KAPILDEO SINGH vs Sagina Khatoon

THIS revision petition has been filed by the petitioner to challenge the order dated 30.04.2008 passed by the State Consumer Disputes Redressal Commission Bihar, Patna ("State Commission" for short) by which the State Commission dismissed the appeal filed by the petitioner challenging the order dated 26.07.2002 passed by the District Forum in consumer complaint no.300 of 1998. By its order, the District Forum directed the petitioner, who was OP before the District Forum, to pay to the complainant, respondent herein, compensation of a sum of Rs.2 lakhs as well as litigation cost of Rs.5,000/- for negligence and deficiency in service on his part in administering treatment to the late husband of the complainant.

THE factual matrix of this case are that the husband of the complainant, namely, Md. Alam aged about 40 years met with an accident while going on a motorcycle as a pillion rider at about 10.30 a.m. on 09.10.1998. He sustained some inner injuries on lower portion of his right leg. On returning home, as the pain and swelling in the leg aggravated, he was taken to the clinic of the petitioner at Motihari at about 2.00 p.m. on the same day. On his advice, X-ray was done and after looking at the X-ray, the petitioner diagnosed fracture in the lower side of his right leg. THE petitioner told that a small operation will have to be performed for traction and in the process anesthesia would be administered to Md. Alam. He took a sum of Rs.750/- for operation and another sum of Rs.300/- for ether, cotton, medicine, etc. from the complainant. Operation was performed at about 5.30 p.m. on 09.10.1998 itself. It appears that Md. Alam except for the inner injury part, was in good health prior to his operation. After half an hour'', the petitioner came out of the operation theatre and told the complainant and others that he had performed the operation and the petitioner would regain consciousness after about half an hour. Patient was shifted to a room in the petitioner"s nursing home but it was noticed that he was unconscious and in quite an abnormal condition. Even after lapse of more than half an hour"s time, the patient did not regain consciousness and he was not at all normal. According to the complainant, the attendants learnt from the compounder that high dose of anesthesia appeared to have been administered to the patient at the time of operation and hence they rushed to the petitioner who came and examined the patient and told the complainant that the patient required oxygen and asked them to take him to Patna. THE father of the patient got ready to have an ambulance to take his son to Patna but just about then at about 8.30 p.m., the patient died. Alleging negligence on the part of the petitioner, the complainant preferred a consumer complaint before the District Forum seeking relief of making a direction to the petitioner doctor to pay her a total sum of Rs.4,95,000/- towards loss caused by death of her husband, maintenance of her two daughters who were 4 years and 1" years old and a child in her womb, mental agony and physical harassment she was subjected to owing to negligence and deficiency in service on the part of the doctor, expenses incurred by her on treatment, performance of last ritual rites and the litigation cost. THE petitioner doctor resisted the complaint but on appraisal of the issues and taking into consideration the evidence adduced and the facts and circumstances of the case, the District Forum held the petitioner doctor negligent and deficient in providing service to the deceased husband of the complainant and accordingly awarded a compensation of Rs.2 lakhs and litigation cost of Rs.5,000/- to the complainant to be paid by the OP doctor to her. THE appeal filed by the OP before the State Commission came to be dismissed by the State Commission vide its order dated 30.04.2008 which is now under challenge through the present revision petition. We have heard counsel for the petitioner and the respondent. It is not under dispute that the deceased husband of the complainant was in good and sound health before he was taken to the operation theatre except injury which he had suffered on account of the accident. No doubt, the petitioner is an orthopedic surgeon with long practice in his field to his credit. It is also not under dispute that the petitioner performed the operation upon the deceased person under general anesthesia and he was removed from the operation theatre and shifted to the room no.6 in the state of unconsciousness although the petitioner told that he would regain consciousness within half an hour. It is also not under dispute that the petitioner himself administered ether as Anaesthetician for making the patient unconscious. The fora below through their concurrent finding have found this action on the part of the petitioner who is simply an orthopedic surgeon as an act of negligence keeping in view the testimony of the witnesses to the effect that the deceased person died without regaining consciousness. In the circumstances, there was high degree of probability that the petitioner administered excess dose of ether as means of anesthesia which caused various complications damaging certain organs of the body of the deceased. While concluding negligence on the part of the petitioner, the State Commission in its impugned order has made the following observations:- "20. The respondent in her complaint contended that the deceased was having low blood pressure just prior to his undergoing operation though it was alright during the day time and the appellant doctor underestimated the complication that might arise from the operation while the patient was running low blood pressure and he ignoring all this performed operation for the sake of money. The appellant did not appear to have specifically denied the factum of low blood pressure of the deceased in his written statement. It was to be kept in view that the deceased was in quite good and sound health before he was taken to Operation Theatre and the condition got deteriorated after the appellant administered medicine, anesthesia and operated upon. 21. There was ample cogent and reliable evidence to establish that the appellant performed the operation upon the deceased under general anesthesia and he was removed from the Operation Theatre and shifted to room no.6 in the state of his unconscious and the doctor told the respondent and her father-in-law that he would regain consciousness within half an hour. It was also the admitted position that the appellant an Orthopedic surgeon himself administered ether as Anaesthestician for making the patient unconscious. He claimed to have acquired vast experience with long outstanding practice and he required no service of Anaesthestician. It also stood well proved that the deceased never regained consciousness and he died in the state of unconsciousness just 2 " -3 hours after the operation. The complainant-respondent and her witnesses asserted that the deceased was given excess quantity of ether as means of anesthesia in consequence of which he died without ever regaining consciousness. Howsoever, well reputed and experienced Orthopedic surgeon the appellant might be he could not be accepted to be an Anaesthestician and an expert to administer anesthesia to a patient to put him/her in unconsciousness for performance of surgery on such patient. There was high degree of probability that the appellant (Orthopaedician) administered excess dose of ether as a means of anesthesia which caused various complications and also damaged certain organs of the body of the deceased. Oral evidence adduced on behalf of the doctor-appellant would not render him expert in the filed of administration of anesthesia. His act of assuming the role of an Anaesthestician and administering anesthesia to the deceased could not be approved."

We agree with the conclusion drawn and the finding recorded by the State Commission. In fact, not only that there was no denial about the aforesaid fact of administering anesthesia himself, this fact has been reiterated and admitted by petitioner"s counsel before us as well. However, his contention was that there was no postmortem and hence the cause of death could not be regarded as excess dose of anesthesia. Besides this, his main argument was that the impugned order of the fora below is based on layman"s perception and hence the State Commission erred in relying upon the allegation of death on account of excess anesthesia. He further said that there was no expert opinion taken in the matter at any stage and in the absence thereof, it would be wrong to conclude that there was any negligence on the part of the petitioner while administering anesthesia to the patient which he had been doing throughout his long practice in respect of other patients while operating on them. Counsel for the petitioner has also produced extracts from pages 341 and 342 from the book "Essentials of Medical Pharmacologies" by K.D. Tripathi in support of his contention that Ether (Diethyl ether) used as anesthesia by open drop was relatively safe even in inexperienced hands. He further referred to copy of Medical Council of India"s Regulation on Graduate Medical Education to show that he had adequate training in administering anesthesia right at MBBS stage besides his long experience in administering anesthesia as orthopedic surgeon.

COUNTERING the arguments of the counsel for the petitioner, the counsel for respondent submitted that reference to the extracts from the book of K.D. Tripathi regarding ether used as anesthesia by open drop was misleading because the reference in the book is in respect of its use by an Anaesthestician and not by a general orthopaedician. He contended that this is a case where negligence on the part of the petitioner is writ large since the facts and circumstances of the case clearly established that the anesthesia was the cause of death of the husband of the complainant who was otherwise in sound health except the injury for which he was operated by the petitioner. He, therefore, pleaded that it is fit case where based on the celebrated principle of Res Ipsa Loquitor the petitioner is liable for medical negligence and hence the fora below have rightly returned their concurrent finding against him in the matter. In this context, learned counsel relied on the ratio laid down by Hon"ble Supreme Court in the case of V. Kishan Rao Vs. Nikhil Super Specialty Hospital and Anr. [(2010) 5 SCC 513] where the earlier ratio laid down in the case of Martin F. D" Souza Vs. Mohd. Ishfaq [(2009) 3 SCC 1] has been distinguished and it has been held that "in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (s) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence." In view of all these aspects, learned counsel pleaded that there is no substance in the revision petition and the same is liable for dismissal with cost. Taking into consideration the undisputed facts and circumstances of this case and applying the ratio laid down by their Lordships of the Supreme Court in the case of Nikhil Super Specialty Hospital(supra), we do not find any irregularity or legal infirmity or jurisdictional error in the concurrent finding returned by the fora below in favour of the respondent. Consequently, we do not see any reason to interfere with the impugned order and the same is confirmed herewith. The revision petition stands dismissed accordingly with the parties bearing their own costs.