ORDER
B.K. Taimni, Member
1. Appellants were the opposite parties before the State Commission where the respondents had filed a complaint alleging medical negligence on the part of the appellants.
2. Undisputed facts of the case are that the wife of the first respondent and mother of respondent Nos. 2 and 3, Sreedevi was admitted in the first appellant hospital with abdominal pain on 28.5.1996 wherein after examination it was diagnosed to be acase of fibroid uterus and patient was advised abdominal hysterectomy. The surgery was carried out on 29.5.1996 at about 7.00 a.m. and during the surgery at about 7.20 a.m. the patient (since deceased) developed Brady Cardia for which a spinal shock for sensitivity to anaesthesia was suspected and emergency measures were resorted to, as a result of which Brady Cardia and Hypotension were promptly corrected but the patient suddenly developed respiratory failure. At this stage the cardiologist Dr. P.B. Jayagopal was called to deal with the emergency and follow-up action was taken. At about 9 a.m. the patient showed signs of cerebral irritability leading to suspicion of anoxic encephalopathy requiring continuous ventilatory support. Since sufficient facilities were not available with the hospital, it was decided to shift the patient to another hospital, i.e., K.G. Hospital at Coimbatore, where the patient reached at about 11 a.m. and died at about 3 p.m. It was the case of the complainant that the hospital did not have the facilities for taken-up this major surgery; they did not have oxygen equipment or ventilatory support facilities, as also, the surgery was carried out based on pre-operative carried out on 17.5.1996 whereas at the time of admission on 28.5.1996 fresh pre-operative tests should have been done, to ascertain the ability of the patient to withstand the rigours of major surgery especially when it was not a case of emergency. It is in these circumstances that a complaint was filed alleging medical negligence. This complaint was contested by the opposite parties denying any medical negligence on their part. Both the parties led evidence along with one expert evidence from either side. While the appellant/opposite party led the evidence of Dr. A.K. Unikrishnan, Anaesthetist as expert witness, Dr. Louis M. Paruthikal was examined as expert witness onbehalf of the complainants/ respondents.
3. The State Commission after hearing both the parties and perusal of material on record, held the appellants guilty of medical negligence and awarded compensation of Rs. 9,95,068 based on the salary and applying a multiple of 13 along with cost of Rs. 2,000 in case of non-compliance of the order this amount was to carry interest. It was clarified that the above amount shall be paid jointly and severally by the appellants. It was also directed that out of this amount of compensation 2/3rd of the amount was to be deposited in the nationalized bank in the name of the minor complainants, i.e., respondent Nos. 2 and 3 till they attain maturity and the complainant was entitled to draw interest on this amount and utilize this for the purpose of maintenance and education of minor complainants.
4. Aggrieved by this order this appeal has been filed before us. We heard the learned Counsel for both the parties at considerable length and also perused the extensive material brought on record.
5. As we see, the first leg of the plea taken by the complainant before the State Commission was that at the time of admission in the first appellant Hospital on 13.5.1996 certain tests were conducted and ECG was taken on 17.5.1996. At the time of re-admission on 28.5.1996, and surgery on 29.5.1996, no fresh tests were done. It was their case that this has to be held against the appellants. When we see expert opinion of Dr. Louis M. Paruthikal, in his examination-in-chief, he states as under:
I have done hysterectomy operations round about 2,000 to 3,000 altogether. A doctor should have pre-operative evaluation of the patients before actually performing the operation, he should get a medical clearance regarding general condition that he can be fit to undergo surgery. (Appearing at page 78 of Vol. V).
(Emphasis supplied)
6. We have seen the cross-examination of the deponents by the appellants. At no stage this deposition has been challenged. We have also seen the cross-examination of expert witness of the appellants. It may be material to note that he is an Anaesthetist, and nothing is brought on record to contradict this deposition on oath. We have very carefully gone through the medical literature brought on record by the appellant titled, “The Use of Routine Preoperative Tests for Elective Surgery, Developed by the National Collaborating Centre for Acute Care (NCCAC) United Kingdom, National Institute for Clinical Excellence (NICE) United Kingdom” about the issue in hand in cases relating to total abdominal Hysterectomy. In our view, it does not help the appellant. It is pertinent to note that the case relating to medical negligence relates to the period 1996, whereas these guidelines were issued only in the year 2003. Hence they cannot have any bearing on the merits of the case one way or the other. Thus, in our view, while the plea of the complainant, that no fresh preoperative tests were carried out at the time of readmission on 28.5.1996 and is supported by the expert witness, there is nothing on record to contradict this part of the expert testimony on the point of medical negligence on the part of the appellants on this account.
7. Secondly, it is not in dispute that the patient developed serious problems at about 7.20 a.m. and as per material on record certain medicines like injection Atropin and other medicines were administered and by 7.35 a.m. surgery was completed and there is entry in the medical record upto 7.40 a.m. which observes “…thereafter patient was having shallow respiratory assisted ventilation was continued and dopamine support was given”. After that it is not in dispute that there is no entry in the medical record of the appellants, between 7.40 a.m.to9.00a.m.At9.00a.m.onlythingrecorded is at the time of shifting pulse was 106 and BP was 130/90. It appears that as per record the patient was actually moved at about 10.00 a.m. and reached the K.G. Hospital at about 10.55 a.m., as per record of the Hospital. It is material to note that there is no Hospital record between period 7.40 to 9.00 a.m. and 9.00 a.m. to 10 a.m. when the patient was shifted to K.G. Hospital. There is also no record for the period from 10.00 a.m. to 10.55 a.m. of the doctors who accompanied the patient from first Hospital to K.G. Hospital. The patient died at about 3.00 p.m. in K.G. Hospital.
8. On our repeated requests the learned Counsel for the appellant has not been able to show us as to what was the status of the patient for this missing period, i.e., from 7.45 a.m. to 9.00 a.m., 9.00 a.m. to 10.00 a.m., i.e., the time when the patient was shifted to K.G. Hospital and also almost an hour, i.e., 10.00 a.m. to 10.55 a.m., when the patient was being taken to the K.G. Hospital. We, not only hold this to be a case of gross negligence, but also draw an adverse inference for not providing any material for this critical period. Admittedly as per record of the K.G. Hospital when the patient was” brought to them she was in bad shape. Her BP was low, all parameters were below normal and their last ditch effort to rescue the patient from the poor health status on all parameters did not help and the patient died at 3.00 p.m. within 4 hours of reaching the K.G. Hospital.
9. In the written version filed by the appellant/opposite party, it has been stated that at about 7.25 a.m. the BP and Pulse of the deceased was found to be normal and the Cardiologist was summoned and whatever advice was given by him was continued but there is no record to this effect. It is also stated in the written version that the medical officer as also the RMO accompanied the patient in the Ambulance and the patient was put on Ventilatory and I.V. support while she was on her way to Coimbatore. But there is nothing on record to show that any such thing was done as no record is kept. It was also stated at page 7 of the written version that these two Doctors “…constantly monitored the condition of the patient during her journey to Coimbatore….” But there is no record. If one has to take the record of the first appellant Hospital on its face value then at 9.00 a.m., the deceased had BP of 130/90 and if written version and material brought on record of the appellant is to be believed-which we do not accept on the face value, in the absence of any corroborative record – then there is no explanation forthcoming as to how could the deceased on reaching the Hospital had a BP of 80/60 as recorded by K.G. Hospital on examination at arrival? If the BP was falling so rapidly, then what was done to arrest the fall in BP? What corrective measures were taken are not on record and nor is it mentioned any where. Making a bald statement that the patient was being constantly monitored, in our view, would appear to be an eye-wash and a sheer cover-up of the tracks, of having done nothing – at least we can hold this on the basis of non-availability of record and non-supply of information by the Doctors concerned as to what did they do to check the BP from falling so low? There is no specific reference to this in their written version or affidavits by way of evidence. We are constrained to observe that Doctors at the first appellant Hospital as also the Doctors who accompanied the deceased in the Ambulance failed to take ‘due-care’ of the patient resulting in her death within 4 hours of her arrival at K.G. Hospital.
10. In Halsbury’s Laws of England-Vol. 6 (3rd Edition), defines Negligence: duties owed to the patient as well as the degree of skill and care required, which reads as under:
22. Negligence: duties owed to the patient-A person who holds himself oat as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) a breach of any of these duties will support an action for negligence by the patient (C).”
23. Degree of skill and care required- The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what he requires (d); a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (d); nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men (e).
11. This principle has been consistently held by the House of Lords as also by the Hon’ble Supreme Court latest being in the case of Jacob Mathew v. State of Punjab and Anr. .
12. As would be clear from the above that the duty of care comprises deciding whether to undertake a case; duty of care in deciding what treatment to give and a duty of care in administration of that treatment.
(Emphasis supplied)
13. We have no difficulty in accepting the decision taken by the appellant, that the deceased should undergo Hysterectomy but the fact remains that they did not have the requisite infrastructure to undertake a major surgery as is apparent by the record, that they did not have the ICU or the facilities of a neurosurgeon or for that matter a cardiologist. If such was the case, in our view, they should not have undertaken the surgery. More importantly the appellants have completely failed to satisfy us about ‘administration of the treatment’ as there is nothing on record, as repeatedly referred to by us earlier that if the BP was 130/90 at 9.00 a.m. then what was the BP when the ambulance came and then what was the BP, Haemoglobin or Cardiological or neurological status when the patient was shifted to K.G. Hospital at about 10 a.m. as also what was the status and what was the treatment administered during the journey in the Ambulance from the First Appellant Hospital to K.G. Hospital? In view of above, we have no difficulty in accepting that the appellant Doctors failed to take ‘due-care’ of the patient which is apparent, based on the record, relating to health status of the deceased at K.G. Hospital as recorded by latter.
14. We also like to mention that the expert opinion brought on record by the complainants. In reply Dr. Paruthikal, he has clearly stated that, “In my vast experience I would definitely ask the Anaesthetist to accompany the person or I would ask some one experienced, who have adequate knowledge in vantilatory monitoring in the absence of the Anaesthetist”. This particular contention of expert has not been rebutted nor has it been explained as to why Anaesthetist did not accompany the patient in the Ambulance. It is not in dispute that as per record symptoms of ‘encephalopathy’ were noticed at 9 a.m. which clearly brought out the fact that there is short or less supply of Oxygen to the brain, nothing is brought on record as to what was done to meet this situation, after 9.00 a.m. upto 10.00 a.m., when the patient was in the first appellant Hospital as also during the journey from this Hospital to K.G. Hospital, nor is there any reference on record about summoning a neurologist to meet the situation? The cross-examination of the Anaesthetist RW OP-4 Dr. Venugopal makes a dismal reading when he states in his cross-examination that, “…It is not correct if it is stated that necessary drugs for that were not stored in the Hospital….” and goes on to contradicts when he states, “…I am not aware that we maintain a stock register” and still further goes on to add, “…I have no knowledge that patient’s husband was asked to bring drugs from outside during operation. It is wrong to conduct operation without life-saving drugs”. A very pathetic state of affairs especially relating to Hospital when they depend on the patient to get the essential medicines.
15. On the point of his accompanying in the Ambulance this is what he has to say in his cross-examination, “I was there at the time when the patient was being shifted to Hospital. I did not accompany the patient. Didn’t feel that Anaesthetist need is essential when the critical patient is shifted to a place 45 kms away. There was no need for a neurosurgeon also. Continuous ECG monitoring cannot be done during transport. It is not very essential.” (emphasis supplied). Some words like ‘didn’t feel’ leave a very bad taste in our mouth. If he felt that Anaesthetist was not required especially when expert witness Dr. Paruthikal had subsequently stated that the Anaesthetist should have accompanied the patient, then this should havebeen contradicted by an expert opinion. This has not been done.
16. The cross-examination of the third OP is very important as she had accompanied the patient while shifting the patient from first appellant Hospital to K.G. Hospital. She in her cross-examination states, “…I was present at the time when patient was shifted in the Ambulance. There is change in the condition of the patient when patient reached K.G. Hospital. All the details before the discharge of the patient from her Hospital found a place in our case-sheet. There is no mention regarding the details during the transportation in Ambulance and goes on to add, “…the necessary medicines were stored in the Ambulance such details are not recorded in the stock register”.
In the afore-mentioned circumstances, there is no way to ascertain to find out whether ‘due-care’ was taken of the deceased from 7.45 a.m. to 9.00 a.m. in the first appellant Hospital and again from 10.00 a.m. to 10.55 a.m. when the patient was in Ambulance during journey from first appellant Hospital to K.G. Hospital, in the absence of any evidence or material brought on record.
17. In the aforementioned circumstances, we cannot but conclude that the appellants completely failed to take due care of the deceased patient while under their treatment, in view of which we hold the appellants clearly guilty of medical negligence. We find no ground to interfere with the well-reasoned order passed by the State Commission. This appeal has no merit, hence dismissed.