National Consumer Disputes Redressal Commission

New Delhi

FIRST APPEAL NO. 246 OF 2005

(From the order dated 29.4.2005 passed by the State Commission, Tamil Nadu in O.P. No.24 of 2000)

1. Dr.B.Reghupathi,
Siddarth Clinic,
10, Banadurai South Street,
Kumbakonam,
Thanjavur District,
Tamil Nadu.

2. Dr. K.M. Palanivelu,
108, John Selvaraj Nagar,
Kumbakonam,
Thanjavur District,
Tamil Nadu                                            . …. Appellants

                            Versus

1. B. Vasantha
W/o late A. Balasubramanian

2. B. Vetriselvan,
s/o late A. Balasubramanian

3. B. Parthiban
s/o late A. Balasubramanian

4. B. Rajadurai,
s/o late A. Balasubramanian

All respondents residing at:
39, South Street,
Thiruvidaimaruthur,
Thanjavur District
Tamil Nadu                                         …. Respondents

BEFORE:
HON’BLE MR. JUSTICE M.B.SHAH,
                                           PRESIDENT.
MRS. RAJYALAKSHMI RAO, MEMBER.

For the Appellant                         : Mr. V.Prabhakar, Advovate.

For the Respondent                     : Mr. Ankit Singhal, Advocate.

Dated the 7^th December, 2007

O R D E R

M.B.SHAH, J. PRESIDENT.

The State Commission, Chennai, by its judgment and order dated 29^th April, 2005, allowed the Original Petition No. 24 of 2000, by arriving at the conclusion that the husband of the Petitioner died on the operation table when the patient was brought for simple biopsy. For this deficiency in service, the State Commission directed payment of compensation of Rs.2 lakhs by the Opposite Parties.

It is the case of the Complainant that her husband, Balasubrahmanyan, who was working as a Village Administrative Officer at Kanjanoor, developed pain in his ear in the month of March, 1999. He, therefore, visited the clinic of Appellant No.1, Dr.B.Reghupathi, on 19^th March, 1999. After examining the deceased, Appellant No.1 stated that there was nothing wrong in the ear but the pain was due to some malignant growth in the throat. After the examination he was admitted in his clinic. After the blood and the urine examination, the deceased was informed to come on the next date, i.e. 20^th March, 1999 for further tests to be conducted. It is alleged that on 20^th March, 1999, at about 1.00 pm the deceased was taken to operation theatre for conducting examination. After two hours, the Doctors, (Appellant No.1) and the Anaesthetist, (Appellant No.2), informed that the patient (Balasubrahmanyan, i.e. the deceased) died in the operation theatre. It alleged by the Complainant that general anaesthesia was not properly administered.

After considering the evidence on record the State Commission arrived at the conclusion that the patient died at the hands of the Surgeon when a simple procedure for biopsy was being performed. Hence, in such circumstances, the principle of ‘res ipsa loquitur’ would apply. The State Commission also observed that there was nothing on record to show that the Appellants conducted any test prior to administering the anaesthesia.

The State Commission allowed the complaint and directed the appellants to pay compensation of Rs.2 lakhs by taking into consideration the fact that the deceased was a young Village Development Officer.

Against that order this appeal is filed.

It is the contention of the appellant that the deceased approached the first appellant on 19^th March, 1999 complaining difficulty in swallowing and breathing coupled with pain in the neck. It is stated that after due examination it was found that the deceased was anaemic and, the space after the mouth before the food or air passage known as laryngeal contour, had widened. Also, the oral hygiene was poor and there was locking of jaw preventing opening (Trismus). Due to that the laryngeal in-let could not be visualized and the mouth could not be fully opened. The saliva and secretion was present and the growth was found in the neck. Therefore, on 20^th March, after usual check-up and under supervision of appellant No.2, the Anesthetist, indirect laryngeal spopic examination was attempted but the same failed. Thereafter, direct laryngeal spopic was done, after appraising the necessity for the same to the Complainant. It is pointed out that before the procedure could be carried out, necessary oxygen through mask was administered. After the procedure was successfully completed, the deceased developed broncho spasm and hence, oxygen was administered under intermittent positive pressure ventilation. As vocal cords were not visible, intubation was attempted and oxygen was administered by connecting to apparatus and the patient recovered. Again the patient developed broncho spasm and again oxygen was administered and crepititol was heard in the respiratory system and the first appellant, therefore, suspected pulmonary oedema which was due to mis-matched functioning of the lungs and the heart. And, hence, the medication was administered and all of a sudden, the patient developed cardiac arrest and the attempt to revive the patient failed.

Findings:

The medical case papers prepared by the appellants reveal as under:

“20.3.99

Pulse 96/minute

Blood Pressure 130/100 mm Hg

ELECTROCARDIOGRAM TAREN

Normal

1.3.99

PPER END OESOPHAGEAL SURGEON: DR. B. RAGUPATHI

SPECULUM EXAMINATION

AND BIOPSY ANESTHETIST: DR. K.M PALARIVELU DA.

UNDER INTRAVENAUS PENTOTAAL AND SCOLINE,

UPPER END OESOPHAGEAL SPECULUM EXAMINTION DONE.

NECK IN EXTENDED POSITION.

ORAL HYGIENE POOR. ORAL CAVITY COULD NOT BE OPENED FULLY. UVULA NORMAL.

POSTEROUS 1/3 OF TONGUE NORMAL.

HYPOPHARYNX IS CONGESTED AND FILLED WITH SECRETIONS. SUCTION APPLIED.

LARYNGEAL INLET OEDEMATOUS.

THERE IS A PROLIFERATIVE GROWTH SEEN IN LEFT PYRIFORM SINUS EXTENDING TO MEOIAL WALL OF LEFT PYRIFORM SINUS. VOCAL CORDS EDEMATOUS. RESTRICTED MOVEMENTS PRESENT.

BIOPSY TAKEN.

FOLLOWING BIOPSY, OXYGEN WAS GIVEN BY ANESTHETIST. PATIENT OEVELOPED RESPIRATORY ARREST.

CASE SEEN BY DR. K.M. PALANIVELU (Appellant No.2):

DIVASCULAR SYSTEM } NO ABNORMALITY MOUTH COULD NOT BE OPENED WIIDELY

DIAGNOSED

DRATORY SYSTEM}

100D PRESSURE: 140/100 MMUS MODERATE TRISMUS PRESENT.

ENOGWBIN: 11-9 GM ORAL HYGIENE POOR.

? CARCINOMA LARYNGO-PHARYNX.

EURO CARAO GRAM: NORMAL

UNDER GENERAL ANESTHESIA GRADE III

INDUCED WITH THIOPENTONE 250 MM INJECTION ATROPINE 0.6 OY, SUXA 50 MGM OXYEN WITH INTERMITTENT POSITIVE PRESSURE ENTILATION UNDER, MASK. BIOPSY WAS TAKEN.

OXYGEN WAS ADMINISTERED UNDER MASK.”

Thereafter, it is stated that at 2.30 pm the patient expired.

In our view, it has been rightly pointed out by the Respondent/Complainant that:

The Appellants had omitted and failed to place the ‘endotracheal tube’ while administering general anaesthesia, which had to be introduced prior to biopsy. The endotracheal tube keeps the patient’s lungs free and maintains the breathing and avoids mixing of particles from the food tube into the air pipe of the human system, when the patient loses consciousness due to anaesthesia. If the tube is not introduced, it would result in the food particles entering into the air pipe and blocking it, thereby affecting the breathing of the patient, which had happened in this case, and, thereafter, led to cardiac arrest. Further, the Appellants admitted that they had attempted intubation after the patient developed difficulty in breathing.

Secondly, the required procedure for administration of anaesthesia in upper respiratory tract obstruction was not followed by the Appellants while administering general anaesthesia.

In this connection the Respondent relied upon the text of Mr. R.S.Atkinson in ‘A Synopsis of Anaesthesia’ Eight Edition, at page 572, which is as under:

“In severe upper respiratory obstruction, tracheostomy may be necessary before induction of general anaesthesia or even during induction in an emergency.

Before inducing general anaesthesia in a patient with an acute infection of the neck or chronic laryngeal obstruction, who is hypoxic, apnoea must not be produced until it is certain that the lungs can be inflated. One hundred per cent oxygen should be given for 10 minutes followed by a smooth nitrous oxide oxygen halothane induction. It is further opined that early passage of a nasopharyngeal tube will remove any respiratory obstruction due to trismus of the presence of a bulky or oedematous tongue or pharynx. Blind nasal intubation can then be carried out. A rather small tube e.g. size 6.5 or 7, is easier to insert than a larger one and is permissible for short operations. If the abscess of the neck is superficial it can be opened under refrigeration anaesthesia, i.e. application of ice to the part for 45-60 minutes.”

It is further stated that the deceased was not a heart patient and the ECG taken before the biopsy was normal. In such circumstances, it cannot be said that because the deceased was weak or was suffering from any heart trouble, he died due to cardiac arrest. Cardiac arrest is the consequence of deficiency in service in administering anesthesia,

In such set of circumstances, it is apparent that principle of res ipsa loquitur would apply to the present case, because the deceased went for biopsy but died because of the event, which is not disclosed by the appellants.

In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia (1998) 4 SCC 39, it was held that gross medical mistake will always result in a finding of negligence. It was further held that the use of wrong drug or wrong gas during the course of anaesthesia will frequently lead to imposition of liability and even the principles of res ipsa loquitur can be applied. Similarly, in Savita Garg Vs. National Heart Institute (2004) 8 SCC 56, the Apex Court observed that it is for the hospital or institute to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. The Court further observed:

“Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence involved in the treatment.

…………

In any case the hospital is in better position to disclose what care was taken or what medicine was administered to the patient. It is duty of the hospital to satisfy that there was no lack of care or diligence.”

In the present case nothing has been pointed out by the Appellants to establish that there was no negligence or deficiency in service in administering anesthesia.

In view of the above discussion, there is no substance in the appeal. The appeal is, therefore, dismissed. There shall be no order as to costs.

Sd/-

……………………………………J.

( M.B. SHAH )

PRESIDENT

Sd/-

………………………………………

( RAJYALAKSHMI RAO )

MEMBER