ARUNABEN D.KOTHARI vs NAVDEEP CLINIC

COMPLAINT No. 252 of 93 is filed by opponent No. 6 in COMPLAINT No. 77 of 93 and she has filed this complaint for indemnification from the New India Assurance Company Limited in case she is held liable to pay compensation to the complainants of COMPLAINT No. 77 of 1993. Thus, the two complaints being interconnected, they are disposed of by this common judgment. The complainants and opponents of COMPLAINT No. 77 of 1993 are hereinafter referred to as complainants and opponents for the sake of convenience.

COMPLAINANTS in this case are the widow and children of late Dineshchandra Kothari who died during operation. The complainants claim that late Mr. Kothari died due to negligence and deficiency in service by opponents-Navdeep Clinic & Hospital and doctors named in the complaint and compensation of Rs. 8,20,000 /- be paid. Brief observations of case are that Shri Dineshchandra had sustained injury to his right arm about six months prior to seeing the opponents. Patient initially took treatment at Surendranagar where he underwent Orthopaedic surgery of insertion of plate and screws in his right forearm and was later on sent home. He saw opponent Dr. Rashmi Vora for pain, deformity etc. at operation site and for operation on 23.9.90. Dr. Vora examined him, got his x-rays done and referred him to Dr. Shailesh DesaiPhysician-Cardiologist for fitness for operation. Dr. Desai examined patient, took cadiogram and declared him fit for surgey. Patient was scheduled for surgery on 24.3.90. On the day of operation (24.3.90) around 9 a.m. patient was taken for surgery after obtaining consent for anaesthesia and operation. Patient was anaesthetised by Dr. Minaxiben, assisted by Dr. Pinaben and operation was started by Dr. Vora. Dr. Gajjar was assisting Dr. Vora. When the operation was half way through patient developed cardio respiratory arrest from which he did not revive and was declared dead around 10.10 a.m. by Dr. Desai. Incidentally Dr. Desai came to scene only after sometime of cardio respiratory arrest and his findings suggested that patient was practically dead when he saw the patient. It is not possible to understand why and how without first hand knowledge, Dr. Desai issued the death certificate. Certificate only mentions mode of death and not the cause of death. Opponents say that they were not negligent. That they took all possible care, that they were qualified and experienced in the subject. Opponents further say that they are no responsible for the death of patient and that they are not liable to pay any compensation as claimed.

Complainants have claimed that amount of drugs used for the anaesthesia were more than maximum and death was direct result of such use of drugs. Complainants have given reference of book (Lee''s Synopsis of Anaesthesia Page 163 etc.)

COMPLAINANTS further state that proper monitoring of the patient was not done. It is also further claimed that patient underwent major surgery than the present one in a relatively underdeveloped centre successfully and died because of negligence of opponents in minor surgery. Dr. Vora in his deposition has said that surgery was relatively a minor one and that death could not have been caused because of surgical procedure. He does not rule out anaesthetic procedure as cause of death in present case. Dr. Minaben was anaesthetist in charge of patient and Dr. Pinaben just came to help her. As per statement of Dr. Pinaben, she even did not involve herself in observing monitoring the patient. Dr. Pinaben is more qualified than Dr. Minaxiben. That she was free. Therefore, she came to the theatre where Dr. Minaxiben was to anaesthetise the patient. That Dr. Minaxiben and Dr. Pinaben are visiting Anaesthetists at Navdeep Hospital and attend the hospital on call. In present case the choice of Anaesthetist was that of Dr. Rashmi Vora and patient had no say in it. It therefore can be assumed that relation of anaesthetist Dr. Minaxihen to patient is through Dr. Vora. Therefore the act of Anaesthetist involves responsibility of Dr. Vora also. Further, Anaesthetist also do not think surgical procedure as a cause of cardiac arrest but are not in position to say why cardiac arrest occurred. It is important at this point to note that complications and death of patient occurred in four walls of operation theatre where patient''s relatives had no access whatsoever and onus therefore should lie on doctors in the operation theatre to explain events that happened there. In the said context the surgeon, anaesthetist and cardiologist have not been able to explain the events and the ultimate outcome i.e., the death of the patient. In such situation it was the duty of these medical officers to prove or rule out cause of death for which they are alleged responsible. Only avenue open to them was post-mortem which is not done. One does not need consent to inform police of such unexplainable death during operative procedures and establish beyond all doubt the cause of death. Sadly that has not happened and Medical Officers cannot escape their responsibility for the same. It is no valid excuse to say that the relatives declined postmortem or they signed their unwillingness. We may not go into details of controversy regarding writing of consent, signature, thumb impression etc. for post-mortem as it no way changes the responsibility of these medical officers namely Dr. Vora, Dr. Minaxiben and Dr. Desai in particular and Dr. Pinaben to an extent (that her involvement was exclusively passive and in no way she was involved in management of case) of her participation in a case management. One fails to understand how Dr. Desai could have given the death certificate - just on request of anaesthetist without he himself being unaware of developments that went in the operation theatre when Dr. Desai came to scene patient was practically dead and had no information on which he could medically say about the death of patient. This certainly can be said to be an act of commission for which he is squarely answerable but has failed to do so and therefore it can be assumed that he acted in a negligent manner. Further Dr. Desai in his pre-operative assessment has noted blood pressure of 150/100 mm. Hg. and associated S.T.T. changes in Anterolateral leads in ECG. He accepts that this blood pressure is high but conditions cannot be said to be hypertension. This sounds contradictory. Further this was not the life saving emergency surgery and proper course should have been proper and adequate diagnosis of condition of heart and cardio vascular system by advising proper investigations and treatment prior to declaring patient fit for operation. He was precisely called upon for the above purpose which he did not fulfil. He is certainly, therefore, answerable for this act of omission also.

DR. Minaxiben as an Anaesthetist was also duty bound to assess the patient''s condition for anaesthesia fitness and more so in view of blood pressure of 150/100 and STT changes in ECG. She was to give anaesthesia and she as a consultant in Anaesthesiology was required to know and act on above findings of patient. There is nothing on record to show that she did so. Though she says it is the duty of the surgeon to provide defibrillator in operation theatre, she should have procured the same as a precaution before starting anaesthesia or could have refused to give anaesthesia without said machine or she should have brought these facts to the notice of patient''s relative which unfortunately she did not. She also made statement that she is unaware about any other general anaesthetics than the one she used is a sad commentary on the lack of common knowledge which an Anaesthetist ordinarily ought to have. DR. Minaxiben is also ignorant about standard writing in subject (Recent Advances in Anaesthesia) Co-existing Disease & Anaesthesia - 3rd Edition 1993 by R.K. Sofelting-Churchill Livigstone Publication. Chapter 5 page 79, 2nd paragraph Systolic blood pressure of 160 or more or Diastolic blood pressure more than 90 mm of Mercury is hypertension and she could not rule out the lack of Oxygen as a cause of cardiac arrest in present case. It was her duty to maintain proper oxygenation and when called upon to prove that patient did not have "Hypoxia or Anoxia" she had to do so which she failed. In her statement she also mentions that on noting cardiac arrest on monitor she stopped nitrous oxide and increased oxygen supply to the patient and this was confirmed by distentions of rubber bag attached to the anaesthesia machine. DR. Vora also confirms "Distending Balloons" as an indication that oxygen was flowing well. It would only mean that balloon was not distending before and proper gases including oxygen were not flowing to patient. The commonest cause of cardiac arrest in otherwise unexplainable condition is detachment in supply systems. (Ref. as above) and same condition could not be ruled out here. When the condition was realised it was too late and it seems patient could not be saved therefore. Dr. Pinaben states that though she is more qualified than Dr. Minaxiben, she was just "helping" Dr. Minaxiben because she was free and that similar stand is taken by Dr. Minaxiben, and that she had absolutely no say in management of present case except that she noted the events in case paper as she was asked, her involvement, responsibility or liability are limited. Patient did not hire her or her services. Nor did she give any service to patient. She, therefore, exonerates herself of any negligence or deficiency in service. Dr. Vora has been the surgeon and has direct professional liaison with patient. Patient has submitted himself to Dr. Vora for his safety and well being as far as his treatment is concerned. Dr. Vora decides which physician to call, which anaesthetist to call, when, where and how to operate. He is the master of operation theatre and availability of defibrillator was his look out as told by Anaesthetist and that Dr. Vora has not denied the same. Further, the act of omission and/or commission by the Anaesthetist and/or physician is his vicarious liability as Anaesthetist and physicians are his "invited". It looks that surgical part of operation is not the cause of cardiac arrest nor has Dr. Vora''s surgical skill been challenged. Still, though, sadly, he has to bear the responsibility of his called Anaesthetist and Cardiologist along with them.

DR. Gajjar''s involvement in management of the case is non-significant and does not seem to have any relation that may make him liable for the outcome of this case. As far as Navdeep Clinic is concerned, its responsibility is to provide nursing home with available facilities. This case was seen by DR. Vora as Private Consultant by charging the fee of Rs. 80/- (or Rs. 100/- ??) and there is nothing that proves that patient was of Navdeep Hospital. Patient was seen and treated by DR. Vora as his patient by using the existing facility of Hospital about which DR. Vora is well aware. There is no allegation on hospital or its staff. As such the complainant is unaware about existence of such entity as Navdeep Charitable Trust Hospital. There is no act in present case where the said trust is involved by omission or commission and therefore it absolves itself of any responsibility. We, therefore, hold that in case of said Dineshkumar, there was negligence and lack of reasonable care. There was also lack of communication and consideration for the welfare and life of late Dineshkumar. The death of said patient Dineshkumar occurred in surgery in which death does not occur, in persons like Dineshkumar who did not have any medical reasons to be prone to cardiac arrest as per Cardiologist and Anaesthetist and opponent Nos. 2, 4 and 5 have not been able to prove that they are not responsible for the said death. DR. Vora, DR. Desai and DR. Minaxiben are, therefore, held liable for their acts of omission and commission as mentioned earlier. The apportionment of liability of the said opponent Nos. 2, 4 and 5 will be as follows. Opponent No. 2 - 30%; opponent No. 4 - 60%; and opponent No. 5 - 10%, However, so far as complainants are concerned, they will be liable jointly and severally. DR. Pinaben and DR. Gajjar get exonerated and so also Navdeep Charitable Trust.

SO far as computation of compensation payable to the complainants on account of negligence of opponent Nos. 2, 4 and 5 is concerned, we adopt the principles on which compensation is computed in, motor accident cases. Having regard to the evidence on record, we estimate the income of the deceased Dineshkumar at Rs. 3,000/- per month. Out of said income, 1/3rd shall have to be deducted for personal expenses of the deceased. Therefore, the dependency benefit of the complainants could be safely worked out at Rs 2,000/- per month or Rs. 24,000/- per annum. Having regard to the age of the deceased it would be proper to apply multiplier of 15 to this datum figure to work out compensation payable to the complainants. If so worked out compensation payable to the complainant for loss of dependency benefit would come to Rs. 3,60,000/-. In addition, the complainants are entitled to claim Rs. 40,000/- for loss to the estate and Rs. 15,000/-for medical and other expenses. Thus, the total compensation payable to the complainants works out to Rs. 4,15,000/-. The complainants are also entitled to costs and interest as stated in the final order. It the result, this complaint is partly allowed and opponent No. 2 Dr. Rashmi Vora, opponent No. 4 Dr. Minaxiben and opponent No. 5 Dr. Shailesh Desai are held jointly and severally liable to pay to the complainants Rs. 4,15,000/- and cost of Rs. 5,000/-. The said opponents are directed to deposit in this Commission the said amount within 30 days from the date of this order failing which they shall be liable to pay 18% interest on the said amount from the date of the order till realisation.

On the amount being deposited by the aforesaid opponents as directed above, Rs. 1,00,000/- shall be invested in long term fixed deposit intially for a period of not less than 5 years in the names of each of the complainants. The Fixed Deposits shall be renewed from time to time till each minor attains majority. However, complainant No. 1 Arunaben D. Kothari shall be entitled to receive interest accruing due on the F.D.Rs. Complainants shall not be entitled to raise loan or advance on the said fixed deposits or to create charge over them in any manner. It will be the responsibility of the Registrar of this Commission to see that the above directions are carried out.

THE balance of the amount shall be paid to complainant No. 1 Arunaben. Complaint No. 77 of 1993 against opponent No. 1 Navdeep Clinic, opponent No. 3 Dr. Bharat Gajjar and opponent No. 6 Dr. Pinaben shall stand dismissed with no order as to costs. In view of the dismissal of said complaint against opponent No. 6, complaint No. 252 of 1993 does not survive. It shall stand dismissed, with no order as to costs. Complaint No. 252/1993 partly allowed. Complaint No. 77/1993 dismissed.