd O.P.

   Counsel for Appellant           :Mr.J.Dharmarajan

   Counsel for 1^stRespondent     :Mr.V.Balaji

    Respondent No.2, called absent.

……………..

          This First Appeal came up for final hearing on 03.01.2022 and, after hearing the arguments of both sides and perusing the materials on record and having stood over consideration till this day, this Commission passes the following:-

O R D E R

R.Subbiah, J - President.

             Challenging the Order, dated 02.03.2016, passed by the District Consumer Disputes Redressal Forum, Chennai (South), in partly allowing C.C. No.166 of 2003 in favour of the 1^st respondent herein/complainant, by directing the appellant herein/1st Opposite Party and R2 herein/2nd Opposite Party to jointly and severally pay a sum of Rupees five lakh as compensation with interest @ 9% p.a. from the date of complaint till the date of payment and also to pay a sum of Rs.5,000/- towards litigation charges, within a period of six weeks from the date of the order, the 1^st Opposite Party has preferred the present Appeal.

             2. The appellant herein/1st Opposite Party is a Doctor by profession-specialized in Urology, the first respondent herein is the complainant and the 2^nd respondent herein is the Director of H.M. Hospital, Chennai. For the sake of convenience, the parties shall be referred to in the course of this order, as per their rankings before the District Forum.

             3. The case of the complainant, as projected in the complaint filed before the District Forum, in brief, is as follows:-

             The wife of the complainant/Mrs.Saroja Viswanathan had experienced Post-Menopausal Vaginal Bleeding in the beginning of January, 2002; for which, she was performed Dilation & Curettage (D & C) at the Public Health Centre, West Mambalam.  After recovery, she went to follow-up tests for the enlarged right kidney and gallbladder stones.  She was given medical advice that gallbladder stones were common and nothing to be done there-for at that time.   For treatment related to kidney ailment, she had approached the 1^st Opposite Party/Urologist, who, after going through previous medical records, had recommended for performance of Pyeloueteroplasty by outlining two possible approaches – i) Laparoscopic Surgery and ii) Open Surgery.  He further recommended for Open Surgery so that cholecystectomy could be done at the same time since both the gallbladder and the Kidney ailment were on the right side.  He told the patient that the surgery is so simple that she would be discharged within three days from the Hospital after the surgery is over.   Subsequently, on 22.02.2002 at 4 AM., open surgery was performed at the 2^nd Opposite Party/Hospital for both Pyeloureteteroplasty and Cholecystectomy.  After surgery, she was brought to a private room instead of a well-equipped recovery room.  Although oxygen mask was given, it was subsequently removed.  No details were available as to whether any method was employed to prevent deep vein thrombosis (DVT) of calf veins.   While so, on 23.02.2002 at 8.30 PM., she developed shortness of breath, which was immediately informed to the Duty Doctor, asking him in turn to inform the 1^st Opposite Party/Doctor, who, in fact,  came to the Hospital on 24.02.2002 at 9.30 AM. and an Anesthetist was called from Tambaram since the Anesthetist available there was out of station then.  Though the Anesthetist recommended for performance of Bronchoscopy, Dr.Raja Sebastian, who was called to perform the said procedure, after examining the patient, had advised against such procedure and recommended for placing the patient on ventilator support.  Since the 2^nd Opposite Party/Hospital did not have the ventilator or ICU facilities, on the advice of the 1^st Opposite Party/Doctor, she was taken to Kaliappa Hospital for Ventilator support.  As Ventilator was not readily available, she was temporarily placed in the ICU there.  Again, she was transferred to RSR Trinity Acute Care Hospital, Chennai, where she was placed on ventilator support.  The 1^st Opposite Party should have, before advising to shift the patient to Kaliappa Hospital, ascertained availability of the Ventilator there-at, but, he failed in doing so.  As a result, the delay in shifting the patient to RSR Trinity Acute Care Hospital, where the Ventilator facility was available, contributed for further complications to the patient.  On 25.02.2002, her heart beat rate increased to 130/min and on 27.02.2002 in the early morning, she developed severe shortness of breath.  She continued to be in the ICU on ventilator support with administration of low molecular weight heparin. On 01.03.2002, her oxygen saturation was very low at 85% even on large amounts of inhaled oxygen. In the early morning on 03.03.2002, she constantly complained of hunger and asked for milk, which the resident nurse at the ICU could not provide without consulting the doctors.  While so, between 5 AM. and 6 AM., she suffered cardiac arrest and passed away.

             It is thus obvious that a major surgery was performed by the 1^st Opposite Party in the 2^nd Opposite Party/Hospital where there was no basic infrastructure available for the post-operative care nor expertise to handle the smallest post-operative complication that could arise potentially.  Such scarcity in facilities had driven the patient to a very critical condition by subjecting her to last-minute multiple transfers to different hospitals in search of basic life saving equipments, ultimately leading to her demise.  The 1^st Opposite Party, who performed the surgery,  did not take proper post-operative care nor the required pre-operative care by taking necessary tests for a safe surgery. 

             In fact, the wife of the complainant was hale and healthy and very active with no symptoms of pain.  While so, the 1^st Opposite Party very casually approached the problem by totally failing to exercise due care in treating the patient.  Risks connected to the major surgery were never indicated either to the patient or the complainant. The 2^nd Opposite Party/Hospital was not able to provide the Ventilator/ICU facility required at the time of emergency. After approaching the Consumers Association of India for taking legal action against the Opposite Parties, when a legal notice, dated 09.12.2002, was sent by the said Association, the 1^st Opposite Party replied on 27.12.2002 in mere general terms without reflecting the true facts that had taken place at the time of admission of the patient and the subsequent developments that led to multiple transfers, which ultimately led to her death. 

             Therefore, by filing the complaint before the District Forum, the complainant sought for a direction to the Opposite Parties to pay to the complainant  a sum of Rs.1,01,000/-  towards the medical expenses incurred for Mrs.Saroja Viswanathan; to pay Rupees Ten Lakh as compensation for the sufferings and mental agony due to improper surgery and treatment, which caused the demise of Mrs.Saroja Viswanathan and Rs.2,000/-  towards costs.

             4. The Complaint was resisted by the 1^st Opposite Party by filing a Version, wherein, among other things, it is stated as follows:-

             The 1^st Opposite Party had, in great detail, explained the procedure to the patient even before commencing the treatment and surgery. Pre-operative physician’s clearance was obtained from a competent Physician, who had named her as fit for general anesthesia.  The patient was on tablet ‘Repace’ one per day and had suppressed vital medical information like the presence of reactive airway disease.  She suffered from two ailments viz., calculus of gallbladder and kidney pelvic ureteric function. 76.6% of asymptomatic gall stones and 92.5% of symptomatic stones do undergo removal of gallbladder. The risk of adding an incidental cholecystectomy to another procedure is very low.   Even in patients with risks, benefits of prophylactic removal of gallbladder for asymptomatic gall stones overweigh the risks.  Pyeloplasty is the surgery undertaken to correct  pelvic ureteric obstruction, which, if untreated would sooner or later result in loss of kidney function. Most patients with gallbladder cancer have gall stones and epidemiological data shows a strong relationship between these two diseases.  Laparoscopic removal of gallbladder  is a widespread surgical craft but not laparoscopic pyeloplasty which is done to correct right kidney drainage tract’s obstruction.  Further, Laparoscopy itself has got its own complications.

             As regards the patient, all necessary pre-operative tests for determining her condition were carried out.  Ultrasound study and intravenous pyelogram had been done earlier.  Balloon blowing exercise and skin preparations were all taught to the patient.  This Opposite Party decided not to initiate the anti coagulants therapy pre-operative in the patient for the reasons that the incidence of pulmonary embolism is low in patients in India, that the surgery being upper abdominal and not pelvic (lower abdominal), that no history or clinical evidence of deep vein thrombosis and that post-menopausal bleeding in the patient.  The Medical Team that treated the patient comprised of academically proficient Specialists including this Opposite Party, Dr.Nagendra Babu/Gastroenterology Surgical Specialty with M.Ch and another Urologist/Dr.Raja Maheswari with a Post Graduate degree also in gynaec disorders management, who pursued the medical procedure after due discussions and obtaining necessary consent.  Post operative respiratory complication was well handled with sincerity and involvement by immediate diagnosis  and, after seeking expert advice, remedial measures were instituted without any delay including transfer to another Centre for advance care.  Therefore, there was no deficiency in service at any stage of management.

             The 2^nd Opposite Party/Hospital has a respiratory support device. After 48 hours, when the patient was found to have clinical features of pneumonia, antibiotics were given. Advice from Senior Physician possessing a super-speciality medical Gastroenterology degree and also from Cardiothoracic Surgeon was obtained.  Thereafter, it was decided to shift the patient to Kaliappa Hospital, where, Dr.Krishnamoorthy, Critical Care Specialist trained in England attended on her.  She was intubated there with endotracheal tube and connected to bain circuit ventilated with Ambus bag.   As the said critical care specialist felt that the patient should be ventilated in the ICU at Trinity Hospital, he himself along with staff nurse accompanied the patient to Trinity and organized proper ventilation, which stabilized the patient.

             Decreased lung compliance and increased alveolar permeability are the two dreaded sequela of acute respiratory distress syndrome.  Efforts were taken to avoid those two sequences at every step of respiratory care.  There had been no evidence of cardiogenic pulmonary oedema at anytime during the care.  Even the unfortunate end to the patient occurred at a time when it was intended to wean the patient totally from respiratory support.  The patient could be weaned from respiratory support progressively in two stages viz., using the ventilator/controlled ventilation called Synchronous Intermittent Mandatory Ventilation Mode and secondly, withdrawal of mechanical ventilation.  After the first time withdrawal of ventilator support, when the patient was sent to the ward, throughout all stages, she was communicating with the attenders and medical personnel.  This would not have been possible had there been a continuing surgical problem.  But, unfortunately, her respiratory rate again went up. 

             It is incorrect to say that the major surgery was performed by this Opposite Party in a small Hospital lacking post-operative care infrastructure or expertise to handle the smallest complication that could potentially arise post-operatively. In fact, many major surgeries were done at the 2^nd Opposite Party/Hospital which has respiratory device facility. At any rate, Acute Respiratory Distress Syndrome from Aspiration Pneumonitis does not occur because of a surgical decision or technique or neglect, as alleged. The complainant and the patient had suppressed the vital medical information that she had reactive airway disease, which was informed only during the second post-operative care in February, 2002.  It was also found that the patient had been a habitual user of nebulizer-puff when she was living in Delhi. Inasmuch as the complaint is based on   imaginary grounds projected by a non-medical person questioning the competence of the proficient medical team, in particular the 1^st Opposite Party, who tried his level-best to treat and save the patient, the complaint is liable to be dismissed.            

       5. The 2^nd Opposite Party, in spite of receipt of notice from the District Forum, neither entered appearance nor filed any written version, hence he was set ex parte.

             6. In order to substantiate his case, the complainant filed proof affidavit and marked Exs.A1 to A9 while the 1^st Opposite Party filed Exs.B1 and B2 apart from filing proof affidavit.

             7.  Originally, the District Forum had allowed the complaint by orders, dated 10.03.2006, holding that there was deficiency in service on the part of both the Opposite Parties and ultimately, directed them to pay a sum of Rs.5,00,000/- as compensation with costs of Rs.2,000/-.  Aggrieved by the same, the 1^st Opposite Party had filed F.A. No.226 of 2006 and this Commission, by orders dated 27.06.2008, remanded the matter back for consideration afresh, by holding as follows:-

                “ 4. The District Forum did not seek any expert evidence and more than anything else, the grievance of the 1^st Opposite Party apparently is that no opportunity was given for cross examining the complainant by the 1^st Opposite Party.  No medical literature was produced to establish negligence.

                5.Inasmuch as the District Forum had not followed the proper procedure in disposing of the case in the interests of justice, we deem it proper to allow the appeal and remand the matter for consideration afresh to give proper opportunity to both the parties to lead evidence in support of their cases.  The Appeal is allowed, the order of the District Forum is set aside.  Findings of the District Forum shall stand vacated.  There will be de novo enquiry into the complaint, both parties shall have liberty to let in evidence both oral and documentary. “

After remand, the District Forum has passed the present impugned order, as mentioned above, which is under challenge in this Appeal preferred by the 1^st Opposite Party.

             8. At the first instance, learned counsel for the 1^st Opposite Party would submit that the matter was earlier remanded mainly on the ground that the District Forum did not seek any expert evidence and no opportunity was given for cross-examining the complainant by the 1^st Opposite Party.  Thereafter, the 1^st Opposite Party had filed applications in the Complaint seeking to cross-examine the complainant and even though those Applications came to be allowed, the complainant never offered himself for cross-examination and no expert evidence was adduced. In spite of the remand order, no opportunity was given to the 1^st Opposite Party to cross-examine the complainant so as to substantiate his case and the impugned order came to be passed.  In this case alleging medical negligence, onus will shift to the 1^st Opposite Party only after the complainant discharged his burden.  The earlier order of the District Forum having been set aside only because the complainant did not produce expert evidence, when opportunity was given after remand, he conveniently refrained from leading expert evidence.  Hence, the onus does not shift to the 1^st Opposite Party as the complainant has not proved his case in a manner known to law. On this aspect, learned counsel pressed into service a decision of the Apex  Court in C.P.Sreekumar (Dr.) MS. (Ortho) vs. S.Ramanujam (2009 (7) SCC 130),  wherein, it has been held thus:-

             “ We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew's case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

According to the learned counsel, since the District Forum has passed Orders only on the basis of the materials that were available prior to the remand, the impugned order is liable to be set aside.

             On merits, learned counsel would submit that the allegation made by the complainant that instead of Laparoscopic surgery, cholecystectomy & pyleoutenoplasty was done and such open surgery eventually led to pulmonary complications, on the face of it, is not based on any medical reasoning.  According to him,  removal of gallbladder through laparoscopy is a widespread surgical craft but not pyeloplasty done to correct kidney drainage tract’s obstruction on the right side.  Further, laparoscopy itself has got its own complications.  On such crucial aspect, the complainant, even after remand, neither came forward to cross examine the 1^st Opposite Party nor subjected himself to cross-examination.   While so, when proceeded to record a definite finding to the effect that the decision taken by the first opposite party for pursuing open surgery instead of laparoscopy is the reason known to medical process on considering the nature of disease and the same cannot be said to be improper or found fault with, the District Forum ought not to have held that there was deficiency in service on the part of the 1^st Opposite Party.

             As regards the finding of the District Forum that the Opposite Parties committed deficiency of service in not taking adequate care and in not providing proper ventilation facility which was needed by the patient during the post-operative care, it is submitted that the said finding is not sustainable in law for the reason that the 2^nd Opposite Party Hospital is a well equipped establishment with all medical facilities/necessary respiratory support devices including ambus bag to handle surgeries like the one performed upon the patient.  Further, after the surgery on 22.02.2002, all the vital parameters of the patient were normal.  That being so, when shortness in breath suffered by the patient 48 hours after the surgery was due to pneumonia, without any medical basis, an endeavor has been made to project the pneumonia-related sequences as that of post operative complications.   In Kaliappa Hospital, the patient was in the ICU and intubated with endotracheal tube and also connected to bain circuit ventilated with mechanical ventilators, however, when the Specialist felt that the patient needed more care, as a cautious measure, she was shifted to Trinity Hospital where there was considerable improvement in her condition to the extent that she was removed from ventilator after certain time, however, since she developed complications once again, she was put on ventilator and later died.  Remarkably, the complainant did not come forward to cross-examine the 1^st Opposite Party and also failed to file any medical literature to prove deficiency in service on the above aspect.  While so, there being no basis for  the said  finding of the District Forum, the same is not sustainable in law.  In that regard, learned counsel relied upon a decision of the Apex Court, dated 30.11.2021, rendered in Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Others, rendered in Civil Appeal No.1658 of 2010 and laid emphasis on the following passages,

              “ 19. Further,  the  non-working  of  the  DSA  machine  and  consequent  delay in  performing  the  test  cannot  be  said  to  be  negligence  on  the  part of  the  Doctor  or  the  Hospital.. ……. The alternative process to  determine  the  blood  flow  was  carried  out  by  angiography and  the  decision  for  re-exploration  was  taken  at  12.30  p.m.  No  fault can  be  attached  to  the  Hospital  if  the  operation  theatres  were occupied   when   the  patient   was   taken  for  surgery.   Operation theatres  cannot  be  presumed  to  be  available  at  all  times.  Therefore, non-availability   of   an   emergency   operation   theatre   during  the period  when  surgeries  were  being  performed  on  other  patients  is not  a  valid  ground  to  hold  the  Hospital  negligent  in any manner.”

             Finally, the learned counsel would submit that the complainant had suppressed the fact that the patient was suffering from reactive airway disease and the same is evident from a perusal of the case sheets of the patient.  Since non-disclosure of such vital detail also, in a way, contributed for the death of the patient, the conclusion reached by the District Forum to fix the liability upon the Opposite Parties is erroneous, both factually and legally.  By citing the decision of the Apex Court in Kusum Sharma vs. Batra Hospital (2010 (3) SCC 480) for the proposition that medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence, learned counsel would submit that, in the instant case, the 1^st Opposite Party had performed his duties with reasonable skill and competence, thus, neither negligence nor deficiency in service can be attributed; as such, the impugned order warrants absolute interference.  Accordingly, he seeks that the Appeal may be allowed.             

             9. Countering the above arguments made, learned counsel for the complainant would submit that on 23.02.2002 at 8.30 PM. ie., 48 hours after the surgery, she developed shortness of breath, about which, the Duty Doctor was immediately informed.  Though the 1^st Opposite Party was, in turn, informed of the same, he came to the Hospital only on 24.02.2002 at 9.30 AM, after a delay of about 13 hours.  Further, when the choice of Laparoscopic surgery was available, the act of the 1^st opposite party in pursuing the open surgery without properly adhering to both the pre-operative procedure and the post-operative care in the 2^nd opposite party/Hospital, where there was not even the facility of ventilator available, eventually ended in the patient developing pulmonary complications.  As there was  abrupt failure in providing proper ventilation facility, resultantly, the patient was driven from one Hospital to another in search of ventilator, which factor contributed much for severe complications, ultimately leading to the patient’s demise, thereby, negligence & deficiency in service on the part of the Opposite Parties is quite apparent.  According to him, without ensuring availability of life saving facilities in the Hospital, the Opposite Parties should not have conducted the major surgery.  In that regard, he would place much reliance upon the decision rendered by the National Commission in M.Rajavadivelu vs. Janamma hospital & Ors. (2013 (II) CPJ 622-NC), highlighting the text quoted below:-

        “9. …….In the instant case, Respondents have themselves admitted that they took 10 to 15 minutes to transfer the Patient to the ambulance and thereafter some more time to the Hospital, which was undoubtedly fatal in this case. The Respondents should not have conducted a major surgery like Hysterectomy under general anaesthesia without ensuring that such life saving facilities were available in their Hospital.  ….. It also does not help the Respondents case that there was no problem with the Hysterectomy per se because soon after the surgery, post-operative complications developed and due to lack of a ventilator in the Respondent No.1/Hospital the Patient developed a fatal complication.

        10. ……...in the instant case, medical negligence and deficiency in service is established because the Respondents conducted a major surgery under general anaesthesia without taking due care and caution to ensure that critical life-saving equipments like the ventilator were available in case of post-operative complications, which can occur following major surgery. “

Since in the present case also, there is similitude of negligence and deficiency in service, rightly, the District Forum proceeded to fasten the liability upon both the Opposite Parties and hence, its conclusions cannot be faulted with.

             It is next pointed out that though this Commission remanded the matter back, giving liberty to examine experts and to cross examine the complainant by the 1^st Opposite Party, none of the parties let in oral and documentary evidence.  In fact, the complainant had filed a petition in CMP.125 of 2011, seeking to send the records to the Dean, Kasturba Gandhi Hospital for Women & Children, Triplicane, Chennai-5, and  get an expert opinion whether the treatment given to the wife of the complainant and the conduct of the opposite parties were proper or not.  Opposing the said Application, the 1^st Opposite Party filed a counter.  Having opposed the said Application, now it is not open for the 1^st Opposite Party to contend that no expert evidence was let in.   At any rate, since negligence & deficiency in service is held to have been proved, there being no scope for interference, the First Appeal deserves dismissal.

             10. Though very many contentions have been raised,  the only question that arises for consideration in this Appeal is as to whether the District Forum is justified in fixing joint liability upon both the Opposite Parties on the face of its categoric finding at paragraph No.8 of the impugned order to the effect that the decision taken by the 1^st Opposite Party, a qualified skilled Consultant & Urologist, for the open surgery instead of laparoscopy, cannot be said to be improper or found fault with.

             11. Before proceeding further, it would be of much relevance to quote below the relevant portion at paragraph No.8 of the impugned order:

                            “ 8. …. Therefore as contended by the opposite party mentioned above the 1^st opposite party is a qualified skilled consultant and urologist, the said decision taken by him for the surgery of open surgery instead laparoscopy is of the reason know to the medical process on considering the nature of the disease and the surgery was to be done to the patient, cannot be said to be improper or found fault with him. Further contrary to the above reasons stated by the 1^st opposite party the allegation made by the complainant that the decision taken by the 1^st Opposite Party for conducting open surgery instead of laparoscopic surgery is not proper is not acceptable as there is no medical evidence on the side of the complainant for the said allegations and the complainant also not denied that they have given consent for the said open surgery. “

Thus, the District Forum was of the view that there was no medical evidence available at all to sustain the allegations made by the complainant as against the 1^st Opposite Party in the performance of Open Surgery instead of Laparoscopic surgery, that his professional conduct cannot be found fault with and that the complainant himself has not denied that they consented for performance of the open surgery.   While so, after discussing about shifting of the patient to Kaliappa and Trinity Hospitals, the District Forum held thus at paragraph No.11,

“….. Further the patient in a serious condition was shifted even without ascertaining the facility available thereon to Kaliappa Hospital for which the opposite parties 1 and 2 are jointly and severally responsible which amounts deficiency of service on their part. “

 After so holding, interestingly, at paragraph No.12, the District Forum proceeded to record the following finding:-

      “ Considering the above facts and circumstances for the  death of the patient deceased Saroja Viswanathan the above mentioned deficiency of service appears to be committed by the Opposite Parties 1 and 2 alone not a total cause. “

From the above findings, we could see that the District Forum although, on the one hand, held that there was deficiency of service on the part of both the Opposite Parties, on the other hand, found that such deficiency of service does not appear to be a total cause for the death of the patient.  In that back ground, when the main grievance of the complainant is that there was failure in providing post-operative care, it has to be examined as to whether the complainant succeeded in connecting the treatment given by the 1st Opposite Party on 22.02.2002 with the death of the patient that occurred on 03.03.2002 on account of cardiac arrest.

             12.  It is seen from the records that the open surgery was performed on the patient by the 1^st opposite party on 02.02.2002 for calculus of gallbladder and right kidney drainage tract obstruction.  It is further seen that 48 hours after the surgery, the patient developed breathing difficulty.  While it is the case of the 1^st Opposite Party that the said difficulty was not a post-surgery complication and it was due to clinical features of pneumonia, the stand of the complainant is that it was only a resultant complication of the open surgery that eventually led to pulmonary complications.   However, in support of such stand, the complainant has not come up with any solid medical evidence or literature.  Regarding post-operative care, the allegation against the 1^st opposite party is that, before shifting the patient, he failed to verify about availability of ventilator facility at Kaliappa Hospital, thereby, the element of negligence-cum-deficiency in service is attracted.   We are unable to endorse this allegation for the reason that the Ventilator available at the said Hospital, at the relevant duration, was being used for another patient and that is why, after providing necessary treatment at Kaliappa Hospital, she was shifted to Trinity Hospital, where she was ventilated till 26.02.2002. In other words, non-availability of Ventilator during that time owing to its utility for other patients cannot be a valid ground to hold that the 1^st Opposite Party was either negligent or has committed deficiency in service. The patient, who received the ventilator support in the Trinity hospital, was removed from the said facility for a while when she was stabilized there. However, after developing the problem once again, she was again connected to Ventilator, but, due to cardiac arrest, she died  on 03.03.2002,.  That being so, we fail to see anything to connect the surgery performed on 02.02.2002 by the 1^st Opposite Party for gallbladder stone & obstruction in the right kidney drainage tract with the death of the patient on 03.03.2002 due to cardiac arrest. As such, neither negligence nor deficiency in service can be attributed to the 1^st Opposite Party.   However, from the materials, we could see that the 2^nd Opposite Party Hospital did not have ventilator facility, as a result of which, when breathing difficulty developed, the patient had to suffer unnecessary transit from one hospital to another, which definitely would have caused stress and sufferings both to the patient and to the complainant. Hence, at best, deficiency in service is reflected only on the part of the 2^nd opposite party. 

             13. In the result, the Appeal is allowed by holding that deficiency in service is attracted against the 2^nd respondent/2^nd Opposite Party and not against the appellant herein/1^st Opposite Party. Consequently, the impugned order, dated 02.03.2006, passed by the District Forum in C.C. No.166 of 2003, stands set aside.  Since deficiency in service is attracted against the 2^nd respondent/Hospital, which lacked the ventilator facility resulting in unnecessary shifting of the patient from one Hospital to another, thereby caused stress and sufferings to the patient as well as the 1^st respondent/complainant, we direct the 2^nd respondent/Hospital to pay a sum of Rs.5,00,000/- (Rupees five lakh only) as compensation to the 1^st respondent/complainant, within a period of two months from the date of receipt of a copy of this order, in default, to pay the said sum along with interest @ 7% p.a. from the date of complaint till the date of payment.  The 2^nd respondent shall also pay Rs.10,000/- (Rupees ten thousand only)  to the 1^st respondent/complainant towards litigation expenses.

                            

S.M.LATHA MAHESWARI                                                            R.SUBBIAH, J.

              MEMBER                                                                             PRESIDENT.

 

Index    :  Yes  / No.

ISM/TNSCDRC/Chennai/Orders/Feb/2022.