S. Chandradas Nadar, Judicial Member
This is a complaint filed under Section 12 of the Consumer Protection Act.
2. The following are the main allegations in the complaint. The first complainant is the husband of Mini Philips who died due to the negligence and laches that occurred during the course of laparoscopic surgery done to her on 25.9.2006 at the DeenHospital, Punalur. Complainants 2 and 3 are the minor children of the first complainant and deceased Mini Phlips. The said hospital is the first opposite party and it is alleged that the second opposite party is the proprietor of the first opposite party hospital. Opposite parties 3, 4 and 5 were working as doctors at the first opposite party hospital. The first opposite party had given advertisements narrating the details of treatments available and also made propaganda regarding treatments in gynecology and laparoscopic surgery available through other opposite parties. Late Mini Philips was employed as a cashier in the Hoora Supermarket, Manama, Bahrain from 16.10.94 up to 24.8.06. While so she came to Kerala on 26.8.06 by availing vacation. The 5th opposite party gave the impression that laparoscopic sterilization would be a minor operation and that the patient could leave the hospital within half an hour after the operation. The wife of the first complainant decided to opt laparoscopic sterilization due to the advice and confidence given by the 5th opposite party. Mini Philips was under consultation with the 5th opposite party for a week time before 25.9.06. Mini Philips was aged 37 years. She was admitted in the hospital of the first opposite party on 25.9.06 at 8.30 a.m for undergoing laparoscopic tubal ligation. The first complainant and close relatives of the patient and the first complainant were present in the hospital. Even after a long time, the patient was not brought out from the operation theatre; nor any details were conveyed to the first complainant until evening. At about 5 p.m the first complainant and a close relative heard an Attender saying that a death happened in the hospital but to the knowledge of the first complainant and bystanders there was no other patient who suffered death, either in the operation theatre or in the post operative ward. There were hasty movements of the duty nurses from the theatre and post operative ward during that time. At one time one of the sisters informed the first complainant that he should make up his mind to face a crucial situation in response to a query made by the first complainant. Opposite parties 3 and 4 on knowing the critical stage of the patient started preparing case records distorting facts including the details regarding anaesthesia and the condition of the patient with the motive of safeguarding the interests of the opposite parties. On 25.9.06, the first complainant was not informed about any chest infection or bodily complaints of the deceased. When the relatives of the patient including the first complainant enquired about the condition of the patient they were told that the patient had suffered serious respiratory distress. On observing that the physical condition of the patient had worsened very much, the first complainant and relatives were allowed to enter the operation theatre, where she was found lying unconscious. Both the eyes of the patient were found covered with plaster tape. In the meanwhile even without obtaining the permission of the first complainant or his relatives, the opposite parties removed the patient in an ambulance saying that there was no ventilator facility available in the first opposite party hospital and took the patient to PoyanilHospital, Punalur immediately. There after on 26.9.06 at about 11 0clock the patient was brought to AnanthapuraiHospitalin an ambulance. She is said to have died at about 5.30 p.m on 26.9.06.
3. It was quite shocking to the complainants and relatives to hear about the fate of late Mini Philips. In fact the death might have happened in the first opposite party hospital itself. The incident was reported to the Vanchiyoor Police Station and Crime No.229/06 was registered. At the request of the SI of Police post mortem examination was conducted on the body of the deceased. The cause of death of Mini Philips is reported as combined effects of brain hypoxia and adult respiratory distress syndrome. The cause of death itself would show that general anaesthesia and spinal anaesthesia were administered on the patient simultaneously. The injection mark on the back of the trunk as per post mortem certificate is a characteristic feature of spinal anaesthesia administered on the patient. It was due to the negligence on the part of the 3rd and 4th opposite parties and the casual manner in which laparoscopic sterilization was conducted, the death of Mini Philips happened. The operation was done under the supervision of the 5th opposite party in a casual manner. The surgery was performed without due diligence and care expected from a professional. Opposite parties 3 and 4 conducted the surgery without resorting to the standard protocol for conducting a laparoscopic surgery.
4. The deceased was of sound health moderately nourished and having no bodily complaints. The pre-operative preparation, treatment, anaesthesia administered, management and care meted out to the deceased were deficient and standard care was lacking. Brain hypoxia and adult respiratory distress syndrome happened because of the injuries caused to the spinal canal whereby dura was punctured. The 3rd opposite party was the doctor who administered anaesthesia to the patient. Admittedly, he had given general anaesthesia to the patient prior to the operation. But the post mortem report reveals that spinal anaesthesia was administered to the patient before operation which ultimately resulted in dura puncture causing death. All the opposite parties were engaged in the course of treatment or surgical activities. The third opposite party was not qualified to administer anaesthesia to patients. He was not an anaesthesiologist. The quality assurance manual for sterilization services 2006 and the standards for female/male sterilization services 2006 published by the Government of India prescribe the standard for female sterilization and qualification for anaesthesiologist and as such only anaesthesiolgists are considered as qualified hands to administer anaesthesia for electro laparoscopic surgery. Laparoscopic sterilization is a minor operation for which local anaesthesia only is necessary.
5. The first opposite party/hospital was not having any accreditation from the Ministry of Health and Family Welfare Government of India in the matter of conducting laparoscopic sterilization on females. Hence the first opposite party lacked legal competence to conduct laparoscopic surgery on females. Conducting of laparoscopic surgery when the patient was ailing from respiratory distress was unwarranted. The 4th and 5th opposite parties were negligent and they miserably failed to evaluate the condition of the patient. The report of the District Medical Officer, Kollam dated 26.7.07 supports the view that third opposite party lacks the basic qualification in anaesthesiology. Undoubtedly general anaesthesia and spinal anaesthesia were administered simultaneously to the patient which ultimately caused death of Mini Philips. The third opposite party administered both, which ought not have been done and he is responsible for the death of the patient.
6. Complainants 2 and 3 are the minor children of the deceased and they lost the maternal care, love and affection from their mother for ever. The third complainant lost the opportunity of breast feeding which can never be substituted by any other thing. The first complainant was leading a very peaceful life with the deceased and she was very understanding and loving. He is passing his days in great mental agony and is facing the pitiable situation of the children. As cashier of Hoora Supermarket, Manama, Bahrain the deceased was drawing a consolidated monthly salary of 150 BD equivalent to 18,000/- Indian rupees. She was about to leave for Canada for better prospects. She lost earnings by way of periodical promotion and increments. Thus the complainants have sustained loss of about Rupees1 crore. She would have obtained retirement benefits of more than Rs.20 lakhs. First complainant was also employed at Bahrain. Due to the demise of his wife, the first complainant had to abandon his job at Bahrainand the same is to be compensated. First complainant claims Rs.5 lakhs for the loss, pain and mental agony suffered by him. An amount of Rs.5 lakhs is claimed by the 2nd complainant towards the loss of love and affection of the mother. The third complainant claims an amount of Rs.10 lakhs towards the loss of maternal care, protection and feeding. The total compensation claimed by the complainants is Rs.99,40,000/-.
7. The opposite parties filed joint version. The contentions are that there was no negligence or laches in performing laparoscopic surgery on late Mini Philips. The patient died due to a medical accident. The patient was provided the best possible medical care. When the crisis arose, the opposite parties had sought help and had obtained help from colleagues. The patient was managed with care and was shifted to a higher centre without delay, with necessary care and attention. Everything necessary was done with the best interests of the patient, in mind. As per the history given the patient had an ectopic pregnancy in 2002. The 3rd and 4th opposite parties have never worked with the first opposite party as employees. They are freelancing practitioners, whose services are availed by hospitals in the area, according to their need. However, the 5th opposite arty is an obstetrician and gynaecologist employed by the second opposite party. No advertisement was given by the 1st opposite party as alleged in the complaint. It is incorrect to say that the 5th opposite party had impressed upon the 1st complainant and the patient that laparoscopic sterilization surgery, is a minor surgery and that the patient could leave the hospital within half an hour of the operation. The patient and her husband were informed about the various modalities of sterilization including vasectomy. They agreed for an interval sterilization since they had completed their family and were not interested, in having children further. They opted for tubal sterilization. Before the operation, the 5th opposite party had explained in detail to the complainant and her husband, about the pros and cons of tubal sterilization and chances of its failure. The 5th opposite party had explained to the patient and her husband at that time, about the choice of anaesthesia, risks involved in each type etc. It is incorrect to say that the patient was in consultation with the 5th opposite party for a week before the date of operation. Before 25.9.06, the patient consulted the 5th opposite party only on 15.1.2005.
8. It is admitted that the 2nd opposite party is the proprietor of the 1st opposite party hospital. But it is contended that 3rd opposite party has more than 25 years of experience in administering anaesthesia, in various institutions, including Government hospitals. He has exclusively practiced anaesthesia, throughout his career. The 4th opposite party is an obstetrician and gynaecologist, trained in laparoscopic surgery. 5th opposite party is a consultant obstetrician and gynaecologist, working in DeenHospital, Punalur. The patient was admitted in the first opposite party hospital on 25.9.06 for laparoscopic sterilization. The deceased had 2 children and the last child was born 1 ½ years before the operation. She was a mild diabetic on oral hypoglycaemic agent. Routine blood and urine examination was done. The patient was examined at 11.40 a.m by the 5th opposite party and was posted for laparoscopic sterilization, to be performed by the 4th opposite party in the evening. The third opposite party conducted a thorough pre-operative evaluation of the patient by appropriate systematic examination relevant investigations were also done. No abnormality was revealed.
9. The case was taken up around 5.30 p.m under general anesthesia. An IV line was started in the left upper limb. Blood pressure cuff was tied around the right upper arm. Pulse Oximeter was connected for monitoring the pulse rate and oxygen saturation. Patient was given 100% oxygen with boyles apparatus. This was followed by Thiopentone 250 mg, in order to make the patient unconscious and Scoline 100 mg, a short acting muscle relaxant. The patient was then intubated using a 7.5 mm cuffed endotracheal tube and maintained with oxygen and nitrous oxide and vecuronium The pulse rate, blood pressure and oxygen saturation levels were serially monitored, during the procedure. Once the patient was under anaesthesia, the 4th opposite party began the surgery. Pneumoperitoneum, was created using carbon dioxide and a good view was achieved. The right fallopian tube showed evidence of salpingectomy, probably following the surgery, for ectopic pregnancy. The left fallopian tube and both the ovaries appeared normal. Hence the fallope ring was applied, on the left fallopian tube. Port site was closed with 2/O vicryl. On completion of surgery, the 3rd opposite party reversed the patient with neostigmine 2.5 mg and atropine 1.2 mg slowly. Throat was sucked and extubated. Immediate postoperative period was uneventful. However, it was noticed that oxygen saturation started gradually coming down which could not be kept up with bag and mask. Patient was immediately re-intubated and was put on 100% oxygen and ventilated. She was kept sedated with inj.Fortwin 30 mg and phenergan 25 mg. The patient was stable and oxygen saturation was quite satisfactory on spontaneous respiration. Patient was put on spontaneous respiration for some time and being steady, extubation was done and observed. After a few minutes patient developed breathlessness and again intubation was done immediately and positive pressure ventilation was done with 100% oxygen. The patient was developing signs of pulmonary oedema. 80 mg. of lasix was immediately administered. The 4th and 5th opposite parties present in the operation theatre were also assisting the 3rd opposite party in resuscitation procedure. Since, the patient was not improving Dr.H.K.Prakash, Dr.Annie George, Dr.Rajagopal (all anaesthetists) were called in. Dr.Rajan Prasad, Dr.Vinod Varghese and Dr.K.N.Viswabharan were also called in. Bronchodilators and corticosteroids were given and repeated at intervals. The pulmonary oedema was so severe, that endotracheal suction was done throughout at intervals. Inspite of all efforts oxygen levels remained between 75% and 80%. The patient was continuously monitored, for vital signs, pulmonary oedema persisted and after a consensus it was decided to shift the patient to PoyanilHospital, Punalur, for ventilator support. Poyanil hospital, is the nearest hospital to DeanHospital, having ventilator facility. The patient was shifted from the 1st opposite party hospital at 9 p.m accompanied by third and 4th opposite parties with all possible care. She was later shifted to a higher centre namely AnanthapuriHospital, Thiruvananthapuram on 26.9.06. The patient expired in the same evening.
10. The opposite parties have acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in medicine and with utmost bonafides. There was no negligence on the part of the opposite parties in treating the patient. The patient was initially taken to a pre operation room, and was shifted to operation theatre by about 5.15 pm. The surgery was completed by 5.30 p.m. During recovery from general anaesthesia, the patient developed breathlessness and stridor on extubation. The patient was immediately intubated and given 100% oxygen. After a brief steady period, the patient was extubated again. Almost immediately, severe breathlessness started and features of pulmonary oedema were noticed. The immediate relatives were taken into confidence and the husband and his father were asked to remain by the side of the patient inside the theatre. The allegation that the 1st complainant and his relative overheard an attender saying that death happened in the hospital is false. The alleged conversation of duty sister is a figment of imagination from the first complainant. The case sheet was written in the operation theatre and was not manipulated as alleged. The patient was not having any chest infection. Covering the eyes of the patient was a standard procedure during general anaesthesia . This is done to protect the eye from injury. The allegation that death would have happened in the 1st opposite party hospital itself is false. It is incorrect to say that general anaesthesia and spinal anaesthesia were administered on the patient simultaneously. Negative pressure pulmonary edema causing brain hypoxia and ARDs are rare complications, but serious complication known to occur after general anaesthesia. The patient was never administered spinal anaesthesia. Once the patient is under general anaesthesia there is no need to give spinal anaesthesia. It cannot be inferred from the post mortem finding that the death was due to combined effect of brain hypoxia and adult respiratory distress syndrome and that both general anaesthesia and spinal anaesthesia were administered on the patient. Lumbar puncture mentioned in the post morten report could be for introducing needle in to the spinal canal for collection of cerebrospinal fluid for diagnostic purposes and might have been done during clinical course elsewhere. The injection mark at the back of the trunk as per post mortem certificate is not inconsistent with Lumbar puncture done for diagnostic or therapeutic purposes later in the clinical course elsewhere. In the absence of analysis of spinal fluid collected during post mortem it cannot be said that there is evidence of administration of spinal anaesthesia. The Lumbar puncture seen on the patient cannot be attributed to the 3rd opposite party. The 4th and 5th opposite parties are in no way responsible for any anaesthetic complication. The 3rd opposite party administered general anaesthesia with extreme care and caution. He had done pre anaesthetic check up and all requisite investigations were done. The development of pulmonary oedema, following general anaesthesia, is one of the dreaded complications which can never be predicted. Puncturing of dura is the normal result of any lumbar puncture and spinal canal is just a space. Puncturing of the dura during lumbar puncture would not lead to brain hypoxia and ARDs as alleged. The presence of bleeding and induration at the site of lumbar puncture shows that the same was sustained when the oxygen tension had been low for over a period of time. Had respiratory distress set in following the alleged spinal anaesthesia the surgery could not have been completed. The allegation that the 3rd opposite party is not qualified to give anaesthesia as mentioned in the Quality Assurance Manual for sterilization services, is denied by the opposite parties. It is contended that 3rd opposite party has completed one year exclusive senior house surgeoncy in anaesthesia after MBBS and regular one year compulsory rotatory house surgeonship in Thiruvananthapuram Medical College and is competent to administer anaesthesia. The accreditation procedure for laparoscopic sterilization came into effect with quality assurance manual for sterilization services in October 2006. The same is optional and not mandatory. The surgery on the wife of the 1st complainant was done in September 2006. None of the alleged difficulties to the complainants were due to any act or omission or commission on the part of the opposite parties. The claims made by the complainants are exaggerated and imaginary. So also the claims relating to salary, job prospects, abandonment of job by the 1st complainant etc. are in correct. The compensation claimed under different heads are exaggerated and without any basis. The 3rd and 4th opposite parties are not paid employees of the 1st opposite party. The complainants are not entitled to any relief and the complaint is liable to be dismissed.
11. On the rival contentions, the following points arise for decision in this case:-
1.Whether deficiency in service is made out against all or any of the opposite parties?
2.What is the quantum of compensation if any payable to the complainants?
12. The evidence consists of the depositions of the 1st complainant as PW1 and 4 more witnesses on the side of the complainants as PWs 2 to 5. Exts.A1 to A20 were marked on the side of the complainants. Opposite parties 2 to 5 gave oral evidence as RWs 1 to 4. 2 more witnesses were examined on the side of the opposite parties as DWs 5 and 6. Exts.B1 to B6 series were marked on the side of the opposite parties. Ext.X1 was also marked in evidence.
13. POINT NO.1
Admittedly, the second opposite party is the proprietor of the 1st opposite party, DeenHospital, Punalur. From the evidence, it appears that the 5th opposite party is the wife of the 2nd opposite party and they together run the hospital. The 5th opposite party is a obstetrician and gynaecologist. It is admitted that on 25.9.06, Smt.Mini Philips the wife of the 1st complainant and mother of complainants 2 and 3 was admitted in the 1st opposite party hospital for laparoscopic sterilization. It is also admitted that on 15.1.06, Mini Philips consulted the 5th opposite party before being admitted for laparoscopic surgery. The case of the complainants is that Smt.Mini Philips was admitted in the 1st opposite party hospital at 8.15 a.m on 25.9.06. But the operation was performed only at about 5 p.m. It is admitted that the 5th opposite party saw the patient by about 11.40 a.m. The patient was taken up around 5.30 p.m for operation. General anaesthesia was given to her by the 3rd opposite party who claims to be competent to administer anaesthesia. Laparoscopic sterilization was performed by the 4th opposite party. After surgery, the 3rd opposite party gave medicines to reverse the patient and she was extubated. There upon it was noticed that oxygen saturation was coming down gradually. Again the patient was intubated. After some time oxygen saturation became satisfactory and again the patient was extubated. After a few minutes the patient developed breathlessness and again the patient was intubated. On the same day at 9 p.m the patient was shifted to Poyanil hospital for ventilatory support which was not available in the 1st opposite party hospital. As the condition of the patient did not improve the patient was shifted to AnanthapuriHospital, Thiruvananthapuram on the next day and the patient died in the same evening. According to the complainants both general anaesthesia and spinal anaesthesia were administered to the patient simultaneously and that resulted in the death of the patient. There are other allegations and serious contentions which would be referred to in the course of the judgment. Before doing so, it is necessary to refer the hospital records produced in this case from the first opposite party hospital, PoyanilHospitalas well as Ananthapuri hospital. Ext.A15 is the records relating to Mini Philips kept at the first opposite party hospital. It may be mentioned at once that the complainants have a case that these records were manipulated to suit the defence of the opposite parties when it became clear that fault occurred on their part. As per Ext.A15, the patient was admitted in the hospital at 11.40 am. on 25.9.06. Investigations were done as seen from the doctors notes. It is mentioned that laparosopic tubal ligation under general anaesthesia was done at 5.30 p.m. In the subsequent page without mentioning the time, it is mentioned that Mini Philips is a known diabetic under good control with oral anti diabetic drugs. GA was induced and notes go to show that intra operative and immediate post operative period were un-eventful. Graduallly SPO2 started coming down which could not be kept up with bag and mask. The patient was immediately intubated. The subsequent notes also re-iterate the defence version. The times of administration of various drugs are noted. So also the blood pressure is seen noted, at intervals. The records also contain details of consultation done by the patient earlier, must be for some other purpose. The chart of the anaestheologist is not found among records. As a whole there is some force in the allegation that Ext.A15 is not a document truth fully kept by the opposite parties.
14. Ext.A16 is the patient record file kept at the Poyanil Hospital Punalur. It contains the referral letter and the note made by the Medical Officer at 8.50 p.m on 25.9.06. The provisional diagnosis was âacute pulmonary odema or shock. Time of admission is noted as 10 p.m and the patient is seen discharged at 10 a.m with no improvement. She was discharged at request for further management in a higher centre. Ext.A16 also contains the notes of the anaesthesiologist of the PoyanilHospital. It is seen that the 5th opposite party summoned his help at 9 p.m and ultimately the patient was shifted to the Poyanil hospital for ventilatory support. The impression of the anaesthesiologist was that the patient was suffering from acute pulmonary oedema. Details of the treatment given at the hospital doctors sheet, CPR chart, nurses record etc. are among Ext.A16.
15. Ext.A3 is the confidential medical record kept at the AnanthapuriHospitalrelating to the patient. It is seen from Ext.A3 that the patient was brought to the Ananthapuri hospital on 26.9.06 at 1.15 p.m. The patient came in cardiogenic shock with inotropic and ventilatory support. It is further mentioned that despite the possible medical support and resuscitating efforts patient expired at about 5.30 p.m on the said day. When the patient was brought in the Ananthapuri hospital blood pressure was not recordable radial pulse was not palpable but the femoral pulse was palpable. The patient continued on high dose of inotropic and ventilatory support. It seems that continued till the expiry of the patient.
16. So, it is pertinent to notice that when the patient was shifted to the Poyanil hospital from the 1st opposite party hospital pulmonary oedema had developed and the patient was going towards a very critical condition. It is in the above background, the complainants allege that the cause of death was simultaneous administration of general anaesthesia and spinal anaesthesia. The opposite parties deny that spinal anaesthesia was administered to the patient. So it becomes necessary to ascertain whether spinal anaesthesia was in fact administered to the patient before laparoscopic sterilization surgery. Before analyzing the evidence to decide either way it is highly relevant to consider the post mortem certificate issued from the department of Forensic medicine, MedicalCollege, Thiruvananthapuram and the related records. Ext.A4 is the copy of the post mortem certificate dated 27.9.06. The post mortem examination on the body of the deceased Mini Philips was done by PW2 who was the Associate Professor and Deputy Police Surgeon Department of Forensic medicine, MedicalCollege, Thiruvananthapuram. During the course of post mortem examination seven antemortum injuries were noted by PW2. Injury No.1 is relied on to allege that there was in fact administration of spinal anaesthesia. The said injury is described thus:- âInjection mark with infiltration of blood over an area of 2.5 x 1.5 x 1cm just to the left of mid line and 12 cm above natal cleft. The track of the injection mark was found entering the spinal canal, dura was punctured. Infiltration dark red in colour was seen in the extradural space of the spinal canal.â Viscera sample of blood and bile were collected and preserved for chemical analysis. Tissue bits were collected for histopathological examination. It is mentioned that photo copies of the relevant case records from Deen hospital, Poyanil, Hospital and AnanthapuriHospitalwere perused after autopsy. In Ext.A4 the opinion as to cause of death is reserved pending report of laboratory investigations. Ext.A4 (a) is the certificate of chemical analysis issued from the chemical examiners laboratory, Thiruvananthapuram. The examined items were stomach and part of intestine with contents, part of liver and one kidney, blood , bile and saturated sample saline. The finding was that no poison was detected in any of the items examined. Ext.A4 (b) is the pathological report issued from the Department of pathology, MedicalCollege, Thiruvananthapuram relating to tissue bits collected during post mortem. Based on laboratory reports PW2 issued Ext.A5 post mortem certificate. It contains the final opinion as to cause of death of mini Philips. As per Ext.A5, the death of Mini Philips was due to combined effects of brain hypoxia and adult respiratory distress syndrome.
17. Brain hypoxia and adult respiratory syndrome are end results and the allegation in the complaint is that simultaneous administration of spinal anaesthesia and general anaesthesia triggered the crisis leading ultimately to brain hypoxia and adult respiratory system. It is admitted in the version that some crisis arose immediately after the completion of laparoscopic sterilization surgery. According to the opposite parties negative pressure pulmonary oedema leading to brain hypoxia and ARDS is a known but serious complication of general anaesthesia. But it appears from the version and the records produced that when the complications arose 3 anaesthesiologists, one obstetricion a surgeon and a physician were summoned from nearby hospitals to review the situation. There was attempt to resuscitate the patient and as the patient was not improving she was referred to a higher centre having ventilator support facility. It is contended that development of pulmonary oedema following general anaesthesia is one of the dreaded complications that can never be predicted. It is further contended that the 4th and 5th opposite parties are in no way responsible for any anaesthetic complication. It is also contended that what happened in this case was a medical accident beyond the control of the opposite parties. In fact the learned counsel for the opposite parties meticulously argued each and every point raised in the version. Before considering his arguments it is fruitful to refer the expert evidence available in this case to see what exactly were the complications that ultimately led to brain hypoxia and ARDS.
18. PW2 was the Professor and Head of Department of Forensic Medicine Medical College, Kottayam at the time of examination. While she was serving in the MedicalCollege Hospital, Thiruvananthapuram, she conducted the post mortem examination on the body of Mini Philips. Her opinion is that injury No.1 referred to earlier could have happened within 24 hours of the death of the person. She explained that the injection could have been before death but within 24 hours. The injury found on the right side of the neck according to PW2 could be inflicted at the time of handling the patient by coming into contact with some hard or rough surface or object. This injury is projected to argue that the patient was in fact handled so carelessly but that injury has no connection with the subsequent complications. She was of the opinion that needle puncture mark could have resulted from a puncture for investigation purpose. She explained that as a forensic expert she could not distinguish one from the other. She further explained that she did not collect cerebro spinal fluid during the post mortem examination because it was difficult to get clear CSF sample during autopsy. The brain of the deceased was oedematous and that would also reduce the amount of CSF in the brain. She further explained that there are situations when antibiotics and pain killers are administered through spinal canal. But those are rare special situations. The patient had no meningitis to administer drugs through the spinal canal. Further injury Nos.2 and 3 suggested that intra peritoneal operation was performed on the patient within 24 hours of the death. Hence she could infer the injection mark described as injury no.1, as one that had been administered by way of spinal anaesthesia. According to PW2, clear CSF would give a better result if analyzed for the presence of the drugs administered for anaesthesia. She is not an authority to say about the half life of the drug that is given for spinal anaesthesia or whether a chemical examiner would be in a position to detect a small quantityof the drug after 24 hours of the death of the patient. According to PW2 infiltration of blood noted in relation to injury No.1 might have been caused by rupture of blood vessels on its way. The suggestion was that the infiltration of blood was on account of increased permeability when the injection was given. But PW2 insisted that infiltration was due to injury to blood vessel and not due to increased permeability. If infiltration of blood was due to increased permeability it cannot be a localized one but a generalized one. She admitted that brain hypoxia could cause increased permeability. PW2 also opined that brain hypoxia could occur due to spinal anaesthesia and in continuation ARDs also can be developed. Cardiac arrest, head ache and meningitis are the common complications of spinal anaesthesia.
19. As against this evidence, the opposite parties examined RWs 5 and 6, two experts in support of their case. RW5 holds MBBS degree with post graduate diploma in anaesthesia. According to him, the Anesthesiologist is responsible for ensuring that the patient undergoing surgery gets adequate oxygen intake. According to him, if there is prolonged hypoxia or lack of oxygen then there will be bleeding from any injury. After going through Ext.P4 post mortem report he opined that it was unlikely that injuries 1,2 and 3 described in Ext.A4 had happened at the same time as there was more bleeding in the first injury and no bleeding in the second injury. It also indicated that the patient was having bleeding tendency. According to him an Anesthesiologist would not permit operation, if there was adverse reaction on administration of anaesthesia till it is rectified. According to him, fall of blood pressure can cause cardiac arrest which can lead to brain hypoxia. There must be cardiac arrest prior to brain hypoxia. Injury No.1 need not necessarily be a spinal anaesthesia injury, it could also be for examining spinal fluid. He could not rule out that spinal anaesthesia would have been administered. According to him laparoscopic sterilization surgery can be done on the spinal anaesthesia. When asked whether administration of spinal anaesthesia and general anaesthesia simultaneously can lead to a tragic event he took time to answer and answered in the negative.
20. RW6 is the retired Principal, Medical College, Thrissur. He was actually involved in the department of Forensic Medicine and was the Professor, Forensic Medicine and Police Surgeon under the Government of Kerala. According to him, it is not possible to conclude that injury No.1 in Ext.A4 was due to administration of spinal anaesthesia for 2 reasons. Firstly the chemical examination report does not reveal any poison or drug and secondly because the injection mark is identical with one caused by lumbar puncture for diagnostic purposes. Normally in injection mark, there will be no infiltration of blood in the surrounding tissues as no injury to any major blood vessel will be caused. The reason for infiltration blood with respect of injury No.1 could be because the deceased was in a state of hypoxia during the period preceding death. Any injury inflicted during such state is very likely to result in extra vasation of blood into the tissues. According to him in the post mortem certificate infiltration and petechiae (blood spots) are noted in several places and the same is unmistakable evidence of hypoxia. It cannot be precisely said how long it would take to develop hypoxia.
21. He mentioned four common causes for ARDS. The third one was aspiration of stomach contents into the respiratory tracts. This is one of the possibilities to be taken into account when considering the cause of ARDS. As to the question whether there was connection between head low position and ARDS, RW6 answered in the affirmative and added that in the head low position, the gastric contents will be aspirated first to the throat area and thereafter down the air passage and the acid contained in the stomach juices will injure the capillary blood vessels of the lungs and start the process of ARDS. Head low position can facilitate ARDS faster than in the other postures. According to him there can be silent aspiration. In such cases clinical symptoms will develop belatedly after the damage is done. This phenomenon is not reasonably foreseeable. According to him, it is essential to collect CSF sample for analysis in suspected case of death associated with spinal anaesthesia. Staining of blood will not materially affect the test result. Assuming that it is difficult to get CSF sample from the injection site, it can be taken from any other standard site and one is at the back of the neck called cisternal puncture.
22. As mentioned already the consistent stand taken by the opposite parties is that spinal anaesthesia was never administered in the hospital of the first opposite party lumbar puncture could have been made for diagnostic or therapeutic purposes while in some other hospital. In support of their arguments infiltration of blood around injury number one mentioned in Ext.A4 post mortem certificate is relied on. On this aspect the evidence given by PW 2 and RWs 5 and 6 is already referred to. Opposite parties 2 to 5 as RWs 1 to 4 re-iterated their version in this regard. One of the main arguments carefully advanced by the learned counsel who appeared for the opposite parties was also that infiltration of blood as regards injury No.1 and absence of infiltration of blood in respect of other injuries clearly indicate that the injuries were inflicted at different points of time. Further extravasation of blood happens when there is hypoxia for a prolonged period. On this aspect also we have referred to the expert evidence available. Anaesthesia at the DistrictHospital, Second edition, written by Michael B. Dobson is relied on to point out that in order to collect cerebrospinal fluid the needle should enter the dura of the spinal cord and because the dura is punctured no harm would be done to the patient (see page 101). Current Methods of Autopsy Practice Second Edition written by Jurger Ludwig M.D is relied on to argue that there are many possible causes of anaesthesia associated death which are not drug related such as acute air way obstruction by external compression, aspiration tumor, or an inflammatory process. Some of the complications are characteristically linked to specific phase of anaesthesia and many cannot be proved marphologically. The same book is relied on to argue that if the anaesthetic agent had been injected into or near the spinal canal, spinal fluid should be withdrawn from the injection site, preferably from the sub occipilal cisterna. If the anaesthetic agent was injected locally, tissue should be excised around the needle puncture marks at a radius of 2 to 4 cm. serial post mortem analysis of specimens may permit extrapolation to tissue concentration at the time of death. So also pathologic Basis of Disease written by Robins 6th edition is relied on to point out that aspiration of gastric contents can cause ARDS including septic shock (vide page 701). In âpathology written by Alen Stevens and James Lowe second edition several conditions causing ARDs are given. Pulmonary aspiration of Gastric contents is one of them.
23. So the two immediate questions that suggest itself are firstly whether there is evidence to show that ARDS developed as a result of aspiration of Gastric contents into lungs and secondly whether spinal anaesthesia was administered and whether erroneous procedure in administering spinal anaesthesia can lead to hypoxia and consequently ARDS.
24. Coming to the first question it may be mentioned that the expert evidence is already referred to. It is true that aspiration of gastric contents into lungs during the laparoscopic procedure can lead to ARDS but that is only one of the possibilities and the question is whether actually such an event happened in this case. In this connection, it is relevant to notice that tissue bits of lungs collected during post mortem examination were subjected to histo pathological analysis. Ext.A4 (b) histo pathological report does not reveal that any particle from gastric contents had entered the lungs. Ext.A4 certificate of chemical analysis is also relevant. Chemical analysis showed that stomach and intestinal parts were neutral, whereas the bile was alkaline. It is relevant to notice that the gastric contents were nutral. Ext.A4 post mortem certificate shows that the stomach of the deceased contained blackish fluid with few unidentifiable particles having no unusual smell. So, by and large the stomach was empty. So the evidence indicates that the patient was prepared well pre-operatively and there is no evidence of aspiration of stomach contents into the lungs. In this context the evidence of RW6 is relevant. His evidence shows that aspiration of gastric contents becomes more probable in head low position. In fact head low position can facilitate ARDS faster than in other postures. But in the case of silent aspiration (micro aspiration) the clinical symptoms would develop belatedly and after the damage is done. In this case medical records show that after surgery, the symptoms of pulmonary oedema developed rapidly and there is no indication as to aspiration of gastric contents into lungs. But if as a matter of fact head low position was achieved which appears to be a convenient posture to perform laparoscopic surgery there is yet another possibility. That possibility is associated with the question whether spinal anaesthesia was in fact administered and this leads to the second question mentioned earlier. In this regard the evidence furnished by Ext.A4 post mortem certificate and PW2 are already referred to. RWs 5 and 6 were examined to contradict the evidence of PW2. But their evidence as such does not rule out the possibility of spinal anaesthesia having been administered to the deceased.
25. As seen already one of the main arguments to contradict the case of the complainants that spinal anaesthesia was administered is infiltration of blood surrounding the needle mark described as injury No.1 and the absence of infiltration of blood in respect of the tissue surrounding the other injuries. It is true that surrounding injury No.2 in Ext.A4 which is obviously a surgical wound no infiltration of blood is mentioned. The third injury was also inflicted as part of the surgical procedure. Surrounding that surgical incision no infiltration of blood is mentioned. But it is mentioned along with that injury that loops of intestine showed small infiltration at places. Two fallope rings were noted in the left fallopian tube with infiltration of blood around the inner end 2.7 cms distal to uterine end. A portion of fallopian tube of length 1.8 cm was found partially cut with minimal infiltration in the inner end of the piece and was 2.5 cm distal to the uterine end. Broad ligament on the leftside showed infiltration over an area of 1.5 x 1 x 0.5 cm and in right utero-sacral ligament over an area of 1.5 x 1.5 x0.3 cms. So, it is quite clear that extravasation of blood took place in other places also. This aspect shows that the needle mark described as injury No.1 was in fact inflicted around the time of surgical procedure. A surgical wound would be cleaned up before suturing the wound and that might explain the absence of infiltration of blood around surgical wounds. In fact RW6 has explained that when infiltration happens due to fracture of major blood vessels, it would be localized and if due to hypoxia or negative pulmonary pressure infiltration happens that would be generalized. Secondly if as a matter of fact the spinal injury was inflicted for drawing CSF for diagnostic or therapeutic purposes there would be indication from the circumstances and medical records. The records already referred to, show that the patient was brought to the PoyanilHospitalwith symptoms of pulmonary oedema in a critical condition after the expiry of precious few hours. In fact before shifting the patient for ventilatory support to the PoyanillHospitalat least six expert doctors were summoned to the 1st opposite party hospital in an attempt to save the patient. So, there was very little chance of drawing cerebro spinal fluid for diagnostic or therapeutic purposes. The evidence of RW6 shows that only in certain specific illness medicines would be injected in to the cerebro spinal fluid. Scope of drawing CSF for diagnostic purposes is also very limited. Apparently no such circumstance existed in the case of the deceased. So the reasonable possibility was that the needle mark was for the purpose of administration of spinal anaesthesia.
26. In fact the report of the apex body constituted to enquire into the death of Mini Philips marked in evidence as Ext.X1 supports the above conclusion. The apex body assessed that the spinal puncture might have been done at DeenHospital, Punalur to give spinal anaesthesia and then converted into general anaesthesia due to some pre-operative complications. The learned counsel for opposite parties urged that merely because the records kept by the Poyanil Hospital and Ananthapuri Hospital do not show that spinal puncture was not made there, it is erroneous to conclude that the needle puncture was made at the hospital of the 2nd opposite party. But that the spinal puncture was made at the 1st opposite party hospital is the reasonable possibility under the circumstances explained earlier. The expert apex body also pointed out that spinal anaesthesia is not ideal for laparoscopic sterilization because of steep head down position and carbon dioxide insufflations during laparoscopic procedure. This conclusion is in a way supported by the evidence of RW6 also. It is also pertinent to notice that the injection mark was just to the left of mid line and 12 cms above the natal cleft. In a laparoscopic sterilization operation in order to achieve the desired result of anaesthesia, the drug must be administered at or around the point mentioned above and this has its own risk and that appears to have been the cause of all complications.
27. So analyzing the evidence on this aspect it appears that development of pulmonary oedema and ARDS as a result of aspiration of stomach contents into lungs can be fairly ruled out. It is also a reasonable conclusion that spinal anaesthesia was administered to the patient. It is admitted that general anaesthesia was administered to her. Simultaneous administration of spinal anaesthesia and general anaesthesia might not perse lead to any complication and there is no evidence to that effect. But complication can occur in the steep head low position. Anaesthetic drug administered into spinal canal would in that position move down to the brain stem which can instantaneously cause total spinal shut down. In that case all the functions in the body would be affected. It is pertinent to notice that the case of the opposite parties is that once surgery was completed and the patient was extubated her oxygen saturation started to come down gradually which could not be kept up with bag and mask. From the contentions and the evidence available it is quite clear that the condition of the patient rapidly deteriorated there after. This could have happened only because of total spinal shut down. Once that happened IV fluid was supplied to maintain the requisite blood pressure. That itself can lead to pulmonary oedema. It is pertinent to notice that the case of the opposite parties is that ARDS might have developed as a result of negative pulmonary pressure. It is also pertinent to notice that the patient was brought to PoyanilHospitalas well as Ananthapuri hospital with ionotropic support. As mentioned earlier hypoxia and ARDS as causes of death are only end results and the evidence as a whole shows that brain hypoxia and ARDS resulted due to the erroneous administration of spinal anaesthsia and when the patient was brought to steep head low position to facilitate laparoscopic surgery. Had general anaesthesia alone was administered such a complication would have never happened. This being the situation the fact that CSF fluid was not collected for analysis to show that anaesthetic drug was administered by spinal puncture makes no difference.
28. Coming to the other allegations on which deficiency is sought to be imputed on the opposite parties it is urged that pre-operative preparations were not properly done and in fact the patient was handled roughly while inside the operation room. In order to project the latter argument, the injury sustained at the neck of the patient is referred to. It appears that the patient was admitted in the hospital at 8.15 am. The 5th opposite party saw the patient at 11.40 am. The pre-operative preparations were apparently started thereafter. The operation was performed around 5.30 p.m. Opposite party No.3 was the anaesthesiologist and opposite party No.4 performed the laparoscopic sterilization surgery. We may at this stage refer to the conclusion of the apex body in Ext.X1 report that pre-operative assessment for selecting the patient for an elective surgical procedure was not done properly. The apex body found that the patient should have had a pre-operative evaluation of cardiac status especially being diabetic. Pre-operative work up including pre-anaesthesia work up was not done properly. There is no evidence to show that cardiac failure in the course of surgery was the cause of the complications. On the contrary the cardiac shock developed as a result of the other complications referred to. But it appears that the stomach of the patient was by and large empty and so she was properly instructed about the pre requisites of surgical procedure. It is true that the patient was hastily prepared for the surgery after she was examined by the 5th opposite party at 11.40 am. It also appears that in the event of a reasonably foreseeable complication, no facility was available in the hospital for meeting such eventuality. That is why once complications arose she could not be provided ventilatory support and for ventilatory support she had to be shifted to Poyanil hospital.
29. The complainants have also got a contention that opposite party No.3 was not qualified to be an Anaesthesiologist. Though a general contention is taken that opposite parties 4 and 5 were also not qualified it is quite clear that they had the requisite qualifications. Regarding opposite party No.3, admittedly, he has MBBS degree in Modern Medicine. The contention is that he does not hold either degree or diploma in anaesthesiology. In order to support this contention Exts. A6 and A7 are relied on. Ext.A6 is issued by the Travancore Cochin Medical Councils, Thiruvananthapuram. It is mentioned that the third opposite party is a holder of MBBS degree only as per the list maintained by Travancore Cochin Medical Councils, Thiruvananthapuram. The said information was collected under the Right to Information Act. As to the second query raised under the Right to Information Act, it is mentioned that as per minutes of the meeting of the disciplinary committee of Modern Medicine held on 30.6.07 an Anaesthesiologist is any person who is having basic qualification of MBBS and having diploma or degree in Anaesthesiology ie. MBBS + DA/MD/DPNB/MNAMS in anaesthesia. Ext.A7 is issued by the Medical Council of India in answer to an application under RTI Act 2005. It is mentioned that a graduate of MBBS is required to complete MD degree in the specialty of anaesthesia or diploma in the specialty of anaesthesia for being qualified as anaesthesiologist. On the contrary, the opposite parties relied on Exts.B1 to B5. Ext.B1 is a certificate issued from the MedicalCollege, Thiruvananthapuram signed by the Principal. Ext.B1 certifies that the third opposite party had been working as a Resident Senior House surgeon in the Department of Anaesthesiology from 31st October1979 for a period of one year. Ext.B2 is another certificate issued by the Professor of Anaesthesia, MedicalCollege, Thiruvananthapuram. It certifies that the third opposite party worked as a Senior House Surgeon from 31.10.1979 for a period of one year and during the period he worked in all the branches of anaesthesia and picked up Clinical Anaesthesia quite well. He has proved himself reliable and can manage cases independently and confidently. Ext.B3 is another certificate issued by the Associate Professor, Department of Anaesthesiology, Medical College, Thiruvananthapuram which certifies that the 3rd opposite party had worked in that department as Resident Senior House Surgeon from 31.10.1979 to 30.10.1980. During the period he had intensive training in all the routine and special techniques in Anaesthesiology. He had training in all the specialities including Thoracic Surgery, Neuro Surgery, Orthopaedics, Obstetrics and Gynaecology and Paediatrics. He had taken part in all the academic activities in the department and has a sound knowledge of the subject He used to take emergency duties and can manage any problem independently. He had also worked in the Intensive Care Unit in the Department. He was very popular among the patients and collegues and had a perfect temperament to work in a team. Ext.B5 is a certificate issued by the Superintendent of Government Hospital, Pulalur. It is mentioned that the 3rd opposite party had administered anaesthesia for cases posted for surgery from 2.8.05 to 11.2006. During that period he had handled all varieties of cases in General Surgery, Orthopaedics and Gynaec and obstetrics. Ext.B4 is the copy of the certificate of registration in Modern Medicine issued by the Travancore Cochin Medical Councils. It shows that he holds MBBS degree in modern medicine issued by the KeralaUniversity.
30. The opposite parties also relied on the letter dated 22.2.08 written by the Medical Council of India to the Registrar of Travancore Cochin Medical Councils, informing that apart from the recognized degree and diploma holders in anaesthesia only those doctors who have been given training by an order of Government in administering anaesthesia from time to time are eligible to administer anaesthesia. The opposite parties also relied on Anaesthesia at the District Hospital written by Michael B. Dobson Second Edition page 1 to point out that in small hospitals a specialist anesthetist will not be available, and anaesthesia will be the responsibility of a medical officer with one or two years of postgraduate training, who will need to provide anaesthesia not only for routine elective surgery but also for emergency surgery requiring more major procedures, when a life threatening condition prevents referral of the patient to a larger hospital. Together with these documents the circumstance that the 3rd opposite party was working as an anaesthesiologist for a pretty long time in various hospitals is relied on to contend that the third opposite party was qualified to administer anaesthesia. Ext.A18 (a) report furnished by the District Medical Officer of Health, Kollam also mentions the fact that the 3rd opposite party had produced the certificate for having undergone residency in senior House Surgency for one year at the Department of Anaesthesiology at MedicalCollege, Thiruvananthapuram. It is also mentioned that as per the Quality Assurance manual for sterilization published by the Govt. of India 2006 only anaesthesiologists are considered qualified to administer anaesthesia for electro laparoscopic surgeries. Ext.A10 is the copy of the Quality Assurance Manual for sterilization Service prescribed by the Ministry of Health and Family Welfare, Government of India in October 2006. Ext.A11 is the copy of standards for female and male sterilization services published by the Government of India The contention of the opposite parties is that Exts.A10 and A11 were issued after the alleged incident. But Exts.A10 and A11 themselves show that the said contention is not correct. It is mentioned that the 1st Edition of Exts.A10 and A11 were published in 1989. As regards Ext.A11 it is the 5th Edition and as regards Ext.A10 it is the 2nd Edition. So it cannot be contended that Exts.A10 and A11 were not in existence at the time of the incident. Thus it is in evidence that the 3rd opposite party holds MBBS degree in Modern medicine and had worked as a Resident Senior House Surgeon in the department of AnaesthesiologyMedical College, Thiruvananthapuram for one year. On that basis he might have been working as Anaesthesiologist but his competence remains doubtful.
31. The complainants have also got the contention that the 1st opposite party hospital did not have accreditation to perform laparoscopic sterilization surgery. Ext.A8 issued by the Under Secretary to the State Public Information Officer(PW5) under the RTI Act shows that either on the date of application on 6.9.07 or before DeenHospital, Punalur (1st opposite party) had no accreditation from the Ministry of Health and Welfare Government of India for performing laparoscopic sterilization surgery. Ext.A9 shows that the claim for compensation submitted by the 1st complainant was rejected on the ground that the 1st opposite party hospital had no accreditation to perform laparoscopic sterilization surgery. The 2nd opposite party as RW1 has admitted that as on 29.9.06 no permission or accreditation was given to his hospital for laparoscopic sterilization. But the contention is that accreditation is not mandatory to perform laparoscopic sterilization, but it remains as a fact that because the hospital lacked accreditation, the complainants lost the compensation usually allowed to the relatives of the patients who die during laparoscopic sterilization.
32. The complainants have also a contention that 1st opposite party hospital was not sufficiently equipped to perform laparoscopic surgeries. The opposite parties contended that opposite parties 3 and 4 are freelancing medical practitioners. Opposite party NO.4 is a qualified laparoscopic surgeon and he is having all equipments. Once laparoscopic surgery is to be performed he arrives in the hospital with all equipments and then the 1st opposite party hospital becomes fully equipped. While this argument can be accepted to a limited extent, the case of Mini Philips itself shows that in case of serious complication the hospital of the 1st opposite party lacked the facility to meet all the eventualities and the opposite parties went ahead with the operation at their own risk. Complainants have also a case that the guidelines prescribed in Ext.A11 were not followed in performing the surgery. As regards anaesthesia, it is mentioned at Page 7 of Ext.A11 that local anaesthesia is preferred choice for a tubectomy operation. General anaesthesia is to be given rarely. However in the case of a non co-operative patient, in case of excessive obesity and in case of history of allergy to local anaesthetic drugs general anaesthesia can be administered. As mentioned already the case of the complainants in this case is that both spinal anaesthesia and general anaesthesia were administered simultaneously which ultimately led to all the complications and this aspect is already discussed in detail.
33. The contention that the patient had the history of ectopic pregnancy has little relevance in this case. The complainants have also a case that when the relatives were let in after developing complications the eyes of the patient were seen covered with plaster. In this regard the opposite parties have contended that that was done to prevent injury to eye and it is a standard procedure. But it appears that it was a crude procedure adopted by the opposite parties. Lately eye pads are used to cover the eyes of the patient who is being subjected to surgery and the reason is different. But, it is an insignificant aspect. So also it may not be desirable to allow unlimited entry to the relatives of the patient while the patient is in the operation theatre. The complainants have relied on Asha Devi Vs. Sanjay Lal Das (DR) and Anr. 111 (2011) CPJ 73 (NC) decided by the National Consumer Dispute Redressal Commission. It was found there that due precautions were not taken while administering anaesthesia. The situation is slightly different in this case and are already referred to in detail. In BRS Heart Institute and Research Centre Vs. Kuljith Kaur III (2011) CPJ 78 (NC) decided by the National Commission, it was found that post operative investigation and management could have been better. Hence liability was fixed on the third opposite party there.
34. The cause of death of Mini Philips as a result of laparoscopic sterilization surgery is already analyzed in detail. It is found that in fact spinal anaesthesia as well as general anaesthesia were administered to the patient and administration of spinal anaesthesia and some error while handling the patient ultimately caused spinal shut down and as a consequence the other complications developed. It appears that the 3rd opposite party was not fully qualified to handle an unexpected development. The very fact that at least 3 anaesthesiologists had to be called in to contain the situation bears ample testimony to that fact. It also appears that the opposite parties failed to realize the gravity of the situation immediately. That was why there was delay in giving ventilatory support by shifting the patient to the nearby hospital having ventilatory support. Before shifting the patient from the first opposite party hospital nearly 4 hours elapsed and by the time the patient became critical beyond recovery. In fact RW4 could not say whether the patient had sustained brain death at the time when she was shifted the PoyanilHospital. Then the question suggests itself which of the opposite parties are liable. It appears that the 4th and 5th opposite parties are respectively qualified surgeon and gynaecologist. The 4th opposite party was also qualified in performing laparoscopic surgery. It appears that the 4th opposite party with the assistance of the 5th opposite party had completed laparoscopic surgery without any cause of complaint. The complication was by and large anaesthesia related. So the 3rd opposite party cannot escape the liability. Opposite parties 1 and 2 have the contention that opposite parties 3 and 4 are not their employees. But it is a fact that the surgery was performed at the 1st opposite party hospital managed by the 2nd opposite party as proprietor without full facility to handle emergent eventualities. It also appears that the 5th opposite party is the wife of the 2nd opposite party and they together are running the hospital. So it is obvious that opposite parties 3 and 4 associated with the hospital whenever their service was required. So opposite parties 1 and 2 cannot escape by contending that opposite parties 3 and 4 are only freelancing medical practitioners. Nor it can be contended that what happened was a medical accident. There is no element of unexpected event in the whole incident. It is true that the standard of care expected from the opposite parties is not that of the highest or the lowest but of reasonable standard of a medical expert. The circumstances as a whole show that service of an anesthesiologist of reasonable standard was not provided to the patient. It follows that opposite parties 1 to 3 are liable to compensate the complainants for the deficiency in service on their part.
35. POINT NO.2
Coming to the quantum of compensation payable to the complainants it appears that the deceased was employed as a cashier of Hoora Super Market, Manama Bahrain. PW1, the 1st complainant was the husband. He deposed that Mini Philips held computer diploma in software application. She was employed for a consolidated monthly salary of 150 BD equivalent to Indian Rs.18,000/-. The opposite parties contended that as per Ext.A1 passport Mini Philips was not authorized to take up foreign employment. Ext.A20 is the passport first issued to her. It appears that Mini Philips was abroad for quite a long time and it is most likely on employment as claimed by the complainants. But being a foreign private employment no security of job was attached to it. The relative cost of livelihood would also be high in a foreign country. So, the loss sustained by the complainants cannot be exactly quantified. Considering her qualifications, the relative salary that would be obtained in Indiawould be less. Along with this several other contingencies will have to be taken into account. She was aged 37 years at the time of death and complainants 2 and 3 are tender children. In fact it appears that they are the most likely sufferers. It has come out in evidence that within one year after the death of Mini Philips the first complainant got re-married. This may add only to the sufferings of the children. The circumstances as a whole show that the claim of Rs.99,40,000/- by the complainants is highly exaggerated. Considering the circumstances as a whole we feel that Rs.7 lakhs would be reasonable compensation for the complainants.
36. In the result, the complaint is allowed as follows:-
Opposite parties 1 to 3 are directed to pay jointly and severely compensation of Rs.7 lakhs (seven lakhs) to the complainants within 2 months from the date of receipt of copy of this order, failing which the amount would carry interest at the rate of 9% per annum. They shall also pay cost of Rs.10,000/- to the complainants. Opposite parties 4 and 5 are exonerated from the liability. It is made clear that the major share of compensation should go to minor complainants 2 and 3. The 1st complainant shall deposit Rs.3 lakhs each in the names of complainants 2 and 3 and expend the amount and interest only for their welfare such as education. In case, on attaining majority, complainants 2 and 3 approach the Commission the 1st complainant shall be bound to account the share of compensation of minors 2 and 3.