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2007 (3) CPR 176 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
K.S. Gupta, Presiding Member and Dr. P.D. Shenoy, Member
Dr. Sathy M. Pillai & Anr.—Appellants
versus
S. Sharma & Ors.—Respondents
First Appeal No. 174 of 2002 and F.A. No. 441 of 2002
Decided on 10-8-2007
For the Appellant in FA No. 174 of 2001:Shri M.S. Ganesh, Sr. Advocate; Shri B.V. Deepak, Shri TVS Raghavendra, Advocates.
For the Appellant in FA No. 441 of 2002:Mrs. Lakshmi Jayashanker, Advocate.
For the Respondent in FA No. 174 of 2001:Mrs. Lakshmi Jayashanker, Advocate.
For the Respondent in FA No. 441 of 2002:Shri M.S. Ganesh, Sr. Advocate; Shri B.V. Deepak, Shri TVS Raghavendra, Advocates.
IMPORTANT POINT
Appeal against finding of medical negligence has no merit in the light of well reasoned order of State Commission but appeal against enhancement of compensation is partly allowed in the facts of the case.
Headnote:(i) Consumer Protection Act, 1986—Sections 21(a)(ii) read with Section 2(1)(g)—Appeal against finding of medical negligence of State Commission by doctors—Deceased was a young pregnant lady of 25 years—She had one miscarriage, case for cervical encirclage operation to retain the pregnancy and prevent miscarriage—This simple operation resulted in death within 24 hours of the operation—Doctors unable to give proper explanation of untimely death—Post-mortem report showing death due to shock following spinal anaesthesia—Doctors saying only giving of local anaesthesia, and spinal anesthesia was only attempted, not given—No informed consent on risk of anesthesia (Para 66)—Use of wrong course of anaesthesia writ a large—Doubt on skill of anaesthesist—Records appeared to be tempered—Evidence of relatives, who had gone to see the patient after the surgery proving negligence in operation and in post operative care—State Commission whether rightly returned the finding of negligence? (Yes)—Result—Doctors’ appeal dismissed (1998) 4 SCC 39 relied on principle of res ipsa loquitur applied.
Held: Having perused order of the State Commission and records in this case and having heard the learned counsel for the parties at length, we are not persuaded to interfere with the detailed and well reasoned order of the State Commission so far it pertains to medical negligence. Hence, the appeal filed by the doctors in first appeal No. 174/2001 is dismissed. (Para 50)
(ii) Consumer Protection Act, 1986—Sections 21(a)(ii) read with 14(1)(d)—Appeal for enhancement of compensation—Medical negligence in simple operation—Resulting death of young lady of 25—Her husband and mother claiming Rs. 15 lacs—State Commission granted Rs. 3 lacs with interest @ 12% p.a.—Whether be increased? (Yes)—Rs. 6 lacs given but interest reduced to 10% p.a.—Appeal partly allowed accordingly.
Held: Smt. Sunita (sic) Sh. S. Sharma and Smt. Rajamma have filed an appeal (FA No. 441 of 2002) against the State Commission’s order for enhancement of compensation. The compensation awarded in this case is only Rs 3,00,000. In their complaint they have asked for Rs. 15,00,000. There is a loss of life of Chandrakala at the age of 21 and also life of unborn baby in her womb. The complainant is the husband of the deceased and a post graduate. The deceased Chandrakala would have lived her life 70 years compared to life span of her parents. The other complainant is mother of the deceased, who has lost her loving daughter who would have taken care of her at the old age. Considering all these facts we direct that compensation should be enhanced to Rs. 6,00,000 with 10% interest from three months of the order of the State Commission till the date of payment. The complainants also are entitled to costs which we fix at Rs. 50,000. Appeal is disposed off in above terms. (Para 51)
Result: Appeal of doctors dismissed. Appeal of complainants allowed for enhancement of compensation accordingly.
P.D. Shenoy, Member —The issue involved in this case falls in a narrow matrix. An 25 years young lady who went to Samath Hospital for encirclement of the cervix by making sutures at the mouth of uterus to retain the pregnancy and prevent miscarriage died in the same hospital within 24 hours of the procedure. Is it due to medical negligence?
2. A detailed analysis of the case gives the answer.
The case of the complainant in brief:
3. Mrs. Chandrakala, aged 25 years, wife of the first complainant and the daughter of the second complainant approached Dr. Sathy M. Pillai at Samath Hospital, Attingal, Thiruvananthapuram District to protect her pregnancy and on her advice was admitted to the hospital on 24.5.96 on payment of Rs. 50,000 as fees. Chandrakala was married on 14.4.1993 and had a miscarriage in December 1993. Dr. Sathy M. Pillai the first Opposite Party (hereinafter to be referred to as O.P.1) advised sutures to be made at the mouth of the uterus to retain the pregnancy and prevent miscarriage. At 6 a.m. on 23.5.1996 she walked into the operation theatre. The complainants and relatives were waiting outside the operation theatre and about 6 p.m. second complainant Dr. Narayanan was allowed to see Chandrakala who complained that she could not bear the pain due to the sutures. At 10 p.m. the complainants were informed that Chandrakala vomited and wanted clothings and, so 2 nighties were given by them. Second complainant was declined permission to see Chandrakala. At midnight when the complainants heard loud cries of Chandrakala, they agitated and wanted to see her. The second complainant was permitted to do so, who saw her lying nude pressed to the floor by the first opposite party and three staff of the hospital. Dr. Ajay Kumar, relative of the first complainant who was brought to the hospital was not permitted to see her stating that she was mentally upset. RW6, the Psychiatrist was brought to the hospital who found Chandrakala was under sedation. Later on they were informed that she has expired.
4. Dr. K. Sreekumari conducted the post-mortem in the medical college hospital, Thiruvanthapuram and opined that the death was due to shock following spinal anaesthesia. The patient was 4 months’ pregnant at the time of her death and had to undergo pain, suffering, anxiety and mental agony. Opposite parties never exercised proper care as expected of them. Second opposite party Dr. K.G. Madhavan Pillai, a skin specialist administered anaesthesia though he was not qualified to do so. She was also given overdose of sedation in addition to spinal anaesthesia. Complainants stated that they have spent Rs. 1,00,000 for the treatment of Chandrakala. A criminal case was registered by the first complainant in which investigation is in progress. First complainant who was making all arrangements to take her and her child to the gulf countries has lost her company and care. Complainant sought directions to the opposite parties to pay Rs. 15,00,000 as compensation.
Case of the opposite parties :
5. The first opposite party contended that Dr. Sathy M. Pillai is the Proprietor of Samath hospital and the second opposite party is on leave and 3 & 4 opposite parties are the employees of the hospital. It is a 25 bedded hospital having modern facilities. First O.P. is a qualified Gynaecologist. Chandrakala has been visiting the hospital regularly. The patient and her relatives were at all times informed of the possible risks from surgery, anaesthesia etc. and ‘informed consent’ was obtained on eight different occasions. The patient was physically fit for surgery. On 23.5.96 she was taken to the pre-operation room at 8 a.m., as 10 cases were posted for surgery on that day, she could be operated upon only at 5.30 p.m. and brought to the post-operative room at 6 p.m. The near relatives of the patient were permitted to see her at 6 p.m. She was fed at 8.30 p.m. The allegations that she was nude etc., were denied. She woke up at 10 p.m. and vomite
