National Consumer Disputes Redressal
Dr. Vijaya Nirmala vs Udhiya @ Udhiyakumari & 4 Ors. on 16 October, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1015 OF 2016 (Against the Order dated 21/01/2016 in Appeal No. 28/2008 of the State Commission Pondicherry) 1. DR. VIJAYA NIRMALA EMPLOYED AT ASHOK NURSING HOME R/O 13, BHARATHY STREET ELLAIPILLAICHAVADY PONDICHERRY-605005 ...........Petitioner(s) Versus 1. UDHIYA @ UDHIYAKUMARI & 4 ORS. W/O KANNIAKUMAR NO. 25, 2ND CROSS STREET AMBAL NAGAR, PONDICHERRY-605005 2. SHARMILADEVI D/O KANNIAKUMAR 25, 2ND CROSS STREET AMBAL NAGAR, PONDICHERRY-605009 3. SUGANYA D/O KANNIAKUMAR 25, 2ND CROSS STREET AMBAL NAGAR, PONDICHERRY-605009 4. ASHOK NURSING HOME REPRESENTED BY ITS DIRECTOR DR. ANANDAYELU, SAVARIRAJALU STREET KAMRAJ NAGAR, PONDICHERRY-605011 5. DR. RAJENDIRAM EMPLOYED AT ASHOK NURSING HOME, R/O 13, BHARATHY STREET ELLAIPILLAICHAVADY PONDICHERRY-605005 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. T.V.S. Raghvendra Sreyas, Advocate For the Respondent : NEMO Dated : 16 Oct 2017 ORDER DR. S. M. KANTIKAR, MEMBER
1. This instant revision petition under Section 21(b) of the Consumer Protection Act, 1986 is preferred by Dr. Vijaya Nirmala/petitioner/OP-specialized as an anesthetist. The other respondent No. 5/Dr. Rajendiram (OP 2) being a surgeon, who was also accused of negligence, has been absolved by the District Forum and the State Commission. The main allegation against the petitioner/OP 3 that she had administered drug, namely, thiopental, which was the cause of death of deceased-Kanniakumar.
2. The relevant brief facts for the disposal of the case are that on 2.7.2002, the patient-Kanniakumar, since deceased, (herein after referred as a patient) about 45 years of age, had complaints of Penile Pain and Dysuria and he consulted OP 2/Dr. Rajendiram at his clinic in Pondicherry. After series of laboratory tests, he was diagnosed as having VUJ-calculus of 3X2 mm and two large stones in Gall Bladder. Accordinlgy, he was advised for the surgery at OP 1-Ashok Nursing Home On 27.7.2002, the patient got admitted at OP 1. He was operated at 1.20 p.m. by induction of general Anesthesia (GA) with 250 mg. of Thiopental and 100 mg. of Scoline. The intubation was resorted, however, the tube could not pass through due to difficult airway, because of large leafy epiglottis and anteriorly placed Larynx. After the first unsuccessful attempt of intubation, again at 2.00 p.m. the petitioner adjusted the head of the patient and second attempt for intubation was made with the injection of Scoline 75 mg, Thiopental 100 mg. and Atropine 0.6 mg. Even the second attempt of intubation was failed. Therefore, the surgery was abandoned. To avoid laryngeal edema, Efcorlin 100 mg, Decadryl 8 mg was given. The patient's vitals were examined and to maintain ventilation, laryngeal mask airway introduced. The Oxygen Saturation was maintained. SPO2 was at 95%. At 3.30, the patient was fully recovered from the effect of anesthesia and the patient was shifted to Post Operqation Ward but at 4.00 p.m., the patient developed profound pulmonary edema. Hence, the patient was given Lasix 40 mg, Inj. Efcorlin 100 mg. and nibulisation was done. As the oxygen level was going down to secure the airway, Tracheostomy was performed and pulmonary edema was controlled for a while. The patient developed ST depression, Hypoxemia. NTG patch applied and the cardiologist was called. At 4.20 p.m. ST was 2.9 mm. BP dropped also. There was Bradycardia 36 per minute. The patient was resuscitated that point of time. The patient's relatives were called and explained about the situation. The cardiologist also examined the patient and advised to continue the same treatment. The resuscitation was done till 6.00 p.m. At 6.15 p.m. the patieint was declared dead. On the next day, i.e. 29.7.2002, post morem was performed. The biopsy report revealed extensive pulmonary edema with focal area of Broncopneumonia. The Chemical examination of viscera revealed 14.5 mcg of Thiopental in the blood. The final post mortem report of Forensic Medicine that the cause of death of the patient was due to Injection of Thiopental. Based on the final report dated 17.9.2002, wife of deceased alongwith her two minor children filed a complaint before the District Consumer Disputes Redressal Forum, Puducherry (in short, 'the State Commission') seeking compensation of Rs. 19 Lakhs.
3. The OPs resisted the complaint before the District Forum. The Chief Medical Officer, Department of Forensic Medicines was examined as an expert witness. He was not anesthetist and the post mortem report does not mention any inadvertent act of the anesthetist. Dr. M. Ravishankar, Professor and Head of the Department of Anesthesiology and CCU, JIPMER, Puducherry was examined as an expert witness. He deposed that the Thiopental dose was within normal limit and it was administered correctly and there was no negligence. It was further submitted that the complainant initiated simultaneously criminal prosecution against the petitioner from which she was acquitted. The complainant approached High Court through revision petition. The High Court sought an independent expert opinion from Dr. T. Venkatachalam, Professor, Deptt. Of Anesthesia, Madras Medical College & Hospital, Chennai. He deposed that the doses of administration of medicine was correct as per medical norm. Thus, the High Court upheld the acquittal.
4. The District Forum dismissed the complaint vide order dated 31.12.2007. Being aggrieved, the complainants filed an appeal before Puducherry State Consumer Disputes Redressal Commission (in short, 'the State Commission'). The State Commission partially allowed the appeal only against the petitioner and thereby set aside the order of District Forum. The State Commission directed the petitioner to pay Rs. 15 lakhs alongwith Rs.10,000/- towards costs.
5. Being aggrieved by the impugned order, OP 2/Petitioner filed this revision petition.
6. We have heard the learned counsel for the parties. Learned counsel for the petitioner vehemently argued that there was no negligence during the induction of anesthesia. The Thiopental does was not in excess. The same was upheld by the High Court and the District Forum. He submitted that the State Commission failed to appreciate that the cause of death was not due to excess doses of Thiopental. The counsel further submitted that the difficulty in intubation on first attempt is a commonly encountered situation and under acceptable medical norms upto three attempts are allowed. 94.9% intubation could be performed in first attempt, 3.8 % patient a second attempt and in 1 patient third attempt is needed." In the instant case, after two unsuccessful attempts of intubation, the petitioner decided to abandon the surgery since it was elective surgery. Despite it, the State Commission observed that several attempts were made by petitioner which itself is contrary to the record. Even though the State Commission has nowhere mentioned about the name of medicine which it considered prima facie was unnecessary. Therefore, there was no excess dose of Thiopental.
7. We have perused the records on the file. The Hon'ble Madras High Court has examined Dr. T. Venkatachalam, Professor, Dept. of Anesthesia, Madras Medical College & Hospital, Chennai as a court witness for expert opinion. His deposition is reproduced as below:
"in the case on hand, 14.5 micro grams/ml of thiopental was found which according to me is well within the possible level of drug to be administered to produce anesthesia. Going by the level of thiopental found in the blood of deceased in this case, I am sure that 143.5 micro grams of thiopental fond in the blood of the deceased would not have caused the death at all. I differ from the opinion offered form the doctor who had given opinion and conducted post mortem, in respect of cause of death. In my definite opinion, the cause of death in this case surely was not due to the presence of 14.5 micro grams of thiopental/ml of blood. According to him, thiopental was not the cause of death in the patient. It is pertinent to note that ext. 3 chemical analyst opinion that there was 14.5 microgram of thiopental present in the blood. It was not excess dose.
8. Hence, Dr. Venkatachalam and Dr. M. Ravishankar, Anesthetist since they are expert in the field of anesthesia, gave their opinion as per Section 45 of the Indian Evidence Act. As per their view, 14.5 mg. of thiopental present in the blood was within the normal range to produce anesthesia.
9. It is pertinent to note that the petitioner cross examined Dr. M. Ravishankar, Prof. & HOD Anesthesiology & CCU, JIPMER, Pondicherry, as an expert, who advised categorically that doses of five pentol was within the normal limit and it was administered correctly. The complainant simultaneously initiated criminal prosecution against the petitioner, which she was acquitted and revision petition was filed before the High Court by the complainants. The High Court sought expert opinion from independent expert, Dr. T. Venkatachalam, Prof Anesthesia, Madras Medical College, who categorically deposed that neither the drug, dosage nor the administration was incorrect. It was as per standard norms. We have noted that the State Commission accepted the expert evidence of Dr. T. Venkatachalam and held that drug was not the cause of death. However, in our view, it is an erroneous finding recorded by the State Commission. The main question remains here is whether Thiopental was the cause of death. Because the consumer compliant was filed on the basis of final report, which has suggested the cause of death as inj. Thiopental. The cross examination of the doctor, who issued the report categorically admitted that Thiopental is most widely used drug since 1940. He had given the opinion based on the findings of post mortem report. He himself was not an anesthetist. We also find that the tracheotomy was done after 4.00 p.m. when the patient was deteriorating. Both the fora categorically held that the death was not due to Thiopental and the said finding was not challenged, thus, has attained finality. Even the chemical examination report indicates the Thiopental level of 14.5 mcg was within the normal limit. The intubation process was duly monitored and failed intubation did not make pulmonary edema when the patient was fully recovered 14.00 p.m.
10. On the basis of foregoing discussion, in our view, the OP is qualified anesthetist and there was no excess dose of Thiopental as alleged. The State Commission has overlooked the above facts, therefore, the impugned order cannot be sustained. We accordingly allow the revision petition and set aside the impugned order. Complaint is dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER