State Consumer Disputes Redressal Commission
Pramod Chandra Guru Prasad Srivastava, ... vs Dr.Ashok G.Bagadiya,And Other 2 on 28 November, 2008
Date of filing :14.05.1993 Date of order :28.11.2008 MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD . C. C. NO.:329 OF 1993 1. Pramod Chandra Guru Prasad Srivastava, Dy.Commissioner of Income Tax, Income Tax Office, Bansilal Nagar, Aurangabad. 2. Kumari Anshu Pramod Chandra Srivastava, R/o as above, 3. Kumari Tanvi Pramod Chandra Srivanstava, R/o as above, 4. Saurabh Pramod Chandra Srivastava. COMPLAINANTS VERSUS 1. Dr.Ashok G.Bagadiya, Bagadia Maternity & Nursing Home, 278, Samarthnagar, Aurangabad. 2. Dr.Purohit S.P.(Anesthetic), At Bagadia Maternity & Nursing Home, 278, Samarthnagar, Aurangabad. 3. Dr.Miss.Sharda Chandak, At Bagadia Maternity & Nursing Home, 153, Tanmay Building, Samarth nagar, Aurangabad. RESPONDENTS CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.R.D.Baheti for complainant, Adv.Shri.Jayant Chitnis for respondent No.1 & 3, Adv.Shri.N.D.Jaywant for respondent No.2.
O R A L O R D E R Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.
1. The present complaint is filed against respondents doctors for failure to exercise due care, skill and competence in doing work or providing services that may reasonably be expected of medical practitioners.
2. Complainants case is that, complainant No.2 to 4 are his daughters and son. It is contended that, complainant No.1`s wife was under the treatment of respondent No.1 Dr.Bagadiya since May 1992. Dr.Bagadiya runs the hospital in the name and style as Bagadiya Maternity & Nursing Home situated at Samarthnagar, Aurangabad.
It is contended that, respondent No.2 Dr.Purohit is anaesthetist who worked in the hospital of Dr.Bagadiya on 5th November 1992 and opponent No.3 Dr.Sharada Chandak D.H.M.S. was practising with respondent No.1 as his assistant. It is contended that, Dr.Bagadiya had advised complainant`s wife for caesarean operation as normal delivery was not possible due to oblique position of baby inside the womb and asked to come on 5th Nov.1992 in the morning. It is contended that, Mrs.Poonam Shrivastava reported in the hospital at 8.10 a.m. on 5.11.1992. She was taken in the operation theatre at 9.00 a.m. for caesarean operation. It is contended that, complainant No.4-male baby was born at 9.44 a.m. and was brought by nurse outside the operation theatre at around 9.55 a.m. to show the complainant No.1 and his friends. It is contended that at about 10.00a.m. Dr.Bagadia`s assistant opponent No.3 called complainant No.1 in the consulting room and issued prescription to buy medicines. Medicines were purchased and were kept in the allotted room of Mrs.Shrivastav as per say of Dr.Chandak. It is contended that, at about 10.05 to 10.10a.m. Dr.Bagadiya met complainant No.1 in his consulting chamber and congratulated to the complainant No.1 and told that patient is all right and operation is completed and she will be in her room within 20 minutes as the final stitches were being given by his assistant doctor. Dr.Bagadia offered cup of tea to the complainant and his friends. It is contended that at about 10.25 a.m. when complainant No.1 was coming out of allotted room Dr.Bagadia met in the corridor while on round and told that he would go inside operation theatre and soon after cheque up, he would send the patient in her room. It is contended that, complainant No.1 with his colleagues and friends was waiting but Mrs.Poonam was not brought in her allotted room as said by DR.Bagadia. It is contended that, there was no communication from doctor or his associates regarding health of Mrs. Poonam for almost 3 hours i.e. 10.10a.m. to 1.10.p.m. It is contended that, at around 1.10 p.m. opponent No.3 Dr.Sharda Chandak came out side the operation theatre, her eyes were full of tears and she was not able to talk with complainant No.1. She told that, Mrs.Poonam had cardiac arrest. It is contended that, Shri.S.R.Sarda, advocate who was with the complainant immediately went to bring Dr.Mohagaonkar(Physician) and another companion Mr.Jugal K.Tapadia alongwith Shri.S.M.Bangad went to bring Dr.S.R.Baheti(Cardiologist). It is also contended that, opponent No.3 Chandak had said the patient`s health was not good and there were no hopes of her survival. But she did not tell at all that Mrs.Poonam was no more and she had died. It is contended that, at about 1.15 p.m. Dr.Bagadia called complainant No.1 inside operation theatre and told that Mrs.Poonam died at 1.10 p.m. because of cardiac arrest.
It is contended that, complainant No.1 saw the dead body of Mrs.Poonam on the operation table inside the operation theatre, touched her forehead and feet and felt that feet of the deceased were extremely cold and thereby he realised that she must have died hours before. It is contended that, he asked doctor for post mortem while talking to him inside operation theatre. But Dr.Bagadia said it is not necessary and the body would be torn unnecessarily. It is contended that Dr.Baheti, Dr.Mohgaonkar had reached the hospital at 1.10 p.m. when complainant was in operation theatre. He was learnt from them that it was too late for doctors to do anything.
It is contended that, it was decided by the companion alongwith complainant No.1 to keep dead body of Poonam in cold storage of Government Medical Hospital. Accordingly, Dr.Bagadia was informed he issued certificate for the cause of death as sudden cardiac arrest. It is contended that, dead body was shifted to Government Medical College Hospital for keeping it in cold storage. It is contended that, complainant No.1 asked respondent for getting done the post mortem on the dead body to know cause of death. Dr.Bagadia informed Kranti Chowk Police Station on 6.11.1992. Post mortem was carried out in the Govt.Medical College Hospital on 6.11.1992. It is contended that, funeral was performed after the arrival of parents of deceased Poonam.
It is contended that, Dr.Bagadia had told complainant No.1 that now a days caesarean operation is common and since Poonam possesses good health there is no problem in going for caesarean operation.
It is also contended that, Dr.Purohit was the choice of Dr.Bagadia and was not independent choice of complainant. It is contended that, complainant No.1 feels that in the course of operation and thereafter the patient could not get oxygen due to negligence on the part of attending doctors when they were in operation theatre. It is also contended that, case papers were prepared in one sitting as per say of Dr.Bagadia. It is contended that, cause of death is not the sudden cardiac arrest but due to the gross negligence on the part of doctors. Patient remained without aid on the table in the course of anaesthesia and therefore Dr.Ghayal was called for help and due to negligence of doctors on operation table the black event occurred. The notes prepared by doctor show that it was reduced in writing in one sitting for their convenience with a view to save the skin. Complainant and his friends were not informed regarding seriousness of the patient. The situation was not in control of Dr.Bagadia.
He neither called skilled doctor i.e. physician at the right time nor he had intimated the complainant. They called Dr.Rajurkar at 1.10 p.m. as per record which was too late. Dr.Bagadia failed to call specialist in time. It is contended that, Dr.Bagadia had called Dr.Ghayal for the help of Dr.Purohit first and then Dr.Rajurkar. It shows that, Dr.Bagadia failed to diagnose the problem and to call the skilled person at proper time to judge the position and to provide the treatment. It is contended that, complainant No.1 lost his wife who was the only issue to her parents.
She was conducting beauty parlour activities and was helping hand to him. She was earning from the beauty parlour activities. Complainant No.2 to 4 lost their mother. Loss and injury caused to them can not be compensated by means of money. Complainants claimed the compensation to the tune of Rs.9 lakhs with interest @ 18% from the date of complaint.
3. Opponent No.1 & 3 jointly filed their written statement and resisted the claim. They contended that, deceased Poonam was not the consumer within the meaning of Section 2(i)(d) of Consumer Protection Act as free services were given as complainant No.1 is the friend of opponent No.1 and thus complaint is not tenable. It is contended that, service rendered by opponents is not covered under provisions of Consumer Protection Act as it is given free of cost. Complaint will not fall within the ambit of Consumer Protection Act. It is contended that, complainant has not paid any amount nor it was promised nor demanded by the opponents. It is contended that, there was no deficiency in rendering the service to complainant`s wife at the time of delivery. They had given good service to Poonam as they are duty bound to do so. It is contended that, service of opponent No.1 was already available to complainant`s wife since beginning of her pregnancy. Complainant and his wife were satisfied with the service of opponent No.1. It is further contended that, Kranti chowk Police station had registered the crime No.I-217 of 1993 U/s 304 and 34 of I.P.C. against opponent No.1 & 2 and same is pending. Thus, the Commission is not having jurisdiction to entertain the complaint as criminal case is pending. It is contended that, opponent No.1 is the M.D. D.G.O. having his hospital namely Bagadiya Maternity and Nursing Home. He is practising as Gynacologist since last 12 years and he is having experience and reputation in Aurangabad city as well as in the District. It is contended that, opponent No.2 is an anaesthesiologist since last 5 years practising at Aurangabad, prior to that he was serving as resident anesthesiologist at Bombay Hospital, Bombay for one and half years. He is having good experience of his field. On 5.11.1992 he was called by opponent No.1 and as per call he attended the late Poonam Shrivastava and gave his services. It is contended that, opponent No.1 has not paid any amount to opponent No.2 for his services. He had not demanded any amount because the complainant is the friend of opponent No.1. He has not charged any fee. It is contended that, nowhere in the complaint negligence is shown. They had taken required care and handled the case skilfully. The medicines which were given to the wife of complainant were also correct and they had tried their level best to save the life of patient. They are also feeling very sorry on account of demise of late Poonam Shrivastav. Death is not caused because of the negligence on their part. It is contended that, opponent No.1 had informed to the patient as well as complainant No.1 regarding consequences of operation as well as of anaesthesia and requested them to sign the consent papers. After perusal of consent papers complainant No.1 and his wife signed and permitted respondents for operation. It is contended that, opponent No.1 after completing operation and being satisfied about the completion of operation and regaining of consciousness to complainant No.1`s wife came out of operation theatre i.e. at about 10.30 a.m.and congratulated to complainant No.1 for getting son and also offered cup of tea to the complainant and his friends. He has denied that opponent No.3 gave stitches. It is contended that, they had called one more anaesthetist for the help of opponent No.2 as per his request. All of them were busy with their work for giving services to the patient. They did not dispute that Dr.Mohagaonker and Dr.S.R.Baheti had come to the hospital.
It is contended that, opponent No.3 came at about 1.00 p.m. when efforts were going on to revive the patient. It is contended that, cardiac arrest is final episode before death and one can not say the reason of cardiac arrest before post mortem and hence post mortem was done to know the reason of cardiac arrest. They denied that the patient died hours before. It is contended that, opponent No.1 informed the police regarding incident and thereafter post mortem was conducted. They are not at dispute that the dead body was kept in cold storage of Govt. Medical College Hospital and contended that he had issued death certificate for shifting the dead body.
It is contended that, opponent No.1 insisted the complainant No.1 for post mortem to know the cause of death as he was not ready to allow post mortem because of sentiment. It is also contended that opponent No.1 was present in the funeral of deceased Poonam. They are not at dispute that opponent No.2 Dr.Purohit was called by opponent No.1. It is contended that, when patient was on table they were giving services to her, it is not expected to contact complainant No.1 and ask for any other doctors. It is contended that, when opponent No.2 found that another doctor is required for help, Dr.Ghayal was called and also Dr.Rajurkar was called. He denied that he failed to diagnose the problem. It is further contended that, complaint is filed with ill intention to harass them there is no negligence on their part. It is further contended that, it is incorrect and improper to arrive at the diagnosis mentioned in the post mortem report which is contradictory to preliminary report and microscopic examination. It is contended that, the condition of various organs mentioned in the preliminary report can occur due to Amniotic Fluid Embolism after the caesarean operation or in case of normal delivery and or Fat Embolism due to obesity of the deceased.
4. Opponent No.2 Dr.Purohit also resisted the complaint by filing written statement. It is contended that, complainants are not consumers within the meaning of section 2(1)(d) of Consumer Protection Act. His services are neither hired by deceased nor complainant. It is contended that, police registered the case against him and opponent No.1 and same is pending. It is contended that, when he reached the nursing home the patient was in the operation theatre. He examined her pre-operatively in the operation theatre and found her fit for administration of general anaesthesia.
Thereafter surgery was commenced.
It is contended that after finding patient fit for administration of anaesthesia he started procedure at about 9.30 a.m. He started the intravenous drip with 5% dextrose. He then pre-oxygenated the patient with 100% oxygen for 3 minutes and induced the anaesthesia with 250 mg of Thiopentone(2.5%). He then intubated her with No.8 culf rubber tube under the effect of 100 mg scoline. He then inflated the cuff with 2 cc of air. He maintained the ventilation with Boyle`s apparatus using 50% oxygen and 50% Nitrous oxide. The patient was maintained on gas oxygen, intermittent doses of succinyl choline and intermittent positive pressure ventilation.
The total succinyl choline administered was 400 mg. During the surgery patient was administered intravenous fluids namely 1 pint each of 5% dextrose and Ringer lactate solution. Injection Fortwin 30 mg and injection Calmpose 10 mg were given intravenously. Injection Methargin 1 cc intravenously was given immediately after the delivery of the baby. During the surgery, the patient passed approximately 100 cc of urine. It is contended that, after completion of operation at about 10.30 a.m. a thorough suction was done. Following adequate and spontaneous respiration, the cuff was deflated and the tube was removed uneventfully. The patient became conscious, obeyed commands and was talking. The cough reflex was present and the muscle power was adequate. Her pulse was 80/minutes and regular B.P. was 120/80 mm of Hg. The respiration was adequate, spontaneous and regular and there was no cyanosis. It is further contended that , all the anaesthetic procedures including the post-operative were over by 10.35 a.m. The patient`s condition was stable till about 11.30 a.m. when suddenly she became restless, and developed mild cyanosis. Her pulse rate went up to 108/minute and systolic B.P. rose to 140 mm of Mg. and she started experiencing respiratory discomfort. He immediately intubated her once again and rendered assisted ventilation of 100% oxygen with Boyle`s machine. She was administered injection Aminophylline (250 mg )diluted in 20 cc of 25%. Dextross given very slowly and 250 mg of Aminophylline was administered in the drip. She was also administered injection Efcorlin (100 mg.), injection sodabicarb (20 cc) and injection Lasix (20 mg.) It is further contended that Dr.Ghayal another anaesthetist was called for help. He had also seen the patient and rendered assistance in the resuscitative measures. Meanwhile the patient was conscious and was obeying commands. Her cyanosis disappeared. Her pupils were normal in size and showed normal reaction to light.
However her pulse rate and respiratory rate continued to remain high and there were bilateral ronchi(abnormal breathing sounds). Her breathing though spontaneous, was inadequate. These findings were confirmed by Dr.Gayal. It is contended that, suction through the endotracheal tube did not bring out anything indicating that the respiratory tract was clear. She was monitored continuously and was given assisted ventilation and her general condition remained stable. At about 12.30 p.m. there was a sudden drop in her B.P. and a rise in the pulse rate. She was immediately given injection Mephetine (15 mg.) intravenously and injection Sodabicarb (20 cc) intravenously.
Dr.Rajurkar the physician was then summoned. It is contended that at about 12.45 p.m. she went into a sudden cardiac arrest and was immediately given cardiopulmonary resuscitation i.e. injection Adrenaline 1 ml (1:
1000)intracardiac, injection Sodabicarb 40 cc intravenous, external cardiac massage, injection Efcorlin (100 mg) and ventilation with 100 % oxygen. Dr.Rajurkar also arrived. He too, helped in the resuscitative measures, but without any success. It is also contended that, Dr.Bagadiya intimated police station asking for post mortem examination. It is contended that, deceased patient being wife of close friend of Dr.Bagadia she was kept in the operation theatre longer than the usual, as a matter of abundant precaution. The patient was meticulously monitored post operatively. It was sheer misfortune that in spite of having overcome the respiratory complications once at 11.30 a.m., she could not be saved from second complication of sudden cardiac arrest, an event which can occur during or following any surgery. The patient did develop a sudden cardiac arrest post operatively following recovery from anaesthesia. He denied that cardiac arrest was due to gross negligence on part of doctors.
Her death is unfortunate result of the sudden cardiac arrest which was beyond the control of doctors. It is contended that cause of death mentioned in post mortem report is vague and is the conjecture of the pathologist. Probable cause of death is Fat Embolism or Amniotic Fluid Embolism.
5. Complainants also filed rejoinder affidavit and denied the defence raised by opponents. Respondents also filed sir rejoinder affidavit denying the contention raised by complainant in the rejoinder. Complainant filed his own affidavit, affidavit of Dr.Nandkumar Maheshwari-family doctor, Adv.Satynarayan Sarda, Shri.Satyanarayan Bangad, Chartered Accountant, Shri.Ghanshyam Bissa, Income Tax Officer, Shri.Prakashchandra Mutha, Asstt.Commissioner of Income Tax, Shri.Devjibhai Patel, Shri.Jugalkishore Tapadia, builder. Complainant also brought on record the copy of post mortem report, case papers, copy of the letter dated 6.11.1992 given by respondent No.1 to P.I., Kranti Chowk Police Station, coy of Panchanama about seizure of bills, issued by Samarth Medicals, certificate of educational qualification of his wife, salary certificate of his wife etc.
6. State Commission, Mumbai dismissed the complaint for want of prosecution directing complainant to pay Rs.5000/- to each of respondents within a period of 4 weeks by order dated 14.6.1995.
7. Complainants filed F.A. No.456/95 before Hon`ble National Commission, New Delhi. Hon`ble National Commission by its judgment and order dated 06.02.2003 allowed the appeal and set aside the order passed by State Commission and remanded the matter to the State Commission to decide the same by granting opportunity to the appellant to put forward its case. Hon`ble National Commission expressed displeasure at the attitude of the counsel for the complainant and imposed the costs assessed at Rs.10,000/- to be paid to the respondents for the inconvenience caused to the State Commission as well as to the counsel for respondents. Hon`ble National Commission also mentioned that, State Commission may take into account the evidence recorded in the criminal case and dispose of the matter expeditiously.
8. Thereafter appellant filed S.L.P.bearing No.9777/03 before Hon`ble Apex Court. The Hon`ble Apex court disposed of the appeal by deleting the direction regarding imposition of costs on appellant No.1 and also direction to the State Commission to take into account the evidence recorded in the criminal case.
9. Opponents filed the affidavit of Dr.B.L.Deshpande who carried post mortem on the dead body and also Dr.Gayal & Dr.Rajurkar.
10. Points for consideration are as under;
Points: Findings.
i. Whether complainant is consumer as defined U/s 2(1)(d) of Consumer Protection Act? -Yes.
ii. Whether respondent failed to exercise due care, Skill and competence in doing work or providing Services that may be reasonably expected of medical practitioners? -Yes iii. Whether death of wife of complainant is unfortunate result of gross negligence of the doctors and deficiency in service rendered by them? -Yes iv. Whether complainant is entitled for compensation and damages? If yes what extent? -Yes, as per final order.
11. Learned counsel Shri.Baheti for complainant submitted that, Smt. Poonam wife of complainant No.1 died at around 10.30 a.m. due to negligent acts and deficiency in services of respondents in the administration anaesthesia and post operative care. According to him, Dr.Bagadia sought assistance of unqualified Dr.Sharada Chandak who is D.H.M.S. for operation and post operational stitches. He submitted that the evidence on record shows that Dr.Bagadia left the operation theatre just after birth of child without completing post operational stitches. He further submitted that, Dr.Purohit did not make thorough examination of the deceased before considered her fit for the type of anaesthetic drug he chose to administer and consequently he failed in his judgment giving proper dosage. Learned counsel submitted that respondents did not shift the patient in allotted room neither they called them to see her.
He submitted that there was no communication whatsoever from the respondents regarding her health for almost 3 hours. They did not inform them about the happenings inside the operation theatre and did not disclose her death immediately. They were kept in the dark. Learned counsel submitted that negligence of the doctors has been proved by findings in post mortem report, which has been carried by panel of 3 doctors who are experts. Learned counsel submitted that no more expert`s evidence is required to be adduced. He submitted that, entire operation procedure is carried in their absence. Learned counsel submitted that, they were unable to see any kind of medical procedure or what exactly happened inside the operation theatre. He submitted that, respondents who attended patient had special knowledge of what had happened inside the operation theatre therefore it is the duty cast upon respondents to prove the fact that no sort of negligence took place inside the operation theatre. Onus of proof is shifted upon them to substantiate the fact that there was no negligence on their part. Learned counsel submitted that, the Principal of Res Ipsa Loquitor is squarely applicable in the instant case. Learned counsel relied on Smt.Bhanupal Vs- Dr.Prakash Padode reported in 2000(3) CPR 356. He further submitted that pavelon drug was administered in addition to other anaesthetic drugs and as such excess dosage of anaesthesia. He submitted that, as there was another case of surgical operation to be attended by the respondents immediately after this operation it is very much possible that Anaesthetist has given stronger dose which caused Bronchpneumenic reaction and pulmonary congestion with oedema resulting in to sudden death. He submitted that, respondent did not report about death to the police station for post mortem on 5.11.1992 despite of complainant`s request. He further submitted that, respondent No.1 was not legally authorised to issue death certificate without ascertaining exact cause of death by getting post mortem done on the dead body. Learned counsel submitted that cause of death as sudden cardiac arrest has been proved to be false by post mortem findings. He submitted that notes produced by anaesthetist are not prepared in normal course at material time. He submitted that, those are prepared after incident of 5.11.1992 and those appear to have been written by one person. Entries therein have been made at one point of time and not over the period of hospitalisation of patient. He submitted that respondents prepared notes in order to suit their case. He submitted that, complainant has proved negligence on the part of respondents.
12. On the other hand, Learned counsel Shri.Jayant Chitnis for respondent No.1 & 3 submitted that complainants have not bothered to produce any expert`s evidence to substantiate their claim nor they have cared to cross examine the doctors. Learned counsel relied on Manilal Nathabhai Patel & Ors. Vs- Dr.Tushar N.Shah reported in 1997(2) CPR 15. He further submitted that, medical negligence must be established and not to be presumed.
In the absence of expert`s evidence no negligence or deficiency in service could be found against doctors.
According to him, evidence on record shows that respondents attended the patient carefully and proper treatment was given which was in accordance with the established medical procedure.
Learned counsel submitted that, they acted with due care and caution required for medical profession. He submitted that, respondent No.1 after completing operation and after being satisfied about proper completion of operation and regaining the consciousness of patient had come out of operation theatre and congratulated complainant No.1 and offered cup of tea to the complainant and his friends. He submitted that, if at all there were any complications how he can offer cup of tea and congratulate complainant No.1. Learned counsel submitted that there is no evidence to show that treatment given by respondent was palpably wrong. Learned counsel in that respect relied on Mrs.Kiran Bala Rout Vs-
Christian Medical College & Hospital & ors. Reported in 2003(1) CPR 238(NC). Learned counsel further submitted that, when respondent No.1 left operation theatre patient was under the observation of respondent No.2 to look after and attend. Respondent No.1 can not be said to be negligence on his part under the circumstances. He submitted that, they have attended the patient with due care, skill and diligence and even then patient does not survive, doctors can not be held to be guilty of the negligence. Learned counsel in that respect relied on Dr.Piyush Verma & Ors. Vs- Jabar Singh & Anr. Reported in 2002(1) CPR 391. He also relied on Achyutrao Haribhau Khodwa & others Vs- State of Maharashtra & others reported in (1996)2 Supreme Court Cases 634. Learned counsel submitted that, there is nothing on record to show that medical notes or the case papers have been prepared afterward to suit their case. Learned counsel relied on Sethuraman Subramaniam Iyer Vs- Triveni Nursing Home & Anr. Reported in 1997(2) CPR
144. He also relied on Mrs.Savitri Devi Vs- Union of India & Ors. Reported in IV(2003) CPJ 164. Learned counsel further submitted that, criminal case filed against respondent No.1 & 2 U/s 304, 34 I.P.C. has been ended in acquittal. He submitted that, the evidence on record shows that, respondent had requisitioned the services of Dr.Gayal,Sr.Anaesthetist and Physician Dr.Rajurkar, this very fact that, Physician and Anaesthetist were called and they attended the patient establish that the due care and caution had been taken by the respondents. He submitted that, no specific case has been made out by the complainant as to what the doctors should have done or anything wrong in the line of treatment adopted by them. He submitted that, it is no ones case that child was not delivered safely, the child was not healthy. He submitted that, it can not be said when delivery was normal the surgeon should be there with attending the patient all the time. Learned counsel cited N.Thangaraj Vs- Dr.Anusha Kumari reported in 2006 CTJ 450(CP)(NCRDC). According to learned counsel there is no evidence to establish deficiency in service on the part of respondents. Learned counsel submitted that, burden to prove negligence is on the complainant which is not discharged by them.
13. Learned counsel Shri.Jaywant for respondent No.2 submitted that in order to prove the negligence on the part of opponents in treating the deceased it is necessary for the complainant to prove that Doctor ought to have been done something which they failed to do or Doctors ought not to have been done something which they did and that the said act of commission or omission on the part of Doctors resulted in death of deceased. He submitted that, complainant has not produced any medical opinion in support of their contention that there was negligence on the part of respondents which resulted into death. Learned counsel submitted that, complainant filed the affidavits of interested witnesses. There is no evidence of independent witness. He submitted that, the affidavit of witnesses did not disclose any negligence on the part of opponents in treating deceased. He further submitted that, entire complaint is based on assumptions and presumptions, no expert`s evidence is adduced. Learned counsel submitted that, complainant`s case is based on cause of death certified by Doctors who conducted the post mortem. He submitted that, pathologists who performed post mortem are not certain about their findings of reaction due to anaesthetic drug and hence raised query regarding the same. Learned counsel submitted that, Dr.V.L.Deshpande, Pathologist who performed post mortem on the deceased has stated in his affidavit that cause of death as certified does not indicate any negligence on the part of opponent No.2. Learned counsel submitted that, opponents have specifically stated in their replies that probable cause of death was Amniotic Fluid Embolism. It was necessary for the complainant to examine expert to substantiate their case that death occurred on account of negligence on the part of opponents in treating deceased and not on account of Amniotic Fluid Embolism. Complainant did not bring on record any material in that respect. Learned counsel submitted that, respondent No.2 has stated in his rejoinder affidavit that pavelon drug was not administered by him. He submitted that no evidence is brought to show that, pavelon drug was administered to the deceased by respondent No.2. According to him, complainant has given free hand to imagination and guessing that pavelon drug is administered. He submitted that, complainant has not produced prescription given by the respondents whereby pavelon drug was called for, the bill produced is duplicate it raises doubt about genuineness. He submitted that, respondent wrote notes of anaesthesia during surgery, after surgery was over and notes regarding rescutitive measures were written after said rescutitive measures were conducted. According to him entire case of complainant is based on presumptions and assumptions without producing any medical opinion in support of their contention. Learned counsel relied on;
i) Dr.N.T.Subrahmanyam and another Vs- Dr.b.Krishna rao and another, reported in National Commission and SC on consumer cases, page 2350(NS),
ii) Sethuraman Subramaniam Iyer Vs- Triveni Nursing Home and another, reported in 1986-99 Consumer 4412(NS),
iii) Yasmin Sultana & another Vs- Dr.Rupaben D.Patel & Another, reported in 1986-99Consumer 3493(NS),
iv) Kailash Kumar Sharma Vs- Dr.Hari Charan Mathur, reported in 1986-99 Consumer 4235 (NS),
v) Consumer Protection Council and others Vs- Dr.M.Sunderan and another, reported in 1986-99 Consumer 4198(NS),
vi) M/s Signet Corporation Vs- Commissioner M.C.D. New Delhi and others, reported in 1986-99 Consumer 4202 (NS),
vii) Tapan Kumar Nayak and others Vs- State of Orissa and others, reported in 1986-99Consumer 4086(NS),
viii) Kanhaiya Kumar Singh Vs- M/s Park Medicare and Research Centre, reported in 1986-99 Consumer 3447(NS),
ix) Jacob Mathew Vs- State of Punjab and another, reported in 2005 AIR SCW 3685.
14. We perused the papers and evidence adduced by complainant as well as respondents. There is no dispute that, on 5.11.1992 Poonam was admitted in the nursing home of respondent No.1 Dr.Bagadia for caesarean operation on his advice, as normal delivery was not possible due to oblique position of baby in the womb. There is also no dispute that,Dr.Bagadia requisitioned the services of Dr.Purohit, Anaesthetist. There is also no dispute that, Dr.Bagadia was associated with one Dr.Sharda Chandak who is D.H.M.S. It has also come on record that, when Dr.Purohit reached Nursing Home patient was already in the operation theatre being prepared for operation.According to Dr.Purohit he examined her pre-operatively in the operation theatre only and found fit for administration of general anaesthesia. It has also come on record that some medicines were purchased on the prescription given by respondents and kept in the allotted room of the deceased. There is also no dispute that, Dr.Bagadia met complainant and his friends in his consulting chamber after operation and congratulated to complainant and offered a cup of tea to him and his friends. It has also come on record that male baby was born and brought out side the operation theatre to show the complainant and his friends.There is also no dispute that, after offering a cup of tea to the complainant and his friends respondent No.1 went to take round in hospital and after completing round in hospital, again went to operation theatre. It is also not disputed that Poonam was not shifted to allotted room, after operation she was kept in the operation theatre longer than as usual. It is the contention of respondent that, respondent No.1 and complainant No.1 being close friends his wife was kept in operation theatre as a matter of abundant precaution. It has also come on record that, patient was declared dead at 1.10.p.m.and accordingly, complainant was informed. It is also apparent from the record that, Dr.Gayal, Ananesthetist and Dr.Rajurkar, Physician were called for the help of respondents. Dr.Gayal was called first thereafter Dr.Rajurkar was called. It is also not disputed that, dead body was removed to the Government Medical College Hospital`s cold storage on 5.11.1992. Dr.Bagadia issued death certificate showing cause of death as cardiac arrest. It is also apparent that, there is no mention about issuance of death certificate in the notes prepared by the respondents. It has also come on record that Dr.Bagadia informed Police Inspector, Kranti Chowk Police Station on 6.11.1992 in the afternoon that Poonam died during caesarean operation. It is also apparent that, accidental death at No.47/92 U/s 174 of Cr.P.C. was registered in Kranti Chowk Police Station on 6.11.1992. The spot panchanama was also drawn by police by visiting nursing home of Dr.Bagadia. It has also come on record that, the case papers(notes) were seized by police on 7.11.1992. The post mortem was conducted on the dead body by the panel of 3 doctors headed by Dr.V.L.Deshpande, Professor and Head of the Department of Forensic Medicine and Toxicology of Government Medical College. Viscera was preserved and the same was sent to chemical analyser.
After receipt of the C.A.`s report final cause of death was given on 29.12.1992 death associated with administration of anaesthesia required for caesarean section operation. There is also no dispute that offence was registered on 30.6.1993 at crime No.217/93 U/s 304 of I.P.C. in the Kranti Chowk Police Station. It is also apparent that, charge sheet was submitted against respondent No.1 & 2 in the J.M.F.C. Court at Aurangabad. It is also apparent that, respondent No.1 & 2 are acquitted for the offence U/s 304, 34 of I.P.C. by J.M.F.C. Court, Aurangabad vide its judgment dated 9.12.1996. Appeal filed against the said judgment before Hon`ble High Court has been dismissed on 26.11.1998.
15. Point No. i: It is the contention of respondent that, complainant`s wife was not consumer as free services were given as complainant is his friend and thus complaint is not tenable. According to complainant services rendered by them are not covered under Section 2(1)(O) of Consumer Protection Act as services are given free of cost and thus complaint does not fall within the ambit of Consumer Protection Act. It is not disputed that, respondent No.1 runs Bagadiya Maternity and Nursing Home and carries his profession for gain and hence question of rendering free service can not and does not arise. It has also come on record that, respondent No.1 requisitioned services of respondent No.2 as Anaesthetist. It has also come on record that, respondent No.3 was assisting him at the time of operation. It has also come on record that complainant had offered and is ready and willing to pay respondent`s professional charges. Accordingly, complainant No.1 had addressed letter dated 25.2.1993 to respondent No.1 which was replied by respondent No.1 by his letter dated 3.3.1993 wherein respondent No.1 refused to accept any charges or present his bill.
Thus, complainant No.1 is ready and willing to pay professional fee.
16. In Indian Medical Association -Vs- P.Shanta reported in 1995(3) CPR page 412 SC, it held by Hon`ble Supreme Court that, service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expressionservice as defined in Section 2(1)(O) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be service and the recipient a consumerunder the Act.
In case M/s Cosmopolitan Hospitals V-s Vasantha P.Nair reported in I(1992) CPJ page 302 (NC), it is held by Hon`ble Supreme court that in case of hospital which provide treatment to patients for payment we are unable to see how there is any element of personal service involved in such arrangement. When a patient goes to such a hospital and avails himself of the facility of treatment on payment of consideration, he is dealing only with an institution carrying on the activity of providing medical service for payment and no element of personal service does enter into the picture in such a case. The hospital may have its own doctors, consultants etc, for treating the patients admitted to its care but ordinarily it is not likely that there will be privity of relationship between the person who gets admitted in the institution and the doctors who may be on the staff of the institution or may be visiting consultants there. We have mentioned that, complainant No.1 is ready and willing to pay professional fee. Accordingly, he had addressed letter to respondent No.1 which was replied by him. We also mentioned that, respondent No.1 runs the hospital and carries his profession for gain and hence question of rendering free service can not and does not arise. In the circumstances, deceased Poonam is consumer as defined U/s 2(1)(d) of Consumer Protection Act and services rendered by respondents fall U/s 2(1)(O) of C.P.Act.
Accordingly, we answer point No.1 in affirmative.
Point No.II & III.
17. It is tried to contend on behalf of respondents that, offence U/s 304 of I.P.C. was registered against respondent No.1 & 2 and respondent No.1 & 2 are tried before J.M.F.C. Court and both of them have been acquitted for offence U/s 304 I.P.C. Learned counsel also submitted that, criminal application bearing No.944/97 filed by Government of Maharashtra against judgment and order of J.M.F.C. has been rejected and appeal filed by Government of Maharashtra has been dismissed. It is true that, doctors respondent No.1 & 2 against whom criminal case U/s 304, 34 of I.P.C.was filed have been acquitted by Criminal Court. It be remembered that, the burden of proof and standard of proof in criminal case is different than in civil case. To fix criminal liability under Section 304 of I.P.C. the standard of negligence to be proved should be so high that it can be described as a gross negligence on recklessness lade of necessary care. Criminal case U/s 304 of I.P.C. can not be decided on the touch stone of the probabilities. It is not merely lack of necessary care. The prosecution is required to prove the offence beyond reasonable doubt. Such is not position in the present case. As the prosecution could not prove the charges with which respondent No.1 & 2 were charged, they have been acquitted in criminal case. No such standard of proof is required in the instant case. Thus, the acquittal of respondent No.1 & 2 in criminal case would not come in the way to decide the present case.
18. Affidavit of Dr.V.L.Deshpande who conducted the post mortem on the dead body alongwith other 2 doctors is brought on record by respondent No.1 & 3. It reveals from his affidavit that he is working as Professor in Forensic Medicine and Toxicology Department at the Government Medical College since October 1997. On 6.11.1992 at about 5.00 a.m. dead body of one Mrs. Poonam Shrivastava was shifted to Govt.Medical College for performing post mortem examination. He performed post mortem on the dead body in between 5.15 p.m. and 7.00 p.m. while doing post mortem examination, he was assisted by Dr.Sangle and Dr.R.N.Kagne. It has also come in affidavit that body was kept in cold storage in the Department of Anatomy for about 24 hours. His affidavit shows that there was no injury on the scalp and there was no fracture of skull bone. Meninges congested. Brain matter was congested and oedematous. Petechial hemorrhages seen in white matter. Right lung weighed 570 gms and left lung 460 gms. Both lungs showed pulmonary congestion and oedema.
Witness stated that no evidence of pulmonary embolism could be detected. Pericardium-Myocardium did not show any abnormalities except punctures. Heart weighed 270 gms. The large vessels show dark fluid blood, coronaries did not show any abnormality. No occlusive changes were seen in coronaries. Aorta and great vessels did not reveal any abnormality. Wall and peritoneum underneath injury No. 1 of column 17 stitched in layers. Abdominal wall contained plenty of fat tissue. In stomach contents he has mentioned that, it is normal in size and shape, empty, mucosa congested and eroded at places with petechial hemorrhage.
Small intestine and large intestine were distended with gases. Liver kidneys, spleen, pancreas were congested. Uterus-Enlarged. Fundus situated just above umbilicus. Size 30 cms X 25 cms. X 8cms. Blood clots present in uterine cavity. Lower segment showed transversely placed stitches 15 cms in length on anterior surface.
Viscera was preserved for chemical analysis. Opinion was reserved till report of chemical analysis of viscera was available. But provisional post-mortem report was issued on the same day. Department of Forensic Medicines and Toxicology received C.A.report on 27.8.1993.
Witness gave result of analysis.
Three sections of lungs given. Lungs on gross showed congestion and patchy consolidation. On cut section frothy oedema fluid freely oozed out. While the microscopic examination revealed presence of Bronchi and Bronchioles.
Alveoli were filled with proteinaceous fluid. Alveolar wall at places showed marked thickening. At places alveoli showed inflammatory exudates, showing macrophages and polymorphonuclear cells. Witness stated that on Microscopic diagnosis, pulmonary congestion with oedema with brancho pneumonic reaction due to ? Anaesthetic drugs. Diagnosis : death associated with administration of anaesthesia required for caesarean section operation. Witness stated that for every Caesarean operation the anaesthesia is required to be given to the patients. Every anaesthesia has some side effect. In this case Broncopneumonia was found. None of the doctors who had earlier examined the patient in past had revealed presence of Broncopeneumonia patches in the lungs.
19. Witness stated that as per record of Dr.Bagadia Nursing Home dated 5.11.1992 made available to him, it has transpired that the patient was out of anaesthesia in between 10.35 a.m. to 11.30 a.m..
This shows that, the patient was out of anaesthesia and its effect was over by that time. Witness stated that fortwin, pentothal sodium and scoline are the drugs used for general anaesthesia. These three drugs are generally used for last several years.
He says that basically these drugs are toxic in nature but if used properly they are safe when used by trained anaesthetist. It has also come in his evidence that Anaesthetic drugs are partly metabolized.
Witness has stated that in deaths associated with surgical procedure and administration of Anaesthesia it is often not possible to give definites cause of death unless there is evidence of surgical accident like wrongly cutting the blood vessel or operation on the wrong part etc. Witness stated according to him the term death associated with administration of anaesthesia does not imply inculpation or exculpation of the anaesthesia in the cause of death. He stated that, deceased patient was suffering from the type of surgical procedure that was decided, the type of anaesthesia administered required to be considered in their totality while deciding the cause of death. He firmly stated that he sticks on his microscopic diagnosis of Bronchopneumonia. However there can be difference of opinion about its causation like type of operation and anaesthetic use and immunological status of the patient. It has also come in his evidence that he did not find any evidence indicating about accident during surgery or evidence of wrong procedure followed. On perusal of case papers and post mortem findings the witness stated that he did not come across any findings indicating there was no positive evidence to show any surgical mishap or any wrong doing during administration of the anaesthetic. Witness stated this from perusal of clinical, intro-operative and post operative notes made available to him.
20. It has come on record that entire operation procedure is carried in the operation theatre and deceased Poonam was kept in the operation theatre from beginning to her death. It has also come on the record that, complainant was not allowed to see his wife after delivery till her death. All surgical or medical procedure was carried out inside the operation theatre when nobody on behalf of patient was present there. Patient`s relatives were unable to see any kind of medical or surgical procedure or what exactly happened inside the operation theatre. Thus, the complainant is not in position to say the factual aspects of whatever took place inside. Respondents who attended patient during the operation and thereafter had special knowledge of what had happened inside. Therefore it is the duty cast upon them to prove the fact that no sort of negligence took place in the operation theatre.
21. In Smt.Bhanupal Vs- Dr.Prakash Padode reported in 2000(3) CPR 356(NC), it is held by Hon`ble National Commission, -
In doctrine of common knowledge the patient`s relatives must prove positive act of omission but they need not produce evidence to establish the standard of care as the entire operative procedure was carried out in the absence of any patient`s relatives. Naturally when all such medical or surgical procedure was carried out inside the operation theatre when no body on behalf of the patient was present. The patient`s relatives were unable to see any kind of medical/surgical procedure or what exactly happened inside the operation theatre. Therefore, the opposite parties and the staff attending inside only had special knowledge of what happened inside the operation theatre and the complainant is not in a position to exactly state the factual aspects of whatever took place inside are all necessity of evidence in order to prove the medical negligence occurring on the hands of the opposite parties. Therefore, it was a duty cast upon the opposite parties to prove the fact that no sort of negligence took place inside the operational theatre. Thus, the onus of proof shifted upon the opposite parties to substantiate the fact that there was no negligence on their part"
22. It is the contention of respondents that complainant is required to prove negligence on the part of doctors. It is true that, burden to prove the negligence of doctors is always on the person alleging the same. There is exception to the general rule of discharging burden of proof by the complainant. Such exception is known as Principle of Res Ipsa Loquitur . Application of Principal of Res Ipsa Loquitur has been considered by the Hon1ble Apex Court in Jacob matherw Vs- State of Punjab & Anr. Reported in 2005(5) Supreme 297. This principle is applied in cases where plaintiff does not know the cause of accident and defendant gives no explanation as to the said cause. This is how the burden to show that there is no negligence in the treatment is shifted on the doctors. In the instant case, Poonam Shrivastav was admitted on 5.11.1992 for caesarean operation as normal delivery was not possible due to oblique position of baby. There is also no dispute that, she was operated by Dr.Bagadia. He had requisitioned the services of Dr.Purohit as Anaesthetist. There is also no dispute that, when operation was being performed none from the complainant`s side was present in the operation theatre. Process of anaesthesia, operation etc. were done by doctors when none of the patient`s relative was present in the operation theatre. It has also come on the record that, after operation the patient Poonam is reported to be dead at 1.10. p.m. showing the cause cardiac arrerst. According to respondents she died due to Amniotic Fluid Embolism after caesarean operation. Thus, it is certain that complainant who is husband of deceased does not know the cause of death of his wife. Thus, it is for doctors to prove that there was no negligence on their part in performing the operation and the post operative cares. Principle of Res Ipsa Loquitor is squarely applicable in the instant case. Certainly complainant being layman in the medical field can not be said to have knowledge about the cause of death of his wife.
Thus, the burden to show that there was no negligence on their part has been shifted to the doctors who operated the deceased Poonam. In the circumstances, no expert`s evidence is required by complainant to show that due to improper operation his wife died.
23. It has come on the record that the some medicines were purchased for replacement of the medicines used in the course of operation of the patient by the complainant. The evidence of Ghanshyam Bissa is on the record. According to him, complainant No.1 was called in the consulting room by respondent No.3 she gave some prescription of medicines to bring from medical shop. Complainant No.1 handed over the said prescription detailing medicines which were to be purchased and returned to the doctor as replacement of the medicines used in the operation theatre. Witness went to the chemist shop Samarth Medical and bought the medicines and informed respondent No.3. Medicines were kept in the room allotted to deceased Poonam on the request of respondent No.3. His evidence is corroborated by the evidence of Prakashchand Mutha. The evidence of Devjibhai Patel shows that after death of Poonam medicines which were bought and kept in room and which were not to be replaced were to be returned. So he went Samarth Medical and returned the medicines with the bill. Chemist returned the money of medicines which were not used. As per bill dated 5.11.1992 issued by Samarth Medical one of the medicine purchased is pavlon 2 ml. The said pavlon is not shown in the list of medicines which are returned. When pavlon was purchased and was not returned with the medicines which were not used gives positive inference that the pavlon drug had been administered to the deceased. It is true that the contention raised by the complainant regarding administration of pavlon has been denied by respondent No.2 in his sir rejoinder affidavit. Respondent No.2 tried to contend that, pavlon would have been required to be given to the deceased if the operation had prolonged. It is to be noted that, Dr.Purohit does not say that the pavlon drug was not prescribed and same was not bought by the complainant. Even he does not say that the pavlon drug which was purchased had been returned with the medicines which were not used. We have mentioned that, list of medicines which are returned for non use of those does not include pavlon drug. In the circumstances, the possibility of administering the pavlon can not be ruled out when purchase of it on the prescription of respondent is not denied and when same is not returned to the medical shop.
24. It is the contention of complainants that, case papers brought on record have been prepared afterward and entries therein have been made at one point of time and in one sitting and not over the period of hospitalisation of the patient. It is to be noted that respondent No.2 himself has mentioned in his written argument that he wrote the notes of anaesthesia during surgery after surgery was over and notes regarding resuscitative measures were written after said resuscitative measures were concluded. It is his contention that performing resuscitative measures was more important than writing the notes. Hence notes were written after concern procedure is concluded. On perusal of case papers, it reveals that, annexure B is the case paper prepared by Dr.Bagadia where birth of male child is mentioned. It does not give details about post operative measures like stitches etc. It appears that, annexure B which is prepared by Dr.Bagadia is on the prescribed form of the case paper of Bagadia Maternity and Nursing Home. The annexure C which runs in six pages is not on the prescribed form of case paper.
It appears to have been written on the letterhead of Bagadia Maternity and Nursing Home. Thus, it is not the case papers but appears to be notes by respondents. All the entries in the notes paper appear to have been taken at one point of time and not during the period of hospitalisation of patient.
The entire case papers(notes) do not disclose the list of medicines which were prescribed by respondents for purchase to replace the medicines used during course of operation. The evidence on record shows that, complainant had purchased medicines for replacement of medicines used by doctor in the operation.
The evidence shows that drug pavlon was purchased by the complainant on the prescription issued by the respondent and the same was not returned to the chemist with other medicines which were not used. The evidence also shows that some of the medicines which were not to be replaced for the medicines used in the course of operation were returned to the concern medical shop. Pavlon drug which was purchased as per bill brought on record appears to have been used during operation. Even the same is not mentioned in the notes. It also be mentioned that, respondents did not give any sort of explanation about the prescription issued for purchase of pavlon. Simply he tried to mention in the affidavit that pavlon drug was not administered but no explanation why the same was purchased and why the same was not returned. It also reveals from the case papers that Dr.Gayal and Dr.Rajurkar were called for their help. Both the doctors were alleged to have examined the patient. It is to be noted that findings and observations made by those doctors did not appear in the case papers prepared by the respondent. Their observations and findings ought to have been in the case papers which are maintained in the regular course. Why they are required to maintain separate papers is not explained. It is to be noted that respondents as well as Dr.Gayal were shown to have examined the patient and noted observations. It be mentioned that the case papers disclose that respondents examined the patient at 11.40 a.m. and they recorded B.P. 120 mm of H.G. systolic.
Case papers prepared by Dr.Gayal also shows that, he had also examined the patient at 11.40 a.m. and he found the B.P. 130/90 mm. It is not known how the patient was examined independently by respondents as well as Dr.Gayal at the same time i.e. 11.40 a.m. and they found different B.P. and how they recorded different B.P. at relevant time only. It also be noted that, at about 12.30 p.m. B.P. was shown 70 mm recorded by respondent. Dr.Gayal`s case paper does not disclose the B.P. at 12.30 as 70 mm.
Dr.Gayal who was senior Anaesthetist was there, he would have recorded the fall in B.P. in his case paper. It also be mentioned that, respondents recorded at 11.15 a.m. that portable x-ray was asked which is not recorded by senior Anaesthetist Dr.Gayal in his case papers. Further it is not stated from which hospital the portable x-ray machine was to be procured. If portable x-ray machine was there in the Bagadia hospital why such x-ray was not taken. It indicates that, with a view to show that they were trying all possible means to save life of patient they recorded portable x-ray was asked. If the machine was not with them they would have arranged for the same or they would have asked complainant for making such arrangement. It also be mentioned that, it is recorded in the case papers Asked for post mortem as exact cause of death was not pin pointed. It has come on the record that, Dr.Bagadia wrote letter on 6.11.1992 at 1.10 p.m. to Kranti Chowk Police Station for taking action to ascertain exact cause of death. If the entry regarding post mortem was dated 5.11.1992 in the case paper Dr.Bagadia would have informed the police on the very day for taking action to ascertain exact cause of death. Dr.Bagadia informed the police on 6.11.1992 for taking action to ascertain exact cause of death. The entry regarding post mortem should not have found place in the case paper dated 5.11.1992 if case papers were prepared on 5.11.1992 only.
It also be mentioned that death certificate has been issued by respondent on 5.11.1992. If the death certificate was issued on 5.11.1992 entry in that respect ought to have been recorded in the case papers. But there is no mention about issuance of death certificate in the case papers. According to the respondent entries were written by him after concern procedure was completed. It is to be noted that the entries regarding B.P., pulse etc. have been recorded showing the time at 10.45, 10.50, 11.05, 11.15, 11.30, 11.40, 11.50, 12.30. All these entries appear to have been taken at one point of time and in one sitting. Certainly it is difficult to recollect and mention all these entries unless some summary notes are prepared. Such summary on the basis of which notes are prepared is not brought on record. It also appears from the stand taken by respondent that notes were prepared by him after concern procedure was concluded. The summary case papers which should have been prepared in the normal course at relevant time have not been brought on record.
Proper documentation & recording of minute details of medical treatment is pre-requisite of avoiding the charge of medical negligence. The purpose and importance of such record is that it is a mirror of reasonable care and skill exercised by the doctors in the treatment of patient. It helps doctors to prepare defence in case of negligence. It is important that clinical notes/case papers should be written immediately after treatment. It has come on the record that, respondents informed the police on 6.11.1992 about death of Poonam and for ascertaining cause of death. If the cause of death was to be ascertained then why respondent did not produce the case papers before police alongwith letter in question. If the post mortem was to be conducted at the instance of respondents then case papers ought to have been produced by the respondents when they wrote letter to the police. It also be mentioned that, so called case papers were seized by police under panchanama dated 7.11.1992. It was necessary for the respondents to produce the case papers on the very day when they informed the police for taking action to ascertain cause of death. The non production of the case papers before police on the very day shows that, the case papers were not ready on 5.11.1992 and even on 6.11.1992. All that shows that case papers were prepared later on and that too suit their case which do not depict the true and correct facts.
Such record creates suspicion about genuineness.
25. It is the case of respondents that the condition of various organs mentioned in the laboratory report of the post mortem can occur due to Amniotic Fluid Embolism after caesarean operation.
According to respondent No.2, probable cause of death of Poonam is Fat Embolism or Amniotic Fluid Embolism.
According to him, pathologist had failed to consider this alternative causes of death and failed to conduct any laboratory investigation to rule out the above possibilities.
26. From medical literature produced by both the parties, it is apparent that Amniotic fluid embolism is a rare obstetric emergency in which amniotic fluid, fetal cells, hair, or other debris enters the maternal circulation, causing cardiorespiratory collaps. Diagnosis of Amniotic Fluid Embolism is confirmed only at autopsy examination by finding amniotic fluid debris in the material pulmonary vasculature and aspirated blood from right heart. In book by Lisa E Moore, MD, Assistant Professor of Maternal Fetal, Medicine, Department of Obstetrics and Gynecology, University of New Mexico Health Sciences Centre, it has been mentioned that the diagnosis of amniotic fluid embolism has traditionally been made at autopsy when fetal squamous cells are found in the maternal pulmonary circulation, however, fetal squamous cells are commonly found in the circulation of laboring patients who do not develop syndrome. The following signs and symptoms are indicative of possibility of Amniotic Fluid Embolism;
Hypotension : Blood pressure may drop significantly with loss of diastolic measurement.
Dyspnea : Labored breathing and tachypnea may occur.
Seizure : The patient may experience tonic-clonic seizures.
Cough:
This is usually a manifestation of dyspnea.
Cyanosis : As hypoxia/hypoxemia progresses, circumoral and peripheral cyanosis and changes in mucous membrances may manifest.
Fetal bradicardia : In response to the hypoxic insult, fetal heart rate may drop to less than 110 beat per minute (bpm). If this drop lasts for 10 minutes or more, it is a bradycardia. A rate of 60 bpm or less over 3-5 minutes may indicate a terminal bradycardia.
Pulmonary edema : This is usually identified on chest radiograph.
Cardiac arrest Uterine atony ; Uterine atony usually results in excessive bleeding after delivery. Failure of the uterus to become firm with bimanual massage is diagnostic.
Histologic findings: On autopsy blood vessels in the lungs may show evidence of fetal debris (eg. Squamous cells, vernix, mucin).
The following signs & symptoms are indicative of possibility of a Fat Embolism.
Tachy Cardia, Rapid breathing, Restlessness, Confusion, Rash, Sleepiness, Bluish tint to the skin(cyanosis).
27. In the instant case, post mortem on the dead body of Poonam has been conducted by team of 3 experts doctors of Government Medical College, Aurangabad. The diagnosis for the cause of death as per final death certificate dated 29.9.1993 is based on post mortem findings, findings of histopathological examination and findings of chemical analyser`s report and the same is death associated with administration of anaesthesia required for caesarean operation. The cause of death due to Amniotic Fluid Embolism as alleged by respondents is not indicated in the findings of the post mortem report. Therefore any other cause of death i.e. due to Amniotic Fluid Embolism as stated by respondents can not substitute the cause of patient`s death.
Cause of death due to Amniotic Fluid Embolism appears to have been stated by respondents on the presumptions and assumptions only. It also be mentioned that, Dr.Bagadiya who issued death certificate on 5.11.1992 showing cause of death as cardiac arrest did not mention the alleged cause of death Amniotic Fluid Embolism in the death certificate which he should have done.
If respondents were sure of cause of death as amniotic fluid embolism why they did not mention it in the death certificate. Why they had not suggested laboratory investigation in order to verify the alleged cause of death i.e. Fat Embolism or Amniotic Fluid Embolism. Diagnosis of Amniotic Fluid Embolism is to be confirmed only at autopsy examination by finding amniotic fluid debris in the maternal pulmonary vascular and aspiratory blood from right heart. There is no evidence showing fetal debris (eg. Squamus cells, vernix, mucin) in the blood vessels in the lungs in the post mortem conducted by panal of doctors. On the contrary post mortem report mentions in column No.20 that no evidence of pulmonary embolism could be detected and odema. On autopsy, blood vessels in the lungs do not show the evidence of fetal debris. It mentions that, both the lungs showed pulmonary congestion and Oedema, Dark fluid seen.
The post mortem findings are not indicative of syncope mode of death. Hence alleged cause of death due to Fetal Embolism or Amniotic Fluid Embolism are ruled out. As per post mortem report the weight of right lung was 570 gms and left lung 460 gms. The dead body was kept in cold storage for about 30 hours. Even then both the lungs of the deceased were found heavier with the blood collected in the dependent part. It has also come on the record that, pavelon drug was purchased on the prescription given by the respondents from the chemist shop M/s Samarth Medical stores. Bill in question of M/s Samarth Medical has been produced by complainant. There is every possibility that pavelon drug would have been administered in addition to other anaesthesia drug as such there was excess dose of anaesthesia. It is true that respondent tried to mention in his sir rejoinder affidavit that no pavelon drug was administered. But he did not give any explanation that why pavelon drug was prescribed to purchase the same in order to replace medicines which are used during operation and if it was not administered why the same was not returned when other medicines which were not used were returned. Anaesthetist appears to have given stronger dose of anaesthetic drug. This excess of anaesthesia finally caused Bronchopneumonic reaction and pulmonary congestion with oedema and resulted in sudden death from asphyxia. Moreover doctors who conducted post mortem have confirmed the cause of death as associated with administration of anaesthesia and Bronchopneumonic reaction due anaesthetic drug.
28. It has also come on the record that , Fortwin, Pentothal Sodium and Scoline are the drugs used for general anaesthesia.
These drugs are generally used for last several years. It has also come in evidence of Dr.Deshpande that lungs were examined. Lungs on gross showed congestion and patchy consolidation on cut section frothy oedema fluid freely oozed out. It has also come in his evidence that, the microscopic examination revealed presence of bronchi and bronchioles. Alveoli were filled with proteinaceous fluid. Alveolar wall at places showed marked thickening.At places alveoli showed inflammatory exudates, showing acrophages and polymorphonuclear cells. It has also come in his evidence that, every anaesthesia has some side effect. In the instant case Broncopneumonia was found. Witness stated that none of the doctor who had earlier examined the patient in the past had revealed the presence of Broncopneumonia patches in the lungs. It also be mentioned that symptoms which are indicative of the possibility of Amniotic Fluid Embolism or Fat Embolism did not appear in so called notes prepared by Anaesthetist and also in post mortem report. It appears that respondents had been negligent in the diagnosing patients condition and administering required treatment. Dr.Deshpande does not agree that in case of sudden death one can not diagnose the cause of death. However, he says that in death associated with surgical procedure and administration of anaesthesia it is often not possible to give definite cause of death unless there is evidence of surgical accident like wrongly cutting the blood vessel or operating on the wrong part. He stated that he firmly sticks to his microscopic diagnosis of Bronchopneumonia. However he stated that there can be difference of opinion about causation like type of operation and anaesthetic use and immunological status of the patient. It is true that witness stated that patient was out of anaesthesia in between 10.35 to 11.30 a.m. It is to be noted it is not the finding of witness in his post mortem report but he deposes this fact on the basis of case papers, notes produced before him. On perusal of the case papers/notes he also stated that, there was no positive evidence to show any surgical mishap or any wrong doing during administration of anaesthesia.
This has been stated by the witness relying on the case papers of the respondent. Admittedly the case papers were not before him at the time of post mortem.
We have mentioned that case papers are not genuine and do not depict true and correct facts. The witness has categorically stated that on microscopic examination, presence of bronchi and bronchopenumenia was revealed. He also stated that none of the doctor who had earlier examined her in past had revealed the presence of Broncopneumania patches in the lungs. The evidence of Dr.Deshpande who conducted post mortem does not show that blood vessels in lungs show the evidence of fetal debris.
29. The burden to prove the negligence of the doctors is always on the person alleging the same. Complainant does not know the cause of death. We have mentioned that, explanation tried to be given by respondent that death occurred due to Amniotic Fluid Embolism and Fatal Embolism has been ruled out by the findings given by panel of doctors who conducted post mortem on dead body. Respondents could not discharge the burden shifted upon them. They could not prove that there was no negligence on their part while performing operation ,taking due care before and after operation. Principle of Res Ipsa Lucator is squarely applicable. They could not prove whatever treatment given to the deceased was in accordance with the established medical procedure. We have mentioned that the burden to prove that there was no negligence has been shifted on the respondents. In the circumstances it was not necessary for the complainant to bring on record any other evidence to show the negligence on the part of doctors only. Complainant`s case can not said to be on assumptions and presumptions when cause of death has been certified by panel doctors who conducted post mortem on the dead body only because Dr.Deshpande stated that, there can be difference of opinion. In the absence any positive evidence respondents can not be allowed to say that cause of death was Amniotic Fluid Embolism.
30. Death certificate has been issued by respondent Dr.Bagadia on 5.11.1992. We have mentioned that issuance of death certificate is not mentioned in the so called case papers. As per code of medical ethics, if the doctor is not sure about cause of death he must decline to give certificate. In such cases proper course for doctor is to report at once to the police and not to certify the cause of death without holding any post mortem examination even if there is strong evidence of disease. It is the contention of respondent that, death was caused due to Amniotic Fluid Embolism if respondents were in the know of cause of death they would have mentioned the same while issuing death certificate. According to respondents all the Anaesthetic procedure including post operative was over by 10.35 a.m. the patient became conscious,obeyed commonds and was talking. According to them her condition was O.K. and stable upto 11.30 a.m. Then why she was not shifted to her allotted room. If she was kept in operation theatre longer than as usual as matter of abundant precaution, and if her condition was stable and she was O.K. and was talking they would have allowed the complainant to see his wife after delivery. It has also come on record that respondents did not give any information so as to patient`s condition and enormous events recorded in the notes after 10.30 to 1.10.p.m. There is no communication by doctors regarding the health of Poonam Shrivastav for about 3 hours. As per code of medical ethics doctors should neither exaggerate nor minimize gravity of patient`s condition. They should assure themselves that the patient`s relatives have such knowledge of the patient`s condition as will serve the best interests of the patient. The evidence on record shows that they did not give any sort of information so as to condition of the patient and also the events recorded in the case papers. According to respondent No.1 when he left the operation theatre she was kept under observation of respondent No.2. Whereas respondent No.2 himself has stated that all anaesthetic procedure including post operation was over by 10.30.a.m. He specifically mentioned that he continued to remain in the nursing home, much after responsibility to this patient was over because there was another surgical case to be attended. Thus, it appears that, respondent No.2 was not in the operation theatre after 10.35 a.m. After gaining consciousness when she was talking and was O.K. and operation was successful why she was required to be kept under the observation of respondent No.2. Keeping her in the operation theatre longer than usual itself indicates that some complications occurred immediately after operation.
One more senior anaesthetist was summoned that itself shows that complications had arisen because of administration of anaesthesia. If there would have been symptoms of cardiac arrest the physician would have been called first in stead of anaesthetist. It appears that, there was some problem by anaesthetist arising out of administration of anaesthesia and patient could not get adequate oxygen therefore there is discomfort in respiration and with a view to avoid and solve the problem another anaesthetist Dr.Gayal was called. We have mentioned that, Principle of Res Ipsa Loquitor is squarely applicable in the instant case.
We have also mentioned that the respondents could not prove that patient died due to Amniotic Fluid Embolism or Fat Embolism. We have also mentioned that, nobody else on behalf of patient was present in the operation theatre when operation was carried. The respondents who carried the operation were in special knowledge of what had happened inside and therefore duty was cast upon them to prove no sort of negligence had taken place in the operation theatre. We have also mentioned that, respondents could not prove that no sort of negligence took place in the operation and also in post operative care.
31. It has come in the evidence that services of Dr.Purohit were requisitioned by respondent No.1. He participated as Anaesthetist in the process of caesarean operation. Respondent No.3 Miss.Sharda Chandak was working as Junior Assistant of Dr.Bagadia. She was assisting him as per instructions of Dr.Bagadia. She assisted Dr.Bagadia`s work under his supervision only.
Dr.Bagadia was running Maternity and Nursing Home. There is no evidence that Dr.Chandak had taken any independent decision in the course of operation. Deceased Poonam Shrivastav was admitted in the hospital for caesarean operation on the advise of Dr.Bagadia. Maternity home belongs to Dr.Bagadia and Dr.Chandak was assisting him and working under his supervision. Whatever decision were taken by Dr.Bagadia & Anaesthetist were to be followed by Junior Dr.Chandak. Dr.Bagadia & Dr.Purohit are vicariously liable for any act of their assistant and thus they are liable to pay the damages. We answered point No. ii & iii accordingly.
32. Point No.iv.:Complainant No.1 lost his life partner and complainant No.2 to 4 lost their loving mother. Complainant No.2 to 4 are rendered motherless and deprived of love and affection. It has also come on record that the deceased was conducting beauty parlour activities. She was earning from beauty parlour activity and was helping to her husband. Deceased was 37 years old at the time of death. Complainant No.4 lost his right of natural feeding since birth. Complainant No.2 to 4 were to be brought up without love and affection of their natural mother. Vacuum of love and affection created in their life can not be compensated in terms of money. However considering all these facts in our view complainants are entitled for compensation of Rs.5,00,000/-.
We pass the following order.
O R D E R
1. Complaint is allowed.
2. Respondent No.1 & 2are directed to pay an amount of Rs.5,00,000/-( Rs.Five lakhs only) to the complainants jointly and severally with interest @ 6% p.a. from the date of complaint.
3. Respondent No.1 & 2to pay cost of Rs.5000/- to the complainants jointly and severally.
4. Respondents are at liberty to deduct their professional charges.
5. Copies of the judgment be issued to both the parties.
Mrs.Uma S.Bora S.G.Deshmukh Member Presiding Judicial Member.
Mane