BHANUPAL vs PRAKASH PADODE

THIS is a complaint against the opposite parties wherein it has been alleged that on account of negligence on the part of opposite party No. 2 complainant''s husband died the same day, after performance of an operation by opposite party Nos. 3 and 1. The complainant has, therefore, claimed compensation of Rs. 8 lacs from the opposite parties because the complainant and her minor son were dependent on the deceased whose monthly income was Rs. 4,000/- per month.

THE brief facts of the case are as under : (i) That complainant''s husband-Pradip Kumar Pal was examined by Dr. Prakash Padode, opposite party No. 1 on 28.10.1990 at Padode Nursing Home and was advised to come to the Nursing Home on 29.10.1990 for operation of Hernia. He was admitted in Padode Nursing Home on 29.10.1990 at about 10.00 a.m. and was taken to the Operation THEatre at about 2.30 p.m., from where he was brought out after his death the same day at 11.30 p.m. He was operated by opposite party No. 3, Dr. Rajesh Kanoongo, who was assisted by Dr. Prakash Padode and anaesthesia was administered by opposite party No. 2 Dr. R.K. Jain. On 30.10.1990, news of his death was published in various newspapers and police took cognizance of this death and registered a case under Section 304-A, I.P.C. against all the three opposite parties. Opposite party Nos. 1 and 3 were however discharged by the Hon''ble High Court in Writ Petition No. 332 of 1991 vide order dated 31.3.1994. (ii) THE complainant has alleged that her husband died during the operation due to high dose of anaesthesia. Her allegation is that necessary pre-operation tests were not conducted and there was no necessity of immediate operation and he was operated on the day of admission itself, when his stomach was full. That the incisional operation of Hernia requires certain pre-operative tests and also requires an empty stomach before administration of anaesthesia. That the deceased was inserted endo-trecheal-tube twice improperly. That right from 2.30 p.m. till 11.30 p.m. in the night, she and her relatives were not informed of the progress of the operation and suddenly, they were told that her husband is no more. (iii) In her affidavit the complainant has stated that she had paid Rs. 1,500/- towards part payment of the fees of the hospital for admission and operation for which no receipt was given by the opposite parties. In her affidavit she has further stated that she was not informed as to which doctor was going to perform the operation and which doctor was going to administer the anaesthesia. At about 2.30 p.m. opposite party No. 3 Dr. Rajesh Kanoongo came and entered the operation theatre directly and Dr. R.K. Jain Anaesthetist was already inside the operation theatre. She was not informed about the condition of her husband and she could only see the staff coming in and going out of the operation theatre. After some time they were asked to arrange one bottle of blood for her husband. THEy were given a sample of blood of her husband and they were asked to arrange fresh blood from Hamidia Hospital, which they arranged and gave to the opposite parties. She further states in her affidavit that around 12.00 O''clock mid-night they were told by the opposite parties that though operation was successful but due to excess anaesthesia given to her husband her died inside the operation theatre itself. She further states that her husband was suffering from Asthma, but, this fact was not taken into consideration by the Anaesthetist before giving anaesthesia. Besides this, the process of intubation was carelessly performed which resulted in aspiration of fluid in lungs and this aspiration of fluid in the lungs was primary cause of the death of her husband. Lastly, she states in the affidavit that the hospital was not heaving life saving drugs and, therefore, we were asked by the opposite party No. 1 to purchase the same from the market. (iv) She has categorically denied in para 11 of her affidavit that she had ever contacted opposite party No. 3 Dr. Rajesh Kanoongo for the operation of her husband. (v) In her cross-examination by the learned Counsel for the opposite party No. 1, she has denied that she was told by opposite party No. 1 that her husband was to be operated on 29.10.1990 and he was advised not to eat or drink a day before and to come empty stomach. She was not told as to who would be operating surgeon and who would be Anaesthetist. She has further denied that she was introduced to the surgeon or the Anaesthetist by Dr. Prakash Padode. On a pertinent question by the learned Counsel for the opposite party No. 1 as to how does she say that anaesthesia was given in excess quantity, she replied categorically that this was told to her by Dr. Prakash Padode himself. She has stated in cross-examination that she had no knowledge of the notes recorded by the Doctors during the course of the operation. (vi) She has stated in her affidavit that due to premature death of her husband, her son is under the shelter of mother alone and she has suffered considerable financial loss. Her husband had done a diploma from I.T.I. after matriculation and was running a shop of welding works at T.T. Nagar, Bhopal and was earning around Rs. 5,000/- per month and after his untimely demise, they are facing great financial hardship.

Amongst the documents furnished by the complainant, important ones are, (i) photo-copy of the FIR recorded in Criminal Case No. 244/90 in M.P. Nagar Police Station, (ii) Panchanama for post-mortem, prepared at M.P. Nagar Police Station on 30.10.1990 stating that because the deceased was suffering with Asthma and was administered excess does of anaesthesia, the post-mortem was essential for knowing the cause of the death, (iii) Statements given by Dr. Mukesh Bhargava and D.K. Pal to the police, (iv) post-mortem report, (v) and the slips issued by opposite party No. 1 for purchasing medicines, (vi) and the slip issued for obtaining blood of the matching group of the deceased.

In the FIR, it is recorded that the deceased was a patient of bronchial Asthma and died as a result of excess quantity of anaesthesia. In his statement recorded by the police, Shri D.K. Pal has stated that he was given a slip by the hospital alongwith a sample of the blood of his brother which he took to the Hamidia Hospital and obtained the blood of matching group from Hamidia Hospital on payment of Rs. 72/- and brought to the Nursing Home. That after the death of his brother, he was told by Dr. Prakash Padode that his brother died because of excess dose of anaesthesia.

THE post-mortem report recorded on 30.10.1990 by Dr. Satpati and by Dr. Badkur starts with the sentence "Good built young male body". Other important entries in the post-mortem report in sequence are : (i) fluid tricking from nose, (ii) sign of cathetorization present, (iii) marked oedema conjested 1350 gms., (iv) heart wt. 500 gms. Both sides full of blood, some of this clotted, (v) lung trachea shows submuosal haemring, (vi) broncheal tree upto lower half of trachea having blood mixed fluid, (vii) lungs were reddish brown in Clour, (viii) fluid with scanty air bubbles, marked oedema evident. Further opinion recorded therein is as under : "Death was due to cardio respiratory failure. Evidence of Aspiration leading to massive pulmonary oedema. Evidence of heavy congesion is present." The memo (Ex. R-) sent to the police station by the doctors who did post-mortem states that "death was due to aspiration of fluid in the lungs which is the responsibility of Anaesthetist. The patient suffered with Asthma. Operation was done proper". The Hon''ble High Court while discharging Dr. Prakash Padode and Dr. Rajesh Kanoongo have also stated in their order that according to the opinion of autopsy surgeon, the deceased died due to aspiration of fluid in the lungs which is the responsibility of the Anaesthetist.

THE opposite parties first raised preliminary objections that the complainant was not a consumer and secondly that criminal proceedings being pending, further proceedings in the complaint deserve to be stayed. This Commission passed an order dated 24.3.1992 dismissing the objections stating therein, that the objection that complainant is not a "consumer" is without merit and that the complaint under Consumer Protection Act, 1986 for payment of compensation need not to be stayed during the pendency of the criminal proceedings. In the order dated 24.3.1992 passed by this Commission, the Commission also quoted Lord Denning in Hatcher against Black (1954) Times, 2nd July, as under : "It would be wrong, and indeed bad law, to say that simply because a misadventure or mishap occurred, the hospital and the doctor are thereby liable.... you should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man is deserving of censure."

Opposite party No. 1 Dr. Prakash Padode has submitted following replies to the complaint : (i) That he was only assisting the operating surgeon. In medical ethics, the operating surgeon and anaesthetist are in the control of entire situation while assisting doctors and nursing staff are only required to follow their instructions. (ii) That Dr. Kanoongo and Dr. R.K. Jain were not employed in the nursing home nor were engaged by nursing home. They had independent contract of treatment with the patient. That he only afforded facilities of nursing and operation theatre. (iii) That Pradeep Pal was shown to Dr. Kanoongo on 28.10.1990 and Dr. Kanoongo was called by him. He further added in the reply by his own handwriting that Dr. R.K. Jain had also examined Pradeep Pal. (iv) That Dr. Kanoongo advised Pradeep Pal not to eat and drink on 28.10.1990.

In his cross-examination to certain pertinent questions put by the Counsel for the complainant, Dr. Prakash Padode replied as under : (a) No visiting doctors come to his Nursing Home. (b) He does not know whether the operation of incisional Hernia is minor or major because abdominal operation is not his subject. (c) He does not know that pathological tests are necessary for operation of incisional Hernia. (d) That he neither examined the patient nor recorded his medical history. (e) That ordinarily operation of incisional Hernia takes about half an hour. (f) That he does not know why this operation took so much time and this question can be replied by the operating surgeon and Anaesthetist only. (g) Only Anaesthetist can give this reply as to for how much time intubation was done. (i) That he did not call for Dr. Mukesh Bhargava and operating surgeon himself had called for him. (j) That there is a practice of taking fees in advance, but, in this case, he did not take the fees and then the patient died, question of taking fees did not arise. In para 7 of his reply Dr. Prakash Padode had further stated as under :

"The function of opposite party No. 1 was to admit the patient and to do paper work. Accordingly, the opposite party No. 1 admitted the patient in Private Ward No. 4 and obtained consent for operation and anaesthesia from patient''s mother in the prescribed proforma. Nursing Home provided medicines and operating facilities as per instruction of operating surgeon."

OPPOSITE party No. 3 Dr. Rajesh Kanoongo submitted in his reply that he had recorded pre-history of the patient but the patient had denied that he was suffering with Asthma. That deceased Pradeep Pal was not his patient. It was Padode Nursing Home who had requested him for the operation of the deceased patient. He had no direct contact independently with the patient. That he performed operation successfully and the patient did not die because of any negligence on his part in the operation.

IN his cross-examination, to certain pertinent questions, put by the Counsel for complainant, Dr. Rajesh Kanoongo replied as under : (a) It is not necessary to admit a patient of Hernia one night earlier. Since complete blood culture and urine report were there, it was not necessary to take X-ray of the chest. (b) The patient or his relatives did not give any history that patient was suffering from Asthma. That he had told the patient that he was not supposed to take any food, etc., a day earlier. (c) How many times intubation was done, can be told by Dr. R.K. Jain only and similarly how food particles came in lungs can be told by Dr. R.K. Jain, Anaesthetist only. (d) He does not know why the patient could not come to senses, because his role was only that of surgery. (e) He does not know whether life saving drugs were called from outside or were provided by the Nursing Home. (f) Whether the patient was empty stomach or not, cannot be known at the time of operation. But, if the patient is not empty stomach, the operation is not done and it is only the patient who tells whether he is empty stomach or not. If food particles remained, operating surgeon cannot do anything. Only the Anaesthetist has to take care for that. (g) That he came only through Padode Nursing Home. He did not take any fees from the patient. The fee was to be paid by Dr. Prakash Padode after the operation. The cause of death is recorded in the post-mortem report.

In reply, Dr. R.K. Jain, opposite party No. 2 has stated that he was not told by anybody that the deceased was suffering without Asthma. No signs of bronchial Asthma were evident on clinical examination. He had not given anaesthesia in excess quantity and denied that there was any negligence on his part in giving anaesthesia. In his cross-examination by the complainant''s Counsel, Dr. R.K. Jain, opposite party No. 2 replied to certain pertinent questions as under : "The operation for incisional Hernia is of moderate nature, neither minor nor major. It has to be seen three-four hours before the operation whether the patient is empty stomach or not. It is not necessary to admit him one night before. Patient has to be duly instructed that he has to come empty stomach. That he saw the patient for the first time on 29.10.1990 at about 10.00 a.m. and advised for enema. Whether enema was given or not, must have been known to the Nursing Home staff. He was intimated by the Nursing Home staff that the patient had been given enema. Endo-tracheal tube is a tube, which is inserted in the trachea in the patient so that the anaesthesia is maintained and patient remains unconscious during the course of operation. Since patient''s neck was small and thick, he found difficulty in inserting tube and lower lip and upper lip got injured. That he noticed aspiration immediately after he took out endo-tracheal tube. It was wrong to say that aspiration was a result of wrong way of insertion of endo-tracheal tube or that this tube went inside the lungs. That how he managed the situation after taking out endo-tracheal tube is given in the affidavit. That he continued with management till the end. It is wrong to say that aspiration was due to food particles in the stomach. Aspiration happens when gastric contents reach the lungs. Gastric contents mean normal contents inside the stomach. It is wrong to say that gastric contents mean food particles inside the stomach. The normal secretions from the stomach are also gastric contents. That the patient did not vomit during or after operation. It is possible that the medicines mentioned in Ex. P-7 may have been called for from outside. Throughout, during the course of operation Dr. Rajesh Kanoongo and assisting doctor were present. They knew that the patient had complications and Anaesthetist was managing the whole affair with due care. The patient died due to aspiration nimonitis."

In the history sheet recorded by Dr. R.K. Jain it is mentioned that soon after extubation, patient developed bronchospasma. Secretion of fluid occurred. The patient was extubated again but he expired. In his affidavit Dr. Jain has given details of his qualification, experience, etc. and has stated that he had no contact with the patient or his family members and he had not taken any consideration from the patient and, therefore, this dispute caanot be called a consumer dispute. That on enquiry from the patient who denied any history of Asthma, he recorded accordingly in the history sheet filed in the case. He has further stated that few crepts and rhonchi developed 10 to 15 minutes after starting the surgery and soon after extubation patient developed bronchospasma. Dr. Jain has given in detail as to what medicines and injections were given to the patient, and how he tried to control the situation, after complications started.

DR. Jain has tried to demonstrate that by administering the drugs, Oxygen, etc. he tried his best to save the patient. That anaesthesia was not given in excess. That post-mortem report does not state presence of any anaesthetic gas in the blood of the deceased. That there was no history of bronchial Asthma. That the complainant has not produced any medical record or cash memos to prove that the deceased was suffering from Asthma and that the patient was taking the medicines for the same. Besides this, there was no prohibition to administering anaesthesia to an asthmatic patient to be operated upon. DR. Jain in his affidavit further mentioned that "moreover it is pertinent to note that Forensic Expert of Gandhi Medical College, Bhopal has categorically stated in a query to the Station Officer, Police Station, M.P. Nagar, Bhopal that if the patient is suffering from Asthma, administration of anaesthesia may not necessarily cause his death. The reply to the query is on record in the case".

Dr. R.K. Jain has further stated in his affidavit that post-mortem report has categorically stated that the stomach has 100 c.c. mucoid fluid. It does not report that there was digested, semi-digested or undigested food material in the stomach or intestines. That aspiration is one of the known complications of anaesthesia. The incidence ranges from 4% to 76% with the incidence of resultant aspiration as 76% out typically 10% to 20%. Mortality after pulmonary aspiration of gastric contents has ranged from 3% to as great as 10%. He further stated that on page 594 of the book "A Synopsis of Anaesthesia" by Atkinson and others, Ninth Edition, it is mentioned that there is no fool-proof method of prevention of aspiration of gastric contents into lungs however experienced the Anaesthetist may be. Reintubation or putting the endo-tracheal tube again was a part of management of aspiration, which is a settled practice. The allegation of the complainant that it was wrong to put tube twice arises from ignorance of the subject. There was no negligence or departure from accepted and established rules of treatment and management of aspiration.

DR. R.K. Jain, brought to our notice certain portions of the following books : (1) A synopsis of Anaesthesia by Atkinson, Rushman and LEE Ninth Edition. (2) Pulmonary Aspiration of Gastric Contents by Christoper F. James from the book Complications in Anaesthesiology, Second Edition, Philadelphi, 1996. (3) Anaesthesia by Ronald D. Miller, Third Edition. (4) Anderson''s Pathology, Volume One Ninth Edition. (5) Medical Negligence : C.P.A. Final Remedy (?) By DR. Mahendra K. Joshi.

Important portions brought to our notice are what has already been stated in our order above while discussing the contents of the affidavits, etc. The remaining pointed out are as under : (i) Aspiration account for 1% to 20% of all Anaesthetic related deaths, if stomach contains 100 cc mucoid fluid, (ii) Autopsy findings in case of Asthma as recorded on page 963 of Anderson''s Pathology as under : "At autopsy the lungs of the patient dying of status Asthmaticus appear grossly distended with air and fail to collapse as the thorax is open... the bronchi of segmental size and smaller are filled with ropy mucus... On microscopic examination the bronchi and bronchioles are filled with laminated mucus..." (iii) Aspiration Pnumonia is established by post mortem report as per the required findings which are as under : "The term aspiration pneumonia.... previously. The aspiration of gastric contents with a PH below 2.5 produces haemorrhagic oedema in the involved region of lung and, if extensive, is rapidly fatal. The bronchi are haemorrhagic, and the lung exudes frothy fluid. In patients dying rapidly there is massive pulmonary oedema."

Dr. R.K. Jain has further brought to our notice some citations which are as under : I (1998) CPJ 358, Darshni Devi v. Rajeshwari Parshad. No body opined that there was any negligence or recklessness or departure from accepted and esta- blished rules of treatment I (1998) CPJ 377, Bhupendra Nath Das v. Maharaj Ram Krishna Mission Sena Pratisthan & Ors. Every operation has its inherent risks. It may be at the time of operation or post operation hazard. Para 10. AIR 1969 SC 128, Dr. taxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & Anr. Reasonable degree of skill,knowledge and care is expected, neither high nor low should be expected.. III (1998) CPJ 533, Mrs. Hemalatha Saptharishi & Ors v. Indian Oil Corpo- ration Ltd. & Ors. All Anaesthetics involved risks-operational notes and. records do not support complainant''s version-page. 535 para 5. I (1998) CPJ 49 (NC), Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi B. Fadnavis & Ors. Anaesthesia, death excess of anaesthesia given - no gas in blood. Allegations fail. III (1998) CPJ 527, Nirmala R. Parab v. Dr. Kalpana Desai -& Ors. Anaesthsia of spinal-Heart stop-26 minutes-delivery complete-Use of endo tracheal tube-established treatment-No liability. 1954 (2) QB 66, Roe v. Ministry of Health I think that the hospital. authorities are responsible for the whole of their staff, not only for the nurses and doctors, but also for the Anaesthetist and the surgeons. It does not matter whether they are permanent or temporary resident or visiting, whole-time or part- time. The hospital authorities are responsible for all of them. The only exception is the case of consultants or Anaesthetists selected and employed by the patient himself. "Denning L.J."

COUNSEL for the complainant brought to our notice a decision of the National Commission in case of Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi B. Fadnavis & Ors. (supra), wherein the Hon''ble National Commission has held as under : "We find it difficult to go with State Commission''s observation that the Anaesthetist cannot be held liable for the payment of compensation even if it is proved that she acted negligently in her duty, since her services were hired by opposite party No. 1 for consideration. On the other hand, we find force in the argument of the complainant that even if the service of the Anaesthetist were hired by opposite party No. 1 then also the deceased happened to be the beneficiary of medical services of the Anaesthetist and hence a ''consumer'' and that services of the Anaesthetist are invariably paid for by patients themselves, their charges being generally shown separately in the bill. Section 2(1)(d) of C.P.A. defines consumer as one who ''hires or avails of any service for a consideration'' : this definition does not refer to any privity of contract for that purpose. Similarly, Section 2(1)(g) defines ''deficiency in service'' as : ''fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service''. The words "in pursuance of a contract or otherwise" in the section make it amply clear that a privity of contract is not needed for a claim to be made under C.P.A., so long as there is hiring or availing of services for a consideration. Thus the Anaesthetist who participated in the process of delivery of medical services to the beneficiary is as much liable as the main surgeon herself if her negligence had been established."

IN Halsbury Law of England, IIIrd Edition, Volume 26 at page 17 it has been held that a medical practitioner owes to the patient certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. IN Hatcher against Black (1954) Times, 2nd July, Lord Denning explained the law on the subject of negligence against doctors and hospitals that a doctor should only be found guilty of negligence when he falls short of the standard of a reasonably skillful medical man deserving of censure of negligence. The Madhya Pradesh High Court in case of J.N. Shrivastava v. Rambhiharilal, AIR 1992 MP 132, has observed that a medical practitioner can only be held liable if his mistake is of such a nature as to imply absence of reasonable care or skill on his part regard being held to the ordinary level of scheme in the provision. M.C. Nair, J. in case of Bolam v. Prien Hospital Management Committee, 1957 (2) All.ER 118, observed thus : "IN case of a medical man negligence means failure to act in accordance with standard of reasonably competent man at the time." In Clark v. Maclenna, 1983 (1) All.ER 416, it has been held as under : "Although in an action in negligence the onus of proof normally rested on the plaintiff, in a case where a general duty of care arose and there was a failure to take a recognised precaution and that failure was followed by the very damages which that precaution was designed to prevent, the burden of proof lay on the defendant to show : first that he was not in breach of any duty and second, if he had not been in breach of duty, that the damage suffered by the plaintiff did not result from the breach. Accordingly, doctor owed a duty to his patient to observe the precautions which were normal in the course of treatment that he gave. Whether a patient suffered damages after there had been departure from the orthodox course of treatment, the Court had to enquire whether the doctor had taken all proper factors into account prior to taking action in order to determine whether that departure was justified."

In the "synopsis of Anaesthesia" (submitted by opposite party No. 2) at page 573 it is mentioned that it is upon the patency of the bronchiolar lumen and the aquiescence of the bronchial reflexes that smooth anaesthesia largely depends. Intubation makes (sic.) worse but may become necessary. Irritability is greatest at the carina. Acute infection increases sensitivity. Coughing may cause trouble during anaesthesia with thiopentone. At page 588 it has been mentioned that practising anaesthetist is constantly faced with the problem of the aspiration of material from the alimentary canal into the air passages during induction, maintenance and immediately after anaesthesia. At page 590 of the same book the causes of vomiting are mentioned. First cause is inadequate preoperative preparation of the patient. Gastric emptying time varies between 4 and 8 hours : It is usually between 5 and 6 hours.

BEFORE we discuss the question of negligence hereafter right now we would like to point out that Anaesthetist Dr. R.K. Jain admittedly saw the patient for the first time on 29.10.1990 at 10.00 a.m. and the patient was taken to the operation theatre at 2.00 p.m., i.e. within four hours, and was administered anaesthesia shortly thereafter. In this case of Hernia, there was no emergency of an operation. The Anaesthetist could have delayed the operation for a few hours more or could have postponed the operation for the next day. Whenever, anaesthesia is to be given for urgent reasons what should be done and how should be done has been stated at page 593 of the same book "A Synopsis of Anaesthesia", which we quote : "When an anaesthetia must be given for urgent reasons, a plastic Ryle''s tube, e.g. size 6 gauge, should be passed from the nose into the stomach so that aspiration can take place and if necessary layage. This should be done with the patient lying on his side to prevent soiling of lungs should he vomit. Information is thus obtained as to the amount and type of material still in the stomach. If the Anaesthetist thinks that he can empty the viscous by the tube well and good, but in all cases of doubt an oesophageal tube such as of size 12 EG should pass into the stomach where it should remain until the patient gets his cough reflexes back at the end of the operation (although there is evidence that the presence of a tube interferes with the integrity of the cardiac sphincter mechanism. So that its withdrawal into the oesophagus before induction is recommended by some authorities). This tube will allow fairly efficient drainage of liquid and semi-solid material and so should prevent regurgitation even if actual vomiting is not prevented."

"Insertion of cuffed tube into trachea in a patient suspected of having a full stomach. The insertion of a cuffed tracheal tube into the larynx before the onset of vomiting or regurgitation is the only safe procedure when dealing with a patient who may have vomitable material in the stomach or oesophagus. A cuffed tube should always be used when in doubt about the contents of the stomach and before induction commences, the availability of an efficient suction apparatus, source of oxygen, laryngoscopes, tracheal tubes, airways, etc. must be checked. It is wise to induce anaesthesia in these patients on the operating table, so that tilting can be employed easily."

In the book Management of Aspiration Pneumonitis there is a chapter on prevention at page 1303. Some portions of which are as under : "When dealing with aspiration, an onuce of preventtion is worth a pound of cure. The average hospital stay for patient who have aspirated is 21 to 28 days amount of which is spent in an intensive care unit while costs are high. The most effective means of preventing aspiration is to avoid general anaesthesia. However many procedures and some patient are not amenable to regional anaesthesia. Therefore, general anaesthesia is necessary. When general anaesthesia is necessary the steps listed below will help prevent aspiration or emeliorate its consequence. Each of these steps is discussed in the succeeding paragraphs. Nil per Os Antacids Histamine-2 blocking agents Anticholinergic agents Metociopramide Head up position Rapid sequence induction of anaesthesia Cricoid pressure Endotracheal intubation Extubation awake Recovery room Nil per Os "Advising patient not to eat before anaesthesia and surgery began with the regular use of modern anaesthetics in the 1840s. Regurgitation and aspiration were noted to be common by John Snow. In his book published in 1858, On Choloroform and Other Anaesthetics : Their Action and Administration, he noted the following : The direction which it is usually requisite to give before hand, to the patient who is to inhale chloroform, is to avoid taking a meal previous to the inhalation; for chloroform is very apt to cause vomiting, if inhaled whilst there is a quantity of food in the stomach. Four years later, in the Edinburgh Medical Journal, an article appeared by G.W. Belfour, "New Cause of Death under Chloroform" which reported the first death apparently caused by complete obstruction of the trachea by spastic contents."

IN the book of Primary Anaesthesia by Mauce King in the chapter on "Should disaster occur", it is mentioned that, (1) before you can give any anaesthetic safety you must understand the basic care of a patient, before, during and after it, (2) You must know about the disaster that can occur, how to prevent them, and what to do if they do occur. An anaesthetic death is almost always the result of some preventable disaster, and even when it has happened, you can usually treat it, but only if you recognize it immediately, (3) You must have necessary equipment to deal with these disasters. The book further mentions as under : "The disasters that you must do all you can to prevent, and yet be prepared for if they do occur are : (1) The inhalation of stomach contents, following either vomiting or regurgitation, (2) Severe hypotension, (3) Respiratory arrest, (4) Cardiac arrest, (4) Laryngeal spasm, (5) Bronchial spasm, (6) Convulsions."

Before you give a patient any general anaesthetic, including ketamine and "cocktails", and any but the must minor local ones, follow these rules. They are not a complete system of anaesthesia-that is the whole of "Primary anaesthesia". They are merely ten of the things that are most often forgotten. The ten golden rules (1) Assess and prepare the patient Adequately-Assess him so that you will not anaesthetize anyone who is asthmatic, acidotic, or grossly anemic, unknowingly. If he is on any drug that might interfere with anaesthesia, you must know what they are Prepare the patient by correcting dehydration, severe anemic, cardiac failure or diabities before you operate. (2) Starve him, so that if he tries to vomit, his stomach is less likely to be full. Starve him, even if he is having a local anaesthetic, because it may fail so that you have to give him a general one. Remember that you cannot be sure that his stomach is empty, even after 6 hours of starvation. (3) Anaesthetize him on a tipping table. (4) Check your drugs and equipment before you start, especially if you are using less simple equipment. The equipment to preserve his airway must be ready beside you. (5) Keep a sucker instantly ready, tested and working, so that if his pharynx fills with vomit, you can suck it and you will also need suction catheters. (6) Keep his airway clear, because it can easily become obstructed. One way to do this is to use Guedel''s airway. You will need a range of different sizes. (7) Be ready to control his ventilation. (8) Have a vein open (9) Monitor his pulse and blood pressure. (10) Always have someone in the room who can apply cricoid pressure effectively, and will be useful in an emergency.

Undisputedly, the deceased patient was having "good built young male body" as has been stated in the post-mortem report when he was admitted in the hospital and he died within 10 hours of admission in the operation theatre, in mysterious circumstances. In doctrine of common knowledge the patient''s relatives must prove positive act of omission but they need not produce evidence to establish the standard of care as the entire operative procedure was carried out in the absence of any patient''s relatives. Naturally, when all such medical or surgical procedure was carried out inside the operation theatre when nobody on behalf of the patient was present, the patient''s relatives were unable to see any kind of medical/surgical procedure or what exactly happened inside the operation theatre. Therefore, the opposite parties and the staff attending inside only had special knowledge of what happened inside the operation theatre and the complainant is not in a position to exactly state the factual aspects of whatever took place inside are all necessity of evidence in order to prove the medical negligence occurring on the hands of the opposite parties. Therefore, it was a duty cast upon the opposite parties to prove the fact that no sort of negligence took place inside the operational theatre. Thus, the onus of proof shifting upon the opposite parties to substantiate the fact that there was no negligence on their part.

IN Smith v. Kay, 1956 SCC 1779, it has been held that where there is a question of good faith of transaction between the parties, one of whom stands to the other in the positive position of active evidence, the burden of proof of good faith lies on the party who is in a positive position of active evidence. Section 114 of the Evidence Act is as under : "The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

IN 1993 All ER 466, it has been clearly stated that in case where a general duty of care arose and there was failure to take a recognised precaution and that failure was followed by the very beginning the burden of proof lay on the defendant to show that he was not in breach of any duty. Dr. R.K. Jain has not stated anywhere as to whether he took all or any of the measures as mentioned at page 593 of the book "A Synopsis of Anaesthesia" and in chapter on "Prevention" in the book of "Management of Aspiration Pneumonitis" or observed any of the ten golden rules quoted in the book of primary Anaesthesia by Mores King.

According to his own affidavit and statement Dr. R.K. Jain saw the patient, deceased Pradeep Kumar Pal for the first time at 10.00 a.m. on 29th October, 1990 and he just advised enema to be given to him. He did nothing in between 10.00 a.m. and 2.00 p.m. At 2.00 p.m. he advised anti-biotics and injection tetanus oxide to be administered and advised him to remain nil per oral till further orders. Then he again attended him at 2.30 p.m. and anaesthesia was administered within minutes hereafter and operation commenced at 2.45 p.m.

DR. Jain has not stated anywhere that the deceased was empty stomach or had starved since previous right. On the other hand he had advised enema to be given. Any enema was administered has not been stated. The Every fact that anaesthesia was administered just after 4 hours of his examination, without taking sufficient precautions as cited earlier from various books on anaesthesia, amounts to negligence and breach of duty and no other evidence is required to prove this negligence on the part of Anaesthetist. Negligence means omission to do something which a reasonable and prudent person guided by the consideration which ordinarily regulates human affairs would do or something which a prudent and reasonable man would not do. Similarly being MBBS doctor Dr. Padode was fully aware of the fact that general anaesthesia should not be administered within less than 5 hours of his examination by the Anaesthetist. He should have taken due precaution to get the patient examined by anaesthetist either a day earlier or at least 8 hours earlier before operation or should have ensured that the patient was empty stomach before administration of anaesthesia. He is running a Nursing Home. He cannot say that his job was only paper work or supply of equipments or medicine. He has repeatedly expressed his negligence of everything in his cross-examination which shows utter carelessness and shirking of responsibility from his shoulders. The Nursing Home did not possess some of the life saving drugs which were called for from outside. He did not even match blood to be called for, as is evident from the slip issued by the hospital alongwith the sample of blood for matching and for providing bottle of blood. Bringing of bottle of blood from Hamidia Hospital must have taken at least 2 hours. The delay of 2 hours in supplying the blood is another negligence for which the Padode Nursing Home is directly responsible. Dr. Padode appears to have been spoken lies also on some points. For example, he has stated in para 2 of his reply that Dr. Jain and Dr. Kanoongo had independent contact with the patient. This is utterly wrong. Dr. Jain has stated in his affidavit that he saw the patient on 29.10.1990 for the first time at 10.00 a.m. and he had no contact with the patient before 29.10.1990. Similarly Dr. Padode has stated that no visiting doctors come to his Nursing Home whereas Dr. Kanoongo has categorically stated that he is "visiting doctor" and he comes only when he is called for. The complainant also has stated in her affidavit that Anaesthetist and surgeon were arranged by Padode Nursing Home and the complainant had no direct contact with them. Naturally Padode Nursing Home is equally responsible for any kind of negligence by the surgeon, Anaesthetist or any of their staff.

THE opposite parties have denied that they received any consideration from the patient or from the patient''s relatives for his operation. THE complainant has stated in her affidavit that the opposite party, Padode Nursing Home was paid Rs. 1,500/- as part payment of fees for which however no receipt was issued immediately. Dr. Padode has himself admitted that they have the practice of taking fees in advance, but he denied that in this case any fees was taken. Padode Nursing Home is definitely running on commercial basis and with the intention of earning profit and it is not a charitable institution. As the practice is in all Nursing Homes, the fees is taken in advance and for this receipt is rarely issued because this advance is adjusted in the final bill when the patient is discharged. We have no reason to disbelieve the complainant''s affidavit that she paid the fees of Rs. 1,500/- nor do have any reason to presume that the opposite parties admitted the patient for an operation without taking any fees or advance. THErefore, this contention of the opposite parties that no consideration was taken is not reliable. Section 2(1)(d) of the Consumer Protection Act defines ''consumer'', Clause (ii) of which reads as under : "hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."

Consideration is an act or forbearance or the promise thereof which is offered by one party to an agreement and accepted by the other as an inducement to the other''s act or promise. Section 2 of Indian Contract Act states that when at the desire of promissory the promisee or any other person has done or abstained from doing or promises to do or abstain from doing something, such act or promise is called a consideration for the promise. The very fact that few crepts and rhonchi developed within ten-fifteen minutes after starting the surgery establishes that the patient was not properly prepared for anaesthesia. The contention of Dr. R.K. Jain that aspiration is one of the known complications of anaesthesia fails, insofar as Dr. Jain did not take due precautions as pointed out earlier in the order. Dr. Rajesh Kanoongo is also equally responsible for negligence and lack of care, because he performed the operation on a patient who was not properly prepared for general anaesthesia, when there was no emergency for operation. Surgeon and Anaesthetist work hand in glove during the course of operation. Post-operative management whatsoever done by non-applicants, is of no avail, for want of pre-operative care, which was the most apparent cause of aspiration of the lungs resulting in death of a healthy young patient within nine hours of the admission in operation theatre.

WE, therefore, hold the opposite parties jointly and severally liable for negligence and deficiency in service which resulted in untimely death of a healthy and young person.

THE complainant has claimed of compensation of Rs. 8 lacs. THE deceased was 34 years old only and was I.T.I. trained technician who was running a business of welding and was earning Rs. 4,000/- to Rs. 5,000/- per month but no legal evidence has been produced by the complainant about the earning of the deceased. However, the fact remains that the deceased was a technician doing welding work, we feel he must have been earning approximately Rs. 2,500/- p.m. He left behind his wife and so excluding his expenditure of own expenses of the deceased and expenses of the welding shop, etc. it would be just and proper to assess the dependency of his wife and son would meet at Rs. 1,000/- per month, yearly Rs. 12,000/-. If this multiplier of 14 is applied the amount would work out to Rs. 1,68,000/-. In this convential amount of Rs. 7,000/- towards consortium to his wife and for love and affection to the child the total would come to Rs. 1,75,000/- which the complainant would be entitled with interest at the rate of 12% per annum for a period of five years. As we are not inclined to award interest for the total period of about nine years spent in litigation for which the delay wholly cannot be attributed on the part of opposite parties. In the result the complaint is allowed with a direction to opposite parties to pay jointly or severally Rs. 1,75,000/- with interest at the rate of 12% per annum for a period of five years and costs of Rs. 2,000/- within a period of two months from the date of receipt of certified copy failing which the interest shall be payable at the rate of 15% per annum. A copy of this order be conveyed to parties.

Before parting with the case, we think it is proper to place on record our appreciation for the valuable assistance rendered to us by Mr. Deepesh Joshi, learned Counsel amicus curiae. Complaint allowed with costs.