A RAVI vs USHA RANI

THE complainants wife Shanthi was admitted in the Subam Nursing Home of the 1st opposite party Dr. (Mrs.) Usha Rani on 12,8.1992 for delivery. On 13.8.1992 she gave birth to a child. According to the complainant, the 1st opposite party had been advising the complainants wife on several occasions to undergo family planning operation to which the complainant and his wife agreed. The 1st opposite party said that the family planning operation could not be done in that Nursing Home but had undertaken to arrange for the same in Anand Clinic of the 2nd opposite party Dr. (MrsJ) Niraimadi Diwakaran which was located near to the Subam Nursing Home. The complainants wife was discharged from Subam Nursing Home after he paid a sum of Rs. 1,500/ - to the 1st opposite party which amount was to cover the fees for delivery and advance for the family planning operation. The balance was to be paid after the operation. The complainants wife was admitted in Anand Clinic. There, the complainant paid a sum of Rs. 250/ - and the complainants wife was assigned a room. The complainants wife was in a very good health condition and she was not suffering from any ailment. The 1st, 2nd opposite parries and the 3rd opposite party Dr. (Mrs.) Adhilakshmi were inside the operation theatre during the operation, but there was no Anaesthetist in the operation theatre. The complainants wife was taken inside the theatre and 15 minutes after, the 1st opposite party opened the operation theatre doors and rushed to phone to her husband to ask him to bring Dr. Shanthinathan, an Anaesthetist. The 3rd opposite party Doctor followed by the 1st opposite party Doctor came out of the theatre and even without washing her hands she got into her car and left the clinic in a hurry. Within a few minutes after the departure of the 1st opposite party, the 1st opposite partys husband brought Dr. Shanthinathan to the theatre. Simultaneously the 2nd opposite party came out and asked the complainant to bring a car or a van immediately. Minutes after Dr. Shanthinathan entered the theatre, he came out. He recognised Shanthis father -in -law and signalled with his hands that all was over. Soon after that, the 1st and 2nd opposite parties came out of the theatre with the complainants wife in a stretcher and handed over the patient in the stretcher to the complainant. The 1st and 2nd opposite parties did not even whisper a word to anyone about the state of Shanthi when she was handed over. Under the impression that Shanthi was in a serious condition, the complainant took her in a van to Avvai Janaki Hospital where, even before she was taken in, the hospital Doctor came and on examination, pronounced her to be dead. The 1st and 2nd opposite parties, when they handed over Shanthi to the complainant, did not utter even a word as to what was the cause of the death of Shanthi. Later, the complainant came to know from the Hospital staff that Shanthi had been administered local anaesthesia and midway through the operation the effect of the anaesthesia had worn off and Shanthi had sat up and was screaming with pain; the Doctors had administered chloroform and Shanthi was immediately knocked out of consciousness; and it was only after that the 1st opposite party rushed to ring up Dr. Shanthinathan. It was only on 19.8.1992 the 2nd opposite party had reported the death to the Health Inspector concerned that the death was due to cardiac failure. The statement of the 2nd opposite party was totally false. The complainants wife died only due to the joint negligence of the opposite parties in the operation theatre. The complainant gave a notice to the opposite parties for payment of compensation, but in vain. On these allegations the complaint has been filed.

IN the written version filed by the 1st opposite party, it is contended that she never said that Shanthi should undergo family planning operation nor did she undertake to arrange for it in Anand Clinic. On 14.8.1992 the mother of Shanthi met this opposite party and told her that the family planning operation had been fixed at 8.30 a.m. on 15.8.1992 at Anand Clinic run by the 2nd opposite party and that operation would be done by a Senior Surgeon Dr. (Mrs.) Adhilakshmi the 3rd opposite party with Dr. Shanthinathan, Anaesthetist. She requested this opposite party to be present at the time of operation since her daughter had high confidence and regard to this opposite party. Since she was her patient for a long time and to give her mental satisfaction this opposite party agreed to be present. On the next day when she went to the operation theatre, the 2nd and 3rd opposite parties were present. The 3rd opposite party Dr. Adhilakshmi performed the operation under local anaesthesia. Then Dr. Adhilakshmi first took out one fallopian tube and after cutting it, made necessary knots and put it inside. While Dr. Adhilakshmi tried to take the other fallopian tube, the patient developed pain and hence Dr. Adhilakshmi stopped further progress and called for the Anaesthetist Dr. Shanthinathan. Within a few minutes Dr. Shanthinathan was brought. Only after analysing the condition of the patient, they opted for general anaesthesia. Dr. Shanthinathan administered eather and after verifying the condition asked the surgeon to proceed further with the operation. Dr. Adhilakshmi took the second fallopian tube, treated and closed the abdomen. Dr. Shanthinathan tried to arouse the patient, but since there was no proper response Dr. Shanthinathan took efforts for reviving consciousness of the patient. But suddenly Shanthis pulse got deteriorated and the blood pressure fell. Further effort was made by all the Doctors and they tried to resuscitate the patient. But unfortunately, in spite of best efforts and efficient treatment, the patient Shanthi collapsed. Dr. Shanthinathan declared that Shanthi died of cardiac arrest. Suppressing all these truth, the complainant has come forward with the distorted version. As such there was no deficiency in service on the part of the 1st opposite party. Hence the complaint is liable to be dismissed. The contention of the 2nd opposite party is that she, as the owner of the Clinic, rendered the necessary assistance to the Surgeon, the 3rd opposite party who did the operation. The 3rd opposite party, only after consulting the Anaesthetist Dr. Shanthinathan, fixed 15.8.1992 as the date for Shanthis family planning operation. The 3rd opposite party had done several family planning operations in the Clinic of the 2nd opposite party with Dr. Shanthinathan as Anaesthetist. (As to the manner of the operation and the cause of death of the complainants wife, this opposite party has stated in her written version as stated by the 1st opposite party). This opposite party contends that there was no negligence on the part of this opposite party at all.

THE 3rd opposite party would contend that on 15.8.1992 at about 10.00 a.m. she received a phone call from Anand Clinic requesting her to rush to the Clinic to get over a critical situation in a family planning operation. She rushed to the Clinic and reached there at 10.30 a.m. By that time, Dr. Shanthinathan had also arrived there. This opposite party examined the patient and found her condition to be already in a worst state. She expressed her inability to do anything at that stage and so she left the Clinic immediately. She has been unnecessarily implicated in the complaint. This opposite party denies that she performed the operation. This opposite party would submit that nobody from the complainants side approached her. She was in no way responsible for the death of Shanthi. The 1st and 2nd opposite parties are trying to shift their responsibilities on this opposite party. This opposite party has suitably answered the notice received from the complainants Advocate. Therefore the complaint is liable to be dismissed.

THE point that arises for consideration is whether there was deficiency in service on the part of the opposite parties and if so, what relief can be granted to the complainant. Point : It is not in dispute that family planning operation was done on the complainants wife Shanthi on 15.8.1992 morning. It is the complainants case that when Shanthi was taken to the Operation Theatre, she was hale and hearty without any complications whatsoever. But after the operation she was brought out dead and that should have been due to some mishap on account of negligence on the part of the opposite parties the 3 Doctors in performing the operation. The 1st opposite parry was a Doctor who owned Subam Nursing Home where Shanthi was used to be admitted for delivery cases earlier and it is according to the complainant the 1st opposite party was advising Shanthi to have family planning operation and to that Shanthi and the complainant acceded and after the last delivery on 13.8.1992 at Subam Nursing Home, Shanthi was admitted in Anandi Clinic owned by the 2nd opposite party Dr. (Mrs.) Niraimadi Diwakaran. According to the complainant the 3 Doctors did the operation but the opposite parties 1 and 2 Doctors would contend that they were not surgeons and hence they were not competent to do the operation and accordingly they did not perform the operation and it was the 3rd opposite party Doctor Mrs. A. Adhilakshmi, a surgeon who did the operation even though the opposite parties 1 and 2 were in the operation theatre assisting the 3rd opposite party Doctor. The 3rd opposite party Doctor however would contend that she did not do the operation. She further contends that on 15.8.1992 at 10 a.m. she received a phone call from Anandi Clinic requesting her to rush to the Clinic to get over a critical situation in a family planning operation case. This opposite party accordingly hurriedly proceeded and reached there at 10.30 a.m. There she found the condition of the patient to be very bad. She expressed her inability to do anything and she left the Clinic immediately. The 1st and 2nd opposite parties besides stating as mentioned above that the 3rd opposite party only did the operation, would also state that the 3rd opposite party Dr. Adhilakshmi proceeded with the operation under local anaesthesia administered by her; she made an abdominal incision of 2.5 cm.; then she took out one fallopian tube and after cutting it made necessary knots and put it inside; while she tried to take other fallopian tube, the patient Mrs. Shanthi developed pain and hence Dr. Adhilakshmi stopped further progress and called for the anaesthetist Dr. Shanthinathan and he came soon after and himself and Dr. Adhilakshmi after analysing the condition of the patient opted for general anaesthesia; then Dr. Shanthinathan administered eather at about 9.15 a.m. and after verifying the conditions asked the surgeon to proceed further with the operation; Dr. Adhilakshmi took the second fallopian tube, treated and closed the abdomen at about 9.30 a.m.; after the surgeon closed the abdomen, she tried to arouse the patient; as the response was not proper Dr. Shanthinathan administered medicines and made efforts for reviving the patient from the anaesthesia effect; but suddenly Shanthis pulse rate deteriorated and blood pressure also fell. Immediately further efforts were made to stabilise Shanthi by all the Doctors. At about 11.15 a.m. when Shanthi started sinking, all the four Doctors did everything to resuscitate the patient. But unfortunately in spite of best efforts and efficient treatment the patient died of cardiac arrest. From this statement of opposite parties 1 & 2 Doctors it would appear that during the course of the operation, the patient developed pain. This would indicate that the local anaesthesia given had not the necessary effect. But the Doctors 1 & 2 do not say so. They would simply say that the patient developed pain. What is curious is that the 3rd opposite party Doctor, who according to the opposite parties 1 and 2 did the operation, would deny that she had anything to do with the operation. She would contend that when she went to the Operation Theatre the patient was in a very bad condition and therefore she could not do anything and hence she returned. If really what the 3rd opposite party states is true, it is most incredible that the opposite parties 1 and 2 would categorically say that only the 3rd opposite party performed the operation. In her evidence the 3rd opposite party as RW 3 has stated that she did not ask the opposite parties 1 & 2 why they sent for her. She further states that she did not even ask the opposite parties 1 & 2 as to what was the treatment given by them to the patient. From this it is clear that she is not coming out with the truth. Ex. B3 is the case sheet which according to the 2nd opposite party was maintained by her husband who is also a Doctor. Therein it is mentioned as follows: ''I was present inside the operation theatre during the operation. The operation was performed by Dr. Adhilakshmi. In the middle of the operation, the surgeon called for the anaesthetist Dr. Shanthinathan. The patient died at about 11.30 a.m.''

We do not find any reason as to why this document should not be relied upon. Hence we are of the view that it is too much for the 3rd opposite party Doctor to say that she did not do any operation and she just saw the condition of the patient to be bad and returned. Considering all these we unhesitatingly hold that it was the 3rd opposite party Doctor who did the operation.

IT is not disputed that when the patient was taken to the operation theatre she was in good condition. But she was brought out from the operation theatre as a dead person. The 3rd opposite party Doctor who did the operation would simply deny that she did the operation. This shows that she is not prepared to tell what really has happened. If there was no fault on her part she would have narrated the details of the operation and should have also stated as to how the patient died. Apparently she is trying to hide something which would be against her. This means that she should have been careless and negligent in doing the operation and that should have been the cause for the death of the patient.

THERE is no clear evidence, not even the pleadings, as to who whether it was the complainant or the 1st opposite party or the 2nd opposite party engaged the 3rd opposite party Doctor for doing the operation. But the facts remain that the 3rd opposite party a surgeon was engaged to do the operation and she did the operation and due to negligence on her part the patient died. Therefore only she can be held to be liable for the loss caused to the complainant in the death of his wife. Of course there is no evidence that the 3rd opposite party had been paid any fee but it is not her case that she went to perform the operation free of cost. The consideration for the services could be paid before the performance of the service or after the performance of the service. Even if the consideration is promised that would be enough to make the complainant a consumer who can maintain an action under the Consumer Protection Act. Therefore there is no doubt that the complainant is a consumer vis -a -vis the 3rd opposite party. In these circumstances, it can be safely held that the 3rd opposite party is liable to pay compensation to the complainant. When the complaint was filed, the complainant was just 35 years of age. He was rather young. One can understand what agony he has suffered and would continue to suffer throughout his life. It is also in evidence that at the time of the complaint he had two children of 5 years and another of 8 months of age. Not only he has lost the consortium of his wife but also he has lost the mother of his children. The complainant has prayed for a compensation of Rs. 2,50,000/ - for loss of consortium and Rs. 1,50,000/ - for mental agony and hardship. This claim has been made as stated above in the year 1993. As on today i.e., after 5 years the claim would be quite reasonable. Therefore that amount can be awarded as compensation. Regarding the claim of Rs. 2,000/ - as amount paid to the opposite parties, it is not clear as to whom this amount was paid. Certainly, this amount has not been paid to the 3rd opposite party. So as regards this amount there cannot be any award.

IN the result, we pass an order directing the 3rd opposite party to pay to the complainant a sum of Rs. 4,00,000/ - with interest thereon at 18% per annum till realisation, We also order a payment of Rs. 2,000/ - as cost of this proceeding. We further direct that these two amounts shall be paid within 3 months from today. Complaint disposed of.