Revision Petition No. 3330 of 2008 decided by the National Consumer Disputes Redressal Commission, New Delhi on
Husband of the complainant aged about 40 year met with an accident while going on a motorcycle as a pillion rider, sustained some inner injuries on lower portion of his right leg, was taken to the clinic of the petitioner, X-ray was
done, and the petitioner diagnosed fracture in the lower side of his right leg. Operation was performed at about 5.30 p.m. on 9-10-1998 itself. After half an hour the petitioner came out of the operation theatre and told the complainant and others that he had performed the operation and the petitioner would regain consciousness after about half an hour. Patient was shifted to a room in the petitioner’s nursing home but it was noticed that he was unconscious and in quite an abnormal condition. Even after lapse of more than half an hour’s time, the patient did not regain consciousness and he was not at all normal. The attendants learnt from the compounder that high dose of anaesthesia appeared to have been administered to the patient at the time of operation and hence they rushed to the petitioner who came and examined the patient and told the complainant that the patient required oxygen and asked them to take him to Patna. The father of the patient got ready to hav an ambulance to take his son to Patna but just about then at about 8.30 p.m., the patient died.
Observations: It is not under dispute that the deceased husband of the complainant was
in good and sound health before he was taken to the operation theatre except injury which he had suffered on account of the accident. No doubt, the petitioner is an orthopaedic surgeon with long practice in his field to his credit, that the petitioner performed the operation upon the deceased person under general anaesthesia and he was removed from the operation theatre and shifted to the room No.6 in the state of unconsciousness although the petitioner told that he would regain consciousness within half an hour, that the petitioner himself administered ether as Anaesthetician for
making the patient unconscious. The fora below through their concurrent finding have found this action on the part of the petitioner who is simply an orthopaedic surgeon as an act of negligence keeping in view the testimony of the witnesses to the effect that the deceased persondied without regaining consciousness. In the circumstances, there was high degree of probability that the petitioner administered excess dose of ether as means of anaesthesia which caused various complications damaging certain organs of the body of the deceased.
Findings of The State Commission Relied Upon: “The respondent in her complaint contended that the deceased was having low blood pressure just prior to his undergoing operation though it was alright during the day time and the appellant doctor underestimated the complication that might arise from the operation while the patient was running low blood pressure and he ignoring all this performed operation for the sake of money. The appellant did not appear to have specifically denied the factum of low blood pressure of the deceased in his written statement. It was to be kept in view that the deceased was in quite good and sound health before he was taken to the Operation Theatre and the condition got deteriorated after the appellant administered medicine, anaesthesia and operated upon. There was ample cogent and reliable evidence to establish that the appellant performed the operation upon the deceased under general anaesthesia and he was removed from the Operation Theatre and shifted to room No.6 in the state of unconsciousness and the doctor told the respondent and her father-in-law that he would regain consciousness within half an hour. It was also the
admitted position that the appellant, an Orthopaedic surgeon himself, administered ether as Anaesthestician for making the patient unconscious. He claimed to have acquired vast experience with long outstanding practice and he required no service of
Anaesthestician. It also stood well proved that the deceased never regained consciousness and he died in the state of unconsciousness just 2 ½ -3 hours after the operation. Thecomplainant-respondent and herwitnesses asserted that the deceased was given excess quantity of ether as means of anaesthesia in consequence of which he died without ever regaining consciousness. Howsoever, well reputed and experienced Orthopaedic surgeon the appellant might be he could not be accepted to be an Anaesthestician and an expert to administer anaesthesia to a patient to put him/her in unconsciousness for performance of surgery on such patient. There was high degree of probability that the appellant (Orthopaedician) administered excess dose of ether as a means of anaesthesia which caused various complications and also damaged certain organs of the body of the deceased. Oral evidence adduced on behalf of the doctorappellant would not render him expert in the field ofadministration of anaesthesia. His act of assuming the role of an Anaesthestician and administering anaesthesia to the deceased could not be approved.”
Defence: The contention of the petitioner was that there was no post-mortem and hence the cause of death could not be regarded as excess dose of anaesthesia and that there was no expert opinion taken in the matter at any stage. Reliance was placed on
“Essentials of Medical Pharmacologies” by K.D. Tripathi that Ether (Diethyl ether) used as anaesthesia by open drop was relatively safe even in inexperienced hands, besides
copy of Medical Council of India’s Regulation on Graduate Medical Education to show that he had adequate training in administering anaesthesia right at MBBS stage besides his long experience in administering anaesthesia as orthopaedic surgeon.
On Burden of Proof: The respondent submitted that reference to the extracts from the book of K.D. Tripathi regarding ether used as anaesthesia by open drop was misleading because the reference in the book is in respectof its use by an Anaesthestician and not by a general orthopaedician. This was a case where negligence on the part of the petitioner is writ large since the facts and circumstances of the case clearly established, based on the celebrated principle of Res Ipsa Loquitor, that the anaesthesia was the cause of death of the husband of the complainant who was otherwise in sound health except the injury for which he was operated by the petitioner.
Case Law : V. Kishan Rao v. Nikhil Super Speciality Hospital and Anr, [(2010) 5 SCC 513] where the earlier ratio laid down in the case of Martin F. D’Souza v. Mohd. Ishfaq, [(2009) 3 SCC 1] has been distinguished and it has been held that “in a case where negligence is evident, the principle of res ipsa loquitor operates and the complainant does not have to prove anything as the thing(s) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.”
Held: Taking into consideration the undisputed facts and circumstances of this case and applying the ratio laid down by their Lordships of the Supreme Court in the case of Nikhil Super Speciality Hospital, we do not find any irregularity or legal infirmity or jurisdictional error in the concurrent finding returned by the fora below in favour of the respondent. Consequently, we do not see any reason to interfere with the impugned order and the same is confirmed herewith. The revision petition stands dismissed accordingly with the parties bearing their own costs.