ORDER
B.K. Taimni, Member
1. These two appeals arise from a common order passed by the State Commission, where Smt. Arunaben D. Kothari and others (appellant in FA No. 459 / 1996) had filed a complaint before the State Commission against 6 opposite parties, alleging medical negligence.
2. Very briefly the facts of the case are that the complainant’s late husband had a fall injuring his right arm for which treatment was taken, but it resulted in an apparent deformity. After 6 months of this, the deceased contacted the second opposite party Dr. Rashmi Vohra, Orthopaedic Surgeon, who advised surgery for correction of the deformity, which was caused by the earlier surgery. The surgery was carried out by the second opposite party Dr. Rashmi Vohra, wherein Dr. Minaxiben was the Anaesthetist and Dr. Pinaben, O.P. No. 6 was assisting Dr. Minaxiben, Dr. Shailesh Desai the O.P. No. 5 was the Cardiologist. Admittedly the surgery was planned and carried out in the first opposite party-Hospital where he had been admitted on 23.3.1990. Dr. Desai after carrying out certain examinations/tests declared him fit to undergo surgery. The patient was moved in the opertion theatre at 9.00 a.m., on 24.3.1990. Next entry, as per record, is “Sudden Cardiac Arrest” at 9.40 a.m. and finally the patient died at about 10.00 a.m. Thus, alleging deficiency on the part of the respondents, complainant Arunaben D. Kothari and others filed a complaint before the State Commission, who after hearing the parties, perusal of the evidence as well as medical literature and hospital record brought on record, allowed the complaint against Dr. Rashmi Vohra, Dr. Minaxiben and Dr. Shailesh Bhai Desai. The State Commission awarded a compensation of Rs. 4,15,000/- and cost of Rs. 5,000/- in the ratio of 30%, 60% and 10% against Dr. Rashmi Vohra, Dr. Minaxiben and Dr. Shailesh Bhai Desai respectively. The hospital and the other two doctors were exonerated by the State Commission. Aggrieved by this order, the three doctors against whom the order was passed by the State Commission, have filed appeal (FA No. 395 of 1996). The complainants have also filed appeal (FA No. 459 of 1996) for enhancement of compensation.
3. We heard the learned Counsel for the parties at some length and also perused the material on record. The learned Counsel appearing in FA No. 395/1996, argued that no case of medical negligence has been proved against the Doctors in the order passed by the State Commission. As per record, the necessary tests prior to surgery were carried out by Dr. Shailesh Bhai Desai, who declared him fit for surgery. It is only after that report that the deceased was taken for surgery. Anaesthesia was given as per standard practice by the qualified Anaesthetist Dr. Minaxiben who was also getting the assistance of another able and experienced Dr. Pinaben. She was continuously monitoring the deceased while on the operation table and as soon as she noticed the disturbance in the waves on the monitor, she immediately switched off the supply of Nitroxide Ether and increased the supply of Oxygen and also informed the surgeon, who immediately stopped the Surgery and efforts were made to resuscitate him; Dr. Desai was also summoned, external massage was also done but by the time Dr. Desai came, on account of massive cardiac arrest, the deceased died on the operation table, despite their best efforts. Since all normal procedure, as per medical jurisprudence and protocol was observed yet the patient died on account of massive cardiac arrest, which in any case, has not been proved to be in any way associated with the medical negligence on the part of any one of the appellants in First Appeal No. 395/1996.
4. The learned Counsel for the appellants (FA 395/1996) sought and was given one week’s time to enlighten us on the duties of Anaesthetist supported by medical literature. This has not been done, hence we go on to pass the order based on material on record as also relying upon the books available to us.
5. We have seen the material on record. As per record, the deceased was administered anaesthesia at about 9.00 a.m. and he died at 9.40 a.m. from cardiac arrest. But we are afraid that we get a different view if we see the evidence brought on record. Dr. Gajjar, the Doctor assisting the operation Gurgeon, in his re-examination, clearly states that “after about 15 minutes Anaesthetist informed us that there was cardiac arrest”. Dr. Vohra in her cross-examination states that “about 25-30 minutes might have elapsed between commencement of operation and cardiac arrest”. Dr. Pinaben the Anaesthetist present and purportedly assisting the appellant Dr. Minaxiben in her evidence states that “this (cardiac arrest) happened about half an hour after the operation commencement. After referring the page 78, I say the cardiac arrest occurred 40 minutes after the operation.” In view of these three contradictory statements, we are not particularly satisfied and impressed what has been recorded in the hospital record of the cardiac arrest occurring at 9.40 a.m. This has great relevance for two reasons – one, the role of the Anaesthetist, who was responsible for monitoring the patient during surgery as well as the responsibility of the Surgeon in case of indications leading to cardiac arrest.
6. Dealing with the second point first in her cross-examination Dr. Vohra, one of the appellants before us in FA No. 395/1996, in her cross-examination states “short supply of oxygen is known as Hypoxia and short or lack of supply of oxygen would be noticed by change in colour of blood, it would become dark. It would become more noticeable if we operate without Tourniquett…. From the colour of the nail, other persons would be able to notice lack of supply of oxygen immediately. There would be bluish discolouration of nails.” Now, if we see the hospital notes, we see they are sublimely silent as to what was happened between 9.00 a.m., i.e., after administering of anaesthesia, and 9.40 a.m. when the factum of sudden cardiac arrest has been noted. We have also seen the material on record, it cannot be disputed that the patient was in the hands of Dr. Vohra, who cannot be absolved of the duties entrusted to him. It is he who hired/engaged the services of Dr. Minaxiben, Anaesthetist. It has been admitted by her that if there was no supply of oxygen, which is obvious cause of death, some changes would be noticed in the patient, which she failed to notice. It is admitted position that the patient has done a corrective surgery on his elbow which has been already operated upon 6 months earlier. Yet, none of the witneses who are all medical professionals are unable to explain the cause of cardiac arrest. Dr. Vohra in her cross-examination, clearly stated that “I cannot explain as to why cardiac arrest took place”, and very unprofessionally goes on to state that “I cannot say that if the supply of oxygen stops at the time of operation, it would result in cardiac arrest”. He feigns complete ignorance as to what was being supplied by the Anaesthetist to the deceased. It is not their case that heart just stopped. There were earlier indications of short supply of oxygen to the deceased but it was neither noticed nor noted in the operation note, nor any effort was made to correct that as no material is produced before us that anything was done till 9.40 a.m., allegedly the time or cardiac arrest even though the evidence of Dr. Vohra and Dr. Gajjar states that cardiac arrest happened 15 minutes to 30 minutes after starting of operation. There is a complete blank in the Hospital record for the period between 9.00 a.m. and 9.40 a.m.
7. We have ourselves perused the Chapter on Anaesthesia given in “Principles of Surgery -Fifth Edition-Schwartz Shires Spencer – Vol. I”.
8. Now coming to the role of Anaesthetist, we are mainly concerned with the responsibilities and the duties of the Anaesthetist relating to ‘Monitoring’, which we reproduce in toto:
“Increasingly, standards are being set for monitoring that should apply to nearly all administrations of anaesthesia. Several hospitals in the Harvard Medical School have established the minimum requirements listed in Table 11-2. An anaesthesiologist or nurse anaesthetist should be present in the operating room theatre at all times during the administration of general anaesthesia, regional anaesthesia, and monitored intravenous anaesthetics. Occasionally a brief exit is tolerated when a known hazard, such as radiation, is being applied. Under most circumstances, heart rate and blood pressure should be monitored at a minimum rate of every 5 minutes. It is highly desirable to have the electrocardiogram continuously displayed from the induction of anaesthesia until the patient is prepared for leaving the operating room theatre. Even though heart rate and arterial blood pressure are recommended to be measured every 5 minutes, measures should be taken to ensure that cardio-respiratory function is continuously monitored. This may include palpation or observation of the reservoir breathing bag, auscultation of breath and heart sounds, or more sophisticated monitoring such as a tracing of an intra-arterial blood pressure line. When ventilation is controlled by an automatic mechanical ventilator, a device should be present to warn the anaesthesiologist when the ventilator becomes accidentally disconnected from the endotracheal tube. An oxygen analyser should be functioning during the administration of general anaesthesia to ensure that hypoxic mixtures are not being administered. Lastly, although not a requirement in every patient, a means to measure body temperature should be available, especially to detect intra-operative hypothermia or the rare case of malignant hyperthermia.”
9. If we compare the duties of the Anaesthetist relating to monitoring as also the medical record, we cannot but arrive at the conclusion that the Anaesthetist was completely negligent. There is no record of recording of blood pressure during the surgery or any recording of E.C.G.; heart-beat reading is also not recorded. In fact as already mentioned earlier and noted by the State Commission as well that between 9.00 a.m. and 9.40 a.m. except for the administration of anaesthesia nothing else is mentioned. If this void and apparent non-action is co-related to the prescribed monitoring, and also the crucial 3 to 5 minutes which stand between life and death of a patient for non-supply of oxygen, this monitoring was of great significance of which no record is available. In her cross-examination Dr. Pinaben Shah, purportedly the Senior Anaesthetist, states that, “In my opinion if nothing is done for 4-5 minutes, it may not be possible to revive the patient…”. We have nothing on record to indicate as to when Dr. Minaxiben noticed the “disturbances in the waves on the monitor’ as per her cross-examination. There is no time mentioned in the hospital record. This has not been mentioned in the affidavit filed before the State Commission. It could not be disputed that the time was the essence. It was the onerous duty of Anaesthetist that she does three things- firstly, she monitors the patient, secondly, keep the operating surgeon informed what is happening/what is amiss and thirdly, note down on the operation notes. None of these find mention in the operation notes except to record at 9.40 a.m. that patient developed ‘sudden cardiac arrest’. Learned Counsel appearing for the appellants wants to make us rely on the affidavits which were filed after so many years of the death of the deceased. To say the least, we are not impressed with the argument, Affidavits filed after several years at best could be said to be an afterthought. What is germane for us is the Record/operation notes. They are silent on what they wish to fill in now by filing an affidavit, which we found not acceptable. One cannot be a substitute for the other. Vacuum in one cannot be made good by the other.
10. As per medical literature and as per evidence brought on record, we find that the appellant Dr. Minaxiben was completely negligent and State Commission was quite correct in holding her negligent in rendering services to the deceased.
11. We are further fortified in our view and we are pained to read Dr. Minaxiben’s evidence in cross-examination, where she states that “there are also other drugs besides Penthothal and Scolin for administering general anaesthesia. But we usually use the above two drugs. I cannot give names of other agents used for general anaesthesia. I cannot say that contamin is used for short general anaesthesia. Besides this, I do not know name of any other agent for general anaesthesia. I do not know whether there are any other safer agents other than we have used for general anaesthesia.
(Emphasis supplied)”
12. If her knowledge is so limited, we are constrained to observe that her qualification itself as an Anaesthetist would be under challenge. In order to protect and withdraw into a defensive shield, she appears to be less than fair to herself, to her profession, not to say towards us and the complainant. We fail to understand as to how she can observe that she is not aware of any other agent used for general anaesthesia except used by her. We refrain from sending her case to Medical Council of India to recheck her credentials to continue as an Anaesthetist.
13. As far as Dr. Shailesh Bhai Desai, on whom 10% liability has been fastened by the State Commission, is concerned, we have seen his affidavit and his cross-examination. There is no disputing the fact that his blood-pressure was noted as 150-10 which is not a normal B.P. Admittedly, the normal B.P. 120-80 in a person of age of late 40s. As has been observed by the State Commission, this was not a life saving surgery and this was no case of emergency. The surgery could have been delayed, in order to ensure that the B.P. is normal at the time of surgery. The very fact that Dr. Desai declared “no major contra-indication for surgery” itself is riot supported by his own evidence and is not supported by any medical literature, that hi case of a routine operation, the person could be operated having B.P. 150-10 which in any case is above normal. We see no merit in the appeal filed by him jointly with two others.
14. A point was also made that the amount awarded by the State Commission is not based on the calculation of amount of award as per schedule given in the Motor Vehicles Act. We have very carefully gone through this. The State Commission has estimated the age of the appellant at 65 and based on the income of Rs. 2,000/- per month, they have arrived at the figure- of Rs. 3,60,000/-; Rs. 40,000/- has been given for the loss of estate and Rs. 15,000/- for medical expenses. We find no infirmity in this method of calculation. No body would expect a continuous income of Ks. 2,000/- per month for the next 15 years. Any increase has been balanced by setting off possible expenditure, thus, relief is limited to Rs. 2,000/- per month for all the 15 years to come. In view of above we find no infirmity in the order passed by the State Commission, which is upheld. The appeal (FA No. 395/1996) is devoid of merit, hence dismissed.
15. Coming to the appeal (FA 459/1996) filed by the complainant for enhancement of compensation. After carefully going through the material brought on record, there is nothing to substantiate that any other amount of compensation other than the one awarded by State Commission could be granted by us under any law of the land. The calculations made by the complainant have no relationship with ground reality or law. In view of above, we see no merit in this, hence dismissed.
As a result, both the appeals are devoid of merit, hence dismissed.