ORDER
B.K. Taimni, Member
1. Appellant was the complainant before the State Commission, where he had filed a complaint alleging ‘medical negligence’ on the part of the respondents/opposite parties.
2. Very briefly stated facts of the case are that the wife of the complainant No. 1 (since deceased) on getting pregnant second time, approached Dr. Kalyani Devi of Kochin Hospital on 5.12.1989. After her examination, she was advised Uterus scanning. Since this facility was not available elsewhere, the deceased and the first complainant approached the second respondent Dr. K. George, working as Head of Gynaecology in the first respondent Hospital, who after examining her advised certain tests. With the report of these tests, the complainant and deceased again met the second respondent on 8.12.1989 and they were advised uterus scanning, which was got done on 9.12.1989. When the complainant reached with the report of the uterus scanning, the second respondent was not there. It was gone into by one of the assistants of Dr. Saramma Easaw, who stated that the foetus is dead and has to be removed by a simple D and Coperation, which was proposed to be done on 12.12.1989. It is the case of the complainant that on 12.12.1989, deceased was admitted in the operation theatre at about 5.30 p.m. At about 7.30 p.m. one of the nurses asked the first complainant to sign the paper for removing foetus, since the patient was having profuse bleeding. After some time, the nurse came again demanding blood for transfusion to the deceased which was supplied at about 11.00 p.m. same day. Deceased was taken to the ICU where she breathed her last on 18.12.1989 at 12.10 hrs. It is alleged that the wife of the first complainant died due to wilful negligence of the doctors who attended the operation. The profuse bleeding was caused by the negligence of the doctor, who conducted the minor D&C operation. Second facet of alleged negligence is that the patient became unconscious till death due to failure in the proper application of anaesthesia.
3. Upon issue of notice to the opposite parties by the State Commission, they filed the written version denying any wrong doing on their part. Oral and documentary evidence were led before the State Commission who after hearing the parties at length, passed a very detailed and extensive order dismissing the complaint. Aggrieved by this order, this appeal has been filed before us.
4. We heard the learned Counsel for the parties as also perused the material on record. As regards the first alleged act of negligence, two separate pleas have been taken, first relates to the fact that the second respondent Dr. K. George after entertaining the patient initially, did not carry out the surgery, which is violation of the code of ‘Medical Ethics’ issued by MCI and second it was for want of improper treatment on the part of the opposite party Nos. 1, 2 and 4 that resulted in excessive bleeding, leading to the shock cardiac arrest, finally resulted in death of the deceased.
5. As far as the first point is concerned, the State Commission has very comprehensively dealt with this point and we are in full agreement with the finding returned by the State Commission on this point, namely, that as per the statement of the second respondent, she did not attend on the patient after 6.12.1989 and when the deceased and the first complainant came with the uterus scanning report on 9.12.1989 and since 2nd respondent, Dr. K. George was not there and only the 4th respondent Dr. Saramma Easaw, was there, it was for them to decide whether to get treatment under her or not? When the patients go to a hospital and pay to the hospital, they did not get into an agreement or a contract with a doctor. It cannot be any one’s case that the 4th respondent was not qualified to handle this case independently. This is not the part of the complaint nor has been alleged anywhere else. In view of this, like the State Commission, we are not impressed with this leg of the plea. Coming to the main issue relating to excessive bleeding during surgery, it is pleaded by the respondents that all necessary tests were carried out. Dr. Saramma, respondent No. 4 informed the patient about the risk involved in the procedure, to her and her relatives. Pre-operation tests like blood and urine special investigation, such as scrum bleeding and ‘clotting time’ and platelet-counts were done to rule out any coagulation affect. Blood grouping was also done and cross-matching was requested and was done as precaution. The main defence taken by the respondents is that since the foetus was already dead for quite some time, as per acceptable procedure Luminaria Tent was applied on 11.12.1989 and prophylaetic antibiotics were also started. It is only on 12.12.1989 that tent removal and evacuation was done by 4th respondent Dr. Saramma under general anaesthetist administered by the 3rd respondent, Dr. Das. It is stated that it was during this procedure that the patient suddenly went to the shock cyanosis and cardiac arrest as a result of sudden and massive ‘pulmonary embolism’. Immediately, resuscitation measures were started and patient was revived, but patient had started oozing bloods from all punctures. To prevent further bleeding from the uterus, emergency hysterectomy was decided to be done on the deceased, which was carried out after obtaining consent. After this the patient was removed to ICU but despite all the corrective measures and treatment the patient died in the ward on 19.12.1989 at 12.10 Hrs. There is no evidence brought on record, of any expert or any medical literature has been brought on record by the appellant to rebut either any fault in procedure adopted by the respondents in the treatment in installing luminaria tent or its evacuation, or in the revival procedures after the cardiac arrest or that this was not a case of pulmonary embolism. The case of the appellant is further weakened by the fact that despite an opportunity to elicit some information i.e., an expert opinion in their support at the time of examination of Dr. Kalyani Devi, (whom the deceased had consulted in the first instance) and not having been done, leaves us with no impression except to conclude that the complainant has completely failed to prove his case to challenge the explanation of the case spelled out by the respondents. In a series of judgments culminating in the late judgments of Hon’ble Supreme Court in the case of Jacob Mathew (Dr.) v. State of Punjab and Another, III (2005) CPJ 9 (SC) : 11 (2005) CCR 9 (SC) : 122 (2005) DLT83 (SC), the case of medical negligence has to be proved by any expert opinion, which has not been done in this case. Their case is further weakened by the fact that the appellant lost their opportunity to elicit expert opinion in their favour while examining Dr. Kalyani Devi, who has requisite qualification to handle such cases. It is not the case of the appellant that the 3rd respondent was not qualified or due care was not taken; it is for the appellant to prove that what was supposed to have been done,” was not done in this case? Failure to do so on the part of the appellant does not take the case anywhere except for us to conclude that the appellants failed to prove their case.
6. The second issue relates to allegations that the patient was unconscious due to failure in the proper application of anaesthesia, thus, making the anaesthetist responsible for the cause of death. We face the same problem here as well. Dr. Das has filed an affidavit, he was also cross-examined but no expert opinion is brought on record to contradict whatever he stated. In this case also nowhere stated as to what he was supposed to do which he did not do or he did what he was not supposed to do.
7. We have gone through the record. Both the respondent Nos. 3 and 4 are eminently qualified to handle such sort of cases and they took due care as is expected fromnormal doctor. If despite that on account of ‘pulmonary embolism’ the blood stopped temporarily resulting in the outcome it did, the doctors cannot be faulted. It cannot be forgotten that the deceased was carrying the dead foetus in her womb for quite sometime.
8. In view of the aforesaid circumstances, we find that the appellant has failed to prove his case of medical negligence on the part of the respondents either before the State Commission or before us. We see no merit in this appeal, hence it is dismissed.
No order as to costs.