B.T. SRIDHAR & ANR vs VOKALIGARA SANGHA & ORS

These three appeals are filed against the order of Karnataka State Consumer Disputes Redressal Commission in Consumer Complaint No. 9/2006. Complainant/ B.T. Sridhar, together with his son, has filed FA No.6 of 2009, seeking enhancement of compensation from the amount of Rs.15 lakhs, awarded by the State Commission to Rs.90 lakhs, originally prayed for in the complaint before the State Commission. FA No.22 of 2009 is filed by OP-1/Vokkaligara Sangha and FA No.27 of 2009 by OP-3/Dr. L. Krishna, who had performed the operation. The two appeals filed by the OPs have sought setting aside of the award of the State Commission.

Except delay of just a day in filing of FA No.22, the appeals have been filed within the permissible time limit. The nominal delay in the appeal of OP-1 is therefore condoned. Considering that the award made by the State Commission itself is in challenge in FA No.22 of 2009 filed by OP-1/Vokkaligara Sangha, it is taken as the lead case for consideration of the three appeals together.

While admitting them, this Commission on 10.2.2009 had ordered stay of the impugned order, subject to the Appellants depositing, without prejudice, a sum of Rs.10 lakhs, with the State Commission. It was also ordered that the Complainant/ B.T.Sridhar would be entitled to withdraw a sum of Rs.7.5 lakhs out of the deposit on furnishing sufficient security. The records have been perused and the matter has been heard at length. Complainant B T Sridhar assisted by Mr. Anand Sanjay M. Nuli, Advocate argued his own case. For Appellant/ OPs -1 and 2 Ms. Rajani Prasad, Advocate, for Appellant/OPs-3,4 and Mr Ravinder K Verma, Advocate for Appellant/OPs-6 and 8 have argued their respective cases.

The facts as seen from the record are that Dr. T. Ashalatha, since deceased (wife of the Complainant/B.T.Sridhar), was a member of the teaching faculty of a medical institute/hospital run by OP-1, her son Complainant No.2 was born on 5.9.1991. Satisfied with one child family, the couple decided on family planning operation. The Laparoscopic Tubectomy operation was planned for 16.9.2003. She was taken into the operation theatre at about 8:50 AM and brought out at about 11:20 AM. Allegedly, after about 20 minutes she had breathing difficulty and was shifted into the Intensive Care Unit (ICU).

The Consumer Complaint before the State Commission does not give any chronological details of subsequent events. But, it shows that this was the case of a lady in good health, who came in for family planning operation, slipped into coma thereafter and eventually died. In this behalf, the Complaint Petition states in para 8 that:- "It is further submitted that the cause for the death is due to the Injection Tracurium which was administered to the Patient on 16.9.2003. It is pertinent to mention that the said injection is being used by an Anesthetist in the Operation Theatre only and not by any others, and kept in a safe place in the Operation Theatre itself under custody of the Anesthetist and further the said injection is not available for sale to any Public anywhere, and that the Sale is extensively made to Anesthetists only to be used in the Operation Theatre. In view of the peculiar circumstances, it clearly goes to show the gross negligence of the Opposite Parties who were very negligent in using the said Medicine."

The OPs (other than OP-5), in a joint Written Statement before the State Commission have denied the allegations in entirety, claiming that the Complaint does not make out any specific allegations against individual OPs. No deficiency is alleged against OP-1 and OP-2. It is also claimed that allegations made in the Complaint have not been specifically linked to acts of commission or omission leading to ultimate fatality. The version of the OPs carries a narration of the events leading to the death of the patient in following words:- "After the surgery the patient recovered consciousness fully and she was kept in the Post Operative recovery room for nearly 2 hours. When she was fully conscious she was shifted to the gynaecology post -operative ward in the third floor. The assistants and post-graduates were kept vigilant to look after her as she was one of the staff members at KIMS. The patient spoke to her husband, departmental colleagues and others both at the recovery room as well as the post operative ward. During post operative period, all the vital parameters were normal. Subsequently, the patient developed breathing problem and on examination it was found that the patient had Cardio-respiratory Arrest and immediate Cardiopulmonary resuscitation was started with the help of Anaesthesiologist and Physician. The patient was shifted to ICU with ambu-ventilation with oxygen at 4 lit/min, for ventilator support. She was in ICU for nearly four months and on 17.1.2004 her condition determined and she passed away on 18.1.2004 though all efforts were put in by the doctors concerned." (Emphasis supplied)

On the specific allegation that the patient was injected with Tracurium on 16.9.2003, the version of the OPs carries the following response:- "After few minutes of shifting the patient to the ward, the ward staff and the doctor in-charge called Respondent No.4 to inform that the patient had developed breathing problem. Immediately, the Respondent No.4 rushed to the ward and examined the patient and on examination it was found that the patient had Cardio-respiratory Arrest and resuscitative measures were employed. The Respondent No.6 along with his team including the Respondent No.7 who was a P.G. Student then, intubated the patient and with ambu-ventilation with oxygen at 4 lit /min, shifted to ICU for ventilator support. The Respondents submits that at that point of time, the exact cause for Cardiorespiratory arrest was not known and they tried to elicit the history as to what happened within few minutes after the patient was shifted to the Post -operative ward. However, the Respondents submit that they were unable to conclude any cause for the Cardiopulmonary Arrest till the time they scrutinized the case sheet for treatment during their evening rounds. Only then, they noticed that an entry of a drug was made in the case sheet which was administered on the patient in the Post-operative Ward which, none of the Respondents had prescribed. On the next day, on enquiry, the Respondent No.8, the attending nurse in the ward revealed that she had administered the said medication at the instance of the patient''s husband i.e., the Complainant who personally introduced himself as a doctor from NIMHANS hospital and handed over the ampoule and requested her to administer the drug intravenously for pain relief immediately. The Respondent No.8 submits that since the Complainant introduced himself as a Doctor from the NIMHANS she, without waiting for any clarification or orders from the treating doctors, administered the drug intravenously. The Respondent No.8 submits that she, along with her colleague were around and after administering the said drug the patient started with breathing problem and immediately they called for the Respondents 4,6 and 7 to examine the condition of the patient. Hence, the Respondents submit that there is no negligence on their part whatsoever and it is the Complainant who is maliciously trying to make a scapegoat of the team of doctors who had taken utmost professional, ethical and judicious care for the patient who was also a professional colleague upholding the ethics "not to harm". Respondents submit that it is very clear from the acts of the Complainant including filing a complaint before the police a day in advance to the death of his wife, that he had malicious intention with ulterior motive of personal gain from the said incident. For the reasons explained in detail above that the complainant instead of replacing the drug in the operation theatre, has dishonestly handed over the drug to the innocent nurse with malicious intention to misuse the same for his selfish motives. "

(Emphasis supplied)

The impugned order refers to the claims and counter-claims as to why and at whose instance Tracurium injection was given to the deceased. But more importantly, it refers to the post-mortem report which concluded with an impression that it was a case of " hypostatic (lobar) Pneumonia lung with cerebral anoxia". In plain terms, she was in a state of lung congestion due to poor blood circulation and the level of oxygen supply to the brain had gone below normal.

Equally importantly, the impugned order refers to the report submitted by Dr. P.K.Devadass, Professor and Head, Department of Forensic Medicine, Victoria Hospital, Bangalore to the local Police. On certain questions raised on the manner and effect of this injection, the Report gives following clear answers:- "1). inj. Tracurium is the trade name of ''Atracurium''. It is a neuromuscular blocking agent. Its main clinical use is in surgical anaesthesia to obtain relaxation of skeletal muscles, particularly of the abdominal wall, so that operative manipulations are facilitated. It is a potentially hazardous drug, should be administered by anaesthesiologist and other clinicians who have had extensive training in their use; and in a setting where facilities for respiratory and cardiovascular resuscitation are immediately at hand

. 2) The inj. Tracurium should not be given by staff Nurse under any circumstances to any patient. In this case inj. Tracurium was given by the staff Nurse in the ward after the surgery which is wrong.

3) If inj. Tracurium is given by anybody other than an anaesthetist, in any place other than an operation theatre setting, it can lead to respiratory arrest similar to the events that have taken place in Dr. Ashalatha''s case as described in the hospital case sheets, leading onto her death.

4) inj. Tracurium is a drug which should be stored and used in the operation theatre only. It should not be available anywhere in the hospital other than the operation theatre. In case of emergency anaesthetist can prescribe inj. Tracurium and obtain from a responsible person to be used in the operation theatre only.

5) Death is due to coma as a result of cerebral anoxia, due to paralysis of respiratory muscles secondary to the drug inj. Tracurium which was given to the patient in the ward after the surgery."

(Emphasis supplied)

The impugned order has noted that OP-6/Dr. R. Shekar Reddy, who had assisted as anaesthetists in this surgery, was examined before the State Commission. According to him, atracurium can cause respiratory muscles paralysis resulting in respiratory arrest. The action of the drug would start within minutes of administration. OP-6 also stated that atracurium is a scheduled drug. It is only used in the operation theatre and only by the anaesthetist. In this background, the record of treatment acquires a special significance.

However, in para 13 of the impugned order it is observed that the OPs have not produced case-sheet of the patient. They have produced only Xerox copy of some of the records of the case. In this behalf the explanation of the OPs that the records had been seized by the Police has not been accepted by the State Commission. It has observed that the OPs could have secured the copies of the entire records either from the Police or from the concerned court. The State Commission has therefore drawn adverse inference against the OPs for non-production of the record of treatment.

Before proceeding to consider the grounds of appeal, we find it necessary to flag an important fact about the injection. In his statement recorded before the State Commission, OP-3/Dr L Krishna has clearly stated that- "We also enquired with Sridhar the husband of the patient and asked him to show the receipt of the medicines supplied by him. He was able to produce a receipt which showing that he had purchased the medicine from the drugs counter in the same hospital. He also has shown in the prescription given by the doctor. The said prescription was given by Doctor at Anesthesia Division. We also noticed that 11-20 was the time mentioned for having sold the said medicine from the Drugs Counter. We returned all the medicine slips back to him. When we asked him as to where he had given those medicines and in reply he informed that he had handed over the same at major operation theatre. In this regard with Anesthesia Specialist and he informed that he had not secured any medicine and "Tracrium" Injection.

He further informed that during the operation conducted to Dr. Ashalatha the "Tracrium" injection which was available at operation theatre stock was administered to the patient and returned back to the operation theatre stock, as informed to Sridhar; and it is learnt that he did not return the same."

Thus admittedly, the injection was received from the complainant in replacement of the injection given to the patient from the stock of the Operation Theatre. It explains why the Written Statement of the OPs mentioned that the complainant had given it to the Nurse, instead of the OT. It also explains the existence of the prescription of 16.9.2003 for this patient, mentioning the drug as "Inj. Atracurium 25mg (1) ampoule".

Main ground urged in the appeal of the Hospital is that none of the doctors had ordered administration of Tracurium injection to the deceased in the postoperative ward and as per rule, "a nurse is not supposed to administer any drug without the written order of the attending doctor. But in this case the nurse had administered the drug without any oral or written order of the attending doctor". This, in our view, is a direct admission by the hospital of a major lapse on the part of its employee.

Another ground of appeal is that the State Commission should have called for the record of treatment from the Police. This is a strange argument, to say the least. In the face of admission that the injection was given by its nurse, it was for the hospital to produce any record/evidence in its defence. The State Commission had the legal option to draw adverse inference from non-production of the complete record of treatment by the originator of the record i.e. the Hospital, and it did. Therefore, this argument can find no legs to stand on.

Moving further, it is argued that in view of the admission of the nurse that the injection was given at the instance of the complainant himself, the State Commission should not have over looked this factor and should not have fixed liability on the appellant/hospital. On this point neither the appeal memorandum nor the counsel for the appellant has pointed to any evidence that was led before the State Commission. In the absence of the same, this contention must be held to be devoid of any substance. We reject it for the same reason.

Earlier in this order, we have referred to the Statement of OP-3/Dr L Krishna that on oral inquiry from the complainant they were informed that the injection was delivered by him to the ''major operation theatre''. But, in the same statement it is noted that Staff Nurse/ Saraswati had administered this injection to the patient. The Nurse had claimed, separately and in writing, that she was persuaded by the husband of the patient to administer it. Yet apparently, despite the disastrous consequences flowing from it, the hospital chose to do nothing. The statement of OP-3 only says that no Police complaint was filed against Sridhar "because it may have the effect of tarnishing image of the hospital''. But, as per the record, the OP Hospital eventually did file a FIR with the Police on 23.1.2004, which was a week after the FIR of 18.1.2004 filed by the complainant.

From perusal of the evidence led by the two sides before the State Commission and arguments of their counsel before us it is clear that- a. The injection that caused the problem was given by Nurse, H C Saraswati.

b. Tracurium is an injected which can be given only by or under direct supervision of an anaesthetist. It is not meant to be used outside the Operation Theatre. But, in this case it was given by her in the Post Operative ward.

c. By her own admission in the letter of 17.9 2003, it was not given as per instructions of any duty doctor.

d. There is no evidence of any action having been taken by the Hospital against the nurse for giving this injection without instructions from any treating doctor.

e. There is no explanation why the hospital filed the FIR on 23.1.2004, after a long delay of over five months, if the OPs had actually found out in their internal inquiry, as claimed, on 17.9.2003 itself that the nurse had been "persuaded" by the Complainant to administer this injection on 16.9.2003.

f. The claim of OPs, that the nurse was "persuaded" by the Complainant to give this injection to the patient, has been denied by the latter. But, no evidence to the contrary was led by the OPs.

A feeble attempt has been made to argue on behalf of the Hospital that it should not be held liable for a lapse on the part of its nurse. The law on the subject is very different and well established. In Smt. Savita Garg Vs. The Director, National Heart Institute, 2004 CTJ 1009 (SC) (CP), Hon''ble Supreme Court has observed: "10. As a matter of fact, when a patient is admitted to the highly commercial hospital like the present institute, a thorough check up of the patient is done by the hospital authorities, it is the Institute which selects after the examination of the patient that he suffers from what malady and who is the best doctor who can attend, except when the patient or the family members desire to be treated by a particular doctor or the surgeon as the case may be. Normally, the private hospitals have a panel of doctors in various specialities and it is they who choose who is to be called. It is very difficult for the patient to give any detail that which doctor treated the patient and whether the doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition. It will be an impossible task and if the claim is to be defeated on that ground it will virtually be frustrating the provisions of the Act, leaving the claimant high and dry. We cannot place such a heavy burden on the patient or the family members/ relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party. It will be a difficult task for the patient or his relatives to undertake this searching enquiry from the Hospital and sometimes hospital may not co-operate. It may give such details and sometimes may not give the details. Therefore, the expression used in Rule 14 (1) (b), " so far as they can be ascertained", makes it clear that the framers of the Rules realized that it will be very difficult specially in the case of medical profession to pinpoint that who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint and specially in the case like the one in hand. The patients once they are admitted to such hospitals, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/ hospital than that of the claimant."

Thus, what flows from the decision is that the liability of the hospital is primary. It cannot be permitted to claim that only the nurse was at fault.

In view of the details considered above, we find no merit in the two appeals filed by the OPs.

The next question is how to determine compensation in a case like the present one. In Malay Kumar Ganguli Vs. Dr. Sukumar Mukherjee & Ors., (2009) 8 SCC 221, Hon''ble Supreme Court has observed: "172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, the courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife''s contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband''s income, etc."

In the appeal filed by the Complainant, the prayer is to allow it in terms of the Complaint. Prayer in the complaint was for total compensation of Rs 90 lakhs, together with interest and cost. However, no item wise details were given. The State Commission has awarded a lump sum compensation of Rs15 lakhs, to be paid jointly and severally, by OPs (except OP-7).

In the Memorandum of Appeal no computation has been given for enhancement of compensation. But, different paras of the Appeal carry the following information on the claim for enhancement of compensation- i. The last pay drawn by the deceases was Rs.25701.

ii. She remained in coma for 125 days from 16.9.2003, before her death.

iii. Considering that she was only 39 years of age at the time of the tragedy, a multiplier of 16 should have been used by the State Commission to compute the compensation.

However, during the course of hearing of the appeals, the appellant/Complainant has filed a computation of the loss of salary on 12.4.2010. As per this unauthenticated statement, her total earnings would have been -

a. Till the date of her death (5.4 months) Rs 1,39,808

b. July - December 2004 (Rs. 26,119+420) Rs 1,59,234

c. January, 2005-May 2007 (50,935x29months) Rs 14,77,115

Therefore, even excluding the claim that the deceased should have become a Professor by July 2005, her computed earnings as above would have come to about Rs 17.75 lakhs.

Considering the above and in the facts and circumstances of this case, we are of the view that ends of justice would be served if the lump sum compensation amount is enhanced to Rs.20 lakhs, with 9% interest from the date of the complaint before the State Commission. A sum of Rs.10,000/- shall also be paid to the Complainant towards cost of litigation. Half of this amount shall be directly paid to Complainant No.2 i.e. the son of the deceased Dr T. Ashalatha. The appeal of the Complainants is partially allowed in these terms. Appeals filed by the OPs, as noted earlier in this order, are dismissed for want of merit. The statutory amount of Rs.35,000/- deposited by the Appellants in these appeals shall stand transferred to the Consumer Welfare Fund of the Central Government.