JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

The complainants are the parents of the deceased Vijaya kumar 28 years who underwent treatment at the opposite party Sree Chithira Thirunal Institute of Medical Sciences and Technology, Thiruvananthapuram (hereinafter to be mentioned as SCTIMST) and he died on 11.2.1990 at the ICU of the above hospital.   He was admitted at the hospital on 9.1.90 for treatment of CSF Rhinorrhea.  It is alleged that after taking CT scan on 16.1.90 the doctors told that the condition of their son was quite stable and safe and hence the surgery as planned earlier was not required.  He was under routine medication till the 26^th after admitted as an inpatient on 9.1.90.  On 27.1.90 the complainants were told that their son was undergoing operation to arrest the leakage from the nostrils.  The complainants were shocked as the operation was carried out without any intimation and without obtaining the requisite specific consent.  It is alleged that the surgery was conducted in ugly haste.  There was no need for any abrupt surgery.  The enquiries made by the complainants as to the urgency of the surgery was not properly answered.  It is alleged that death within 15 days of a relatively minor surgery was on account of the gross carelessness and negligence in conducting the surgery and the very poor post operative care and the wrong way of treatment. The negligence is evident from the treatment records and medical prescriptions.  It is also alleged that the instance of their son was not the only tragic death of a patient in the Institute.  Such instances are suppressed and manipulated with the high influence and the immunity being enjoyed by SCTIMST.  It is stated that the complainants were dependant on the income to their son who was working as a Watch Repairer and Electrician and was having an income of Rs.1500/- per month.  The deceased was perfectly healthy and he would have lived up to 85 years atleast.  Complainants have claimed a sum of Rs.10.lakhs as compensation.

2.      Opposite parties 1 and 2 the Director and the Medical Superintendent of SCTIMST respectively have filed a joint version pointing out that the primary object of the Institute is advanced studies in specialties and that the hospital is only a part of that object.  It is stated that the above Institute is an Institution of National importance.  The Institute provides facilities for research in various branches of Modern Medicine and Allied Sciences including Physical and Biological Sciences.  Further the Institute offers free hospitalization to the poor and subsidized care for the middle income groups.  It is stated that the deceased was referred to the Institute by Dr.Anand Kumar Neurologist, Medical College as per reference letter dated:7.10.89 with the history of CST Rhinorrhea with past history of recurrent meningitis.  He was seen in the OP Department and as advised a CT scan was done on 16.11.89 and was advised admission on 9.1.90.  He was admitted on 9.1.90.  After admission CSF Rhinorrhea continued to persist and lumbar puncture CSF study was done to exclude Meningitis and meningitis was excluded.  The patient was operated on 27.1.90.   Bifrontal craniotomy and repair of CSF leak was done.  During the post operative period, the patient developed fulminent meningitis and died on 16.11.89, on the 16^th post operative day, inspite of aggressive antibiotic therapy.  After the CT scan done on 16.11.89 the complainants were told that the patient required a surgery.  The elective and planned surgery was done on 27.1.90.  The doctors of the Institute have explained the condition of the patient from time to time and also the possible risk of the operation before and after and obtained necessary consent from the complainants at the time of admission and before operation.  Before the surgery the relatives were made to see him and were explained of the procedure to be done.  It is denied that the operation was done without consent.  The possible risks were also explained to the complainants.  The complaint has been filed after a lapse of 2 years.  The complaint is only an after thought and purely experimental for obtaining unlawful gain.  The best treatment was given to the patient with utmost care and caution.  The standard, accepted medical care was rendered to the patient.  It is further stated that the whole case record in original was found missing for quite a long time.  On a fine morning the case record was found on the floor of the medical records room.  When scrutinized it was found that the recorded consent for the procedure, death certificate etc are missing.  This is duly documented.  The missing of the record was notified on the notice board on 28.8.90 and 26.7.91.  Even though the consent was missing, in the other records kept by the Institute it was clearly recorded that the consent letters were obtained before the procedure.  At the time of admission itself on 9.1.90 consent was obtained for doing any procedure.  Further specific consent was taken before the surgery and it is evident from the bill dated:13.2.90 which was paid by the complainants mainly for surgery.  The opposite parties have denied the entire allegations made in the complaint.

3.      The 3^rd opposite party Neuro Surgeon remained absent.

4.      The evidence adduced consisted of the testimony of PWs 1and 2, RWs 1 to 3 Exts.A1 to A4 and B1 to B4.

5.      The complaint originally taken into file as OP.32/92 was dismissed by this Commission as per order dated:3.6.92 on the ground that it is not mentioned in the complaint as to which doctor conducted the operation except the general statement that the hospital staff was responsible for the death.  It has also observed that it will be more proper to leave the complainant to try his charge in a fresh suit.  Thereupon the complainants instituted OP.295/92 which was also dismissed by this Commission as per order dated;1.2.94 on the ground that the complainants cannot again approach this Commission on an identical cause of action for relief upholding the preliminary objection raised by the opposite parties.  The National Commission in A.593/94 dated:5.9.2000 set aside the above order of this Commission and held that as the previous order had permitted the complainants to file a fresh suit the present proceedings are to be treated as the proceedings envisaged as fresh suit; and the case was remanded back to the State Commission.  The opposite parties took up the matter before the Supreme Court by Special Leave Petition.  The Supreme Court declined Special Leave to Appeal vide order in Civil CC.3525/01 dated:10.5.2001.  It was thereafter that the matter was tried before this Commission.  As per order dated:31.3.05 this Commission dismissed the complaint vide a detailed order.  On appeal filed by the complainants as Appeal No.231/05 the National Commission as per order dated:15.2.2010 set aside the order of this Commission and permitted the complainants to adduce expert evidence.  The National Commission further directed to consider the matter afresh without being influenced by any observations made in the earlier order of the State Commission or in the order of the National Commission.

6.      It is after remand by the National Commission that PW2, Professor, Neuro Surgery, Medical College, Thiruvananthapuram was examined.  After examining the above witness the counsel who was appearing for the complainants relinquished Vakalath and amicus curiae was appointed by this commission for presenting the case of the complainants.

7.      The contention that the complaint has been filed after a period of 2 years is with respect to the present complaint.  The earlier complaint OP.32/92 was dismissed on 3.6.92 and it is as permitted in the above order the present complaint has been filed.  We find that the above contention has no relevance right now ie, after 2 decades; and the issue is not seen mentioned in the evidence of RW1 also.

8.      The records would disclose that the deceased was referred to SCTIMST from Medical College Hospital, Thiruvananthapuram by Dr.Anand Kumar, Neuro Surgeon on 7.10.89.  As per the above reference he was having CSF Rhinorrhea of 2 years duration and had 2 episodes of meningitis, one in February 1988 and the 2^nd in September 1989.  There was no history of trauma.  He was under OP treatment at SCTIMST from 11.10.89 onwards.  On 16.11.89, CT scan of the head was taken and was advised to get admitted on 9.1.90. The CT scan done could not detect the site of leak.  There was no hydrocephalus.  On 14.1.1990 fasting lumbar puncture was done to exclude meningitis.  On 27.1.90 ie after 18 days of admission surgery ie Frontal Craniotomy Repair of CSF leak was done under GA.  It is seen from Ext.X1 case sheet that on most of the days prior to the admission he was having CSF leak and at times CSF leak + and headache.  It is noted as a case of spontaneous CSF Rhinohrrea.  The pre-operative assessment was done on 26.1.90 vide the progress record in Ext.B1.  There was no loss of smell or visual complaints etc or limb weakness or censorial complaints.  He had a complaint of dysuria after admission and one episode of fever.  The surgical team consisted of Dr.R.S.Diwanji, Dr.R.Sharma, anesthetists Dr.Mrs.Rout and nurse Elizebath.  Surgery done is noted in detail.  Thereafter the post operative period up to 1.2.90 was uneventful.  On 1.2.90 meningial irritation was noticed and there was also CSF leak.  Neck rigidity and kernig’s sign was also noticed and antibiotics started.  On the next day fasting LP was done.  The other required tests were also done.  The CSF cytology showed meningitis.  He was put on ventilator.  Subsequently the condition deteriorated and he died on 11.2.90 at 3.45.pm.  The possible cause of death is mentioned in the case summary and discharge record as fulminent meningitis with Neurogenic Pulmonary Oedema in an operated case of CSF Rhinorrhea.

9.      As to the nature of the particular illness the authorities are to the effect that spontaneous Cerebral Spinal Fluid Leak Syndrome is a medical condition in which the Cerebral Spinal Fluid held in and around a human brain and spinal cord leaks out of the surrounding protective sac, and the dura for no apparent reason.  The dura a tough inflexible tissue is the outer most of the 3 layers of the meninges.  A spontaneous CSF leak as opposed to traumatically caused CSF leak arises idophathically ie,without a known cause.  It afflicts 5 out of every 1.lakh people, it is stated.   It can be due to an underlying connective tissue disorder effecting the spinal dura and other reasons.  It implies an abnormal communication between the sub arachnoid space and the nasal cavity or tympano mastoid space.   Such drainage can be a dangerous and potentially life threatening occurrence.  The risk of meningitis is very high.  Meningitis could be life threatening because of the inflammation’s proximity to the brain and spinal cord and therefore the condition is classified as a medical emergency.  Persistent CSF fistula needs surgical closure because of the ever present risk of meningitis and brain abscess.  Recurrence of Rhinorrhea is an indication for surgery as once meningitis sets in it may be antibiotic-resistant or so virulent that a fatality may occur.

(B. Ramamurthi and P.N. Tandon, Text book of Neurosurgery, Vol. I etc)

10.    This contention of the complainant is that in the instant case the surgery performed was an unwanted one and further being an elective surgery as admitted by the opposite parties the procedure should not have been done in a hasty manner without informing the complainants and without taking informed consent.  It is specifically alleged that no informed consent for the surgery was taken.  It is further alleged that no proper pre-surgical assessment was made.  Another point stressed at the time of hearing is that no CT scan was taken immediately prior to the surgery which alone would have identified the site of leak so that place could have been closed.  It was also argued that the deceased was not having Hepatitis-B and the reference in the case sheet with reference to Hepatitis-B is with respect to another patient-another Vijaya kumar.  It was pointed out that there was confusion with respect to the case sheet of another person of the same name and hence the son of the complainants was hastily made to undergo surgery on 27.1.90.  It was highlighted as deficiency in service that the case sheet did not contain the signed consent form and that the case of the opposite parties that the case sheet was missing is false and that a number of pages from the case sheet has been removed to facilitate fabrication.  Inspite of applying for the copy of medical records, non supply of the same also amounted to deficiency, it is alleged.

11.    It is seen from the operation record that there was no obvious defect in the anterior cranial fossa.  But the openings in the cribri form plate were large.  A bifrontal craniotomy was done.  Both frontal sinuses were opened to get to the base.   By a combined intra dural, extra dural approach the crista galli was nibbled.  Cribri form plate was filled with wax and then a layer of muscle was placed.  A patch of pericranium graft was stitched all round the opening in the dura created in lifting it off the cribri form plate.  The dura was closed completely.  It is also noted that as no clear cut defect was identified there is a chance of CSF leak persisting.  As noted above after 4 days the CSF leak re-appeared and the same developed into meningitis which resulted in death.  PW1, the Neurosurgeon has stated that mortality rate after surgery is 5 to 28% which is not disputed.

12.    The contention is that surgery was not required and that the patient was having considerable progress and that the surgery ought to have been avoided especially as the place of leak was not identified.  The counsel for the complainants has relied on in this regard the literature unloaded from the net wherein it is mentioned that surgical repair is indicated for patients who do not respond to effective conservative options.  It is mentioned therein that surgical repair is indicated for patients who has traumatic CSF leaks associated with extensive intra cranial injury and also for patients whose CSF leak is identified intra operatively.  We find that the evidence of PW2, Dr.Anil Peethambaran the expert examined at the instance of the complainant who is the Professor of Neuro Surgery, Medical College Hospital, Thiruvananthapuram is to the effect that in the instant case surgery was the only option as the complainant had 2 episodes of meningitis ie, a full blown pyogenic meningitis in February 1988 and another attack of meningitis in September 1989 vide the inpatient record in Ext.B1 and the CSF leak was recurrent.  The modern facilities include the endoscopic method for detecting the site of leak with the help of an endoscope through the nose and sealing the site of leak with fat and Fibrin Glue.  He has also stated that the above methods are being employed within the last 10 years only.  The evidence of RW1, Dr.Suresh Nair the Professor of Neuro Surgery of SCTIMST is also to the same effect.  It has also to be noted that the particular surgery was performed in the year 1990 ie 2 decades back and it was also pointed out that the case of the complainant was referred to SCTIMST by the Neuro Surgeon of the Medical College Hospital only after the conservative treatment options failed.  The perfection of the surgical methods then executed cannot be examined with a 2012 spectacle.  Both PW2 and DW1 have stated that it is only with a high resolution CT scan or endoscope site of leak could be detected and that the same was not available during the relevant period.  Hence we find that in view of the above scenario the contention that the surgery was not required in the instant case stands not established.

13.    The contention that the surgery was done in a hasty manner is also not supported by the evidence adduced.  As already point out since the date of admission on almost all days the patient was having CSF leak.  The above condition is extremely vulnerable as due to a communication to the outside atmosphere the cerebro spinal fluid can be infected by bacterial, viral or fungal attacks and result in meningitis.  It is also evident that the surgery can be performed only after excluding the existence of meningitis.  As already noted CSF study by LP was done after admission but no CT was done.  In this regard there is dispute as the complainants have alleged that CT was done on 16.1.90.  The same is denied by the opposite parties.   Whatever be the same after admission on 9.1.90 the surgery done on 27.1.90 cannot be said to be hasty as the deceased was an inpatient for 18 days prior to the surgery and was on observation as OP since 11.10.89 and on medicines and undergoing tests. No evidence is forthcoming also as to the allegation that there was negligence in the Post Operative care provided.

 14.   There was no informed consent preceding surgery is the  other contention raised to sustain the deficiency in service and negligence alleged.  PW1, the complainant has testified that only on 27.1.90 the date of surgery he was informed (telephonically) that the surgery is to be done on that day. Of course a general consent for undergoing treatment, investigations and surgery if required was taken at the time of admission on 9.1.90.  RW1, the Neuro Surgeon has also testified at page 20 of his deposition that at the time of admission only a general consent was taken.  Further the complainant had alleged specifically in Ext.A1 letter dated:13.12.90 sent to the Chairman of SCTIMST that inspite of the fact that the surgery was an elective one, consent was not taken and further the discussion for which he was called after the death of his son could not convince him in this regard.  He was called by opposite parties allegedly consequent to Ext.A9 complaint sent by him to the Prime Minister wherein also the absence of consent to the surgery was alleged.  In Ext.A10 letter written by the opposite parties to the complainant dated:6.12.90 he has been reminded that on 15.11.90 the authorities had a frank discussion with him on the whole issue in the presence of Dr.Rajeev Sharma, OP3 who operated on his son. It is mentioned in Ext.A10 that Dr.Rajeev Sharma had clarified all doubts including the consent given by him for surgery and that he has also recollected having given the consent.  It was alleged in Ext.A9 letter to the Prime Minister that the surgery was done in a hasty manner without obtaining consent and that the surgery was done hastily only to satisfy the academic interests of some Physicians and Surgeons of SCTIMST.  RW1, the Neuro Surgeon has testified that the consent was taken on 25.1.90 and that it is recorded in the nurse’s record and that the consent was taken by Dr.Rajeev Sharma who was one of the operating Surgeons.  RW1 has also explained the usual method of taking consent at page 22 and 23 of his deposition that on the previous day of surgery the concerned Surgeon will explain the details of the surgery with attendant risks and possible complications and after that only consent would be taken.  He has also stated that before the patient is taken inside the premises of the theatre complex the theatre nurse also will check whether consent has been obtained or not.  In the instant case the consent form allegedly signed by the 1^st complainant is missing from the case sheet.  In the operation record contained in the case sheet, one Elizebath is mentioned as the nurse who attended. She was not examined.  In Ext.B1 case sheet it is seen that on 24.1.90 as having directed to take consent.  On 26.1.90 at 7.30 pm it is mentioned consent taken for surgery on the next day.  On 24.1.90 it is mentioned to take written consent and prepare for surgery on 25.1.90.  It is also written subsequently on the side of the column as cancelled.  It is thereafter on 25.1.90 it is written as “prepare for surgery on 27.1.90” and again “take written consent”.  RW2, the Senior Medical Records Officer of SCTIMST has also testified that the nurse at the operation theatre will also verify as to whether consent was taken.  As could be seen the evidence of RW2 as to the discussion the authorities had with the complainant/PW1 as to the alleged mis-understanding with respect to taking consent is not in tune with the version of RW1 and the statement contained in Ext.A10 letter.  RW2 at page 14 of his deposition has stated that the complainant was sent to him by the Medical Superintendent on 15.11.90 and he took him to Professor Dr.Rout (HOD, Department of Neuro Surgery) for clearing his doubts about the treatment and consent and they had a discussion with Dr.Rajeev Sharma who did the surgery and he clarified the doubt.  PW1 was having about the informed consent.  RW2 has stated that the patient’s father agreed that his signature was obtained when he was sitting in a Veranda of the ward speaking in English and Hindi.  The version of RW1 and the statement in Ext.A10 letter would indicate that the complainant was explained as to the possible risks and complications of the surgery etc and the nature of surgery.  It is unlikely that Dr.Rajeev Sharma have gone to the Veranda and explained and got the consent form signed.  It has also to be noted that Dr.Rajeev Sharma was not examined.  Perhaps he might have left the SCTIMST.  The above version of RW2 that the consent was taken from at the Veranda did not support the case of the opposite parties with respect to the consent allegedly taken.  It has also to be noted that Dr.Rout was also not examined.  Hence  we find that the entire evidence adduced in this regard would not establish the case of the opposite parties that informed consent was taken on 26.1.90 as the evidence in this regard contains the loopholes mentioned above and also as the singed consent is missing from the case sheet.

15.    Another contention seriously urged by the complainant is that his son was not having Hepatitis-B.  According to the opposite parties it is for the above reason that the surgery was postponed to 27.1.90 which is a Saturday so that the operation theatre can be fumigated and closed for 24 hours. It is stated by RW1that  it is recorded when the blood test was conducted on 15.8.89 at Medical College Hospital ie 5 months before the surgery that he was found to be having infective hepatitis Australia Antigen positive.  The date of test is not mentioned (RW1 has stated in this regard at pages 43 to 48 of his deposition) as could be seen in Ext.B1. It is admitted by RW1 that  page 1 of the above blood test report is missing from the case sheet and only the 2^nd page is seen.  As pointed out above, there is nothing to indicate in the above page that it is with respect to the deceased as the first page wherein the name would be written is missing.  The complainant has got a strong contention that the same is with respect to some other Vijayakumar and that the complainant’s son was operated upon under the impression that he is the above Vijaya kumar having Hepatitis-B.  It is admitted by RW1 that no blood test with respect to Hepatitis-B was conducted at SCTIMST.  He has also stated that there is no signature in the part of the blood test report contained in Ext.B1 and hence he cannot also say as to who conducted the test. Admittedly the patient was seen in the OP Department of SCTIMST on 11.10.89 only whereas the date of test at Medical College Hospital is 15.8.89.  It is also admitted that in the reference letter by Dr.Anand Kumar of Medical College Hospital who referred the patient also there is no mention of Hepatitis-B.  According to RW1 it is not necessary to conduct another test for Hepatitis-B as it was already found to be positive.  The above is somewhat unconvincing, considering the seriousness of the above illness.  He has also stated that nowhere in the case sheet there is any reference to Hepatitis-B except the part of the test report of the Medical College Hospital mentioned above.  It is admitted by RW1 that more than 25 times biomedical examinations were done with respect to the patient at SCTIMST and there is no indication therein as to the above infection.  He has also admitted that in the pre-operation assessment (done on 26.1.90) also there is no mention about the deceased having Hepatitis-B. In Ext.B1 case sheet no medicines are seen administered for Hepatitis-B.  In the operation notes as well as in Ext.A1 case summary and discharge record also there is no mention about Hepatitis-B.

16.    RW2 has stated at page 20 and 21 of his deposition that the test report with respect to Hepatitis-B has not been received at the Medical Records Department (MRD).  According to him the patient or his relative might have given the same to the doctor or nurse in the ward and so they have kept it in the out patient record and not in the inpatient record.  We find that the above discrepancy in the evidence of the opposite parties with respect to Hepatitis-B that the patient was allegedly having appears to be a serious anomaly that has not been explained properly.  The above certainly constitute deficiency on the part of the opposite parties.

17.    The failure to take CT scan immediately prior to the surgery, so that the site of leak could be detected was also alleged as a serious deficiency.  In this regard, the allegation of the complainants is also that vide Ext.A3 bill dated:16.1.90 PW1 had remitted Rs.300/- for CT scan.  The result of the above CT scan is admittedly not recorded in Ext.B1 case sheet.  According to the complainant the above CT scan was not considered or looked into by the operating surgeons.  On the other hand, RW1, the Neuro Surgeon at pages 49 to 53 of his deposition has asserted that no CT scan was taken on 16.1.90 preceding surgery and that the only CT scan taken was the one dated:16.11.89 when the deceased was an out patient.  According to RW1, Ext.A3 bill dated:16.1.90 might be the payment for the CT scans taken on 16.11.89.  The above explanation appears unconvincing as on 16.11.89 the deceased was an out patient.  RW1 has admitted the entries in Ext.B1 dated:15.1.90 at 2 pm as “for CT scan tomorrow”.  It is seen noted in Ext.B1 in the doctor’s order’s form that at 7.pm on 15.1.90 as “informed the relatives about the CT scan”.  On 16.1.90 it is written at 1 pm as “waiting for CT scan today”.  On 16.1.90 at 7.pm it is mentioned as “CT film received”.  RW1 has asserted that what is seen written is CT film reviewed and not received.  The above explanation is clearly absurd in view of the preceding entries in Ext.B1.  In this regard also the allegation that it was the case sheet of somebody else that was relied to conduct surgery on the deceased is raised.  If it is the CT scan on 16.11.89 that was relied for the surgery the above scan was taken 2  months before the surgery.  It has also to be noted that on 18.1.90 in the doctor’s order’s form it is mentioned as Prov:- For surgery tomorrow.

18.    The above note stands not explained or put to RW1.  RW1 has specifically stated at page 61 of his deposition that the site of leak of CSF was not identified.  On 26.1.90 evening at 7.30 pm in the nurse’s record it is also noted as “had dinner”.  It is pointed that the person who undergoes surgery on the next day would not be having dinner on the previous day.   Of course the same was not put to RW1.  It is also pointed out that the name of RW1.  It stands not explained properly as to why the CT scan was not taken some what immediately preceding surgery as the authorities in this regard is to the effect that CT scan is required to identify the site of leak and without identifying the site of leak surgery is not done.  Of course RW1 has stated at page 29 of his deposition that at the time in 1989-90 only an old generation scanner was available and at the time SCTIMST was having only a 1983 scanner.  The inconsistencies and contradictions as pointed out above with respect to the absence of CT scan report inspite of payment made and the observations in Ext.B1 that CT film received etc stands not explained and amounts to deficiency.

            19.      The failure to produce the full case sheet is the other deficiency alleged on the part of the opposite parties.  Many pages of the case sheet and the consent form is missing from the case sheet.  At the time of evidence it is the case of the opposite parties that the case sheet was missing from the medical records department and the opposite parties have displayed Ext.B2 and B3 notices  dated 28.8.90 and 26.7.91 respectively on the notice board as to the missing of the case sheet and requesting to handover the same if any one comes across the above  chart of the particular patient. It was only on 23.11.92 that is after 2 years that the case sheet was found. Ext.B4 is the notice dated 30.11.92 displayed on the notice board mentioning that the above medical record has been found with some deficiencies among the records kept in the medical records department.  At the time of evidence and hearing the opposite parties have alleged that the above case sheet was stealthy removed by PW1 with the connivance of somebody in the Institute and replaced the same after removing certain important portions and papers.  As pointed out there is no such allegation in the version.  It has also to be noted that the version was filed only on 16.3.01 ie, about 9 years after the filing of the complaint.  The evidence of RW1, Neuro Surgeon and RW2 the Senior Medical Records Officer in charge of the medical records section and evidence of RW3 Dr.Balaraman Nair/ Pathologist/Retired Principal of Medical College, Thiruvananthapuram is that in 1990  RW3 informed Dr.Valiyathan, the Director of the Institute as to the incident that he had come across in the cafeteria  in the Medical College campus, that Dr.Udayakumaran Thampi, the Dental Surgeon working at the Dental Department of Medical College was  discussing with some other person about a case that happened at SCTIMST .  RW3 has stated that Dr.Valiyathan was his classmate and Dr.Udayakumaran Thampi was his friend.  According to RW3 after the other person left he enquired with Dr.Udayakumaran Thampi about the matter and noted down the name and number of the patient and telephoned  Dr.Valiyathan that a photocopy of the case sheet was seen outside the hospital.  After 2 days Dr.Valiyathan telephoned him and told that the case sheet of the particular patient was missing.  According to RW3 he also chastised Dr.Udayakumaran Thampi that he should not encourage such persons to tarnish the image of such a high insitution.  He has further stated that at the time of his deposition ie in 2003 Dr.Udayakumaran Thampi is no more.

          20.    RW2, Senior Medical Records Officer of SCTIMST has testified that the medical records at the above institution is kept in a very well arranged manner and the same has been computerized in 1986 and that the medical records department immediately on receipt of a case sheet they will see that the entire record is made up to date like TPR chart, informed consent, nurses record etc and will be properly indexed within one month.  He has also stated that nobody is permitted to examine the case sheet without permission. Even doctors and para medical staffs are not permitted to take out the medical records.

          21.    A number of inconsistencies in the evidence of RW2 is seen.  RW2 has stated at page 2 of his deposition that case records                                were seen missing from the hospital on 20.8.90 (sic,28.8.90).  At page 6 of his deposition he has stated the records were missing within one month of receipt of the record in the section.  The patient died on 11.2.90.  According to him the checking and adding of other papers to the medical record should be completed within one month.  He has specifically stated that up to 8.3.90 the above records were available.  He has also stated further that on 20.8.90 he was called by the Medical Superintendent and told about the missing record.  According to him the case record was taken away within one month by somebody.  According to him he has conducted an enquiry but could not fix responsibility and he wrote to the Medical Superintendent to intimate the police. The above reports were not produced.  It is pertinent to note that the incident at the cafeteria is not mentioned in the version although the same was filed much later.  It is not explained as to why no attempt was made to locate the person who gave photocopy of the case sheet to Dr.Udayakumaran Thampi and from which the name and number of the patient was noted down by RW3 at the time itself when RW3 telephoned the Director of the institute.  Steps could have been taken to the locate person and recover the case sheet.  The explanation of the counsel for the opposite parties that they did not want to further  harass.  PW1 who lost his son is not convincing.  It is also pertinent to note that in Ext.A10 letter to the complainant from the Institute dated 6.12.90 there is no mention about the missing case sheet or that case sheet is not available.  The counsel for the complainants has contented that Ext.B2 to B4 notices are only fabricated ones for the purposes of the case.  Another contradiction pointed out is with respect to the statements as to relocating the case sheet. RW2 has stated that the records were found lying on the floor without many important papers.  In the version also it is mentioned that the records were found on the floor of the medical records room. In Ext.B4   notice it is mentioned as having found among the records kept in the medical records department. The date of discussion the operating surgeon and the head of the department had with the complainant is mentioned as 15.11.90. As to how PW1 was made to realise that he has signed the consent form without the consent form, which was missing, is not explained.  In Ext.A10  letter also the fact of missing case record is not seen mentioned.  Evidently if the case of the opposite parties is correct twice the person could do mischiefs at the medical record section ie, remove the records and replace the same.  According to the evidence of RW2 the medical record department is a strictly and seriously   maintained one.  According to RW1 within 72 hours of the death or discharge of the patient the case sheet should be completed. If the version of the opposite parties is true the mischief was done by a person working in the particular department and the opposite parties could have located the person.  Evidently no effort in this regard was taken despite the fact that the complainants had taken up the matter before the Prime Minister, this Commission and the proceedings went up to the Supreme Court.  We find that the explanation of the opposite parties for the missing pages and documents from Ext.B1 case sheet is not convincing.  There is deficiency in service in this regard on the part of the opposite parties.

          22.    Failure to provide the copy of the case sheet despite Ext.A8 application for the same dated 23..2..90 also amounts to deficiency in service.  The opposite parties have not disputed the genuineness of Ext.A8 in the cross examination of PW1.  There is no reason as to why the case sheet is treated as a secret record.  Really there should be arrangements to see that the copy of the case sheet is provided to the patient at the time of discharge itself.

          23.    For the deficiencies in service mentioned above the complainants are liable to be compensated by the opposite parties. In fact, the Supreme Court has directed in Charan Singh Vs. Healing Touch Hospital, 2000(7) SCC 668 that compensation is to be awarded not only to recompense the consumer but also intended to make a qualitative change in the service provided.   We find that a sum of Rs.1,50,000/- on a global assessment is liable to be paid  by opposite parties 1 and 2 to the complainants. The opposite parties also would be liable to pay interest at 9% per annum from 21.12.’92 the date of complaint till payment.  The complainant will also be entitled to pay cost of Rs.20000/-(the complainant who is a very senior citizen, mentioned as aged 70 in the proof affidavit filed in 3.9.02, had to defend and agitate the matter more than once at the National Commission and conduct the litigation for about 2 decades).  The amounts are to be paid within 2 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 13.1.2012 the date of this order.   

          The OP is allowed as above.            

JUSTICE K.R. UDAYABHANU:  PRESIDENT

S.CHANDRAMOHAN NAIR  : MEMBER

                                       APPENDIX

COMPLAINANT’S WITNESS

PW1 : 29.5.2003 V.P.Neelakantan

PW2 : 18.9..10  Dr.Anilkumar Peethambaran

OPPOSITE PARTIES WITNESS

RW1 : 5.6.2003 Dr.Suresh Nair

RW2 : 12.6.03 Dr.Krishnamoorthia Pillai

RW3 : 13.6.03 Dr.M.Balaraman Nair

EXHIBITS FOR THE COMPLAINANT

Ext.A1        : 4.1.90 Death case summary and discharge record issued by the Sree Chithira Thirunal Institute for Medical Sciences and Technology, Medical College.P.O, TVPM to the patient Vijayakumar.

Ext.A2        : 5.1.90 Slip issued by the SCTIMST, TVPM.

Ext.A3        : 16.1.90 Receipt for scan

Ext.A4        : 3.2.90 Receipt

Ext.A5        : 8.2.90 Charge Account copy

Ext.A6        : 13.2.90 Inpatient treatment bill

Ext.A7        : 13.2.90 Inpatient treatment additional bill

Ext.A8        : 23.2.90 Application submitted by V.P.Neelakantan to the Medical Superintendent, SCTIMST, TVPM.

Ext.A9        : 13.7.90 Petition submitted by V.P.Neelakantan to the Prime Minister of India.

Ext.A10      : 6.12.90 Reply letter issued by SCTIMST, Tvpm to V.P.Neelakandan

Ext.A11      :13.12.90 Reply letter issued by V.P.Neelakandan to the Director of SCTIMST, Tvpm.

Ext.A12      : 3.7.91 Adv.R.Narendran sent a notice to the Director, SCTIMST, Tvpm.

Ext.A13      : 30.6.80  Pree Degree Certificate

Ext.A14      : 18.6.83 Technical Examination Certificate of Vijayakumar.N.

EXHIBITS FOR THE OPPOSITE PARTIES

Ext.B1        : Original case sheet submitted by the opposite party.

Ext.B1(a)    : Admission record attached to the case sheet of –do-

Ext.B1(b)   :    -do-    -do-

Ext.B2        : Photocopy of notice dt:28.8.90 issued by opposite party

Ext.B3        :26.7.91 Photocopy of notice

Ext.B4        :30.11.92 Photocopy of notice.

                           JUSTICE K.R. UDAYABHANU:  PRESIDENT

S.CHANDRAMOHAN NAIR  : MEMBER

VL.