NATIONAL CONSUMER DISPUTES
(From the order dated 24.11.1998 passed in O.P. No. 268 of 1993 of the State Commission, Chennai)
Dr. (Mrs.) A.Athilakshmi,
Tamil Nadu. … Appellant
.2. Dr. (Mrs.) Usha Rani,
Subam Nursing Home,
.3. Dr. (Mrs.) Naraimadi Diwakaran,
Tamil Nadu. … Respondents
HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT
MRS. RAJYALAKSHMI RAO, MEMBER
For the Appellant : Mr. V. Prabhakar, Advocate
For the Respondent No.1 : Mr.N. Rajah, Advocate
For the Respondent No.2 : Mr. S.M.Logomathur, Advocate.
For the Respondent No.3 : Mrs. Vijaya Kumar Natarajan,
It is the case of the Complainant that due to the negligence of the Doctors who performed a simple family planning operation, his wife lost her life. After operation the Appellant came out from the operation theatre and without washing her hands left the clinic in hurry. For the deficiency in service complaint is filed by him against all the three Doctors who were present at the time of the operation.
The learned counsel, Mr.V.Prabhakar, appearing on behalf of Appellant submits that the Appellant has not performed the operation though she was called by Respondent No.3, Dr.Niramadi Diwakaran, owner of the Anandi Clinic when the condition of the patient, who was operated upon for the family planning, was serious. At that time, Dr.Mrs. Usha Rani, Respondent No.2, was present in the operation theatre. It is the contention of the Appellant that when she went at the clinic the condition of the patient was serious and Anaestehtist, Dr. Shantinathan, who was also called, gave oxygen to revive the patient but the patient died. She, therefore, left the hospital. It is the contention of the learned counsel that the Appellant has maintained the same stand since beginning, i.e. in reply to the notice issued by the Complainant.
It is unfortunate that doctors of the noble profession have gone down to such a extent that they are not prepared to disclose the events correctly. If the version of the Appellant is believed then it would mean that the operation was performed by the doctors who were admittedly not entitled to perform the operation, as contended by their learned counsel. It is to be stated that the Appellant never bothered to inform the Police about the misdeeds of Respondents Nos. 2 and 3 that unqualified doctors preformed the operation resulting in the death of the patient. She neither referred the matter to the Medical Council nor informed the State Medical Council for taking appropriate action against Opposite Parties 2 and 3. In our view, the story cooked up by the Appellant is not reliable.
The State Consumer Disputes Redressal Commission, Tamil Nadu at Chennai, has not believed the Appellant and had passed the impugned order dated 24.11.1998 in O.P. No. 268 of 1993. By the said order the Appellant, Dr.(Mrs.) A.Athilakshmi is directed to pay a compensation of Rs.4 lakhs with interest at the rate of 18% p.a. Hence, this appeal.
For appreciating the contentions we would refer to the facts of the evidence produced on record.
It is the contention of the Complainant that his wife was admitted in Subam Nursing Home of Dr.(Mrs.)Usha Rani, (Opposite Party No.1), on 12.8.1992, for delivery. On 13.8.1992 there was normal delivery and she gave birth to a child. Dr.Usha Rani was advising the Complainant’s wife to undergo family planning operation and the Complainant’s wife had agreed. That operation was arranged at Anandi Clinic, (Opposite Party No.2) of Dr.(Mrs.)Niraimadi Diwakaran. Before taking discharge from Subam Nursing Home the Complainant paid Rs.1,500/- to Opposite Party No.1 to cover the fees for delivery and advance for family planning operation. The balance was to be paid after the family planning operation being performed. Again at Anandi Clinic the Complainant paid a sum of Rs.250/-. He states that his wife was in very good health and condition and was not suffering from any ailment. At the time of family planning operation Opposite Parties Nos.1, 2 and Opposite Party No.3, Dr.Mrs. Athilakshmi (Appellant) were inside the operation theatre. But, there was no Anaesthetist in the operation theatre. The Complainant’s wife was taken inside the theatre and 15 minutes after the Opposite Party No.1 opened the doors and rushed to phone her husband to ask him to bring Dr.Shanthinathan, the Anaesthetist.
Dr.Athilakshmi (Appellant) came out of the operation
theatre and without washing her hands got into her car and left the clinic in
hurry. Within a few minutes of the departure of Dr.Athilakshmi,
Opposite Party No.1’s husband brought Dr.Shanthinathan
to the operation theatre. Simultaneously, Dr.Niraimadi
Diwakaran, Opposite Party No.2, came out and asked
the Complainant to bring a car or a van immediately. Minutes after Dr.Shanthinathan entered the theatre, and he came out. He
recognized Shanti’s father-in-law and signaled with his
hands indicating that all was over. Soon
after that, Opposite Party Nos. 1 and 2 came out of the theatre with
Complainant’s wife in a stretcher and handed over the patient to the
Complainant. At that stage also the Opposite Party Nos. 1 and 2 did not even
whisper a word to anyone about the status of
Shanti. Under the impression that Shanti was in a serious condition the Complainant took her in a van to
It is the contention of the Complainant that Opposite Party Nos. 1 and 2 when they handed over Shanti to the Complainant did not utter even a word as to what was the cause of death. Later, he came to know from the hospital staff that Shanti had been administered local anaesthesia and mid-way during the operation the effect of anaesthesia worn off Shanti had sat up and screaming with pain; doctors administered chloroform and she became unconscious. It was only thereafter, Dr.(Mrs.) Usha Rani came out and rang up Dr.Shantinathan.
Thereafter, only on 19.8.1992 Dr.(Mrs.)Niraimadi informed the Health Inspector concerned that death was due to cardiac failure. It was, therefore, contended that because of the negligence of the Opposite Parties in the operation theatre the Complainant’s wife had expired. Hence, complaint was filed after giving notice.
As against this, it is the say of the Opposite Party No.1, Dr. Usha Rani that operation was tobe performed by Dr.(Mrs). Athilakshmi, in the presence of Dr.Shanthinathan, Anaesthetist at Anandi Clinic run by Dr.Niraimadi. She remained presented at that time at the request of the deceased who was her patient. It is her say that when she went to the operation theatre Opposite Party Nos. 2 and 3 were present. Opposite Party No.3, Athilakshmi performed the operation under local anaesthesia. Dr.Athilakshmi first took out one fallopian tube and after cutting it made necessary knots and put it inside. While Dr.Athilakshmi tried to take out the other fallopian tube, the patient developed pain and hence she stopped further operation and called for Dr.Shanthinatan. Within a few minutes Dr.Shanthinatan was brought. Only after analyzing the condition of the patient they opted general anaesthesia. Dr.Shanthinathan administered ether and after verifying the condition asked the surgeon to proceed further with the operation. Dr.Athilakshmi took the second fallopian tube, treated and closed the abdomen. Dr.Shanthinathan tried to arouse the patient, but since there was no proper response, suddenly the patient’s pulse got deterioratd and the blood pressure fell. Unfortunately, in spite of best efforts and efficient treatment the patient collapsed.
Similarly, the Opposite Party No.2, Dr.Niraimadi contended that the Appellant, Dr.Athilakshmi performed the operation.
Dr. Athilakshmi contended that on 15.8.1992 at about she received the phone call from Anandi Clinic requesting her to rush to the clinic to get over critical situation in a family planning operation. She rushed to the clinic at . By the time, Dr.Shanthinanthan (Anaesthetist) had arrived. She found that the condition of the patient was in a worse state. She, therefore, expressed her inability to do anything and she left the clinic immediately. She denied that she has performed the operation and she was in no way responsible for the death of Shanti. It is her contention that the Opposite Party Nos. 1 and 2 are trying to shift their responsibility on her.
After appreciating evidence, the State Commission arrived at the conclusion that the Appellant, the Surgeon, was engaged to do the operation, she performed the operation, and due to her negligence the patient died. The State Commission also observed that the Appellant, Dr.Athilakshmi was not prepared to tell the truth and what had really happened. If there was no fault on her part, she would have narrated the details of the operation and should have also stated as to how the patient died.
The State Commission also relied upon Exhibit B-3 which is the case sheet which according to Opposite Party No.2 was maintained by her husband who is also a doctor. Therein it is mentioned as under:
“I was present inside the operation theatre during the operation. The operation was performed by Dr.Athilakshmi. In the middle of the operation, the Surgeon called for Anaesthetist Dr. Shanthinathan. The patient died at about .”
The State Commission finally directed the Appellant to pay a sum of Rs.4 lakhs with interest at the rate of 18% p.a. till realization and to pay Rs.2,000/- as costs of the proceedings.
Against that order, the Appellant has preferred this appeal.
Learned counsel, Mr.Prabhakar, appearing on behalf of the Appellant submitted that the Appellant has not performed the operation, but she was called when the patient became serious. After looking at the serious condition of the patient, she went away.
In our view, as stated above, even if this contention, for the sake of argument, is believed, then also, it would mean that there was total negligence on her part in not disclosing to the patient’s relatives that the patient had died during the operation, which according to her allegation, was performed by Dr.Usha Rani and Dr.Niraimadi.
counsel further referred to the complaint sent by the father of the deceased to the
As against this, on record, the Opposite Party No.2 have produced a statement dated 8.9.1992 wherein it is specifically stated that the operation was performed by Dr.(Mrs.) Athilaksmi, assisted by Dr.Usha Rani and that she was not knowing the cause of death. However, it is to be stated that after gathering proper information legal notice was issued on 14.10.1992 wherein all the facts are exhaustively stated and that it was pointed out that Dr.Athilakshmi was to perform the operation. And that all the three doctors were jointly and severally liable for the negligence. The said notice was replied by the Advocate on behalf of Dr.Authilalkshmi and the stand taken was that she went there only at 10.30 a.m and that Dr.Shanthinathan (Anaesthetist) was also arrived there. And, at that time, the patient’s condition was critical.
Dr.Niraimadi also replied to the notice that Opposite Party No.3, Dr.Athilakshmi who is M.B.B.S. DGO performed the operation and Anaesthetist, Dr.Shanthinathan was called. Dr.Shanthinathan opted for general anaesthesia and after operation the patient’s condition became serious. He has reiterated that the operation was performed by Dr.Athilakshmi.
Dr.Usha Rani also replied to the said notice on 14th December, wherein she has denied the contentions that she has performed the operation.
At the time of recording evidence before the State Commission the Complainant has specifically stated that all the three Opposite Parties jointly performed the operation and they were present at the operation theatre and the Complainants and others were waiting outside. Dr.Shanthinathasn was called after sometime.
The Complainant has also examined the father of Shanti who has specifically stated that Dr.Athilakshmi was present at the hospital and has denied the suggestion that she was not present and in the cross-examination also nothing has been brought out to falsify the said version.
Further, important evidence is that of Dr.Shanthinathan. It is his say that at about Dr.Diwakar came to his clinic and asked him to attend an emergent operation at Anandi Clinic. He immediately went there on his motor cycle. He saw the patient who had under gone the operation, held her hand and tested her heart-beat and blood pressure. Her heart-beat was very feeble, the blood pressure could not be seen, the condition of the lady was in mariband condition. He was not in a position to give any treatment. Therefore, oxygen was given and it became useless. On behalf of the Opposite Party No.1 he was cross-examined but nothing was brought out except the allegation that he was knowing Sunder Rajan, father of the deceased. He has stated that Dr.Athilakshmi was a senior doctor and specialist in delivery cases. On behalf of the Opposite Party No.2, he was also cross-examined, but nothing has been brought out. He has denied the suggestion that he was brought by the husband of Dr.Usha Rani. In the cross-examination by the Advocate of the learned counsel for the Appellant, no suggestion was made with regard to the presence of the Appellant.
The Appellant in her examination narrated the same story. She has also mentioned that she saw the patient in mariband condition. Thereafter, within 2 or 3 minutes, Dr.Shanthinathan arrived. As nothing could be done, she left the hospital. In cross-examination she has stated that from the reply given by the Opposite Parties Nos. 1 and 2 to the legal notice, she came to know that they were blaming her. Nothing material has been pointed out that she was not present at the time of operation.
Considering the aforesaid evidence, in our view, it cannot be held that the Appellant came to the Anandi Clinic after the operation was performed either by Opposite Party No.2 or by Opposite Party No.1. It appears that the entire story narrated by the Appellant is cooked up. It is difficult to believe that either Opposite Party No.1 or No.2 would operate even though they were not entitled to carry out such operation. There is no reason to disbelieve the evidence of the Anaesthetist, Dr.Shanthinathan that he was called subsequently and he has not given any anaesthesia at the time of operation. This would show the negligence of the concerned doctors in not performing the operation without calling the Anaesthetist. Further, admittedly, the patient give delivery at the clinic of Opposite Party No.1. if Opposite Party No.1 was to perform the family planning operation, there was no necessity for her to ask the patient to go to the clinic of Opposite Party No.2. She would have performed the operation at her clinic. Therefore, the story given by the Appellant is not believable.
Secondly, it has come on record that Opposite Party No.2 was calling the Appellant for carrying out such operations. Further, there is no reason to disbelieve the Complainant’s evidence that all the three doctors were in the operation theatre during the operation.
In these set of circumstances, on merits, there is no substance in the appeal.
The State Commission has awarded compensation with interest at the rate of 18% p.a. In our view, considering the facts of the present case, we set aside the order passed by the State Commission directing the Appellant to pay the amount with interest at the rate of 18% p.a. The Appellant is, therefore, directed to pay, in all, Rs.4 lakhs, as compensation, as awarded by the State Commission, within a period of 4 weeks from the date of this order. The Appellant shall also pay Rs.20,000/- as costs to the Complainant. We reiterate that it would be open to the Complainant to withdraw the amount of Rs.1 lakh deposited by the Appellant on the basis of the order dated 25.2.1999 passed by this Commission. The appeal stands disposed of accordingly.
( M.B. SHAH)