ABDULLA MODIWALA vs G.D. BIRLA MEMORIAL HEALTH CENTRE

THE complainant has filed this complaint against opposite party for negligence in performance of Trans Cervical Re-section of Endomentrium (TCRE), resuling in death of his wife aged 37 years and has claimed a compensation of Rs. 10 lacs for deprivation of the company of his wife and of his children with their mother.

THE complaint in short is that the complainant''s deceased wife suffering with bleeding, for which she got herself examined by opposite party No. 2. Her blood, urine, blood sugar were tested and ECG was taken. Nothing wrong was detected in these tests. She was prescribed medicines for twenty days and was advised to undergo TCRE. THEreafter she was admitted on 24.5.1994 in the hospital of opposite party No. 1 and was operated by opposite party No. 2, assisted by opposite party No. 3, Anaesthetist. That she was taken to the operation theatre at 11.00 a.m. and at 1.30 p.m. she was declared dead. When she was taken out of the O.T., her nose and mouth were bleeding and tubes were inserted inside her mouth and nose. Blood was coming out in the shape of red liquid froth and the eyes were wide open and entire body was covered with white sheet. Same day his wife was cremated. No post mortem was done. The complainant has pointed out following deficiencies in his affidavit : (1) That pre-anaesthetic check-up was not done properly before the operation. (2) The pre-operative tests were done 20 days earlier. (3) Ultra-sonography and Biopsy, which were essential for operation were not done. (4) Dr. Sonar was busy elsewhere and therefore, patient did not receive any medication for about 15 minutes. (5) Pulmonary Embolism doubtful - Injection Strepto Kinase is not given in Pulmonary Embolism. Even in cardiac arrest this is not given. (6) Lastly he has stated as under in the affidavit :

"6 litres of 1.5% Glycine was administered but according to them estimated absorbtion was 1.5 litres and they are mentioning that 200 to 300 ml. might have been absorbed/spilled on the draps and floor of operation theatre. But how could they measure the fluid that is spilled on floor or absorbed by draping. It could be less and as definition mentioned of over hydration that at least absorbtion of more than 2 litres in overload and any medical person cannot give an exact value for measurement as every person has different biological set up. So it can be possible that for her 1.5 to 2 litres is over hydration and one point to emphasize is that urine output was nil and patient has been given 1 litre of R.L. (Ringer Lact) and 1 litre of 10% DNS, so the chance of over hydration was increased."

Except this affidavit of the complainant himself, there is no evidence or any body''s affidavit supporting these contentions of the complainant as quoted above. No medical literature in support of the contents of the affidavit has been furnished. The entire statement quoted above is purely technical and can be given only by a person expert in medicines, who possesses knowledge of medicine and surgery and anaesthesia. The complainant has stated in his affidavit that he is giving this affidavit on the basis of "personal knowledge". Since the complainant is not a medical man he cannot give this statement on the basis of personal knowledge and when he cannot give such statement on the basis of personal knowledge such a statement is not admissible in evidence. Besides this, the complainant has been absent continuously for about ten hearings right from 11.12.1998. On 13.8.1999 a note-sheet was also recorded that "the complainants be sent a notice that they are also given an equal opportunity to either send their written arguments after receipt of reply in rebuttal, from opposite parties or to appear in person or through their Counsel for the final argument in view of opposite party''s rebuttal reply, if any filed by them". On 4.9.1999 the learned Counsel for the opposite party submitted an application requesting to cross-examine the complainant. Notices were issued to the complainant as well as his Counsel for appearance. But still nobody turned up. Thus the opposite party could not get an opportunity of cross-examining the complainant.

ON the other hand, we find that the opposite parties who are well qualified doctors have submitted affidavits of their own in support of their contentions and also filed medical literature as to why it is not fluid over flow, why pulmonary embolism, supported by photocopy of medical literature. Opposite party No. 3-Dr. Smt. Marwaha has stated that she has done M.D. in anaesthesia from Pune. Opposite party No. 2 has stated that he has received special training for TCRE in Germany and he has done number of courses in France and Germany. ON behalf of opposite party No. 1, Dr. R. Sonar, Medical Director of the opposite party No. 1 has furnished his affidavit, stating that he was present during the operation. He has stated that since the diagonsis was clear, biopsy and sonography were not considered as necessary. The photo-copy of bed head ticket filed contains complete case history of the deceased Smt. Jahida. It starts with words "consent - no major illness in past". Every 15 minutes, recording of the condition of the patient was done right from 10.45 a.m. It is at 12.45 that suddenly the pulse became low. Blood pressure became 160H and the patient started struggling and gasping. At 1.00 froth started coming out of the mouth and nose. Patient was declared dead at 1.20 p.m. The cause of death was Pulmonary Embolism. Strepto Kinase is a drug which is given to dilute/dissolve the clotting to prevent cardiac arrest, if there is a clot in the coroonary artery. Cardiac arrest was on account of Pulmonary Embolism. It has been held in Darshani Devi v. Rajeshwar Parshad, I (1998) CPJ 358, that unless there is expert opinion that there was negligence or recklessness, it cannot be said that the medical man acted negligently. In II (1992) CPJ 764, it has been held that the burden of establishing negligence is on the complainant.

IN case of CI (1998) CPJ 110 (NC)=1998 CCJ 1532, the Hon''ble National Commission has held that in the absence of production of any expert evidence indicating negligence, the opposite parties cannot be held to be negligent in their services in treating the patient. In Dr. Laxman Joshi v. Dr. Trimbak Bapu, it is held that "negligence can be attributed to a surgeon only if his mistakes are of such a nature as to imply absence of reasonable care and skill on his part". Since the complainant has failed to substantiate his contentions by any kind of expert opinion or evidence or medical literature, we dismiss the complaint with no order as to costs. Complaint dismissed.