National Consumer Disputes Redressal
Shri P. Radhakrishaniah Setty vs Dr. B. Aruna on 16 December, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 122 OF 1997 Smt. Gowri Devi (Dead through legal representatives) 1. Shri P. Radhakrishaniah Setty BCC Road, RK Complex, Pamidi 515 775 ANANTPUR DISTRICT Andhra Pradesh 2. Master Anil Sai C/o. Shri P. Radhakrishaniah Setty BCC Road, RK Complex, Pamidi 515 775 ANANTPUR DISTRICT Andhra Pradesh ........ Complainant(s) Vs. 1. Dr. B. Aruna Snehlata Nursing Home Ganga Gowri Cine Complex, New Town, Anantpur District Andhra Pradesh 2. Branch Manager The New India Assurance Co. Ltd. 610701 Branch Office 15/84-A 1st Floor, Opp. The Anantapur Club Subhash Road, Anantapur 51500 Andhra Pradesh .Opposite Party(s BEFORE: HONBLE MR. JUSTICE K.S.GUPTA PRESIDING MEMBER HONBLE MRS. RAJYALAKSHMI RAO MEMBER For the Complainant (s) : Mr. K.P. Toms, Adv. For the Opposite Party (s) : Ms. Radha, Adv. Pronouncement on:16/12/2009 ORDER
PER MRS.
RAJYALAKSHMI RAO, MEMBER The original complainant Mrs. Gowri Devi filed the complaint against the Opposite Party Dr. B. Aruna alleging medical negligence in conducting safe delivery. After the complaint was filed, Mrs. Gouri Devi died. With the permission of the Commission, amended memo of parties was filed, by which the petition was substituted in the name of Shri P. Radhakrishnaiah Setty, complainant No.1; Master Anil Sai, son of Mrs. Gouri Devi, complainant No.2; Dr. B. Aruna O.P. No.1 and the Manager, New India Assurance Co. Ltd O.P. No.2.
Brief facts of the case are that:
Mrs. Gouri Devi was married to Shri Srinivasulu, who was a resident of Yemmiganur, Kurnool District, Andhra Pradesh. She was married at the age of 22 years. In her six months of pregnancy she came to the parents house for delivery as per the custom in their community. She was maintaining normal and good health during her periodical health check ups by O.P. No.1. Snehalatha Nursing Home was being run by O.P. No.1 -Dr. Aruna. Mrs. Gowri Devi was admitted in the nursing home for delivery on 05.11.1995 at 5.00 p.m. O.P. No.1 examined her and informed that the delivery would be normal. But some time later, she suggested caesarian operation saying that normal delivery may be difficult and may endanger her life. As there was no alternative, Mrs. Gouri Devi and her parents agreed to the same at 6.00 p. m.
Thereafter, she delivered a healthy male child, but the parents were informed that after closing the Uterus the patient developed sudden cardiac arrest and she was treated by the Anesthetist.
Parents could only see their daughter at 9.00 p. m. and found that the patient was not conscious, not responsive and was struggling for breathing. Parents were apprehensive of her survival but the Anesthetist assured that she was out of danger and she will become normal in due course.
Thereafter, the parents came to know that instead of giving general anesthesia, opposite parties had given spinal anesthesia and that resulted in complications to the patient.
Mrs. Gowri Devi was discharged on 06.11.1995 with instructions that she be shifted to a better and bigger hospital at Bangalore since the Snehalatha Nursing Home does not have the required facilities.
She was accordingly admitted on 07.11.1995 in Manipal Hospital, Bangalore. Till 09.12.1995 she was an in-patient in Manipal hospital and underwent treatment therein. Thereafter, she was shifted to National Institute of Mental Health and Neuro Services, Bangalore. From 09.12.1995 to 15.03.1996 Mrs. Gouri Devi was an in-patient there. The patient was not able to move her limbs; was confined to bed; could not speak and there was no improvement in her condition from 06.11.1995 to till her death. It is stated that it was due to medical negligence of opposite party while conducting caesarian operation or there was negligence while giving anesthesia to the patient, which led to the present pitiable condition of the patient. In order to escape the liability, opposite party has come up with the new history that the patient was suffering from epileptic fits from earlier. For the mental and physical agony that she suffered at the age of 24 years and for the additional cost of dependency on her parents and others, the following relief has been claimed by the complainant:
a) Compensation to the complainant for a sum of rupees Twenty Five lakhs;
b) Award costs of this compliant;
c) And grant such other reliefs as the Honble Commission deems fit and just in the circumstances of the case.
DETAILS OF CLAIM
1. Expenses incurred in Snehalatha Nursing Home from 5.11.1995 to 7.11.1995 ..
5,297.00
2. Expenses incurred in Manipal Hospital, Bangalore 7.11.1995 to 9.12.1995 .. 74,768.00
3. Expenses incurred in NIMHANS Hospital, Bangalore from 9.12.1995 to 16.03.1996 .. 45,800.00
4. Medicine expenses at Pamidi from 18.3.1996 to 25.10.1996 .. 10,433.00
5. Doctors fee for checkup from 18.03.1996 to 18.10.1996 at Rs.500/- per month .. 3,500.00
6. Nurse charges Rs.200/- per month from 18.03.1996 to 18.10.1996 1,400.00
7. Ambulance charges from Bangalore to Pamidi 2,000.00
8. Dhobi charges for washing clothes liner etc. of the patient Rs. 300/- per month 2,100.00
9. Cooking charges for Mutton Soup and N.V. Items 3,150.00
10. Servant to attend on patient Rs.600/- p.m. for 7 months 4,200.00
11. Patient Dietary Rs.34/- per day 7,140.00
12. Lodging expenses at Bangalore to the persons attending on the complainant, travel, phone and other miscellaneous exp. 7,200.00
13. Travel, Phone and other miscellaneous expenses 6,500.00
14. Compensation for mental, physical agony to the complainant, her parents, husband 10,00,000.00
15. Future expense to the complainant through out her life for both medical dietary and nursing charges 13,00,000.00
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Total 24,73,488.00
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REPLY OF THE OPPOISTE PARTIES:
It is stated that the complainant had came to O.P. No.1s nursing home for check ups during her pregnancy. She was brought to the nursing home after making an attempt for normal delivery at her village for about 12 hours, which is at a distance of 33 kms from Anantapur where the nursing home is situated. The patient at the time of admission was totally exhausted because of trial labour for 12 long hours and as she was in dry labour and the head of the child was also jammed, the caesarean operation was inevitable. O.P. suggested caesarean operation in the facts and circumstances of the patients condition and with utmost medical care the said operation was conducted.
Unfortunately, after closing of uterine layer the patient developed sudden cardiac arrest and the same was observed by the Anesthetist and immediately all the care which was required to be taken to save the life of the patient was taken. This complication, which arose, was not on account of negligence or deficiency on the part of the O.P. No.1 or the Anesthetist, but due to the fact that the complainant and her relatives did not disclose that she was suffering from epileptic fits from a long time. A general anesthesia would have been administered to the complainant instead of the spinal anesthesia. It is stated that the normal patients who are not suffering from epileptic fits, hypertension, special deformities, polio myelitis and neurological etc., spinal anesthesia is always preferred because all full term pregnant patients are considered to be on full stomach due to delayed emptying. If general anesthesia is administered on a full stomach there is a risk of acid aspiration into the lungs, which is fatal, and to avoid this complication, spinal anesthesia was preferred.
O.P. No.1 immediately advised the attendants of the patient to take the patient to Banglore city on 06.11.1995, but it is the relatives who had delayed the same and taken her to Banglore on 07.11.1995. O.P. No.1 had deputed a technician with oxygen support from the nursing home.
The patient was in Manipal hospital up to 09.12.1995 and thereafter shifted to National Institute of Manipal health and Neuro Services, Bangalore. O.P. No.1 has no knowledge of the condition of the complainant thereafter. It is stated that the anesthetist had taken proper care in administering anesthesia and that he is an experienced anesthetist.
It is stated that the entire complication has arisen on account of the fact that the patient was suffering from epileptic fits and not on account of medical negligence as alleged. The record of Manipal hospital clearly shows that the patient had suffered tonic clonic seizure during the pregnancy, which itself clearly establishes that the complainant does not come forward with true version. O.P. No.1 urged for dismissal of this petition, which is baseless as averments were not true.
Dr. Vinay Mahendrakar, Anesthetist and Dr. D. Ramanjaneyulu, Civil Asst. Surgeon, P.H. Centre Peddavaduguru, Anantapur District, A.P. have filed their affidavits. P. Radhakrishnaiah, father of the complainant and G. Srinivasulu, husband of the complainant also filed their affidavits, which are placed on record. Thereafter, an application for impleadment of legal representatives was moved by the counsel for the complainant as the original complainant Mrs. Gowri Devi expired and accordingly the complaint was amended. The names of complainants father Mr. R. Radhakrishnaiah Setty is shown as complainant No.1 and the son of the complainant Master Anil Sai, aged about 7 years at that time, is shown as complainant No.2. This was allowed by the Commission accordingly.
Affidavits by way of evidence by both the parties were filed and cross-examination of complainant and opposite parties was completed. On behalf of Opposite Party, affidavits of Dr. Prabhakar Rao, Professor Anesthesiology and Dr. Vijay Mahendraker, Anesthesiologist have been filed. Local Commissioner was appointed for recording cross-examination of Dr. Prabhakar Rao and Dr. Vinay Mahendraker. On the application filed by the complainant and O.P. No.1, Shri Ravi Kumar was appointed as local Commissioner, who conducted the cross-examinations, which are placed on record. Meanwhile, an application was filed by the husband of the complainant stating that he incurred the expenses for treatment of his wife and not his father-in-law. He further stated that his minor son was staying with him and continuing his education. Since his application was dismissed by this Commission, he approached the Honble Supreme Court in S.L.P. No. 1772 of 2004 and the Honble Supreme Court adjourned the matter to get the instructions as to whether complainants are willing to deposit the entire compensation received in the name of the minor and to be received by the minor on attaining the majority.
After cross-examinations were conducted, an application was filed by the complainant to implead the Insurance Company and the complainant was permitted to implead the Branch Manager, New India Assurance Co. Ananthapur.
As per the decision of elders in a Panchayat the settlement was arrived between Mr. Radhakrishnaiah Setty, father of Mrs. Gowri Devi and Sreenivasulu Setty, husband of Gowri Devi on 22.12.1998 and it was held by the elders that Sreenivasulu Setty should send Rs.4,000/- per month towards the medical expenses of Gouri Devi till her life time and the rent of the shop Maligi Rs.1300/- would be deposited in a Bank or post office to the account of minor Anil Sai, apart from keeping a fixed deposit of Rs.1,00,000/- in his name in any Bank or post office till the majority of the boy. It was also decided that the Minor - Anil Sai, who is the legal heir of G. Kasi Viswanath Setty and G. Sreenivasulu Setty, has every right on all of their present and future acquired movable and immovable properties. In respect of compensation that would be receivable from this complaint, it was decided that after deducting the expenses incurred by P. Radha Krishnaiah, Anil Sai would be entitled for the same and no one should cause impediments for the same.
Mr. Radhakrishnaiah filed an affidavit and stated that Master Anil Sai would be entitled to the compensation after deducting the expenses incurred by him for this litigation. He contended that the husband of the deceased Gowri Devi had re-married and has a child from the second marriage and the behaviour of the husband, when his wife was sick, speaks volumes of his conduct of taking interest in this petition now so that he could get the compensation awarded by the Commission.
The Complainant filed an amendment application to add the minor child Master Anil Sai in application dated 10.5.2002 as complainant No. 2 which was allowed by the order dated 4.3.2003.
By the order dated 15.5.2007, National Commission impleaded New India insurance Co. as OP No. 2 on the application filed by OP No.1.
VERSION OF THE COMPLAINANT Learned counsel for the complainants Shri K.P. Thomas submitted that:
1) It is due to the medical negligence of O.P. No.1, which has resulted in untimely and premature death of Gowri Devi, and that she was 25 years old at the time of her death i.e., on 09.11.1999. He further submitted that she was hale and healthy and no complaints of ill health were there before the delivery.
2) Spinal anesthesia was administered for surgery. However, the condition of the deceased deteriorated immediately after the surgery. Even as per the affidavit of Dr. Vinay Mahendrakar (the anesthetist) filed on behalf of O.P. No.1, the deceased after the surgery did not respond to verbal stimuli and also her radial pulse was found to be absent. There was no pupilary dilation as well. Admittedly, the deceased had suffered a cardiac arrest during the surgery. The father of the deceased was shocked to see his daughter in a pitiable condition after such a normal and minor surgery. The admission of the anesthetic itself proves the negligence of O.P. No.1.
It is a clear case of res ipsa loquitor. The patient had admittedly slipped into a state of coma immediately after the operation itself and she had been reduced to a vegetative existence totally dependent on her parents for everything.
3) O.P. No.1 has categorically admitted in her evidence that the patient suffered a cardiac arrest due to epilepsy and that the same could have been avoided if the history of the patient that she was suffering from epilepsy was disclosed to her earlier, in which case instead of spinal anesthesia, general anesthesia would have been administered and the patient would not have slipped into coma. This defence of O.P. No.1 has no basis since the patient had no history of epilepsy at any point of time and, therefore, the question of disclosure of the same does not arise in the first place.
4) On behalf of the complainant, the affidavit of an expert witness namely Dr. D. Ramanjaneyulu, Civil Asst. Surgeon, Govt. Hospital (at page 130 of the complaint) and who happens to be the family doctor of the complainant was filed, wherein he had specifically deposed that the deceased was being treated by him since long and that she never had a history of epilepsy at any point of time. The evidence of this expert witness of the complainant was not subjected to cross-examination by O.P. No.1 due to reasons best known to her and therefore the testimony would be deemed to be admitted. Admittedly, there is not even a whisper of epilepsy anywhere in the reply notice dated 25.3.1996 issued by O.P. No.1 (at page 119 of the complaint). This doctors defence has been raised by the doctor purely as an after thought and therefore should not be accepted.
5) Admittedly, O.P. No.1 was not having the necessary infrastructure like ICU, which is required in cases with most post-operative complications, and other basic amenities in her Nursing Home. The father of the deceased was later advised to take the patient to a bigger hospital. Accordingly, the patient was discharged on 6.11.1995 and was admitted to Manipal Hospital, Bangalore. The deceased was an in-patient from 7.11.1995 to 9.12.1995. Thereafter she was shifted to NIMHANS, Bangalore where she was an inpatient till 15.3.1996. Her condition did not improve and as the expenses of maintaining her in the hospital was mounting, the doctors suggested that since she had been reduced to a status of mere vegetable, the patient was advised to be taken home, where she could be looked after with care and love.
6) The father of the complainant thereafter employed two attendants to take personal care of the complainant and in the process incurred heavy financial expenditure. However, since his daughters medical condition was irreversible, no recovery was possible and inevitable death occurred on 9.11.1999. A young woman of 25 years had lost her life prematurely solely due to the negligence of O.P. No.1. The evidence of O.P. No.1 and the expert evidence on behalf of the complainant would clearly expose the medical negligence.
7) The Honble Supreme Court has also in various judgments viz. Poonam Verma Vs. Ashwin Patel and Others (1996 (4) SCC 332), Spring Meadows Hospital Vs. Harjol Ahluwalia (1998 (4) SCC 46) and State of Haryana and Others Vs. Santra (2000 (5) SCC 182) crystalised the concept of medical negligence as under:
Negligence as a tort is the breach of a duty caused by omission to do something, which a reasonable man would do, or doing something, which a prudent and reasonable man would not do. The definition involves the following constituents:
(a) A legal duty to exercise due care
(b) Breach of the duty; and
(c) Consequential damages.
VERISON OF O.P. No. 1 The learned counsel for O.P. No.1 Ms. Radha submitted that:
1) On 5-11-95 at about 3.30 P.M. the patient was brought to the Nursing Home, which is about 33 K.M. from her village, after she was tried for normal delivery in the village for 12 long hours of labour as such she was exhausted and in dry labour and the head of the child also jammed. Hence, the doctor had no option but to perform the caesarian operation to save the mother and the child. After conducting general check ups, i.e. B.P., Pulse rate, etc., (enclosed) and administering the spinal anesthesia, the O.P. performed the operation, which was successful and the baby is safe.
2) The patient developed cardiac arrest after closing of uterine layer. Immediately necessary care was taken by the anesthetist and O.P. to save the life of the patient. At about 9.30 P.M. she had developed convulsions. On enquiry the patients attendants informed that the patient was suffering from epilepsy since long time. Had the patient or her attendants disclosed about her epilepsy, the general anesthesia would have been administered by the anesthetist.
3) As the patient required special treatment in view of the convulsions, O.P. No.1 advised the attendants and her husband to take the patient to super speciality hospital at Bangalore on 6-11-95. In spite of her instructions, the attendants delayed in taking her to Bangalore. On 7-11-95 she was shifted to Bangalore. The O.P. also deputed the technician with oxygen support at the time of shifting which was not denied by the complainant. The O.P./Doctor has followed a practice acceptable to the medical profession. Hence, she cannot be held liable for negligence merely because a better alternative course or method of treatment is also available.
4) It is submitted that every surgery is followed by complications, therefore, the consent is taken from the patients or their attendants before the surgery. In the present case the complication of cardiac arrest after surgery was not on account of any medical negligence.
5) No expert Evidence or medical literature has been produced by the complainants showing that the administration of spinal anesthesia at the time of caesarean operation was wrong. In fact, the spinal and epidural often is selected for an elective caesarean section. This form of anesthesia permits the mother to be awake, minimizes the likelihood of maternal pulmonary aspiration, avoids drug depression from general anesthetics. Advantages of spinal anesthesia includes its technical ease and high success rate. Fatal depression from local anesthetic does not occur.
6) The alleged family doctor, Dr. D. Ramanjuneyulu, neither treated the patient before or after her marriage, he never accompanied the patient to the hospital. Hence no importance can be given to his certificate dt.14-11-96 (page 113) or to his affidavit (page 127) dt.15-12-97.
In his cross- examination at Q.No.15, he admitted that cardiac arrest is one among the other risk during operation (Page 243). In the cross examination the present complainant has admitted that Dr. Ramanjuneyulu has given the certificate (P-113) on the basis of records got from Manipal and NIMHANS hospital.
7) On receipt of the legal notice dt.4-3-96 (Page 114), the O.P. has suitably replied vide reply dt.25-3-96 (Page 116) and stated that patient went into status epileptiens from 9:30 P.M. on the same day Doctor administered calmpose injection immediately after observing fits. Fits was controlled for about 30 minutes. Later again fits reoccurred and physician was called to attend upon patient.
8) It is submitted that during pendency of the complaint, the original complainant, Mrs. Gowri Devi, died. Hence, the present complaints have no locus standi to pursue the matter under Section 306 of the Indian Succession Act. The complaint would abate.
9) Every surgical procedure involves inherent risks. It would be wrong, indeed bad law, to say that simply because a mishap or misadventure occurred, the hospital and the doctors thereby are liable.
10) The error of judgment cannot be attributed as negligence as held by this Honble Commission and the Honble Supreme Court. The medical literature suggests that Hypoxia and Hypovolaenila are the most common causes of cardiac arrest during surgery. Cases relied:
1.
Martin F. De Souza Vs. Mohd. Ishag, 2009(3) SCC Page 1.
2. Mrs. INS Malhotra Vs. Dr. A. Kripalani 2009 (5) SCALE, Page 87
3. Jacob Mathews Vs. State of Punjab 2005( 6) SCC Page 1.
11) For the aforesaid reasons, the O.P. prayed that this Honble Commission may be pleased to dismiss the complaint with costs.
OUR FINDINGS:
Heard the learned counsel for both the parties and perused the affidavits, interrogatories and the replies thereto, which are placed on record.
In our view, there is deficiency in service and medical negligence on the part of O.P. No.1 for the reasons given below:-
1) The Opposite Party No. 1, Dr. B. Aruna stated in her affidavit that her Nursing Home does not have ICCU, EEG, CT Scan and ventilator support. She further stated that these equipments are not required during emergency. In the cross-examination, she maintained the same views but also added that If I had known that the patient had a history of epilepsy, the cardiac arrest could have been prevented by giving general anesthesia instead of spinal anesthesia. According to me, spinal anesthesia and epilepsy was the reason for the cardiac arrest.
We have gone through the record carefully and find that in the operation notes and discharge summary filed by OP NO. 1, there is no whisper of epilepsy. She was handed over the original case sheet only when the matter was supposed to be kept for cross-examination then she filed the application dated 29.7.2004 stating that the original case papers were with her which were not filed alongwith the reply in her affidavit by way of evidence and due to over-sight. Her request to permit to file these documents was allowed. The mishap has happened during November, 1995 and thereafter it is only in the year 2004 the OP NO. 1 filed the operation notes and discharge summary. Very strong and important question that is to be determined in that matter was regarding lack of knowledge of condition of epilepsy of the Complainant was not given to OP NO.
1. It is not believable that she has forgotten to mention this in the reply, operation notes and discharge summary. She can not take advantage of mis-communicated lines written by duty Dr. by the relatives of the patient in Manipal Hospital and can not be extended to show that, that was the criteria on which anesthesia was determined by her and the Anesthetist. Her evidence regarding epilepsy can not be believed and we find from her own admission that she would not have permitted spinal anesthesia if she were to know of epilepsy condition of the patient. The question is, in a view the patient did not have condition of epilepsy and hence it is the mis-management at the time of caesarian operation that led to critical condition of the patient.
2) As per Chapter 14 of the Fifth Edition of A Practice of Anaesthesia by Wylie and Churchill Davidson, under the heading CirculatoryArrest Diagnosis: Unconsciousness and cessation of respiration occur and, usually within one minute, the pupils dilate. The absence of heart sounds is an unreliable sign and unless and ECG is already connected no time should be wasted in so doing before starting treatment.
The usually accepted time interval between circulatory arrest and the death of tissue in the normal, previously well-oxygenated central nervous system is approximately three-and-a-half minutes. Because of the rapidity with which this time can pass in an emergency, the prime factor influencing the outcome of circulatory arrest is the speed at which effective resuscitation is instituted.
The implication of this is that cardiopulmonary resuscitation should be as simple as possible, easily taught to the layman and applicable almost anywhere without complex equipment.
Anaesthetic Disasters and their Prevention Definition:
An anaesthetic disastercan be defined as a mishap occurring during or following anaesthesia which causes death or severe neurological damage or any disability.
Mishaps are avoidable accidents.
We have gone through the medical literature as mentioned above and find that whether it is spinal anaesthesia or otherwise, management of the patient who has been given anaesthesia during the operation is very important. After hearing the parties and perusing the record, we find that there is obvious mis-management of the condition of the patient during the caesrian operation and the delay in reversing the damage caused to the patient resulted in Anoxic Encephalopathy following cardio respiratory arrest. Even in the record of the Manipal Hospital and Neuro Services, there is no recording by the Doctors that the deceased was suffering from epilepsy and no treatment was being given for the same and no notings have been recorded by any Doctor. The versions given OP No.1 and Anesthetist are all after thought versions to support their case. We find OP NO. 1 and the Anesthetist are negligent in the management of the patient in the operation theatre.
3) We rely on the answer given by Dr. Ramanjaneyulu, Deputy Civil Surgeon, who is a family doctor of the complainants, to the interrogatories No.7 & 11 as under:
7.
According to you what was the negligence committed by the doctors in treating the patient ?
Ans : Doctors would not have recognized the CARDIAC ARREST in the correct time or would have delayed the resuscitation Cardiac arrest which would have led the Brain to suffer with ANOXIA (Lac of Oxygen supply) for sufficient time to cause Eencephaloathy (Brain Damage) and further development of continuous seizers which further damaged the brain resulting in permanent present condition.
11. In the discharge summary of Manipal Hospital it was recorded in the pat history One attack of generalized tonic seizers at 3/12 of gestation what do you say about it ?
Ans : As the Manipal Hospital is Karnataka Area, as the attendants does not know neither Kannada nor English, communication gap would have made the doctors to understood that in past she has developed seizers 3/12 of gestation.
We have carefully gone through the affidavit and the cross-examination of the Anesthetist and have re-produced some of those statements and replies given by him, which are given here as under:-
4) Dr. Vinay Mahendrakar in his cross-examination stated that:-
a) After receiving a phone call from Snehalata Nursing Home he reached the nursing home and thereafter within 15 minutes he secured all the anesthetic equipment and consulted the Gynecologist O.P. No.1 for the indication of the surgery. He asserted from O.P. No.1 about the condition of the patient and she disclosed that the patient was in prolonged labor and was anxious and hypersensitive. It is deficiency in service that he did not make note of this information disclosed by the O.P. No.1 anywhere in the record.
b) It is stated that except those steps, which have taken before and at the time of administering anesthesia, he had not taken any precaution for administering anesthesia. It is a part of his duty to give preliminary medications to patients who come to theatre in an anxious state of mind and they should be helped by further intravenous fluids which has not been done by the anesthetist and is considered deficiency in service.
c) Anesthetist Dr. Vinay Mahendrakar admitted that he typed the same and handed over to the counsel of the opposite party. In our view this record cannot be relied upon as it was prepared after the complaint is filed. Medical code mandates anesthetist to maintain a contemporaneous record of all the steps taken at the time of giving anesthesia and the decision taken depending upon the circumstances. He had not maintained any contemporaneous record in this case which is deficiency in service.
d) If spinal anesthesia is mishandled it may cause hypotension, cardiac arrest and post-operative chest complications. It is true that spinal anesthesia should not be restored to mechanically and a decision must be taken into account the physical and psychological condition of the patient, willingness or cooperative nature of the patient. It is stated that as he was giving spinal anesthesia in routine to all advanced pregnancies, he opted the same in this case also as there are no contra indications.
e) He did not agree that an initial test dose should be administered before administering anesthesia in the operation theatre. He volunteers that intra dural test dose will be given in the ward before bringing the patient into the theatre. It is stated that in the affidavit of Gynecologist or in his affidavit there is no mention of administering of test dose.
f) Respiratory cardiac arrest is a complication of spinal anesthesia and can lead to aforesaid situation. About 20 to 25 minutes after administering spinal anesthesia, he noticed cessation of heart beat in the patient. He did not know how many forms of cessation of heart beat occur in cardiac arrest during administration of anesthetic agents but can identify two forms Fibrillation and Asystole. He has not adopted any procedure to identify the cardiac arrest except stating that ECG machine was not provided in the operation theatre at that time and as such he did not take ECG to find out the form of cardiac arrest.
g) The theatre was not equipped with any ventilator.
Putting ventilator as a resuscitative process is not mandatory. It is stated that he was possessing basic M.B.B.S. qualification which is sufficient to treat cardiac arrest.
h) It is denied that resuscitative process and suturing the abdominal layers simultaneously is an impractical and he was deposing against medical science. The fact that the two processes are simultaneously undertaken was not stated either in his affidavit or in the affidavit of Gynecologist.
i) It is stated that no body informed him at any time that the patient was suffering from fits. He did not make any effort to know the nature of convulsions sustained by the patient. Before administering anesthesia the physical condition of the patient in all aspects was normal.
The above statements made by Dr. Vinay Mahendrakar do not inspire confidence to believe that he has correctly managed the patient to treat the emergency situation to avoid Anoxic Encephalopathy following cardio respiratory arrest.
5) We have perused the Discharge Summary dated 09.12.1995 of Manipal Hospital, Bangalore, wherein it is stated that:-
Diagnosis:
ANOXIC ENCEPHALOPATHY This patient was brought to this hospital of having had suffered cardiac arrest following spinal anesthesia for caesarian section. She was reportedly resuscitated but continued to be in altered sensorium and developed status epileptics about 3-4 hours after the cardiac arrest. She was treated with IV epsolin and was referred to this hospital the next day.
Past History:
One attack of generalized tonic clonic seizures at 3/12 of gestation. No treatment received.
..
Course in the hospital:
Immediately after admission patient developed respiratory distress and hypotension for which she was put on ventilator and IV Dopamine drip. She gradually improved in level of sensorium, respiration and her BP was restored. Since 1 week patient is off the ventilator but is receiving oxygen support through tracheostomy tube. Currently patient is conscious, makes eye to eye contact. Not verbalizing or following commands, pupils E & R EOMS full, moving all 4 limbs equally. She continuous to have multifocal myoclonic jerks. Has rigidity in limbs right left. DTRs sluggish, moves moderately upper limbs to pain.
From the aforesaid report we find that the patient had developed epileptic attack 3-4 hours after the cardiac arrest. It is written in the past history that the generalized attack of seizures were there but no treatment was received. In the entire case record of the patient whether it is with the opposite parties or Manipal Hospital or later in the National Institute of Mental Health & Neuro Sciences, Bangalore there is a mention of such attack in the past history. This has been denied completely by the complainant on an affidavit. Dr. Ramanjaneyulu who has been a family doctor of the patient has also denied it completely on an affidavit stating that she does not have any history of seizures. He also stated that the family members of the patient while responding to the queries in the hospital at the time of admission did not understand the language of Kannada as it is not their mother tongue and communicated wrongly and noted also wrongly in the record. In a reply to the interrogatories, he explained that it must have been wrongly understood by the Manipal Hospital duty doctor while writing notes on past history. We also find that the opposite party in their initial reply never mentioned that the patient was suffering from seizures. In our view, this ground has been taken as an after thought to cover up as a reason attributed for ANOXIC ENCEPHALOPATHY, which the patient has allegedly suffered from.
We are unable to subscribe to the argument of opposite party that the patient had suffered from generalized tonic clonic and also that she was never treated for the same. They have not substantiated with any evidence to show that she suppressed this material to OP-1 and also to her family Doctor. There is no reason for her not to take treatment if she really suffered from tonic clonic seizures. Anesthetist himself has admitted that O.P. No.1 never told him regarding the past history of the patient suffering from seizures. Hence, in our view, this allegation is an after thought and not substantiated by opposite parties.
6) We have gone through the Discharge Summary dated 12.01.1996 of National Institute of Mental Health & Neuro Sciences, Bangalore, wherein it is stated that:-
Diagnosis:- Anoxic Encephalopathy following cardio respiratory arrest.
..
History and Examination:
History of spinal anesthesia for LSCS on 05.11.1995 had cardiac respiration arrest and was revived. She had generalized tonic clonic seizures - was in status. Since then she was in altered sensorium on 7.11.95. She again developed respiratory difficulty and hypotention for which she was put on Dopamin drip and ventilator. Gradually improved in the level of sensorium and was stable. But was on ventilator for about 20 days had developed myoclonus (spontaneous and stimulus sensiting). At this point she was referred to NIMHANS.
In the aforesaid report nowhere it has been noted that she suffered from tonic clonic seizures as part of past history of the patient. The only history that has been brought on record is that she had cardiac respiration arrest and was revived. This report clearly shows that things went wrong during the time of caesarean operation, for which O.P. No.1 and Anesthetist, who has not brought on record, are responsible as to what happened at the time of surgery. The only ground that has been taken by O.P. No.1 and the Anesthetist is that they were not aware of the patients past history of seizures and were only told much later by the family members is not believable and we find it as an after thought allegation that has been attributed to support their explanation as a cause for this fatal incident. We are convinced with the opinion given by Dr. Ramanjaneyulu in his affidavit and also in his reply to interrogatories; that the patient never had past history of seizures; that the two lines mentioned in the Hospital record was based on language miscommunication by the relatives; that no where in the record OP has mentioned that the complainant suffers from seizure; and that in the OPs reply there is not even a whisper about it. Anesthetic record (was never maintained by the Anesthetist) which is a pre-requisite norm for him to maintain contemporaneous record and in its absence, it is difficult for us to believe the statements, reports and the records brought in and prepared much after the complaint is filed by the Anesthetist much later to give to the counsel of the complainant.
We are relying on the decisions by the Supreme Court in the case of Spring Meadows Hospital and Anr. Vs. Harjol Ahluwalia and Anr., (1998) 4 SCC 39,; where it is held that : Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned.
During the course of arguments, opposite parties forced to settle the matter for two and half lakhs to which complainants were not agreeable.
It is submitted that the husband of the deceased is married and hence the question of mental agony does not arise.
It is also submitted that by the agreement made by her father and the husband, the maintenance of the child etc. has been promised by the husband and hence father of the deceased cannot get any compensation as allegedly claimed.
In our view, the husband of the deceased got married only after undertaking to give property to the child on the promise for payment of Rs.
4,000/- per month to the father for maintenance of the deceased prior to her death. It is unfortunate that she died at a young age leaving a child and her husband remarrying cannot be held against him as he is also a young person.
A young woman of 25 years died leaving a baby boy who has been denied of mothers love and attention for his lifetime. Although the complaint has been filed by the father making a claim, the agreement between the father and the husband of the patient was made in the presence of the elders that whatever the compensation is to be awarded by this Commission would be given to Master Anil Sai. In our view, Rs. 5,00,000/- as compensation in total would suffice in the present case for deficiency in service and negligence by the opposite parties in managing the cesarean operation of the patient. We direct the opposite parties to place the amount of Rs.5,00,000/- in a fixed deposit and the interest that gets accrued thereon would be kept in the name of Master Anil Sai and be given to him after he attains majority. The complaint is allowed accordingly with a cost of Rs. 10,000/- to the father of the deceased for pursuing this complaint.
J. (K.S.GUPTA) PRESIDING MEMBER (RAJYALAKSHMI RAO) MEMBER ts/