SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint  seeking compensation for medical negligence, cost etc.

          The averments in the complaint can be briefly summarized as follows:

          The first complainant is the wife of the 2^nd complainant.   The 2^nd opp.party  was working under the first opp.party  hospital during the period of July, 2002.   Due to complaints of weakness of body and feeling of unhealthy condition the first complainant approached the 2^nd opp.party on 16.7.2002 who is the family Doctor.  On 16.7.2002  the 2^nd opp.party examined her and suggested her to get  admitted in the hospital  on the next day for a thorough check up.  Accordingly the first complainant was admitted in the first opp.party hospital as inpatient.  On admission  certain tests were  conducted and on the basis of the result the 2^nd opp.party advised to arrange for blood  transfusion.  It was also suggested that O-positive  blood may be arranged.   Accordingly the relative of the complainant one  Sunil having O-positive  blood group  has donated  blood on 18.7.2002 at about 11 a.m. on that day blood transfusion  was commenced  under the supervision of the 2^nd opp.party.  While the blood transfusion was going on  the first complainant developed shivering and head-ache which increased gradually.   The bystander of the complainant  reported  the same to the duty Doctor and the duty nurses stopped blood transfusion for the time  being.   Again  after one or two hours blood transfusion was  re-started and then also the first complainant developed the very same symptoms.  It was also noticed that the  supply of blood is being rejected .   Thereupon at about 2 p.m.  the blood transfusion  was again stopped.  After the 2^nd transfusion the complainant felt that   sight is of her left eye is   diminishing which was informed to the 2^nd opp.party.   The 2^nd opp.party informed that it is due to the weakness of the body and lack of blood.  Before the 5 p.m. on that day again blood transfusion was done.  At that time also the previous  complaint of severe head ache and shivering developed with diminishing  of the sight of right eye which was immediately reported to the duty doctor who came  there and  stopped  blood transfusion.   After the removal of the  drip blood stains were seen on the left eye  and gradually  the same increased  .  The same symptoms  were  also  noticed in the right eye which also gradually increased.  At about 9 p.m.  on 18.7.2002 the first complainant has lost her sight of both eyes.   During the period between 5 p.m., and 9 p.m.  on that  day   some injections were given in addition to certain tablets to the patient.  When the condition of the patient became serious  and she become blind completely at about 9.30 p.m.  the 2^nd opp.party came to the hospital and examined the patient and suggested for further treatment in Medical College Hospital, Thiruvananthapuram.   The 2^nd opp.party contacted his  son  over phone who was working in the Medical College Hospital, Thiruvananthapuram .  In the early morning  of 19.7.2002 a bill of Rs.906/- was issued by the first opp.party  hospital to the  patient which was remitted and she was discharged with request letter to the Medical College Hospital, Trivandrum .  When the complainant was taken to Medical College Hospital, Trivandrum  some strike  organized by House Surgeons  was going on and therefore  by the relatives of the complainant taken her  to  KIMS hospital, Thiruvananthapuram where she was admitted.. She had undergone treatment at KIMS Hospital till  22.7.2002.  The efforts of experts in the KIMS hospital could not restore the eye sight to the first complainant which was caused due to the negligence of the 2^nd opp.party.  On 23.7.2002  the first complainant was referred to RCC, Trivandrum  suspecting Blood Cancer [Luckamea]  and she was admitted as inpatient till she was discharged  on 12.8.2002.   Finally it was understood that  she has complaints of Blood cancer.   After discharge from RCC Trivandrum she was  taken  to Sankar Nethralayam at Madras for restoration of eye sight.  .  The concerned doctor after thorough examination  told that they are incapable of doing any treatment  to restore her eye sight.   Thereafter she was taken  Sree Dhareeyam Ayurvedic Gaveshana Kendram,Nellikkattu Mana, Koothattukulam in July, 2003.   Though the treatment there is   being continued even now there is no  scope  for restoring the lost   eye sight.  The eye sight of the first complainant was lost due to the negligence  of the 2^nd opp.party  in treating her without proper  care and caution which is deficiency in service and medical negligence on the part of the opp.party.   The complainant had  incurred an expenditure of Rs. 4,156/-   at the   2^nd opp.party hospital  from 16.7.2002 to 19.7.2002.  A sum of Rs.40,000/- was spent  for the treatment at KIMS Hospital, Trivandrum.  A sum of Rs.89,000/- was spent for the treatment  at RCC,Trivandrum.   A sum of Rs.7000/- was spent at Sankar Nethralayam, Madras, Rs.1,00,000/- was spent  for the treatment at  Sreedhareeyam Ayurvedic Gaveshana Kendra.  A total sum of Rs.2,39,250/- had to be spent by the complainant’s  in this regard.  The   pecuniary loss sustained to the complainant  due to the loss of eye sight due to the negligence on the part of the opp.parties and they are liable to pay  compensation for the same.  Though it cannot be equated  in terms of money  for the sake of settlement  the complainant’s claim for damages  is limited to  Rs.6,00,000/- .  In addition   they are entitled to get the   expenditure incurred by them for treatment   amounting to Rs.2,39,250/-.  The first opp.party is  vicariously liable to pay to the above sum.

          The first opp.party filed written statement contending, interalia,  that the complaint is not maintainable either in law or on facts.  The 2^nd  opp.party has been serving as a consultant  for the first opp.party.   The 2^nd opp.party party is the family doctor of the complainant’s family.  On 16.7.2002  the first complainant came to opp.party  1 hospital to avail the  services of the 2^nd opp.party  with  the complaint  of general weakness and slight headache.   The 2^nd opp.party examined her  thoroughly and since her condition was severe anemic, the doctor advised for admission and ordered routine investigation.   After laboratory examination of her blood, it was found that the hemoglobin level was 4.5 gm% and hence she was advised to have blood transfusion immediately..  Since  no blood donor was available  at that time, the patient went back home agreeing to come on the next day   The next day the patient came  with  the donor one Mr. Sunil  whose blood was thoroughly examined and tested  for hemoglobin blood group and other tests .  On finding that  he was having +ve blood group and   a suitable  person for donating blood  his blood was cross matched with that of the first complainant and  blood was collected  from him under strict aseptic condition on 17.7.2002.   The blood  thus collected was given to the first complainant after administering Avil Injection, Dexona Injection, Injection Lasix at 1.15 p.m.  on 17.7.2002  under the supervision of nurses and duty doctor.   After one hour of the transfusion began   she developed vomiting sensation  for which Neomit injection  was given.   About two hours, after blood transfusion was started at about 3.30 p.m.  the patient developed slight shivering and immediately transfusion was stopped temporarily  and appropriate medicines was  given  to  treat shivering  At about5p.m.  temperature rose to 99º  F and at 6 pm 100.5 º  F.   The temperature was controlled with Paracetamol tablet and at 7.30 p.m.  temperature became normal..  Hence transfusion  was again started at 7.30 p.m. which is  the usual procedure. This time also the patient developed some shivering and temperature rose to 100º F.  Hence transfusion was  stopped  again and Paracetamol tablet and injection  Betnesol are administered to the patient and the shivering was controlled and temperature came down to normal.   The 2^nd opp.party on  informing about this  directed to stop transfusion and to give  appropriate  medicines and he immediately came to the hospital to see the patient.  At 9 p.m.  the 1^st complainant  did not have any complaints except some joint pains as noted by the duty Doctor.  There was no dimness or any  blood discoloration of the eyes.  On 18.7.2002 physician saw the patient   and has noted  that the temperature was normal with some headache and blood pressure 80/85 and Pulse rate 96/mt..  On the evening of 18.7.2002  at 9.30 p.m.  that is on the next day evening after blood transfusion the patient complained  of dimness of vision of the left eye.  This was informed to the 2^nd opp.party who immediately came to the hospital and advised early reference to the Medical College hospital, Trivandrum..   The first complainant was taken to Trivandrum on 19.7.2002 morning.  Instead of going to Medical College Hospital, she was taken  to KIMS Hospital, Trivandrum and said to have been treated there till 22.7.2002.  It is learnt that at KIMS hospital the eye specialist  had noted that she was having Endogenous Panuveitis of both eyes  with Glaucoma.  It is understood  that on 23.7.2002 the 1^st complainant was referred to RCC Hospital, Trivandrum to rule out Leukemia.   At RCC Hospital she was thoroughly investigated to find out  the cause of Anemia.  It is  learnt that they had also found out that she had bilateral Retinal Hemorrhage and vitreous Hemorrhage .  The MRI study of Brain and eyeballs had revealed Choreoretinitis with dislocation of lens on left side.  It is also reported to have found out a hyper intense focus in medulla of the spinal cord suspecting demyelination and also blood clotting of right transverse sigmoid sinus and in Jugular veins.  It is reported that cerebro spinal fluid aspirate showed that there was bleeding into  Cerebro Spinal Fluid.   She  was discharged from RCC on 12.8.2002  with a diagnosis of Myelodysplastic Syndrome which is a precursor of Leukemia.   The damage  to eyesight was not caused due to any negligence of the 2^nd opp.party.  The averment in para 12 of the complaint that it is finally understood that there is no complaint  of blood cancer is not admitted.   The allegation that the alleged loss of sight  took place due to ill treatment by the 2^nd opp.party without proper  care and caution while applying blood drip to the 1^st complainant is false and baseless and hence denied.  The 2^nd opp.party has taken all precautions and care during   transfusion of the blood The complainant have themselves admitted in para 7 of the complaint that the blood  drip  was started under the supervision of the 2^nd opp.party and that 2 nurses were on duty at the relevant time.   The allegation that the 2^nd opp.party did not conduct  any proper clinical tests to diagnose the disease before the treatment commenced and that had it been done the blindness of the patient  could not  have occurred is totally wrong and hence denied.   During the preliminary blood investigations it was revealed that the patient   had severe anemia  requiring blood transfusion.    The 2^nd opp.party promptly arranged compatible blood transfusion.   Subsequently new symptoms which the patient developed necessitated  her reference in the Medical College, Trivandrum and therefore detailed evaluation of the first complainant  for the cause of her anemia could not be done by the first opp.party.  Detailed evaluation of the cause of the anemia which  is time consuming was not the top priority at the time when the 2^nd opp.party saw the 1^st complainant since she had severe anemia of 4.5 gms % constituting a medical emergency requiring correction of blood transfusion.  The blood transfused in strict aseptic condition and there was no evidence of septicemia after transfusion to account for the inflammatory  condition of the eye ball.  There is no deficiency in service or medical negligence on the part of the opp.party.  At 1^st opp.party hospital the bill amounted to Rs.906/-  but the break up of Rs.3,250/-  stated in para 17 as alleged spent isnot clear.  The amount of Rs.40,000/-  allegedly spent at KIMS Hospital was possibly for the investigation of her blood condition in the major part and not for the treatment of the eye condition.   At RCC also  the major examination was  for  blood condition except for MRI examination of the eye.  The expenses at Sankar Netralaya , Madras and Sreedhareeya Ayurvedic Gaveshana Kendra,   are not clear and there is no documentary proof for any of these expenses. These expenses are incurred because of her eye condition caused by her peculiar blood picture  of Myelodysplastic Syndrome  and it is not due to blood transfusion.  The opp.parties are not liable to pay any compensation  to the complainant.  The blood transfusion has undoubted benefits but some adverse effects do occur inspite of all relevant laboratory tests and they are commonly called blood transfusion reactions.  Imposing of liability  on hospitals  and doctors for everything that happens to go wrong will amount to doing disservice even to the community.  One must insist on due care for the patient at every point, but one must not condemn as negligence that which is only a misadventure  The idea of Blood transfusion  in a patient with very low hemoglobin level is a life saving measure.  Minor reactions that may occur has to be weighed against the possible complications of severe anaemia and it was with this motto that the blood transfusion was given  to the first complainant  in good faith.   Bleeding into the various organs  of the body is a feature of Leukemia and that is what has occurred in the 1^st complainant’s case .  Bleeding and subsequent inflammation of the eye structures has resulted in the loss of vision of the first complainant. There is no negligence or deficiency in service on the part of the opp.parties.   The  2^nd opp.party is a qualified Surgeon  who has 39 years of professional experience .   After passing  his  Master degree in surgery from  the Medical College Hospital, Calicut he has been working as Surgeon in the Health service.   He was the former  Superintendent of District Hospital, Kollam and the District Medical Officer, Kollam.   After  retirement  he has been providing service to the 1^st opp.party hospital.   The 1^st opp.party hospital is a well equipped hospital in all respects.    The amount claimed  in the complaint is highly exaggerated and claimed without any basis.  There is no negligence or deficiency in service on the part of the 2^nd opp.party.  Hence the opp.party prays to dismiss the complaint with compensatory costs.

          The  2^nd opp.party filed a separate version with identical  contentions.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant PW1. to4 are examined.   Ext. P1 to P8 series marked.

For the opp.party DW.1 to 3 are examined.   Ext. X1 to X2[b] are marked.

POINTS:

          There is no dispute that the first complainant was admitted in the first opp.party hospital on 17.7.2002 and she was treated by the 2^nd opp.party.  It is also not in dispute that the first complainant was discharged from the first opp.party hospital on 19.7.2002.  However there is dispute regarding the date on which the blood transfusion was given.  When the complainants would say that it was on 18.7.2002, the contention of the opp.parties is that the blood transfusion was effected on 17.7.2002.  At the time of discharge the sight of both her eyes were lost is also not in dispute.   The contention of the complainants is that the sight of  her  both the eyes were lost due to the negligence and deficiency in service on the part of the opp.parties.

          The contention of the opp.parties is that  the first complainant was admitted in the opp.party 1 hospital with severe anemia and  therefore she was given blood transfusion.   According to the opp.parties the complainant approached the opp.party 2 who is her family doctor on 16..7.02 and though blood transfusion was to be given immediately since no donor was available  she was asked  come on the next day morning with a donor and accordingly on 17.7.2002 morning she came  with two donors whose blood were cross matched and tested  and the blood of one donor named Sunilkumar was found matching and accordingly his blood was taken for transfusion by the first opp.party.   The blood transfusion was started at 1.15 p.m. on 17.7.2002 under the super vision of the 2^nd opp.party after giving injections Avil,  Dexona and  Lasix which are the routine pre-caution before  administering  blood transaction.  At 2.30 p.m. the patient developed  vomiting  sensation for which Neomat injection was given.   At 3.30 p.m..  the patient developed  slight shivering and immediately blood transfusion was stopped temporarily and  appropriate medicines to  treat shivering was given .   The patient also developed temperature which was also controlled and at about 7.30 p.m. the blood transfusion was again started.  At about 8 p.m. the patient again developed shivering and temperature rose to 100ºF  and the blood transfusion was again stopped and appropriate medicines were  given and  controlled the  temperature.  The patient had no complaints of dimness of vision other than some joint pain at that time.  On the next day the physician again saw the patient and her temperature was normal through out the day.  At about 9.30 p.m. on 18.7.2002 the patient complained of dimness of vision of left eye and  since the condition of the patient required expert management she was referred to Medical College Hospital, Trivandrum   There was no negligence on the part of the opp.parties, who have not given any treatment to the complainant other than giving blood transfusion which is the first and foremost step in the case of a severe anemia patient.

          PW.2 is the owner of the first opp.party hospital.  He has deposed that opp.party 1 hospital is a well equipped and reputed hospital having facilities and infrastructure for blood transfusion.   According to him the blood for transfusion was taken from the donors  brought by the complainant after necessary tests at about 10.30 -  11 a.m. and the blood transfusion was commenced at 1.15 p.m. which was discontinued at 3.30 p.m. due to reaction.  He would say that that the reason for the rising of temperature etc.  of the patient at the time of giving blood transfusion may be due to febrile reaction.  He would deny the suggestion that the blood transfusion was effected on 18.7.2002 and that the blood transfusion  was attempted thrice.   He would further state that he do not know the place  where the blood collected from the donor was kept and their Lab technician alone knows that aspect.   He would further state that in normal case  the blood collected  for transfusion would not be kept in room temperature  for more than  four hours.   According to him if such blood is kept in the refrigerator it would  be kept in the portion away from the freezer and a refrigerator used for keeping such blood  shall not be opened and closed frequently and if it is opened frequently, there is a possibility of blood being contaminated.  He has stated in cross examination that totally about 150 ml blood was transfused to the first complainant while she was in the opp.party 1 hospital.  There is absolutely nothing in the evidence of PW.2  as to where the blood collected from the donor was kept.  It is clear that he has no idea regarding the keeping of the blood  collected from donor prior to and after discontinuing transfusion  due to reaction which is a material fact.   Whether the same was kept in room temperature or in a refrigerator which was frequently opened one has to grope into the darkness.

          DW.1 is the Doctor who treated the first complainant in opp.party 1 hospital.   According to him the complainant was admitted in the opp.party 1 hospital at 11.30 a.m. on 17.7.2002.  The patient met him on 16.7.002 and though  blood transfusion was  urgently required since no donor was available she was asked to come on the next day with donor.   According to him no blood test was conducted on the patient at the opp.party 1 hospital but treatment commenced on the basis of Ext. P8[d].   The first complainant was admitted in the opp.party 1 hospital with complaints of  severe anemia and according to him  in such cases the first priority is blood transfusion and   the blood of one Sunilkumar , a donor brought by the first complainant has been collected  after necessary tests and the blood transfusion commenced at 1.15 p.m. and the first reaction appeared at 3.30 p.m. on 17.7.2002 and immediately on noticing the reaction the blood transfusion was discontinued.   He would further state in answer  to a pointed question did you conduct any  investigation to find  the reason for the reaction that  since it was a minor reaction no investigation was conducted.  According to him on 18.7.2002  till 9.30 p.m. the patient was normal and at 9.30 p.m. when he went to  the hospital as required by the duty Doctor the first complainant told him  that the vision of her left eye is diminishing .   Thereupon he immediately referred her  to the Medical College Hospital, Thiruvananthapuram.  He has also denied the suggestion that the blood transfusion was done on 18.7.2002.  He would deny the suggestion that the loss of vision of both the eyes of the first complainant is due to negligence in conducting the blood transfusion.

          The learned of counsel for the complainant  argued that the 1^st complainant was having no  disease previously and she suffered loss of vision due to the unscientific manner in which the blood transfusion was effected to her by the opp.parties.  It is further argued that the blood of the complainant was not tested in the first opp.party hospital before  commencing blood transfusion which is mandatory  for reasons best known to DW.1   DW.1 has admitted in cross examination that the treatment was  commenced after seeing Ext.P8[d] and the explanation offered is that that result was of the previous day and the institution where the blood test was conducted was a reputed laboratory.   There is force in the contention  that Ext.P8 [d] even if prepared by a well equipped laboratory any prudent doctor would conduct blood test of a patient in their hospital before the blood transfusion is given and the conduct of the opp.parties in not doing the same is deficiency in servicfe.   The learned counsel for the complainant would further argue that DW.1 has admitted that no bacteriological or microbiological tests were conducted in Opp.party 1 hospital and that the transfusion was done on the basis of Ext.P8[d]  which was 2 days old and no prudent doctor would do such an act.  No satisfactory explanation  is forthcoming  in this regard.  It is also pertinent to point out that the count of platletts is also not there in Ext.P8[d] .   Whatever  be the urgency for blood transfusion commencing blood transfusion without observing the proper procedure is not justified.

          The learned counsel for the opp.parties would argue that the loss of vision sustained by the complainant is not due to blood transfusion relying on the evidence of DWs 2 and 3 .  It is further argued that the complainant failed to adduce any medical evidence to the contrary.   According to him  the experts examined before this Forum have stated that the blood transfusion is the first and immediate necessary step to be taken in the case of a patient whose Hemoglobin level is alarmingly low and  opp.party 2 has followed only the prevailing procedure and that the complainant failed to establish that there is some other  more effective remedy and therefore without attempting to find the cause of the low hemoglobin level blood transfusion was advised which is perfectly justified.  In fact the complainant is also not seriously disputing this aspect.  But the case of the complainant is that blood transfusion was done negligently  which resulted in the loss of vision of the complaint.

          The definite contention of the opp.parties is that the loss of vision of the complainant is not due to blood transfusion but due to Myelodysplastic syndrome suffered by the complainant and both DWs 2 and 3 and PW.4   have said that blood transfusion after cross matching the blood would not cause any loss of vision.   DW.2 is the Associate Professor of Regional Cancer Centre, Thiruvananthapuram who has stated that the complainant was suffering from Myelodysplastic syndrome and that the complainant had bilateral retinal hemorrhage and vitreous hemorrhages.  He has stated that an anemic patient receiving blood transfusion from a cross matched donor is not likely to loose her vision.  In cross examination to a pointed question he  has stated that in a person suffering from MDS if cross matched  blood is transfused there is no possibility of bleeding into the various sites of the body.   To another pointed question what is the reason for bleeding into the retina and vitreous he has answered it can be due to Myelodysplastic syndrome or it  can be due to other reasons.   So from the evidence of DW.2 it cannot be conclusively said that the loss of vision  of PW.1 is due to Myelodisplastic syndrome as contended by the opp.parties.  

          DW.3 is the Ophthalmologist of KIMS Hospital.  He has also stated that if cross matched blood is transfused to an anemic patient there is no possibility of causing loss of vision.    DW.3 has also did not give any definite answer to the question that loss of vision caused to the complainant was due to her malignancy status.  DW.3 has further stated in cross examination that he does not know the reason for retinal  detachment.    DW.3 would further state in cross examination at P5 that he does not know the reason for the illness of the complainants eyes.  In further cross examination he would say that he does not know the complication of blood transfusions..  

The loss of vision of PW.1 is due to retinal detachment is obvious from the evidence in this case.  How it is caused ?  There is no satisfactory explanation or evidence.  DW.2 in cross examination at page 12 has stated that he does not know how the retinal detachment occurred.   DW.2 would further say that there was bleeding into the retina and vitreous which can be due to MDS or due to other reasons.  He would further  say that the bleeding into the retina and vitreous can be due to intra ocular pressure.  However he has not given any definite opinion for such bleeding.

Another contention of the complainant is that the cross matching of the blood done in Opp.party 1 hospital is not correct.  As pointed out earlier there is no  dispute that at the time of admission on 17.7.2002 the 1^st complainant was having an alarmingly low hemoglobin level.   DW. 1 to 3 have stated that in such a circumstance the 1^st and immediate step to be taken is blood transfusion and the cause of such a low hemoglobin level is a matter to be investigated later.   But the question is whether the urgency of the matter is a reason for not  conducting the required tests properly or relying on an old test result of another laboratory.   DW.1 has stated in Chief examination on the reverse side of page No.2  the time taken for cross matching of blood is 5 to 10 minutes whereas PW.4, the Pathologist of District Hospital, Kollam has stated that for cross matching minimum 35 minutes is required  and the evidence of PW.4 is authoritative.   So the contention of the complainant that from the evidence  of PW.4 the cross matching done  in 5 to 10 minutes cannot give correct result  and the reactions developed  during the blood transfusion  is due to incorrect cross matching cannot be ignored.   According to the opp.parties if the cross matching is not proper  the consequences during transfusion would be disastrous but in this case on both the occasions of blood transfusion the reaction was febrial or minor which  is quite common.  The only material  available  to come to such a  conclusion is Ext.P8 series which was in the absolute possession of the opp.parties and so  the  evidence of PW.2 in this regards, as argued by the   complainants has to be viewed with caution.

PW.4 the Pathologist summoned as expert witness by the complainant has stated that minimum 35 minutes would be required for cross matching of which 30 minutes would b e required for incubation  which is not disputed.  She has also stated that  the blood taken from the donor can be kept in room temperature for 4 hours and the transfusion should be completed within 4 hours or else it should be kept in the refrigerator unfortunately evidence in this regard is lacking.  In cross examination PW.4 has also agreed with DW.2 that due to transfusion of mismatching blood the body would react immediately and the  same  would be life threatening.  According to her  in the case of Hemolytic reaction the transfusion of such blood should not be continued.  PW.4  also  further stated that even if blood of the donor is collected observing aseptic precautions when such blood is transfused febrile reactions and allergic reactions are possible and in such circumstances it cannot be said that it is due to the negligence of the doctor.  In reexamination PW.4  has stated that when reaction occurs after discontinuing blood transfusion the doctor has a duty to sent the blood to the Lab and ensure that there is nothing wrong with it.  According to PW.4 even in the case of febrial reactions also after stopping transfusion the blood should be rechecked.  No evidence is forthcoming to contradict this version of PW.4  From the evidence adduced by the opp.parties there is absolutely nothing to show that the blood was rechecked after reaction.

At the time of admission the condition of PW.1 was severe is not disputed.   All the expert  witnesses examined  have stated that in such circumstances the 1^st priority is for blood transfusion to correct the Hemoglobin level.   DW.1 has stated that without investigating the cause for such low hemoglobin level he started blood transfusion and considering the condition of PW.1 it is perfectly justifiable.  According to him  the blood of the donor was taken and transfusion commenced at 1.15 pm and the 1^st reaction occurred at 3.30 p.m. and the transfusion was stopped immediately.  As pointed out earlier nothing is forthcoming from the evidence of opp.parties 1 and 2  ie. PW.2 and DW.1 as to where the blood of the donor collected was kept prior to and subsequent to the 1^st transfusion .  The 2^nd transfusion commenced at 7.30 p.m. and this aspect is of much significance as the blood from donor was collected at 11.30 a.m.  PW.2  has stated that it is  known to the Lab Technician alone who was not examined for reasons best known to the opp.parties.  PW.2 and 4 have stated that the donors blood collected should not be kept in room temperature for more than 4 hours.   Even assuming that it was kept in room temperature till the 1^st transfusion commenced and continued till the 1^st reaction occurred at about 3.30 p.m. after discontinuing  transfusion it is not known where was this blood kept till the 2^nd  transfusion commenced.  The 2^nd transfusion admittedly commenced at 7.30 p.m. . In the absence of cogent evidence the only inference that can be drawn is that it was kept in room temperature.  Even assuming that it was kept in a refrigerator there is no material to show that it was a refrigerator which was not opened frequently to avoid contamination of blood.   This matter assumes importance because the total quantity of blood transfused to PW.1 in the 2 attempted transfusions was about 150 ml. according to PW.2, which is less than  ½  a  pint of blood .  PW.2 has no case that the blood was rechecked after 1^st reaction and according to him recheck is necessary only if the reaction is hemolytic which is  against the evidence of the expert,  PW.4.   So as argued by the complainants there is possibility for contamination or clotting of blood and transfusion of such blood in the 2^nd transfusion might have caused bleeding in the retina which lead to loss of vision.   DW.1 has stated in cross examination that blood clot svu\flH Lfk Seldkr\r iqjujH bleeding Kn\mldk;  When evidence as to where the blood collected from the donor is kept is lacking and when it has come out from the evidence of PW.2 and DW.1 that the above blood after the reaction was not rechecked it cannot be safely believed that the blood used for transfusion at 7.30 p.m. is not clotted or free from contamination.   The burden to establish that the blood collected from the donor was stored properly and the same was not contaminated etc  are on the opp.parties which they failed to discharge.  

Admittedly  PW.1 at the time of admission was in a very severe  condition requiring immediate blood transfusion.  According to PW.2  in  the  two attempts of blood transfusion about 150 ml blood alone could be transfused.   The opp.parties have no case that by this much blood the hemoglobin level of the patient has improved and reached the minimum required level.  It is  quite improbable that the hemoglobin level of PW.1  would improve to a safer level with so much blood transfused.   DW.3 has stated that on 19.7.2002, the date of admission of PW.1  in the KIMS Hospital 3 pints blood was transfused to her and on 20^th 2 pints from which the hemoglobin level of PW.1 could be gathered.   The material question  which arises at this juncture is when transfusion of blood to PW.1 has become impossible due to reactions why such a severe aneamia patient was detained in opp.party 1 hospital where no facilities are available to find out the cause of such low hemoglobin level rather than referring her immediately to a hospital having such facility and provide better treatment.  It is also worth pointing out in this context that though 5 pints of blood was transfused to PW.1 at the KIMS Hospital not even a febrial reaction is reported which raises, doubts about the reliability of the blood tests  such as cross matching  in 10 minutes in Opp.party 1 hospital.   As we said earlier the omission to recheck the blood after reaction shows the gross negligence on the part of the opp.parties.   The omission to adduce  evidence with regard to these aspects leads to an adverse inference.   Every  prudent  doctor in such circumstances would refer the patient as early as possible to a  hospital  having facilities for further  investigation and   better management of the patient.   The  detaining of such a severe anemic patient requiring immediate blood transfusion and investigation without doing anything  and without giving any treatment and knowing that the opp.parties have nothing more to do is nothing  but  gross negligence and deficiency in service.  It is pertinent to point out that opp.party 1  as PW.2 has admitted in cross examination that no attempt was made to find out the reason for reaction [reverse side of P3] as it is a minor reaction.  But PW.4  has stated that there is no such categorization as major or minor and whenever such reaction occurs the blood should be rechecked before the next transfusion.  In Page 4 cross examination  PW.2 candidly admitted “domkfH test rk\ Luv\vjh\h\”.  He would further admit that the count and the nature of the plat lets were also not tested in their hospital.  It is also a serious deficiency as there is chance of bleeding due to incompatibility during transfusion  and the function of platlets is to arrest bleeding.

 The  learned counsel for the opp.parties argued that the  onus of proof to prove medical negligence is on the complainant relying on the decision of the National Commission reported in   [2009] ICPR 201 and that the complainant failed to discharge that burden .  The learned counsel for the complainant argued that this is a fit case wherein the principles of Resipasa Loquitor  is squarely applicable.   According to him if cause of accident is unknown and no reasonable explanation as to cause is coming forth from the defendant it will be for the defendant to establish that the accident  happened due to some other causes than his own negligence.   The maximum comes into operation [1] on proof of happening of an unexplained occurrence

[2] When the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff and [3] the circumstances point to the negligence in  question being that of the defendant  rather than that of any other person.   According to the learned counsel under the maxim it is sufficient for the complainant to prove the accident and nothing more and it will be for the opp.party to establish that the accident happened due to some  causes other than his own negligence.  It is further argued that without making any attempt to investigate the cause of anemia opp.party started blood transfusion and even after 2 attempts of blood transfusion failed due to reaction opp.parties did not make any attempt to find out the cause and referred the patient to the Medical College only after 26 hours when she lost her vision.   The evidence of DWs 2 and 3 cannot be relief on  safely to  come to the conclusion that the loss of vision is due to MDS, because DW.2 has  stated  in cross examination that the loss of vision may be due to MDS or due  to some other reason.  What is that some other reason ?  If the loss of vision  was due to MDS there is no reason  as to why DW.2 has not asserted so. So the bleeding into eyes of PW.1 and  consequential  loss of vision  could be due to the transfusion of contaminated or clotted blood and DW.1  admitted in cross examination that clotted blood if transfused would cause, bleeding.   The burden to prove that the blood transfused to PW.1  after the 1^st reaction was not contaminated or clotted is on the opp.parties which they failed to discharge.  In the light of the candid admission of PW.2 and DW.1 that the blood used for transfusion was not rechecked after the  reactions coupled with the evidence of DW.2that the loss of vision may be due MDS or due to some other reasons,  the burden is heavily upon the opp.parties to establish that the bleeding into retina was not due to the transfusion of clotted or contaminated blood which they failed to discharge in our view  Both DWs 2 and 3 have stated that  if cross matched blood is used loss of  vision would not be caused due to blood transfusion.    But they never said that transfusion of contaminated  blood would not  cause it.   DW.2  who  said that the finding on MRI ie irregular thickening on the walls of both the eyes and T2 hyper intense focus in the Medulla, right transverse sigmoid sinus, jugular vein thrombosis and pathology in side the brain as well as in the orbit can be manifested by loss of vision of both the eyes has stated in cross examination that the loss of vision can be due to MDS  or due to other reasons.   Apart from that the MRI examination was done on 26..7.2002 about  9 days after PW.1 lost her eye sight.   Further  there is no material to show that the developments found in MRI were present on 17.7.2002  or developed subsequently.

The learned counsel for the opp.parties would argue that there is suppression of  material facts by the complainants regarding the MDS of the complainant in the complaint and also with regard to the date on which blood transfusion was effected.  In the light of the forgoing discussions  this aspect does not assume much significances.   For all that has been discussed above we find that opp.parties failed to act with reasonable care and caution and that  there is negligence and deficiency in service on the side of the opp.parties.  Point found accordingly

In the result the complaint is allowed in part.   The opp.parties are directed to pay the complainants a sum of Rs.4,00,000/- and cost Rs.10,000/-

The order is to be complied with within one month from the date of this order failing which interest @ 12% per annum will be paid on the above sum.

Dated this the 31^st day of July, 2010.

I N D E X

List of witnesses for the complainant

PW.1. – Jayakumari

PW.2. – P.T. Cheriyan

PW.3. – Sunilkumar

PW.4. – Sreekumari

List of documents for the complainant

P1. – OP card

P2. – Medical bill from MTM Hospital

P3. – Reference letter

P4. – CT Scan report

P5. – CT Cavernous Sinus P & C Coronal

P6. – CT Brain Plain Axial

P7. – Discharge card from KIMS

P8. – Case sheet from MTM Hospital

P8.[a] – Laboratory report

P8.[b] – Laboratory report

P8.[c] – Laboratory report

DW.2. – Dr. Sreejith.G. Nair

DW.3. – Dr. Gopal.R

List of documents for the opp.parties

X1. – Casesheet from R.C.C.

X2[a] – OP card from KIMS

X2[b]. – I.P. record from KIMS