Shrinath Chaturvedi vs G.S. Ambardekar (Dr.) And Ors.

THE Complainant, Shri Shrinath Chaturvedi, is a Mumbai based industrialist and he filed this complaint against Dr. G. S. Ambardekar, Primary Anaesthetist (expired), opposite party No. 1; Dr. J. J. Merchant, Anaesthetist, opposite party No. 2; Dr. K. T. Dholakia, Senior Orthopedic Surgeon (expired), opposite party No. 3 and Dr. H. R. Jhunjhunwala, Orthopedic Surgeon, opposite party No. 4, alleging medical negligence and deficiency in service on the part of the opposite parties while conducting the surgery of laminectomy on his son, Anand Chaturvedi who died twenty -five days thereafter.

COMPLAINAN T ''s son, Anand Chaturvedi, was 21 years of age when he returned to India after obtaining a degree in Business Management from New Hampshire College in United States of America in June 1992. He was also a Director in several of his family companies.

FEW days after his return from United States. Anand complained of a severe backache and was examined by the opposite party Nos. 3 and 4, Dr. K.T. Dholakia and Dr. Jhunjhunwala respectively. He was a student who used to play football and probably, developed a prolapsed disc as a result of a sports injury. It was diagnosed that he was to be treated for slip disc and was admitted on 17.7.1992 in Beach Candy Hospital. He was given bed rest, traction, medication and short wave diathermy. However, as it did not yield the desired result, opposite party Nos. 3 and 4 decided to perform "laminectomy" a surgical operation of spine on Anand. MRI of the spine was done to confirm a prolapsed disc at L4 -L5 level. After pre -operative tests were conducted, he was found fit for operation by Dr. F. E. Udwadia, a renowned Physician. On 4.8.1992, at about 10.30 a.m., Anand was taken to the operation theatre for the said surgery. The operation was to be performed by late Dr. Dholakia along with his team of doctors among whom were the remaining opposite parties. Dr. Chetan Unadkat was assisting Dr. Dholakia and wrote pre -operative instructions, including the pre -medication. Dr. Merchant (opposite party No. 2) being junior to Dr. Ambardekar (opposite party No. 1) examined the patient on 3rd August, 1992 and agreed with the pre -medication advised by Dr. Unadkat. The operation was to be performed with the patient in the prone position on a frame known as scoliosis frame or Relton -Hall frame kept on the operation table.

AFTER anaesthetizing the patient in the supine position, the patient was turned to prone position on the scoliosis frame to prepare him for surgery. Later, after turning him, the patient developed bradycardia and then hypotension both of which did not reverse with drugs. He was then turned to supine position again in an emergency manoeuvre, during which process he suffered a cardiac arrest. His heart and other parameters were revived, after which he was shifted to the ICU. It was noted that the endotracheal tube (ET tube), which was affixed to the mouth became loose and moved out of its position. Thereafter, treatment was continued in the ICU of Beach Candy Hospital but the condition of the patient later deteriorated and he died in the afternoon of 29.8.1992, after about 25 days. The Beach Candy Hospital certified cause of death as: "Cerebral Hypoxia following Cardiac Arrest, leading to brain death and ultimately, multiple organ failure". Post -mortem was not done on the patient. Complainant did not join Beach Candy Hospital as an opposite party to this complaint.

THE Complainant filed a private criminal complaint against the opposite parties in the Court of Additional Chief Metropolitan Magistrate, Girgaon, Mumbai, for offences under Sections 304A, 301, 202 and 203 of the Indian Penal Code.

THE Magistrate ordered an investigation under Section 202 of the Criminal Procedure Code. The Investigating Officer recorded the statements of various persons during the course of the investigation. These included: Shri Chaturvedi, Shrimati Aruna Srinath Chaturvedi, mother of the deceased, Dr. Sandeep Chaturvedi, son -in -law of the complainant, Dr. Mangal Jain, Physician at Beach Candy Hospital, who also attended the patient at the time of emergency in OT, Dr. Faroukh E. Udwadia, Consulting Physician, who was in charge of the ICU at Beach Candy Hospital, Dr. N.H. Wadia, Consulting Neurologist attached to Jaslok Hospital and Director, Neurology Department, Dr. Ganesh Shivram Ambardekar (opposite party No. 1), Anaesthetist, Dr. Jugalkishor Jamnadas Merchant (opposite party No. 2), Anaesthetist attached to Bhatia Hospital, Dr. Pesi B. Bharucha, Director of Beach Candy Hospital, Smt. Sunita Chaturvedi, daughter of the complainant. In all statements of 17 persons were recorded by the police.

DURING the course of the trial, Dr. G. S. Ambardekar passed away and the case against him abated on 1.8.1997. By order dated 21.11.2002, opposite party Nos. 2 to 4 were acquitted of the offence punishable under Sections 304A, 301, 202 and 203 of IPC by the concerned Metropolitan Magistrate. The material gathered under police investigation ordered by the Magistrate under Section 202, Cr.P.C. was available with the complainant before filing the present complaint in this Commission.

WHEN this complaint was filed in the National Commission, the opposite parties filed a miscellaneous petition No. 53 of 2000 praying that the complaint filed for alleged medical negligence be either dismissed on the grounds that complicated questions of law and facts arise which can best be decided by the Civil Court or in the alternative, the proceeding be stayed during the pendency of criminal prosecution against them in a Criminal Court in Mumbai. Pursuant to the rejection of this miscellaneous petition by the Commission, the opposite parties filed an appeal against this order in the Supreme Court by filing a Civil Appeal No. 7975 of 2001 with cause title Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714. The Hon''ble Supreme Court disposed of the appeal vide order dated 12.8.2002 with the directions: (i) In cases where cross -examination of the persons who have filed affidavits is necessary, suggested questions of cross -examination be given to the persons who have tendered their affidavits and reply may also be on affidavits, (ii) In some cases where Commission deems it fit to cross -examine the witnesses in person, vide conference or telephonic conference at the cost of person who so applies could be arranged or cross -examination could be through a Commission. This procedure would be helpful in cross -examination of experts, such as doctors, (iii) The Commission has the jurisdiction to decide the matter. It also held that delay in disposal of the complaint could not be ground for rejecting the complaint and directing the complainant to approach the Civil Court. It observed that the objective of the Consumer Protection Act would be defeated if summary trials are not disposed of expeditiously by the Consumer Fora.

BY order dated 23.10.2002, the Commission found that the affidavit of evidence of Mr. Srinath Chaturvedi, complainant, placed on record was neither sworn nor certified in accordance with iaw as required under the Evidence Act. The affidavit of Dr. Chetan Unadkat filed by the opposite parties also suffered from the same infirmity. Both parties were directed to get their affidavits duly sworn and certified and filed. The parties agreed that cross -examination of the witnesses can take place on Commission in Mumbai. This Commission appointed former President of Maharashtra State Commission, Justice A.A. Halbe, as Local Commissioner to record the cross -examination. Thereafter cross -examination was recorded in Mumbai by the Commissioner.

IN its order dated 6th May, 2005, the Commission noted that the opposite parties, viz. Dr. J. J. Merchant and Dr. H.R. Jhunjhunwala had not filed any affidavit of evidence in respect of their defence. Earlier, there might have been some justification as the criminal trial was pending. But by now they have not only disclosed their defence before the Criminal Court, it was reported that they had been acquitted. The Commission noted that in case they are not inclined to file their affidavits of evidence even now, then this Commission would be entitled to draw adverse inferences against them. Counsel for the opposite party Nos. 2 and 4 stated that affidavits would be filed in 4 weeks. Cross -examination would be by way of interrogatory. The Counsel for the complainant was requested to ensure that whatever medical record is available with them shall be produced along with legible and typed copies thereof. Accordingly Dr. Merchant and Dr. Jhunjhunwala filed affidavits of evidence and interrogatories answered thereto were exchanged on affidavit.

THE Commission directed the complainant on 24.1.2007 to file the record of the hospital pertaining to the treatment of the deceased and the compilation of the record was supplied on 9.3.2007 to the opposite parties.

IN the complaint, the complainant has made out a specific case of negligence (paras 4, 9 and 10 of the complaint). When the patient was turned (after being anaesthetized, i.e. the first turning) on his stomach (prone), "the oxygen tube'' which was inserted in his throat for the supply of oxygen slipped out of its position" cutting off oxygen supply. For want of oxygen, the patient started gasping for breath and started twisting his body. The anesthetists instead of finding out the reason for this, administered more anesthesia to make him immobile and then gave green signal to Dr. Dholakia to start the operation. Dr. Dholakia and Dr. Jhunjhunwala proceeded with the surgery. The anesthetists found the blood pressure of the patient had fallen to 20 and the pulse rate was very low and irregular. The anesthetists gave numerous injections and drugs to increase the blood pressure and stabilize the pulse rates and heart beats. The operation was stopped only when Dr. Dholakia saw blue blood had started coming from the incision wounds of the patient. The patient was then turned on his back at which time the doctors found that the oxygen tube inserted in his mouth had come out. By this time the heart of the complainant had stopped (para 4a). It was decided to call Dr. Mangal Jain from the ICU to revive the heart of the patient. In para 10 it is stated that the state of oxygen lack continued at least ten minutes. The heart was revived after about 10 minutes by Dr. Mangal Jain, who came to the operation theatre from the ICU. Again in para 4C it is stated that it took Dr. Jain about 6 to 7 minutes to reach the O.T. with the necessary equipment, since there were some repair work at the Hospital premises which prevented him reaching sooner. However, there was no benefit to the brain because it was already dead (para 10). 2. According to the complainant (para 10), the probable defence of the OPs is that cardiac arrest (CA) took place first, and thereafter the brain was damaged "ischemic encephalopathy" i.e., brain damage due to cardiac arrest), but this defence is false as it did not occur. The complainant''s specific case is that there was "anoxic encephalopathy" (brain damage due to oxygen lack) and not ischemic encephalopathy (brain damage due to cardiac arrest) (para 10 of the complaint). This anoxic encephalopathy occurred because the opposite parties did not check in time the slipping of the position of the ET tube in the throat which deprived the complainant''s son of the supply of oxygen, and this was caused because of the utter negligence of the opposite parties.

THE complainant has filed one affidavit of evidence, which is his own. This affidavit has certain documents annexed to it among which are alleged statements recorded by the police in the course of the investigation ordered by the Magistrate.

ON behalf of the opposite parties, the affidavit of Dr. Chetan Unadkat, an orthopedic surgeon present in the operation theatre and assisting in the operation, was filed. All these were sent to the Commissioner for recording of cross -examination, during which certain other documents were produced by the parties and were marked as exhibits. Out of documents annexed to complainant''s affidavit, one got marked as an Exhibit (Exhibit 7) during cross -examination. Exhibit No. Description Ex. 1 Affidavit of evidence of Mr. Srinath Chaturvedi.

Ex. 1A Application of O.Ps. dated 5th May, 2003.

Ex. 2 Evidence of Mr. Chaturvedi.

Ex. 3 Deposition of Dr. Tulsidas G. Honnekeri in the Court of the ACMM.

Ex. 4 Deposition of Mr. Srinath Chaturvedi in the Court of the ACMM (File No. IV, pgs 24 -49).

Ex. 5 Death Report.

Ex. 6 Hospital record dated 29.8.1992 stating "condition near hopeless".

Ex. 7 Complaint to Medical Council of India (pgs 14 -19 of File No. VII, containing documents filed by the complainant on 24.10.2002) Ex. 7A Reply to application filed by O.Ps. seeking appropriate orders/directions.

Ex. 8 Affidavit of evidence of Dr. Chetan Unadkat.

Ex. 8A Evidence (cross) of Dr. Chetan Unadkat

Ex. 9 Statement of Dr. Chetan Unadkat to the police.

Ex. 10 Evidence of Dr. Chetan Unadkat in the Court of the ACMM.

Ex.11 Operation Sheet of the Beach Candy Hospital.

LATER , in pursuance of an order of this Commission, opposite parties Dr. J. J. Merchant and Dr. H.R. Jhunjhunwala also filed their affidavits and were subject to cross -examination by interrogatories. In pursuance of an order of this Commission dated 6.9.2007, the complainant filed typed copies of the hospital records of the day of the surgery, i.e., 4th August, 1992. Objections raised by the opposite parties.

SOME of the documents annexed to the affidavit of the complainant were objected to the opposite parties by filing Miscellaneous Application in 2002 and were again placed in writing before the Local Commisioner, Justice Halbe, in 2003 prior to beginning of the cross -examination of the complainant. The opposite parties reiterated the objections in 2007 by way of a Miscellaneous Application in 2007 when the complainant filed alleged police statements along with hospital records: Given below is a short summary of the relevant objections raised by the OPs - Exhibit P -1 -Copy of certificate/opinion of Dr. Bates (page 75 -76 of the Commissioner''s report). The reason being that the document is not proven and in any case Dr. Bates is not before the Hon''ble Commission. Exhibit P -3 -Copy of the letter dated 4.11.1992 of the Beach Candy Hospital refusing to supply a copy of detailed study made by it. (Pages 78 of the Commissioner''s Report). Reason: Not proven and in any case now not relevant since admittedly a copy was supplied later. Exhibit P -4 -Copy of report appearing in The Times of India (pages 79 and 80 of the Commissioner''s Report, internal pages numbered 5 and 6). Reason -Not proven; hearsay, the report''s author is not before the Hon''ble Commission. Exhibit P -5 -Copy of opinion poll appearing in Independent of 10.10.1992. (pages 81 -86 of the Commissioner''s report, internal pages 7 to 12). The reason being: Not proven; hearsay, and the author of the report is not before the Commission. In any case an opinion poll has no relevance whatsoever. Exhibit P -6 -Copy of opinion poll appearing in The Illustrated Weekly (page 87 of the Commissioner''s report, internal page 13). The reason being: Not proven; hearsay, and the author of the report is not before the Commission. In any case an opinion poll has no relevance whatsoever. Exhibit P -9 -Copy of the police report dated 17.6.1993 (pages 190 -198 of the Commissioner''s report, internal pages 116 -124). The reason being: Not proven and not relevant. Exhibit P -8 Colly -Copies of statements of the doctors and various members of Petitioner''s family recorded by the Police - Name Role/Relationship with the patient Whether deposed at Criminal Reliance by Complainant''s Counsel Trial Mrs. Aruna Mother No None Chaturvedi Mr. Sanjay Cousin No None Chaturvedi Dr. Mangal Critical Care Yes Selective Jain Specialist Reading Dr. Udwadia General No None Physician Dr. Noshir Neurologist Yes Selective Wadia Reading Dr. G.S. OP 1 No Selective Ambardekar Reading Dr. J.J. OP 2 No Selective Merchant Reading Dr. Sandeep Brother Yes None Chaturvedi In -law and Physician (M.D.) Dr. Pesi Director of Yes Selective Bharucha Hospital Reading Mrs. Sunita Sister No None Chaturvedi.

THE reasons in support of these objections have been dealt with later.

COPY of the balance sheet of Petitioner''s son for the year eriding 31st March, 1993 (Exhibit P -12, page 214), copy of the details of market value of petitioner''s investment (Exhibit P -13, page 142) were objected to because they were not proven and hence are not relevant to be taken on record. Submissions on behalf of the Complainant:

IT is submitted by the learned Counsel for the complainant that when complainant along with his son -in -law Dr. Sandeep Chaturvedi, who is also a Medical Practitioner, were anxiously waiting outside the operation theatre on 4th August, 1992, opposite party No. 3, Dr. Dholakia, came out of the operation theatre and told the complainant that there was some respiratory problem with his son, and therefore, he would be moved to Intensive Care Unit of Beach Candy Hospital for observation for a couple of days and thereafter the surgery would be performed. Then complainant''s son was brought out of the operation theatre after some time in an unconscious condition with no sign of life in him and his body was giving repeated jerks.

DISSATISFI ED by the explanations of the opposite parties the complainant along with his son -in -law questioned other doctors as to what had happened in the operation theatre and then they learnt that Anand had suffered extensive brain damage due to deprivation of oxygen. Complainant requested Dr. Noshir Wadia, a Brain Specialist attached to Jaslok Hospital, to examine his son. Dr. Wadia visited Anand in ICU and after examining his condition, he found that the condition of the patient was extremely critical and said that there is only a rare chance of his survival. Complainant requested Dr. Wadia whether an expert Brain Specialist from England should be consulted and called for to Mumbai to examine his son. Dr. Wadia agreed to this suggestion and gave a certificate for Dr. David Bates, who is one of the renowned Brain Specialists in England to come to Mumbai. Dr. Bates came to India on 14.8.1992 and studied the reports and examined the condition of Anand. Dr. Bates also felt that there were remote chances of Anand''s survival and went back on the same night i.e. on the night of 14.8.1992. Dr. Bates opined in his report that the complainant''s son suffered extensive brain damage due to want of oxygen.

IT is submitted by Mr. Arvind Nayar, the learned Counsel for the complainant that after going through the various reports, medical record and information as elicited from various sources he came to the conclusion that his son died due to medical negligence on the part of the opposite party Nos. 1 and 4. The submissions made by the learned Counsel are as under: (a) The Endo Tracheal Tube (in short, ET Tube) carrying oxygen, which was inserted in his throat slipped out of its position before the surgery had started and as a result of which the brain was damaged due to lack of supply of oxygen and this further led to cardiac arrest. The brain damage that eventually caused death was due to clear negligence on the part of the opposite parties. The death was actually due to brain damage and consequently cardiac arrest occurred and the patient died ultimately due to multi -organ failure, which is generally the status of the patient at the last stage. The doctors were not alert to watch when the ET Tube slipped away and by the time it was noticed, it was too late. The patient was already under anesthesia at that time and he was not in a condition for natural response. Had the slipping of the ET Tube been noticed instantaneously there would not be hypoxia. The airway obstruction was caused only because of slipping of the ET Tube or kinking of the ET Tube.

Reliance has been placed by the complainant on the alleged statement made by Dr. Ambardekar (opposite party No. 1) to the police in which it is stated that immediately after the 2nd turning, the position of the ET tube was checked with the help of the laryngoscope when it was found that the ET tube had slipped from his trachea (i.e., slipped out of larynx into his mouth). On noticing this, immediately, without wasting further time the ET Tube was placed in its position into larynx and resuscitating measures were carried out followed by atropine injection. Dr. Ambardekar also confirmed that before the 2nd turning the patient was examined and confirmed that the ET Tube was in position. Vital parameters i.e., blood pressure, pulse and cardiac ECG of the patient were monitored and he was lifted from trolley and placed on the scoliosis frame after supporting with pillows and adjusting position of his head which was slightly turned to the side. After this the patient was examined and confirmed that the ET Tube was in its position and entry of the gases into his lungs was normal. In this statement, it is further stated that while turning the patient hurriedly in supine position (2nd turning) the ET tube slipped from larynx during manoeuving of turning the patient in hurry and this slipping of ET Tube disrupted the oxygen supply to the brain and other organs. The learned Counsel for the complainant submitted that in the inquiry initiated by the hospital under instructions of Dr. Bharucha, Dr. Dholakia (opposite party No. 3) made a statement on 16.3.1993, extract of which is reproduced hereunder - "when the patient was turned he suddenly became blue and developed cardiac arrest and the tube was checked. The tube at this time was displaced but it was undoubtedly because of rushing to turn the patient as earlier it was firm and securely checked that it was in. The tube was put in position and I.V. lines checked and running ECG was closely checked and cardiac massage was immediately started and within three minutes or so with external cardiac massage and intra cardiac injection of adrenaline his heart started pumping. His blood pressure came up, pulse was good and in couple of minutes even his papillary reaction was obtained. This is a very sensitive test for brain function."

It is contended that the oxygen supply was cut off at the time of first turn on his stomach (prone position); the opposite parties instead of taking cognizance of this proceeded; that this state of lack of oxygen continued for at least 10 minutes; that the brain damage occurred first; that opposite parties got alerted when the heart had stopped and only then they realized that the ET Tube had come out; and that the heart was revived after about 10 minutes by Dr. Mangal Jain, who was called in to the operation theatre. (b) Learned Counsel for the complainant submitted that opposite parties have relied upon the cause of death as certified by the Beach Candy Hospital that the patient had cardiac arrest which led to cerebral hypoxia leading to brain damage whereas actually the patient initially had hypoxia which led to cardiac arrest. Reliance has been placed on the medical literature regarding the definition of cerebral hypoxia, which is reproduced hereunder -

"The definition of Cerebral Hypoxia as per the general medical literature is as follows: (a) Cerebral Hypoxia refers to a condition in which there is a decrease of oxygen supply to the brain even though there is adequate blood flow. Drowning, strangling, chocking, suffocation, cardiac arrest, head trauma, carbon monoxide poisoning and complications of general anaesthesia can create conditions that can lead to Cerebral Hypoxia. (b) -(e) ***** (f) Cerebral Hypoxia means lack of oxygen supply to the brain, usually as a result of either diminished blood flow or diminished oxygenation of the blood. If nothing is done to treat this condition, irreversible anoxic damage to the brain begins after 4 to 6 minutes and sooner in some cases. If basic resuscitation measures are begun before the end of this period, the onset of cerebral death may be postponed."

It is submitted that cerebral hypoxia was a cause that led to the death of the patient and it is vehemently argued that it is not relevant as to what caused cerebral hypoxia or what is the consequences of this cerebral hypoxia were, but what is relevant is whether it occurred as a result of cardiac arrest or it caused the cardiac arrest. It is submitted that, undoubtedly, cerebral hypoxia occurred in the patient due to slipping or kinking of the ET Tube carrying oxygen to the patient, which disrupted oxygen supply to the patient. Because of continued hypoxia the patient developed cardiac arrest. The patient died due to prolonged anoxia, which could not be reversed as he was in the condition of continuous unconsciousness throughout. Deprivation of oxygen from more than certified critical limit is a primary cause resulting in cardiac arrest. The situation of deprivation of oxygen to the brain, which is not checked in time, was preventable. Learned Counsel for the complainant also referred to Dr. Mangal Ratan Jain''s statement before the Inspector of Police in which he stated that - "Dr. N. H. Wadia in his report mentioned his condition as cerebral hypoxia, i.e. brain damage due to low oxygen or lack of oxygen supply to brain."

It was submitted that Dr. Wadia, a well known Neuro -Physician, and Dr. David Bates, a reputed Neuro -Physician of United Kingdom, after examining the patient opined that the patient suffered extensive anoxic injury to the brain and that their opinion support the version of the complainant. (c) Complainant placed reliance on the alleged statement to the police given by Dr. Tulsidas Honnekeri, a well known anaesthetist attached as a Consultant to Beach Candy Hospital, who did the inquiry as directed by Dr. Bharucha, Director of Beach Candy Hospital. Excerpts from the statement dated 11.4.1993 of Dr. Honnekeri are reproduced hereunder - "Anaesthetists reported that while turning the patient ET tube slipped out and was immediately reintroduced. At this time they noticed that patient Anand had cardiac arrest."

"As maintained by the anaesthetists, though hypotension and bradycardia were corrected, hypoxia must have remained for some time causing subsequent brain damage."

"Secondly, as regards to the hospital facilities my enquiries revealed that, all the facilities provided by the hospital were adequate. Oxygen supply to both the operation theatres on 2nd floor was uninterrupted and adequate. However, the anaesthetist''s record was found inadequate."

"I can say that the cause of brain damage was hypoxic anoxia which can occur following cardiac arrest or because of airway obstruction (means the obstruction caused because of slipping of ET Tube or kinking of ET Tube). However, I can say that because of continued hypoxia patient can develop cardiac arrest."

Learned Counsel relied on the above opinion of Dr. Honnekeri and submitted that all the recorded statements of doctors clearly show that the patient suffered from hypoxia initially and cardiac arrest later. (d) Complainant''s Counsel submitted that Dr. Merchant (opposite party No. 2) in his statement recorded by the police opined below - "Death of Anand had occurred due to cardiac arrest because of delayed reaction of injection Scoline. However, I now say that before injecting Scoline, a precautionary test for its adverse reaction was not carried out because it occurs very rarely and it is not possible. I know that the sensitivity test is carried out for certain drugs to it is not possible in case of Scoline."

It is submitted that if there was a possibility of such reaction and known risk of Scoline this information was never brought to the notice of the complainant before administering the same. If it is to be believed that death was due to reaction to Scoline, even then it only means that the Doctor has not properly administered it and it is to be considered as medical negligence. It is argued that not only a precautionary test for checking for any adverse reaction was not carried out before injecting Scoline and that in all probability this argument has been brought in as a last resort to cover up story for their inexpert and insufficient administration of Scoline. Regarding this issue, complainant has relied on the very statement made by Dr. J. J. Merchant dated 27.2.1993 that the patient suffered cardiac arrest due to delayed reaction of Injection Scoline and Dr. Honnekeri''s opinion, which is contrary to that of Dr. Merchant and extracted as under - "I can say that, delayed reaction of Scoline can cause hypoxia due to shallow breathing. However, Anand was kept on a respirator and he was fully oxygenated, as stated by Dr. Merchant himself. Scoline can cause hypoxia and not cardiac arrest directly."

It is submitted on behalf of the complainant that since these statements of doctors are contradictory and should be discarded as being without substance and that as a last resort this issue of Scoline has been raised by opposite parties as their defence. (e) Dr. Mangal Jain, the cardiologist, was not present in or near the operation theatre and he was called at 11.40 a.m. after the cardiac arrest developed in the patient. Construction work was in progress in the hospital and hence Dr. Mangal Jain took long time to reach the operation theatre and in putting gown and getting ready some more time elapsed and the patient who was already in a critical stage of having cardiac arrest could not get timely treatment.

Dr. Jain, in his statement to the police admitted that when Dr. Chetan Unadkat called him on phone to attend on Anand, he immediately rushed to the operation theatre and then stated that since the construction work was in progress in between the passage of ICU and operation theatre being on second floor of the same wing he took the staircase and went to third floor crossed the corridor of third floor and took a lift again to come down to the operation theatre on second floor. It is submitted by the learned Counsel that it would have taken longer time than two to three minutes as stated by Dr. Jain which in turn would have added to further delay in treating the patient who was in an emergency condition. (f) This is a fit case to be decided on the principles of res ipsa loquitur (the thing speaks for itself) because it is an admitted fact that Anand was perfectly healthy before entering the operation theatre and came out brain dead due to negligence of opposite parties. Slip disc operation is not such a serious surgery and in this case the patient was not even operated upon. Even before the operation was started he suffered from anoxia. A young boy who is medically fit to be operated upon died and hence lost at least 40 years of active working life causing mental agony, anguish to the family and does not require any further reasoning and that the complaint should be allowed on this principle itself.

(g) It is submitted that there was lack of duty of care by the opposite parties who are all experts in their fields and well -known doctors in the country and their acts of omissions are crystal clear in this case. The medical literature on hypoxia was referred to and it is reproduced as given below - "In the field of Law of Negligence duty of reasonable care and foreseeability are twin babes of the system of law. If one is taken away, another will cease to exist. In fact duty of reasonable care proceeds first and anticipatory foreseeability follows it. These two criteria relate to the fixing of liability in negligent cases. Once the liability for negligence is determined by the application of duty of reasonable care and foreseeability, the last question of fixing damages in the nature of pecuniary and non -pecuniary compensation will arise. Therefore, in all negligence cases the primary question arises as to whether a stature of social norm has imposed any duty upon the alleged tortfeasor to behave with the person wronged in a particular manner."

Learned Counsel also referred to judgment of the Apex Court reported as III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CPJ 9 (SC)=(2005) 6 SCC 1, Jacob Mathew v. State of Punjab and Anr., which is extracted as under - "Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession, which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill, which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result."

"A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person to be operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every practices."

It is submitted by the learned Counsel that the doctors being experts ought to have anticipated the risks in -volved while administering anaesthesia while preparing the patient for surgery. They did not show sufficient duty of care by not monitoring and noticing immediately the slipping of the ET Tube till blood of the patient turned blue. (h) It is submitted that Anand was only 21 years old and well educated from United States of America and was a Director of several family companies. Balance sheet(s) and the investment at the relevant time have been filed in the present matter. The complainants claimed quantum of damages to be Rs. 10 crores as just and proper evaluation of the loss and injury suffered by the complainant as the father of the son who died could be determined depending on facts and circumstances of the case. Anand would have had active life of at least 40 years and hence this complaint should be allowed accordingly.

Version of opposite parties and their submissions - (a) Learned Counsel for the opposite parties, Mr. Darpan Wadhwa, submitted that all the four doctors are renowned in their respective fields with unimpeachable integrity The complainant never challenged or even suggested that opposite parties did not have the requisite qualifications, experience or competence as he choose late Dr. Dholakia, opposite party No. 3, to do surgery with the knowledge that he was the world renowned Orthopedic Surgeon.

(b) Mr. Wadhwa submitted that the events that occurred in the OT have been set out in detail in the three affidavits of evidence of Dr. Jhunjhunwala (para 4), Dr. J.J. Merchant (para 4) and Dr. Chetan Unadkat (Exh. 8, page 230 of the Commission''s report). Only some parts of Dr. Unadkat''s affidavit were sought to be challenged by the complainant in the cross -examination. In so far as the cross -examination of the opposite parties by way of interrogatories is concerned, other than a bare putting of the complainant''s case at the end, no serious attempt has even been made to contradict or dislodge the O.Ps. on the point of what happened in the OT or the medical opinion/view, (see Replies to Interrogatories on Affidavit, Dr. Jhunjhunwala and Dr. Merchant). Thus, their examination -in -chief on this vital issue remains uncontroverted and has to be accepted as the truth.

(c) The deposition of Dr. Tulsidas Honnekeri (marked by the Commissioner as Exh. 3 by consent of parties and is on page 35 of the Report of the Commissioner), in the criminal trial is also very relevant. He deposed as a witness for the complainant and was not declared hostile (see page 19 of the Commissioner''s Report, para 3 on internal page 2). Dr. Honnekeri was an anesthetist on the panel of the Breach Candy Hospital and examined this case on behalf of the Hospital. It was submitted that reliance by Counsel for the complainant on the alleged statement to the police made by Dr. Honnekeri was imper -missible as this alleged statement was not even annexed to the affidavit of the complainant which formed the basis of the complainant''s cross -examination.

(d) It is submitted that the undisputed and uncontro -verted portions of the affidavit of Dr. Chetan Unadkat alone is sufficient to disprove all allegations. From the uncontroverted portions of Dr. Chetan Undakat''s affidavit of evidence alone (paras 5 to 8 of his affidavit), it is clearly established that -

(A)(i) Cardiac arrest (as shown on the ECG monitor) developed while turning the patient from the prone position to the supine, i.e. the second turning (para 6 of his affidavit), (ii) A 20 minute period elapsed between settling the patient on the scoliosis frame (first turning) and the occurrence of cardiac arrest. (undisputed portion of para 8 of his affidavit page 234 of the Commissioner''s Report). Dr. Unadkat had stated the same thing in his deposition in the criminal trial (on page 3 of Exhibit 10, being his examination -in -chief page 248 of the Commissioner''s Report) "Cardiac arrest took place more than 15 minutes after scrubbing". This clearly proves the allegations of undetected extubation during the first turning are patently false. Dr. Unadkat deposed for the complainant in the criminal trial and was not detected hostile.

(B) On the occurrence of cardiac arrest, Dr. Unadkat left the theatre to contact the ICU to get Dr. Mangal Jain, the resident critical care specialist. He returned within two to three minutes. By this time, the heart beats of the patient were already restored (para 6 of his affidavit on page 233 of the Commissioner''s report). In fact, he has stated the same thing in his earlier deposition as a witness for the complainant in the criminal trial (page 3 of Exhibit 10 on page 147 of the Commissioner''s report). This clearly disproves the allegations of the complainant that there was a gross delay in reviving the patient after he went into cardiac arrest.

(e) It is submitted that other than the four opposite parties, Dr. Unadkat and Dr. Pachore (both orthopedic surgeons) and members of the support staff were present. It is submitted that after giving anesthesia to the patient in the supine position, he was turned to prone position on the scoliosis frame to prepare him for surgery. After he was settled on the frame, the site of incision was marked, and the patient''s back was scrubbed painted and draped. This took about 10 to 11 minutes which were uneventful as all the vital parameters were being monitored by Dr. Ambardekar. After this process the superficial incision (which bleeds) was made by Dr. Jhunjhunwala followed by injection of saline -adrenaline into the incision to control the bleeding. The colour of the blood was normal at that time. Within about 5 minutes of the incision, Dr. Ambardekar noticed bradycardia. Since at this time the patient was on a mixture of oxygen, nitrous oxide, halothane and ether, halothane was discontinued as halothane can cause a fall in pulse rate. Injection atgropine was given and the patient was put on pure oxygen. The blood seen oozing from the wound was bright red indicating adequate oxygenation. The pulse started going back to normal (affidavit of Dr. H. R. Jhunjhunwala and affidavit of Dr. J. J. Merchant). The anesthesia circuit was intact as was apparent from the dial of the respirator, the inflation and deflation of the rebreather bag, fogging of the ET Tube and chest movement.

In the meantime Dr. Dholakia made the skin incision, i.e. he deepened the superficial incision and Dr. Jhunjhunwala started the process of cauterization. At this time, the pulse again started falling this time accompanied with fall in BP. The ventilator was discontinued and thereafter the patient was ventilated manually with 100% oxygen using the rebreather bag. Inj. Mephentine was given but as there was no response, a dopamine drip was started and a trolley called for. In view of the emergent situation the incision was immediately covered with a sterile drape and the patient was lifted by the surgeons and the support staff and quickly turned onto the trolley into a supine position. While turning the patient from the prone position to the supine position (2nd turning) he developed cardiac arrest. Dr. Jhunjhunwala started cardiac massage. While turning the patient the sticking plaster which affixed the ET tube to the angle of the mouth had become slightly loose. Hence, Dr. Merchant refixed the tube which had moved slightly, with the help of a laryngoscope. Dr. Unadkat was sent out to get the critical care specialist Dr. Mangal Jain. Injections decadron, sodabicarbonate and a mannitrol drip were given and oxygenation continued. Within 2 to 3 minutes of his leaving Dr. Unadkat returned with Dr. Mangal Jain by which time the heart beats of the patient had already been restored. Dr. Jain then took over the process of further resuscitation of the patient. He gave him an intra -cardiac adrenaline injection. All necessary assistance was provided by the team of doctors as requested by Dr. Jain. Then wound was sutured and patient shifted to ICU where he was under the care amongst others of Dr. Farokh Udwadia and Dr. Noshir Wadia. It is submitted that while keeping track of the patient''s condition, the opposite parties were given to understand that he was responding to treatment and his condition was improving. He was however unable to recover and he passed away in the ICU after 25 days. It is submitted that none of the opposite parties were informed of his death till after his body was removed from the hospital by is relatives. (f) It is submitted that if there is disconnection of the anesthesia circuit then cardiac arrest would occur well before 15 minutes of the disconnection i.e. had there been extubation during the first turning, then cardiac arrest could not have occurred at the second turning which is after about 20 minutes. It is also contended that had there been extubation at any stage, tachycardia, i.e., a rise in the pulse rate and rise in BP, would have been noticed at some stage prior to bradycardia, which did not occur. This has been supported by Dr. Honnekeri, affidavit of Dr. Jhunjhunwala, affidavit of Dr. J. J. Merchant and the evidence of Dr. Chetan Unadkat has been placed in the Commissioner''s report.

(g) Cause of bradycardia. hypotension and cardiac arrest -It is submitted that the evidence shows that there are several causes for bradycardia, hypotension and cardiac arrest under anesthesia. Amongst these causes are adverse reaction to anesthetic agents, drug interaction, embolism, multifactorial causes and unexplained causes. In the present case, it is submitted that it cannot be said with certainty as to what was the exact cause of bradycardia and/or hypotension and/or cardiac arrest. The evidence shows that bradycardia, hypotension and cardiac arrest under anaesthesia can occur without negligence on the part of the doctors.

(h) Extubation - The evidence of surviving opposite parties, the deposition of Dr. Unadkat and the previous deposition of Dr. Honnekeri on behalf of the complainant (marked Exhibit 3 by the Local Commissioner by consent of parties) support the view that the allegation of the complainant of undetected extubation on the first turning of the patient is not sustainable and that what occurred was an "ischemic" event and not an "Anoxic" event. Extubation would have necessarily resulted in the ET tube coming at least a further 2 inches or so out of the patient''s mouth, which is not the case here. After the first turning patient''s condition was normal for about 15 minutes and it was at the time of the second turning (which was a rapid manoeuvre due to emergency and was done by several persons) that the sticking tape which affixed the ET tube at the angle of the mouth became a little loose but was immediately corrected. It is submitted that nothing could have happened by such slipping because the tube was inserted into the trachea.

(i) The only independent expert medical opinion which was made available to the Commission was of Dr. Honnekeri who has opined that there was no negligence on the part of doctors (page 42 of the Commissioner''s report, Exhibit 3). Dr. Unadkat''s affidavit (page 236 of Commissioner''s report, Exhibit 8), also stated that death of the patient was not due to any rash or negligent act of any doctor.

(j) Res ipsa loquitur - It is submitted that the doctrine of res ipsa loquitur cannot be invoked in this case. The doctrine cannot certainly apply in the case of a complicated surgical operation, since an ordinary reasonable man, knowing the facts, could not, without the help of expert evidence of the precautions necessary in such an operation, say that the event which had happened must have been due to a failure on the part of the doctors to exercise due care. In a case like the present where there are complicated medical issues involved, where there is expert evidence to show that the res complained of can happen without negligence, where the opposite parties have brought extensive and unrebutted evidence, it is not correct to say that there is a presumption of law and/or fact which must mandatorily shift the onus on the defendant. Further, medical science still has many unknowns and uncertainties. Nothing on record shows that cardiac arrest or even brain death cannot occur without negligence in a case of laminectomy (performed in the prone position on a scoliosis frame) as per the Standards of 1992 medical technology. There is no evidence of brain death as the first occurrence in this case and it is cardiac arrest, which occurred first and there can be a variety of reasons, which arise due to reaction to anesthesia, which is a well known risk. Resuscitation measures were timely and proper and all the doctors have stated in their affidavits the entire procedure, which has been adopted, was according to the accepted medical norms. The complainant has not led expert evidence that the events in the present case could not occur in the absence of negligence. It was submitted that absence of such evidence is fatal to the plea of res ipsa if any. Even if the doctrine can be invoked, it is submitted that all that the opposite parties are required to do is to provide some reasonable explanation of all the incidents which could have occurred without negligence by them Manish Sood v. Dr. J.S. Arora, (1986 -2002) Consumer 5 para 10. It is submitted that this they have done. It was further submitted that if the defendant gives no rebutting evidence but a reasonable explanation equally consistent with the presence as well as the absence of negligence, the presumptions or inferences of res ipsa loquitur can no longer be sustained.

(k) Objections to Admissibility of various statements recorded by the police and annexed to complainant''s affidavit, (i) None of the alleged statements are proven. The complainant admits he was not present when the alleged statements were recorded. The police officer who allegedly recorded the statements is not before the Commission, (ii) Previous statements are not substantive evidence. The makers of these statements have not taken oath and nor have they been subjected to cross -examination, (iii) further, the statements of the opposite parties allegedly recorded by police officer were obtained in the teeth of a statutory bar as in an investigation under Section 202 of the Criminal Procedure Code the police officer is debarred from summoning the accused, (iv) the purported statement of Dr. Dholakia and Dr. Jhunjhunwala which Counsel for the complainant referred to, are not even annexed to the affidavit of the complainant and cannot be looked at per se, (v) it was suggested at the time of arguments that the alleged statements of the two late opposite parties Dr. Ambardekar and Dr. Dholakia were admissible under Section 32 of the Evidence Act. This argument ignores the fact that the statements were never proved and that they were illegally taken. Further, the late opposite parties never believed that the statements were against their interest. They, therefore, cannot be let in as evidence under Section 32(3) of the Evidence Act (See Ramrati Kuer v. Dwarika Prasad Singh and Ors., AIR 1967 SC 113), (vi) As regards the other two opposite parties the alleged previous statement of Dr. Merchant (even if assumed to be proven) should have been put to Dr. Merchant in his cross -examination by interrogatory. Similarly, the alleged previous statement of Dr. Jhunjhunwala (even if assumed to be proven) should have been put to Dr. Jhunjhunwala in his interrogatory/cross -exami -nation. Having not done so, the complainant cannot now rely on these purported unproven statements in arguments. What is evidence are the affidavits and the cross -examination by interrogatories of Dr. Jhunhunwala and Dr. Merchant and nothing else. Reliance was placed on S. Gopal Reddy v. State of M.P., III (1996) CCR 39 (SC)=(1996) 4 SCC 596 (paragraph 29), Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors., AIR 1972 SC 330=(1971) 2 SCC 617 (Paras 12 &14), Central Bank Ltd. v. Prakash Chand, AIR 1969 SC 983, (1969) 1SCR 735 in para 8; Ramji Dayawala and Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80, AIR (1981) SC 2085 para 16; Deshbandhu Gupta and Ors. v. Indian Airlines Ltd. and Anr., II (2001) CPJ 61 (NC) paras 12, 15, 20 and 21.

(l) The submissions by Counsel for the complainant that there was improper use of scoline was not warranted. Dr. Honnekeri''s evidence states that in 1992 there was no alternative to scoline (internal page 155 which is page 43 of the report of the Local Commissioner). Dr. Honnekeri also opined that cardiac arrest under anesthesia can occur due to a reaction to scoline (internal pages 150 and 151 of his cross -examination). Further, the complainant itself proceeds on the basis that "ischemic encephalopathy" (brain damage due to cardiac arrest) can happen without negligence but that in this case there was no ischemic encephalopathy but that this is a case of anoxic encephalopathy (brain damage due to lack of oxygen in the blood). This is also conceded in the synopsis.

(m) Counsel for opposite parties submitted that the alleged statement of Dr. Dholakia which Counsel for the complainant read out was not annexed to the affidavit of evidence of the complainant and not on record. Hence it could not be referred to at all and in any case did not support the complaint.

Our Observation and Findings

AFTER hearing the lengthy arguments by both the parties and considering the voluminous record, we find that complainants could not establish and prove any deficiency in service or medical negligence on the part of the opposite parties.

THIS complaint has been filed against the opposite parties who were involved in the surgery at the relevant time in the operation theatre. The reasons that has been put forward by the complainant that the opposite parties are only consultants and not attached to the hospital and further implying that there is no deficiency in service or negligence by the hospital. This argument justifying their action is not tenable in view of the fact that hospital did not maintain the operation notes and anesthetic notes properly. Complainant chose not to produce the entire record before us. Further, the complainant has alleged that construction work going on in the building did not facilitate movement of the doctors, especially Dr. Mangal Jain, to rush to the operation theatre from ICU. The complainant alleges that due to the construction work going on in the hospital, Dr. Mangal Jain could not reach operation theatre in time. The complainant has also alleged that no provision was made in the operation theatre of Beach Candy Hospital in case the cardiac arrest takes place. But by his own choice he did not claim anything against hospital for deficiency in service. Although complainant was questioned as to why hospital has been not made a party to the complaint, it is by choice complainant did not implead the hospital. The patient was in the ICU for 25 days and as the hospital is not a party the events that occurred there are not on the record of the case. The complainant who was naturally disturbed with this unfortunate event of untimely death of Anand, did not consider the idea of getting post -mortem done. Having a doctor relative, Dr. Sandeep Chaturvedi, who was constantly attending on the patient and as admitted in the complaint itself that based on inquires made in the hospital complainant felt that something untoward happened in the operation theatre. This was while the patient was alive. It is only a natural instinct to ensure that the doubts they were nurturing or mulling upon get answered or resolved by opting for a post -mortem report which they did not do. (c) Incomplete Medical Record

THE complainants did not produce complete medical record. Though the complainant admitted in cross -examination that - "The Hospital Record running in 200 pages was given to me. But I cannot say why it is not produced by me. I do not remember if I have produced or not the entire record of hospital. I do not remember as to why the entire hospital record has not been produced."

WE find that the complainant has not produced the entire record voluntarily. Many dates had been given to them to file the same and finally part of it has been provided and some of it is illegible and still incomplete. There is no reason as to why the complainant withheld the record, which is supposed to be totally of 200 pages and that is nothing but withholding best evidence in their possession, which goes against the complainant. (d) Inadequate Format of Anesthetist Record

THE hospital did not have appropriate printed forms for anesthesia, which could furnish all the details. It is only after this incident that a new format was suggested and the forms were printed and distributed in the first week of September, 1992 after the death of Anand. Dr. Honnekeri''s evidence shows that, at that point, it was not a routine practice to fill anesthetist form. He further stated that Dr. Merchant maintained his own chart for his patients and he made graph in his chart whereas hospital record was just written summary of the case. Dr. Honnekeri further deposed that Dr. Merchant could not be faulted if the hospital format itself was inadequate. Dr. Honnekeri further stated that Dr. Merchant''s not recording loosening of the tube in the anesthetic record is not considered as a significant occurrence. (e) Slipping of the ET (Endo -Tracheal) tube - (i) Dr. Jhunjhunwala (para 4 on internal page 4 of his affidavit of evidence), Dr. Merchant (para 4 on internal page 5 of his affidavit of evidence), Dr. Chetan Unadkat (para 9 of his affidavit on page 234 of the Commissioner''s report) and the evidence of Dr. Honnekeri (fourth page of Exhibit 3, page 37 of the Report of the Commissioner, internal page 144, and as also internal page 150) have deposed that there was no extubation at any stage. It is at the time when bradycardia and hypotension was noticed and that necessitated second turning, which was a rapid manoeuvre and was done by several persons that the sticking tape, which was affixed to the ET Tube at the angle of the mouth became a little loose. This was immediately corrected. The undisputed material shows that nothing happened to the ET Tube. It was only slipping of it due to the tape, which was fixed externally around the mouth, becoming loose. This does not mean that there was no oxygen supply to the patient. A mere statement that the tube is also out of its position does not have any relevance. We have seen the demonstration of the ET Tube, which could not be kinked or yanked out easily because it is fixed inside the trachea and the cuff is inflated inside the body and the head turned to one side and supported. The tube is taped next to the mouth and a small shift away from that place slightly to the side has no effect to prove that the patient has suffered cerebral anoxia because ET Tube has slipped out of the trachea. We are convinced that the cuffed ET Tube inside the trachea cannot be moved out easily

(ii) Most important, whatever happened to the tube happened at the 2nd turning. We place reliance on the unrebutted evidence of Dr. Jhunjhunwala (para 4, pages 2 and 3) which is given below. "After the patient was placed on the scoliosis frame (1st turning) his position was adjusted properly and necessary adjustments were made to the frame by the surgeons........Dr. Merchant turned the head to one side and supported it with pillows and a ring, and the anaesthetic tubings fixed to the pillow with a towel clip, so that they did not hang freely. Air entry was again checked". The evidence shows that not only nothing happened during the first turning, but in fact the allegation of undetected extubation at the 1st turning is not tenable. There was adequate monitoring of the patient after he was put prone on the frame to rule out any circuit disconnection. Further, even assuming for the sake of argument that there was complete extubation at the second turning, the evidence shows that this could not have caused any damage as it was immediately rectified.

In our considered view, the ET tube did not come out of the trachea as per the evidence produced and the demonstration of the ET Tube and the contention that hypoxia, i.e. lack of oxygen to the patient has resulted in brain death and then cardiac arrest took place cannot be a justified argument. Hence we find there is no deficiency or negligence regarding the allegation of the ET tube coming out of the position. (f) Bradycardia v. Trachycardia -

HAD there been extubation at any stage, tachycardia, i.e. a rise in pulse rate, and rise in BP, would have been noticed at some stage prior to bradycardia. which did not occur (Exh 3, Dr. Honnekeri page marked 152 which is the back side of running page 41 of the Commissioner''s report; as also affidavit of Dr. Jhunjhunwala para 7 on internal page 5; the affidavit of Dr. Merchant para 7 on page 6; and the evidence of Dr. Chetan Unadkat running page 249 and its back side of the Commissioner''s report). This rules out "anoxic anoxia" as alleged in the complaint (g) Cardiac arrest:

THE affidavit of Dr. Chetan Unadkat (page 235 of the Commissioner''s report) states that after the patient was scrubbed, painted and draped which took about 10 to 11 minutes, when vital parameters were being monitored by Dr. Ambardekar. Superficial incision was then made by Dr. Jhunjhunwala followed by injection of saline adrenaline into the incision to control bleeding. Within five minutes of the incision, Dr. Ambardekar noticed bradycardia. Immediately necessary measures were taken and the pulse started going back to normal. During this period anesthesia circuit also remained intact, which was evident from the dial of the respirator, inflation and deflation of the breather bag, fogging (condensation) of the ET Tube and movement of the chest. As per affidavit of Dr. J.J. Merchant, it is stated that the blood seen oozing from the incision wound was bright red indicating oxygenation The submission of the opposite parties is that if there was any disconnection in the anesthesia circuit then cardiac arrest would have occurred much before 15 minutes of the disconnection i.e. if there was undetected extubation during the first turning, then cardiac arrest could not have happened at the second turning which was 20 minutes later. If complainant''s version is to be believed then this should have happened during the scrubbing or painting process for preparing the patient for operation and the affidavit of Dr. Chetan Unadkat does not support this contention. His evidence on behalf of the complainant in the criminal trial (produced by the complainant during the cross -examination of Dr. Unadkat and marked as Exh. 10 by the local Commissioner) also does not support this contention. (h) Timing of revival measures -

ESPECIALLY the timing in this matter is important. It is about 15 minutes after the first turning that the patient developed bradycardia and then hypotension after which he was turned into supine position again in an emergency manoeuvre and during which process the patient suffered cardiac arrest. Dr. Chetan Unadkat then went to bring Dr. Mangal Jain, a critical care specialist on duty, who rushed to the Operation Theatre quickly. Meanwhile the heart beats were restored through massage and medicines and the patient was revived and his condition was stabilized. He was shifted to the ICU under the care of eminent physicians. Hence, the allegation of the complainant that there was gross delay in reviving the patient after he suffered cardiac arrest is not supported by Dr. Chetan Unadkat as he deposed that, cardiac arrest took place more than 15 minutes after scrubbing and that he returned to the theatre within two or three minutes by which time the patient''s heart beats were already restored. Dr. Jhunjhunwala also stated on affidavit that cardiac arrest occurred around 20 minutes after the 1st turning; when pulse started falling accompanied with fall in BP and that he gave cardiac massage to the patient; and that patient stated appearing cyanosed, which disappeared as the cardiac massage progressed. (i) Scoline -

DR . Honnekeri deposed that scoline can induce hypercalemia. Scoline is an anesthetic drug. The patient having injury on spinal cord itself has a tendency to hypercalemia, which means increase of potassium in the blood. The hypercalemia induced on operation table lasts up to half an hour to two hours. If hypercalemia exceeds its limit, then it can cause sudden cardiac arrest. In the present case from the evidence that has been shown, Dr. Merchant had given pre -operative medication when the patient was fit for operation. Measures were taken to rectify hypotension and bradycardia, which could also happen due to combination of drugs that have been used including reaction to scoline. Dr. Honnekeri stated that cardiac arrest under anesthesia can occur due to variety of reasons including a reaction to scoline without there being any negligence. He further says that in the year 1992 there was no alternative for scoline. It is relevant to note that this is the complainant''s own evidence and complainant has not brought in any other evidence contradicting this. (j) Res ipsa loquitur -

IN our considered opinion to apply the principles of res ipsa loquitur would not be proper because firstly, the evidence that has been produced by the doctors has not been rebutted by the complainant. Secondly, the complainant having the assistance of his son -in -law, Dr. Sandeep Chaturvedi, who is a doctor himself was fully aware that it is a medico -legal case and yet they did not subject the deceased to post -mortem to be able to rely on it to prove their contentions. The hospital record that has been taken by the complainant, which is of 200 pages has been filed in this Commission, after repeated orders, and that too in a piecemeal manner before this Commission and even at the end the entire record has not been brought forward. Complainant has relied on the evidence of Dr. Honnekeri whom they relied on as their witness in the criminal trial. Dr. Honnekeri endorsed the cause of death as certified by the hospital. Complainant did not make the hospital a party challenging the death certificate and by complainant''s own action, death certificate is deemed to be correct. The complainant did not get any other expert medical evidence to show that the opposite parties do not possess the ordinary skill of ordinary competent doctor nor has he relied on any medical text, which could substantiate his claims for what the doctors did not do or for what they should have done. The doctrine of res ipsa loquitur cannot be applied to a complicated surgical operation in which the complaint is based on the premise that severe damage to the brain is possible with no negligence.

MOST importantly, the complainant did not rebut the evidence brought by the opposite parties; his entire case is based upon the statements allegedly recorded by the police, which could not be relied on as evidence; Complainant claims that he gathered information from various doctors and other sources remained only as a paper complaint without substantiating it with the names of such doctors and others by producing them in evidence and hence we conclude that these averments have no evidentiary value and cannot be relied upon. (k) Statements of various doctors allegedly recorded by the police officer - (1) The objections to these statements by the opposite parties have already been set out above. In our opinion, these alleged statements cannot be relied upon as evidence in the case. The complainant has not even proved these statements. It is true that the strict provisions of the Evidence Act do not apply to proceedings under in the Commission. However, the principles of natural justice do not mean that the requirement of proof can be dispensed with. The complainant was on notice that the opposite parties had objected to the statements annexed to this affidavit of evidence. Yet he made no effort to prove any of the alleged statements. In his cross -examination the complainant admits that he was not present when the alleged statements were recorded. Further, the truth of the contents would have to be proved by admissible evidence. This has been held in Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors., (1971) 2SCC 617, AIR 1972 SC 330 (Paras) 12 and 14 ). "But the application of the principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross -examination by the party against whom they are sought to be used. When a document is produced in Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. If a letter or other document is produced to establish some fact which is relevant to the inquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. In Central Bank Ltd. v. Prakash Chand, AIR 1969 SC 983, (1969) 1 SCR 735 (Para 8). "... it has nowhere been laid down that even substantive rules which form part of principles of natural justice, can also be ignored by domestic Tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the inquiry is held and that statement made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic Tribunals are not bound by the technical rules of procedure contained in the Evidence Act."

(2) It may be noted that the complainant has relied on the statements allegedly made by Dr. Noshir Wadia and other doctors to the police, he has not filed any of their affidavits or summoned them to depose. He has also not chosen to bring the police officer who has recorded the statements of these doctors. In Deshbandhu Gupta and Ors. v. Indian Airlines Ltd. and Anr., II (2001) CPJ 61 (NC), it has been held by this Commission that "It is difficult for us to hold that the statements made by witnesses before the Court of inquiry become relevant before us or the opinion of the Court of Inquiry binding on us to return a finding of negligence without the witnesses examined before us. The very argument is difficult to appreciate" (para 15). The Report of the Court of Inquiry "can be used only to the extent that the statements made before the Court of Inquiry can be confronted to a witness to contradict him if he made a statement before and/or contrary to what he deposed before the Court of Inquiry. That is Section 145 of the Evidence Act. However, under Section 157 of the Evidence Act, statement of the witness made before the Court of Inquiry can be proved to corroborate his statements now made before the proceedings. Outside these circumstances to our mind the Report of the Court of Inquiry is inadmissible" (para 21). In the present case, there is no witness before us so any previous statements made to the police have no relevance. In Deshbandhu Gupta and Ors. v. Indian Airlines Ltd. and Anr., II (2001) CPJ 61 (NC) Para 12, it was held that the contents of the inquiry report cannot be made use of unless the facts are proved aliunde. The complainant has not produced any other evidence to support his case but has relied almost exclusively on the unproven statements recorded by the police officer. Hence the statements recorded by the police cannot be made use of.

(3) In any case we allowed the Counsel for the complainant to read these alleged statements and we are of the view that these statements do not support the allegations set out in the complaint. These statements read as a whole and seen in the totality of the evidence produced before us do not support the case of the complainant as set out in the complaint.

(l) Complainants relied on previous statements made by Dr. Chetan Unadkat who deposed for the complainant in the criminal trial and he was not declared hostile. Dr. Chetan Unadkat has been cross -examined in detail regarding the record of surgical procedures and notes, which is the operation sheet, and nothing significant has been proved in support of the complaint. We place reliance on the unrebutted evidence of Dr. Jhunjhunwala that there was no dislodgment of the ET Tube (para 7 of his affidavit) which is given hereunder -

"there are several possible causes for bradycardia, and/or hypotension and/or cardiac arrest when a patient is under anesthesia. Amongst these causes are adverse reaction to anesthetic agents, drug interaction, embolism, multifactorial causes and unexplained causes. In the present case, it cannot be said with certainty as to what was the exact cause of bradycardia and/or hypotension and/or cardiac arrest. I say that there was no dislodgment of the ET tube during the 1st turning. The question therefore of any oxygen lack does not arise. Cardiac arrest occurred around 20 minutes after the 1st turning. Also, had there been undetected extubation at some stage there would have been a rise in pulse rate and rise in the BP, prior to the stage of bradycardia. This did not occur at all."

Apex Court on Medical Negligence : (1) We place reliance and support of the judgment of the Apex Court reported as III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CPJ 9 (SC)=(2005) 6 SCC, Jacob Mathew v. State of Punjab and Anr., which held that accident during surgical treatment, an intended and unforeseen occurrence cannot be confused with negligence and the relevant paras of which are extracted as under - "Simply because things went wrong from mischance or misadventure or through error of judgment, the doctors are not liable, approvingly quoting Lord Denning in Huck v. Cole. (para 22)."

"Mere accident is not evidence of negligence -So also an error of judgment is not negligence per se. Higher the acuteness of emergency, higher the complication, more chances of error. (para 25)."

"Cautionary note. Dealing with a case of medical negligence needs deeper understanding of the practical side of medicine (para 30 -32) (para 47)".

"Accident during surgical treatment has wider meaning. Ordinarily, an accident means an unintended and unforeseen occurrence; care has to be taken that the result of accident which is exculpatory may not persuade the human mind to confuse it with the consequences of negligence (para 33)."

(2) After the arguments in the present case were concluded, the Apex Court delivered its judgment in Matin F.D''Souza v. Mohd. Ishfaq on 17.2.2009, reported in Grand Jurix 2009 (SC2) -GJX 01392 SC. The Apex Court has directed that "whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum should first refer the matter to a competent doctor or committee or doctors, specialized in the field relating to which the medical negligence is attributed, and only after doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent." Further, the Apex Court has observed that in the case before it the National Commission, "which consists of laymen in the field of medicine, has sought to substitute its own views over that of medical experts, and has practically acted as upper -specialists in medicine. Moreover, it has practically aside the evidence of Dr. Ghosh....as well as affidavits of several other doctors who have stated that the appellant acted correctly in the situation he was faced."

Further, it has been held that "The decision of this Court in Indian Medical Association v. V.P. Shantha, should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence." Further, "It must be remembered that sometimes despite the best efforts the treatment of a doctor fails. For instance, sometimes despite the best efforts of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence. (emphasis added) to suggest that he is."

And "The Courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists."

THE views of experts in the present matter have been set out above and do not support the complainant. Further, there is no evidence, much less strong evidence, to suggest any negligence.

IN the present case, the evidence shows on the issue of extubation that it was during the second turning of the patient, there is likelihood of movement of Endo -Tracheal Tube, the doctors noticed first that the patient suffered bradycardia, which necessitated hypertension and cardiac arrest. It is on second turning of the patient while manoeuvring the turning there is a shift of Endo -Tracheal Tube, which occurred during that shift, and there is no evidence to show that oxygen was completely cut off to the patient. Even at that time of second turning, when the incident took place the patient was surrounded by a team of eminent doctors along with the assistants and nursing staff and it cannot be said that all of them ignored to monitor or watch the patient, immediate action has been taken by the doctors, and the patient was given best treatment available as per known medical standards as on that date.

WE agree with the submissions of opposite parties that if at all the cause of death has to be traced back to the events that occurred in the operation theatre then it could be a case of "ischemic encephalopathy" caused by unknown reaction to different anaesthetic agents and not due to lack of care or lack of medical knowledge or in -expertise of doctors. No expert evidence has been produced by the complainant to contradict the evidence by way of affidavits filed by the opposite parties and the vital issues remain uncontroverted by the complainant.

IT is unfortunate that this incident took a young boy''s life but doctors who treated him gave utmost care throughout and did everything as per the medical practices adopted in the year 1992. No evidence of neglect or carelessness or lack of medical knowledge or inexpertise of doctors has been seen in the present case.

IN view of the above discussion, we find that there is no merit in this complaint and hence dismiss the same There shall be no order as to costs. Complaint dismissed.