IMPORTANT POINT
Medical negligence must be proved by cogent evidence.

1. This is a case of medical negligence. It is well known that assertions are to be bolstered by solid and unflappable evidence. The complainant has to carry the ball in proving that the allegations are correct. The Commission’s duty is not to hit the high spots but to delve deep and ferret out the truth. It has to be empirical and practical in confronting reality.

2. There can be no conflictions on the fact that Mrs. Fortuna Nelson W/o Shri K. David aged about 63 years, since deceased, had diabetes, hyper tension, cardiac problem and also was on hemo-dialysis. She was admitted in Quality Care India Limited, Care Hospital, opposite party No. 1 on 24/25th April, 2005 with symptoms of low grade fever, giddiness and high B.P. The complainant, patient’s husband, paid a sum of Rs.1,20,000/-. She was admitted to Medical Intensive Care on 27.4.2005. She was in a state of breathlessness and was again shifted to ICCI and was put on ventilator. She also underwent dialysis everyday and on 1.5.2005, she was shifted from ICCI to room No. 603.

3. During the course of her treatment, on 5.5.2005 at about 1.30 a.m., she showed symptoms of hypotension and low grade fever. The complainant immediately contacted the duty nurse to check the temperature and sugar levels and also to inform the DMO and at about 3.30 a.m. on 5.5.2005, the patient had developed severe breathlessness. It is alleged that the nurse did not inform the attending cardiologist, Dr. Narasimham, but simply checked the B.P., gave B.P. medicine at about 5.00 a.m. as per the case sheet. The complainant tried to contact Dr. Narasimham, but he could not do so and at about 6.00 a.m. duty nurse was still searching for Oxygen cylinder and its mask. It is alleged that due to lack of adequate oxygen at the right time, the condition of the patient deteriorated and she was not shifted to ICCU immediately because of lack of vacant bed; consequently, the patient went into Coma. The patient remained in Coma from 5.5.2005 to 24-25.5.2005 and subsequently, she passed away.

4. The District Forum allowed the complaint and passed the following order:

“In the result, the complaint is allowed by directing the opposite parties to pay compensation of Rs.1,00,000/- with interest at 12% p.a. from 25.5.2005 along with costs of Rs.2,000/- within one month from the date of receipt of copy of this order.”

5. Aggrieved by that order, the opposite parties filed an appeal before the State Commission. The State Commission accepted the appeal and dismissed the complaint.

6. I have heard the learned counsel for the petitioner. He invited my attention to the “progress notes” placed on record. He contended that the trouble started on 5.5.2005. He contended that due to non-availability of oxygen, the petitioner went into Coma. He contended that he has filed a complaint and has made certain allegations against the nurse but the nurse was not examined by the OP. It was argued that no affidavit of nurse saw the light of the day. He also drew my attention towards the literature by European Society of Cardiology i.e. European Heart Journal (2012) 33, 2576, which is reproduced as follows:

“3.2 Relief of pain, breathlessness and anxiety.

Relief of pain is of paramount importance, not only for humane reasons but because the pain is associated with sympathetic activation that causes vasoconstriction and increases the workload of the heart. Titrated i.v. opioids (e.g. morphine) are the analgesics most commonly used in this context (table 6). Intramuscular injections should be avoided. Repeated doses may be necessary. Side-effects include nausea and vomiting, hypotension with bradycardia, and respiratory depression. Anti-emetics may be administered concurrently with opioids to minimize nausea. The hypotension and bradycardia will usually respond to atropine and respiratory depression to naloxone (0.1-0.2 mg. i.v. every 15 min when indicated), which should always be available.

Oxygen (by mask or nasal prongs) should be adm