State Consumer Disputes Redressal Commission
Mrs. Ragini Premnath vs 1. Dr. Prema Shankar, M.D.,D.C.H., And ... on 24 November, 2009
Honble M BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I O.P.NO.45/2002 DATED THIS THE 24th DAY OF NOVEMBER 2009 Mrs. Ragini Premnath No.58/1, 8th Cross Street (East) Shenoy Nagar, Chennai- 600 030 .. Complainant Vs. 1.
Dr. Prema Shankar, M.D.,D.C.H., Paediatrician No.11, Sivaganga Road Nungambakkam, Chennai 600 034
2. Dr. N. Prasad, MS., MCH., Paediatric Surgeon G.G. Hospital, Nungambakkam, Chennai 600 034 Also at:
Kanchi Kamakoti Childs Trust Hospital (KKCTH) No.12-A, Nageswara Road Nungambakkam, Chennai 600 034
3. Kanchi Kamakoti Childs Trust Hospital 9KKCTH) No.12-A, Nageswara Road Nungambakkam, Chennai 600 034
4. Dr. (Mrs) Shanti Ramanathan, M.D., (PATH) Pathologist Lakshmi Histopathology Centre No.2, Chinniah Street T. Nagar, Chennai 600 017
5. Dr. Ramesh Anaesthetist Kanchi Kamakoti Childs Trust Hospital (KKCTH) No.12-A, Nageswara Road Nungambakkam, Chennai 600 034 . Opposite parties This petition coming on before us for hearing finally on 30.10.2009, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this commission made the following order.
Counsel for the Complainants: M/s. Surana & Surana, Advocates Counsel for the 1stOpposite party: M/s.V.Ramasubramanian & B.Venugopal, Advocates Counsel for the 2nd to 5th opposite parties: M/s. A.Raghunathan, Advocates Honble M. THANIKACHALAM J, PRESIDENT.
1. This complaint is filed against the opposite parties 1 to 5, claiming a compensation of Rs.15,00,000/- to be paid jointly and severally by the opposite parties, on the ground of medical inefficiency or medical negligence.
2. The brief facts leading to the case, as follows:
The complainants daughter P.Shamita, was under the exclusive medical care of the 1st opposite party. During the year 1999, the complainants child was declared hale and healthy after a detailed check-up by Dr.Bhaskar Raju.
3. On 4.10.2001, the complainants daughter was taken to the 1st opposite party, for the complaint of stomach pain, high fever, etc. The 1st opposite party suspected appendicitis, advised the complainant to take an abdominal scan and to approach Dr.N. Prasad, a Paediatric Surgeon/ 2nd opposite party on the very same day. The complainants daughter, at the time of approaching the 2nd opposite party, was having high fever, and that the 2nd opposite party diagnosed the complainants child for a case of acute chronic appendicitis, and recommended surgery for removing the appendix was inevitable and any delay in performing the surgery would become dangerous to the life of the child. When questioned about the running temperature, the 2nd opposite party replied that the fever could also be due to the gravity of the appendicitis, and that there is no harm or any risk in conducting the surgery, and also reserved a bed even before the complainant taking decision. Despite the cost being high, the complainant opted for Laproscopic surgery.
4. The child of the complainant was admitted in the 3rd opposite party hospital on 5.10.2001, for surgery, where the equipments required for Laproscopic surgery was not available, and the same were hired. On the same day, the blood samples of the complainants daughter were tested and the results were not satisfactory enough to go ahead with the surgery. When the blood samples were tested at Lister Laboratories, on the advise of the 1st opposite party, it revealed that the child was having malarial fever. But even before getting the results of the blood test, as the surgical equipments, required for laproscopic surgery were hired, since the surgery was fixed at 1.00 p.m on 5.10.2001, eventhough the child was having high temperature and other symptoms not being conducive for performing the surgery, was grossly ignored, and neglected by the 2nd opposite party, and the surgery was performed.
5. The 5th opposite party upon the instruction of 2nd opposite party/ paediatric surgeon, had administered anesthesia on the child, ignoring the basic conditions such as the patients temperature, platelet count in the blood, etc., For ignoring the professional responsibilities, and blindly following the instructions of the 2nd opposite party, the 5th opposite party is also responsible for the loss of the life of the child.
6. Though the child regained consciousness after the surgery, felt absolutely uncomfortable and restless, complaining of severe pain, high temperature, shivering, breathing problems etc. Although the 2nd opposite party were required to attend the complainants child on the very same day after the operation, to review the monitor post surgery condition, had never turned up until 10.00 a.m of the following day, that is 6.10.2009. The 2nd opposite party when informed about the breathing problem, he replied that the same was due to the effects of anesthesia, which are normal, and never cared to examine the child physically.
7. As the condition of the child was worsen on 6.10.2009 after 3.00 p.m, Dr. Bhaskar Raju, was called upon by the 2nd opposite party, who expressed his suspicion about the child having an attack of Dengue fever. But no attempt, whatsoever was made to stop vomiting, or to control other problems of the child.
8. At the odd hours at 1.05 a.m of 7.10.2001, the child was shifted to Sundaram Medical Foundation hospital, on the advise of the authorities of 3rd opposite party, since there was no spare ventilator and other life supporting facilities and devices were available with them at that time, with the 3rd opposite party. As the child was critically ill and she received treatment only for 3 hours with the Sundaram Medical Foundation, the life of the child could not be saved, and she passed away at about 4.00 a.m on 7.10.2001, due to the negligent acts and omissions and careless medical treatment provided by all the opposite parties. Hence the complaint, prays for a direction to the opposite parties, jointly and severally, to pay a sum of Rs.15,00,000/- as compensation.
9. The reply version of the 1st opposite party, in brief is as follows:
The complaint is misconceived and mis-directed against this opposite party. On 4.10.2001, the complainant and his wife came to the clinic of the 1st opposite party. It was found that the child had unmanageable pain and could not even walk or stand up normally. On physical examination, she perceived tenderness in the right iliac fossa. Therefore, this opposite party referred the child to a Paediatric Surgeon the 2nd opposite party herein. Before approaching the doctor, the complainant was advised to have an Ultrasound Scan done for the child. Unfortunately, the complainant did not choose to bring the report to this opposite party for consideration. The child was admitted in the 3rd opposite party hospital and was treated by the 2nd and 3rd opposite party. The role of this opposite party is limited only to the extent of referring the child to a Paediatric Surgeon. Therefore, it is highly preposterous on the part of the complainant to make an allegation that this opposite party acted in a careless and reckless manner. Therefore, the grievance of the complainant as against this opposite party is highly unjustifiable and the complaint as against this opposite party is liable to be dismissed.
10. The reply version of the 2nd to 5th opposite parties, in brief is as follows:
This opposite party had been in this field for an upward of three decades. The 2nd opposite party saw the child of the complainant on 4.10.2001. A note of reference was given by the 1st opposite party revealed that the girl had a history of recurrent abdominal pain for about a year prior thereto. After careful examination on 5.10.2001, it was found that the child has acute and chronic appendics and it was decided that early surgical intervention was necessary. The operation was fixed on 1.00 p.m on 5.10.2001.
All care and attention was bestowed by all the doctors concerned and they were of the unanimous view that any delay in surgical intervention could lead to grave complication. It is common knowledge that fever is an immediate response to any infection. Therefore, temperature is no contradiction for apendicectomy. In this case, complications of inexplicable nature arose, quite sometime after surgery. The chile did not suffer from complications of surgical treatment. The unexpected, unforeseen emergency occurred nearly 28 hours after the operation. Any decision of the 2nd opposite party in relation to a patient was always in the best interests and for the welfare of the patient.
11. The 4th opposite party has 25 years of experience in the field of pathology. The doctor observed changes in the appendix of reflecting a chronic inflammatory process. It was possible that this condition might have existed in the patient for several months, besides there was acute inflammatory response which could be triggered in a chronic inflamed appendix owing to infection in the body. On the basis of the aforesaid features, it was diagnosed as acute chronic appendicitis.
12. The 5th opposite party has been associated with the 2nd opposite party for more than 12 years. Experience had shown that acute appendicitis would have mild to moderate fever which would settle down once the culprit of fever appendix was removed. In the operation theatre, it was always possible to control the temperature with aircondition and cooling blanket. Therefore fever in child was no contradiction for anesthesia. The normal platelet count is 1.5 lakhs to 4 lakhs. The childs platelet count was on the lower side of the normal limit. The 5th opposite party had also acted in accordance with the normal acceptable medical standards and by no stretch of imagination he could be found fault within. Post operatively the child was constantly being attended.
13. It is the normal practice of the 2nd opposite party to review a child after surgery within 24 hours. The surgical resident on duty did not report to the 2nd opposite party of any significant distress in the patient.
The 2nd opposite party say, the child around 10 a.m on 6.10.2000, was afebrile and her pulse rate and respiratory rate were all regular, and she was started on oral fluids. Antimalarial drugs were also administered.
14. About 5 p.m on 6.10.2001, the child developed tendency to bleed from stomach and immediately this opposite party took necessary step to treat this unexpected crisis. Dr. Baskar Raju, a leading medical Gasteroentologist was summoned. An emergency CT scan was taken, which was found to be normal. The child was transferred to Critical care unit, that the child was resuscitated with 3 units of fresh blood, 1 unit of platelet and 1 unit of FFP.
Around 9 p.m there was improvement in the health of the child.
Immediately thereafter, the child had amassive bout of blood vomit, and had respiratory unbarassment and the airway was secured with endotracheal tube and was ventilated with ambu bag. All measures to counter the set back were carried out.
15. At this juncture, the complainant on his own decided to shift the child to Apollo Hospitals. The opposite parties advised to take the child to Sundram Medical Foudnation, where there was an exclusive paediatric intensive care unit managed by an intensivist was available. Right from the time the child was admitted, till she was transferred to Sundaram Medical Foundation, all the doctors, nurses and paramedical men treated her with utmost care. In view of the fact that a spare ventilator not available with the 3rd opposite party, on the night of 6.10.2000, emergent steps were taken to transfer the child to Sundaram Medical Foundation, where it was learnt the ventilator was available. During the entire period of the treatment of the child, there was absolutely no negligence or recklessness on the part of anyone of the opposite parties, and pray for the complaint to be dismissed.
16. In support of the case, so pleaded by the parties, affidavits were filed, in addition to marking Ex.A1 to A13on the side of the complainant and Ex.B1 on the side of the opposite parties.
17. The complainant has been examined as PW1, and in support of the case, to prove the medical negligence, one Dr.Udesh Ganapathy, a qualified surgeon has been examined as PW2, supported by affidavits. Against these materials, the 2nd opposite party, having filed proof affidavit, he was cross examined as RW1 by the complainant.
18. Points for determination are:
i) Whether the 2nd opposite party has committed any medical negligence, causing the death of the complainants daughter, by name Shamitha?
ii) If the death of the child was due to medical negligence committed by the 2nd opposite party, who are all responsible to compensate the complainant?
iii) Whether the complainant is entitled to compensation, if so to what amount, and against which opposite party?
19. Point No.1 and 2:
The life of an young girl, at the blossom age, came to be terminated, when she was taken to the 3rd opposite party hospital, for treatment of the problem caused by appendicitis, an ordinary surgery, as used to say, thereby giving inconsolable mental agony to the mother (parents), causing collapse in their expectation, inflicting injury, creating a permanent scar in her heart, which are sought to be redressed by way of compensation, in terms of money, though the remedy cannot be substituted for the loss reported, in letters which cannot be described, requires ones feelings. The unfortunate mother, accusing all the opposite parties, as if all are responsible, has knocked the doors of this commission, to direct tem jointly and severally, to pay a sum of Rs.1500000/-, by way of compensation, which is opposed, as said above.
20. The complainants daughter Shamitha, was under the medical care of the 1st opposite party, since she was having pediatric problem, admittedly. Whenever any problem occurs to Shamitha, the parents used to consult the 1st opposite party. On 4.10.2001, the child complained of stomach pain, having high temperature also. The parents unable to bear the pain of their daughter, approached the 1st opposite party for medical care, who suspected appendicitis. It seems the 2nd opposite party is known to 1st opposite party, because of their profession or otherwise, and therefore, he recommended the parents, to take the child to 2nd opposite party. The 2nd opposite party examined the complainant and had gone through the previous medical history of the child also.
The 2nd opposite party, who is a qualified doctor, admittedly, felt that a surgery is a must for removing the appendicitis, in order to remove the culprit, thereby not only to reduce the temperature, but also to prevent the permanent problem, which Shamitha was facing. When this was put to the parents, they have not accepted immediately, and has shown their hesitation, reluctance because the child was running high temperature. Despite the representation, probably under the hope that the problem could solved medically, the 2nd opposite party insisted a Laproscopic surgery, and accordingly on 5.10.2001, Shamitha was admitted in the 3rd opposite party hospital. After following the surgical procedure, despite Shamitha was having elevated temperature, the surgery was performed at about 1.00 p.m. or so. After the operation, the 2nd opposite party noticed nothing abnormal, and the patient was taken care by the 3rd opposite party. But unfortunately on 6.10.2001, the child developed acute breathing problem and severe pain, and vomited with blood on several occasions, after 5.00 p.m. Dr.Baskar Raju, who had treated the child earlier also consulted, but they were unable to control the problems medically, effectively, despite three units of blood was transfused. An emergency CT scan was taken, which has not shown any abnormality. In order to have better management, Shamitha was transferred to Intensive Care Unit, where her condition was monitored closely. Suddenly, after 9.00 p.m or so, there was a repetition of bleeding from the stomach, and therefore the 2nd opposite party, who came there, even before, decided that Shamitha should have ventilatory support. Unfortunately, all the ventilators available in the 3rd opposite party hospital, were occupied by other patients, and therefore, it was decided to transfer the child, to a hospital, where it was available. Accordingly, Shamitha was transferred to Sundaram Medical Foundation, where she breathed her last, around 4.00 a.m on 7.10.2001. So far as the above facts are concerned, there is no loggerhead between the parties.
21. It is the specific case of the complainant that she had lost her affectionate, glorious, and intelligent daughter, only due to the gross negligent act and omission on the part of all the opposite parties, and therefore all of them are jointly, an severally liable to compensate the sufferings, in terms of money.
22. While opposing the case of the complainant, the 1st opposite party would state that though she had treated Shamitha at earlier point of time, and recommended the 2nd opposite party, for the death of the child, she cannot be held responsible, in view of the admitted position, she was not at all present either during the surgery or at the time of the treatment given thereafter.
23. The other opposite parties, jointly would contend that from the time the child was admitted, till she was transferred to Sundaram Medical Foundation, all the doctors, nurses, and paramedical men, treated her with utmost care and this being the position, for the unfortunate demise of the child, they cannot be held responsible, attributing medical negligence. Therefore, it is the bounden and primary duty of complainant, to prove at the first instance, that the opposite parties have committed negligence, while treating the child at the point of times viz. pre-surgery, during surgery or post-operative care, which alone had caused the death. Once the initial burden is discharged, as held by the Apex Court repeatedly, then the burden is upon the doctors, who treated the child to make out the case, that they did their best with all the skill, at their command, being qualified persons and the end came to the patient, which is beyond their control.
24. The broad principles under which medical negligence as a tort have to be evaluated, have been laid down in the celebrated case of Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1. In this judgement, it has been observed that the complexity of the human body, and the uncertainty involved in medical procedures is of such great magnitude that it is impossible for a doctor to guarantee a successful result and the only assurance that he can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.
25. It is also the dictum of the Apex Court that A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. Having the above broad principle, regarding the negligence attributed to opposite parties, this case has to be seen coupled with facts.
26. The complainant in her affidavit, has detailed the condition of the child, when she was taken to the hospital for treatment, especially the fever, the child was suffering. Admittedly, the appendicitis noticed in the child was in existence, prior to the examination on 4.10.2001 and 5.10.2001. In this view, it cannot be said, that it was an acute chronic appendicitis, came to be noticed only on that day. Medically it is also admitted, that for the elevation of the temperature, appendicitis also may be the cause.
26. RW1/ 2nd opposite party, would admit during the cross examination that he saw the child on the 4.10.2001 evening, and after diagnosing the problem as appendicitis, the parents took the child back to home, thereby showing that the problem is not acute, though chronic. As admitted by RW1, the child had difficulty in walking, and she has also complained of pain in the stomach. Thus it is seen, the surgery could have been postponed if the child had anyother problem, which may cause elevation of temperature, to avoid multiplicity of problem or complication. For the elevation of the temperature, the doctors have felt, except appendicitis, there is no other cause, then removal of the appendicitis certainly would have brought down the temperature, and the child, to the normal stage. On the other hand, if the child had any other problem for the elevation of the temperature, even the removal of the appendicitis may not bring down the temperature, and in that case, in our considered opinion, the doctors should have postponed the surgery, at least till the reason is known or investigated for the fever. Suspecting some other problem also, blood was taken from the child, and sent for examination. Therefore, the doctor, who performed surgery, should have waited till the result comes.
Unless, it is ruled out by blood test, that there is no other cause for fever, except the appendicitis, then we would say certainly the 2nd opposite party acted diligently, with all care, and caution and if anything had happened thereafter, it is beyond his control, and he cannot be held responsible for any negligence. It is not known why the doctor was so hasty, to perform surgery immediately, even without waiting for the result from the Lister Laboratory, which proved that the child was suffering from malaria. Had the doctor waited and known the result, then ordinarily they should have administered medicine to control malaria, then performing surgery for the removal of the appendicitis, fever would have been, come down, normally, since culprit removed. In this case, suspecting malaria, without administering any medicine to control malarial fever, it seems the 2nd opposite party, proceeded with surgery and that is why, he has said that irrespective of the malarial fever, he proceeded with surgery, since the problem was due to appendicitis, which was very acute. It is also admitted by RW1, that the fever could have been due to a combination of malaria, and acute appendicitis. Having realized so, being an experienced doctor, he should have waited for the result and should have postponed even the surgery, till the malarial fever is brought down, thereby preventing the combined effect of malaria and appendicitis. In this context, we have to see what is the expert opinion of the doctor, who has been examined as PW2.
27. Dr. Uthesh Ganapathy, is a qualified surgeon, having obtained MS (General surgery) and MCH (Plastic Surgery), who is working as Assistant Professor of Plastic Surgery at Kilpauk Medical College, Chennai. Perusing the records maintained in respect of Shamitha, during the operation, he has given a sworn affidavit, where he has stated that surgery could have been postponed atleast till the blood result was obtained. It is not clear as to why the surgery was hastily performed. The patient could have suffered post-operative complications, since she was already a malarial positive patient. As revealed by the patient record, and as disclosed in the affidavit of PW2, the patient was having high grade temperature. The expert evidence given by PW2, is in a way supported, by RW1 also.
RW1 admits, that the fever could have been due to combination of malaria and acute appendicitis. He further admits that temperature is vital factor, prior to surgery. Therefore, when the patient was having high temperature, instead of postponing the surgery, the 2nd opposite party, in our opinion did the surgery, which should be termed as negligence, that too for a qualified doctor. If the malarial temperature was not there, the problem would have been solved post-operatively, since as pointed out supra, combined effect could not have been there.
29. The hospital chosen by the 2nd opposite party, to have the surgery also was lacking infrastructure. It is admitted by RW1, the surgery was not a general one, whereas special equipments was used. It is the further candid admission of RW1, that at the time of surgery, the special equipment was not available with the 3rd opposite party hospital, whereas equipment was rented from outside, which was used for the surgery. It is the specific case of the complainant, that on seeing the patient, the doctor has fixed the surgery and also brought the equipments, and that is why they have not postponed the surgery, despite the child was running high temperature. If we read this accusation, alongwith the non-availability of the infrastructure in 3rd opposite party hospital, coupled with rental equipments, we would say unhesitatingly that having taken the decision, borrowing the special equipments on rental basis, the 2nd opposite party probably, to aid the 3rd opposite party, would have done the surgery to avoid the rent, ignoring the high temperature of the patient, under the false hope that if the appendicitis is removed, the temperature will come down, forgetting the suspected malaria, which is proved, positive later on.
30. It is the duty of every surgeon, to watch the patient post-operatively, in the recovery room, in order to find out, whether any complication would arise, or not, though there may be many doctors available in the hospital. The surgeon who operated, especially having special skill, alone could decide effectively, the complication if any and decide the remedial measures also. In this case, in our opinion, the experienced doctor, probably considering the surgery as ordinary one, failed in his duty to visit the patient, in the recovery room for one day, and this may be also the reason for further complication. If the child had no fever of any kind, then it is an ordinary appendicitis operation, not requiring any special concentration by specialists. Admittedly, at the time of operation itself, even before that and thereafter, the child was running temperature, that may be due to malaria also as investigated. Therefore, the 2nd opposite party should have taken, extra special care in this case, and visited the patient after operation, within the minimum time, and having failed in his duty, he had come to the hospital, only on the next day at 10.00 a.m, though he would state that, at that time there was no temperature. There was immediate elevation of the temperature, as seen from the documents, and that is why he was requested to see the child between 4 and 5.00 p.m in the evening, on the same day. The child was under the care and protection of the 3rd opposite party, we do not have sufficient acceptable material, to prove, as to which doctor attended the child and at what point of time the problem emanated, and what is the immediate steps taken etc.
31. In the written version also (filed by 2nd opposite party to 5th opposite party), it is not stated specifically, whether any doctor had attended the patient, though in page 6 of the written version, we find post-operative care was constantly being attended by the ward nurse, senior house officers and resident surgeon. Further the 2nd opposite party justified his visit leisurely, stating it is the normal practice of the 2nd opposite party to review a patient after surgery, within 24 hours. He has also further stated, the surgical resident on duty, did not report to the 2nd opposite party of any significant distress in the patient. If it is the normal surgery, in the sense the patient being normal, the operation had been performed, we cannot find fault in the above statement. But here is a case, where the child was running temperature, unable to walk even on 4.10.01, because of the acute chronic appendicitis also, and in order to avoid further complications, according to 2nd opposite party, the surgery was performed on 5.10.01 itself. Therefore, in our considered opinion, the 2nd opposite party should have paid more concentration, in this case, atleast to visit the patient, in order to find out what is the position, how the child is recovering etc., which he failed, in our assessment, negligently. Therefore, we are constrained to hold that only due to the careless and negligent act of the 2nd opposite party, in performing the surgery of the daughter of the complainant, when she was running high temperature, affected by malaria, subsequent complication had developed, which had gone out of the control, resulting the pathetic demise of the child, for which the 2nd opposite party should be held responsible.
31. Admittedly on 6.10.2001, after 5.00 p.m or so, Shamitha developed tendency to bleed from stomach, resulting her transfer to critical care unit, for further intensive care. It appears, blood transfusion were also taken place, showing some improvement, but immediately, the child had massive bout of blood vomit and respiratory unbarassment, resulting complication, in breathing warranting ventilator. The name of the 3rd opposite party is Kanchi Kamakoti Child Trust Hospital, and to fulfill the above name atleast, they should have equipped well, possessing necessary equipments, to save the children in case of emergency. As pointed out supra, they had no special equipments, to do this kind of surgery even, resulting borrowing from someother hospital. When the child was suffering to breath easily, ventilator is required to get relief. It is admitted in the written version itself, that ventilator was not available, and the available ventilators were in use, thereby showing that there was no sufficient infrastructure also. When the hospital has no infrastructure for surgery, as well as postoperative care, it is not known why the 2nd opposite party has chosen the 3rd opposite party hospital, and for non-possessing the required infrastructure, we should hold, that the 3rd opposite party is also equally responsible for the death of the child, resulting a direction should be issued against them also for compensation. For the above said reasons, we conclude that only because of the 2nd opposite partys hasty decision and negligent act in performing the surgery, and not following the post-operative care properly, the complainant had lost her affectionate child.
32. The 1st opposite party, as indicated by us supra, has referred the child to the 2nd opposite party, by recommending his name being a specialist. Except advising the parents of the child to go to 2nd opposite party for treatment, the 1st opposite party did nothing in this case, either negligently or carelessly, which lead to the death of the complainants daughter.
Therefore, we are unable to hold the 1st opposite party, responsible for the acts done by the opposite parties 2 and 3.
33. The 4th opposite party is only a pathologist and 5th opposite party is an anesthetist. In the complaint, no allegations are leveled against these two, except saying that they also jointly and severally responsible. No evidence is let in, that the 5th opposite party has committed anything wrong while administering anesthesia, leading to complication. Admittedly, the operation was successful and administering anesthesia was not the cause for the subsequent development. Similarly, no negligence is pointed out, against 4th opposite party.
Therefore, the opposite parties 4 and 5 are not at all responsible to answer the claim of the complainant. In the light of the above discussion, points No,1 and 2 are answered accordingly.
34. POINT NO.3 In view of our findings on points No.1 and 2, the complainant being the mother of the deceased, is entitled to compensation. A sum of Rs.15 lakhs is claimed as compensation. But we find no detail for the above claim. We are also aware of the fact, that it is impossible to quantify the compensation in terms of money, in this kind of cases. As seen from the records, Shamitha, had secured, distinction in the school, and also participated in extra curricular activities also. Because of the above facts, the parents would have dreamt, about the future of the child and they would have thought of even the child would be helpful, in their later part of the life. Because of the negligence act of 2nd and 3rd opposite parties premature termination of the life of the child, all the hopes and beliefs were shattered into pieces. Under the above said circumstances, having regard to the facts and circumstances of the case, also we quantify the compensation for sufferings, mental agony, loss of earning etc., at Rs.5,00,,000/-, which should be paid by the opposite parties 2 and 3, jointly and severally. Hence this point is answered accordingly.
35. In the result, the complaint is allowed in part, directing the opposite parties 2 and 3 to pay a sum of Rs.5 lakhs, as compensation to the petitioner with interest thereon @9% p.a., from the date of filing of this complaint till payment, with cost of Rs.5000/-. The order should be complied with by the opposite parties 2 and 3, within three months from the date of this order, failing which, the complainant is at liberty to invoke Sec.27 of Consumer Protection Act, for the arrest of the opposite parties 2 and 3.
The complaint against other opposite parties and in respect of other part of the claims is dismissed, without cost.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT Exhibits of the complainant A1 Sep.1996 Progress Report of complainants daughter.
A2 05.02.1997 Certificate of complainants daughter.
A3 27.04.1998 to YWCA Summer Camp Certificate.
15.05.1998 A4 1999 to 2000 Record of progress of complainants daughter.
A5 11.10.1999 CSI Bain School Certificate.
A6 13.11.1999 CSI Bain School Certificate.
A7 24.04.2000 to YWCA Summer Camp Certificate.
12.05.2000 A8 2000-2001 Record of progress of complainants daughter.
A9 22.01.2002 Letter of the complainant.
A10 02.02.2002 Letter of the first Opposite Party.
A11 04.02.2002 Reply notice from the counsel of Ops.2 to 5.
A12 14.02.2002 Reply notice from the counsel of Ops.2 to 5.
A13 -- Photographs of complainants daughter.
Exhibits of the opposite parties B1 Case sheets PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Rsh/d/mtj/OP Orders