2010(2) CPR 92 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.C, Jain, Presiding Member and Dr. P.D. Shenoy, Member
Shri Joginder Singh and Others —Complainants
versus
Dr. Rajeev Kumar Majumdar and Others —Respondents
Original Petition No. 289 of 1997
Decided on 13.8.2009

Headnote:(i) Consumer Protection Act, 1986—Section 2(1)(g) —Deficiency in service—Medical negligence—Patient Conscious and in a fit state to give consent or otherwise—Consent obtained from her husband and from the patient—Cannot be construed as a valid and informed consent—Amounts to deficiency in service on part of the treating doctors and the hospital concerned. (Para 71)

       (ii) Consumer Protection Act, 1986—Section 2(1)(g) —Deficient service—Medical negligence—Surgical operation to remove stone from kidney—First operation performed on 9.12.1986 on left kidney—Second operation to remove stone from right kidney on 16.12.96—Should not have been taken in hurry as there was no imminent threat to life of patient—Doctors failed the celebrated Bolam Test and were negligent in the performance of their duties. (Para 82)

       (iii) Consumer Protection Act, 1986—Section 2(1)(g) —Deficient service—Medical negligence—Patient found to have poor tolerance of anaesthesia—Anaesthesiologist should have insisted hospital authorities to buy an automatic ventilator and advised recruitment of trained Technician/nurse to operate Boyle’s apparatus—No evidence of doing this—Specialist required to know latest technics for management of patient else could be considered to be negligent in following his profession. (Paras 84, 85)

       (iv) Consumer Protection Act, 1986—Section 2(1)(g) —Deficient service—Medical negligence—Patient went into coma after administering anaesthesia—Neuro Surgeon not called to examine and treat the patient—Non-association of Neuro-surgeon amount to medical negligence. (Paras 86, 87)

       (v) Consumer Protection Act, 1986—Section 2(1)(g) —Deficiency in service—Medical negligence—Patient having poor tolerance to anaesthesia—Subjected to second surgery by general anaesthesia before fully recovering after first surgery—A Cardiologist should have been asked to be present as a stand by before start of the critical surgery—Patient suffered cardio respiratory arrest—Cardiologist did not reach in time. (Paras 88 to 90)

       (vi) Consumer Protection Act, 1986—Section 2(1)(g) —Deficiency in service—Medical negligence—Cardio arrest of patient in operation theatre—None amongst the nurses and Technicians did take any measure to revive the heart except operating Boyles Machine manually—Being a case of emergency doctor was allowed to change clothes and come to operation theatre—Doctor on duty did not take any action to serve the heart of the patient. (Para 93)

       (vii) Consumer Protection Act, 1986—Section 2(1)(g) —Deficiency in service—Medical negligence—Critical operation of patient involving high risk surgery—Hospital not equipped with necessary medical equipments such as automatic respirator, defibrillators complete pathology lab—This amounted to medical negligence. (Para 95)

       (viii) Consumer Protection Act, 1986—Section 2(1)(g) —Deficiency in service—Medical negligence—Cardiac arrest of patient in operation theatre—Relatives not given proper information and briefing till she died—It should have been done. (Para 96)

       (ix) Consumer Protection Act, 1986—Section 2(1)(g) —Deficiency in service—Medical negligence—Claim by anaesthesiologist that he himself operated the Boyles machine continuously for more than 9 hours by both hands to pump oxygen—Not appearing to be humanly possible—Could have asked for services of another anaesthesiologist. (Para 101)

       (x) Legal Maxim— Res ipsa loquitor—Means facts speak for themselves—Effect of res ipsa loquitor is to reverse the burden of proof. (Paras 102, 103)

       (xi) Consumer Protection Act, 1986—Section 2(1)(g) —Deficiency in service—Medical negligence—Death of patient in operation theatre on account of medical negligence—Compensation—Complainant No.1 husband of the deceased and complainants Nos. 2 and 3 her sons aged 13 and 7 years—Deceased a home maker managing household —Her age 35 years at the time of death—Her income cannot be less than 3,000/- per month—Compensation awarded Rs. 5 lakhs in addition to Rs. 1 lakh for loss of love and affection to husband and Rs. 5 lakh each to his sons and

       Rs. 25,000/- as miscellaneous expenses—Interest allowed @ 9% p.a.—All respondents liable jointly and severally. (Paras 110 to 117)