National Consumer Disputes Redressal
Dr. G. Vivekananda Varma vs Chinta Bharamaramba And Ors. on 16 May, 2006
Equivalent citations: 3(2006)CPJ104(NC)
ORDER
Rajyalakshmi Rao, Presiding Member
1. The revision petition is filed against the order passed by the State Commission in FA No. 1079/1996 dated 30.12.2005 whereby appeal of the petitioner was dismissed.
2. Brief facts of the case are:
The petitioner Dr. G. Vivekananda Varma performed Tonsillectomy operation on thirty c years old Mr. Veerabhadra Kumar on 13.6.1993 at 1.00 p.m. in his nursing home after administering local anesthesia and he died. District Forum and State Commission came to the conclusion that no material was brought on record to show that the patient was treated to release from Laryngeal spasm. The patient was shifted in unconscious state to Swatantra Hospital and then to NI IMS, which is a specialty hospital, on 25.6.1993 where the final diagnosis given is as follows:
Post anoxic encephalopathy with diffused brain damage Collapse right upper Post Tonsillectomy
3. The statement made by the petitioner is that he performed Tonsillectomy at 1.00 p.m. at his nursing home after giving anesthesia himself. When the complication arose the petitioner called for help of Dr. Kameswari, a qualified Anesthetist. Dr. Kameswari gave an affidavit that she reached the hospital at 1.00 p.m.; that she observed that the patient's pulse rate, B.P., heart rate were all normal; that the petitioner had already connected the patient to Boyle's apparatus and arranged endotracheal intubation; and there spontaneous tube was reintroduced again within a period of 10 minutes; cyanosis disappeared at 3.30 p.m.; patient was normal, at 4.30 p.m. patient's condition was stable and at 5.30 p.m. another anesthetist, Dr. C.S. Murthy also came and endotracheal tube was disconnected, respiration 20 p.m. one bottle of blood was also given and only when the oxygen cylinders were exhausting, the patient's relatives were advised to take him to Rajahmundry. She stated in her affidavit that Dr. Verma is qualified to give local anesthesia although no reasons are given as to why the petitioner could not have asked the anesthetist to come and assist before the surgery itself.
4. The fact that operation was started at 1.00 p.m. and anesthetist was also called on 1.00 p.m., there is a discrepancy in the submission made by Dr. Kameswari, Anesthetist which does not coincide with the statement made by the petitioner regarding the timing. If the said surgery took place at 1.00 p.m., the anesthetist could not have received the call earlier than when the complication arose in the operation theatre and she could not have reached by 1.00 p.m. The case sheet notes that Dr. Kameswari and a Physician Dr. B. Raghavendra Rao attended on the patient at 1.00 p.m. on 13th cannot be relied upon considering the discrepancy on the very face of the record.
5. On the basis of this, State Commission did not believe the averments of the petitioner and the evidence of Dr. Kameswari and on the basis of Doctrine of principle res ipsa loquitur dismissed the appeal. NIIMS gave diagnosis of the patient and the record clearly establishes that the patient has spasm either laryngeal or broncho which leads to cardiac arrest unless it is treated instantly. In such situation, brain reserves oxygen nearly for 3 minutes. Respondent's case is that when such symptoms of spasm were present, in this case, the petitioner did not arrange oxygen within 3 minutes but only gave cardiac massage which is of no use. The patient was almost in coma condition when he was taken to Swatantra Hospital and the patient was in unconscious state from 14.3.1993 which was the date of admission till 18.6.1993 when he was taken to NIIMS. The case sheet given by the petitioner did not explain as to what happened during the Tonsillectomy operation, administration of anesthesia and monitoring when the complication arose which was only within the knowledge of the petitioner and no one else. Patient clearly had Anoxic Excephalopathy and died within 11 days of a simple Tonsillectomy operation.
6. As regards non-hiring of an anesthetist for performing Tonsillectomy and instead giving anesthesia himself, the petitioner alleged that the patient's attendants expressed their financial difficulties and, therefore, he did not avail the services of a separate Anesthetist. This has not been admitted by the attendants of the patient. The case sheet and affidavit filed by Dr. Kameswari show ambiguity in the timing as to when she arrived and this cannot be relied upon. If one has to believe Dr. Kameswari's affidavit that she was at the hospital at 1.00 p.m. then the question of not having anesthetist on hand when the complication arose has no meaning. Hence, the affidavit given by petitioner on his behalf does not help considering the discrepancy in the statement of the other doctors who are called upon by him. It is clear that the petitioner was trying to cover up the mishap that occurred by getting affidavits of his colleagues which clearly show discrepancies.
7. In a similar case National Commission has decided in Reji Mathew and Anr. v. Dr. Radha Krishnan and Anr. F.A. 47 of 1996 that in absence of medical record to be relied upon to prove that the Doctor is not guilty of medical negligence, it was held that the burden or onus of proof is on the Doctor who has done the surgery to prove that necessary precaution has been taken. Similar view has been taken in Savita Garg (Smt.) v. Director, National Heart Institute by the Apex Court. In this case the petitioner Surgeon gave anesthesia himself and has not shown how the complication of "Anoxic Encephalopathy" arose that whether immediate action was taken to avoid the complication and whether timely treatment has been imparted to the patient to avoid Anoxic Encephalopathy is c not shown by the petitioner. From the records of Swatantra Hospital and NIIMS it is seen that the patient died following Anoxic Encephalopathy suffered during Tonsillectomy. With regard to this we agree with the findings of the State Commission that there is deficiency " in service and negligence by the petitioner.
8. After perusing the record, orders of the State Commission and the District Forum and hearing the petitioner, it is clear that Doctrine of res ipsa loquitur applies in the present case. There is no illegality or jurisdictional error in the order passed by the State Commission warranting interference in revisional jurisdiction under Section 21(b) of Consumer Protection Act, 1986. Hence, Revision petition is dismissed.