Abdul Rahim vs KANNAKI THIRUVALLUVAN

-THE Complainant, the husband of the deceased Nilavarnisha filed the complaint for directing the opposite parties to pay Rs. 5,000 the amount spent for the medical treatment and compensation of Rs. 15,00,000.

THE case of the complainant is as follows: the wife of the complainant, who was aged 44 years was employed at Abudabi as a helper on a monthly salary of Rs. 30,000. When she came to India on 22. 6. 1998, she got pain in her stomach. Therefore, she approached St. Rock''s Dispensary, Karaikal in the month of August, 1998 for treatment i. e. 5th opposite party''s dispensary. Opposite party Nos. 1 and 2 checked the complainant''s wife and advised her to do an operation. The complainant''s wife agreed to do the operation and paid all the amount for the expenses and admitted in the said dispensary on 4. 8. 1998. On 5. 8. 1998 the operation was done by the first four of the opposite parties without having sufficient equipments, in a careless and negligent manner. Thereafter, the 1st opposite party referred the complainant''s wife to Government Hospital, Karaikal for further treatment. But the Government Hospital authorities directed the 5th opposite party to take the patient to Pu-ducherry immediately. They arranged a van without sufficient oxygen for breathing of the patient. But, due to the insufficiency of oxygen, they returned to Karaikal and the complainant''s wife died on 7. 8. 1998. The wife of the complainant was hale and healthy woman. She died due to the negligent operation done by the 5th opposite party with insufficient equipments. Therefore, they are responsible for the death of the complainant''s wife. Due to the death of his wife, the complainant suffered a lot of mental agony and torture. The complainant issued notice to the opposite parties on 3. 7. 1999 directing them to pay a sum of Rs. 50,00,000 as compensation. The opposite parties received the notice. But they have not given any reply. Hence, the complaint. The case of the 2nd opposite party is as follows: the complaint does not disclose any material facts. The death of the complainant''s wife does not have any proximity or nexus with the alleged act of the opposite parties. After the surgery there was intervention of another act coupled with contributory negligence on the part of the complainant. To bring the liability under the Consumer Protection Act, it is necessary that the act alleged to have been committed by the opposite parties was the cause of the death. Hence, the complaint is not maintainable. There is no averments in the complaint which alleges any act of deficiency in service on the part of the opposite parties. If the negligence and carelessness are to be the ingredients of the complaint, then that would exclude the applicability of Consumer Protection Act. It is not specified whether the St. Rock''s Dispensary is run by a society or firm. Nothing is said about it, nor the very nursing home is a party duly represented by the concern. There is no indication whether the cause of action is against the nursing home or against the individual. For the complainant''s notice dated 3. 7. 1999, a reply was given on 13. 7. 99. The 3rd opposite party, Dr. Rajaraman is not connected with any of the averments and has nothing to do either theory projected in the notice or dispensary. The 5th opposite party is only a sister and not a doctor. The complainant also is unable to state to whom any charge was paid for the alleged services rendered. The medical treatment is not to be termed as commercial product nor a commercial activity. The 1st opposite party is a gynaecologist and her husband, the 2nd opposite party is a surgeon. In the course of her private practice, the complainant''s wife approached the 1st opposite party with a medical report made by another doctor, earlier. On examination, she was found to be a person, who had bleedings from vagina accompanied by abdominal pain. It was found that she had fibroid uterus and, therefore, operation hysterectomy for her was necessary. She was referred to go for blood, urine and ECG test and her physical condition was found normal. All precautions medically necessary before resorting to surgery were taken and thereafter, surgery was done on 5. 8. 98 between 5. 00 and 6. 00 a. m. at St. Rock Dispensary by the 1st opposite party. The 4th opposite party is a qualified Anaesthetist. The said surgery was successfully performed and the patient was completely normal. Some hours later, she complained of some difficulties in breathing and when oxygen was applied, she had great relief. The opposite party Nos. 1, 2 and 4 advised the patient to have supply of oxygen with a ventilator by getting admitted in G. H. Karaikal in the evening on 5. 8. 1998 and the complainant informed later that she was much improving and comfortable. They came to know later that the patient wanted to be discharged on 7. 8. 1998 and she was advised against it. But on the insistence of the patient and her husband, she was discharged against the medical advice and later she returned to the hospital within a few hours and was readmitted to the hospital and thereafter she passed away. After the said patient was discharged from the St. Rock''s Dispensary, they have no control of the said patient. They came to know that the patient got a discharge against the medical advice in the morning on 7. 8. 1998 and was taken to Pondicherry. A qualified doctor of G. H. Karaikal, who was to attend a conference at Puducherry utilised the use of the vehicle going to Puducherry. But the patient could not withstand the strain of journey by road and, therefore, she was brought back to G. H. Karaikal and was readmitted there in the hospital, where she died. There was no post-mortem of the body done. But the hospital authorities admitted to have specified that pulmonary embolism could be the cause of the passing away of the patient. The discharge of the patient was much against the medical advice, which alone might have been the cause for the death. The allegations that there was not sufficient equipments in the St. Rock''s Dispensary and that the operation was done carelessly are not true. All the equipments that are necessary were all available in the St. Rock''s Dispensary. There was no complication whatsoever in regard to the surgery performed. But for the discharge got by the complainant and the patient on insistence against medical advice from the hospital, on account of which she had to be put by the strain on travel, there should have been no problem at all. After discharge from the clinic, the patient was not treated thereafter by any of the opposite party Nos. l, 2 and 4. The claim of the complainant for compensation is liable to be rejected. The allegations that the complainant suffered mental agony and torture are not correct. The counter is adopted by the opposite party Nos. l, 3 , 4 and 5.

In the additional counter filed by the opposite party Nos. 3 and 4 adopted by opposite party Nos. 1, 2 and 5, the following averments are made: the complainant has not impleaded the parents and children of the deceased and as such the complaint suffers for want of necessary parties. The opposite party Nos. 3 and 5 are not parties to the team, who conducted operation. The opposite party Nos. l, 2 and 4 never received any amount as their fees and as such there is no consumer relationship. The allegation that the deceased was working as a helper on a monthly salary of Rs. 30,000 is not true. The allegation that the deceased was hale and healthy is not true. The 1st opposite party suggested for surgical treatment and as the said operation ranks to grade II risk, the patient and the complainant were properly informed and their written consent was obtained. During the period when the patient was treated in the operation theatre, the experts were called and their opinions were obtained for the speedy recovery. Only on the advice of 4th opposite party, the patient was shifted to G. H. Karaikal. The patient was discharged on 7. 8. 1998 at 5. 30 a. m. on the written request of the patient and against the medical advice. As per the advice of the specialist, she was given ventilator support. But, she died at 9. 05 a. m. due to cardio respiratory arrest. Since the complainant was at fault, he received the body of the deceased without any protest.

THE case of the 6th opposite party is as follows: the opposite party Nos. l to 4 have taken professional indemnity policy for doctors for the relevant period and as per the policy, the liability commences from 12 midnight on 22. 6. 1998 to 12 midnight on 21. 6. 1999. As per the policy condition, the opposite party has limited liability and as per the policy condition, the Insurance Company''s liability arises only after the doctors met the legal liability. The claim of the complainant is exorbitant. The case of the 7th opposite party is as follows: the allegations in para 2 of the complaint are not sufficient. The allegation that operation was done by opposite party Nos. 1 to 4 in negligent manner is not true. Equally false are the allegations that the hospital authorities directed the 5th opposite party to take the patient to Puducherry immediately and that the opposite parties arranged a van without sufficient oxygen for breathing of the patient. The 7th opposite party has nothing to do with the death of the complainant''s wife. The complainant was able to get the discharge of his wife against the medical advice, when she was put on what is called, ''birds Ventilator'' and where respiratory system was registering satisfactory progress. The patient was brought back at 8. 00 a. m. on the same day and readmitted in the G. H. Karaikal. She was immediately put on ventilation and the same treatment was continued. But, her condition deteriorated and she collapsed at 9. 35 a. m. on the same day. Neither the G. H. Karaikal nor its doctors did receive anything and simply they did their services without any consideration. At the time of admission of the wife of the complainant, the complainant has claimed that her monthly salary was Rs. 800. But, in the complaint, it is, stated that she was receiving Rs. 30,000 as salary per month.

ON consideration of materials and documents, the State Commission by order dated 9. 7. 02 allowed the complaint in part, directing the opposite parties to pay Rs. 5,000 the amount spent by the complainant and also Rs. 14,00,000 towards compensation and cost of Rs. 25,000. Aggrieved by the said order, the opposite parties preferred First Appeal No. 408 of 2002 to the National Commission. The National Commission by order dated 23. 11. 04, impleading the Insurance Co. as a party, remanded the matter to the State Commission for disposal according to law. After remand, the Divisional Manager, New India Assurance Co. has been impleaded as 6th opposite party and the Director, G. H. Karaikal has been impleaded as 7th opposite party. The points for determination are: (1) Whether the complainant is a consumer? (2) Whether there is any deficiency in service on the part of the opposite parties in giving treatment to the wife of the complainant? (3) Whether the complainant is entitled to compensation, if so, to what quantum? point No. 1:

The complainant, the husband of the deceased, Nilavarnisha has filed the complaint alleging that due to carelessness and negligence of the opposite parties in conducting operation and giving treatment to the deceased, his wife died. It is not in dispute that the deceased was first admitted in the nursing home of 5th opposite party and that thereafter, the deceased was shifted to G. H. Karaikal. It is the case of the complainant that he paid necessary fees while admitting his wife. RW1, the 1st opposite party, who conducted operation on the deceased has admitted in her evidence that at the time of discharge of the patient, the hospital used to collect fees from the patient and the dispensary pays the fees to her and that since the patient was referred to G. H. Karaikal, the hospital has collected fees for the surgery and consultation. But, she would deny the suggestion that she had collected fees from the patient. However, she has admitted that since the patient was referred to G. H. Karaikal, the hospital has collected fees for the surgery and consultation. Hence, it has to be held that the complainant and his wife hired the services of the doctors employed in the nursing home of 5th opposite party and G. H. Karaikal for consideration. Therefore, it has to be held that the complainant is a consumer. This point is found in favour of the complainant. Point No. 2:

IT is alleged in the complaint that 5th opposite party is running a dispensary in the name of St. Rock''s Dispensary at Karaikal. It is admitted that the wife of the deceased was admitted in the St. Rock''s Dispensary on 4. 8. 98 and that the deceased was advised operation for abdominal Hysterectomy and that the operation was conducted on 5. 8. 1998 by opposite party Nos. 1 and 2 in the said St. Rock''s Dispensary. It is also admitted that the wife of the complainant was referred to G. H. Karaikal for further management. It is the case of the complainant that the patient was taken to Puducherry in a van without sufficient oxygen. It is admitted that after few hours, she was again readmitted in the G. H. Karaikal and that she died on 7. 8. 1998. Ex. C4, the certificate issued by the hospital will show that the cause of death is due to cardio pulmonary arrest followed by ARDS due to pulmonary embolism.

IT is contended by the complainant that the operation was conducted by the opposite parties without having sufficient equipments in the 5th opposite party dispensary and that the patient was forced to go to Puducherry in a van without providing sufficient oxygen for breathing and that due to the above act of the doctors, the wife of the complainant died. It is contended by the complainant that RWl the 1st opposite party has admitted that his wife had no cardiac problem or diabetics and that she was having only mild hypertension before operation and that the said mild hypertension is not a disease and that the patient was suffering from uterus problem and that it will not cause any death and that, therefore, immediate surgical treatment is not necessary and that before surgical treatment, the 1st opposite party could have given only medicine to control the excessing bleedings and that the consent of the complainant and the patient was not obtained in the prescribed register. One of the acts of the negligence alleged against the opposite parties is that proper consent was not obtained from the patient before the operation. The above contention of the complainant cannot be accepted in view of the admission of the complainant himself. In the complaint itself, it is admitted that the complainant''s wife agreed to the operation. CW1, the complainant admitted that he has signed in Ex. R4, the consent document. The entries of the register maintained by the St. Rock''s Dispensary contain the signature of the deceased and the complainant in Ex. R4. It is clearly stated there that they give full consent for the operation. Inasmuch as both the complainant and his wife have signed giving consent in Ex. R4, it is futile to contend in the complaint that the implications of operation were not explained to the patient and that consent was not obtained in proper form. In view of the above fact, the complainant cannot make out a case on the ground that no proper consent was obtained from the patient before operation. The complainant in the original complaint has impleaded the opposite party Nos. 1 to 5. It is alleged in the complaint that the wife of the complainant approached St. Rock''s Dispensary for treatment i. e. 5th opposite party''s dispensary and that the operation was conducted by the opposite party Nos. 1 to 4. The 2nd opposite party is the husband of the 1st opposite party. It is admitted by the opposite parties that opposite party No. 4 is a qualified anaesthetist. In the affidavit filed by the opposite parties, it is alleged that opposite party Nos. 3 and 5 are not parties to the team, who conducted the operation. It is alleged by the opposite parties that the 5th opposite party is said to be the nurse. It is not alleged in the complaint as to in what capacity the 5th opposite party is impleaded as party. What is the part played by the 3rd opposite party is not stated in the complaint. Relying upon the entries in Exs. R1 and R2, it is contended by the opposite parties that opposite party Nos. 3 and 5 are not parties to the team who conducted operation. It is not clear whether the dispensary, St. Rock''s Dispensary is owned by 5th opposite party. It is significant to note that the said nursing home has not been impleaded in the complaint. CW1, the complainant has stated in his evidence that he does not know whether 5th opposite party is a doctor or not. It is admitted that the operation was conducted in St. Rock''s Dispensary by opposite party No. 1 and 2 with the assistance of opposite party No. 4. But the said dispensary has not been impleaded as a party. In the light of the above defective pleadings, the case put forward by the complainant has to be analysed.

It is admitted by the opposite parties that it is RW1,1st opposite party, who conducted the operation for removal of uterus (Hysterectomy) on 5. 8. 1998 with the assistance of 2nd opposite party. Ex. C8 is the case sheet of St. Rock''s Dispensary. It is seen from the above record that the deceased was admitted on 4. 8. 1998. It is noted that there was excessive bleedings and severe pain. The said entry was made at 9. 00 a. m. on 4. 8. 1998. The above case sheet contains treatment given to the deceased by the doctor. It also contains operation notes. It is also stated in the above case sheet that opinion of the physician was sought. It is also stated that when the patient was about to be shifted out of OT, she complained of chest pain.

EX. C9 is the case record maintained by G. H. Karaikal. It is stated that after operation, the patient was admitted for ventilation. It is contended by the opposite parties in the affidavit that as the patient complained of chest pain, she was given oxygen support and that for speedy recovery, the patient was shifted to G. H. Karaikal. It is seen from the records that the patient was discharged on 7. 8. 98 at 5. 30 a. m. It is the contention of the complainant that the opposite parties referred the patient to JIPMER Hospital, Puducherry and that they arranged a van without sufficient oxygen and that, therefore, the patient was returned to G. H. Karaikal, where the patient died on 7. 8. 1998. In Ex. C9 at first page, it is stated that the patient was transferred to G. H. Karaikal on 7. 8. 1998 at 5. 30 a. m. The final diagnosis is noted as acute pulmonary embolism-ARDS complication -post operative status and that the patient died at 9. 35 a. m. on the same day. The learned Counsel for the complainant, relying upon the entries in the case records, contended that St. Rock''s Dispensary was not equipped with ventilator and other equipments and that the doctors could not have conducted the operation with insufficient equipments and that the operation was conducted in a negligent manner. The above act of the negligence pointed out by the complainant is denied by the opposite parties. The allegation in the complaint in this regard is bereft of particulars. It is badly stated in the complaint that the operation was conducted with insufficient equipments. CW1 has admitted in his evidence that for giving ventilation support, his wife shifted from St. Rock''s Dispensary to G. H. Karaikal. The complainant examined CW2, a doctor as expert witness. Regarding equipments, he has admitted in his opinion that St. Rock''s Dispensary does not have adequate infrastructure and that it is true that both the hospitals were using boyles apparatus for conducting operation before and after operation and that even G. H. Karaikaj was using boyles apparatus before obtaining ventilator and successful treatment was given earlier. The above clinching admission of expert would show that even without ventilator, boyles apparatus was being utilised for conducting operation and that the said treatment was successful. RWl, the 1st opposite party has stated that boyles apparatus is a manual machine and that ventilator is mechanical one and that mechanical ventilator had advantage over the boyles apparatus. She has also listed reasons for coming to the said conclusion. As already stated, the patient was referred to G. H. Karaikal for providing ventilation. The act of the doctors in shifting the patient to G. H. Karaikal from St. Rock''s Dispensary cannot be faulted since ventilator was intended to be provided for speedy recovery. Further, the treatment given by RWl and 2nd opposite party at St. Rock''s Dispensary cannot be said to be a deviation from the normal medical practice. It is admitted that removal of uterus was major operation. Therefore, when the patient complained of chest pain, she was referred to G. H. Karaikal for ventilation. It is admitted by RWl in the counter affidavit that the patient was given oxygen support with boyles apparatus till the patient was admitted in G. H. Karaikal. The opposite parties have also filed certificate to show that the equipment, ventilator was purchased by G. H. Karaikal. The expert, CW2 has not given any adverse opinion regarding the treatment given at St. Rock''s Dispensary utilising boyles apparatus. Therefore, the contention of the complainant that non-availability of ventilator at St. Rock''s Dispensary is one of the acts of negligence cannot be sustained.

THE learned Counsel for the complainant relies upon a decision of State Commission Ahemedabad, Arunaben D. Kothari and Ors. v. Navdeep Clinic and Ors. , III (1996) CPJ 605=1996 (3) CPR 20. It is held in the above decision that it is the duty of the surgeon to provide defibrillator in operation theatre and that he could have refused to give anaesthesia without said machine. The facts of the above case will not apply to this case and as such, the above decision will not assist the case of the complainant that the 1st opposite party conducted operation with insufficient equipments. If the evidence of RWl in this regard is analysed with the admission of CW2 regarding boyles apparatus, the case of the complainant that the operation was conducted in a negligent manner cannot be accepted. The complainant relies upon the entries found in Exs. C8 and C9 to substantiate his case. It is the case of the opposite parties that they sought opinion of anaesthetist. The documents Exs. R5, R6, R9 and R10 are relied upon by the opposite parties. The learned Counsel for the complainant contended that the State Commission before remand has pointed out certain omissions and mistakes in the case diary and held that the entries are fabricated. The complainant has narrated about the said entries elaborately relying upon the findings given by the State Commission before remand in written argument. As already stated, the dispute is remanded for fresh disposal according to law. Before remand, witnesses were not examined. The expert has been examined only after remand. The findings given by the State Commission before remand cannot be relied upon especially when the order passed by the State Commission has been set aside by the National Commission. In the above circumstances, we hold that the entire evidence adduced before remand and after remand has to be taken into consideration in giving the findings. It is also contended by the complainant that the omissions and defects in the case diary pointed out by the State Commission are not answered by the opposite parties and that, therefore, it amounts to admission. In support of the same, he also relies upon a decision reported in United India Insurance Co. Ltd. and Anr. v. Samir Chandra Chaudhary, III (2005) CPJ 2 (SC)=v (2005) SLT 442=2005 SAR (Civ.) 610. It is held in the above decision that the effect of admission is that it shifts the onus on the person admitting the fact. We fail to understand as to how the above decision will assist the case of the complainant. After remand, both parties have relied upon medical literatures and also documents and evidence of expert. In the above circumstances, much reliance cannot be placed upon the mistakes in entries and omissions of entries in the case records to attribute medical negligence on the part of the opposite parties. The fact that the patient was admitted in the hospital and operation was conducted and the fact that she was taken in a van for admitting her in JIPMER Hospital are all admitted. The nature and manner of treatment given by RW1 cannot be said to be a deviation from normal practice. In the above circumstances, the contention of the complainant that St. Rock''s Dispensary was not equipped with necessary equipments and that the operation was conducted in negligent manner has got to be rejected.

IN the written arguments filed by the complainant, it is alleged that as per the case sheet the patient was not recovered and that the patient was in the operation theatre and that the patient was shifted to G. H. Karaikal and that RWl, the doctor has admitted that they suspected about pulmonary embolism in St. Rock''s Dispensary and that since she did not confirm pulmonary embolism, she did not provide treatment for pulmonary embolism. Relying upon the above admission, it is contended by the complainant that the patient was not treated properly and correctly and that it is the fundamental duty of the doctor when they suspect pulmonary embolism, to diagnose and confirm the same. It is further contended by the complainant that only after the operation, pulmonary embolism occurred to the patient and that when the patient complained of chest pain and vomiting, that was the beginning stage of pulmonary embolism. It is the case of the complainant that pulmonary embolism occurred only during operation. It is also contended by the complainant that when the patient was suffering from uterus problem and excessive bleedings, surgical treatment was not at all necessary and that before surgery, 1st opposite party could have given medicine to control the excessive bleedings and serious uterus problem. Regarding the above deficiency, i. e. pulmonary embolism both parties relied upon the medical literatures. At page 442 of Cecil Text Book of Medicine, it is observed that pulmonary embolism is the impaction of material into branches of the pulmonary arterial bed. It is observed by the said author that most pulmonary emboli are blood clots and that it occurs in 1 to 2 per cent of patients over age 40 following general surgery. The opposite parties relying upon the same author to substantiate their contention that the medicines are not recommended as it will cause heavy bleedings in the operated portion and will lead to death. CW2, the expert has stated that proper treatment for pulmonary embolism is administering HEPARIN STREPTOKINASE, but he would admit relying upon the said author, Cecil that the use of the above medicine are contra indicated. It is, thus, clear from the evidence of CW2 that the above medicines are not recommended. The author has also observed regarding diagnostic status when pulmonary embolism is suspected. The author has observed thus: The definitive means of making the diagnosis is by pulmonary arteriography. It is, thus, clear that when symptoms of pulmonary embolism occur, the medicine suggested by CW2 cannot be administered.

IT is the contention of the opposite parties that the patient developed only hy-poventilation and that, therefore, the opposite party doctor started their treatment in that line to save the patient and that the opinion of the second anaesthetist was sought. CW2 has also admitted that doctor has given oxygen support to clear the liquid from lungs and that if it is not properly treated, it will result in brain death. CW2 has also agreed the opinion found in the medical literature, Te Linde''s Operative Gynaecology. CW2 has admitted that he accepts the principles regarding hypoventilation, which is one of the most dangerous complications in immediate post operative period. It is contended by the opposite parties that in G. H. Karaikal ventilation support was given to the patient as treatment for post operative complication and that the patient showed development as per the entries found in Ex. C9. The entry reads thus: "patient is on ventilation 2. " CW2 has also admitted that on perusal of Ex. C9, the patient was improving and that at 10. 00 p. m. there is a note to the effect that patient is on continuous ventilation. He has also admitted that a general surgeon can also do Hysterectomy. CW2 has also accepted the opinion of the expert in the book, Harrison''s Principal of Internal Medicine wherein it is observed thus: "contraindications to thrombolysis include intracranial disease, recent surgery, or trauma. There is a 1 to 2% risk of intracranial haemorrhage. Careful screening of patients for contraindications to thrombolysis is the best way to minimize bleedings risk. "

Regarding hypoventilation, the opinion of the doctor, Te Linde had to be taken into consideration. At page 97, the author observed thus:. "one of the most frequent and dangerous complications in the immediate post operative period, even in patients with normal lungs, is hyperventilation".

Regarding respiratory failure, the opinion of author, Harrison in the book at page 1588 is relied upon by the opposite parties. It is observed thus: "respiratory failure is defined as a failure of gas exchange due to inadequate function of one or more essential components of the respiratory system. Clinically, respiratory failure can be manifest either as hypoxemia (Po2 60 mmhg at sea level), i. e. inadequate blood oxygenation; hypercarbia (Pco2 45 mmhg) i. e. excess of circulating carbon dioxide; or frequently, a combination of both types of gas exchange abnormalities. Respiratory failure of classified as hypoxemic, hypercarbic or combined. "

REGARDING the occurrence of pulmonary embolism (Post-operative events) in the book of Parikh''s Text Book of Medical Jurisprudence it is observed thus: "post-operative events: fatalities due to phlebothrombosis, pulmonary embolism, hypostatic pneumonia, etc. Which may follow are neither related to the anaesthetic procedure nor to surgery. "

Rw1 has stated in her evidence that she did not diagnose the patient for pulmonary embolism. She denied the suggestion that pulmonary embolism was developed due to operation. She has admitted that on 5. 8. 98 at 7. 20 a. m. , she suspected pulmonary embolism and that she did not confirm it and, therefore, she did not proceed the treatment for pulmonary embolism. The treatment given by Rw1 for hypoventilation is supported by CW2.

THE complainant relies upon the evidence of expert, CW2 for attributing negligence on the part of the opposite parties. CW2 has stated in his affidavit that timely diagnosis of pulmonary embolism and transferring the patient to higher institution with facilities could have altered the patient''s condition. The opposite parties have taken a stand that pulmonary embolism was not developed during operation and that while the patient was returning in the van to Karaikal, the said pulmonary embolism has developed. It is well settled that the doctors will not be held responsible for the negligent act which is not intentional and that they will not be held responsible for unexpected results. If the above principles are viewed along with the evidence of RWl and CW2, it cannot be said that RWl treated the deceased in negligent manner. Though the complainant relies upon the evidence of CW2, much weight cannot be attached to his evidence. The complaint is filed in the year 1999. CW2 has given opinion on 2. 8. 2006. The evidence of CW2 will show that the affidavit for giving opinion has been prepared by complainant''s Counsel and that he perused the case sheet of St. Rock''s Dispensary and G. H. Karaikal. He has also admitted that as per the case sheet, the doctors have given oxygen support and also medicine to clear the liquid from the lungs and that if the above treatment is not given to the patient, it will lead to brain death. He has also admitted the entries found in Ex. C8 which would show that second anaesthetist opinion was sought. He has also admitted that he has perused the certificate, Ex. R7 issued by Dr. Nithyanantham, who is the specialist in Anaesthesia and that as per Ex. R7, the said doctor has given opinion for shifting the patient to G. H. Karaikal for ventilation support. He has also admitted that at that time, the patient was normal. But, he would say that in his opinion the doctors, who attended the patient at St. Rock''s Dispensary and also the G. H. Karaikal did not suspect pulmonary embolism. The above admissions and other evidence, which are already referred to above, far from supporting the case of the complainant will only lend crednance to the contention of the opposite parties that there was no negligence in treating the deceased. The complainant issued notice to the opposite parties claiming compensation nearly one year after the death of the deceased. Nothing prevented him from obtaining case records and file the expert opinion along with the complaint. In view of the abnormal delay in obtaining the opinion of the expert, it is not safe to rely upon the said report for holding that pulmonary embolism developed during surgery.

THERE are materials to show that the patient was discharged from G. H. Karaikal against the medical advice. It is contended by the opposite parties that the complainant and his relatives wanted the patient to be discharged for treatment in higher institution against medical advice and that on his written request, the patient was discharged on 7. 8. 1998 at 5. 30 a. m. Exs. R12, R13 and R10 are relied upon by the opposite parties to substantiate their case. But the complainant would allege that the opposite party arranged a van without sufficient oxygen for breathing and that they directed the complainant to take the patient to Pondicherry. The opposite parties denied that they arranged the van for taking the patient to JIPMER, Pondicherry. The complainant denied that he insisted the opposite parties to discharge the patient. However, he has admitted his signature in Ex. R10. Ex. R10 is the laboratory report dated 7. 8. 98. It is stated therein that he is willing to take his wife to Pondicherry and that the doctors and hospital are not responsible for it. When CW1, the complainant was confronted with the above document, he denied the suggestion that he has given written request to hospital authorities to discharge his wife against medical advice. Ex. C 9, page 192 is the original of Ex. R10. It is stated in the medical record that the patient was discharged against the medical advice. That apart, in the reply notice, Ex. R21 issued by the opposite parties to Ex. C12, a notice issued by the complainant, it is specifically stated that doctors advised the complainant not to shift the patient but allow her to continue her stay in G. H. Karaikal for management ventilation and that the complainant was stubborn in his decision to shift his wife to Pondicherry. The above notice was issued on 16. 7. 1999. The complaint was filed on 17. 8. 99. Even though the complainant was in possession of the reply notice, Ex. R21, he did not deny the fact in the complaint that the patient was dis-charged from hospital at his request. Though the complainant had ample opportunities to controvert the above allegations stated in Ex. R21, the complainant failed to controvert the said fact in the complaint. If Ex. R21 is considered along with the tact that the complainant did not controvert the above allegations in the complaint, it can be safely held that the complainant has signed Ex. R10 expressing his willingness to discharge the patient for taking to Pondicherry. Inasmuch as the patient was given treatment with ventilation in the hospital, the complainant could not have insisted the hospital authorities to discharge her for admitting in Pondicherry hospital. Though he was in possession of Ex. C9, which contains the consent letter, he did not state in the complaint that the patient was not discharged at his request. It is stated that the deceased could not withstand the journey and that after travelling 10 kms, she returned to Karaikal in the same van. Ex. R12 is the copy of the case record maintained by G. H. Karaikal. It is seen that the patient was transferred on 7. 8. 1998 at 8. 00 a. m. The above document will show that the patient was readmitted in G. H. Karaikal on 7. 8. 1998. In Ex. C10, the cause of death is noted as acute pulmonary embolism postoperative status. But, RW1 has stated that the patient died due to cardiac arrest which may not be correct in view of the statement in Ex. C10. It is the case of the opposite parties that the patient developed pulmonary odima on returning to Karaikal. It is, thus, clear that a sudden complication developed as the patient was taken against medical advice in a van to Pondicherry at the request of the complainant. Therefore, the contention of the complainant that it is opposite parties, who directed the complainant to take the patient to Pondicherry has to be negatived.

IT is contended by the complainant that due to insufficient oxygen in the van, the deceased developed breathing problem and that on returning to Karaikal, she died. In Ex. R21, the opposite parties have admitted that on that day Dr. Baskaran of G. H. Karaikal was to attend a conference at Pondicherry and that he accompanied the deceased and the complainant with necessary equipments for breathing freely and that as she could not withstand the strain, the complainant and the deceased returned to G. H. Karaikal and that she died at about 9. 35 a. m. The above allegation will show that the complainant''s wife travelled in the van with equipments for breathing. But, CW1 has stated in his evidence that he did not follow the van and that when he was about to start the van returned to G. H. Karaikal. Therefore, CW1 did not personally know about the oxygen provided in the van. Hence, he is not competent to state that due to insufficient oxygen in the van she could not withstand the journey. As already stated, had the patient continued the treatment in G. H. Karaikal with support of the ventilator, her life would have been saved. It is the conduct of the complainant in seeking the discharge against medical advice, which caused complication in the health of the deceased. The above facts will only confirm the stand taken by the opposite parties that the patient did not die due to the negligence of the doctors, who performed the operation. As already stated, the acts of the negligence complained of against the doctors are not clearly stated in the complaint. It is vaguely alleged in the complaint that the operation was conducted in negligent manner. In the above circumstances, we are unable to accept the contention of the complainant that his wife died due to negligence of the opposite party doctors.

Both parties have cited decisions in support of their contentions. The learned Counsel for the opposite parties relies upon the decision reported in the State Commission, Bhopal, Dr. Sanjay Sharma and Anr. v. Anasingh, IV (2006) CPJ 45=2006 (2) CPR 262, wherein it is stated that merely because some complications developed after medical operation on the patient which led to the death by itself was not sufficient to conclude doctor''s negligence.

THE learned Counsel for the complainant relies upon the decision reported in Smt. Savita Garg v. The Director, National Heart Institute, IV (2004) CPJ 40 (SC)=vi (2004) SLT 385=2005 (1) LW 302, wherein it is held that when the claimant has successfully discharged the initial burden that the hospital was negligent, then the burden lies on the hospital and concerned doctors to establish that there was no negligence. The decision relied on by the complainant in 2000 (1) CPR 191 will not apply to the facts of this case.

IN the State Commission, Bhopal, Smt. Bhanupal v. Dr. Prakash Padode and Ors. , II (2000) CPJ 384=2003 (3) CPR 356, has held that doctor will only be found guilty of negligence when he falls short of the standard of a reasonably skillful medical man. In Baby Geetha and Ors. v. Cosmopolitan Hospitals (P) Ltd. and Ors. , III (2006) CPJ 89 (NC)=air 2006 (NOC) 1241 (NC), the National Commission has held that in case of medical negligence, it may not be possible to lead sufficient direct evidence and that the entire circumstances of the case need to be taken into account. It is well settled that the onus of proving medical negligence on the part of the doctors lies on the consumer. It is, no doubt true that if the operation was conducted inside the operation theatre, then it is for the doctors to furnish particulars as to the mode and nature of the treatment given to the patient.

THE learned Counsel for the complainant relies upon the decision reported in Spring Meadows Hospital and Anr. Etc. v. Harjol Ahluwalia Through K. S. Ahluwalia and Anr. , I (1998) CPJ 1 (SC)=iii (1998) SLT 684=1998 (2) LW 38. The Supreme Court has held a mistake which would tantamount to negligence cannot be pardoned.

THE decision relied on by the complainant reported in I (1997) CPJ 238=1997 (1) CPR 393 enumerates the principles regarding the negligence. In IV (2006) CPJ 332 (NC)=2006 (2) CPR 120 relied on by the opposite parties, it is observed thus: "the law does not require of a professional man (like a doctor) that he be a paragon combining the qualities of polynath and prophet".

The Apex Court had occasion to consider the case of medical negligence in the case reported in IV (2005) CPJ 14 (SC)=iii (2005) ACC 717 (SC)=vi (2005) SLT 498=2005 (7) SCC 1. It is held in the above decision that unless negligence is established, the primary liability cannot be fastened on the medical practitioner.

IN I (2002) CPJ 4 (SC)=vi (2001) SLT 735=air 2001 SC 3914 the Apex Court has held that in the particular case, the course adopted by the doctors was reasonable although the risk involved might have called for further investigation. The duties and obligations of doctors, who treat the patient are elaborately enumerated by Supreme Court in the decision reported in I (1996) CLT 532 (SC)=1996 (2) SCC 634.

THE Supreme Court in the decision reported in III (2005) CPJ 9 (SC)=vi (2005) SLT 1=122 (2005) DLT 83 (SC)=iii (2005) CCR 9 (SC)=2005 (6) SCC 1 has elaborately discussed the cases relating to civil negligence and criminal negligence. The Supreme Court has held that deviation from normal practice is not necessarily evidence of negligence. The principles laid down in the above decision if considered along with the evidence adduced in this case, we have no hesitation in holding that the doctors treated the patient and performed the operation in accordance with the established procedure. The nature of the treatment and operation performed by the doctors in this case are found to be in accordance with the opinion formulated in the medical literature. The complainant failed to establish that his wife died only due to the negligence of opposite party doctors. For the reasons stated above, we hold that there is no deficiency in service on the part of the opposite parties. Hence, this point is found against the complainant. Point No. 3: In view of the findings on point No. 2, the complainant is not entitled to any compensation. The question whether the 7th opposite party is vicariously liable for the acts done by opposite party Nos. 1 and 2 does not arise for any consideration. The 6th opposite party has filed documents regarding the policy of indemnity. It is needless to give any findings on the question whether 6th opposite party is liable for the claim of the complainant, since the complainant is not entitled any relief against the doctors and hospital. We hold that the complainant is not entitled to any relief in this dispute. In the result, the complaint is dismissed. The parties are directed to bear their respective costs. Complaint dismissed.