First Appeal No. 61 of 2007, pronounced on 4 th March, 2013 by the National Consumer Disputes Redressal Commission, New Delhi.
Facts: In his complaint to the State Commission, Appellant had contended that his late wife Mrs. Vijayalakshmi Rajavadivelu alias Vijaya, who was otherwise keeping good health, had been admitted to Respondent No.1/Hospital on 2-1-1998 for undergoing Hysterectomy, which was done on 3-1-1998 by Respondent No.2 under general anaesthesia administered by Respondent No.3. She was transfused one bottle of blood during the surgery, was thereafter informed that the surgery was successful and the Patient would recover within one hour. However, at 9.45 a.m. Appellant was told by the Respondents that the Patient had developed breathing problems and would need to be shifted to the nearby Chennai Kaliappa Hospital for ventilator support, an ambulance was sent from that Hospital and the process of shifting the Patient to the ambulance took about 10 minutes, no doctor accompanied the Patient in the ambulance and only a nurse was present. During the transit period in the ambulance Patient was again deprived of oxygen since the oxygen was not pumped to the Patient through an ambu bag, which is required for patients with breathing problems and this delay proved to be fatal because as stated in the admission sheet of Chennai Kaliappa Hospital it was found that the Patient was not conscious and the pulse rate and heart sounds were not heard. She was shifted to the ICCU and connected to the ventilator with a diagnosis of Hypoxic Encephalopathy caused due to lack of oxygen to the brain. Tracheotomy was done on
4-1-1998 and thereafter Patient was shifted to Ramachandran Medical College Hospital which had better medical facilities, like MRIs etc. However, in spite of all efforts, Patient passed away on
3-4-1998. It was contended that the Patient, who was healthy and as per the pre-operative tests like ECG and blood tests all her vital parameters were absolutely normal, expired because of the medical negligence and deficiency in service on the part of Respondents. After the surgery was over when there was breathing problem, life-saving equipments like a ventilator were not available in the Respondent No.1/Hospital whereas if Patient had been put on a ventilator and sufficient oxygen to the brain had been ensured she would not have suffered Hypoxic Encephalopathy, which caused her death. The time taken to shift the Patient to the Chennai Kaliappa Hospital took about an hour, which under the circumstances, as stated earlier, proved fatal. Appellant, therefore, filed a complaint before the State Commission on grounds of medical negligence and deficiency in service against the Respondents and claimed ` 16.50 lakhs on account of medical expenditure and ` 3 lakhs as damages.
Order of State Commission : ". There is nothing on record to show that the opposite parties had committed anything wrong in the performance of the surgery as well as the administration of the anaesthesia to the patient. Opposite party-3 as R.W.II has categorically deposed that the patient regained consciousness after surgery and that there was no episode of Hypoxia during surgery and there was no reintubation after surgery. Oxygen cylinder was available in the ambulance which carried the patient to Chennai Kaliappa Hospital. A well trained nurse had accompanied the patient. No medical code expects that the patient must be accompanied by the surgeon and anaesthetist when she is being shifted to another hospital. Even opposite parties-2 and 3 went to the said hospital as visitors subsequently when the patient was in I.C.U. The patient was conscious, breathing properly and her pulse rate was normal at the time she was shifted to Chennai Kaliappa Hospital. The first charge relating to negligence falls to the ground. As regards the allegation regarding the non-pre- assessment tests before administering anaesthesia, the witness examined by the complainant viz., P.W.II expert has clearly admitted that he had no occasion to peruse the discharge summary as well as pre-assessment chart. In the evidence of opposite parties 2 and 3, it was categorically stated that all the documents were made available by opposite party-1 hospital. Anaesthetist had exercised due care and caution in administering anaesthesia. There are no allegations with regard to the administration of the anaesthesia by the complainants. It is not the case of the complainants that the death occurred due to administration of anaesthesia. The patient died only after a period of three months. The expert P.W.II has not been able to give the cause for the death. His evidence is an interested one. He has deliberately made an attempt to suppress that the death was due to reduction of oxygen carrying capacity of blood as a result of decrease in total haemoglobin. There are various factors which make the reduction of oxygen carrying capacity. Long term of haemo dialysis might also cause the reduction of oxygen carrying capacity in the blood. In any event the first complainant had also admitted in his evidence that he had already got his claim from his employer by submitting a claim petition. He had not mentioned about it in his complaint, the complaint is not a bonafide one. The opposite party-3 is a Senior Anaesthetist and having rich experience for several decades. There is no legal evidence to prove the negligence on the part of the opposite parties."
Held : It is an admitted fact and not disputed by the Respondents that soon after the surgery the Patient developed breathing problems, that there was no ventilator facility in the Respondent No.1/Hospital, which necessitated Patient being shifted to a nearby Hospital having this facility. Appellant has contended that had a ventilator been available and the required oxygen administered to the Patient by Respondents, she would not have suffered from Hypoxic Encephalopathy which led to her death some weeks later. We find force in this contention of the Appellant. It is medically well established that Hypoxic Encephalopathy occurs when the brain does not receive enough supply of oxygen which can be fatal because as little as within five minutes of oxygen deprivation, brain cells can begin dying. In the instant case, Respondents have themselves admitted that they took 10 to 15 minutes to transfer the Patient to the ambulance and thereafter some more time to the Hospital, which was undoubtedly fatal in this case. The Respondents should not have conducted a major surgery like Hysterectomy under general anaesthesia without ensuring that such life saving facilities were available in their Hospital. Further, they should have ensured that oxygen through the ambu bag was available in the ambulance because a Patient with breathing problems cannot breathe the required oxygen through the oxygen tube/catheter attached to the oxygen cylinder. The medical history of the Patient recorded at the time of her admission confirms that at 1100 hours on
3-1-1998 Hypoxic Encephalopathy had already occurred because as per the admission sheet Patient was "not conscious, not responding to painful stimuli, very pale, no breathing, pulse not felt and heart sounds not heard". Therefore, the Respondents' contention that the Patient only had some breathing problems and was otherwise stable is not borne out by the documentary evidence on record. It also does not help the Respondents' case that there was no problem with the Hysterectomy per se because soon after the surgery, post-operative complications developed and due to lack of a ventilator in the Respondent No.1/Hospital the Patient developed a fatal complication. Medical negligence and deficiency in service is established because the Respondents conducted a major surgery under general anaesthesia without taking due care and caution to ensure that critical life-saving equipments like the ventilator were available in case of post-operative complications, which can occur following major surgery.
Appellant has sought a total compensation of ` 19.50 lakhs, which includes medical expenditure of ` 16.50 lakhs. The documents filed are in the form of demand list which indicate that the total demand from Ramachandran Medical College Hospital was about ` 4 lakhs and from Chennai Kaliappa Hospital it was ` 1,43,000. A compensation of ` 3 lakhs would be reasonable. Respondents are jointly and severally directed to pay the Appellant ` 3 lakhs within a period of three months, failing which it will carry interest @ 9% per annum for the period of default. The present appeal is accordingly allowed on the above terms.