RAJULAN LYSANDER vs R. PAPPA

THE complainant''s case is that the 1st complainant''s husband was taken to the hospital of the opposite party on 31.3.1997 since he complained of pain in his lower abdomen. THE opposite party represented that to save his life he has to be operated upon and, therefore, the complainant admitted him in the hospital and promised to pay a sum of Rs. 5,000/- as demanded by the opposite party. THE opposite party performed the surgery without making the necessary investigation and observing the procedure as a result her husband died on the operation table. THErefore, the complainant, accusing the opposite party of deficiency in service, filed this complaint claiming a sum of Rs. 4,50,000/-.

THE opposite party contended as follows: THE husband of the 1st complainant was not a healthy person. He was a smoker. He was further addicted to drinks. He was brought to the Nursing Home of the opposite party with strangulated inguinal hernia. THEre was distension of Thaman. He was also finding difficult to breath. He complained that he could not pass urine. He also said that he vomited. It was diagnosed that the patient was suffering from septicemia due to absorption of toxic materials from the gangrenous intestine. Unless emergency operation was done, the patient''s life was in danger. If the strangulated portion had become gangrenous, the entire portion has to be cut and removed. Though the health condition of the 1st complainant''s husband was not fit for operation, since there was the likelihood of danger to his life, it was decided to operate upon him. THE patient was brought in such a condition that he was struggling for life. Blood test was done. Certain medicines were purchased outside. THE opposite party did not receive any fee. THEy did not receive any hire charges. THEy also did not receive any amount for the nursing charges or hospital charges. THE allegation that the necessary precautions and procedures were not followed is absolutely false. It was a risk that had to be undertaken and was undertaken. It was not an elective operation. THE condition of the patient was such that general anaesthesia could not be administered. Spinal anaesthesia was also considered risky and, therefore, local anaesthesia was preferred. Xylocaine was administered by way of injection. At the time of operation, Dr. Mohan and nurses and assistants were present. THE opposite party is a M.S. All those who are qualified as M.B.B.S. can undertake surgery. THE opposite party is specialized in E.N.T. surgery. He had 18 years of experience. THE opposite party''s hospital is clear and equipped an air-conditioned operation room with all facilities. All the necessary apparatuses such as Boyles apparatus, Automatic Bio-monitor, Cardiac monitor with defibrillator, E.C.G. were available. Necessary apparatuses for administration of oxygen were also available. After explaining the consequences, the deceased agreed for the operation. He was administered glucose and was given nasal oxygen by inserting tube in his abdomen. THE gas and other contents of the stomach were discharged. Antibiotic medicines were administered and pain killer was also given. He was taken to the operation room by about 9.30 p.m. At that time, his pulse was at 120. Local anaesthesia was administered. THE opposite party made incision and opened the abdomen. At that time, the heart beats stopped because of the strain of surgery and anaesthetic strain and because of toxic materials mixing with the blood. Immediately, oxygen was pumped into the lung and massage of the chest was also done. THE nurse also gave a direct injection into the heart. THEre was again heart beat but as there was water accumulation in the lung, the lung could not function with the result that necessary oxygen could not be supplied to the heart and, therefore, the heart stopped. Oxygen was pumped directly into the lung but the lung could not absorb. THE intra cardiac injection and adrenaline were administered but still the heart did not pick up. Thus, he died of cardiac arrest. THEre was no deficiency in service on the part of the opposite party. The Lower Forum accepted the case of the complainant and directed the opposite party to pay a sum of Rs. 1,00,000/- as compensation. Hence, this appeal.

The fact remains that the 1st complainant''s husband died when he was being operated upon. According to the opposite party, the 1st complainant''s husband was brought in a very bad shape and that he had strangulated inguinal hernia and at the time he was brought there was a distension of the stomach. The patient was complaining of breathlessness and that he also said he had difficulty in passing urine. In the complaint, it is simply stated that the complainant''s husband complained of pain at about 4 p.m. and he was taken to the hospital of the opposite party. The complainant has addressed a letter to the Consumer Protection Council, Virudhunagar stating that as her husband complained of stomach pain, she took her husband to the hospital of the opposite party and at that time the opposite party told her that there was danger to the life of her husband and that she requested him to save her husband at any cost and that the opposite party said that she must pay a fee of Rs. 5,000/-, it was about 9 p.m. then and that she promised to pay the amount on the next morning and the opposite party agreed. But at about 10 p.m. he was taken to the operation room and after an hour the doctor came out and did not say anything and later the nurse told her that her husband had died. What all she has stated in her complaint made through the Consumer Protection Council is not now set out in the complaint now filed. In the complaint, she states that the opposite party did not observe the necessary precautions before doing the operation. He failed to see that the B.P. was normal. He failed to note the cholesterol level in the blood. He failed to ascertain the body anatomy. He did not take steps to ascertain the sugar and urea level and that according to her this is resulted in the death of her husband. Further, she has stated that it is not known whether the opposite party was competent to undertake such operations. It is not known or explained by the complainant as to how she came to know that the opposite party did not observe the necessary procedure and precautions and did not do the necessary investigations before undertaking the operation. It is to be pointed out that in the complaint she addressed to the Consumer Protection Council, nothing is said about these things. Therefore, how is it that she suddenly came to know of all these lapses is not explained by her. It is also not stated by her in the complaint or in the notice that she paid any fees to the doctor or paid any hospital charges. Therefore, to begin with, it is not established that the complainant is a consumer and that she hired the services of the opposite party for doing the service. At best, she has only stated that she promised to pay the sum demanded by the doctor on the next morning but she has nowhere stated that the amount was paid by her in fact or that the opposite party demanded and collected the amount subsequently. Therefore, the basis for invoking the benevolent provisions of this Act is not at all there and, therefore, on this point alone the complaint deserves to be dismissed.

THE complainant has not examined any expert evidence. On the other hand, the opposite party as well as the doctor who assisted him have taken the witness stand and have submitted themselves to cross-examination. THEy have denied the complainant''s case and have stated that they followed the necessary precautions and observed the procedure and did all the necessary tests before undertaking the operation. In the course of cross-examination, the 1st complainant admits that she took her husband to one Dr. Rajagopal first and Dr. Rajagopal suggested that she take her husband to the opposite party. THErefore, it is clear that the condition of the 1st complainant''s husband must have been somewhat serious for her to consult more than one Doctor. THErefore, her claim that he was suffering only from ordinary stomach pain is not true. She also admits that she knew her husband has to be operated but she said she did not know what was the operation to be performed. She admits that a test was done under Ex. A3 and then after that he was taken to the operation theatre. She admits that they gave the consent for the operation and the doctor said that the operation has to be done immediately. She also says that she does not know whether her husband was suffering from hernia and if there was strangulation the blood supply to that part would stop resulting in gangrenous condition and the blood would be contaminated leading to the death of the person concerned. In the complaint, though she has not stated anything about payment of fees, for the first time in her evidence she would say that she paid a sum of Rs. 1,000/-. She also states that the death of her husband took place because the doctor did not know to perform the operation. THE opposite party has stated in the course of chief examination that the complainant''s husband had strangulated inguinal hernia and that there was a distension of the abdomen and the patient was unable to pass urine and that blood test was done since it was an emergency operation they had to proceed further and at about 6.30 p.m. his B.P. was 160/100 but in the case of emergency one should not bother about B.P. or test about cholesterol. He has further stated that the patient told him that he was a smoker and was addicted to drinks. He has stated that his hospital was fully equipped. He further stated that the contents of the abdomen were drained out with a tube. He was given glucose and that urine was siphoned out and he was administered oxygen and he was taken to the operation theatre around 9.30 p.m. and Dr. Mohan, M.D., was assisting him and he administered the anesthesia and when he made incision, he found on the monitor that the pulse rate was going down. THErefore, he took all steps to revive the heart and that oxygen was administered through nose into the lungs and heart picked up. But as there was congestion in the lung due to collection of water, there was no pumping of oxygen to the heart with the result that the heart stopped and in spite of their resuscitation attempts, they could not revive and the patient died at about 11.30 p.m. in the night. He has also stated that he holds a M.S. degree in E.N.T. But as an M.B.B.S., he is competent and qualified to undertake such operation and he has done several such operations. He has also spoken to the fact that the staff especially nurses employed in his hospital are competent. He has stated that between 5.30 and 9.30 p.m., the bacterial infection would have increased leading to the death. He also speak to the fact that in view of the condition of the patient, it was thought that general anesthesia and spinal anesthesia cannot be administered and, therefore they chose to give him Xylocaine, a local anesthesia. He has denied the suggestion that excess administration of local anesthesia was the cause of death. It is to be pointed out that such a stand is not taken in the complaint or in the notice. Dr. Mohan who assisted the opposite party has also given evidence supporting the opposite party and speaking to what had happened inside the operation theatre. He has also stated that the condition of the patient was such that immediate surgery had to be performed since he had strangulated inguinal hernia. He has also stated that the hospital and the operation theatre were well equipped and that in the case of the patient, they thought that it will not be advisable to administer him spinal anesthesia or general anesthesia and, therefore, went for local anesthesia. He further speaks to the efforts taken by them to revive the patient when the beating of the heart stopped. He has denied the suggestion that there was excess administration of local anesthesia. One other suggestion made to him was that he was given spinal anesthesia and it affected the central nervous system and caused his death. Such a suggestion was also not made to the opposite party when he was examined.

EXCEPTING for the fact that the patient died on the operation table, there is no other circumstance that could be stated as an instance of negligence or breach of duty on the part of the opposite party. No doubt, the opposite party is not a holder of master degree in surgery though he holds a master degree in E.N.T. But that does not mean that he is not competent to perform the operation. It is the foremost duty of a doctor to treat a patient when the injured citizen is brought for medical treatment. It is the duty to instantaneously give medical aid. It is part of the code of medical epics. Therefore, the argument that the opposite party was not competent to perform the operation cannot be accepted. As we have pointed out already, there is no expert evidence supporting the complainant''s case. In the circumstances, we have no reason to disbelieve the version of the opposite parties 1 and 2 when they state that the patient was brought to them with a strangulated inguinal hernia for which a surgery had to be performed immediately to save the life of the said person. Every surgery has its attendant risk. Just because, it failed, it does not mean that the operation was not performed properly. Both the opposite party and the doctor who has been examined stated that they followed all the necessary procedure that has to be followed in such cases. The complainant has no specific case nor has come with a specific accusation. At one time, it is stated that there was excess administration of anesthesia. It is also stated that the necessary investigations were not made before undertaking the operation. A reading of the cross-examination of the opposite party and his witness would only show that the cross-examination is in the nature of a fishing expedition. Therefore, in such circumstances, we are unable to accept the view of the Lower Forum. The Lower Forum has not focussed upon the necessary facts and circumstances. Only when there is a breach of duty, it alone would give a right of action for negligence and negligence would mean failure to exercise reasonable care and standard of care. In this case, we are unable to hold that there is failure to observe a reasonable care or the necessary standard of care. On the other hand, the doctors have exhibited necessary skills and taken necessary care. Further, as we have pointed out clearly this is not a case where any service has been rendered by the opposite party after receiving fees for the same. Therefore, in the broad spectrum of the facts, we are unable to come to a conclusion to hold that there has been any breach of duty or lack of care resulting in deficiency in service. A high probability is required before ever a professional namely a doctor can be accused of negligence and deficiency in service. It is really unfortunate that the patient died on the operation table but merely that circumstances cannot lend to a theory of negligence on the part of the opposite party. The lower Forum has failed to take into account the necessary circumstance. On the other hand, the lower Forum has observed that the statement of the doctor that local anesthesia given cannot be accepted. There is also nothing to show that the delay in doing the operation was on account of the opposite party. On the other hand, the opposite party would say that the patient was brought to them at about 6.30 p.m. The patient did not originally agree for the operation and later on he consented for the operation and thereafter necessary preparation had to be made and that the patient was wheeled into the operation theatre at about 9 p.m. Therefore, in such circumstances, we hold that the lower Forum has not discussed the case from proper angle and has failed to appreciate the case in its proper perspective and has more or less given its finding on conjectures. In the circumstances, we hold that the order passed by the lower Forum cannot be maintained. Therefore, it has to be set aside. In the result, this appeal is allowed but in the circumstances without cost. The order passed by the lower Forum is hereby set aside. The complaint will stand dismissed without cost. Appeal allowed.