National Consumer Disputes Redressal
Johnson Thomas & Ors. vs Bishop Vayalil Medical Centre & Ors. on 12 April, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.225 OF 1998 (Against the order dated 20.5.1998 in Complaint Case No.1/94 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram) 1. Johnson Thomas, R/o Parakkal, Vayala, Kottayam. 2. Navaneeth Johnson, S/o Johnson, R/o Parakkal, Vayala, Kottayam. 3. Meera Johnson, D/o Johnson, R/o Parakkal, Vayala, Kottayam. ........ Appellant(s) Vs. 1. Bishop Vayalil Medical Centre, Moolamattom P.O. Idukki District-685 589 (represented by its Administrator). 2. The Provincial Superior, Secred Heart Congregation, Arunapuram, Pala. Proprietor, Bishop Vayalil Medical Centre. 3. Dr. Mammen Easaw, Anaesthetist, Bishop Vayalil Medical Centre, Moolamattom P.O. Idukki District-685 589. 4. Dr. Marykutty Illickal, Gynaecologist, Bishop Vayalil Medical Centre, Moolamattom P.O. Idukki District-685 589. ........ Respondent(s) BEFORE: HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA, MEMBER For the Appellant : Dr. M.P. Raju, Advocate For the Respondent : Mr. R.Sathish, Advocate Dated the 12th April, 2010 ORDER
JUSTICE R.C. JAIN, PRESIDING MEMBER Aggrieved by the order dated 25.5.1998, dismissing their complaint by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, the State Commission) the unsuccessful complainants have filed the present appeal. The complaint before the State Commission was filed alleging medical negligence/deficiency in service in the treatment of one Mrs. Mercy Johnson, who was admitted in the Respondent no.1, hospital on 5.5.1993 for a caesarean section delivery under general anesthesia and suffered irreversible brain damage due to hypoxic encephalopathy during the procedure and did not regain consciousness uptil she breathed her last on 13.5.1993. Appellant no.1 - Johnson Thomas is the husband and Appellants no.2 - Navaneeth Johnson & no.3 - Meera Johnson are the unfortunate son and daughter of the deceased respectively. Respondent no.1, Bishop Vayalil Medical Centre is the hospital. Respondent no.2 is the Provincial Superior Sacred Heart Congregation. Respondent no.3, Dr. Mammen Easaw is the Anesthetist while Respondent no.4, Dr. Marykutty Illickal is the Gynaecologist. The latter two are the doctors concerned, who constituted the team for conducting the caesarean operation on the deceased.
2. Briefly stated, the facts leading to the filing of the complaint and the present appeal are that the deceased had approached Respondent no.4 for ante-natal check-up for her second pregnancy and she was reported to be in good health. After the check-up, the Gynaecologist advised her elective caesarean section delivery and to get herself admitted in the hospital for that purpose on 4.5.1993. On 5.5.1993, she underwent a caesarean section operation under general anesthesia administered by Respondent no.3 (Anesthetist) and delivered a female baby. After the operation, Mrs. Mercy Johnson did not regain consciousness. Therefore, on the same day, she was first shifted to Sree ChitraThirunal Institute of Medical Sciences and Technology, Thiruvananthapuram and from there to S.A.T. Hospital, Thiruvananthapuram and finally to Cosmopolitan Hospital, Thiruvananthapuram for her further treatment and management but she breathed her last on 13.5.1993 at 6:45 AM. The complaint was filed alleging medical negligence/deficiency in service on the part of Respondents on the following counts:
1.
Deceased died of brain damage due to hypoxic encephalopathy during the anesthesia and surgery which was caused due to negligence on the part of Anesthetist and Gynaecologist.
2. Anesthetist was negligent in the selection of general anesthesia in elective surgery despite the patient having recent history of Rhinitis.
3. The failure of the Anesthetist in not administering the antacid and pro-kinetic prophylaxis before giving general anesthesia.
4. The anesthetic technique adopted by the Anesthetist was defective inasmuch as nitrous oxide or any effective narcotics and analegiscs in sufficient doses were not administered and surgery was performed on a numb but awake patient leading to branchospasm and hypoxic encephalopathy.
5. There was negligence in conducting the operation by opening the abdomen even without waiting for 15-30 minutes, even if branchospasm had actually occurred.
6. The treatment of bronchospasm given to the patient was defective and grossly insufficient and not aggressive.
7. Bronchospasm was caused due to faulty technique of intubation.
8. Unusually long time, viz., 125 minutes was taken in performing the procedure without there being any mention of intera-operative complications/difficulties as per the hospital records.
3. The complaint was resisted by the OPs not disputing the factum of complainants wife having approached the OPs for her second delivery and that since she was having allergic rhinitis, she was given Antihistamines, Actifed (one tablet) to control the said disease. Her expected date of delivery was 5.5.1993; so she was admitted to the hospital on 4.5.1993 and after pre-operative evaluations, including anesthetic assessment, she was posted for caesarian section on 5.5.1993. After assessment for anesthesia, she was categorized as ASA (1) category indicating that she had no known systemic disease which could lead to anesthetic complication. After obtaining informed consent for elective caesarean section, the patient was operated under general anesthesia (GA) as she was found fit for induction of anesthesia. It is stated that a healthy female baby was born who had a apgar score of 9 out of 10. It is, however, sought to be explained that after induction of anesthesia and when OP No. 4, Gynecologist started operation by opening the abdomen and the procedure was in progress, the patient developed severe Bronchospasm which was relieved with the aid of medicines. A physician, Dr. Sujathan was also summoned and since the abdomen had already been opened, the Gynaecologist proceeded with the operation to save the baby. As the recovery was slow, the patient was kept under observation with supportive care and medication. It is not denied that despite medication and all efforts made to reverse the complication, the patient suffered Hypoxic Encephalopathy and did not regain consciousness. Though the patient was referred to Sree ChitraThirunal Hospital, Trivandrum and thereafter to SAT Hospital, Trivandrum and then shifted to Cosmopolitan Hospital where the patient expired on 13.5.1993, it was sought to be explained that since the death had taken place 8 days after her discharge from the respondent no.1- hospital and after she had received treatment at two different hospitals subsequently, the said hospitals ought to have been impleaded as necessary/proper parties. As to the cause of complication, it was sought to be explained that it was on account of unpredictable behaviour of the human body which could happen for varied reasons, viz., chemical, mechanical or due to unknown reasons. Further, that Bronchospasm affects the capacity of the patient to absorb/oxygen cells and the brain reacts sharply due to the lack of oxygen supply causing hypoxia which is more acute in some cases and consequently the outcome of hypoxia is unpredictable. Allegations of negligence or deficiency in service as alleged in the complaint we denied and sought to be explained in one or the other way.
4. Voluminous documentary and oral evidence, including evidence of two experts, namely Prof. (Dr.) A.K. Unnikrishnan (Anaesthesia) and Associate Prof. (Dr.) B. Radhakrishnan was produced before the State Commission. The State Commission, going by the respective pleas, evidence and the material produced on record, by recording a very detailed order covering more than 100 pages has held that the complainants have failed to establish the allegations of negligence or deficiency in service on the part of doctors/hospital and consequently dismissed the complaint.
5. We have heard Mr. (Dr) M.P. Raju, Advocate for the appellants and Mr R. Sathish, learned counsel representing the respondents at great length and have given our thoughtful consideration to their submissions. After hearing the counsel for the parties at length, this Commission noted that although evidence of two experts, namely, Dr. A.K. Unnikrishnan, Retd. Professor of Anesthesia, Medical College of Thrissur and Dr. B. Radhakrishnan, Associate Professor, Medical College, Thrissur had been adduced before the State Commission and these experts were also cross-examined at length before the State Commission, still their testimony did not throw enough light on the disputed questions as to whether there was or not any negligence on the part of the doctors who were part of the team which attended on the patient and whether there was any deficiency on the part of concerned hospital and doctors in the treatment of the deceased patient. Therefore, with the consent of counsel for the parties, the Commission thought it proper to obtain further opinion of an independent expert medical board on the above aspects. Consequently, the Director, All India Institute of Medical Sciences, New Delhi was requested to constitute an inter-disciplinary Medical Board of requisite specialists to consider the record of treatment and opinion of the medical experts and to submit its opinion on the above aspects. Pursuant to the said direction, a compilation of the relevant record was sent for consideration of the Board. The Director, AIIMS, New Delhi constituted a Board of three doctors, namely, Dr. Anjan Trikha, Professor, Department of Anesthesiology, Dr. K.K. Roy, Addl. Professor of Obstetrics & Gynecology and Dr. Mahesh R., Department of Hospital Administration. The said Board, on consideration of the material supplied to them submitted a report dated 30.04.09. The relevant portion of the said report is reproduced below :-
Case Summary The patient whose file has been sent for opinion underwent a caesarean section under general anesthesia, inspite of the fact that, the patient had a recent history of Rhinitis. As per the records, her pre-operative anesthesia assessment was unremarkable as was the anesthetic induction and tracheal intubation. She was given intermittent positive pressure ventilation with 100% oxygen for maintaining her anesthesia. As per the records she developed severe bronchospasm and cyanosis within a few minutes of starting of surgery which improved with medication again within a few minutes. At the end of surgery the neuromuscular blockade was reversed and the patient was extubated. She had a delayed recovery and was diagnosed to have hypoxic encephalopathy which was attributed to short period of bronchospasm. She died subsequently after a few days.
The following issues were noted to be significantly unusual as per the case history sheet.
i). The committee considered it unusual that a general anaesthetic was given to a pregnant patient with history of rhinitis in the recent past for an elective 2nd LSCS when there were neither any contraindications to neuraxial blockade nor the patient had refused a neuraxial block as the anaesthetic technique for surgery.
ii) No antacid, pro-kinetic prophylaxis was given to the pregnant patient before giving general anaesthesia a standard practice all over the world.
iii) The patient was pre oxygenated for 5 minutes (around 9.20 am as per the anaesthesia record in the papers provided) and then intubated and positive pressure ventilation was maintained with 100% oxygen.
This procedure was uneventful. Bronchospasm and cyanosis were noted around 9.22 am (as per the anesthesiologists statements) and the same was treated with parenteral Deriphylline, Betnesol and Lasix. The cyanosis and bronchospasm were absent when the patient was examined by the physician around 9.30 am as per the records. The committee is of the opinion that, it is unlikely for a ASA I patient to develop hypoxic encephalopathy after receiving pre oxygenation for 5 minutes, undergoing uneventful induction, intubation and ventilation with 100% oxygen, in spite of developing bronchospasm in a time span of few minutes.
iv) The committee also inferred that the anaesthesia record was poorly maintained as there were no changes in the blood pressure and the heart rate mentioned in the anaesthesia chart during the time of the critical event. There should have been hemodynamic variations during the course of the events during the surgery that lead to patient developing hypoxic encephalopathy.
v) Further the committee inferred that the treatment of severe bronchospasm was not aggressive (with single dose of Deriphyllin and Betnesol), if at all the same was considered to be the cause of hypoxic encephalopathy.
vi) The committee also inferred that, the medications used lasix and subsequently soda bi carbonate are not normally used for the treatment of bronchospasm.
vii) The members of the committee also found the total duration of surgery (125 minutes) unusual. There is no mention of any intra-operative complications/difficulty which could have prolonged the surgery time.
viii) The committee also opined that the specialty degree of the Surgeon needs to be cross checked from Medical Council of India regarding its validity in India.
6. Before we advert to the contentions of the counsel for the parties, we deem it useful to bear in mind the settled legal position on the question as to when the doctor(s) or the hospital can be held negligent/deficient in service. The position has been crystallized through a catena of decisions rendered by several foreign courts, Supreme Court as well as by this Commission. The basic principle relating to medical negligence commonly known as BOLAM Rule was laid down in the judgment of Justice McNair in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 as follows:
Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
A man need not possess the highest expert skillIt is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
Bolams test has been approved by the Supreme Court in Jacob Mathews case.
7. In the case of Jacob Mathew, the Supreme Court observed as under:-
A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain everything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
If the hands be trembling with the dangling fear of facing criminal prosecution in the event of failure for whatever reason whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% ( or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society.
8. In the case of Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC Page 1 , the Supreme Court observed as under:-
A doctor is negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particulars artPutting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.
9. In that case, the supreme Court also referred to the case of Hunter v. Henley, which held as under:-
The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to the guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary care.
To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.
10. In the case of Maynard vs. West Midlands Regional Health Authority (1985) 1 ALL ER 635, the House of Lords ruled as under:-
In this case, the facts are two consultants thought a female patient with a chest complaint might have tuberculosis, but thy also considered the possibility of Hodgkins disease. Accordingly, before obtaining the result of a test which would have determined whether the patient had tuberculosis, they performed an exploratory operation to see if she was suffering from Hodgkins disease. The operation in fact revealed that she was suffering from tuberculosis and, as a consequence of the operation, she suffered damage to the nerve affecting her vocal cords, impairing her speech. It was alleged that the consultants had been negligent in performing the operation before the result of the test for tuberculosis was known, and expert evidence was led to support both the claimants and the defendants case. The trial judge preferred the claimants experts, and gave judgment for the claimant, but this finding was reversed both the Court of Appeal and the House of Lords.
Lord Scarman in his leading judgment, said:
It was not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision if there also exists a body of professional opinion equally competent which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed if at the time the decision to operate was taken it was responsible in the sense that a responsible body of medical opinion would have accepted it as proper. I do not think that the words of Lord President Clyde in Hunter V. Hanley can be betteredI would only add that a doctor who professes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion in practice exist and will always exist in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other but that is no basis for a conclusion of negligence.
11. Dr. M.P. Raju, learned counsel representing the appellants has strongly urged before us that ample cogent evidence has been brought on record to establish that almost each of the instances of negligence (supra) set up by the complainants can be said to have been established, more particularly so on the strength of the expert opinion of the Medical Board of the AIIMS Hospital, New Delhi. Per contra, the submission of Mr. R. Sathish, learned counsel for the respondents is that going by the settled legal position, neither any of the doctors who participated in the procedure nor the hospital can be held guilty of any negligence or deficiency in service.
12. At the cost of repetition, we may notice the following undisputed facts which have emerged in this case. Mrs. Mercy Johnson was due for her second delivery in early May 1993 and she was under regular review of Respondent no.4, Dr. Marykutty Illickal (Gynaecologist). Before her admission to the respondent no.1 hospital on 4.5.93, she was suffering from allergic rhinitis, for which she was treated by giving Antihistamines Actifed tablet. After her pre-operative evaluations and anesthetic assessment, she was categorized as ASA (1) category. She was posted for caesarean section delivery on 5.5.93 through the team of doctors, respondent no.3, Dr.Mammen Easaw (Anaesthetist) & respondent no.4, Dr.Marykutty Illickal (Gynaecologist).
13. She was taken to the operation theatre at about 9 AM and anesthesia was inducted to her at about 9:20 AM after she was pre-oxygenated for five minutes but soon thereafter, at about 9:22 AM, she developed Bronchospasm and Cyanosis. The said complication was treated with Deriphylline, Betnesol and Lasix and at about 9:30 AM, the said symptoms (Bronchospasm and Cyanosis) disappeared. Though the complication of Bronchospasm subsided, she developed hypoxic encephalopathy, as a result of which she could not regain consciousness even after the termination of the procedure despite the attempts made by the team of doctors. However, a female baby in good health was extracted during the procedure which continued for an unusually long period of about 125 minutes. Then she was shifted to certain higher medical centres like Sree ChitraThirunal Institute of Medical Sciences and Technology, Thiruvananthapuram, S.A.T. Hospital, Thiruvananthapuram and Cosmopolitan Hospital, Thiruvananthapuram. However, despite the treatment and management, she breathed her last on 13.5.93, at about 6:45 AM. It is, therefore, evident that the cause of death of Mrs. Mercy Johnson was the complication of Hypoxic Encephalopathy developed during the procedure. It is not in dispute that the said complication can develop due to lack of oxygen supply to the brain, which in this case was relatable to the episode of Bronchospasm, which the patient had suffered within a few minutes (2-3 minutes) of the intubation (induction of anaesthesia). Why the complication of Bronchospasm had developed and after it developed, whether the proper and effective treatment was given to treat the said complication one the ultimate questions which will decide whether or not the treatment given by the doctors was proper and according to the prescribed medical protocol in that behalf.
14. In the case in hand, the parties in support of their respective pleas and contentions have led voluminous evidence. The affidavits of the doctors concerned have been filed. They have been cross-examined extensively and besides that, parties have produced two expert Anesthologists to support their respective contentions. These doctors, namely, Prof. (Dr.) A.K. Unnikrishnan (Anaesthesia) and Associate Prof. (Dr.) B. Radhakrishnan are experts in the field of Anaesthology and they were holding responsible positions in their respective institutions to which they were attached and in view of this, they can be called independent experts in the sense that they were not responsible for treating the patient at any point of time and could have no interest in the matter. On the whole, however, the opinion rendered by them after their lengthy cross-examination was considered insufficient to conclusively establish one or the other view. It was for this reason that the Commission obtained the report of a Board of independent doctors from relevant disciplines at the AIIMS, New Delhi.
15. Mr. R. Sathish, learned counsel for the respondents has vehemently contended before us that the medical report received from the AIIMS, New Delhi is inconclusive and cannot be relied and acted upon and, in any case, it does not establish any deficiency in service on the part of the respondents-doctors or the hospital-regard being had to the settled legal position. It is further contended that the observations or opinion given by this Board cannot be construed so as to contradict the evidence already led on record, particularly when the report itself is silent and makes no distinction. It was also argued that the Medical Board has not made any observation or given any opinion against the experts evidence led on record through Prof. (Dr.) A.K. Unnikrishnan (Anaesthesia) and Associate Prof. (Dr.) B. Radhakrishnan, who were equally qualified and had long experience. It is true that the opinion of the Medical Board received from the AIIMS Hospital, New Delhi cannot be accepted at its face value and any of the parties are free to raise objections or to criticize the same, if they can do so on the strength of the opinion rendered by other medical experts or if the said opinion is shown to be against the settled medical practice and protocol. Whether the respondents have been able to show that the said report is not worth relying and acting upon and should be discarded is required to be considered. The report was obtained with the consent of the parties with a view that Commission is assisted in its task of deciding the matter in an effective manner. Merely because the opinion given by the Medical Board is not favourable to the respondents and it tends to point out certain acts of omission and commission on the part of the treating doctors, it will not, by itself, be sufficient to discard the report.
16. Learned counsel for the respondents has then sought to assail the observations/opinion rendered by the Medical Board. In regard to the observation of the Medical Board It is unusual that a general anaesthetic was given to a pregnant patient with history of rhinitis in the recent past for an elective second LSCS when there were neither any contraindications to neuraxial blockade nor the patient had refused a neuraxial block as the anaesthetic technique for surgery, Mr. Sathish has urged that this opinion is of no consequence because it does not establish that the decision to administer the general anaesthesia was contraindicated for a woman undergoing second LSCS. In this connection, he has referred to the opinion of two experts namely Prof. (Dr.) A.K. Unnikrishnan (Anaesthesia) and Associate Prof. (Dr.) B. Radhakrishnan, who had opined that general anaesthesia was not contraindicated for second LSCS. It is true that the Medical Board has not stated in so many words but the above opinion clearly indicates that giventhe history and facts of this case, the use of neuraxial anaesthesia was preferable to the general anaesthesia. It was further contended that administration of neuraxial blockade, i.e., local anaesthesia which can be either spinal or epidural is dependent upon the facilities at an average hospital for delivery purpose. Further that, even with spinal or epidural anaesthesia, Bronchospasm can develop and, therefore, the Board was not correct in its opinion that it was unusual to give general anaesthesia to a pregnant patient with history of rhinitis in the recent past for an elective second LSCS. It is true that administration of any kind of anaesthesia, either general, spinal or epidural, is frought with one kind of risk or the other but as rightly observed by the Medical Board, the decision to administer a particular type of anaesthesia must be taken after due consideration of all relevant factors, viz., the general health of the patient, the kind of surgical procedure and the duration of the said procedure, the nature of the surgery and the part to be operated upon, as also the other attendant circumstances. In the facts and circumstances, we see no infirmity in the opinion of the Medical Board.
17. Learned Counsel for the respondents then tried to dislodge the opinion No antacid, pro-kinetic prophylaxis was given to the pregnant patient before giving general anaesthesia a standard practice all over the world, by referring to the opinion of Prof. (Dr.) A.K. Unnikrishnan (Anaesthesia), who gave a somewhat different opinion We do not usually give in all the cases antacid prior to G.A especially in elective cases. In elective cases, the patient has to undergo six hours fasting. In some cases, administration of antacid develops aspirations and vomiting. In this connection, he sought support from MARTINDALE 1993 (page
902) which, on gastro-intestinal agents, states in patient at risk of developing acid aspiration syndrome, during G.A a dose of ranitidine is given seven hours before G.A. It is clear that patient undergoing elective LSCS, under compulsory fasting for six hours, usually do not require antacid and pre evaluation done by the doctors will decide depending upon the situation. He further contended that as per the standard practice adopted during the period 1992-93, antacid was to be given in a case of emergency, for example, foetal distress occurring and LSCS has to be done in emergency as a non-elective opinion. In this connection, we simply observe that going by the facts and circumstances and the developments which have taken place in this case, we would prefer the opinion of the Medical Board over the opinion of Prof. (Dr.) A.K. Unnikrishnan (Anaesthetist).
18. Regarding the finding of the Medical Board to the effect that it is unlikely to develop hypoxic encephalopathy in spite of developing Bronchospasm in a time span of few minutes, learned counsel for the respondents urged that the Supreme Court, in several of its decisions held that medicine, like law, is an inexact science and one cannot predict the outcome in many cases, which would depend on a variety of factors and body conditions. We are not impressed with this line of argument at all because what the Board found it is unlikely for a ASA I patient to develop hypoxic encephalopathy after receiving pre oxygenation for 5 minutes, undergoing uneventful induction, intubation and ventilation with 100% oxygen, in spite of developing bronchospasm in a time span of few minutes The report of AIIMS Medical Board clearly contradicts what is being projected by the respondents as the cause of hypoxic encephalopathy, viz., a medical accident. The report rather shows that the hypoxic encephalopathy must have been on account of delay in rendering timely treatment or failure to administer sufficiently aggressive treatment to control the complication of Bronchospasm within a few minutes (as claimed by the respondents). We have, therefore, no hesitation to hold that the treatment given for Bronchospasm was inadequate and the version given by the respondents was not wholly correct. In other words, the delay in controlling the Bronchospasm had led to hypoxic encephalopathy. This, in turn, caused an irreversible damage to the brain of the patient, as a result of which she could never regain consciousness and ultimately died.
19. It was next argued on behalf of the respondents that the comment of the Medical Board in regard to the anaesthesia record having been poorly maintained is of no consequence and, in any case, it does not establish any negligence or deficiency in service on the part of the doctors because the events which followed were so fast that the doctors were racing against the time to save the patient and could not record the events and their actions. The absence of noting, even if it had been made in the said record, could have only shown Haemodynamic variations. In our view, the maintenance of anaesthesia record has to be in consonance with the guidelines laid down by the Indian Medical (Professional Conduct & Ethics) Regulations, 2002 and any departure in not adhering to the same would clearly amount to deficiency in service.
20. Lastly, it was argued that the respondents could not be held liable for any negligence/deficiency in service, more particularly so when the patient was discharged from the respondent no.1 hospital on 5.5.1993 itself and subsequently received treatment in certain higher medical centres, viz., Sree ChitraThirunal Institute of Medical Sciences and Technology, S.A.T. Hospital, and Cosmopolitan Hospital at Thiruvananthapuram for about eight days and it has not been established that there was no negligence or deficiency on the part of the latter Institute(s) in giving treatment to the patient. In this connection, we may simply observe that there is no allegation of negligence or deficiency in service in the treatment of the patient at the said Institutes and that is why they were not impleaded as parties in the complaint. It appears to us that despite the best treatment and management given to the patient at the said Institutes, the patient died primarily due to the complication of Hypoxic Encephalopathy that developed at the hospital of the respondents during the course of the LSCS procedure.
21. Having considered the respective contentions of the parties, the inevitable conclusion which should follow in the present case is that both respondent no.3-Dr. Mammen Easaw (Anaesthetist) as well as respondent no.4-Dr.Marykutty Ilickal (Gynecologist) have not followed the standard medical protocol during the course of the caesarean section surgery on the deceased Mrs. Mercy Johnson and they have committed several acts of omission and commission as have been noticed by the Medical Board of the experts of AIIMS, New Delhi. In doing so, a larger portion of the blame is attributable to the Anaesthetist because it was due to his mishandling/improper handling of the anaesthological procedure that the patient developed Hypoxic Encephalopathy leading to damage to her brain and ultimately to her death. Negligence on the part of gynaecologist is limited inasmuch as she took unusually long time of about 125 minutes in completing the procedure which remained unexplained on record.
22. Having held so, the ultimate question which remains to be considered is as to what would be the just and adequate compensation which can be granted to the complainants for the said negligence on the part of doctors/hospital. In the present case, the deceased is survived by her husband and two children. The grant of compensation has, therefore, to be considered under two heads, i.e., pecuniary loss/damage and non-pecuniary damage suffered by the complainants.
23. Complainants have claimed a lump-sum compensation of Rs.20,00,000/- for the loss and injury suffered by them due to pre-mature death of Mrs. Mercy Johnson, wife of the complainant no.1 and mother of the complainants no. 2 & 3. In paragraph no. 45 of the complaint, it is alleged by the complainant that the deceased, Mrs. Mercy Johnson was working as Lecturer (Senior Scale) in Little Flower College, Guruvayoor and was drawing a total salary of Rs.6102/- per month. Going by her age, she would have continued to serve for another 22 years had she not died pre-maturely. It is also stated that complainant no.1 had incurred huge expenditure towards hospital fee, costs of medicines, etc., in connection with the treatment of Mrs. Johnson at the respondent hospital and other hospitals where she received the treatment subsequently. Besides, the complainants have been deprived of the companionship, love and affection of the deceased. To substantiate the claim towards the pecuniary damages, complainants have filed a statement of the last salary drawn by Mrs. Mercy Johnson in her capacity as Lecturer (Senior Scale) in Little Flower College, Guruyayoor.
As per the said statement (Exhibit P-9) the date of birth of the deceased was 3.11.59; she was appointed as a Lecturer on 24.11.83 and she would have retired on 31.03.15. At the time of her death, she was drawing a salary of Rs.6,102/- per month in the pay-scale of Rs.3000-100-3500-125-5000. As per the accompanying statement, she would have drawn a total salary of around Rs.24 lakh till the date of her retirement, had she survived and continued to work on the said post. The complainants have also filed a statement of medical expenses (Exhibit P-10) which would show that an amount of 12,000/- was spent on the subsequent treatment of Mr. Mercy Johnson at SCT (Sree Chitra Thirunal) Centre, Trivandrum and Cosmopolitan Hospital (P) Ltd. Trirandum.
24. What is meant by compensation within the meaning of section 14 of the Consumer Protection Act, 1986 has been considered and answered by the Supreme Court in the case of Ghaziabad Development Authority vs Balbir Singh [(2004) 5 Supreme Court Cases 65], as under:
The word compensation is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, compensating for being compensated; thing given as recompense;.
In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or service and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.
However, in case of medical negligence, the settled position is that:-
A patient who has been injured by an act of medical negligence has suffered in a way which is recognized by the law-and by the public at large-as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident.
Under civil and consumer law compensation paid for medical negligence is neither punishment nor reward. The principle on which damages for medical negligence are assessed is that they are to be regarded as compensation for the injury sustained or death and not as punishment for the wrong inflicted.
There is no difference in the principles applied to the assessment of damages in a medical negligence case and other actions for personal injuries, e.g., in motor accidents claims.
25. In our view, this is a fit case where a multiplier of 15 should be applied. Taking into account the last salary drawn by the deceased and the remainder period of her service of about 22 years and after deducting about 1/3rd of the salary towards her own maintenance and upkeep, the deceased would have contributed at least a sum of Rs.4,000/- p.m towards her family. As such applying the multiplier of 15, the compensation comes to Rs.7,20,000/- (Rs.4,000/- X 12 X 15). Besides, the complainants are entitled to a sum of Rs.12,000/- towards medical expenses.
In our view, each of the complainants is also entitled to at least a sum of Rs.1,00,000/- towards the loss of companionship, love and affection. We will round off this figure of total payable compensation to Rs.10,00,000/- (Rupees Ten lakh only). Since respondents no.3 & 4 were the employees of the respondents no.1 & 2, respondents no.1 & 2 are primarily and jointly and severally liable to pay the amount of compensation to the complainants. However, it will be open for them (respondents no.1 & 2) to recoup such portion of the compensation from doctors (respondents no.3 & 4) as may be considered appropriate having regard to the nature and extent of the negligence for which they have been held guilty.
26. In the result, the appeal is allowed and the impugned order dismissing the complaint is hereby set aside. As a consequence, the complaint is partly allowed and respondents no.1 & 2 are called upon to pay a lump sum compensation of Rs.10,00,000/- (Rupees Ten Lakh Only) to the complainants within a period of six weeks from the day of communication of this order, failing which the amount shall carry interest @ 12% per annum till realisation. Out of the awarded amount, a sum of Rs.5,00,000/- shall be payable to complainant no.1 while the balance amount shall be payable to appellants/complainants no.2 & 3 in equal proportion.
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(R.C. JAIN, J.) PRESIDING MEMBER .............Sd/-......................
(ANUPAM DASGUPTA) MEMBER