State Consumer Disputes Redressal Commission
Durga Pandey & Another vs Management Of Nagarmal Modi Seva Sadan & ... on 31 October, 2008
JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI First Appeal no.544 of 2007 Against judgment dated 11.12.2006, passed by District Consumer Disputes Redressal Forum, Ranchi, in Consumer Complaint no.262 of 2004. Durga Pandey & another - Appellants Vrs. Management of Nagarmal Modi Seva Sadan & others - Respondents For Appellants : Mr. Manoj Tandon, Advocate For Respondent no.1 : M/s Yogesh Modi and Vijayant Verma, Advocates For Respondent nos.2 and 3 : M/s Bishwajeet Mukherjee and Ravi Kerketta, Advocates Before: Justice Gurusharan Sharma- President Mrs. Kalyani Kar Roy- Member
And Mr. Satyendra Kumar Gupta-Member Judgment Justice Sharma: Complainants are appellants. Their Consumer Complaint no. 262 of 2006 filed against the respondents was dismissed by Ranchi District Consumer Disputes Redressal Forum by impugned judgment dated 11.12.2006.
2. On 27.9.2003 at 7 A.M. Durga Pandey, wife of Amrendra Kumar Pandey was admitted in Nagarmal Modi Seva Sadan in connection with her first delivery and was attended by Dr. (Mrs.) Sethu Raman, the Gynecologist and she delivered a male child by caesarian operation conducted by the said doctor, under supervision and care of Dr. S.N. Prasad, the anesthetist. She was shifted to cabin in state of complete unconsciousness, but did not regain consciousness and was shifted to ICCU on development of severe respiratory problem. Dr. Sethu Raman informed her husband, Amrendra Kumar Pandey that Ether Anaesthesia was administered to her for performing caesarian operation, as a result of which she developed the said problem and told him to meet the anesthetist-Dr. Prasad and left the hospital, but he could not meet Dr. Prasad either in the hospital or at his residence. The Superintendent of Seva Sadan also did not call the two doctors. He was also not willing to call other expert doctor to attend the patient.
Incharge doctor of ICCU prescribed nine medicines at the mid night, but no development could be noted in the patient. Ultimately at 4 A.M. on 28.9.2003, the Incharge doctor asked Amrendra Kumar Pandey to shift the patient to Apollo Hospital for better management and to control grievous situation and transferred her. At Apollo Hospital it was diagnosed that she had developed Mendelsuns Syndrome with severe respiratory distress in the post operative period.
3. According to the complainants the aforesaid symptom is known to be the result of adverse effect in administering of excess ether anaesthesia. Smt. Pandey remained totally unconscious and thereafter on proper treatment at Apollo Hospital she could be able to come out of unconsciousness gradually and was finally released from Hospital after somewhat betterment on 13.10.2003.
4. The complainants alleged that there were defects as well as deficiencies coupled with inadequacy in quality in the services rendered by the opposite parties availed of by them and these alone contributed for the losses and mental agony suffered by them Smt. Pandey was still under regular treatment of Dr. P.N. Singh of Apollo Hospital for ensuring the recovery from serious mental and physical damages caused due to the utter negligence of the opposite parties. In the complainant filed against the opposite parties total sum of Rs.7,98,200.00 was claimed by way expenses incurred and compensation of physical harassment and mental agony suffered by them.
5. The opposite party no.1 did not file any written statement, whereas separate written statements were filed by opposite parties 2 and 3. Dr. Sethu Raman explained the situation under which she had to perform caesarian operation of Smt. Durga Pandey, namely, there was no progress in labour (pain) as there was no progress in the dilatation of cervixs which was only 1.5 CM, whereas it should have 10CM for normal delivery, the rate of diolation on administration of medicine is 1CM per hour, she was running temperature, the heart beat of child was 160 per minute against a normal of 140, the patient was antibiotic and antipyretic, an artificial rupture revealed of maconiva stained liquor, which was dangerous position for the child because of cephalic presentation (head first) and on account of thick fresh liquor, she was undergoing a condition of fetal distress (Acute) and was very restless as there was no progress in labour. The said operation was performed successfully and live male child was retrieved. She recovered from anaesthesia and regained consciousness and did not suffer any gynecological/obstetrical problem. There was no medical negligence on her part. After recovery from anaesthesia it was found that the patient vomited and in the process aspirated vomitus developed respiratory (lung and trachea problem) and as such she was taken to ICCU and was treated there by physician, Dr. S. Rungta and thereafter she was referred to Apollo Hospital for better management, where treatment was given and she finally recovered.
Dr. S.N. Prasad, the anesthetist pleaded that he had administered general anesthesia to the patient after taking all pre-operative precautions and he kept maintaining her till full recovery. At about 3 PM on 27.9.2003 the patient vomited and in the process aspirated vomitus, hence she was taken to ICCU and treated there. He had not committed any medical negligence and there was no deficiency in service on his part.
6. The District Forum observed that after surgery the patient was found suffering from Mendelsuns Syndrome, which might be caused by administration of Anesthesia, but the challenge before the doctors in the labour room was to save the lives of the mother and the baby and accordingly it was chosen to administer general ether anaesthesia for performing caesarian operation. It was further observed that a defective treatment cant be said to be negligent treatment, unless proved by positive evidence, including expert evidence. The two doctors were held not deficient in service and the complainants were not entitled to any relief in the complaint. It was accordingly dismissed.
7. We have heard the parties as length and have perused the entire record. We notice that the complainant had already completed full term of pregnancy and as such she was supposed to be full stomach when she was admitted in Nagarmal Modi Seva Sadan for delivery. We do not know why instead of other methods of anaesthesia, the Anesthetist-respondent no.3 chose to administer general (Ether) anaesthesia in her case. However no step was taken to vacate the stomach or to administer Antacid to lower down the Acidity and the airway was also not secured. It is well known that General anaesthesia (Ether) was closely associated with vomiting and therefore by way of preventive major it was essential to place the endotracheal tube while administering general anaesthesia before the performance of Caesarian operation. The endotracheal tube keeps the patients lungs and maintains the breathing and avoids mixing of particles from the food tube into the air pipe of the human system, when the patient looses consciousness due to anaesthesia. If the tube is not introduced, it would result in the food particles entering into the air pipe and blocking it and thereby affecting the breathing of the patient, which had happened in the present case.
8. In the Journal Practical Procedure Issue 4 (1994) Article- Anaesthesia for patient with full stomach Dr.Mijumbi Cephas of Mulago Hospital Uganda writes that during induction of general anaesthesia the patient with stomach contents has to be identified as a patient at risk and is required to be treated as a patient having a full stomach. Certain elective patients, such as pregnant females in the third trimester are at risk of acid aspiration, despite being adequately fasted. This group of patients is best treated by decreasing the acidity and volume of gastric fluids by the use of renitidine or cimetidine. If general anaesthesia is administered to a patient at risk of having full stomach the airway should be protected by a cuffed endotracheal tube. In the present case nothing has been brought by the opposite parties-respondents that required preventive majors were applied before administration of general anaesthesia.
9. In our opinion, in the facts and circumstances of the present case, it was essential, but the anesthetist-respondent no.3 omitted to introduce Indotracheal intubation, while administering general anaesthesia. Hence, general anaesthesia was not properly administered. We find that here the principle of res ipsa loquitur would apply because the complainant went for delivery, but had to undergo acute torture and sufferings because of the event which resulted on account of medical negligence of anesthetist, while administering general anaesthesia without taking the required preventive majors, which was expected from a prudent anesthetist. He is therefore, liable to compensate the complainant properly on account of deficiency in service.
10. In Spring Meadows Hospital & another Vs Harjol Ahluwalia, I(1998) CPJ 1 (S.C.) the apex Court observed as under:
.. very often in a claim of compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably skill of a competent doctor. Accordingly it was held that gross medical mistake would always result in a finding of negligence.
11. Now so far the allegation of medical negligence and/or deficiency in service on the part of Dr.Mrs. Sethu Raman, the Gynaecologist-respondent no.2 is concerned, in our opinion, in the facts and circumstances of the case the allegation is not acceptable. The said doctor has narrated every details/developments of patient from her admission in Seva Sadan till Caesarian operation. We are of the view that in the situation the doctor-respondent no.2 took right decision in not waiting any further for normal delivery and got delivered the child by caesarian operation. Hence, no amount of compensation is required to be paid by her (respondent no.2) to the complainant-appellant. The impugned judgment relating to the opposite party-respondent no.2 does not require any interference in this appeal.
12. We find that the Nagarmal Modi Seva Sadan Hospital-opposite party-respondent no.1 did not cooperate with the Consumer Fora and failed to either file any written statement or produce the relevant records of the hospital relating to the treatment of the complainant-appellant. Due to this attitude of the hospital many things could not be brought to our knowledge. In this regard reference be made to a decision of the apex Court in Savita Garg Vs. National Heart Institute, IV (2004) CPJ 40 (S.C.), wherein it was observed as under:-
It is for the hospital or institute to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Once claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence involved in treatment. In any case the hospital is in better position to disclose what care was taken or what medicine was administered to the patient. It is duty of the hospital to satisfy that there was no lack of care or diligence.
13 In our considered opinion a compensation of Rs.25,000.00 shall be reasonable to be paid to the complainant-appellant by the opposite party-respondent no.3, the anesthetist and that would serve the ends of justice. The compensation amount must be paid within two months from the date of this judgment.
14. Accordingly the impugned judgment is set aside in part and the appeal is allowed in part to the extent indicated above. Consequently the complaint stands allowed in part.
However, there will be no order as to costs.
The 31st October, 2008.
Ranchi.
Member Member President