National Consumer Disputes Redressal
M. Rajavadivelu vs Janamma Hospital & Ors. on 4 March, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 61 OF 2007 (Against the order dated 13.11.2006 in OP No. 251/98 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) M. Rajavadivelu S/o Marimuthu Pillai 3, 2nd Street, Bakthavachalam Nagar Adyar Chennai-600020 Appellant Versus 1. Janamma Hospital 38, Venkatkrishna Iyer Road Raja Annamalaipuram Chennai-600028 2. Dr. V.R. Kanakavalli, MBBS, DGO 38, Venkatkrishna Iyer Road Raja Annamalaipuram Chennai-600028 3. Dr. Mythili Anesthetist 24, Lattice Bridge Road Adyar Chennai-600020 4. R. Selvarani D/o Rajavadivelu 3, 2nd Street, Bakthavachalam Nagar Adyar Chennai-600020 Respondents BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Appellant : Mr. Himanshu Munshi, Advocate For Respondents : Mr. T.R.B. Sivakumar, Advocate for R-3 Pronounced on 4th March, 2013 ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by M. Rajavadivelu, original complainant before the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (hereinafter referred to as the State Commission) and Appellant herein being aggrieved by the order of that Commission, which had rejected his complaint of medical negligence against Opposite Parties Janamma Hospital and 2 of its doctors, Respondents No. 1, 2 and 3 respectively herein.
2. In his complaint to the State Commission, Appellant had contended that his late wife Mrs. Vijayalakshmi Rajavadivelu alias Vijaya (hereinafter referred to as the Patient), who was otherwise keeping good health, had been admitted to Respondent No.1/Hospital on 02.01.1998 for undergoing Hysterectomy, which was done on 03.01.1998 by Respondent No.2 under general anaesthesia administered by Respondent No.3. She was transfused one bottle of blood during the surgery. Appellant was thereafter informed that the surgery was successful and the Patient would recover within one hour. However, at 9.45 a.m. Appellant was told by the Respondents that the Patient had developed breathing problems and would need to be shifted to the nearby Chennai Kaliappa Hospital for ventilator support. An ambulance was sent from that Hospital and the process of shifting the Patient to the ambulance took about 10 minutes. No doctor accompanied the Patient in the ambulance and only a nurse was present. It was contended that during the transit period in the ambulance Patient was again deprived of oxygen since the oxygen was not pumped to the Patient through an ambu bag, which is required for patients with breathing problems. This delay proved to be fatal because as stated in the admission sheet of Chennai Kaliappa Hospital it was found that the Patient was not conscious and the pulse rate and heart sounds were not heard. She was shifted to the ICCU and connected to the ventilator with a diagnosis of Hypoxic Encephalopathy caused due to lack of oxygen to the brain. Tracheotomy was done on 04.01.1998 and thereafter Patient was shifted to Ramachandran Medical College Hospital which had better medical facilities, like MRIs etc. However, in spite of all efforts, Patient passed away on 03.04.1998. It was contended that the Patient, who was healthy and as per the pre-operative tests like ECG and blood tests all her vital parameters were absolutely normal, expired because of the medical negligence and deficiency in service on the part of Respondents. After the surgery was over when there was breathing problem, life-saving equipments like a ventilator were not available in the Respondent No.1/Hospital whereas if Patient had been put on a ventilator and sufficient oxygen to the brain had been ensured she would not have suffered Hypoxic Encephalopathy, which caused her death. The time taken to shift the Patient to the Chennai Kaliappa Hospital took about an hour, which under the circumstances, as stated earlier, proved to be fatal. Appellant, therefore, issued a legal notice to the Respondents claiming a sum of Rs.19.50 Lakhs as compensation and damages. In response, Respondents met Appellant to discuss a compromise, which, however, did not go through. Appellant, therefore, filed a complaint before the State Commission on grounds of medical negligence and deficiency in service against the Respondents and claimed Rs.16.50 Lakhs on account of medical expenditure and Rs.3 Lakhs as damages.
3. Respondents on being served filed a written rejoinder denying the allegations of medical negligence and deficiency in service against them. It was stated that the Patient, who had been treated on earlier occasions for various ailments by Respondent No.2 and was thus well-known to her, had prior to conducting the Hysterectomy undergone all the tests and precautions in the Respondent No.1/Hospital to ensure that surgery was not contraindicated. The surgery was conducted by Respondent No.2, who is a well qualified Gynaecologist with four decades of experience and who had performed a number of similar surgeries. Respondent No.3, who administered the general anaesthesia, was also a well-qualified and capable anaesthetist and the procedure was fully successful. Post-surgery the Patient had regained consciousness but because she did not totally respond to the satisfaction of Respondent No.2 and because of her long association with the Patient, Respondent No.2 thought it advisable to transfer her to another Hospital dealing with cardiac problems. It was under these circumstances that the Respondents contacted doctor at Chennai Kaliappa Hospital, who immediately sent an ambulance with a trained attendant, and it was only after ensuring the availability of oxygen in the ambulance that the Patient was shifted.
The Patient was stable on reaching Chennai Kaliappa Hospital and from the records, it is clear that the cardiac arrest occurred in the Chennai Kaliappa Hospital while the Patient was in the process of being shifted to the ICU. Even after the cardiac arrest the Patient had survived for 3 long months which clearly indicate that death was not due to the surgery done by the Respondents or due to post-operative complications in the Respondent No.1/Hospital. It was, therefore, contended that the subsequent events cannot be attributed to the Respondents and a cardiac arrest can occur any time for which the Respondents cannot be blamed.
4. The State Commission after hearing the parties and on the basis of evidence produced before it dismissed the complaint by observing as follows :
15. There is nothing on record to show that the opposite parties had committed anything wrong in the performance of the surgery as well as the administration of the anaesthesia to the patient. Opposite party-3 as R.W.II has categorically deposed that the patient regained consciousness after surgery and that there was no episode of hypoxia during surgery and there was no reintubation after surgery.
Oxygen cylinder was available in the ambulance which carried the patient to Chennai Kaliappa Hospital. A well trained nurse had accompanied the patient. No medical code expects that the patient must be accompanied by the surgeon and anaesthetist when she is being shifted to another hospital.
Even opposite parties-2 & 3 went to the said hospital as a visitors subsequently when the patient was in I.C.U. The patient was conscious, breathing properly and her pulse rate was normal at the time she was shifted to Chennai Kaliappa Hospital. The first charge relating to negligence falls to the ground. As regards the allegation regarding the non-pre assessment tests before administering anaesthesia. The witness examined by the complainant viz., P.W.II expert has clearly admitted that he had no occasion to peruse the discharge summary as well as pre assessment chart. In the evidence of opposite party-2 & 3, it was categorically stated that all the documents were made available by opposite party-1 hospital. Anaesthetist had exercised due care and caution in administering anaesthesia. There are no allegations with regard to the administration of the anaesthesia by the complainants. It is not the case of the complainants that the death occurred due to administration of anaesthesia. The patient died only after a period of three months. The expert P.W.II has not been able to give the cause for the death. His evidence is an interested one. He has deliberately made an attempt to suppress that the death was due to reduction of oxygen carrying capacity of blood as a result of decrease in total haemoglobin. Various factors which make the reduction of oxygen carrying capacity. Long term of haemo dialysis might also cause the reduction of oxygen carrying capacity in the blood. In any event the first complainant had also admitted in his evidence that he had already got his claim from his employer by submitting a claim petition. He had not mentioned about it in his complaint, the complaint is not a bonafide one. The opposite party-3 is a Senior Anaesthetist and having rich experience for several decades. There is no legal evidence to prove the negligence on the part of the opposite parties.
5. Being aggrieved by the above order, the present first appeal has been filed.
6. Learned counsel for both parties made oral submissions before us.
7. Learned counsel for the Appellant stated that the State Commission erred in dismissing his complaint although there was clear evidence regarding deficiency in service and medical negligence on the part of Respondents. It was pointed out that vide Respondents own admission ventilator was not available in the Respondent No.1/Hospital, which necessitated shifting of the Patient to another Hospital having this facility. In the absence of this important life-saving facility, Respondents should not have conducted the Hysterectomy which is a major surgery done under general aneasthesia and in such surgeries the possibility of post-operative complications as suffered by the Patient cannot be ruled out.
Had a ventilator facility been available, the Patient would not have suffered from Hypoxic Encephalopathy caused due to non-supply of oxygen to the brain leading to her eventual death. It was further pointed out that even in the ambulance giving oxygen was delayed because the oxygen was not pumped through the ambu bag and this delay further aggravated the situation resulting in the Patient having no recordable pulse or blood pressure when she reached the Chennai Kaliappa Hospital. Dr. A. Umapathy, a senior anaesthetist working in the Department of Anaesthesia attached to Madras Medical College, had in his affidavit filed as a medical expert clearly stated that it was shocking that the Anaesthetist failed to accompany the Patient in transit to Chennai Kaliappa Hospital after alleged reintubation since it is the Anaesthetist who is responsible for immediate post-operative care especially when the Patient had breathing difficulties and required ventilator support. It was also mandatory to have ambu bag assisted oxygen supply while shifting the Patient suffering from breathing problems to another Hospital. The Respondent doctors were guilty of gross medical negligence and deficiency in service in not checking these facts before shifting the Patient to Chennai Kaliappa Hospital. Counsel for the Appellant also stated that to hide their own mistakes, the Respondents did not send the discharge summary or case sheet to the doctors at Chennai Kaliappa Hospital at the time of admission of the Patient and despite several requests these documents were not made available to the Appellant or submitted before the State Commission.
8. Learned Counsel for the Respondents on the other hand denied that there was any medical negligence and deficiency in service as confirmed by the State Commission.
There is evidence on record that prior to the surgery, the required pre-operative tests were conducted, which confirmed that the Patient was fit for surgery, including administration of general anaesthesia. The Hysterectomy was successfully completed and even the Appellant has not stated in his complaint before the State Commission that there was any deficiency in the surgery conducted by Respondent No.2. As soon as Respondent doctors noted that there was a breathing problem and because of lack of ventilator facilities in the Respondent No.1/Hospital, which is essentially a maternity Hospital and not a polyclinic, a nearby hospital where such facilities were available was contacted and an ambulance equipped with oxygen facilities in transit as also a trained nurse was immediately arranged which transferred the Patient to the Hospital having the said facilities. It was only in that Hospital that the cardiac arrest occurred for which Respondents cannot be held responsible.
9. We have considered the submissions made by learned counsels for the parties and gone through the evidence on record. The facts pertaining to Patients admission in the Respondent No.1/Hospital and a Hysterectomy being conducted after pre-operative tests confirming that she was fit to undergo the same, are not in dispute. It is also a fact that in his complaint before the State Commission Appellant had nowhere stated that there was any problem with the Hysterectomy per se.
However, it is an admitted fact and not disputed by the Respondents that soon after the surgery the Patient developed breathing problems. It is also an admitted fact that there was no ventilator facility in the Respondent No.1/Hospital, which necessitated Patient being shifted to a nearby Hospital having this facility. Appellant has contended that had a ventilator been available and the required oxygen administered to the Patient by Respondents, she would not have suffered from Hypoxic Encephalopathy which led to her death some weeks later. We find force in this contention of the Appellant.
It is medically well established that Hypoxic Encephalopathy occurs when the brain does not receive enough supply of oxygen which can be fatal because as little as within five minutes of oxygen deprivation, brain cells can begin dying. In the instant case, Respondents have themselves admitted that they took 10 to 15 minutes to transfer the Patient to the ambulance and thereafter some more time to the Hospital, which was undoubtedly fatal in this case. The Respondents should not have conducted a major surgery like Hysterectomy under general anaesthesia without ensuring that such life saving facilities were available in their Hospital. Further, they should have ensured that oxygen through the ambu bag was available in the ambulance because a Patient with breathing problems cannot breathe the required oxygen through the oxygen tube/catheter attached to the oxygen cylinder. The medical history of the Patient recorded at the time of her admission confirms that at 1100 hours on 03.01.1998 Hypoxic Encephalopathy had already occurred because as per the admission sheet Patient was not conscious, not responding to painful stimuli, very pale, no breathing, pulse not felt and heart sounds not heard. Therefore, the Respondents contention that the Patient only had some breathing problems and was otherwise stable is not borne out by the documentary evidence on record. It also does not help the Respondents case that there was no problem with the Hysterectomy per se because soon after the surgery, post-operative complications developed and due to lack of a ventilator in the Respondent No.1/Hospital the Patient developed a fatal complication.
10. What constitutes medical negligence is now well settled through a number of judgments of this Commission as also of the Honble Supreme Court of India. One of the principles to test medical negligence is whether a doctor exercised a reasonable degree of care and caution in treating a patient [Supreme Court Case Indian Medical Association v. V.P. Shantha (1995) 6 SCC 651. Applying this principle in the instant case, medical negligence and deficiency in service is established because the Respondents conducted a major surgery under general anaesthesia without taking due care and caution to ensure that critical life-saving equipments like the ventilator were available in case of post-operative complications, which can occur following major surgery.
11. Appellant has sought a total compensation of Rs.19.50 Lakhs, which includes medical expenditure of Rs.16.50 Lakhs. From the documents on record pertaining to the medical expenditure, we are unable to conclude that this amount was spent because no documents to show that this amount had been paid by the Appellant had been filed. The documents filed are in the form of demand list which indicate that the total demand from Ramachandran Medical College Hospital was about Rs.4 Lakhs and from Chennai Kaliappa Hospital it was Rs.1,43,000/-. However, it is not clear what was actually paid. Therefore, taking into account this fact as also other aspects pertaining to this case, we are of the view that a compensation of Rs.3 Lakhs would be reasonable.
12. To sum up, taking into account the totality of facts and respectfully following the judgment of the Honble Supreme Court cited above, we are unable to uphold the order of the State Commission and set aside the same. Respondents are jointly and severally directed to pay the Appellant Rs.3 Lakhs within a period of three months, failing which it will carry interest @ 9% per annum for the period of default.
13. The present appeal is accordingly allowed on the above terms.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh