State Consumer Disputes Redressal Commission
T. Balakrishnan, vs S.P. Fort Hospital on 20 March, 2010
Daily Order
Complaint Case No. CC/05/5
T.Balakrishnan
and Others
Vs.
S.P.Fort Hospital,Tvpm
and Others
BEFORE :
HONORABLE JUSTICE SHRI.K.R.UDAYABHANU
, PRESIDENT
PRESENT:
None for the Complainant
None for the Opp.Party
Dated the 20 March 2010
ORDER
Disposed AS DIsmissed KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
OP No. 05/2005JUDGMENT DATED: 20-03-2010 PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT SHRI. M.K. ABDULLA SONA : MEMBER COMPLAINANTS 1. T. Balakrishnan, 70-B, Anwer Gardens, Railway Colony, Poojappura, Thiruvananthapuram. 2. Athira S. Krishnan, aged 6 yrs D/o T. Balakrishnan, 70-B, Anwer Gardens, Railway Colony, Poojappura, Thiruvananthapuram. 3. Sudha S. Krishnan, aged 7 months D/o T. Balakrishnan, 70-B, Anwer Gardens, Railway Colony, Poojappura, Thiruvananthapuram. (Rep. by Adv. Smt. Celine Wilfred and Sri. Sandeep T. George) Vs OPPOSITE PARTIES 1. S.P. Fort Hospital Thiruvananthapuram, Represented by its Chairman, Thiruvananthapuram. 2. Pottivelu. S, Chairman, S.P. Fort Hospital, Thiruvananthapuram. 3. Santhamma Mathew MD, DGO, Chief Gynaecologist, S.P. Fort Hospital, Thiruvananthapuram. 4. Sajin Varghese, Anesthetist, S.P. Fort Hospital, Thiruvananthapuram. (OP 1, 2 & 4 rep. by Adv. Sri. K. Muralidharan Nair) (OP3 rep. by Adv. Sri. C.S. Sukumaran Nair & Sri. K.S. Sanalkumar) Addl. 5th Opposite Party Dr. P. Asokan, Chief Executive, S.P. Fort Hospital, Thiruvannathapuram. (Rep. by Adv. Sri. K. Muralidharan Nair) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
The appellants are the husband and the two minor children of the deceased Sudhakumari. The case of the complainants is that the deceased died on account of the negligence of opposite parties 3 and 4 the Gynaecologist and Anaesthesiologist. It is stated that the first delivery of the deceased on 18-08-1998 at W & C Hospital, Thiruvananthapuram was a normal one in the year 2002. She again became pregnant and was under the treatment of a doctor at W & C hospital. But she had an abortion in the 3rd month of the above pregnancy. The couple wanted to have another child and approached the 3rd opposite party gynaecologist known to be an expert. She became pregnant again. The 3rd opposite party advised the deceased to consult her at the first opposite party hospital right from the early days of pregnancy. On the 4th month of pregnancy the deceased developed breathing problems for the first time. The 3rd opposite party told that there is nothing to worry and that after delivery everything will become alright. On 27-05-2004 the deceased was admitted at the first opposite party hospital and on 28-05-2004, she gave birth to the 3rd petitioner. Although they wanted to conduct PPS, after delivery she developed severe chest infection and cough and hence sterilization surgery was not conducted on 29-05-2004. The first petitioner had informed the 3rd opposite party that there is no hurry and that the sterilization surgery need be conducted after she regains normal health. On 31-05-2004 the 3rd opposite party conducted laparoscopic sterilization under general anaesthesia on the deceased at the early hours of the day. Laparoscopic sterilization is a minor operation and only local anaesthesia was required. In the early hours of 1-06-2004 at 6 a.m the petitioner heard from the attenders that death has taken place in the hospital. At about 09.15 a.m he was informed that his wife is no more. It is alleged that the death was declared after preparing the treatment records in their own way. It is alleged that it was on account of the negligence on the part of the 3rd and 4th opposite parties in conducting the laparoscopic sterilization in a causal way that his wife died. The matter was reported to the police and crime No. 298/04 of Fort Police Station was registered. Inquest and postmortem was conducted. The cause of death as reported by the Professor and Police Surgeon of the Medical College is that death was due to bronchopneumonia. Evidently, laparoscopy was conducted when the deceased was suffering from bronchopneumonia. It is alleged that consent for the surgery was obtained on 29-05-2004 and that no fresh consent was obtained on 31-05-2004 on the date when the surgery was conducted. It is alleged that the laparoscpic surgery ought not to have conducted when the patient was having bronchopneumonia and also immediately after delivery. It was not an emergency situation. The deceased was given general anaesthesia, which was not required. The deceased was only 33 years old. She was working as Senior Telecom Office Assistant in the BSNL. The second petitioner is only 6 years old and the 3rd petitioner is 7 months old. Both are daughters. They have lost maternal care, love and affection. The first petitioner lost consortium of his wife. She would have retired as Chief Accounts Officer as she had 27 years of service. She was drawing Rs. 12,213/- per month. She would have received a pension of Rs. 12,122/-. The petitioners' loss is Rs. 1 crore in this regard. There was no expert management of the situation to save the life of the deceased. She should have been referred to Medical College Hospital. The deceased belonged to a Scheduled Tribe community and hence the promotional prospects were very high. The petitioners have claimed a sum of Rs. 75 lakhs as compensation.
2. The second opposite party, Chairman of the first opposite party hospital has filed version contending that the Chairman cannot be held liable and that the firm should be represented by the Chief Executive.
3. The chief Executive was subsequently impleaded as the 5th opposite party.
4. The 3rd opposite party Gynaecologist has filed version mentioning that she is a former Professor of the Department of Obstetrics and Gynaecology, Medical College, Thiruvananthapuram. It is submitted that on a day in the month of August 2003 the deceased came to the hospital with complainants of intermittent abdominal pain. The medical history was recorded by another doctor. It is noted that she had a full term normal delivery 5 years back. The deceased insisted for consultation with 3rd opposite party. She mentioned that she had an abortion and D & C was done. It is stated that the deceased consulted the 3rd opposite party twice only during the entire period of pregnancy as outpatient ie, on 11-08-2003 and 13-10-2003. It is denied that the 3rd opposite party advised the deceased that the breathing problem would be alright after delivery. It is denied that she had advised that sterilization can be done by laparoscopy. When the deceased gave birth to a baby girl, the 3rd opposite party was on leave because of illness and the delivery was attended by another Senior Gynaecologist Dr. Anitha Thomas in the first opposite party hospital. It is denied that she developed severe chest infection and cough. It is false that the first petitioner told the 3rd opposite party that sterilization need be conducted only after the deceased regained health. After 2 days of leave the 3rd opposite party went to the hospital only on 29-05-2004. At the time of routine rounds the deceased was found in hospital dress required for surgical procedure. It was found that she has been posted for sterilization on the day by Dr. Anitha Thomas and consent was also obtained. The 3rd opposite party advised the deceased and the first petitioner that sterilization could be done at a later date as it is her practice to discourage sterilization if the couple had only two children and the younger one is a new born. There was also no record of pre-anaesthesia check up. But the first petitioner and the deceased insisted for sterilization to be done immediately since the deceased was an employ of BSNL and therefore she will get extra benefits and increments and other incentives on cumulative basis, if sterilization is done immediately after delivery. The other birth control options were also explained to the deceased but the deceased and the first petitioner insisted for sterilization to be done. The deceased also told that she has no health problems. Dr. Anitha Thomas told that there are symptoms of occasional cough during night and that it is allergic cough. However, the 3rd opposite party prescribed antibiotics and advised the deceased to get discharged on the next day or to wait till 31-05-2004. On 31-05-2004 the 3rd opposite party reached the hospital at 8.30 am and found that the deceased has already been shifted to the operation theatre. The deceased was examined and declared fit for general anaesthesia by the anaesthesiologist. There after laparoscopic sterilization was done by application of two rings on both sides by double puncture under Carbon dioxide pneumo peritoneum by the 3rd opposite party assisted by Dr. Anitha Thomas and staff nurse Helen. After PPS the deceased recovered fully from anaesthesia and was extubated. After extubation she was attended by the Anaesthesiologist and the related staff. The 3rd opposite party has no role in taking decision in issues related to anaesthetia. It is denied that laparoscopic sterilization is a minor procedure. It is not correct that only local anaesthaesia is required. The death of the deceased occurred at 9 am on 01-06-2004. The allegation with respect to the doctoring of the records is denied. It is denied that there was any negligence. It is pointed out that in the postmortem certificate the police surgeon has noted the fact of surgery done and has not noted any bleeding or surgical complication. The fitness of the patient for surgery is tested only by the anaesthesiologist. The above is the practice all over the world. It is denied that the surgery was conducted when the deceased was suffering from bronchopneumonia. Laparoscopic sterilization was chosen by the 3rd opposite party as the patient was fit for general anesthesia and as the patient insisted for laparoscopic sterilization which required only minimal hospital stay and also from the point of view of easiness in doing PPS on the 4th day after delivery. Prior to the surgery the deceased was treated for minor cough irritation with antibiotics. Dr. Anitha Thomas informed that the symptoms were those of allergic cough and that there were no lung sign indicating any lung infection. The rest of the allegations and the claims are denied.
5. The 4th opposite party/Anaesthesiologist has filed version contending as follows:
6. The patient, Sudhakumary developed only a mild chest infection and cough and not a severe one. The patient who delivered on 28-04-2004 was initially posted for surgery on 29-04-2004. Since the patient had mild cough, the surgery was postponed by the 3rd opposite party's assistant and she had put her on antibiotics and bronchodilators. On 31-05-2004, the patient was posted for laparoscopic sterilization and brought to the operation theatre. On conducting pre-anaesthetic examination, the 4th opposite party found the patient fit for anaesthesia. Her respiratory system was clear. Only a few occasional crepitations were heard which was considered as due to the patient being in supine position for past couple of days. As the fourth opposite party found her to be fit, from his examination, general anaesthesia was given to the patient, using all standard anaesthesia medicines and equipments. The procedure was uneventful. Intraoperatively patient's heart rate, blood pressure and oxygen saturation and end tidal carbon dioxide were continuously monitored and all parameters were stable. The surgery started at 9.05 am and ended at 9.40 a,m.
7. The patient was extubated after giving reversal medicines and after she started spontaneous respiration and was obeying to verbal commands. After extubtion, patient was breathing on her own and all vital parameters, were stable. About ten minutes later, the patient developed respiratory distress, hypoxemia and on auscultation, bilateral crepitations could be heard. Immediately she was given 100% oxygen by mask and also given steroids and bronchodilators. As she developed pulmonary oedema, she was reintubated after giving muscle relaxants and electively ventilated for an hour. She was also given morphine and lasix, to reduce the pulmonary oedema. She was shifted to the postoperative room and her husband was informed about her condition. The hospital senior physician, Dr. Madhusoodhanan Nair and Chest Physician, Dr. Arjun, were called for expert opinion. The other two anaesthetists, Dr. Liza and Dr. Arun were also called, to see and evaluate the patient. The hospital management was also informed about the patient's condition. Extubation was attempted after an hour, but as the patient was not maintaining saturation, she was reintubated.
8. A chest X-ray was taken, which showed signs of consolidation according to the physician. On consultation with the other above-mentioned doctors, it was decided to electively ventilate the patient for 24 hours. This was informed to the patient's husband and he also agreed for the same. The patient was put on ventilator, after giving muscle relaxants and injections Magnex and Solumedrol were also given, as per the advice of the Physicians. The patient's vital parameters were continuously monitored and the fourth opposite party was with the patient, all through the day and night. In the evening, she was re-evaluated by all the doctors and her condition was found to be improving. At about 3.00 am on 01-06-2004, the patient's blood pressure started dropping and it was corrected by putting her on dopamine support. At round 7.00 am she developed sudden cardiac arrest. Immediately the fourth opposite party gave her cardiac massage and all resuscitatory medicines. Her heart rate picked up. At around 8.30 a.m, she again developed cardiac arrest. All resuscitatory efforts carried out by the third and fourth opposite parties were unable to revive the patient and she was declared dead at 9.05 am on 01-06-2004.
9. The safest and most acceptable form of anaesthesia, for laparoscopy is general anaesthesia. General anaesthesia, with tracheal intubation and controlled mechanical ventilation while using end tidal CO2 monitors and pulse oximetry, offers the most stable physiological environment for the patient. During laparoscopic surgery, CO2 gas is insufflated into the abdomen and this causes abdominal distension and breathing difficulty to the patient, if the surgery is performed, under local anaesthesia (page 1394, Wylie and Churchill Davidson"s A PRACTICE OF ANAESTHESIA, 6th Edition)
10. The averment that about 6.00 am, the first petitioner heard an attender saying that there is a death case in the hospital and to the knowledge of the first petitioner there was no other patient in the postoperative ward or theatre concerned, is also false and hence denied. The patient died at 9.05 am and therefore the alleged hearsay regarding death at 6.00 a.m is totally false and hence denied.
11. There was no negligence on the part of the third and fourth opposite parties and the laparoscopic sterilization was done with utmost care and caution, and not casually as alleged. The allegation that laparoscopic surgery was not done with due diligence and care as expected from the professional skill is also false and hence denied. The 3rd and 4th opposite parties had conducted the surgery according to the standard protocol using required monitoring with due diligence and care as can be reasonably expected from any qualified professional in similar circumstances. The patient was connected to a Data scope monitor, which continuously recorded the oxygen saturation, end tidal carbon dioxide, ECG and non invasive blood pressure of the patient. The same monitor was connected to the patient in the postoperative ward also. And all the values were recorded at regular intervals. These precautions reflect the standard protocol according to Chapter 69, Wylie and Churchill Davidson's A Practice of Anaesthesia 6th Edition. The death of the patient occurred due to aspiration pneumonia and pulmonary oedema leading to ARDS (Adult Respiratory Distress Syndrom) and not due to any negligence or deficiency on the service of the 3rd and 4th opposite parties.
12. The averments contained in the complaint meaning that the cause of death namely bronchopneumonia reported in postmortem, would show that laparoscopic sterilization was conducted while the deceased was suffering from bronchopneumonia is not correct and hence denied. The patient had undergone pre-anaesthetic check up and did not have any features to suggest bronchopneumonia like fever, dyspnoea etc. The postponement of the surgery was done at the instance of the third opposite party. Later on 31-05-2004, the deceased patient reported complete subsidence of cough. Physical examination also showed the patient as fit for surgery. There was no need to take a fresh consent for surgery when the patient was fit for the same, two days later, because the same planned but postponed procedure was done, and no new procedure was undertaken.
13. The allegation that the fourth opposite party who gave general anaesthesia, at the time when the deceased having bronchopneumonia, is also responsible for the death of the patient, and that at least he could have advised to postpone the operation till the patient became normal, is also irrelevant and misleading in the context of the clinical situation of the patient and hence denied. The clinical features of bronchopneumonia are fever, tachycardia tachypnea, breathlessness, central cyanosis and severe cough with purulent sputum. The patient was not having any of these features, when the fourth opposite party conducted the pre-anaesthetic examination on 31-05-2004, the day of surgery. The patient herself told the fourth opposite party that her cough had subsided completely. On ausultation, only a few occasional crepitations were heard, which could be reasonably attributed to the patient being in supine position for the past few days as per - page 361, Davidson's Principles and Practice of Medicine, 16th Edition.
14. Postoperatively the patient had developed respiratory distress and hypoxemia which are suggestive of aspiration pneumonia and pulmonary oedema. Immediate postpartum patients are in the "at risk" group for pulmonary aspiration of gastric contents. The insufflations of carbon dioxide, for creating pneumoperitoneum and the application of trendelenburg position for laparoscopic surgery, also increase the chance of aspiration. Page 144-3, Chapter 43, Ronald D. Miller Anaesthesia, 4th Edition.
15. Postoperative management of the patient was done in proper consultation with two other anaesthetists, senior general physician and a chest physician and the allegation that the postoperative management and care were deficient and lacking standard care is strongly denied. 100% oxygen was given to the patient through tracheal intubation and controlled mechanical ventilation. Morphine and Lasix were given to reduce the pulmonary oedema. Magnex and solumedrol were given to reduce the aspiration pneumonia. An ICU ventilator was used and all vital parameters were monitored continuously. When cardiac arrest occurred, all standard methods of resuscitation were followed and the fourth opposite party was with the patient all through the day and night from the time of commencement of surgery. The allegation that negligent care given to the deceased worsened her health and conditions and lead to untimely death in the postoperative ward itself, is also firmly denied.
16. Evidence adduced consisted of the testimony of PWs to 5, DWs 1 to 7, Exts. A1 to A7 and B1.
17. The specific case of the complainants is that the death of Sudhakumari, the wife of the first complainant was occasioned on account of the negligence of the 3rd opposite party/Gynaecologist and the 4th opposite party Anaesthesiologist as no proper pre-operative and pre-anaesthetic checkup was done and also as laparoscopic postpartum sterilization was conducted when the patient was not fit and also in violation of the Guidelines issued by the Ministry of Health and Family Welfare, Government of India that laparoscopic sterilization especially under general anaesthesia is to be avoided during the post partum period. It is the contention that the deceased was afflicted with bronchopneumonia when she underwent laparoscipic sterilization. It is also contended that as she was under treatment for upper respiratory infection and cough, she should not have been subjected to general anaesthesia. It is also contended that fresh consent was not taken on 31-05-2004, the date on which she underwent laparoscopic sterilization. The consent was taken only on 29-05-2004 when she was earlier posted for surgery.
18. PW1 the first complainant who is the husband of the deceased has filed proof affidavit containing the same averments as in the complaint. He was cross-examined by the opposite parties.
19. PW2 Dr. Sreekumari is the Professor of Forensic Medicine of Medical College, Thiruvananthapuram who conducted the autopsy of the body of the deceased on 01-06-2004. She has proved Ext.A3 autopsy report. Ext.A5 is the report of histopathology examination of the specimen of lungs, kidney and heart and also of viscera. The final opinion is that death was due to bronchopneumonia. She has stated in the cross examination that bronchopneumonia in the instant case was secondary and that no specific pathogenic organism was detected in the histopathology report. She has admitted that bronchopneumoniac changes may be seen in aspiration pneumonia. She has also stated that on conducting the postmortem examination she has not noted any mistake in the laparoscopy surgery conducted. She has also stated that bronchopneumonia is one of the accepted complications of general anaesthesia. She has also stated that the pathological changes noted in the postmortem report also would have contributed to the primary cause of death. She has also stated that bronchopneumonia affected bronchia, bronchioles and the surrounding alveoli. She has stated that bronchus appeared normal as mentioned in the histopathological report is based on gross examination of the tissues sent to the pathologist indicating that it is not a contradictory finding as to the diagnosis of bronchopneumonia. She has also stated in answer to the question that bronchopneumonia is a common finding in autopsy that it is not uncommon. It was also pointed out to her that in bronchopneumonia the bronchi and bronchioles would be filled with inflammatory exudates and not blood. She has stated that there was a hemorrhage and the alveoli could have filled up and filled bronchi. She has also stated that although the gross appearance was not diagnostic of ARDS she did not discount the possibilities as having occurred and contributed to the death. Extensive hemorrhage in the alveoli is a feature of bronchopneumonia as well as ARDS. Bronchopneumonia can have an acute or slow onset depending on the condition of the patient. As a general proposition she has agreed that in ARDS in fatal cases often have super imposed bronchopneumonia. But she has denied that in the instant case it was so. In ARDS following sceptic shock inflammatory cells can be seen in the capillaries of the lungs, she has stated. She has also stated that as the general statement there would be presence of hemorrhagic materials in bronchi and bronchioles in ARDS following aspiration of gastric fluids. She has also stated that respiratory failure due to ARDS in such cases can be the primary cause, which can result in multi organ failure. She has also admitted that patchy consolidation of the lung is a dominant characteristic of bronchopneumonia when there is no hemorrhage. She has stated that she did not notice any patchy consolidation of lungs as the whole lung was consolidated. She has also stated that she could not rule out ARDS in its early stage developing out of sceptic shock because of the presence of neutrophils in excess of what would normally be found in the cut section of blood vessels. She has denied that there was aspiration of stomach juice into the air passages in the present case. She has stated that if general anaesthesia is given to a patient having respiratory infection and breathing difficulties, there is a risk of getting the infection of bronchopneumonia.
20. PW3 Dr. Gopalakrishnan is the cardiothorasic anesthetist of the Medical College hospital. He has testified on verification of Ext.A4 case sheet that the deceased was under treatment for cough and upper respiratory infection prior to the surgery. He has also noted that in Ext.A4 at page 29 (dated 28-05-2004) the patient had complaints of breathing difficulty. He has admitted that if it is not an emergency general anaesthesia is contra indicated for 5 weeks if the patient is having respiratory infection and breathing difficulty. He has also agreed to the proposition that the general conditions of the patient must be made clear to the anesthetist by the gynaecologist. He has also stated that X-ray of the chest is not necessary in all cases but X-ray is compulsory if the patient is aged over 60 years. He has stated that with respect to a patient who was under treatment of respiratory infection and also having complaints of breathing difficulty X-ray of chest is essential. On examination of Ext.A4 case sheet he has stated that X-ray of chest was not taken with respect to the patient. He has also admitted that the respiratory infection would be rendered worse if such a patient is given anesthesia and it can also precipitate bronchopneumonia. He has stated that he would not give general anaesthesia to a patient who was having respiratory infection, for PPS surgery unless it is an emergency. In the cross examination he has admitted that he has not made a detailed study of Ext.A4 case sheet. He has also stated in the cross-examination that the presence of occasional crepitation is a mild disease. He has stated that bronchopneumonia involves bronchus, terminal bronchioles and alveoli. It is seen that in the instant case the patient's temperature was checked and she did not have fever and was having normal pulse rate. She did not have raised respiratory rate. It is also not recorded that she is having breathing difficulty. There was no symptom of bronchopneumonia before surgery. No history of cough with sputum is also recorded in the case sheet. The presence of cough alone is not an absolute contra indication for general anaesthesia. He has also stated that pre medication is also given in terms of bronchodialators, steroids and depress secretions, reduced gastric ph and anti emetic Perinom. When complications arose post operatively and intra operatively adequate care was given and from the point of view of the Anaesthesiologist all standard equipments were used. He has stated that despite of precaution, the patient can develop Mendelson's syndrom by silent aspiration. He has also stated that when the patient had cardiac arrest all standard methods of resuscitations were carried out. He has also stated that a patient can develop pneumonia after anaesthesia but it is rare. He has also stated that in 99% of the cases the patient's prefer general anesthesia and that in the case of laparoscopic surgery general anaesthesia is the ideal method. He has also admitted that in Ext.A4 case sheet only on 28/05/04 ie, after delivery breathing difficulty is recorded and that there is no record to show that breathing difficulty persisted. He has also stated that when the physician examined the patient at 1.30 p.m on 31/05/04 ie, after 4 hours of surgery bilateral consolidation is noted. He has stated that for massive bilateral consolidation the time taken is up to 2 hours. It was also brought out that during the operation the patient did not have broncho spasm and that if the patient had infection of the respiratory tract, the irritation caused by intubation would have resulted in bronchospasm. He has also stated that cough, history of cough and upper respiratory infection and occasional crepitation are absolute contra indications for general anaesthesia in the particular patient. He has also stated in answer to the question by the Counsel for opposite party 3 that if the anaesthetist declared the patient fit for anaesthesia, the surgeon can go ahead with the surgical procedure.
21. PW4 Dr. Sheela Shenoy is the Professor and Head of the Department of Obstetrics and Gynaecology in the Medical College Hospital. She has stated that in her department laparoscopy sterilization is usually done under local anaesthesia and that it is done after 6 weeks of delivery. She has stated that she will not advise a postpartum sterilization when patient has got cough. On an examination of the case sheet she has stated that the patient was given Dexona injection because of severe breathing difficulty. She has also noted that improvement of the patient is not noted. She has stated that it is the practice to take fresh consent with respect to a postponed surgery. It is not routine to do postpartum sterilization when the patient has respiratory infection. She has also stated that laparoscopic sterilization would not be done during postpartum period. She has stated that there is such a direction in the Guidelines promulgated by the Ministry of Heath and Family Welfare. She has stated such instructions are issued as it was found that laparoscopic sterilizations are done in rural areas where there are no expert doctors or equipments. In hospitals having facilities laparoscopic sterilizations can be done. She has stated that in certain private hospitals laparoscopic sterilization used to be done after delivery in case there are competent doctors. The reason for the practice not to conduct laparoscopic sterilization during the postpartum period is that it is after 6 weeks of delivery the uterus will contract and before that it is likely that when the scope is inserted injuries can happen. She has stated that as per the case sheet no injury is noted on conducting the laparoscopic sterilization. She has also stated that PPS is an elective procedure and that it is proper only to do it when there is no infection. Further when doing laparoscopic sterilization the patient would be in an inclined head down position and hence the probabilities are more for breathing difficulty. If general anaesthesia is applied there is possibility of increasing the breathing problems. Laparoscopic surgery in comparison with laparotomy is having less complications, minimal tissue trauma, faster recovery and short hospital stay. She has denied that she is not in good terms with the 3rd opposite party on account of certain disputes regarding transfer and posting.
22. PW5 is the Additional Director of the Kerala State TB Centre. She was working as DMO when Ext.A6 report was prepared. Ext.A6 is with respect to the crime case against the Gynaecologist (OP3) and Anaesthesiologist (OP4) with respect to the death of the deceased in the instant case. The panel that included doctors and the District Government Pleader constituted as per the government order has opined that it is a case of gross negligence of the doctors and that the crime case can be proceeded against them as per law as surgical procedure should have been avoided as occasional crepitations indicated lower respiratory tract infection.
23. The complainants have also produced Ext.A7 the minutes of the apex body on appeal filed by the Gynaecologist and Anaesthesiologist over Ext.A6 order. The apex body consisted of 5 doctors and the Director General of Prosecution. The order is issued after personal hearing. The apex body has found that there is negligence on the part of all treating doctors. It is mentioned therein that the apex body unanimously took the decision. It is mentioned that the deceased was admitted in the opposite party hospital on 27-05-2004 and on that day itself she was given injection deriphyllin and injection dexona for bronchial asthma; azithromycin was started on 29-05-2004. She delivered on 28-05-2004. It is noted that it is seen from the case sheet that she was having respiratory infection from the time of admission and was getting antibiotics and bronchodilators. For such a patient no pre anaesthetic evaluation or medical consultation was done before surgery, it is noted. Postpartum sterilization is not an emergency surgery. So this surgery could have been postponed till the respiratory infection was under control. It is also mentioned that on 31-05-2004 the anesthesiologist evaluated the patient and he recorded basal crepitations in the lung fields and that inspite of that general anaesthesia was given. It is also mentioned that Sudhakumari was posted for PPS and that at the time of surgery it was changed to laparoscopic sterilization. It is also mentioned that there is the practice of visiting consultants as and when required and that it was found that those doctors are not taking the responsibility of the patient fully. The full responsibility should fall with the treating doctor. It is mentioned that in the particular case the responsibility is being shunted among the surgeon, junior doctor and anaesthesiologist and that SP Fort Hospital is negligent in this case because of the above reasons and negligence is noted on the part of all treating doctors ie consultant Dr. Santhamma Mathew (OP3) Assistant Dr. Anitha and Anaesthesiologist Dr. Sajin Varghese (OP4). The complainants have also produced the Final Report in the crime case as per which OP3 and 4 has been implicated for the offences u/ss 304 part II r/w Section 34 IPC.
24. The opposite parties have examined DWs 1 to 7 of whom DW1 is the 3rd opposite party and DW4 is 4th opposite party and DW7 is the 5th opposite party/Chief Executive of the 1st opposite party hospital. DW1 the Gynaecologist (3rd opposite party) has filed proof affidavit containing the averments in support of version filed. The deceased was admitted in the hospital on 27.5.04 as per hospital records. There after she has examined her only on 2 days. Before admitting into hospital she had consulted her twice only. The statement recorded in the cross examination that "right from 2003 she has been my patient", it was pointed out by her counsel that the above was only a suggestion and that it has been wrongly recorded in the deposition as the statement of DW1. The evidence of DW1 was recorded during the period of my predecessor. The statement of the counsel appears true in view of the fact that the same tallied with the stance of DW1 in her version and proof affidavit. DW1 has denied the suggestion that in the 4th month of pregnancy the deceased came to her with the complaint of suffocation. She has reiterated that it was Dr.Anitha a qualified Gynecologist who was examining the deceased after her admission in the hospital and there after. It was Dr.Anitha who prescribed medicines on 27.5.04 for chest discomfort and respiratory problems. The delivery on 28.5.04 was attended by Dr.Anitha Thomas. DW1 did not attend the hospital on that day as she was laid up with fever. On 29.5.04 she found that deceased was posted for sterilization and consent was also taken on the previous day. Hence she went through case sheet and it was found that it is noted that the deceased was having complaints of breathlessness on 28-05-04. Hence she postponed the surgery for 2 days. According to her the 1st complainant/husband of the deceased was insisting for PPS as he would be having some monitory benefits if it is done along with delivery. Hence she prescribed stronger antibiotics and written PPS on Monday if cough reduces. She had suggested to cancel the procedure and get discharged as it is her practice not to do sterilization when the baby is only a few days old. She has denied the suggestion that the Surgeon is having the over all responsibility with respect to the patient. She has stated that she was absent on 30.5.04 and it was Dr.Anitha who posted the deceased for PPS on 31.5.04 and the anesthetist had cleared the case for laproscopic sterilization under general anesthesia. It was Dr. Anitha who cleared the patient and asked the staff to prepare for PPS and sent the patient to the theatre. The laproscopic sterilization to be done was the decision by the patient and the anesthetist. She has stated that where there are facilities laproscopic sterilization is also advisable during postpartum period. According to her it is the anesthetist who is to see whether the patient was cured of breathing difficulties. She has asserted that it was Dr.Anitha Thomas who is fully qualified who posted the case for PPS without informing her. DW1 has stated that the deceased did not die due to surgical complications. She has also stated that the guidelines issued by the Ministry is with respect to the centers where there are no facilities.
25. DW2, Dr. Sulekha Devi is the Professor and head of the department of Obstetrics and Gynaecology of Gokulam Medical College, Thiruvananthapuram. She retired as head of the department at SAT Hospital attached to the Medical College Hospital. She has stated that usually laparoscopic surgery should done under general anaesthesia. It is the anesthetist who decides as to the type of anaesthesia. She has stated that laparoscopic sterilization can be conducted during postpartum period in a hospital having facilities and expert Gynaecologist. She has stated that opposite party 3 is an expert and she is renouned as an Obstetrictitian and Gynaecologist. She has stated that she has gone through the case sheet and found that there is no negligence on the part of the doctors. She has stated that the decision regarding the type of surgery is taken by the surgeon and not by the anaesthetist. She has also stated if the patient has any medical problem the Gynaecologist will make a reference to the Physician or other specialist. She has stated that although it is safe to conduct laparoscopic sterilization after 6 weeks of delivery it is safe with the surgeon if she is an expert. She has also stated that it is not the practice to obtain consent again when the sterilization is postponed. She has also admitted that the surgeon who was conducting the surgery should be aware of the physical condition of the patient. She has also stated that usually patients prefer laparoscopic sterilization.
26. DW3, Dr.Leelamony is the Gynaecologist of the Woman and Children Hospital, Thiruvananthapuram. She has stated that laparoscopic sterilization used to be done during postpartum period and that general anesthesia is the preferred method of anaesthesia. She has stated that the procedure if done under local anaesthesia the patient will have certain amount of pain and can also become non co-operative and hence there are possibilities of injuries. She has also stated that the anaesthetist is the more competent person to assess the chest condition of the patient. She has also stated that as per the Fogxi (Federation of Obstertics and Gynaecologist) guidelines for laparoscopic sterilization general anaesthesia is mentioned as preferable although local anaesthesia is appropriate. She has also stated that the Central Government employees would get increment if sterilization is done. She has also stated that the patient prefer laparoscopic sterilization. She has agreed that respiratory dysfunction is one of the contra indications for conducting laparoscopic sterilization. The type of anaesthesia has also to decided taking into consideration the request of the patient. She has also stated that the general conditions of the patient will be checked on the previous day and immediately before surgery. It was also brought out that 3rd opposite party was her teacher.
27. DW4/OP4 the Anaesthesiologist has testified that at the time he was having eight years of experience. He has stated that the pre anaesthetic checkup was done around 07.30 a.m on 31-05-2004. On pre-anesthetic checkup it was found that there is no necessity to refer the patient to any other specialist. He had taken into consideration the presence of occasional crepitations which the patient was having. In the absence of other markers of active infection such as fever, tachycardia, tachypnoea, cough with productive sputum etc. the same is not an absolute contra indication for GA. The total duration of anaesthesia was 35 minutes. Surgical procedure lasted around 25 minutes. The angle of trendelenberg's position was 30. About 25 minutes the patient was in the above position. Complications developed in the immediate postoperative period at about 10 minutes after extubation. It was not he who put the patient on fasting. He has stated that it is not necessary in all cases that pre-anesthetic examination should be done one day before surgery. He has stated that chest X-ray is mandatory only if the patient is above 60 years. He could find that the patient had complaints of breathing difficulties and drugs were administered; and further the drugs had been reduced from injections to tablets. According to him the patient told him that she had a mild allergic cough and that it has subsided completely. The patient was breathing normal room air and was not showing any signs of breathlessness. She had walked into the theatre without any physical assistance and without any oxygen support. He has stated in the cross examination that severe cough with productive sputum more than 3 weeks duration is only the absolute contra indication for giving GA. Occasional crepitations can be heard in various conditions. As the patient was in immediate postpartum period also occasionally crepitations can be heard. During the last few weeks of pregnancy the uterus enlarges in size and pushes the diaphragm up and leads to closure of a few areas of the linear lobes of the lungs. It is due to opening of the closed area spaces the crepitations are heard through stethoscope. He has stated that anaesthesia in any patient without any infection carries a risk of one in one lakh. The SPO was 99% all through out the procedure from 9.05 a.m till 9.40 a.m. The patient developed respiratory distress 10 minutes after extubation. He has denied that the patient died of bronchopneumonia. He has also stated that it is not mandatory to take the test doze of anaesthesia. He has admitted that in a patient having respiratory difficulty she will be having more irritation and restlessness due to intubation. But in the instant case her SPO level was normal and if there was irritation present SPO level would have decreased immediately after intubation.
28. DW5 Dr. Kantaswamy is the Medico Legal Consultant and Honourary Adviser at AIMS Kochi. He was Director and Professor of Forensic Medicine of Medical College Hospital as well as Police Surgeon and Medical Legal Adviser to the Government of Kerala. On examination of Ext.A3 postmortem report and A5 histopathological report he has stated that it was not proper to impute the cause of death to bronchopneumonia ignoring the other four conditions of the body mentioned in the histopathological report (ie acute tubular necrosis kidney; hemorrhagic necrosis zone-III liver; mild cortical edema brain and markedly congested spleen). He has also stated on examination of the above reports that there is no mention therein of the existence or diagnosis of full-fledged bronchopneumonia. He has also stated that from the recitals or findings in the above reports it cannot reasonably be inferred the existence of bronchopneumonia as a disease entity. According to him it is not correct to say that bronchopneumonia changes resulted in death in the light of the four other conditions each likely to cause death. He has stated that bronchopneumoniac change is not the same as full-blown disease of bronchopneumonia but they are related. He has also stated that in bronchopneumonia consolidation of the lobe is pachy. The postmortem certificate mentions as "lungs heavy, all lobes were dark in colour, consolidated in its entire". According to him the same rules out bronchopneumonia. He has also stated that another factor that rules out bronchopneumonia is the microscopic findings of the lungs in the histopathological report which mentions focal inflammatory cell infiltration mainly polymorphs and macrophages in the wall and interstitium. In bronchopneumonia there will be inflammatory exudates in the alveoli (air sacs) and bronchioles (tiny air passages). There is no such finding. He has also stated that the results of the micro examination done by the pathologist has to be preferred to the results of macro examination of the forensic surgeon as well as that of the pathologist. It was put to him that in the Text Book of Pathology by Robins at page 697 under Morphology of Bronchopneumonia the histological evidences mentioned are supparative, neutrophil rich exudates that fills the bronchi, broncheols and alveoli spaces. He has stated that the micro findings in the histopathological report are not similar to those mentioned in Robins. In the report it is mentioned that the bronchi and broncheols are filled with hemorrhagic materials and not with inflammatory exudates. It was also put to him that in the postmortem report, it is mentioned that the stomach contained 30 ml bile stain fluid and in the histopathological report that "stomach juice reaction as neutral". He has pointed out that normally stomach juice should be acidic. He has answered that the stomach in the resting stage (empty) contained 50 ml to 60 ml of juice and is acidic in nature. He has stated in the instant case, there is definite evidence of aspiration of the bile into the stomach. There would have been more than 50 ml of juice in the stomach but herein the quantity is only 30 ml. Hence according to him it appeared that the stomach contents had been aspirated into the lungs partly. It is possible that the production of stomach juice would stop when anaesthesia is administered. Another possibility is that the bile from duodenum neutralizing the acid. The aspiration of stomach contents lead to ARDS. It is a postoperative accepted complication of general anaesthesia. He has stated that in two conditions ie, cancer of the stomach or pernicious anemia called achlorhydria there will be no acidic stomach contents. He has disagreed with the finding in the postmortem report that the primary cause of death was bronchopneumonia.
29. DW6 Dr. Mahadevan is a retired Director/Professor of Anaesthesia of the Medical College Hospital who was working at Ananthapuri Hospital at the time of his examination. He has asserted that occasional crepitations are not a contra indication for GA. According to him the main contra indication would be sputum output. If there is infection the sputum would be yellow in colour. There would be increased rate of respiration if the patient had infection. The rate of respiration noted in the case sheet is 14. The same is normal. The patient also did not have above normal temperature. He has stated that there is no negligence on the part of the doctor who administered GA. He has stated that he had given general anaesthesia to thousands of cases in which the patients have chronic bronchitis. He has noted that the necessary medication has been given and precautions taken in the instant case. She has been given deriphyllin and efcorlin to prevent chest complications and glycolpirolate and also rantac and perinom to prevent aspiration, which can happen in a patient after delivery. There was no gross variation in blood pressure and pulse rate during operation. Adequate monitoring was done by the Anaesthetist. According to him there was no need for X-ray unless there was some gross pathology ie, severe lung infection with sputum output, lung cancer etc. According to him management of the problems which developed post operatively was done as per the standard protocol. He has stated that Mendelson's syndrome ie, gastric acid aspiration can be the possible reason for the complications in the instant case. He has also stated that there is no practice of giving test dose of all drugs used in the anaesthesia. On examining the case sheet he has stated that immediately after extubation the patient developed crepitations and aspiratory distress at 10 a.m. He has also stated that laparoscopic sterilization is not a major surgery. He has also stated that chest X-ray is not required if the patient had only occasional crepitations. He has admitted that it is the duty of the Gynaecologist to examine the general condition of the patient and mark the same to the Anaesthetist and the Anaesthetist in turn to verify the same. He has also stated that it is ideal to have the pre assessment on the previous day.
30. DW7 is the Chief Executive of the hospital. He has stated that original case sheets were seized by the police.
31. We find that Ext.A4 case sheet contains the anaesthesia record as well as the anaesthesia notes. In the anaesthesia record the patient has been categorized as ASA II. Pre medication has been noted. Full term normal delivery two days back is also noted. Complaint of cough and upper respiratory infection is mentioned as the present history. Pulse rate, respiratory rate and temperature has been noted which are normal ie pulse rate 86/MT; BP 120/76; respiratory rate 14 and temperature efrabile, occasional crepitation + is mentioned. Anaesthesia started at 9.05 a.m and lasted up to 9.40 a.m. It is mentioned at 10 am that the patient extubated under hundred percent oxygen given by mask. The patient developed b/l crepitations and respiratory distress. It is also noted injections deriphyllin, injection efcorlin, injection aminophyllin given and patient improved. SPO2 is mentioned as 97%. At 10.15 a.m it is mentioned that the patient showed symptoms of pulmonary oedema, B/l crepitations ++. At 10.30 a.m it is mentioned that the patient is reintubated and electively ventilated. At 11.30 a.m it is mentioned that extubation attempted but the patient was not maintaining saturation. At 12 p.m it is mentioned as re-intubated and informed Physician and Chest Physician for expert management. The patient was put on ventilation. Patient showed signs of ARDS. At 1.30 p.m it is mentioned that the patient was paralysed and medications are administered. At 10 p.m also SPO2 level is mentioned as 97% and vital signs as stable. At 11 p.m also it is mentioned that the patient is on ventilation. Medications administered are also noted. From 3 a.m injection dopamine is noted. At 7 am it is mentioned that the patient developed sudden cardiac arrest and cardiac massages started and continued till heart rate picked up. At 7.45 p.m it is mentioned that the patient developed bardycardia again. Medications administered are also mentioned. At 8.30 a.m it is noted that the patient developed sudden cardiac arrest and the pupil not reacting to light and the patient shifted to ICU with all amenities and ventilatary support. At 8.45 a.m BP is mentioned as not recordable and cardiac massage continued and DC shock given and repeated. At 9 a.m it is mentioned that inspite of all attempts the patients heart rate could not be picked up and declared dead at 9.05 a.m.
32. The case sheet also contains the record of OP treatment of the deceased from 11-08-2003 and the doctor's name is mentioned as that of the 3rd opposite party. The other OP dates ie, 15-08-2003, 13-10-2003, 25-10-2003, 13-11-2003, 03-02-2004, 05-02-2004, 10-04-2004, 01-05-2004, 15-05-2004 are also seen noted. On 28-05-2004 full term normal delivery at 9.30 a.m of female child is mentioned. The name of the surgeon is OP3 and the assistant as Dr. Anitha Thomas. On 28-05-2004 injections deryphyllin and dexona are noted. On 29-05-2004 tablets, expectorant, steam inhalation and azithromycine 500 mg tab. It is also noted as PPS on Monday if cough subsides. On 30-05-2004 also tablets and expectorant are mentioned. On 31-05-2004 it is mentioned as taken for PPS. On 31-05-2004 it is mentioned that laparoscopic sterilization done by application of two rings on both sides.
33. In the nurses record sheet, it is mentioned on 27-05-2004 as the patient admitted under OP3 and seen by Dr. Anitha. Deriphyllin and Dexona injections are noted. On 28-05-2004 it is mentioned as delivery attended by Dr. Anitha. On 29-05-2004 and 30-05-2004 also it is mentioned as the patient was seen by Dr. Anitha.
34. Ext.A3 postmortem report by PW2, Professor of Forensic Medicine mentions that the postmortem examination commenced at 3.30.pm (time of death is 9.05 am) on 1/6/2004. Notable features mentioned therein are; air passages contained frothy mucus, lungs heavy, all lobes were dark in colour, consolidated in its entire with petechial haemorrhages on the surface. Adhesions seen on the diaphragmatic surface, and inter lobar fissures. It is also noted that stomach contained 30 ml of bile stained fluid having no unusual smell; mucosa normal. Viscera including lung and blood preserved and sent for chemical analysis and tissues preserved for histopathological examination.
35. Ext.A5 is the report of Pathologist and Chemical examiner. The nature of specimen mentioned in the pathology report is specimen of lungs, kidney and heart. Macro examination mentions that the surface of the lung tissues showed adhesions in the inter lobar fissure and also suspected petechial haemorrhages. The whole lob appeared consolidated and bronchus appeared normal. On micro examination it is mentioned that the sections from lungs showed extensive areas of haemorrhage into alveoli and into interstitium of the lung. The bronchi and bronchioles are filled with haemorrhagic material with focal inflammatory cell infiltration mainly polymorphus and macrophages in the wall and interstitium. Some of the alveoli showed cholesterol clefts and foamy macrophages. Occasional vessels shown neutrophils in the lumen. Anatomical diagnosis is massive intra alviolar haemorrhage lungs with focal broncho phenumonic change. The same also mentions acute tubular necrosis kidney; haemorrhage necrosis zone III lever; mild cortical oedema brain and congested spleen.
36. The chemical analysis report of the viscara that included stomach and part of intestine with contents and lungs. The chemical test results for volatile poisons including formic acid and acetic acid and for inorganic poisons including mineral acids are negative.
37. It was pointed out by the counsel for OP3 that the alleged direction that the laparoscopic sterilization is not to be done during post partum period is only a guideline issued by the Health and Family Welfare Department. It is pointed out that PW4 the expert witness examined at the instance of the complainants themselves has stated that laparoscopic sterilization during post partum period can be done if expert doctors and adequate equipments are available and that there is no prohibition in this regard. DW2 and DW3 the experts examined at the instance of the opposite parties have also testified accordingly.
38. It was pointed out that PW4 is not properly competent to testify as to laparoscopic surgeries as she has admitted that she has done only 25 to 30 laparoscopic surgeries in her service. It is also pointed out that she has stated that she was using a 20mm bore laparoscope. It is pointed out that it is video laparoscopes that do not require more than 6-8mm incisions that are used and OP3 has used only such video laparoscope and her evidence that the deceased ought not to have been subjected to laparoscopic surgery cannot be relied on. The evidence of DW2 and DW3 who are expert Gynecologists and who have done considerable number of laparoscopic surgeries is to be preferred. It is pointed out that the statement of DW3 that more than 3000 laparoscopic sterilizations are done in an year in the W & C Hospital, Trivandrum wherein she is working has not been disputed.
39. It is also pointed out that the version of DW3 that as per standard guidelines the preferred anesthesia for laparoscopic sterilizations is general anesthesia has to be relied. It is also pointed out that PW2, the Professor of Forensic Medicine who conducted Autopsy has stated that there was no surgical wounds in any other internal organs and that she has not noted any mistake in the laparoscopy done.
40. It is also pointed out by the counsel for OP3 that PW3 the alleged expert Anesthesiologist has only reached the level of Associate Professor in the Medical College and his opinions has to be accepted only with limitations and reservations. It is also pointed out that PW3 has also stated that it is the duty of the anesthetist to verify in detail whether the patient is fit for receiving general anesthesia which would imply that the Surgeon has no role in deciding the fitness of the patient for general anesthesia. He has also stated that usually 99% of the patients prefer general anesthesia and that the first preference is for the preference of the patient. The Surgeon has no role in selecting the procedure. He has also relied on the testimony of DW4 that even if the surgeon insist anesthesia will not be given without proper evaluation and check up. It is also pointed out that respiratory distress developed about 10 minutes after extubation and not during surgery.
41. He has also relied on the testimony of DW6 the former Director and Professor of Anesthesia, Medical College Hospital that occasional crepitation is not a contra indication for general anesthesia if the severity is assessed by the anesthetist. His evidence is also to the effect that there is no direction that laparoscopic sterilization should not be done during post partum period and that if facilities are available such procedure can be done. It is pointed out that the evidence of DW6 is to the effect that OP3 acted strictly in accordance with standard protocol.
42. It is pointed out that PW4, DW2 and DW3 have deposed that the guidelines issued by the Ministry of Health and Family Welfare is suggestive for rural camps conducted for mass sterilization and that laparoscopic sterilization during post partum period is not prohibited in hospitals where facilities and expert doctors are available. It is also pointed out that PW3, PW4, DW2, DW3, DW4 and DW6 have testified that the surgeon can go ahead with surgery if the anesthetist declares the patient fit for anesthesia.
43. It is pointed out that PW3 has stated that occasional crepitation is suggestive of a mild disease only and that there is no history of sputum recorded in the case sheet. PW3 has also stated that the presence of cough alone without sputum is not an absolute contra indication for general anesthesia. He has also stated that adequate pre-medication was given to the patient for upper respiratory infection. He has also admitted that despite all precautions taken the patient can develop Mendelsons syndrome by silent aspiration. He has also admitted that silent aspiration of gastric fluid is an anesthetic complication of laparoscopic surgery that he has experienced in his service. PW3 has stated that Dr.Madhusoodanan noted bilateral consolidation and further that for massive consolidation the time taken for bilateral consolidation is 0 to 2 hours. He has also stated that as per the case sheet during operation the patient did not have bronchospasam and that if the patient has infection of the tract the irritation caused by intubation would have resulted in bronchospasam. It is also pointed out that the evidence of PW4 the Gynecologist that she will not advise post partum sterilization if the patient has cough is an unscientific statement as cough could be because of infection or irritation of lungs or respiratory tract. PPS is done on Fallopian tubes in the abdomen and not on lungs or the respiratory tract.
44. It is also pointed out that PW4, Gynaecologist has stated that in comparison with laprotomy laparoscopic sterilization has got many advantages like minimal tissue trauma, faster recovery and short hospital stay. The version of DW2 is also relied on that patient preferred laparoscopic sterilization and doctors usually suggest general anesthesia. DW3 the expert Gynecologist has also stated that as per Fogsi guidelines preferable anesthesia is general anesthesia. If laparoscopy is done under local anesthesia the patient would be conscious and is likely to be non co-operative.
45. It is pointed out that evidence of DW4 the anesthetist that before giving anesthesia the patient was not having any kind of chest infection cannot be rejected. He has noted that the injections were given for breathing difficulties on 28th and 29th and on 30th it was shifted to tablets. It is pointed out that the 3rd opposite party had no intention to do the sterilization in a hurry or haste. If that is the case she would have done it on 29/5 and would not have postponed it to 31/5. She prescribed stronger antibiotics on a prophylactic basis and also wanted the fitness clearance of the anesthetist.
46. It is the contention of the complainant as mentioned in the complaint that the procedure was done when the deceased was having bronchopneumonia. Subsequently in evidence the point highlighted is that the deceased was having respiratory tract infection and at that time laparoscopic surgery under general anaesthesia ought not to have done. It is also alleged that proper preoperative tests including chest X-ray was not done. It is also contended that laparscopic surgery ought not to have been done during the postpartum period as per the Guidelines issued by the Ministry of Health and Family Welfare, Government of India which instructed that laparoscopic tubal ligation in postpartum period should not be done. It is also alleged that no fresh consent was taken for laparoscopic surgery conducted on 31-05-2004. It is also alleged that the first complainant/hospital and the deceased wanted the sterilization surgery to be done only after the deceased is fully fit. But the opposite parties/Gynaecologist got it done when the deceased was having respiratory infection.
47. On the other hand, it is the case of the opposite parties that the first complainant insisted for the sterilization to be done soon after delivery, as the deceased who was a BSNL employee would get increments and financial benefits if the sterilization is done along with delivery. According to the Gynaecologist she had persuaded the deceased and her husband to get discharged from the hospital and also advised against sterilization, as second child is new born. The Gynaecologist also would contend that anaesthetical clearance is the realm of the Anaesthetist and once the Anaesthetist clears the patient the Gynaecologist has no responsibility with respect to the subsequent anaesthetical complications. According to her the deceased consulted her for the first time only on 11-08-2003 and subsequently only on 13-10-2003. The OP consultations of the deceased at the first opposite party hospital was with Dr. Anitha Thomas, a fully qualified Gynaecologist. The Gynaecologist has stated that she was suffering from viral fever and did not attend the hospital on 27-05-2004, the date on which the deceased was admitted and also on 28-05-2004 when she delivered. Delivery was attended by Dr. Anitha Thomas. She was attended the hospital on 29-05-2004 and found the deceased posted for surgery. On examination of the case sheet and on seeing that medicines have been prescribed for respiratory problems she postponed the surgery and prescribed stronger antibiotics. Thereafter she saw her only on 31-05-2004 posted for surgery by Dr. Anitha Thomas. Anitha Thomas is a fully qualified Gynaecologist with Post Graduate Degree MD and DGO and experienced for 15 years. It was because the breathing problems were not serious enough that Dr. Anitha Thomas posted the deceased for surgery and when the 3rd opposite party saw her; she was in hospital dress required for surgical procedure. It is only for allergic cough that she was treated. The Anaesthetist had also cleared for surgery. She was on fasting from 6 a.m.
48. The major contention of the opposite parties is that death was not on account of bronchopneumonia but on account of Mendelson's syndrome (aspiration pneumonia), which is a rare and accepted complication of general anaesthesia. We find that at the time of evidence the contention of the complainants is that lower respiratory tract infection was present and the same is manifested by crepitations/ and that the deceased was already having serious lower respiratory tract infection. It is mentioned in the complaint that the deceased was having bronchopneumonia at the time she was taken from surgery. We find that the above contention cannot be countenanced. It is absolutely unlikely that patient would not have revealed her physical condition to the Gynaecologist ie, O.P.3 or to Dr.Anitha Thomas or to the Anaesthesiologist. It is also unlikely that the above doctors would not have ascertained the condition of the patient by clinical examination which they would have certainly done as pneumonic condition is a severe affliction and the patient would have serious physical discomfort and higher respiratory rate etc. Manifestations of fever, cough, chest discomfort, head ache, abdominal pain etc would be present. Many patients will appear actually ill. (Current Medical Diagnosis Treatment Edn. By Lawrence M.Tierny, J.R etc page 251, 45th Edn). It is also to be noted that the time of death recorded vide Ext.A4 case sheet is 9.05 am on 01.06.04. The procedure started at 9.05 am on 31.05.04. The procedure ended and the patient was extubated at 10 am. It is shortly thereafter that the patient developed bi lateral crepitations and respiratory distress. It is after about 24 hours thereafter that the deceased died. It is possible that during the above period pathological changes would have taken place. In the histo pathological report ie, Ext.A5 the relevant anotonomical diagnosis is massive intera alveolar hemorrhage lungs with focal broncho pneumonic change. It is also pertinent to note that Mendelson's syndrome which is acute aspiration of gastric contents and in bronchopneumonia similar manifestations will be present in the lungs. Broncho pneumonia is a bacterial infection. The Forensic surgeon who conducted the postmortem has admitted that no specific pathogenic organism was detected in the histopathology report. As evident from Ext.A4 at Page 7 the anaesthesia notes medicines administered on noting respiratory redress are injection deriphylline 2cc, injection efcorlian 100mg and injection aminophylline 125 mig. Thereafter morphine and lasix etc etc. The same are medicines that would be administered for respiratory redress whether the origin is bronchopneumonia or aspiration pneumonia.
49. It is also relevant to note that the lower tract infection without manifestations of pneumonia as is alleged to be in the present case, in order to develop into acute bronchopneumonia would take much longer period and not just about one hour, the period taken for the procedure. It is not at all possible that during the above period the lower tract respiratory infection got aggravated and assumed the form of bronchopneumonia and respiratory distress was occasioned on account of bronchopneumonia. PW2 the Forensic Surgeon has admitted in the cross examination that bronchopneumonic changes can be seen in aspiration pneumonia. In Ext.A5 histopathological report also in the anatomical diagnosis, what has been noted is focal bronchopneumonic change. Of course, PW2 has stated that the primary cause of death is bronchopneumonia and the other four pathological changes/multi organ failure mentioned in Ext.A5 have contributed to the primary cause. PW2 could not point out any specific reason in support of the above opinion and as to why the complication developed is not due to aspiration of gastric fluids. She has admitted that extensive hemorrhage in the alveoli is a feature that can be seen in bronchopneumonia as well as in ARDS (on account of aspiration pneumonia). She has also agreed with the preposition put to her as noted in ROBINS Text Book of Pathology at page 677 that in fatal cases of ARDS there is often super imposed bronchopneumonia.
50. PW3 the expert examined at the instance of the complainants has also stated on verification of Ext.A4 case sheet that occasional crepitations indicated only a mild disease; and that she was having normal pulse and respiratory rate and that there was no symptom of bronchopneumonia before surgery and no history of cough with sputum; and no history of breathing difficulty except on the 28th. He has also stated that intra operatively and post operatively adequate care was given; and that inspite of all precautions silent aspiration can occur; and that standard precaution to prevent Mendelson's syndrome was taken in the instant case.
51. Ext.A6 the report of experts of the panel constituted vide, the circular of the Home Department that after the registration of criminal case the matter is to be referred to the expert panel constituted we find is of limited significance. The investigation officer as per the circular is only to consider the views expressed by the expert panel/ apex body which include the prosecuting counsel as well. As per Ext.A6 the expert panel has observed that the surgical procedure should have been postponed as there were occasional crepitations and that the same indicated lower respiratory tract infection. It is pointed out by the counsel for the opposite parties that the expert panel included PW2, the same Forensic surgeon who has already formed an opinion in the matter and that the body did not contain any specialist of the relevant branch of medicine ie, gynaecology or anaesthesia. Of course it is mentioned in Ext.A6 that gynaecologist was consulted. But we find that there is no finding in Ext.A6 that it was the respiratory tract infection that got aggravated and became acute bronchopneumonia and the same led to respiratory distress and death. The causative factor should have resulted in the fatality for implicating the Gynaecologist and Anaesthesiologist. In Ext.A7 the opinion of the apex body which is the appellate forum constituted under the particular Government circular ie, Ext.B1 it is mentioned that at the time of surgery the procedure was changed to laparoscopy sterilization and that there is no definite explanation for the change of procedure. We find that there is no case for the complainants that the procedure was changed to laparoscopic sterilization only at the time of surgery. It is also mentioned therein that in spite of basal crepitations in the lung field general anaesthesia was given. The other point highlighted in Ext.A7 is the practice of visiting consultants in the 1st opposite party hospital that has resulted in the doctors not taking the responsibility of the patient fully and hence the hospital is negligent. It is noted that for the above reason there was negligence on the part of all treating doctors ie, the consultant Dr.Santhamma Mathew (O.P.3), Assistant. Dr.Anitha (she is not a party herein) and Anaesthesiologist Dr.Sajin Varzheese (O.P.4). We find that the relevance of Ext.A7 with respect to the present proceedings is limited as in the case of Ext.A6 report as there is no finding that it was the above dereliction ie, subjecting the deceased to general anaesthesia in spite of occasional crepitations, that resulted in the death of the patient. The opposite parties have also produced the order of the High Court of Kerala in Criminal MC.2144/09 staying the further proceedings in the Criminal Case.
52. Further the evidence of DW5 the former Professor of Forensic Medicine that in the instant case Ext.A3 postmortem report showed that the stomach contained only 30 mm of biles stained fluid and that usually the stomach contained 50ml to 60ml of fluid and that it indicated aspiration of the fluid into the stomach. He has also stated that in the histopathological report the stomach juice reaction is mentioned as neutral whereas the stomach fluid is acidic. He has also pointed out the possibility that bile from deudinum neutralizing the acid. The above part of evidence has not been contradicted. He has deposed that in the instant case there is definite evidence of aspiration of the bile into the stomach relying on ROBINS Text Book of Pathology. We find that the evidence adduced would rule out the possibility of the lower respiratory tract infection aggravating into bronchopneumonia and resulting in ARDS during the procedure. It appears that Mendelson's syndrome is the possible reason herein for ARDS and the resultant in death.
53. Of course we find that there are laches on the part of the Anaesthetist in not subjecting the patient to a chest X-ray prior to declaring her fit for general anaesthesia. It is clearly mentioned at Page 33 of Bailey and Love's Short Practice of Surgery (24th edn) that chest x-ray is one of the common investigations for surgical patients. Of course in the instant case the patient was given injections for possible chest infection from 27/5 onwards and thereafter tablets including antibiotics. It is thereafter on clinical examination that the 4th opposite party was satisfied that the deceased is fit for general anaesthesia. We find that there is lapse on the part of the 4th opposite party anaesthetist and the Gynaecologist in not subjecting the patient for a chest X-ray.
54. So also the contention that the fitness for surgery is a matter exclusively within the province of the Anaesthetist and the Surgeon has no role in it and that the surgeon is not responsible for the complications on account of the lapses on the part of the anaesthetist cannot be upheld. In this regard we are inclined to agree with the opinion expressed by the Apex Body in Ext.A7 report that the full responsibility should fall with the treating doctor. There cannot be any water tight compartments in the treating segment, especially, surgery. The over all responsibility is with the surgeon. It has to be noted that it was the surgeon/Gynaecologist (O.P.3) who postponed the surgery on 29.05.2004 when the deceased was posted for surgery and was in surgical uniform. O.P.3 felt that surgery is not to be done on 29.05.04 on examination of the case sheet and prescribed antibiotics and postponed the surgery. It appears that the practice in the 1st opposite party hospital of another doctor presenting the patient for surgery and the Senior Gynaecologist or the consultant in the concerned area conducting the surgery without the consultant examining the patient earlier cannot be at all be approved. It appears that on 29.05.2004 even pre-anaesthesia check up has not been done when the patient was put in the surgical attaire. It has been mentioned by the expert witnesses that it is ideal to have the pre-anaesthesia check up on the previous day if possible. It was even contended that pre-anaesthesia check up was done in the instant case in the operation theatre which has been denied by DW4 (4th opposite party).
55. The contention that as per the Guidelines of the Ministry of Health and Family Welfare laparoscopy sterilization should not have been done during post-partum period and hence there is negligence, we find, is not supported even by the evidence of PW4 the expert examined at the instance of the complainants. It is seen from the Forward of the "Standards of Female and Male Sterilization" that the same is issued for the Programme Managers of the National Family Welfare Programme. The evidence is to the effect that laparoscopic sterilization can be done during post-partum period if the expertise and facilities are available. Hence the lapse alleged in this regard stands not established.
56. Another contention stressed is that the patient should not have been subjected to general anaesthesia . It is the evidence of the experts examined by the complainant themselves (PW3) that the general anaesthesia is the ideal method in laparoscopic surgery as there are possibilities of the patient becoming the non-operative if local anaesthesia is given. PW4 has also stated that pain and suffering during surgery is less if General Anaesthesia is administered and that the preference of the patient will be taken into consideration. It is in evidence that most of the patients preferred General Anaesthesia. The patient remains conscious under local anaesthesia and hence the possibility of having certain amount of pain and consequent non co-operation. We find that the above contention has no merits and the opposite parties cannot be found fault with for opting for general anaesthesia.
57. The consent obtained is dated 28-05-2004. It is the contention that fresh consent ought to have been obtained for the surgery performed on 31-05-2004. The explanation is that it was only a postponed surgery. The same surgery under general anaesthesia was intended to be conducted on 29-05-2004. But the same was postponed. The consent executed is in a printed format. It is very general in nature. The particular surgery is not mentioned. There is an application for sterilization surgery signed by the patient also. We find that the consent form executed by the first complainant and a witness does not specify the particular procedures as it did not contain the name of the particular surgery or the type of anaesthesia. We find that there is lapse on the part of the hospital authorities in this regard.
58. All the same as noted above, the evidence would indicate that it was not on account of the general anaesthesia administered on the patient that ARDS developed and the patient died. It is also not established that the patient had acute lower respiratory tract infection or was having pneumonia when GA was administered or that the same caused ARDS. The evidence would show that death in the instant case was on account of the onset of Mendelson's syndrome, an accepted and rare complication and that the standard precautions to prevent the same was taken, but failed. As pointed out by the Counsel for the 3rd opposite party, there must be direct connection between the injuries suffered and the treatment given and only then the doctors can be held to be guilty of negligence [SMTP Venkata Lakshmi Vs Dr. Y. Savitha Devi III (2001) CPJ 402]. In the circumstances, it cannot be held that reasonable care was not taken by the concerned doctor in subjecting the patient to general anaesthesia. An error of judgment is not proof of negligence on the part of the medical profession [Jacob Mathew Vs State of Punjab and Anr. AIR (2005) SC 3180]. So also he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available. So also failure to use special or extraordinary precautions, which might have prevented the particular happening cannot be the standard of judging the alleged negligence (op.cit). In the circumstances and in the light of the evidence adduced, we find that its stands not established that it was on account of the negligence of opposite parties 3 and 4 that the death resulted in the instant case. Hence the complaint stands dismissed.
JUSTICE K.R. UDAYABHANU : PRESIDENT M.K. ABDULLA SONA : MEMBER APPENDIX Witness for the Complainant PW1 T. Balakrishnan PW2 Dr. Sreekumari. K PW3 Dr. B. Gopalakrishnan PW4 Dr. Sheela Shenoy PW5 Dr. Kumari G. Prema Exts. for Complainant A1 Promotional prospects of
Smt. Sudhakumari dated 13-01-2005 issued by Chief Accounts Officer, BSNL.
A2 Certified copy of FIR dated 01-06-2004
A3 Postmortem certificate of Smt. Sudhakumari dated 01-06-2004 from Department of Forensic Medicine, Medical College, Thiruvananthapuram.
A4 Medical Records of SP Fort Hospital relating to Smt. Sudhakumari and a copy of pathological report dated 02-06-2004 from Department of Pathology, Medical College, Tvpm.
A5 Histopathological Report
A6 Copy of medical report from the Medical Board convened on 16-01-2009 in the office of the D.M.O.
A7 Copy of Minutes of the Apex body held on 28-08-2009 in the Chamber of DHS
Witness for the Opposite Party
DW1 Dr. Santhamma Mathew
DW2 Dr. P.B. Sulekha Devi
DW3 Dr. S.Y. Leelamony
DW4 Dr. Sajin Varghese
DW5 Dr. V. Kanthaswamy
DW6 Dr. V. Mahadevan
DW7 Dr. P. Asokan
Exts. for Opposite Party
B1 Govt. Circular Memorandum No. 73304/SSB3/2007/HOME dated 16/06/08 from Home (SSB) Dept, Tvpm.
JUSTICE K.R. UDAYABHANU : PRESIDENT
M.K. ABDULLA SONA : MEMBER
[HONORABLE JUSTICE SHRI.K.R.UDAYABHANU]
PRESIDENT