ASHA DEVI vs Sanjay Lal Das

THE present revision has been filed by Asha Devi and three others (hereinafter referred to as the ''Petitioners'') being aggrieved by the order of the State Consumer Disputes Redressal Commission(hereinafter referred to as the ''State Commission'') in favour of Dr. Sanjay Lal Das and Dr. Christopher Hansdak (hereinafter referred to as the ''Respondent Nos. 1 and 2'').

THE brief facts of the case according to Petitioners are that on 5.8.2004 late Kailash Prasad Bhagat (husband of Petitioner No. 1) fell down while arranging his shop which resulted in dislocation injury/fracture of his left elbow joint and wrist. He was provided first aid by Dr. Ravi Shankar Prasad after which he was referred to the clinic of Respondent No. 1, Dr. Sanjay Lal Das, at Dumka who after charging him Rs. 50, examined him and got the X-ray done and concluded that since there was a fracture on the left hand he should be admitted in the clinic of Respondent No. 2, Dr. Christopher Hansdak, to get the plastering done. The patient was accordingly brought to the clinic of Dr. Hansdak and in the meantime Dr. Sanjay Lal Das also joined him and both doctors advised that the plastering would need administration of anesthesia to the patient. They also demanded and received Rs. 2,000 as payment for the treatment. Petitioner states that the doctors were informed that the patient had taken his meal about 5 hours ago but they were assured that this would not adversely affect his being given anesthesia. After two hours, the Respondents/doctors informed the patient''s relatives that the plastering had been done successfully and the patient would soon come out of the operation theatre in a conscious state. However, when the patient did not come out from the operation theatre and the Respondents/doctors refused them permission to meet the patient, the relatives reached the clinic of Dr. Hansdak where they were informed that the patient had in fact died. According to Petitioners, the death of the patient occurred because Respondents/doctors were not qualified to administer anesthesia and they had also administered a very heavy dose without taking due precautions like ensuring empty stomach and checking other parameters to ensure that the patient was fit for being administered anesthesia. Petitioners, therefore, lodged an FIR at the Police Station and a case was registered under Section 304 of the IPC. Since the deceased was a relatively young man of 38 years and in good health and the death was obviously caused due to medical negligence which amounts to deficiency in service, Petitioners filed a complaint before the District Forum claiming Rs. 19,50,000 as compensation and punitive damages along with cost of litigation on account of loss, injury suffered due to medical negligence and deficiency in service.

THE Respondents/doctors denied any negligence in administering anesthesia to the patient or in his treatment. According to them only a mild dose of anesthesia of one ampoule of Calmpose (Diazepam 10 mg.) was given to the patient slowly which is permissible under medical science after five hours of taking meal. His brother-in-law''s consent was also taken. Further, being M.B.B.S. doctors they were competent to administer anesthesia to patients. According to the Respondents, the patient died of a head injury received during the course of his fall about which neither the patient nor his attendants were aware and also the patient showed no overt symptoms of any head injury. It was during course of making the plaster that the patient became restless and his blood pressure and pulse also dropped despite every measure taken for resuscitation, he died due to the injury. This is also confirmed by the post-mortem report.

THE District Forum after hearing both parties accepted the complaint. The operative part of the order of the District Forum reads as follows: "It is well settled that a doctor can be guilty of medical negligence when he fails to act in accordance with the standards of reasonable medical care. In the instant case, there is no dispute between the parties that on ill-fated date the patient Kailash Pd. Bhagat had taken meal at about 11 a.m. which was communicated to the doctors O.P. Nos. 1 and 2 before taking him in operation hall. Medical science bars administering anesthesia to the patient after taking meal specially in accident cases except in emergency case where the life is in danger because adminis-tering anesthesia develops vomiting tendency as a result of which undigested or semi digested food materials may obstruct airway in trachea as found injury No. 2 Kailash Pd. Bhagat received simple fracture or dislocation injury on his left elbow joint and wrist which required medical treatment as soon as possible but it could not be to be said dangerous for life. Thus, the case of Kailash Pd. Bhagat was not a case of emergency and the doctors O.P. Nos. 1 and 2 should have waited for some time for becoming his stomach empty before administering anesthesia to him. It is contended by the O.Ps. that administering after five hours of taking meal is permissible but nothing has been produced by them in support of their contention. According to the copy of medical jurisprudence produced by either party as far as possible, an Anesthetist should be a specialist and except emergency, the same practitioner should not administer anesthesia and also perform the operation. In the instant case both the doctors O.P. Nos. 1 and 2 were engaged in reducing the fracture or dislocation of elbow joint and wrist of Kailash Pd. Bhagat and they have been given on their side that on the ill-fated date no anesthesia expert was available at Dumka and considering the condition of patient being M.B.B.S. they administered anesthesia to him."

THE District Forum also concluded that the consent paper purportedly executed by one Kishan Prasad Bhagat reported to be his brother-in-law, was fake since the name of the brother-in-law was Sarvesh Prasad Sah who has clearly denied that his consent was taken. There is also no evidence that the patient was properly examined and declared fit for anesthesia since the Police Case Diary confirms that only a blank prescription of the patient was found by the Police in the Hansdak Clinic in which only his name and blood pressure was noted. There was no entry regarding any other clinical examination or the type of dosage of anesthesia given to the patient. The District Forum also concluded that the head injury mentioned in the post-mortem report was a post-mortem injury and not caused before death because there was no evidence that the patient had suffered any such an injury and in case of a head injury where a fracture had taken place, the patient would have definitely felt pain and not withheld this information from the doctor. The District Forum directed the Respondent to jointly and severally to pay Rs. 5 lakh as compensation to the Petitioners within a month from the date of receipt of the order.

AGGRIEVED by this order, Respondents filed an appeal before the State Commission which accepted the appeal. The operative part of the order of the State Commission is reproduced: "We have heard the learned Counsel for the parties and also have carefully gone through the materials placed on record including the impugned judgment/order. Whether the appellants/OPs are negligent or deficient in rendering medical service to late Kailash Prasad Bhagat and if so, whether he died because of their negligence, this is crucial question in this appeal. The only question which needs to be determined in this case is as to whether the anesthesia given by the appellants/OPs to late Kailash Prasad Bhagat was so excessive due to which he died in the operation theatre itself. In order to substantiate these allegations, the respondent/complainant did not produce any evidence whatever to show that the appellants administered excessive dose of anesthesia to Kailash Prasad Bhagat. The oral allegation made by the complainant in the complaint petitioner had denied in the reply. In these circumstances, it is not possible to reach at a conclusion about the truthfulness of the allegation made by the respondent/ complainant particularly when it has been denied by the appellants. Lot of evidence oral as well as documentary was required to establish the allegation made by the complainant in her complaint. Such type of evidence could be produced only in a Civil Court of competent jurisdiction. District Forum could not have decided such a matter in summary proceeding without evidence produced by the parties under the Consumer Protection Act. District Forum has relied upon the police diary but it has not given any cogent reason and has not referred to such evidence documentary or oral evidence on the basis of which it could be held that the appellant was not competent to administer the anesthesia to injured Kailash Prasad Bhagat and wrongly given excessive dose of anesthesia. Police diary is not a valid piece of evidence. It is merely a statement of facts collected by the police during investigation. There is no positive evidence to establish that heavy dose of anesthesia was administered to injured Kailash Prasad Bhagat which resulted in his death. In reply, it has been specifically stated by the appellants that injured Kailash Prasad Bhagat died because of head injury sustained due to fall on the ground which unfortunately neither explained to the appellants nor appellants noticed it during the course of treatment. District Forum, without any cogent evidence has come to the conclusion to hold that head injury of late Kailash Prasad Bhagat found in post-mortem was caused by the skilled doctors i.e. O.P. No. 1 and OP No. 2 (appellants) just shortly after his death only with a view to counter their negligence in administering anesthesia to him. This cannot be accepted without positive evidence."

Hence, the present revision petition.

COUNSEL for Petitioner while reiterating his earlier submissions made before the District Forum stated that the patient was fully conscious when he was taken to the clinic/operation theatre for plastering. Because a heavy dose of anesthesia was given to him without consent and administered by doctors who were not competent to administer anesthesia and without assessing whether the patient was fit to be administered anesthesia, the patient died. This was a clear case of medical negligence and deficiency in service. He cited medical evidence to indicate that administering anesthesia soon after taking a meal can prove to be fatal as vomiting can occur leading to semi-digested solid food material becoming lodged in the trachea leading to asphyxia. In fact, this was one of the causes of death noted in the post-mortem report. Regarding the contention of the Respondents that the patient had died of a head injury received during the fall and which was believed by the State Commission, Counsel for Petitioner denied that the fall in the shop had resulted in any head injury. In fact, such a serious injury where there was fracture of the bone and swelling on the back of the head would have certainly been known to the patient and his attendants and also detected by the doctors had they properly examined him. Under the circumstances there is no doubt that the injury was after death.

COUNSEL for Respondents on the other hand totally denied the above contentions and reiterated that the dosage of anesthesia was very mild which was given only after due precautions were taken. Counsel for Respondents also quoted medical literature stating that it is accepted medical practice that on occasions a surgeon is obliged to work without the services of an anesthesiologist. We have heard the learned Counsel for the parties and have carefully gone through the evidence on record. The fact that the patient had fractures in his left elbow joint and wrist and that he had come to the Respondents clinic is not in dispute nor is the fact that he was administered anesthesia within a few hours of taking a meal. It is also not in dispute that the anesthetist was not available on that date and the anesthesia was administered by M.B.B.S. doctors who did not have any Diploma or Degree in Anesthesiology. The major issues on which there are differing contentions include whether the doctors were competent to administer anesthesia; whether due precautions were taken before anesthesia was administered; whether the consent of the patient/his relatives was taken and also whether the death was because of a head injury suffered during the fall or because of consequences due to negligence in administering of anesthesia.

THE contention of the Counsel for Respondent that on occasions a surgeon is obliged to work without the services of an anesthesiologist, we feel would apply in cases of serious medical emergency in which the life of a patient is at risk and not in the instant case where the patient only had fracture of the left elbow joint and wrist and was thus not in a precarious medical condition. Under the circumstances, we are of the view that there was no compulsion as such on the two M.B.B.S. doctors to administer anesthesia. Further, there is credible evidence recorded by the District Forum to conclude that due precautions were not taken while administering anesthesia. For example, there is no record that the vital parameters of the patient were checked to see that he was fit to be given anesthesia. On the other hand, it is not disputed that the patient had taken a meal quite recently and this is usually contra-indicated while administering general anesthesia because this can lead to vomiting, obstruction in the trachea and subsequently to asphyxia. In the instant case it is clear in the post-mortem report that semi-solid digested food was lodged in the trachea leading to asphyxia. The District Forum also concluded that the written consent produced by the Respondents was "fake". We see no reason to dispute this because the person (Krishan Prasad Bhagat) purported to have given the consent was never produced and on the other hand there is evidence that the brother-in-law of the deceased is one Sarvesh Prasad Sah who has denied that his consent was taken. While there is no dispute that the patient had suffered severe head injury which included a fracture of the bone and diffused swelling over the back of the head, there is no evidence to indicate that this injury was sustained at the time of the fall. On the other hand, such an injury would have certainly caused pain and discomfort to the patient and there is no reason why he would have withheld this information from the doctors. Under these circumstances the conclusion of the State Commission that the head injury occurred at the time of the fall and the death of the patient was because of this injury and not due to wrong administration of anesthesia is difficult to accept.

THE principles of what constitutes medical negligence are now well established by many landmark judgments of the Supreme Court which in turn have taken note of well-known judgments of the British Courts as well as those of the U.S.A., Canada and Australia on this subject. In the context of this case, it would be relevant to refer to the Apex Court''s judgment in the case of Jacob Mathew v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=(2005) 6 SCC 1, in which the Constitution Bench of the Hon''ble Supreme Court reaffirmed inter alia that the test for determining medical negligence as laid down in the Bolam''s case Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, would hold good in its applicability in India. While adjudicating allegations of medical negligence on the part of a doctor on the touchstone of the Bolam''s test, we are required to answer three questions: (i) whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) whether the doctor adopted the practice (of clinical observation diagnosis-including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. It would also be relevant in respect of this case to refer to the judgment of Hon''ble Supreme Court in Samira Kohli v. Dr. Prabha Manchanda and Anr., I (2008) CPJ 56 (SC)=II (2008) SLT 25=(2008) 2 SCC 1, which summarizes the principles relating to consent as follows: "(i) A doctor has to seek and secure the consent of the patient before commencing a "treatment" (the term "treatment" includes surgery also). The consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to."

IN the instant case, keeping in view the principles of what constitutes medical negligence, it is clear that the Respondents were guilty of the same. Specifically, it is to be noted that the doctors in question did not possess medical skills expected in the field since they had no Diploma or Degree in Anesthesiology. Further, they administered anesthesia in a non-life threatening situation and without taking due precautions and making the patient undergo necessary tests to ensure that he was fit for administration of anesthesia. This was probably the cause of asphyxia which was one of the causes of his death. There is also no evidence that valid and real consent was taken; on the other hand, Respondents fabricated the story of having obtained consent from a fictitious person. All these facts have been clearly discussed in the well reasoned and detailed order of the District Forum on the basis of credible evidence. In view of these facts, we have no doubt that the Respondents were guilty of medical negligence and thus deficiency in service. The State Commission erred in not taking into account the credible evidence produced before the District Forum and, therefore we set aside the order of the State Commission.

THE District Forum has awarded Rs. 5 lakh as compensation to the Petitioners. Taking into account the reported income of the deceased and all other relevant aspects, we feel that compensation of Rs. 3 lakh would meet the ends of justice in this case. The order of the District Forum is, therefore, modified to this extent. To sum-up the Respondents are directed to pay jointly and severally compensation of Rs. 3 lakh to the Petitioners along with Rs. 5,000 as costs.

THE Revision Petition is disposed of on the above terms. Revision Petition allowed.