KERALASTATE CONSUMER DISPUTES REDRESSAL COMMISSIONVAZHUTHACAUD, THIRUVANANTHAPURAM OP.NO.89/99 JUDGMENT DATED.19.06.08 PRESENT:- JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER 1. Kunhikrishnan Nambiar.P.V S/o.Krishnan Nambiar Aged 61 years, Karuval House, Kayanni.P.O., Via Mattanur, PazhassiVillage, Thalassery Taluk,Pin – 670 702. : COMPLAINANTS 2. Premeela, D/o.Kunhikrishnan Nambiar, aged 32 years, Karuval House, Kayanni.P.O.,Via Mattanur, PazhassiVillage, Thalassery Taluk, Pin – 670 702. 3. Sreekala, D/o.Kunhikrishnan Nambiar, aged 30 years Karuval House, Kayanni.P.O., Via Mattanur, PazhassiVillage, Thalassery Taluk, Pin – 670 702. 4. Manjula, D/o.Kunihikrishnan Nambiar, aged 27 years Karuval House, Kayanni.P.O., Via Mattanur, PazhassiVillage, Thalassery Taluk, Pin – 670 702. 5. Sharmila, D/o.Kunhikrishnan Nambiar, aged 25 years Karuval House, Kayanni.P.O., Via Mattanur, PazhassiVillage, Thalassery Taluk, Pin – 670 702. (By Adv.Sri.Shyam Padman) Vs Sree Chitra Tirunal Institute for Medical Sciences and Technology, Represented by the Director, : OPPOSITE PARTY Triandrum – 695 001. (By Adv.Sri.P.Balakrishnan) This OP has been finally heard on 11.03.08 and the Court on 19.06.08 delivered the following. JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The complainants are the LRs ie., husband and children of the deceased Smt.Chandramathi. The 1st complainant the husband of the deceased died during the pendency of the proceedings and complainants 2 to 5 were recorded as his LRs. 2. It is the case of the complainants that their mother was suffering from cough with yellow sputum and was also having fever. She was treated at Tely Medical Centre Ltd., Thalassery. On examination by the concerned doctor it was diagnosed that she is having rheumatic heart disease and Mitral Stenosis. The doctors of the above hospital advised her to have the further treatment at the opposite party/hospital. The patient was registered at the opposite party/hospital ie., Sreechitra Thirunal Institute for Medical Sciences and Technology (hereinafter to be mentioned as SCTIMST) on 30.05.1997 paying Rs.70 as registration charges. On examination she was advised to undergo a surgery that is Balloon Mitral Valvulo Plasty (BMV) to set right the mitral valve. The above doctors mentioned that the said operation is a simple one unlike other surgeries including CMV as the same was less invasive. The medicines were also prescribed, and she was advised to report on 9.7.1997 for undergoing the BMV as per letter dated 30.6.97. Later she was intimated that the BMV is postponed to 16.7.97 at 8 a.m. On 16.7.97 she was admitted as an inpatient and a sum of Rs.70,000/- was paid as advance. The operation was scheduled to be conducted on 18.7.97 by Dr.Francis and team of doctors. The complainants came to know that there was a workshop on BMV and the operation is proposed to be done during the workshop. When the same was objected to, the doctors assured that BMV is only a routine operation and that there is absolutely nothing to worry.Over simplifying the entire matter consent was managed and manipulated to be obtained for the above operation. After the commencement of the operation it was found that patient was being rushed to the thoracic surgery operation theatre situated on the 3rd floor. It was known that there was a complication in the BMV and the patient had to undergo an immediate open heart surgery. The patient was shifted from the BMV theatre on the 2nd floor to the operation theatre on the 3rd floor. It is learnt that the open heart surgery was conducted by Dr.Unnikrishnan and his team and she was removed to the post operation ward. The patient never regained consciousness and was in a vegetable state for 10 days and finally on 26.7.97 at 12.30 p.m. she died. Post mortem was done. In the death certificate it is seen that the condition of the patient was complicated by Left Ventricle Lateral Wall Rent leading to Cardiac Tamponade. It is alleged that the death was occurred due to the callous negligence and culpable indifference and deficiency in service on the part of the SCTIMST. BMV ought to have been done in a well equipped operation theatre with complete preparedness to have an immediate open heart surgery in case of any complication. The delay in conducting heart surgery is fatal. There was a delay of more than 20 minutes in commencing the open heart surgery. There was no thoracic surgeon ready to do an immediate open heart surgery. The patient had to be shunted off to the upper floor to the thoracic surgery theatre, resulting in much delay, which resulted in hypoxic ischemic encephalopathy. It was on account of the improper and wrong way of doing the BMV procedure by the inexperienced and unqualified doctors that the said complication arose. The patient was made a specimen and a guinea pig for the workshop. The patient was aged only 47 years and was healthy and energetic. She had a very painful death. The complainant No.1 was deprived of the companionship and consortium of a loving wife. Complainant No.2 to 5 the daughters were deprived the love, affection and care of their mother. 3. When the complainants raised their grievance before the opposite party they had stated that it was a failure on their part to do the needful at the appropriate time and expressed their regrets, and that they are ready to return the I.P advance collected. As per letter dated 4.8.1997, the opposite party had refunded the sum of Rs.70,000/ collected as I.P. advance which was accepted under protest and without prejudice to the right of the complainants to seek redressal of their grievance. The opposite party has thus admitted that there was negligence and deficiency in service on their part. The premature death of their mother cannot be compensated by monetary compensation. The lawyer notice dated 3.7.99 was sent in this regard and the reply was received on 12.7.99 mentioning that a detailed report would be sent after discussing the same with all the concerned, but no detailed report has been received. The complainants have claimed a sum of Rs.10,00,000/- as compensation. 4. The opposite party has filed a version contenting that the complaint is not maintainable and that the Commission has no jurisdiction. It is also contented that the treatment provided to Smt. Chandramathi was free of charge and hence the beneficiaries will not come under the definition of the term ‘Consumer’. It is pointed out that the amount was received without any protest. It is contented that there is no specific case as to who was responsible for the death. It is mentioned that the deceased was examined on 30.5.99 and diagonised as having moderately severe Mitral Stenosis . The doctors of the institute have explained the procedure of BMV in detail and the possible complications to her relatives. The necessary consent letters from the relatives of the patient was obtained. It is denied that the doctors have stated that the operation is simple and is having no complications. Although the procedure was fixed at 16.7.97, since the workshop was to be conducted on 18.7.97 and eminent doctors, and world experts in the subject matter of BMV were expected, the procedure was postponed to 18.7.97 with the consent of the relatives. It was thought that the operation under the guidance and expertise of world experts in the field of BMV will be advantages to the patient. It is denied that the consent was managed and manipulated. The doctors when the complication arose immediately drained out the blood from the pericardium. Usually the patient would be stabilised enough to enable the procedure to be completed. But unfortunately the particular patient did not improve. Hence the doctors immediately stopped the procedure half way and rushed her to the operation theatre for open heart surgery. The condition was explained to the relatives and obtained their consent letter. The above is a known complication which may occur very rarely and this was also explained to the relatives of the patient. The operation was successful and the patient was stabilised . But unfortunately the patient died after 10 days of the operation. The emergency operation was done to repair the left ventricle lateral wall rent which led to Cardiac Tamponade, a known complication of BMV procedure. Whatever possible could be done, were done without any lapse. Immediate attention was given without any loss of time. There was all facilities to meet all contingencies arising out of known complications of BMV procedure. It is not correct that the BMV should be done only in an operation theatre. In the instant case the BMV was done in a well equipped lab in the second floor of the hospital and the operation theatre is just above the lab in the 3rd floor. The patient was immediately shifted and the operation theatre was always ready to receive the patient for conducting such emergency operations. If there was delay the patient would have died immediately. It is denied that there was delay of more than 20 minutes. The BMV is being done in the institute since 1990. It is also alleged that the proceedings instituted is the result of an after thought after a lapse of 2 years, just to harass and demoralize the doctors and spoil the image of the institute. The patient was having heart disease. She was not healthy and energetic as alleged. She was referred to SCTIMST on account of her deteriorating health. As per the request of the complainant and as the procedure could not be completed successfully, and as costly consumables were not fully utilized etc.. the opposite party refunded the entire amount. The detailed reply to the lawyer notice received was sent on 11.8.00. 5. The evidence adduced consisted of the testimony PWs 1 to 3 ie; the first complainant who died subsequently, the son-in law of the deceased and the expert witness examined at the instance of the complainants respectively and RWs 1 and 2 the doctors of SCTIMST and Exts.A1 to A11 and B1 6. The Commission as per order dated.8.8.2000 has considered the question of maintainability in detail and has overruled the preliminary objections raised by the opposite party. 7. The contentions of the complainants are that there was deficiency in service on the part of the SCTIMST as the operation was not performed by properly qualified and experienced persons and that there was delay in conducting the open heart surgery after noticing the left ventricle lateral wall rent and consequent tamponade; and that there was no informed consent to conduct the Balloon Mitral Valvulo Plasty (herein after to be mentioned as BMV) in the workshop on the subject conducted by SCTIMST. 8. In support of the contention that there was negligence in conducting BMV and subsequent open heart surgery the complainants have relied on the evidence of the PW3, the chief cardiac thoracic and vascular surgeon and senior consultant of the Malabar Institute of Medical Sciences, Kozhikode. It is pointed out that PW3 has deposed that BMV was an elective procedure and the same should have been done only after the patient was found to the perfectly fit to undergo the same and noting that there are no contra indications. RW1 the surgeon of SCTIMST has also testified likewise in this regard. But in the version filed by the opposite parties it is their case at para 12 that she was not healthy and energetic and that she was referred to the SCTIMST due to deteriorating health. It is also pointed out that BMV is a specialized invasive procedure which is to be done by a competent and qualified interventional cardiologist and for performing BMV special training and experience is required as stated by PW3. It is alleged that in the instant case the same was done in the workshop by unqualified and inexperienced persons. It is pointed out that RW1 has admitted in the cross examination that the injury was caused as the guide wire touched left ventricle wall. The same could have been avoided had it been done by properly experienced persons. It is also pointed out there was a delay of more than 20 minutes in commencing and conducting the open heart surgery as the cath lab in which the BMV was done was situated in another floor and the thoracic surgery theatre in another floor. The delay resulted in hypoxic ischemic encephalopathy. PW3 has specifically deposed that the cardiac surgery operation theatre should be kept ready as standby and the cardiac surgeon duly alerted to immediately attend the patient in the event of complication. It is pointed out that there is nothing in Ext.B1 case sheet that would show that the thoracic surgery operation theatre was on the standby mode. RW2 the surgeon who conducting the open heart surgery has admitted that the same is not mentioned in Ext.B1. It is the fact and also admitted by RW2 in the cross examination that if supply of oxygenated blood is not there for about 10 to 15 minutes or more irreversible brain damage will occur and that the same is noted in all standard books. PW3 has also testified that in a normal person usually more than 10 minutes of lack of blood supply to the brain would render him brain death. It is mentioned in E xt.B1 case sheet that the complication arose immediately and it is noted as post BMV tear on left ventricle and that the procedure was stopped half way (Ext.B1 at PP 6, 14, 16, 61, 62 and 65 and para 11 and para 13 of the version of the opposite party). It is also alleged that the genuineness and authenticity of Ext.B1 case sheet is suspected. The late production of the same is highlighted. 9. On the other hand, it is contended by SCTIMST that the deceased was examined by the doctors on 30.5.97 and diagnosed to have to severe mitral stenosis. According to them the complication that arose during the BMV is a probable one which may occur rarely. According to them the operation was first successful and the patient had stabilised, but unfortunately the patient died after 8 days of operation. Attempts were made to repair the left ventricle lateral wall rent. The same was not successful and the bleeding was stopped through surgical intervention and the patient was stabilised and her BP was normalised. Whatever possible was done and immediate attention was given. BMV was done in a well equipped cath lab in the second floor and the operation theatre is just above the lab in the third floor and the patient was shifted to the operation theatre by lift immediately. According to the patient’s survival for 8 days has clearly shown that the operation was successful. She was not healthy or energetic and she was referred to the institute due to her deteriorating health. It is pointed out that only rarely such complication used to occur. BMV and Closed Mitral Valvuloplasty (CMV) are the procedures used to be done for the narrowed mitral valve. BMV is done on a conscious patient under local anesthesia and catheters and needles are introduced in to the beating heart from the vein in the leg. It is pointed out that the movement of the needle is done under x-ray guidance. The procedure is done inside the heart and injury occurred during the procedure. The procedure was done by doctors who are trained and experienced. It is pointed out that the requirements needed for valvulo plasty in the cath lab and the requirements of the operation theatre for performing open heart surgery are entirely different. It is stressed that brain death can occur if blood supply is stopped for more than 4 to 10 minutes for a person who suffers cardiac arrest in a community setting. But not for a promptly managed patient in a hospital cath lab, where a variety of efforts were done to maintain the blood supply to the vital organs. 10. It is pointed out that PW3 the expert examined at the instance of the complainants themselves has admitted that all possible skill and care was rendered to the patient and that there is no evidence of any negligence that can be identified in the conduct of treatment. 11. It is the contention of the counsel for the complainant that it has been brought out from the evidence of RW1 that he was present when PW3 the expert was examined and that SCTIMST being a premier institution PW3 was over awed by the presence of RW1. 12. We find that with respect to the treatment rendered at SCTIMST the direct version of RWs 1 and 2 and Ext.B1 case sheet are the material and relevant evidence. There can be no dispute that BMV as such is a risky procedure in view of the fact that mitral valve is situated between the left atrium and left ventricle in the heart. The mitral valve allows blood to flow from the left atrium in to the left ventricle but prevents blood from flowing back into the atrium. Ventricular contraction in systole forces the blood against the valve, closing the two cusps and assuring the flow of blood from the ventricle into the aorta – (Mosby’s Medical Dictionary-2007 Edn.). Mitral stenosis occurs when the valve leaflets are diffusely thickened by fibrous tissue and/or calcific deposits, leading to narrowing at the apex of the funnel shaped valve – (Harrison’s Principles of Internal Medicine, Vol-II 16th Edn. P.1390). As evident from the literature on the topic of BMV percutaneous valvotomy as well as CMV involves considerable risk as the guide wire has to be negotiated in to the mitral valve in a beating heart. It is pointed out by PW3 the expert examined at the instance of the complainants that even if the BMV is performed by an expert there cannot be a prediction of 100% success. All the same the opposite party has relied on statistics of BMV done at SCTIMST that failures are very rate. SCTIMST being a pioneering institution with respect to such procedures the contention that RW1 and Dr.Nageswar Rao who performed BMV are juniors in the field cannot be approved as such. Dr.Nageswar Rao who is junior to RW1 is an MD, DM in Cardiology and has underwent one year fellowship training, is the version of RW1. According to RW1 he has performed about 250 such procedures from 1994 onwards. Of course he was examined in June 2006 whereas the BMV in the instant case was done on 18..7..1997. Still we find that the expertise of RW1 and Dr.Nageswar Rao in this regard cannot be ruled out. RW1 has explained in detail as to the procedure of BMV done in the case of deceased. His version that BMV is less invasive than CMV and that BMV is preferred appears correct in the light of literature produced on the subject – (See Harrison’s, op.cit at page 1392 and the New England Journal of Medicine, Vol.III (1) No:15; International Journal of Cardiology 62 (1997) 19-22 etc produced by the SCTIMST). Hence the contention that the benefits of CMV was not explained and that the complainants could have opted for CMV has no relevance as risk is involved in both the procedures and BMV is treated as the advanced procedure. The version of RW1 that cardiac perforation tampanode is a complication expected of BMV and that it can happen while manipulating the catheter inside the continuously beating heart, cannot be disputed. The version of RW1 as to the successive stages of the procedure performed also has to be taken as proper as the expertise of RW1 in this regard has to be upheld. He has mentioned that the procedure started by 3.15.pm and it took about 120 minutes for serial manipulation of the appropriate catheters from the leg and to position them across the mitral valve to achieve the dilatation. He has stated that since the initial attempt was not successful, the 2nd attempt was also made when it was recognized that her clinical status was deteriorating. He has stated that the clinical condition, Fluoroscopy and Echo Cardiography suggested perforation of the heart leading to cardiac tampanode which was confirmed by pericardiocentesis. Aspiration of blood collected and re-transfusion was immediately initiated. As the blood pressure remained low, adequate external cardiac massage and artificial ventilator was initiated in order to prevent brain damage. Failure to improve necessitated shifting of the patient to the theatre for surgical repair of the wound in the heart. It is also stated that cardiac surgeons would be ready and will remain in station whenever BMV is done and until they are informed that the procedures are having no problem. He has also stated that facilities and sterility needed for cardiac catheterization under local anesthesia are totally different from the necessities for a major thorocotomy and hence cannot be practically amalgamated for several reasons. He has stated that at SCTIMST they have done so many BMVs in the cath lab, and the practice is to shift the patient to the operation theatre whenever required. As the clinical status of the patient did not improve satisfactorily on pericardiocentesis, auto transfusion, protaminisation and appropriate life supportive measures, arrangements were made for immediate surgical repair. Maximum possible life support assistance including intubation and ventilation were done and maintained through out transport of the patient to the surgical theatre. 13. We find that nothing has been brought out in the cross-examination of RW1 that it was on account of the delay of the shifting of the patient from the cath lab to the operation theatre that brain damage/Hypoxic Ischemic Encephalopathy has occurred. As pointed out by the counsel for the opposite party and as evident from the testimony of RW1 the delay in shifting said to be about 25 minutes even as per the case of the complainants, cannot be the cause for the brain damage or consequent death as the patient was under life supportive systems, blood re-transfusion and on ventilator. There is no expert evidence in this regard to doubt the genuineness of the version of RW1. Version of RW2 the surgeon who performed the thoracotomy/open heart surgery also support the above case of the opposite parties. He has stated that after the operation her sub systems including cardiac condition improved but she did not regain consciousness even the next morning and subsequently started having seizures and neurological opinion was sought. On advise of neurologist specified medication were administered. He has also stated that he could find that at the cath lab the required initial management was done. In view of the evidence of RWs1 and 2 which is documented vide Ext.B1 which stands not contradicted by the version of PW3 the expert examined by the complainant we find that the complainants have not succeeded in establishing that proper skill and care was not provided or that CMV ought to have preferred or that cathlab and the operation theatre should have been in the same compartment or adjacent or that it was on account of the delay in performing the open heart surgery that resulted in the fatality 14. On the other hand, the other contention of the complainants that there was no proper informed consent obtained for conducting BMV in the workshop organized by SCTIMST, call for serious consideration. It is the case of the complainants mentioned in Ext.A10 lawyer notice as well as in the complaint that they were not informed as to the fact that the BMV would be conducted at the workshop and that on coming to know that the BMV is to be conducted in the workshop they objected to the same but they were assured that the procedure is a routine operation and eminent experts and many doctors from different parts were attending the said workshop and there was nothing to worry. It is their case that by over simplification of the entire matter, consent was managed and manipulated to be obtained for the said operation. The above is the consistent case in Ext.B10 notice issued by the complaint and in the version of PW1 the 1st complainant/husband of the deceased and that of PW2 the son-in-law who has signed the consent form. It is at pages, 122 and 123 of Ext.B1 that the consent forms are seen signed by PW2. At page 122 is the consent with respect to the BMV and at page 123 is the consent, also signed by PW2 with respect to exploratory thoracotomy. At page 122 consent there is nothing to show the consent was given to perform BMV at the workshop. The opposite parties have relied on the copy of the letter at page 153 of Ext.B1. It is the letter dated:21..6..1997 addressed to the deceased directing her to get admission for BMV on 9..7..1997 at 8 am and mentioning that the appropriate expenditure would be Rs.70,000/-. The above is a type written letter signed by Dr.Bimal Francis. The name of the deceased etc are hand written. Therein it is written on the left side below the signature etc with a different pen dated:16/7 as BMV workshop. There is nothing to show that the above writing was contained in the original addressed to the deceased. Evidently there cannot be such writing as the writing is dated:16/7 and the letter is dated:21/6. It is also noted therein - please contact Dr.Francis. It was not Dr.Francis who performed the BMV. Dr.Francis was also not examined. The version that the complainants were made aware that the BMV would be done at the workshop is not supported by any evidence.Of course, the complainants have not concealed the fact that when they came to know that the BMV is to be conducted at the workshop they objected to the same and that they were made to agree stating that BMV is only a routine operation and that experts from different parts will be available and that the same will be beneficial to the patient and thus the consent was managed and manipulated byover simplificationoftheentirematter. The evidence would indicate that it is only on 18..7..1997 ie, the date of the procedure that they came to know about the fact that the BMV is to be done at the workshop. According to them the operation was scheduled to be conducted by Dr.Francis and a team of doctors. PW2 who signed the consent form and testified in this regard has not been cross-examined on the above point and nothing has been brought out to discredit the version of PW2 who is the signatory to the consent as well as that of PW1 who has also testified accordingly. In Ext.A11 the copy of the reply notice the case is that although the procedure was fixed to be done on 16..7..1997 at 8 am, the same was postponed as the workshop was to be conducted on 18..7..1997 and eminent doctors from various parts of the country in the subject matter of BMV would be participating and that the procedure was postponed to 18..7..1997 with the consent of her relatives. We find that practically there is no evidence in this regard that on 16..7..1997 or prior to that or subsequent to that date the relatives of the deceased were appraised of the above aspect and it was with their consent that BMV was postponed to 18..7..1997 and it was with their consent that the BMV was conducted at the workshop. 15. It is also to be noted that it is admitted that the BMV done on the deceased was an elective procedure meaning thereby that the situation was not that emergent although it was sought to be depicted that she required BMV inevitably. Further no details of the workshop conducted has been furnished ie, as to who all attended the workshop, the manner in which the BMV conducted on the deceased was made useful to the participants, whether the BMV proceedings was exhibited to the participants and as to how the services of the “eminent doctors from various parts of the country” were put to use at the workshop. Evidently the patient and the relatives would be reluctant to have any procedure conducted in the presence of persons other than the concerned medical staff required for the procedure. Apart from the aspect of the privacy involved the patient and the close relatives would be apprehensive that the workshop etc with a view to impart knowledge may get the procedure done by those who want to have experience in the matter. It is to be noted that the procedure involves the element of risk, in view of the fact that it is to be done in a beating heart. The Supreme Court in Samira Kohli vs Dr.Prabha Manchanda and Anr, 2008 (1)CPR 237 has discussed the entire aspects of the principles relating to consent and held that the doctors should not act in excess of consent even in good faith and for the benefit of the patient. It is only in extreme emergencies of imminent danger to the life or health of the patient and that the patient is admittedly incompetent (being unconscious) the exception on the basis of the principle of necessity is permissible. In other cases howsoever practical or convenient the reasons may be they are not relevant. It has been noticed that the inviolable nature of the patients’ right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not is treated as the most relevant and of atmost importance. The court has summarised the principles relating to consent that it should be real and valid, and his consent should be voluntarily, and his consent should be on the basis of adequate information concerning the nature of treatment/procedure, so that he knows what he is consenting to. Further “adequate information” should be furnished by the doctor who treats the patient which would enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not, although there is no need to explain remote or theoretical risks involved which may frighten or confuse the patient and result in refusal of consent for the necessary treatment. It has also been held that consent given for a specific treatment procedure would not to be valid for conducting some other treatment/procedure. In the instant case we find that there is no documentary evidence to show that the patient or her relatives were apprised of the fact that the procedure would be conducted at the workshop except at the 11th hour when the relatives of the patient came to know of the fact and protested. The evidence in this regard of PWs 1 and 2 stands not discredited. The version of PWS 1 and 2 and the averments that contained in the complaint and in the lawyer notice issued would show that they were pacified highlighting that BMV is only a routine procedure and that the presence of eminent experts from different parts of the country would help the patient but there was nothing to show that they had given their full consent. The plight of the relatives when the patient is about to be taken to the operation theatre or before that and also in view of the fact that the complainants are not the local persons but hailed from a far away place in the Kannur district has also to be taken in to consideration. There is nothing that restrained the opposite party from obtaining a proper consent consenting to have the BMV conducted in the workshop. It is the version of the opposite party is the failures in BMV as in the instant case are very rare. The case that the secrecy with respect to the procedure in the workshop would indicate that the failure of the BMV was mainly on account of the fact that it was conducted in the workshop cannot be brushed aside. Evidently the patient/close relatives have got the right to refuse or permit to have the procedure done in a workshop. We find that the opposite parties have failed to obtain a proper valid and informed consent to have the procedure done in the workshop. 16. It was also contended that the fact that the opposite parties returned the entire amount of Rs.70000/- is an admission of the mistake on their part while subjecting the deceased to undergo the BMV at the workshop. It is the explanation of the opposite parties that the costly consumable were not used and hence the amount refunded. It is pointed out that at page 131 of Ext.B1 dated 21.7.97 there is an entry that costly drugs were given. But at page 132 dated 28.7.97 it is noted, that no chargeable costly consumables were used from the stock during the procedure and hence it is recommended that the entire charges may be waived and the same is submitted to the Director. At page 129 of Ext.B1 is a requisition by PW2 requesting to settle the accounts and send the balance amount in the address of PW1. The same is dated 26.7.97. At page 135 of Ext.B1 dated 28.7.97 is a piece of paper wherein it is written that the operation and hospitalization charges comes to Rs.19,483/- and as no consumable was used from the institute the whole amount can be refunded as recommended. The same is seen noted as approved and signed on 21.7.97. It is mentioned in the argument notes of the opposite parties that the cost of the balloon used for the procedure was taken from the special funds allotted for the workshop. We find that there is nothing to show that the patient or her relatives were informed that the BMV if done in the workshop would cost less. All the same we find that the above aspect cannot be taken as a fact that weigh in favour of the complainants in view of the fact that SCTIMST is a premier institution in the State; and there is no reason as to why their version is to be turned down. 17. We have already found that there is deficiency in service on the part of the SCTIMST as no specific consent for conducting the procedure in the workshop was obtained. The complainant has claimed a sum of Rs.10,00000/- as compensation. The fact that the deceased was aged 47 at the time of undergoing the procedure stands not disputed. Of course, no objective evidence as to the age of the deceased has been produced. The entire medical records produced mention the age as 47 and hence we treat the age of the deceased as around and above 47. The first complainant died on 24.9.03 as per the death certificate produced. The date of death of his wife after undergoing BMV is 26.7.97. Hence the first complainant died after 6 years of the death of his wife. We find that a sum of Rs.25000/- would be reasonable towards the loss of consortium. The deceased died after 8 days of undergoing the procedure ie BMV and the open heart surgery. A sum of Rs.25000/- towards pain and sufferings undergone by the deceased appears reasonable. Complainants 2 to 5 the grown up children of the deceased are all females. A sum of Rs.25000/- towards loss of love and affection is awarded. The evidence is that the deceased was a housewife. Hence the loss of earning on a notional basis is taken as Rs.1500/- per month excluding the personal expenses. A multiplier of 12 can be taken. Hence the loss of earning would workout to Rs.2,16,000/. Towards the expenses incurred for the by standers to stay at Thiruvananthpauram from the date of admission on 16.7.99 and the date of death ie, 26.7.97 and the expenses for taking the body to their native place at Kannur, a sum of Rs.1oooo/- is awarded. Altogether the complainants would be entitled for a sum of Rs.3,01,000/-. The opposite parties would be liable to pay the above amount with interest at 10% from the date of complaint ie from 26.7.99. The opposite parties are directed to deposit the amount within 3 months from the date of receipt on this order failing which the amount will carry interest at 15 %. The opposite parties would also be liable to pay cost of Rs.5000/-. In the result the OP is allowed accordingly. JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER R.AV O.P.NO.89/1999 APPENDIX Exhibits for Complainants Ext.A1 – 30.05.07 Copy of Bill for Registration Ext.A2 – 30.05.97 Copy of Bill for Rs.440/- Ext.A3 – 30.05.97 Copy of prescription slip Ext.A4 – 30.06.97 Copy of letter Ext.A5 – 16.07.97 Copy of Bill for Rs.585/- Ext.A6 – 16.07.97 Copy of Bill for Rs.340/- Ext.A7 – 26.07.97 Copy of Medical Notification of death Part-1 Ext.A8(a) - 04.08.97 Copy of letter Ext.A8(b) - 07.08.97 Copy of D.D. for Rs.70,000/- Ext.A9(a) - 07.07.99 Copy of Acknowldgement Ext.A9(b) - Copy of Acknowldgement Ext.A9(c) - 03.07.99 Copy of Adv.Notice Ext.A10 – 12.07.99 Copy of reply letter Ext.A11 – Copy of Adv.letter with Postal Receipt & Ack.Card. Witness for Complainants:- PW1 – 25.10.01 Kunhikrishnan Nambiar PW2 – 14.12.01 C.V.Thilac raj PW3 – 13.05.06 Dr.Murali.P.Vettath. Exhibits for Opposite Party:- Ext.B1 – Original case sheet of Smt.Chandramathy.N.C Witness for Opposite Party:- RW1 – 22.06.06 Dr.S.Sivasankaran RW2 – 22.06.06 Dr.M.Unnikrishnan JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER R.AV
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.M.A.ABDULLA SONA | | 
