By Sri.P.K.Sasi, President

          The case of the complainant is that his wife Linta was admitted at 1^st opposite party’s nursing home on 15/8/2005 for delivery and on the next day at 8.30am she delivered by caesarian.  After the caesarian, she was transferred to the room and it was told by the 2^nd opposite party that  everything is OK and nothing to worry and  she can be discharged without any delay. 

          2. Whereas, on 17/8/05 afternoon at about 1 o’clock  the condition of his wife became worst and she was seemed as totally tired.  She felt severe pain on her two legs and also felt pain and coldness all over her body.    That was immediately informed to the 2^nd opposite party.  But neither the 2^nd opposite party nor any staff of the 2^nd opposite party attended his wife upto 2.30pm.  Then an unqualified nursing assistant came and an injection was given to the patient.  Then the condition became more worst and she became badly restless.  By afraid of seeing all these things, the complainant ran to the 2^nd opposite party and directly informed her all these conditions.  Even then she has hesitated to come and at about 4pm one assistant doctor came and examined her and reported that there is nothing to worry.  The restlessness shown by the patient may be because of the excess dose of injection given.  Then at about 4.15pm another injection was given to the patient. After that she became more and more restless and even showed impressions like difficulty to breath and symptoms of dyeing.  By seeing that, the complainant and his relatives ran to the 2^nd opposite party and prayed her to come and attend the patient.  Accordingly at about 5pm, the 2^nd opposite party came and examined his wife and as per her direction the complainant’s wife was taken to the operation theatre immediately.  The 2^nd opposite party told to the complainant  and his relatives that the condition of his wife is not good and she need urgent expert attention and better treatment for that she suggested  to take her to some other  more equipped hospital.  She also told  that  all these happened only because of  drastic variation in sugar count.

          3. The 2^nd opposite party called other doctors of the 1^st opposite party’s hospital and  all of them examined the patient.  After some time when the complainant opened the door of the theatre to ask about the condition of the patient,  it was witnessed by him that doctors were forcefully hitting on the chest of his wife.  After that  at about 8pm without informing the complainant or his relatives, the 2^nd opposite party brought an ambulance  and tried to shift the patient to some other hospital.  Seeing that  the complainant  and his parents made an attempt  to enter into the ambulance but they were forcefully thrown out by the 2^nd opposite party and his people.

          4. At the time of transferring the patient to the ambulance, it was seen by the complainant that the eyes of the patient was bulged.  By feeling that his wife is no more, the complainant and his  parents along with some other relatives followed the ambulance.  There was no movements or any symptoms of life with the patient at the time of transferring from the 1^st opposite party hospital.  In fact she was dead.

          5. The 2^nd opposite party has taken the patient to the Aswini hospital and when she was removing from the ambulance, plaster was affixed on her both eyes.  Even after repeated  requests made by the complainant, the 2^nd opposite party has not  disclosed that why they brought the patient to the Aswini hospital.  Then at about 11pm it was informed to the complainant that his wife is dead. 

          6. According to the complainant his wife was died even before transferring to  Aswini hospital.  By concealing that fact, the 2^nd opposite party by colluding with other doctors and the doctors at Aswini hospital unnecessarily transferred her body from the  1^st opposite party hospital to Aswini hospital.  The complainant and his relatives strongly believe that only the wrong injection given by the nursing assistant is the cause for the death of his wife.  The inexperienced nursing assistant injected wrong medicine in  excess dose.  All these things happened only because of the utter negligent and irresponsible act of the opposite parties which amounts to deficiency in service happened on the part of opposite parties.  Hence this complaint is filed for getting relief.

          7. Being noticed on the complaint, the opposite parties appeared through counsel and filed detailed version.  In the version the opposite parties admitted that complainant’s wife was admitted there and she was treated by 2nd opposite party.  It is submitted by the opposite parties that since it was a case of previous caesarian section having gestational diabetics, it was made sure that the diabetics level was completely under control by giving insulin injection.

          8. On 16/8/05 after controlling her diabetics she had an elective caesarian section and sterilization operation under spinal anesthesia.  After operation she was kept in post operative room and when she was found fit to be shifted, she was shifted to her room in the afternoon.  She was seen by the 2^nd opposite party that night.  On 17/8/05 the patient was again checked by 2^nd opposite party at 8.30am and it was found that she was doing well.  Her blood sugar was also normal; IV fluids and urinary catheter were removed at 12.30pm.   At about 2pm while 2^nd opposite party was operating on another patient; it was informed by nurse that the wife of the complainant had a pain in her lower abdominal region. The 2^nd opposite party ordered the nurse to give Analgesic injection and that was immediately administered by the nurse. 

          9. Then at about 4.30pm since it was informed that the pain was still not relieved, Dr.Subhadra, Asst. doctor, who is having 17 years of experience in the hospital was sent to see the patient.  On examination, the general condition of the patient was normal.   Since there was pain persisted, more medicines were administered.  Then at about 5pm after finishing the operation, the 2^nd opposite party also checked the patient.  At that time the patient  complained  of severe leg pain and difficulty to breathing  and weakness on some part of the body.  The complainant and some other relatives were present at that time in the room.  Then the 2^nd opposite party advised the complainant and  with his consent shifted the patient to the labour room for close observation.  Since the 2^nd opposite party was near by the patient necessary medicines and treatment was administered to her.  After some time the patient again showed difficulty in breathing.  She was immediately shifted to the operation theatre.  Dr.Vilasu and Prof. Dr.V.P.Paily also had arrived and gave the best available treatment immediately.  The patient was still conscious, restless and complained of  severe leg pain.

          10. At about 6.30pm the patient developed a sudden cardiac arrest and external cardiac massage was given.  Defibrillation was also given.  Again at 7.15 pm the patient had another cardiac arrest.  The same treatment repeated.  When the cardiac massage was given, the complainant was present in the operation theater itself.   Then the patient was shifted to the ICU  in the Aswini hospital for better management by 2^nd opposite party and Dr.Vilasu.  They were accompanied the complainant and his relatives.    After reaching at Aswini hospital the patient died at 11pm. 

          11. The opposite parties strictly denied all the allegations raised against them in the complaint.  The opposite parties strictly denied that the condition of the patient started worsening after the injection was given.  It is further submitted by the 2^nd opposite party that she  has rushed to attend the patient immediately after she is out from the operation theatre.  All other allegations stated in the complaint are fabricated stories.  It is stated by the opposite parties that  with the consent of the complainant, they  called the ambulance and shifted to ICU of Aswini hospital.  They also permitted the complainant and his relatives to travel in the ambulance to Aswini hospital. 

          12. The allegation raised by the complainant that the actual cause of death was due to the injection administered by the nurse is false and baseless.  The injection given was a pain killer and it never causes any death.  The opposite parties further denied that the wife of complainant was already died before she had shifted to Aswini hospital.  The opposite parties further submitted that they have not committed any sort of negligence or carelessness in the  treatment which amounts to deficiency in service on their part.  They prayed for the dismissal of the complaint with cost.

          13. Points for consideration are that:

1) Whether there was any negligent act which amounts to deficiency in service happened on the part of opposite parties?

2) If so what costs and reliefs?

          14. Then the case was posted for evidence and from the side of complainant, he has filed proof affidavit, in which he has affirmed and explained all the averments stated in the complaint in detail.  He has also examined as PW1 and vehemently cross examined by the counsel for the opposite parties.  He has also produced three documents which are marked as Exts.P1 to P3.  Ext.P1 is copy of postmortem report dated 18/8/05, Ext.P2 is certified copy of FIR of crime No,479/05 of Viyyur police and Ext.P3 is certified copy of final report in crime No.479/05.  From the side of opposite parties, the 2^nd opposite party filed counter proof affidavit and she was examined as RW1.  They summoned the case diary from the Viyyur police and that was marked as Ext.X1 series.  RW1 was vehemently cross examined by counsel for the complainant. 

          15. We have gone through the evidences adduced from both sides and perused the documents produced.  This is a medical negligence case and the allegation of the complainant is that his wife Linta died due to wrong injection given by the unqualified nurse and her dead body shifted to another hospital for creating some false evidences, by the opposite parties.  As far as a medical negligence case is concerned, it is the settled position that the case has to be proved with support of expert opinions; the burden is upon the complainant to prove the case with sufficient evidences.

          16. In the law of negligence, professionals such as lawyers, doctors, architects and others are included  in the category of persons profession some special skill or skilled persons generally.  Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task.  Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures  the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable  degree of care and caution.  He does not assure his client of the result.  A lawyer does not tell his client that the client shall win the case in all circumstances.  A physician would not assure the patient of full recovery in every case.  A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.  The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.  This is all what the person approaching the professional can expect.  Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.  The standard to be applied for judging, whether the person  charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.  It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. 

          17. To prove a medical negligence, there should be a legal duty to exercise due care on the part of the opposite party and breach of the said duty along with the consequential damage.  The cause of action for negligence arises when damage occurs. As far as this case is concerned, here damage is proved by the death of the complainant’s wife.  But other material ingredients have also to be proved by the complainant.  The case of the opposite party is that the death of the complainant’s wife occurred only because of a medical complication. According to them she had a massive thrombo embolism.  The complainant’s allegation is that on 17/8/05 at about 12.30pm his wife had severe pain on both legs accompanied with abdominal pain.  And as per the direction of the 2^nd opposite party, the duty nurse had given an injection to her and subsequently she showed severe restlessness and pain was also increased.  The opposite parties argued that the wife of complainant was a gestational diabetic patient and she had a postoperative pulmonary embolism and that was managed by the opposite parties with reasonable care.  The medical literature says about pulmonary embolism “with almost all blood clots that cause pulmonary embolism are formed in the   deep leg veins.  Clots also can form in the deep veins of the arms or pelvis”.  As symptoms says that, shortness of breath that may occur suddenly.  It further states that the pulmonary embolism may be hard to diagnose because its symptoms may occur with or are similar to other conditions, such as heart attack, a  panic attack or pneumonia.   Also some people with pulmonary embolism did not have symptoms.  The complication of pulmonary embolism may include cardiac arrest and sudden death.              18. Ext.P1 is the postmortem report prepared by the police surgeon of Medical College.  In Ext.P1 opinion as to cause of death is reserved pending on chemical and histopathological report.  Here in this case the deceased Linta was having severe pain on her both legs that may be because of the blood clotting in the veins of her legs due to pulmonary embolism.  Whereas in postmortem report that is not traced out by the doctor.  The doctor who conducted postmortem is not examined in this case.  Ext.X1 series case sheet however, contains the treatment records of both hospitals that were not authoritatively examined before the Forum through any medical experts.  If the complainant’s wife was died before shifting to other hospital that could have been find a place in any of the treatment records.  Here neither in the version nor in counter proof affidavit filed by the opposite parties nothing is stated regarding the treatments given at Aswini hospital however, the 2^nd opposite party was present there.  Regarding the payment of bill at Aswini hospital is made by whom is also not explained before us.  The main allegation raised by the complainant is about the injection given by the duty nurse.  That was not explained and proved before us with supporting treatment records.  It is submitted by the  opposite party in their version as well as in the counter proof affidavit that analgesic injection was given by the nurse which is a pain killer.  The excessive dose of pain killer usually may not cause death of a patient.  There is no expert opinion adduced from the side of complainant on that point before us. 

          19. Records shows that Viyyur police has registered  two separate crimes based on this incident.  Both cases were clubbed together and referred based on the report of medical board.  That medical board report is also not challenged by the complainant.  Considering the points discussed hereinabove, we are of the opinion that the complainant could not prove  their case  with cogent supporting evidences to show that the opposite party has committed any sort of negligent act which amounts  to deficiency in service on their part.  Neither the chemical analysis report nor the histopathological  test report is made available for us to consider.

          20. In the result we are inclined to dismiss this complaint without cost.

            Dictated to the Confidential Assistant, transcriber by her, corrected by me and pronounced in the open Forum this the 10^th  day of   June     2016.