B S Krishna Kumar vs MANIPAL HOSPITAL

THIS complaint is filed on 15.12.1997 by the complainants Shri B.S. Krishna Kumar, his wife Smt. B. Lalitha, Smt. Laxmi, w/o Ashok Kumar and Kum. B. Sarika, d/o B. Ashok Kumar, against Manipal Hospital, doctors N.K. Venkataramana, S.N. Simha, Vamadeva Rao, Praveen Kumar Sharan, working in O.P. 1 Hospital, praying for awarding compensation of Rs. 19.00 lakh, and for a direction to O.Ps. 1 to 6 to pay it with interest @ 18% p.a. from the date of filing the complaint till payment date.

THE brief facts are that Ashok Kumar, son of complainants 1 and 2, and husband of complainant No. 3, and father of complainant No. 4, was running footwear business in Vijayawada, and on 24.12.1995 at about 6.00 p.m. in Madanapalli, he sustained bullet shot injuries to his abdomen/left lower chest in police firing, where he had gone on business. He was initially treated at Community Hospital, and discharged at 7.30 p.m. He was taken to O.P. 1 Hospital on the same day at 10.30 p.m. and admitted for treatment, on 26.12.1995, he was operated by Neuro Surgeon to remove the bullet, which was said to have been lodged adjacent to L1 -L2 Spine. Patient developed features of intestinal obstruction (paralytic ileus), after the operation. On 28.12.1995, he was operated by general surgeon by Exploratory Laparotomy (incision through the anterior abdominal wall). At that time, it was noted that there were (i) entry and exit wounds over the anterior surface of the fundus stomach (the part of stomach to the left and above the level of the opening osophagus); (ii) Jagged entry wound in the left dome of the diaphragm; (iii) contusion (injury to a part without a break in the skin or bruised of the mesentry (a membraneous fold attaching various organs to the body wall, especially the peritoneal fold attaching the small intestine to the dorsal body wall) of the splenic; (v) Bile stained fluid in the peritoneal cavity (peritoneal serous membrane, lining the walls of abdominal and pelvic cavities and investing the contained viscera). The perforations were said to have been closed in the course of the operation conducted on that day. However, on 3.1.1996, patient developed a burst abdomen - once again secondary suturing was done within a few hours. The patient is said to have died the same day. Deceased was taken for post mortem. Post mortem report shows stomach contained green coloured fluid, and on dissection of abdomen, it was found that the mesentry and coils of intestine showed adhesion softening covered by fibrinious inflammatory exudates amount 300 ml. Cause of death however was not given. Discharge summary copy and post mortem report are produced in Annexures C1 and C2. After the patient sustained injury, he was immediately shifted to O.P. 1 Hospital without delay, with the belief that the patient would receive immediate, timely, and specialized treatment, since O.P. 1 is a specialized hospital providing sophisticated diagnosis and treatment. O.Ps. were negligent in diagnosing and treating the patient as a result of which the patient died. The apparent negligence of O.Ps. is evident from the discharge summary and death of the patient Ashok Kumar to be attributed to the following factors. (a) As per discharge summary, patient was diagnosed as suffering from gun shot injuries to the lumbar spine, stomach and diaphragm again, but the patient on 26.12.1995 was operated to remove the bullet from the back (two days after admission), and on 28.12.1995 (four days after admission) when the patient suffered from features of intestinal obstruction, it was realized that exploration surgery of the abdomen had to be conducted to repair the damage that might have been caused from the point of entry of the bullet to the place, where it was lodged. The obvious and apparent delay of 4 days to detect the perforation caused as a result of the bullet entering the abdomen has proved fatal to the patient, since it is apparent that as a result of the internal wounds to the stomach and other viscera not being treated, peritonitis septicemia has been caused and ultimately be leading to the death of patient. (b) O.Ps. have not taken correct abdominal X -ray or transislateral decubitus X -ray of the abdomen to rule out air under diaphragm, which is the first thing which ought to have been done in a case of perforation of stomach since the perforations would have been revealed immediately and timely treatment would have saved the patient. (c) When the patient seen to have suffered an entry wound in the front of the body, O.Ps. ought to have traced the path of the bullet from the place of entry to the place where it was lodged and any injuries caused to the body organs in the path of the bullet ought to have been suspected diagnosed and treated in an appropriate manner. This is more apparent especially after the chest X -ray was normal and when the bullet has traversed from front to back, it had to penetrate viscera in the abdomen. An abdominal erect X -ray ought to have been taken since the patient also had periumblical pain and sluggish bowel sounds at the time of admission of the patient to O.P. Hospital. (d) Post mortem report discloses the mesentry and coils of intestine showed adhesion softening covered by fibrinious inframmatory exidates about 300 ml., which indicates intestine and other viscera were severely infected at the time of patients death. In the event, if patient was operated immediately on being admitted, and perforations to the stomach, and other organs, liver being closed effectively treated, the operation could have been prevented, and patient would have survived. (e) Discharge summary discloses that patient was subjected to ultra sound scanning, but nevertheless, the perforation in the stomach, diaphragm and intestine and mesentry were not detected. Failure of O.Ps. to diagnose and detect the perforation on the date of admission of patient to O.P. Hospital amounts to gross negligence of O.Ps. The patient has been treated casually and in slip shod manner. Negligence of O.Ps. are of such nature, amounting to total absence of reasonable skill and care that ought to have been taken/administered by a qualified medical practitioner. Delay caused as described above can be attributable to the gross negligence of O.Ps., which proved fatal to the patient. It amounts to deficiency in service rendered to the deceased by the O.Ps. The deceased was running Footwear Business and Commission agency in Vijayawada for profit Show Co., and Distributor of Miami Footwear in the same place. He had a monthly income of Rs. 15,000 to 20,000 at the time of his death. He had every prospect of increasing his income, since he was doing well in the business. Deceased was maintaining his parents, wife and child out of his income. As a result of his death, they have lost their only support, and wife is deprived of the companionship and source of livelihood, and child is deprived of fathers love and affection and support. The complainants in all have suffered a loss of about Rs. 19.00 lakh including medical expenses, loss of dependency, loss of consortium, and all other expenses on account of death of Ashok Kumar. Since his death is as a result of negligence of O.Ps., they liable to reimburse the complainants, the loss suffered by them. Cause of action occurred on 3.1.1996 when Ashok Kumar died in the care of O.Ps. at Bangalore. The complaint is in time.

VERSION of O.Ps. 1, 3, 5 and 6 is complaint is frivolous, unrighteous and unsustainable in law and on facts. It is an attempt for an unlawful gain. It does not set -out facts fully and correctly. Several facts are mischievously twisted suit the dishonest claim of complainants for making out a false case against O.Ps. Complainant is not a consumer, and complaint made out is not a consumer dispute under the Act. O.Ps. are not traders thereunder. Health care services rendered by them do not come within the service under the Act. O.P. Hospital is non profit making organization run by Medical Relief Society of South Canara, which renders highly subsidized service in all specialities of medicine to all citizens, and particularly rural poor. Complaint is not tenable, as matter involves complexity and intricate question of medical science and technology, which are too intricate and complex to be decided in the summary proceedings before the Commission, which is not equipped with to decide such questions. It has no jurisdiction to decide the complaint. O.P. hospital is one of the best hospitals in the country known for high standard of care, hygienic and treatment, and is well equipped with sophisticated equipments. O.P. Hospital is not a legal entity being a unit of medical relief society of South Canara (Regd.) and it cannot be made O.P. Complaint is bad for non joinder of necessary party, and it is liable to be dismissed. O.Ps. 2 to 6 are not employees of O.P. 1 Hospital, but consultant surgeons. O.P. 6 Dr. Sharan Srinivasan is a post graduate in Neurology. He had neither seen, nor he was involved in any treatment medical or surgical of the patient Ashok Kumar. He had only prepared the case summary after going through all the case records at the request of other O.Ps. O.P. 6 is not a necessary party. Complainants have not come with true facts. Statements in the complaint are fully incorrect.

PARAWISE reply is given to the complainants. Para 3, 4 is accepted. Patient was brought to O.P. 1 Hospital casualty department, with the history of having sustained bullet injury to the left side of his chest at Madanapalli around 6.00 p.m. on 24.12.1995, at 10.50 p.m. on 24.12.1995, patient was examined by Duty doctor in the casualty department and was found to have an entry wound in the left side of the chest between the 6th and 7th inter costal spaceanteriorly. Patient was fully conscious and oriented. Immediately chest X -ray p.a. View, X -ray of erect abdomen AP and Lateral View are taken. An emergency ultra sound scanning of the abdomen was also performed. Patient was promptly referred to the department of General Surgery, Cardio Thorasic Surgery and Neurosurgery. O.P. 2 consultant, Neurosurgeon in O.P. 1 Hospital operated on the patient on 26.12.1995 and the bullet was removed. The surgery was uneventful. The patient was examined once again after the surgery by O.P. 3 Consultant Surgeon. Patients vital parameters were found to be normal and he was fully conscious. The patient complained of sudden, severe acute abdominal pain, breathlessness and distension of abdomen only on 27.12.1995 at around 11.30 p.m. Immediately, Dr. Vani Paramar, MS, the Registrar, Dept. of Surgery, examined the patient. Patients blood was sent for investigation, once again X -Ray of abdomen was taken and ultra sound scan of the abdomen was also performed on reviewing all these reports and clinical findings, a delayed perforation of the intestine was suspected. On 28.12.1995 a team of efficient and experienced surgeons consisting of O.P. 3, O.P. 4, Dr. Vani Paramar conducted Laprotomy (opening of abdomen). Patient was given appropriate surgical treatment and was shifted to ICU. Initially, he showed signs of improvement. Even on 2.1.1996, a day prior to death, he was fully conscious and his abdomen was soft. Abdominal diffusion was suspected on 3.1.96, on examination by the surgical team. The patient was shifted immediately to operation theatre and secondary suturing was done. The same day in the evening his condition was deteriorated and inspite of all the necessary care and treatment that was given, the patient died. O.Ps. submit the green coloured fluid alleged to have been present in the stomach of the patient on post mortem is bile, and is normally found in the stomach. The presence of adhesion softening covered by fibrinous inflammatory exadates in the mesentry and coils of intestine is a common feature shown in the abdomen after any abdominal surgery and post mortem findings do not go to show any negligence of O.Ps. in treating the patient, regarding para 5 of complaint. O.Ps., have given timely, expert and specialized treatment, correctly diagnosed the patient as per hospital records, and there was no negligence at all. There was no delay in conducting necessary operation. Records pertaining to the patient gives clear picture of events. Patient was brought to casualty department of O.P. 1 Hospital on 24.12.1995 at 10.50 p.m. and was examined by duty doctor as already narrated in the previous paras. On examination by O.P. 3 a consultant surgeon on 25.12.1995. Patient was stable and fully conscious; abdomen was soft and chest was clear. He was kept under observation. There was no evidence of clinical, radiological and ultra sound scan of abdominal injury. Chest continued to be clear and did not show any evidence of haemothorax or pneumothorax. Patient was referred to Neurology Department, and there it was decided to remove the bullet. On 26.12.1995, O.P. 2 consultant Neuro Surgeon removed the bullet by conducting an operation, which was uneventful. After surgery, O.P. 2 again examined the patient on same day. He was fully conscious and stable. His abdomen was soft. There was no clinical evidence of any abdominal injury. Patient was put on an appropriate treatment. It is only on 27.12.1995 at about 11.30 p.m. Patient complained of sudden severe, acute abdominal pain, breathlessness and distension of abdomen. Imediately, all the investigation X -Ray, Ultra Sound Scan were conducted. On reviewing them and clinical findings, a delayed perforation of the intestine was suspected, and appropriate treatment was given on 28.12.1995 by conducting operation. After surgery, patient was shifted to ICU and was given an appropriate surgical treatment. He was also treated by Dr. K.D. Phadke, a consultant Nephrologist of O.P. 1 Hospital. Patient initially showed signs of improvement. The allegation of delay of 4 days in detecting the perforation caused as a result of bullet entry, which proved fatal to the patient, and as a result of internal wound to the stomach and other viscera not being treated. Peritonitis, septicemia was caused ultimately - leading to his death is baseless and false. On admission, examination of the patient and necessary investigations done, did not reveal any clinical, radiological or ultra sound evidence of any injury to the organs in the chest and abdomen. It was not felt necessary to trace the path of the bullet. What was done was well accepted standard surgical practice adopted even in armed forced. There was no clinical radiological or ultra sound Sonological evidence of perforation at all at the time or after admission of the patient till 27.12.1995. The perforation was evidently a delayed one and immediately after its detection, patient was properly treated by conducting a Laprotomy. As such, there was no delay in detecting or treating the perforation as alleged. The allegation that there was great negligence on O.Ps. and patient has been treated casually and in a slip shod manner shows only ingratitude of the complainants. By making them, they are only trying to lend colour to their otherwise unlawful and unsustainable case. Patient was given all necessary care, timely and expert treatment. O.Ps. have exercised the reasonable skill and the patient was properly taken care of. They plead ignorance of deceased patients business, earning and put the strict proof. Claim mode is exorbitant, inflated and illegal. Complainants are not entitled to any compensation. In spite of all necessary care taken and treatment given, unfortunately, patient died, for which O.Ps. cannot be held liable. There was no deficiency in service or negligence in treating the patient by them. Complainants case is based on the case summary and post mortem report only. It cannot be improved by additional records. They have sought for dismissal of complaint with exemplary cost. O.P. 2 has filed his version, adopting the version of other O.Ps. so far as it concerned to him. He is not an employee of O.P. 1, but consultant Neurosurgeon. Complaint does not disclose cause of action against him, and it is liable to be dismissed. Patient, when brought to O.P. 1 hospital after gun shot injury was conscious and oriented. Patient, on examination by duty doctor, was found to have an entry wound on the left side of between the 6th and 7th inter costal space anteriorly. When the patient was taken finally for operation to remove bullet on 26.12.1995 was conscious and oriented. O.P. 2 conducted the operation on the patient on that day. It was only after the patient was cleared for the said surgery by O.P., 3 and O.P. 5, O.P. 2 came into picture and that too because bullet had lodged itself in the spinal canal. Based on their investigation, O.P. 3 and O.P. 5 excluded any injury to the abdominal and Thorasic viscera (organ) after which the clearance for the removal of bullet from the spinal canal was given. The role of O.P. 2 was limited, only to the extent of removal of the bullet and that after the said surgery, patient was examined by the consultant surgeon on the same day and the abdominal condition was found to be normal. O.P. 2 operated on the patient successfully on 26.12.1995 and the bullet was removed by performing Laminectomy (removal of the lumber i.e., body covering of the spinal canal behind). The surgery was uneventful and the patient was recovered fully. Without any Neurological deficiency. The patient was examined after surgery on same day by O.P. 3 and his vital parameters were found to be normal. He was fully conscious after the surgery without visible signs of discomfort or any abnormality pertaining to the abdomen. Had the bullet not been embedded in the spinal canal, O.P. 2 would not have ben involved in the Management of this case at all. O.P. 2 is not liable to pay compensation to the complainants. Compensation and interest sought are exorbitant, baseless and imaginary. He has sought for dismissal of complaint.

COMPLAINANTS have relied on Exts. C1 to C4, and have filed the affidavit of complainant No. 1 B.S. Krishna Kumar and he is cross -examined as CW 1, and filed the affidavit of Dr. Ravindra Naik, Medical Superintendent, District Medical Co -ordinator, Hindupur. He is cross -examined as CW 2. O.Ps. have relied on Exts. R1 to R97. They have filed the affidavit of O.P. 2 and O.P. 3. They are cross examined as RW 1 and RW 2. Heard both sides. O.P. 2 has filed written arguments. Other O.Ps. have filed summary of events and highlights. They have also filed memo of citations with rulings and medical literatures with chart of organs of digestion bones. Select Journal of Resources - Archives of Surgery (Plate IV) (Plate II) Article on Current Management of Peptic Ileus perforations (pages 159, 162), Text book of surgery - Principles of surgery, specific consideration 9 pages 674 and 677) small intestine.

THE learned Counsel for complainants has argued that on 24.1.1995, Ashok Kumar sustained bullet injury in Madanapalli, where he had gone for business at 6.00 p.m. He was imediately treated in the local hospital and at 10.30 p.m. he was shifted to O.P. 1 Hospital. Bullet passed through the left side chest below nipple and resulted in L1, L2 vertibra. There is no dispute about it, as per cross -examination of RW 1. As per Ext. R14, injury on the perforation of stomach. Operation report, and admission of RW 2 at page 3 in cross -examination, opened up closed domics, and antibiotics was given after removal of bullets. Doctors were unaware of what has happened. In between any doctor should have acted on 24.1.1995 itself. It was omission. Ext. R5 is case summary - Pain on left side around middle stomach, abdominal senstion urinary retention - soft abdomen - bowels sluging not normal. Ext. C3 stomach to back - entry of bullet surgery is urgent. Paras 5 to 7 of affidavit of CW 2. Ext. R18 - admission of patient on 24.1.1995. Ext. R6 is history sheet. Ext. R9 - O.P. 2 removed bullet on 26.12.1995. Ext. R17 at page 28, 28.12.1995 int. abdomen (page 41). Stomach operation was done to rectify perforation. Consent is 2.1.95, on 3.1.95 burst abdomen, patient died on same day. Clear case of negligence by O.Ps. There is no version by O.P. 1 vicarious liability applies, as per O.P. 3 version. No case of detection of injury early. RW 2 did not notice abnormalities - negligence. He has not gone through Ext. R6 notes of Neuro Surgeon. Paralysis in intestine. Bowel sluggishness not noticed. Para 10 of affidavit, Ext. C2 is the post mortem report, no cause of death Ext. R5 case summary burst of abdomen. Para 13 of affidavit of O.P. 3 not noticed Ext. R6 - Tenderness around canoles (no interior). Cross -examination of RW 1, N.K. Venkataramana, top Neuro Surgeon ignorant of X -ray, scanning was done before surgery. On 24.12.1994 referred to General Surgeon. RW 2 cross -examination page 2 is contrary to RW 1 say. Ext. R18 at page 38 patient died. He was doing business in Kakinada of Rs. 20,000 per month income. Dr. Simha at R18 - oral feeding to the patient on 25.12.1994. Stomach spreads. It was not noticed. Treatment after 2 days, clear case of negligence. Para 15 of affidavit of O.P. 3 Dr. Simha - culture report - 12% heavy antibiotics was given. Complaint to be allowed. The learned Counsel for the O.Ps. 1 and 3 to 5 has argued that the patient sustained bullet injury at 6.45 p.m. on 24th December at Madanapalli and after initial treatment by the duty medical officer in District Hospital at Madanapalli. He was brought to casualty department of O.P. 1, patient was examined initially by casualty duty medical officer. He had bullet injury with the point of entry on the left side of the chest, there was no point of entry in the abdomen. On the same day, at 11.00 p.m., he was seen by General Surgery Department after admission within 10 minutes and little over 4 hours after injury. The abdomen was soft with no distention i.e., clinically it was OK. No clinical evidence of any abdominal injury. X -ray of the chest was normal and that of abdomen did not show any evidence of free air/gas under diaphragm indicating that there was no evidence of injury to stomach and intestine. The X -ray of the abdomen shows a bullet to be lodged next to the upper lumbar spine. There is no injury to the stomach and intestine. The ultra sound showed normalcy in the abdomen. The patient was referred to cardio thorasic and neurosurgery department who after examination found that there was no clinical and X -ray evidence finding of any injury to the chest Neurosurgery Department on seeing the bullet near the spine, the patient was kept under observation. General surgery department found the abdomen of the patient was soft indicating no clinical evidence of injury to the abdomen organs. During 25th December, whole day, the patient was stable and comfortable. Initial X -ray of chest and erect abdomen did not show any injury to the abdominal chest. The patient was examined repeatedly, and monitored closely by the doctors concerned. The patient did not know any surgery of abdomen or chest injury for about 36 hours after sustaining the bullet injury. The patient did not know any surgery of the abdomen or the chest, but needed to remove the bullet from the back, which was done on December 26th by Neurosurgery Department. The condition of the patient was stable during operation and there was no clinical indication of injury, to the abdomen and the chest. Post operatively, the patient was once again seen by Generally Surgery Department. The first clinical sign of possible abdominal injury was noticed on the night of 27th December by the Surgeon on duty in the hospital. Immediately, X -ray, ultra sound and blood test were ordered and it was concluded that the patient needed operation of the abdomen. On 28th December morning, the patient underwent emergency Laparotomy of the abdomen (opening). On opening the abdomen, it was found that the patient had shown evidence of delayed gastric perforation and that was closed. A small hole in the diaphragm was also closed. The patient was shifted to ICU where he was monitored closely and necessary medications were given. He needed to have assistance to breath and Ventilator was used. The specialists opinion were secured during his stay in the ICU. The patient developed burst abdomen after surgery possibly due to his chest being bad and ventilator have used. It was detected and immediate appropriate action was taken. He was taken back into operation theatre and abdomen was closed once again. He deteriorated and died on 3.1.1996 at 9.45 p.m. of cardiac arrest.

THE patient was first seen in the O.P. 1 Hospital by 3 specialists in General Surgery Cardio Thorasic Surgery and Neuro Surgery within minutes of arrival in the O.P. 1 Hospital, 4 hours after the injury. The patient was examined repeatedly and did not show clinical findings of injury to the abdominal chest for a period of 36 hours since the injury. The patient was examined clinically and X -ray of chest abdomen (erect) and ultra sound of the abdomen was done to determine and locate the bullet in the body of the patient. The patient was operated for the abdominal injury and it shows a delayed gastric perforations. On most occasions, when there is a perforation (hole), created in the stomach or intestine due to any cause like ulcer, stab injury, bullet injury, the hole remains open. The contents of the stomach/intestine which could be air, digestive juice or both, leak out from the organ and enter the peritoneal or abdominal cavity which is called as free gas in the abdomen or leakage of stomach/intestine contents. When this happens, after the examination of the patient, it was noticed that he had severe pain, the abdomen will gradually distant or bloat, and on pressing the abdomen the muscles of the abdomen wall will become tight which is called as guarding. X -ray of the chest and erect abdomen will show free gas in the abdominal cavity so also ultra sound. When these signs are absent, the abdominal is normal to feel which is called as soft abdomen. The patient did not show the above sign of tenderness (pain and pressing or guarding and distention for a period of 72 hours from the time of injury). In rarely cases when a perforation takes place in the stomach/intestine due to the causes discussed above, the hole closed of temporarily due to the tissues sticking together, which remains closed from few hours to even 4 -5 days after the initial injury. Suddenly, the sealed of perforation opens up and the contents of the stomach/intestine leak out and produced the signs and symptoms above stated which is called delayed perforation or delayed manifestation of perforation. If they are absent, the abdomen is normal, which is soft abdomen. Immediately after admission, the patient was not operated by the General Surgery Department as the injury was in the chest region and the abdomen did not show any clinical signs of injury, and X -ray of chest and erect abdomen and ultra sound scan content show any findings of abdominal injury which situation remained for 36 hours after the initial injury. The patient was continuously monitored. Following well accepted protocol of treatment, the patient was not operated by the General Surgeon Department. There was no indication of damage to lung and other structures even though the bullet entry in chest repeated clinical examination which showed as above. There were no evidences of air leak and lung for collection of blood in the chest. The patient had absolutely no difficulty in breathing and so he was not operated by cardio thorasic department. The bullet was near the spine, which may have caused trouble later. The patient was stable 36 hours after injury, and he did not show any clinical or radiological or ultra sound evidence of injury to the chest and abdomen. So Neurosurgery Department operated and removed the bullet. The patient was given necessary surgical treatment, and immediate appropriate action was taken and needful was done, and patient was operated for abdominal injury. He received the best possible care. There was no negligence. The patient was expeditiously seen by the doctors representative specialities and all necessary tests were done. The patient was monitored continuously. Well accepted protocol of treatment was followed at all times. Immediate appropriate and adequate treatment was given when the patient showed signs of abdominal injury after 72 hours. He was kept in the ICU 24 hours monitoring and ventilator. He was seen by highly qualified specialists. The medical signs has limitations. The death of the patient occurs even when the best care is given, which is unfortunate. There was no other means of detecting abdominal injury by any other tests. Laparoscopy is the recent development and at that time it was not available. Fault or unsuccessful outcome does not imply negligence. In spite of the above, the Counsel for the other O.Ps. has produced the copy of the Article regarding perforated duodenal ulcer by Arthur J. Donovan, MD; Thomas V. Barne, and John A. Donovan, MD and copy of review article ''Current Management of Peptic Ulcer Perforations'' by Menakuru SR, and the treatment of Ileus published in the Principles of Surgery and Specific Considerations - The text book of surgery. He has cited by case laws and produced them, which will be considered in the below paras.

THE learned Counsel for the O.P. 2 has argued that he had a limited role in the treatment referred to the deceased patient of removing the bullet from the body of the deceased. He was involved since the bullet has been lodged in the spinal canal of the above patient. In reply to para 6 of page 4 of the complaint under 3 heading, has drawn, the contention of the evidence of CW 2 that there are no records produced by the Hospital, the above patient was examined by the General Surgeon or cardiac thorsic surgeon and if the general surgeon had examined the patient on 24.12.1995 and done exploratory Lapratomy and suturing the injured organs in the body of the bullet, the patient would have been pushed to such a bad condition and there was a delay in it that which he turned as false allegations. The Medical records amply administered that only after clearance was obtained from general surgeon and cardio thorasic surgeon O.P. 2 performed the surgery to remove the bullet. He has sutured the spinal in Neuro Surgery. A bullet being a foreign body cannot be allowed to be retained in the body since it was lodged in the spinal canal. He was the appropriate surgeon to remove the bullet which can be done only from the behind the back. During such surgeries, enter and exit wound caused by the bullet do not come in the course (cannot be accessed). A Neuro Surgeon does not perform respiratory laparatomy and suturing of the organs. O.P. 1 had utilized the services of General Surgeon and cardio thorasic surgeon and treated the other ailments of the deceased patient. A surgery was performed only after clearance from the other experts as evident from the medical records - Pages 28 (Ext. R17) and page 38 (Ext. R18), and pages 141, 142 at Ext. R33, which shows that the patient was referred to and seen by General Surgeon and Cardio Thorasic Surgeon on 24.12.1995 itself, and patient was reviewed by Dr. S.N. Simha O.P. 3 of General Surgeon who has stated that only General Surgeon is required to be present. The surgery done by O.P. 2 is a planned one and much prior to operation. It was uneventful and after the operation, the patient was seen by a consultant general surgeon on same day. Till 27.12.1995 at around 11.30 p.m., the patient had no complaints. As soon as the abdomen pain was noted in the patient, he was immediately contacted to be reviewed by the general surgeon on 27.12.1995 as per page 39. O.P. 2 was not involved in the treatment of other ailments of the patient after the removal of the bullet. Evidence of CW 1, the father of the patient is unreliable as he did not know what happened to his son after admission to the Hospital, and whether any pre -operation tests have been conducted in O.P. 1 Hospital, and at what stage O.P. 2 entered into picture. His evidence does not substantiate allegations of negligence level against O.P. 2. The cross -examination of an expert doctor CW 2 shows the admission that the patient was examined by General Surgery, Cardiac Thorasic Surgeon and Neuro Surgeon and he was cleared for operation by the other two surgeons and it was conducted by the O.P. 2 Neuro Surgeon. He has specifically stated that ''it is absolutely correct that I have not found any fault with the operation conducted by Neuro Surgeon''. This witness is not treated as hostile and cross -examined by the complainant. The General Surgeon has given convincing reasons for the treatment adopted by him. The allegations against O.P. 2 that he did not involve any services in General Surgeon and Cardio Thorasic Surgeon. He has negatived by the medical records and evidence of CW 2 admitted the same, and once a General Surgery is involved, the decision whether an exploratory Lapractomy had to be performed and if so as to with it has to be performed, have to be decided by them and the question of negligence cannot be inputted of the O.Ps. Treatment given by O.Ps. to the patient was in accordance with the care and skill of the highly competent doctors and surgeons. Points for consideration are whether - (1) The complainants have proved that there was deficiency in service or negligence on the part of the O.Ps. in treating the deceased patient Sri Ashok Kumar? (2) If so, complainants are entitled to the compensation sought for? (3) What Order?

We answer them (1) and (2) in negative, (3) see operative portion

O .Ps. have cited 1. AIR 1969 SC 128, in the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Another, regarding the duties of doctors towards the patient, negligence and for under Section 1 -A of the Fatal Accident Act of 1855 in Civil Appeal No. 547/1965 decided on 2.5.1968. In this judgment, the observation made in para 11 that ''doctor no doubt has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in case of emergency.

III (1993) CPJ 1398, in the case of R.K. Chadha v. A.K. Gupta, in the Complaint No. 43/93 decided on 12.7.1993 by the Haryana State Consumer Commission under Section 2(1)(c) of the Consumer Protection Act. The relief claimed is entirely on the ground that had his untimely death ensured then there would have been loss of emoluments. Such imaginary claim cannot be entertained in the consumer jurisdiction.

AIR 2000 Jammu and Kashmir 1993 in the case of University of Jammu and Others v. Brinder Nath and Others, in CIMA No. 60/95, decided on 20.5.1999 under Section 15 of the Consumer Protection Act. University is not arrayed and respondents need corporate name though University was corporate body in view of the Section 4 of the University Act. Objection against taken. No remedial measures however taken. Held, proceedings, were not properly initiated (para 13).

I (2002) CPJ 4 (SC)=VI (2001) SLT 735=2001 CTJ 797 Supreme Court in Civil Appeal No. 2977/1992, decided on 25.9.2001 in the case of Smt. Vinitha Ashok v. Lakshmi Hospital and Others. Course adopted by respondent No. 2 appeared as reasonable and although the risk involved might have called for further investigation, the doctors view to the contrary could not be dismissed as being illogical. The case of negligence on the part of the O.Ps. are not established. Even if there is difference of opinion amongst the expert on a particular procedure adopted by doctor, but a procedure which is commonly in practice in an area if conducted by a doctor, it cannot be said that there a negligence on his/her part. A doctor will not be guilty of negligence if he has acted in accordance with the practice adopted as proper by a responsible body of men skilled in their particular art and if he has acted in accordance with such practice merely because there a body of opinion that contrary view will not make him liable for negligence.

2002 CTJ 189, in the case of Dr. Indira Kartha and Others v. Dr. Mathew Samuel Kalarickal and Another - A medical negligence - Consumer Protection Act, 1986. A medical practitioner is not a insurer and is not to be blamed every time something goes wrong - indeed any medicines things can go wrong in treating of the patient even with the best of care - proper treatment found to have been given to the patient and so also proper care bestowed upon him both before and after his operation - treatment fully explained to him and his informed consent was taken for the purpose - case of negligence against the O.Ps have not been established - the complaint is dismissed. The general principles laid in the above decisions are considered in the instant case in the course of discussions.

WE have perused the complaint, versions, and evidence and cross -examination of both sides. We have also perused the medical literature and case laws cited. We have taken note of the contention of the both sides in the course of the oral arguments. The first requirement is the medical literature produced by the O.Ps. Under the heading Archives of Surgery Special Article on Perforated Duodenal Ulcer in Volume 133 No. 11, November 1998 Select Journal or Source. The complainant pointed out under the heading ''An alternative therapeutic plan, portion in the page No. 60 that ''if the perforation is sealed, the patient can be treated non -surgically''. If the perforation is leaking, secure surgical closure of the perforation is necessary. In another Article, under the heading sealed perforation Duodenal Ulcer discovered during elective Laparoscopic Cholecystectomy, the complainant has pointed out that ''during Laparoscopic Cholecystectomy (LC), there is a possibility of discovering concomitant occult intra abdominal pathology and the surgeon must be prepared to undertake the appropriate procedure. We evaluated the incidence of latent perforated Duodenal Ulcer in 5539 patients who underwent LC for gallstone decease at our Unit between November 1991 to November 2001, 7 (0.13%) cases of perforated Duodenal Ulcer were discovered. Following diagnoses of the perforation, Laparoscopic suturing and omental patch repair was carried out in 4 patients, open repair with selective vagotomy and pyloroplasty in 2 patients and an open suture and omental patch repair in one patient. In all cases, the cholestectomy was completed successfully (Endoscopy 2004 April 36 (4) 342.30). ''Review of Article under the heading current management of Peptic Ulcer perforation at Page 159 - Traditionally, perforated peptic ulcers have been treated by urgent surgical repair, with or without ulcer curative procedure. However, several studies have indicated that many patients can be managed without an operation. Wangensteen first advocated non -operative treatment in 1935 for patients with perforation but no pneumoperi -toneum on the premise that the perforation would probably have been sealed''. Page 162 under conclusion heading ''The management of perforated peptic ulcer disease has been debated for the last several decades. Opinions between authors differ greatly, with some advocating an algorithm consisting of non -surgical and surgical approaches depending on the characteristics of the patient presentation and others routinely advocating surgery, whether it be conservative or aggressive. Conservative management can be successfully adopted in patients diagnosed to have sealed duodenal perforations''. In the Text Book of Surgery under the heading Principles of Surgery and specific considerations which deals with the ileus - ''Common causes of serious degrees of inhibition ileus are many and varied and include intraperitoneal inflammations such as acute appendicitis or acute pancreatitis; etroperitoneal pathologic conditions such as ureteral colic, retroperitoneal haematoma, or fracture of the spine, thoracic lesions such as basal pneumonia or fractured ribs; and systemic causes such as severe toxemia, hyponatremia, hypokalemia, or hypomagnesemia. Several drugs have also been implicated. These include: morphine, popantheline, antacids, anticoagulants, phenothiazines, and ganglionic blocking agents. The treatment of ileus is essentially the treatment of the primary lesion. Rarely, paralytic ileus does not respond to conservative measures - the obstruction does not relent, and operation must be considered''. In many cases there is some degree of peritonitis too. Paralytic ileus following appendicectomy is an example. The condition may occur even where the peritoneal cavity had not been opened, e.g. after nephrectomy. It may also follow injuries, particularly if associated with retro -peritoneal haemmorhage. It may occasionally follow operations other than abdominal as after reduction of a fracture, or after even simpler procedures like the application of a spinal plaster jacket. The characteristic features of paralytic ileus are (1) the absence of pain in the presence of symptoms of obstruction. Sometimes there will be mild colicky pain - ''gas pains'', (2) vomiting of small mouthfuls without force and without effort at frequent intervals, and (3) a silent abdomen. On auscultation either no sounds are heard or only the transmitted heart sounds are heard. The case laws cited in this case are considered below. In III (1993) CPJ 1398 under Section 2(1)(C) of the Consumer Protection Act, 1986, it is held by the Haryana State Commission in Complaint No. 43/93 decided on 12.7.1993 that ''the relief claimed is entirely on the ground that had his untimely death ensured then there would have been loss of emoluments. Such an imaginary claim cannot be entertained in the consumer jurisdiction vide para 4. The decision in AIR 2000 Jammu & Kashmir 1993 deals with the effect of wrongful declaration of the result on the student who has approached the State Commission deals with the'' University not arrayed as respondent in its corporate name though university was corporate body in view of Section 4 of the University Act ''Objection against taken - no remedial measure, however taken held proceedings were not properly initiated''. This has no relevance to the instant case on hand. In the case of Dr. Lakshman v. Dr. Trimbak and Another (supra), under Section 1 -A of the Fatal Accident Act, 1855 Tort - negligence - duties of doctors towards his patient. ''The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency'' (Para 11). I (2002) CPJ 4 (Supreme Court CP)=VI (2001) SLT 735=2001 CTJ 797 (SC) under Section 2(1)(g)(o) - of the Consumer Protection Act, 1986 regarding medical negligence. It is observed in the said judgment that ''even if there is a difference of opinion amongst the experts on a particular procedure adopted by Doctors, but a procedure which is commonly in practice in an area adopted by a Doctor, it cannot be said that there is negligence of his/her part - A Doctor will not be guilty of negligence if he has acted in accordance with the practice adopted as proper by responsible body of a most skilled in that particular art and if he has acted in course that such practice merely because there is a body of opinion that takes a controlling view will not make him liable for negligence. ''In the case of Smt. Vinitha Ashok v. Lakshmi Hospital and Others in Civil Appeal No. 2977/92 decided on 25.9.2001 vide Paras 18 and 24. In the case of Mrs. Indira Kartha and Others v. Dr. Mathew Samuel Kalarickal & Another (supra), under the Consumer Protection Act, 1986 held in O.P. No. 280/1992 decided on 21.11.2001 - medical negligence the grievance that the 1st O.P. by his negligent act causes the death of the patient Kartha and he was subjected to operation for heart ailment which was not warranted at all. No expert evidence produced to sustain the allegations made by the complainant nor any standard book on medicines referred to medical practitioner is not an insurer and is not to be blamed every time something goes wrong. Indeed in medicine, things can go wrong in the treatment of the patient even with best of care. Proper treatment found to have been given to the patient and so also proper care bestowed upon him both before and after the operation. Treatment fully explained to him and his informed consent taken for that purpose. Cause of negligence against the opposite parties, are not established'' The general principles laid down in the above case laws are considered below in the instant case on hand.

FROM the material available on record and the arguments by both sides, it is seen that the complainants apart from the affidavit and the cross -examination of complainant No. 1 has examined a Doctor by name Ravindra Naik, Medical Superintendent, District Medical Co -ordinator, Hindupur, A.P. On going through the cross -examination of complainant No. 1, it is apparent that his evidence, so far as medical negligence is concerned, does not help the case of the complainants. According to the C.W. 1, he does not know how his son sustained the gun injury, which he came to know in the Hospital after getting the information from the case summary and from Doctors. He gave instructions to prepare complaint. Dr. Naik of Madanapalli furnished the particulars to prepare the complaint, he gave written instructions to prepare the statement. He furnished the particulars gathered from the Doctors to the Lawyer who prepared the complaint. The particulars given by the Doctors are also based on the other documents apart from case summary. The evidence is prepared by Advocate after getting the instructions from the Doctor. He has gone through the complaint and affidavit before signing them. He cannot understand the medical terms, but only knows the medical aspects. On the basis of general aspects, he furnished the particulars to the Advocate which he knew. Apart from Ext. C1, there were no other documents to prepare the complaint and affidavit. His son was injured with gun shot injury and was got treated him in the Community Hospital, and he does not remember the name of the doctor who treated him, as he was under tension. It is a Government Hospital with qualified Doctors who gave First Aid to his son, and told to shift him to Manipal Hospital. Patient was brought by C.W. 1 accompanied by a Doctor. He doew not know where he was admitted in the Manipal Hospital, and who examined him, and whether X -ray and Ultra Sound Scan were taken, and what treatment the Manipal Hospital gave to the patient, as he was the only son to him and in view of the gun injury he was under tension. When the patient was brought, he was conscious, he does not know whether his son was well oriented, but not well oriented. He was sitting in the car. He was not in the Hospital, and he does not know what happened there. He says that the correct X -ray date had not been taken. He does not know in which position X -ray was taken. X -ray was not given to them and so they did not show to the Doctor. He does not know who performed operation on 26.12.1996, and the condition of the patient thereafter and he does not know the reason why operation was not done earlier to that date. As per Ext. C1 -Summary Report, operation was done on 26.12.1995 and the bullet was removed from the body of the son. Sisters and brothers son and other relatives were in the hospital, and they were informing him about the progress and development of his son. They understand English. His brothers son Sunil and his wife were also present. His sister is also a Doctor, so whatever information he received, he passed it on to the Advocate. He collected the information from his Doctors, and passed it to the Advocate. His elder sister was in the Hospital, after admission of the patient to the Hospital. Doctor Major Saraswathi was giving the information after discussion with Doctors. It was conveyed either through patient and from other son. His elder sister and brothers son are both from Madanapalli. He does not know about the treatment given to his son, but he knows about the operation. The type of operation done on 28.12.1995 could have been done on 26.12.1995 itself. He does not know what has been done and what has not been done in the Hospital. His elder sister Major Saraswathi is Nursing Superintendent having medical knowledge. His brothers son Anil Kumar is an Eye Specialist. He was seeing his son in Manipal Hospital. He does not know whether his elder sister know much about Hospital matters. No X -ray was taken. The Hospital might have taken X -ray, but the erect abdominal X -ray was not taken. The reasons given in para 4 of the affidavit for death of the patient were on the basis of verification from his Doctor sister who stays in New York, and he does not know the address. He knows the fact that the death was due to abdominal injury other than what is mentioned in Para 4, I dont know much about it. He has filed a criminal case in Madanapalli about gun shot injury to his son. Police have also filed the case. He does not know what type of records were produced by them in Madanapalli. In the Community Hospital, X -ray was taken and First Aid was also taken and it is produced in Manipal Hospital, which shows that there are bullet in the back side of the body. He was not aware whether anybody else was done in Community Hospital to the patient. He does not know whether any pre -operation test has been conducted at Manipal Hospital. He is competent to say regarding delay in operation on the basis of the common sense. He says that when the bullet was removed on 26.5.1996, the wound on the front portion found on his stomach was not attended to. On the basis, he said operation should have been done on 26.12.1995. When the bullet entered the body, from the front, it has affected front portion, so treatment to front portion was necessary. He does not know at what stage O.P. 2 came into picture and when he came into picture. He had conducted the first operation. He says that the operation done on 26.12.1995 was not properly conducted. The above evidence of C.W. 1 shows his ignorance, it still asserts that first operation was not done properly and the second operation should have been done on 26.12.1995 instead of 28.12.1995 which is not conducted. His evidence is inconsistent. He is wavering in the answers given about the admission of the patient, and the treatment given in the Manipal Hospital. Even though, he was present and brought the injured soon to Manipal Hospital, his evidence does not support the complaint allegations, against O.Ps. with substantial reasons to accept it for whatever it is worth. Para 4 of his affidavit deals with the fact ''after the son sustained the injury, he was immediately shifted to O.P. 1 Hospital without delay with belief that he would receive immediate, timely and specialized treatment, since it is a specialized Hospital providing sophisticated diagnosis and treatment, however it is apparent the respondents were negligent in diagnosing and treating his son as a result of which his son died''. The apparent negligence of O.Ps. is evident from the discharge summary. In support of it, thereafter he has narrated 5 factors. All these things are not stated in the cross -examination, but has pleaded the ignorance. It is evident that the complaint is based on hearsay material by his relatives. Under these circumstances, as rightly contended by O.Ps., evidence of complainant No. 1 does not fully support the complaint filed.

C .W. 2 is Dr. Ravindra Naik from Hindupur. He has filed the affidavit in support of the complainants case and his affidavit is based on the records and documents of both sides and according to him ''as per Ext. R5, case summary, at the time of admission of the patient, complaint of chest pain on the left side, pain around umbilicus, parasthesias, suprapubic region, and both feet. There was an entry wound of the bullet over the left side of the chest in the infra mammary region at T6 -7 and inter costal space. X -ray revealed that the bullet was lodged adjacent to lumber spine 1 and 2. Case summary further reveals that the patient was evaluated by the Neuro Surgeon, General Surgeon, Cardio Thorasic Surgeon. The patient was taken up for surgery by Neuro Surgeon on 25.12.1995 and the bullet was removed after L2 laminactomy. The patient developed post operative paralytic ileus for which the general surgeon treated Exploratory Laparotomy on 28.12.1995 and found an entry wound and exit wound over interior and posterior surface of the stomach with jagged wound in left dome of the diaphragm and found bile stained fluid in the peretonical cavity. In Ext. R6 during evaluation of the patient, it was clearly written in the impression ''gun shot injury left side chest'' traversed bullet in L1, L2 Spine with Paralytic Ileus. It is significant to note the contradictory point that the patient had paralytic Ileus (distension of abdomen) on 24.12.1995 itself while he was examined by the Neuro Surgeon Dr. Venkatarama and nowhere in the records of the Hospital that the patient was examined by the general surgeon or cardio thorasic surgeon. The bullet had traversed from the left infra mammary region of the chest to the L1, L2 injuring all the structure in between. It clearly shows the negligence on the part of authorities in not getting examined by the appropriate Doctors for appropriate treatment. The examination of general surgeon was not done on 24.12.1995 and if it had been done on the date of the arrival of the patient to the Hospital and exploratory Laparotomy and suturing of the injured organs in the path of the bullet had been done, the patient would not have been pushed to such bad condition, the patient could have been saved. There is a failure on the part of authorities and Doctors in not noting the abdominal findings in spite of several investigations. If Hospital Authorities had done Exploratory Laprotomy on 1st day itself, if the injured organs sutured in appropriate time, the patient could have been saved. Identifying the injury to the organs in the path of the bullet on 28.12.1995, after doing Laprotomyctomy on that day was too late as irreparable damage had occurred to the patient by that time''. On the above facts in the affidavit sworn to by witness, he identifies the abdominal X -ray at Exts. 36 and 37 taken on 24.12.1995 pertaining to A.P. - Lateral. Chest X -ray was taken on that day which are Chest X -rays on the manner in which X -rays are taken shows they abdominal X -ray (AP - lateral). 10 X -rays are taken at different dates at Exts. R38 to R47. This is the examination chief portion. In the cross -examination, he has stated that he is specialized in general surgery and have been practising as such for the last 20 years in the Government Hospital as an employee. The case records were shown to him at Hindupur by the relatives of the complainant. He cannot remember whether all the records produced in this case were brought to him. On the basis of records seen by him, he has sworn the affidavit. Now he is not having documents with him. He has been handling gun shot injury cases during his services, and her is familiar with the facts of this case to some extent. The bullet entered the patient at 8th into coastal space anteriorly on the left side of the chest, and wound was in the infra memory region i.e., chest region. In Ext. R33 only history of the patient was recorded, but no investigation was ordered. At page 3 of Ext. R33, he shows notes and diagram made by the general surgery consultant. In response to the question in Page 3 Ext. R33, after seeing the records pertaining to chest X -ray, abdominal erect X -ray and ultra sound done, witness has replied, they might have taken these X -rays. It was necessary to open the abdomen of the patient since the bullet had entered 8 Intera coastal space and lodged itself L2, L3 level of the spine. The organs on the spot would have been injured and for that reason stomach should have been opened. He would have opened the abdomen without any clinical evidence or X -ray findings and Ultra Sound Test. It is mandatory to open the abdomen to do a exploratory Laparotomy in the case of all bullet injuries and blunt injuries. He is shown diagram in Ext. R33, page 141 of the records in the finding of the General Surgeon. The abdomen is described as soft and non tender. On the basis of the findings recorded in the Ext. R 34 dated 24.12.1995, ultra sound report at page 143, he would still open the abdomen of the patient, since the said report is not complete. In Ext. R18 in which the findings of the surgeon examined were recorded that the abdomen of the patient was soft. He has stated in the affidavit that the operation was conducted on 25.12.1996 is based on the date mentioned in the Ext. R17. In Ext. R18, the Surgeon who had examined the above after the surgery on 26.7.1995 has recorded that the abdomen of the patient was soft which means has no distention. Clinically, it means that there is no abnormal in the bowels. He after seeing Ext. R43, an abdominal X -ray taken on 30.12.1995. He sees gross distention of the intestine. From the X -ray taken on 24.12.1995, he does not find any X -ray of the abdomen. He does not see any delegation of abdominal injury in Ext. R34. Paralytic Ileus means distention of small bowels without the movement of the bowels. In Ext. R6 Neuro Surgeon has stated on 24.12.1995 that it was a gun shot injury Paralytic Ileus. He sees Ext. R45 X -ray taken on 24.12.1995 which shows gaceous distention of the small intestine. Ext. R46 is X -Ray taken on 24.12.1995 from the lateral position and in this X -ray also he found gaceous distention of the small intestine and also gaceous shadow under the diaphragm. It appears to be free gas. Paralytic Ileus can be caused due to electrolyte imbalance, potassium deficiency, post operative paralytical Ileus condition and uremeia. It is not necessary in every case paralytic Ileus of abdomen to be opened. He has admitted that the surgery conducted by Dr. Venkataramanna is only to remove the bullet from his spine. Since the bullet had entered at the 8 intra costal region and had trajectory downward towards L1, L2 position of the spine was a suspicion of the bullet injuring some parts is reliable in such cases, it is mandatory that the abdomen opened in order to see any vital organ has been pierced. By the word appropriate doctor mentioned in Para 6 of his affidavit, he means a general surgeon, and also gastro enterologist and nephrologist/kidney surgeon. The fact that the bullet would have injured a vital organ is assumption. He admits that neither clinical findings nor X -ray nor the ultra sound indicate any injury on the path of the bullet. He has also admitted that clinical findings, there are noting about he abdominal condition. He is not in a position to say whether Ext. R45 is an abnormal X -ray. After seeing Ext. R37, it is not possible to say whether any free gas under diaphragm. But diaphragm was visible in Exts. R36 and R37 X -rays. The position of the case cannot be identified in the X -rays. He has admitted in cross -examination by O.P. 2 that the patient was examined by the General Surgeon, Thoracic and Neuro Surgeon and was cleared for operation by neurosurgeon. It is absolutely correct that he has not found any fault with operation conducted by Neuro Surgeon.

(1) THE paras 6 and 7 of the complaint covers the negligence alleged against the O.Ps. According to it, the apparent delay of 4 days to detect the perforations caused as a result of the bullet entering the abdomen has proved fatal to the patient since it is apparent, that as a result of internal wounds to stomach and other vicar not being treated peratinotis. Septicemia has been caused leading to the death of the patient. (2) THE O.Ps. have not taken erect abdomen X -ray or Trans -lateral decubitus X -ray of the abdomen to rule out air and in diaphragm which is a first thing ought to have been done in case of perforations of stomach since the perforations would have been revealed immediately and timely treatment would have saved the patient. (3) THE O.Ps. ought to have traced both of the bullet from the place of entry to the place where it was lodged and any injuries caused to the body organs in the path of the bullet ought to have been suspected, diagnosed and treated in an appropriate manner, which is more apparent especially after the chest X -ray was normal and when the bullet had traversed from front to back, it had to penetrate some viscera in the abdomen. An abdominal erect X -ray ought to have done since the patient also had periumbulical pain and sluggish bowel sounds at the time of operation of the patient to the O.P Hospital. (4) THE mesentry and coils of intestine shown adhesion softening covered by fibrenious inframatory exudates about 300 ml. which indicate the intestine and the other viscera were severely infected at the time of death of the patient as per the post mortem report. In the event of the patient have been operated immediately on being admitted and perforations to the stomach and other organs liver being closed and effectively treated, the infection could have been prevented and patient would have survived. (5) As per his discharge summary, the patient was subjected to Ultra Sound Scanning, but nevertheless the perforation in the stomach, diaphragm and intestines and mesentry were not detected and failure of the O.P. to diagnose and detect the perforations on the date of admission of the patient to the O.P. 1 Hospital is a gross negligence of the O.Ps. (6) THE O.Ps. were negligent in treating the patient for the reasons that the perforations of the stomach and other viscera were not detected and closed immediately after the patient was admitted to the hospital, but the patient was neglected for 4 days, and only on the 4th day perforations were closed. This delay proved fatal to the patient which can be attributed to the gross negligence of the O.Ps. THE patient has been treated very casually and in slip shod manner.

THE evidence of the CW 2 to some extent supports those allegations made as above. From the cross -examinations, it is seen that CW 2 Dr. Ravindra Naik is an expert surgeon of 20 years in the Government Hospital and he is handling gun short injury cases during his services. As per page 3 at Ext. 33, the general surgeon has made a note and diagram in the case sheet history and he has admitted that in page 3 at Ext. R33, the X -ray of chest abdominal erect were taken, and ultra sound was also done. In view of this admission, the case of the complainant, abdominal erect X -ray was not at all taken on 24.12.1995 by the O.Ps. is negatived. The allegations in para 6 of the affidavit regarding the traversing of the bullet from left inframary region of the chest to the L1 -L2 injury of the structures in between, is not specifically suggested that who is the appropriate doctor, who should have been examined the patient, and what appropriate treatment should have been given to the patient. So these allegations in para 6 is not clarified. As per para 7 of the affidavit on the date of arrival of the patient that on 24.12.1995 to the Hospital, the general surgeon should have examined and done exploratory Laparotomy, and suturing of the injured organs in the path of the bullet, the patient would not have been pushed to such a bad condition. He has ascertained, he would have open the abdomen without any clinical evidence X -ray findings and ultra sound test. This is the correct procedure to be adopted is not supported by any material. Exts. R33, R34 show that the general surgeon has made a diagram with the findings. The ultra sound report was also taken on same day under Ext. R34. The patient was admitted on the same day. In view of these materials, evidence of CW 2 that the general surgeon has not seen the patient on the date of admission falls to ground. He had clarified in the cross -examination that the word appropriate doctor in para 6 of the affidavit means, a general surgeon and also gastro Enterologist, Cardiologist/Kidney Surgeon/Nephrologist. Which is too wide a range, what steps they should have taken is not elaborated. The bullet would have injured vital organ is an assumption. There is an admission that there is neither the clinically finding nor the X -ray nor the ultra sound indicates injury on both sides of stomach. He has also admitted that there are clinical findings, notes about abdominal condition. There is a clear admission that the patient was examined by the general surgeon, cardio thorasic surgeon and Neuro Surgeon and the patient was cleared for operation by the Thorasic Surgeon, General Surgeon and operation was to be conducted by the Neuro Surgeon. However, he has not found any fault in the operation conducted by the Neuro Surgeon which it is absolutely correct. In view of these materials, as rightly contended by the O.Ps., the allegations made against them in the affidavit is controverted by the admission and the entry in Exts. R33 - R34. As rightly pointed out by the O.P. 2 at pages 140 -141 and 142 of the records, patient was brought and admitted at 10.50 p.m. on 24.12.1995, with the bullet shot injury on the left side of the chest and reference was made on the same day to the general surgeon, who has examined the patient and noted the history and informed Dr. S.N. Simha, and has given the diagram of the abdomen and also noted the Chest X -ray and abdominal erect X -ray readings and cardio thorasic surgeon on duty has examined the patient at 11.15 a.m. and all of them have noted that Chest X -ray was normal, and no evidence of cardio thorasic injury, except for the entry wound of the bullet and the abdomen was soft, and non -tender and distension and there is dullness in the bladder. As per Ext. R35, X -ray of erect abdomen including the chest was taken on 24.12.1995 itself noting the bullet injury in left infra mammary area. In view of the above materials, the case of the complainants against the O.P. 2 cannot be upheld and also against other O.Ps. regarding the delay in taking the abdomen erect X -ray and examination of the patient by the general surgeon and cardio thorasic surgeon on the same day of the admission of the patient. To that extent, the case of the complainant cannot be accepted. Even if it is presumed that the evidence of CW 2 discharges the initial burden of the complainants to prove the negligence of the O.Ps., then the evidence of O.Ps. has to be considered. Ext. C1 is the case summary issued by the department of neurosurgery of Manipal Hospital with respect to the deceased Ashok Kumar who was admitted to that hospital on 24.12.1995 and died on 3.1.1996. The condition of the patient at the time of the admission and the general examination, result and the X -ray, Blood test reports results are noted. The performance of the surgery by O.P. 2 is also noted and the subsequent developments in the condition of the patient. He was complaining of pain in the left side of the chest, pain around the umbilicus, parathesias over the suprapubic region and both feet. He had been catheterized apparently because he had developed urinary retention. An entry wound over the left side on the chest in the infirmary region at the 6 -7th intercostals space. The abdomen was soft and there was no evidence of any free fluid. The bowel sounds were sluggish, chest examination revealed equal air entry bilaterally with no evidence of haemo or pneumo thorasis, neurological examination revealed a conscious, patient with full eye movements equal reacting pupils and no sensory or motor deficits in the lower limbs. The bullet to be lodged adjacent to the L1 -2 spine. All routine blood investigations were normal. The presence of the bullet on the lumbar spine. Ultra sound abdomen revealed a full bladder, rest of the abdomen was normal. The patient was, therefore, taken up for surgery by the Neuro Surgeon on 26.12.1995 and a L2 Laminectomy was done. The L2 left lamina and pedicles were fractured. The bullet was seen entering the canal. It had torn the dura but at certain places the arachnoid was intact. One sectioned rootlet was seen coming out through the canal. The bullet was removed but the dura could not be closed. Hemostasis was achieved and the wound was closed in 5 layers. Post operatively he developed paralytic ileus for which the general surgeons did an exploratory laparotomy on 28.12.1995. There were entry and exit wounds over the anterior surface, posterior surface respectively. There was a jaged entry wound in the left dome of the diaphragm. There was contusion of the mesentry of the splenic flexure, no other bowel injury. All the perforations were closed, and the wound closed with drains. Appropriate antibiotics, analgesics and supportive treatment including ventilation was given. Within a few hours of this surgery he worsened and died the same day on 3.1.1996. Ext. C2 is the post mortem report dated 5.1.1996 of the deceased Ashok Kumar showing the external injuries and the nature of injuries which was not in dispute. The cause of death is kept in reserve awaiting case sheet extract. The O.P. 2 has sworn to the affidavit in line with this version. As per para 8 of the affidavit, he has stated that on 24.12.1995 at about 10.50 p.m., the patient was brought and examined by the duty medical officer in casualty department and the patient was conscious and oriented and chest X -ray P.A. view, X -ray of the erect abdomen AP and lateral view were taken. An emergency ultra sound scan of the abdomen was also performed. So this stand nullifies case of the complainants. The patient was conscious when the bullet was removed on 26.12.1995 in the operation performed by him, only after O.P. 3 and O.P. 5 cleared him for surgery. Both O.Ps. 3 and 5 excluded any injury to the abdominal thorasic viscera (organ) after which the clearance for the removal of the bullet from the spinal canal was given. According to this, O.P. patient complained of sudden severe acute abdominal pain, breathlessness and distension of abdomen only on the night of 27.12.1995 at 11.30 p.m. and the patient was entrusted to the general surgical team for appropriate management. He has denied the suggestion that after the surgery on 26.12.1995 by O.P. 2, he has developed features of intestinal obstruction. In the cross -examination, he sees Ext. R6, history and physical examination report of the patient issued on his instructions on the reverse, he has mentioned that there was tenderness around umbilicus, it means that pressure was applied around the umbilicus, the patient complained of pain. It was referred to the specialist and doctors including general surgeon and cardio thorasic surgeon, for the evaluation of other associated injuries and suspecting the patient moved other intestinal injuries also. Sluggish means not to the normal extent. He has denied the suggestion that sluggishness indicated some internal injury. Paralytic ileus means sluggish movement of bowels. Since he is not a general surgeon, he cannot answer the question under what circumstances this tenderness around umbilicus occurs. So the evidence of O.P. No. 2 does not any way help the complainant in proving negligence alleged. On the other hand, it strengthens the version about the prompt attention and treatment of the deceased patient immediately after coming to the O.P. 1 Manipal Hospital by specialist viz., general surgeon, cardio thorasic surgeon, Neuro Surgeon.

O .P. 3 has filed his affidavit in detail covering O.P. 1 and equipment and facilities available in the said hospital and the reputation it enjoys. He has sworn regarding other O.Ps. that O.P. 6 is a PG student in neurosurgery who was not involved in the treatment of the patient, but had prepared the case summary after going through all the case records at the request of the other O.Ps. His affidavit is in line with the version filed by him. In total, the case of the complainants, are specifically denied by O.P. 3. According to this O.P. 3, doctor K.D. Phadke a consultant nephrologist of the O.P. 1 Hospital also treated the patient. In para 16, he has supported the stand of the O.Ps. case, records of the patient shows immediately on admission of the patient, chest X -ray - P.A. View and X -ray of erect abdomen A.P. and lateral were taken and emergency ultra sound of the abdomen was also performed. X -ray of the abdomen A.P. and lateral did not show any gas under the diaphragm but showed a bullet logged on his spine, the region of second lumbar vertebra. Ultra sound scan report was normal, only full bladder was revealed. They did not show any injury to the organs in the chest and the abdomen. What was done in this case is well accepted standard surgical practice adopted even in the armed forces. After 27.12.1995 at 11.30 p.m. when the patient complained of severe acute abdominal pain, breathlessness and distension of the abdomen Dr. Vani Paramar examined the patient and arranged for necessary investigation. The abdominal X -ray of the patient was taken immediately and ultra sound scan was also done. After reviewing all the investigation reports and clinical finding, the delayed perforations of the intestine suspected and he was promptly operated by O.P. 3 on 28.12.1995 by conducting suturing to close the perfection. There is no negligence in diagnosing or detecting the perforation. There was no delay on their part in conducting, diagnosis or treating the patient.

IN the cross -examination, he has stated that he saw the patient for the first time on 24.12.1995 and examined him, and did not notice any of the abnormalities mentioned in the case sheet, which was noticed by the junior doctor working in the casualty department. He had not gone through Ext. R6 made by the neurosurgery department. He did not notice that the bowel movement was sluggish. The notes are prepared by department, which was nothing to do with the abdominal injury if any. The patient was referred to him by the casualty doctor and he collected the history of the patient from him. When he saw the patient, he may not have seen the report which is written on the date mentioned thereon. He does not remember whether it was there when he examined the patient. Paralytic ileus is defined distension of intestine with reduction or absence of propulsion of luminous contents in the absence of mechanical obstruction. As per the notes of the neurosurgery, the patient was ailing from this ailment. Next morning about 5 -6 hours of the admission, he might have discussed with the Neuro Surgeon. He has made his assessment on the basis of his examination. O.P. 2 doctor Venkataramana did not suspect the internal injury of the abdomen and he referred the patient to him to rule out it. Paralytic ileus could have been caused by numbrer of conditions unrelated to the bullet injury, in response to the question that condition of the paralytic ileus could attributed only to the gun shot injury. He has admitted that in his affidavit he has stated that the patient was not suffering from paralytic ileus. The trajectory of the bullet is marked in Exts. C3 and C4, the organs of digestion (bones skeleton structure). It is difficult to say whether the bullet has passed the stomach because he does not now trajectory bullet. Ext. R14 shows entry of the bullet and exit of the bullet in the stomach and stomach has been punctured. Need not be necessary for the patient to suffer paralytic ileus on account of the said injury. Perforation of the stomach can occur on account of ulcer and other reasons. It will be difficult to say whether it will be a serious condition if it is treated earlier, since it depends upon the nature of the perforation. There is a full change of recovery if it is simple operation and treated early. If the perforation has clinically presented itself and it was treated early, the patient might have had good chance of survival. In laymans term what is written on the left hand margin at page 41 of Ext. R18 is a needle was introduced in the abdomen and with the help of the syringe, a small quantity of fluid was removed. It was sent for cultural sensitivity and gram straining, peritonitis means inflammation of peritoneum. It did not necessarily indicate infection. He operated the patient on 28.12.1995 and thereafter inserted the tube. The patient had abdominal infection evident from the culture test, which has occurred on account of perforation in the stomach. He has denied the suggestion that he was unable to control infection from 28.12.1995 on account of which the abdomen burst on 3.1.1996. Addition means, sticking of together of the intestine. It is not necessary on account of infection. In this case also, it is not necessary so. The post mortem detection is mentioned by this witness. He has denied the suggestion that on account of his failure to detect injury in the stomach on 24.12.1995 has caused the death to the patient, which occurred on account of infection of the stomach. So the above evidence of O.P. 3 also does not any way help the case of the complainants. On the other hand, it supports the case of O.Ps. There are no admissions in the evidence of the O.Ps. helping the complainants in support of their allegations in the complaint. On the other hand, the Exts. R1 to R35 produced in this case clearly establish in the light of the evidence of the O.Ps., that the patient was duly attended by all the specialists in the O.P. 1 Hospital, and taken proper care in time in diagnosing and treating the bullet injury, and also the operation conducted by the O.Ps. were uneventful. As alleged negligence by the O.Ps. are not forthcoming from the above materials. The summary of events and highlights produced in this case by the O.Ps. clearly gives the entire picture as per the medical records produced in this case. The O.Ps. have explained why the patient was not operated by general surgery department immediately on admission. According to them, the injury was on the chest region and abdomen did not show any clinical sign of the injury, the X -ray of chest and erect abdomen and ultra sound scan did not show any evidence of abdominal injury which was the situation for more than 36 hours after the initial injury. He had continuously been monitored, following well accepted protocol of treatment, the patient was not operated by the general surgery department. It has also explained why cardio thorasic surgeon, cardio thorasic department did not operate the patient. According to it, the bullet entered the chest, on clinical examination and the X -ray, there is no indication of damage to the lungs or the other structure. There was no air leak in the lung or collection of blood in the chest. Patient had absolutely no difficulty in breathing. The well accepted protocol of treatment was followed. According to them, there is no negligence as the patient was expeditiously seen by the doctors representing 3 specialities, and all necessary tests were done. Continuous monitor of the patient was done. Well accepted protocol of treatment was followed at all times. The patient did not show signs of abdominal injury for 72 hours, and the moment he did so immediate appropriate and adequate treatment was given including intensive care with 24 hours monitoring, use of ventilator (breathing apparatus) and he was seen by highly qualified specialists. There was no other means of detecting abdominal injury by use of other tests. Laparoscopy now in use was not a known investigation at that time. It is of more recent development failed or unsuccessful outcome does not imply negligence. The above materials available on record coupled with the documents relied on by both the sides, and for the detailed discussions held in the above paras, there is no other option but to conclude that complainants, have failed to prove the Point No. 1, and it is answered in the negative. Since Point No. 1 is against the complainants they are not entitled to claim any compensation in this case. Accordingly, Point No. 2 is also answered in the negative. We pass the following order: ORDER For the reasons discussed above, the complaint cannot be allowed and it is dismissed. Each party to bear their costs.

Complaint dismissed.