general and spinal anes.pdf

State Consumer Disputes Redressal CommissionPhilips Thomas, S/O Y.Thomas vs Deen Hospital, Punalur on 4 February, 2013 Daily Order

Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/08/2 1. Philips Thomas Kerala 2. Aju Philiphs Thomas Rep.by his father Philiphs Thomas Kerala 3. Anju Thankam Philiphs Rep.by her father Philiphs Thomas Kerala ...........Complainant(s) Versus 1. Deen Hospital Kerala 2. Dr.R.V.Ashokan Proprietor, Deen hospital, Punalur Kerala 3. Dr.A.Balachandran Deen Hospital, Punalur Kerala 4. Dr.Vinu Balakrishnan Deen Hospital, Punalur Kerala 5. Dr.Laila Ashokan Deen Hospital, Punalur Kerala ............Opp.Party(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER

KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

CC.NO.2/2008

JUDGMENT DATED 04.02.2013

PRESENT

SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER

SMT.A.RADHA -- MEMBER

Philips Thomas, S/O Y.Thomas vs Deen Hospital, Punalur on 4 February, 2013

Indian Kanoon - http://indiankanoon.org/doc/83584959/ 1

1. Philips Thomas, S/o Y.Thomas,

Thadathivila Veedu, Mangamankala,

Vilakkudi Village, Punalur P.O 691 305

Pathanapuram Taluk,

Kollam District.

2. Aju Philiphs Thomas, -- COMPLAINANTS

Reptd. by his father Philiphs Thomas

-do -do-

3. Anju Thankam Philiphs

Reptd. by her father

Philiphs Thomas

-do- -do-

(By Adv.N.Mohanan Pillai & ors.)

Vs.

1. Deen Hospital, Punalur



Kollam District reptd. by its,

Proprietor Dr.R.V.Ashokan.

2. Dr.R.V.Ashokan, Proprietor, -- OPP.PARTIES

Deen Hospital, Punalur.

3. Dr.A.Balachandran


4. Dr.Vinu Balakrishnan,


5. Dr.Laila Ashokan,


(By Adv.K.Murlidharan Nair)

JUDGMENT

SHRI.S.CHANDRADAS NADAR,JUDICIAL MEMBER This is a complaint filed underSection 12 of the Consumer Protection Act.

2. The following are the main allegations in the complaint. The first complainant is thehusband of Mini Philips who died due to the negligence and laches that occurred during the courseof laparoscopic surgery done to her on 25.9.2006 at the Deen Hospital, Punalur. Complainants 2 &3 are the minor children of the first complainant and deceased Mini Phlips. The said hospital is thefirst opposite party and it is alleged that the second opposite party is the proprietor of the firstopposite party hospital. Opposite parties 3, 4 and 5 were working as doctors at the first oppositeparty hospital. The first opposite party had given advertisements narrating the details of treatments



available and also made propaganda regarding treatments in gynecology and laparoscopic surgeryavailable through other opposite parties. Late Mini Philips was employed as a cashier in the HooraSupermarket, Manama, Bahrain from 16.10.94 up to 24.8.06. While so she came to Kerala on26.8.06 by availing vacation. The 5th opposite party gave the impression that laparoscopicsterilization would be a minor operation and that the patient could leave the hospital within half anhour after the operation. The wife of the first complainant decided to opt laparoscopic sterilizationdue to the advice and confidence given by the 5th opposite party. Mini Philips was underconsultation with the 5th opposite party for a week time before 25.9.06. Mini Philips was aged 37years. She was admitted in the hospital of the first opposite party on 25.9.06 at 8.30 a.m forundergoing laparoscopic tubal ligation. The first complainant and close relatives of the patient andthe first complainant were present in the hospital. Even after a long time, the patient was notbrought out from the operation theatre; nor any details were conveyed to the first complainant untilevening. At about 5 p.m the first complainant and a close relative heard an Attender saying that adeath happened in the hospital but to the knowledge of the first complainant and bystanders therewas no other patient who suffered death, either in the operation theatre or in the post operativeward. There were hasty movements of the duty nurses from the theatre and post operative wardduring that time. At one time one of the sisters informed the first complainant that he should makeup his mind to face a crucial situation in response to a query made by the first complainant. Opposite parties 3 & 4 on knowing the critical stage of the patient started preparing case records distorting facts including the details regarding anaesthesia and the condition of the patient with the motive of safeguarding the interests of the opposite parties. On 25.9.06, the first complainant wasnot informed about any chest infection or bodily complaints of the deceased. When the relatives ofthe patient including the first complainant enquired about the condition of the patient they weretold that the patient had suffered serious respiratory distress. On observing that the physicalcondition of the patient had worsened very much, the first complainant and relatives were allowedto enter the operation theatre, where she was found lying unconscious. Both the eyes of the patientwere found covered with plaster tape. In the meanwhile even without obtaining the permission ofthe first complainant or his relatives, the opposite parties removed the patient in an ambulancesaying that there was no ventilator facility available in the first opposite party hospital and took thepatient to Poyanil Hospital, Punalur immediately. There after on 26.9.06 at about 11 0'clock thepatient was brought to Ananthapurai Hospital in an ambulance. She is said to have died at about5.30 p.m on 26.9.06.

3. It was quite shocking to the complainants and relatives to hear about the fate of late MiniPhilips. In fact the death might have happened in the first opposite party hospital itself. Theincident was reported to the Vanchiyoor Police Station and Crime No.229/06 was registered. Atthe request of the SI of Police post mortem examination was conducted on the body of thedeceased. The cause of death of Mini Philips is reported as combined effects of brain hypoxia andadult respiratory distress syndrome. The cause of death itself would show that general anaesthesiaand spinal anaesthesia were administered on the patient simultaneously. The injection mark on theback of the trunk as per post mortem certificate is a characteristic feature of spinal anaesthesiaadministered on the patient. It was due to the negligence on the part of the 3rd and 4th opposite



parties and the casual manner in which laparoscopic sterilization was conducted, the death of MiniPhilips happened. The operation was done under the supervision of the 5th opposite party in acasual manner. The surgery was performed without due diligence and care expected from aprofessional. Opposite parties 3 & 4 conducted the surgery without resorting to the standardprotocol for conducting a laparoscopic surgery.

4. The deceased was of sound health moderately nourished and having no bodily complaints. The pre-operative preparation, treatment, anaesthesia administered, management and care metedout to the deceased were deficient and standard care was lacking. Brain hypoxia and adultrespiratory distress syndrome happened because of the injuries caused to the spinal canal wherebydura was punctured. The 3rd opposite party was the doctor who administered anaesthesia to thepatient. Admittedly, he had given general anaesthesia to the patient prior to the operation. But thepost mortem report reveals that spinal anaesthesia was administered to the patient beforeoperation which ultimately resulted in dura puncture causing death. All the opposite parties wereengaged in the course of treatment or surgical activities. The third opposite party was not qualifiedto administer anaesthesia to patients. He was not an anaesthesiologist. The quality assurancemanual for sterilization services 2006 and the standards for female/male sterilization services2006 published by the Government of India prescribe the standard for female sterilization andqualification for anaesthesiologist and as such only anaesthesiolgists are considered as qualifiedhands to administer anaesthesia for electro laparoscopic surgery. Laparoscopic sterilization is aminor operation for which local anaesthesia only is necessary.

5. The first opposite party/hospital was not having any accreditation from the Ministry ofHealth and Family Welfare Government of India in the matter of conducting laparoscopicsterilization on females. Hence the first opposite party lacked legal competence to conductlaparoscopic surgery on females. Conducting of laparoscopic surgery when the patient was ailingfrom respiratory distress was unwarranted. The 4th and 5th opposite parties were negligent andthey miserably failed to evaluate the condition of the patient. The report of the District MedicalOfficer, Kollam dated 26.7.07 supports the view that third opposite party lacks the basicqualification in anaesthesiology. Undoubtedly general anaesthesia and spinal anaesthesia wereadministered simultaneously to the patient which ultimately caused death of Mini Philips. The thirdopposite party administered both, which ought not have been done and he is responsible for thedeath of the patient.

6. Complainants 2 & 3 are the minor children of the deceased and they lost the maternal care,love and affection from their mother for ever. The third complainant lost the opportunity of breastfeeding which can never be substituted by any other thing. The first complainant was leading a verypeaceful life with the deceased and she was very understanding and loving. He is passing his days



in great mental agony and is facing the pitiable situation of the children. As cashier of HooraSupermarket, Manama, Bahrain the deceased was drawing a consolidated monthly salary of 150 BDequivalent to 18,000/- Indian rupees. She was about to leave for Canada for better prospects. Shelost earnings by way of periodical promotion and increments. Thus the complainants havesustained loss of about Rupees1 crore. She would have obtained retirement benefits of more thanRs.20 lakhs. First complainant was also employed at Bahrain. Due to the demise of his wife, thefirst complainant had to abandon his job at Bahrain and the same is to be compensated. Firstcomplainant claims Rs.5 lakhs for the loss, pain and mental agony suffered by him. An amount ofRs.5 lakhs is claimed by the 2nd complainant towards the loss of love and affection of themother. The third complainant claims an amount of Rs.10 lakhs towards the loss of maternal care, protection and feeding. The total compensation claimed by the complainants isRs.99,40,000/-.

7. The opposite parties filed joint version. The contentions are that there was no negligence orlaches in performing laparoscopic surgery on late Mini Philips. The patient died due to a medicalaccident. The patient was provided the best possible medical care. When the crisis arose, theopposite parties had sought help and had obtained help from colleagues. The patient wasmanaged with care and was shifted to a higher centre without delay, with necessary care andattention. Everything necessary was done with the best interests of the patient, in mind. As per thehistory given the patient had an ectopic pregnancy in 2002. The 3rd and 4th opposite partieshave never worked with the first opposite party as employees. They are freelancing practitioners,whose services are availed by hospitals in the area, according to their need. However, the 5thopposite arty is an obstetrician and gynaecologist employed by the second opposite party. Noadvertisement was given by the 1st opposite party as alleged in the complaint. It is incorrect to saythat the 5th opposite party had impressed upon the 1st complainant and the patient thatlaparoscopic sterilization surgery, is a minor surgery and that the patient could leave the hospitalwithin half an hour of the operation. The patient and her husband were informed about the various modalities of sterilization including vasectomy. They agreed for an interval sterilization since theyhad completed their family and were not interested, in having children further. They opted fortubal sterilization. Before the operation, the 5th opposite party had explained in detail to thecomplainant and her husband, about the pros and cons of tubal sterilization and chances of itsfailure. The 5th opposite party had explained to the patient and her husband at that time, about thechoice of anaesthesia, risks involved in each type etc. It is incorrect to say that the patient was inconsultation with the 5th opposite party for a week before the date of operation. Before 25.9.06, thepatient consulted the 5th opposite party only on 15.1.2005.

8. It is admitted that the 2nd opposite party is the proprietor of the 1st opposite party hospital. But it is contended that 3rd opposite party has more than 25 years of experience in administeringanaesthesia, in various institutions, including Government hospitals. He has exclusively practicedanaesthesia, throughout his career. The 4th opposite party is an obstetrician and gynaecologist,



trained in laparoscopic surgery. 5th opposite party is a consultant obstetrician and gynaecologist,working in Deen Hospital, Punalur. The patient was admitted in the first opposite party hospital on25.9.06 for laparoscopic sterilization. The deceased had 2 children and the last child was born 1 years before the operation. She was a mild diabetic on oral hypoglycaemic agent. Routine bloodand urine examination was done. The patient was examined at 11.40 a.m by the 5th opposite partyand was posted for laparoscopic sterilization, to be performed by the 4th opposite party in theevening. The third opposite party conducted a thorough pre-operative evaluation of the patient byappropriate systematic examination relevant investigations were also done. No abnormality wasrevealed.

9. The case was taken up around 5.30 p.m under general anesthesia. An IV line was started inthe left upper limb. Blood pressure cuff was tied around the right upper arm. Pulse Oximeter was connected for monitoring the pulse rate and oxygen saturation. Patient was given 100% oxygen withboyle's apparatus. This was followed by Thiopentone 250 mg, in order to make the patientunconscious and Scoline 100 mg, a short acting muscle relaxant. The patient was then intubated using a 7.5 mm cuffed endotracheal tube and maintained with oxygen and nitrous oxide andvecuronium The pulse rate, blood pressure and oxygen saturation levels were serially monitored,during the procedure. Once the patient was under anaesthesia, the 4th opposite party began thesurgery. Pneumoperitoneum, was created using carbon dioxide and a good view was achieved. Theright fallopian tube showed evidence of salpingectomy, probably following the surgery, for ectopicpregnancy. The left fallopian tube and both the ovaries appeared normal. Hence the fallope ringwas applied, on the left fallopian tube. Port site was closed with 2/O vicryl. On completion ofsurgery, the 3rd opposite party reversed the patient with neostigmine 2.5 mg and atropine 1.2 mgslowly. Throat was sucked and extubated. Immediate postoperative period was uneventful. However, it was noticed that oxygen saturation started gradually coming down which could not bekept up with bag and mask. Patient was immediately re-intubated and was put on 100% oxygen andventilated. She was kept sedated with inj.Fortwin 30 mg and phenergan 25 mg. The patient wasstable and oxygen saturation was quite satisfactory on spontaneous respiration. Patient was put onspontaneous respiration for some time and being steady, extubation was done and observed. After afew minutes patient developed breathlessness and again intubation was done immediately and positive pressure ventilation was done with 100% oxygen. The patient was developing signs ofpulmonary oedema. 80 mg. of lasix was immediately administered. The 4th & 5th opposite partiespresent in the operation theatre were also assisting the 3rd opposite party in resuscitationprocedure. Since, the patient was not improving Dr.H.K.Prakash, Dr.Annie George, Dr.Rajagopal(all anaesthetists) were called in. Dr.Rajan Prasad, Dr.Vinod Varghese and Dr.K.N.Viswabharanwere also called in. Bronchodilators and corticosteroids were given and repeated at intervals. Thepulmonary oedema was so severe, that endotracheal suction was done throughout at intervals. Inspite of all efforts oxygen levels remained between 75% and 80%. The patient was continuouslymonitored, for vital signs, pulmonary oedema persisted and after a consensus it was decided to shiftthe patient to Poyanil Hospital, Punalur, for ventilator support. Poyanil hospital, is the nearesthospital to Dean Hospital, having ventilator facility. The patient was shifted from the 1st oppositeparty hospital at 9 p.m accompanied by third and 4th opposite parties with all possible care. She



was later shifted to a higher centre namely Ananthapuri Hospital, Thiruvananthapuram on26.9.06. The patient expired in the same evening.

10. The opposite parties have acted in accordance with the practice accepted as proper by aresponsible body of medical men skilled in medicine and with utmost bonafides. There was nonegligence on the part of the opposite parties in treating the patient. The patient was initially takento a pre operation room, and was shifted to operation theatre by about 5.15 pm. The surgery wascompleted by 5.30 p.m. During recovery from general anaesthesia, the patient developedbreathlessness and stridor on extubation. The patient was immediately intubated and given 100%oxygen. After a brief steady period, the patient was extubated again. Almost immediately, severebreathlessness started and features of pulmonary oedema were noticed. The immediate relativeswere taken into confidence and the husband and his father were asked to remain by the side of thepatient inside the theatre. The allegation that the 1st complainant and his relative overheard anattender saying that death happened in the hospital is false. The alleged conversation of dutysister is a figment of imagination from the first complainant. The case sheet was written in theoperation theatre and was not manipulated as alleged. The patient was not having any chestinfection. Covering the eyes of the patient was a standard procedure during general anaesthesia . This is done to protect the eye from injury. The allegation that death would have happened in the1st opposite party hospital itself is false. It is incorrect to say that general anaesthesia and spinalanaesthesia were administered on the patient simultaneously. Negative pressure pulmonary edemacausing brain hypoxia and ARDs are rare complications, but serious complication known to occurafter general anaesthesia. The patient was never administered spinal anaesthesia. Once the patientis under general anaesthesia there is no need to give spinal anaesthesia. It cannot be inferred fromthe post mortem finding that the death was due to combined effect of brain hypoxia and adultrespiratory distress syndrome and that both general anaesthesia and spinal anaesthesia wereadministered on the patient. Lumbar puncture mentioned in the post morten report could be for introducing needle in to the spinal canal for collection of cerebrospinal fluid for diagnosticpurposes and might have been done during clinical course elsewhere. The injection mark at the back of the trunk as per post mortem certificate is not inconsistent with Lumbar puncture done fordiagnostic or therapeutic purposes later in the clinical course elsewhere. In the absence of analysisof spinal fluid collected during post mortem it cannot be said that there is evidence ofadministration of spinal anaesthesia. The Lumbar puncture seen on the patient cannot beattributed to the 3rd opposite party. The 4th & 5th opposite parties are in no way responsible forany anaesthetic complication. The 3rd opposite party administered general anaesthesia withextreme care and caution. He had done pre anaesthetic check up and all requisite investigationswere done. The development of pulmonary oedema, following general anaesthesia, is one of thedreaded complications which can never be predicted. Puncturing of dura is the normal result ofany lumbar puncture and spinal canal is just a space. Puncturing of the dura during lumbarpuncture would not lead to brain hypoxia and ARDs as alleged. The presence of bleeding andinduration at the site of lumbar puncture shows that the same was sustained when the oxygentension had been low for over a period of time. Had respiratory distress set in following thealleged spinal anaesthesia the surgery could not have been completed. The allegation that the 3rd



opposite party is not qualified to give anaesthesia as mentioned in the Quality Assurance Manualfor sterilization services, is denied by the opposite parties. It is contended that 3rd opposite partyhas completed one year exclusive senior house surgeoncy in anaesthesia after MBBS and regular one year compulsory rotatory house surgeonship in Thiruvananthapuram Medical College and iscompetent to administer anaesthesia. The accreditation procedure for laparoscopic sterilizationcame into effect with quality assurance manual for sterilization services in October 2006. The sameis optional and not mandatory. The surgery on the wife of the 1st complainant was done inSeptember 2006. None of the alleged difficulties to the complainants were due to any act or omission or commission on the part of the opposite parties. The claims made by the complainantsare exaggerated and imaginary. So also the claims relating to salary, job prospects, abandonment of job by the 1st complainant etc. are in correct. The compensation claimed under different headsare exaggerated and without any basis. The 3rd and 4th opposite parties are not paid employees ofthe 1st opposite party. The complainants are not entitled to any relief and the complaint is liable tobe dismissed.

11. On the rival contentions, the following points arise for decision in this case:-

1. Whether deficiency in service is made out against all or any of the opposite parties?

2. What is the quantum of compensation if any payable to the complainants?

12. The evidence consists of the depositions of the 1st complainant as PW1 and 4 more witnesses onthe side of the complainants as PWs 2 to 5. Exts.A1 to A20 were marked on the side of thecomplainants. Opposite parties 2 to 5 gave oral evidence as RWs 1 to 4. 2 more witnesses wereexamined on the side of the opposite parties as DWs 5 & 6. Exts.B1 to B6 series were marked on theside of the opposite parties. Ext.X1 was also marked in evidence.

13. POINT NO.1 Admittedly, the second opposite party is the proprietor of the 1st opposite party,Deen Hospital, Punalur. From the evidence, it appears that the 5th opposite party is the wife of the2nd opposite party and they together run the hospital. The 5th opposite party is a obstetrician andgynaecologist. It is admitted that on 25.9.06, Smt.Mini Philips the wife of the 1st complainant andmother of complainants 2 & 3 was admitted in the 1st opposite party hospital for laparoscopic sterilization. It is also admitted that on 15.1.06, Mini Philips consulted the 5th opposite party beforebeing admitted for laparoscopic surgery. The case of the complainants is that Smt.Mini Philips wasadmitted in the 1st opposite party hospital at 8.15 a.m on 25.9.06. But the operation was performedonly at about 5 p.m. It is admitted that the 5th opposite party saw the patient by about 11.40 a.m. The patient was taken up around 5.30 p.m for operation. General anaesthesia was given to her bythe 3rd opposite party who claims to be competent to administer anaesthesia. Laparoscopicsterilization was performed by the 4th opposite party. After surgery, the 3rd opposite party gavemedicines to reverse the patient and she was extubated. There upon it was noticed that oxygen



saturation was coming down gradually. Again the patient was intubated. After some time oxygensaturation became satisfactory and again the patient was extubated. After a few minutes the patientdeveloped breathlessness and again the patient was intubated. On the same day at 9 p.m thepatient was shifted to Poyanil hospital for ventilatory support which was not available in the 1stopposite party hospital. As the condition of the patient did not improve the patient was shifted toAnanthapuri Hospital, Thiruvananthapuram on the next day and the patient died in the sameevening. According to the complainants both general anaesthesia and spinal anaesthesia wereadministered to the patient simultaneously and that resulted in the death of the patient. There are other allegations and serious contentions which would be referred to in the course of thejudgment. Before doing so, it is necessary to refer the hospital records produced in this case fromthe first opposite party hospital, Poyanil Hospital as well as Ananthapuri hospital. Ext.A15 is therecords relating to Mini Philips kept at the first opposite party hospital. It may be mentioned atonce that the complainants have a case that these records were manipulated to suit the defence ofthe opposite parties when it became clear that fault occurred on their part. As per Ext.A15, thepatient was admitted in the hospital at 11.40 am. on 25.9.06. Investigations were done as seen fromthe doctors notes. It is mentioned that laparosopic tubal ligation under general anaesthesia wasdone at 5.30 p.m. In the subsequent page without mentioning the time, it is mentioned that MiniPhilips is a known diabetic under good control with oral anti diabetic drugs. GA was induced and notes go to show that intra operative and immediate post operative period were un-eventful. Graduallly SPO2 started coming down which could not be kept up with bag and mask. The patientwas immediately intubated. The subsequent notes also re-iterate the defence version. The timesof administration of various drugs are noted. So also the blood pressure is seen noted, at intervals. The records also contain details of consultation done by the patient earlier, must be for someother purpose. The chart of the anaestheologist is not found among records. As a whole there issome force in the allegation that Ext.A15 is not a document truth fully kept by the opposite parties.

14. Ext.A16 is the patient record file kept at the Poyanil Hospital Punalur. It contains the referralletter and the note made by the Medical Officer at 8.50 p.m on 25.9.06. The provisional diagnosiswas 'acute pulmonary odema or shock'. Time of admission is noted as 10 p.m and the patient isseen discharged at 10 a.m with no improvement. She was discharged at request for furthermanagement in a higher centre. Ext.A16 also contains the notes of the anaesthesiologist of thePoyanil Hospital. It is seen that the 5th opposite party summoned his help at 9 p.m and ultimatelythe patient was shifted to the Poyanil hospital for ventilatory support. The impression of theanaesthesiologist was that the patient was suffering from acute pulmonary oedema. Details of thetreatment given at the hospital doctors sheet, CPR chart, nurses record etc. are among Ext.A16.

15. Ext.A3 is the confidential medical record kept at the Ananthapuri Hospital relating to thepatient. It is seen from Ext.A3 that the patient was brought to the Ananthapuri hospital on 26.9.06at 1.15 p.m. The patient came in cardiogenic shock with inotropic and ventilatory support. It isfurther mentioned that despite the possible medical support and resuscitating efforts patient



expired at about 5.30 p.m on the said day. When the patient was brought in the Ananthapurihospital blood pressure was not recordable radial pulse was not palpable but the femoral pulse waspalpable. The patient continued on high dose of inotropic and ventilatory support. It seems thatcontinued till the expiry of the patient.

16. So, it is pertinent to notice that when the patient was shifted to the Poyanil hospital from the 1stopposite party hospital pulmonary oedema had developed and the patient was going towards a verycritical condition. It is in the above background, the complainants allege that the cause of deathwas simultaneous administration of general anaesthesia and spinal anaesthesia. The oppositeparties deny that spinal anaesthesia was administered to the patient. So it becomes necessary to ascertain whether spinal anaesthesia was in fact administered to the patient before laparoscopicsterilization surgery. Before analyzing the evidence to decide either way it is highly relevant toconsider the post mortem certificate issued from the department of Forensic medicine, MedicalCollege, Thiruvananthapuram and the related records. Ext.A4 is the copy of the post mortemcertificate dated 27.9.06. The post mortem examination on the body of the deceased Mini Philipswas done by PW2 who was the Associate Professor and Deputy Police Surgeon Department ofForensic medicine, Medical College, Thiruvananthapuram. During the course of post mortemexamination seven antemortum injuries were noted by PW2. Injury No.1 is relied on to allege thatthere was in fact administration of spinal anaesthesia. The said injury is described thus:- "Injection mark with infiltration of blood over an area of 2.5 x 1.5 x 1cm just to the left of mid lineand 12 cm above natal cleft. The track of the injection mark was found entering the spinal canal,dura was punctured. Infiltration dark red in colour was seen in the extradural space of the spinalcanal." Viscera sample of blood and bile were collected and preserved for chemical analysis. Tissuebits were collected for histopathological examination. It is mentioned that photo copies of therelevant case records from Deen hospital, Poyanil, Hospital and Ananthapuri Hospital wereperused after autopsy. In Ext.A4 the opinion as to cause of death is reserved pending report oflaboratory investigations. Ext.A4 (a) is the certificate of chemical analysis issued from the chemicalexaminers laboratory, Thiruvananthapuram. The examined items were stomach and part ofintestine with contents, part of liver and one kidney, blood , bile and saturated sample saline. Thefinding was that no poison was detected in any of the items examined. Ext.A4 (b) is the pathologica l report i ssued from the Department of pathology, Medical Col lege ,Thiruvananthapuram relating to tissue bits collected during post mortem. Based on laboratoryreports PW2 issued Ext.A5 post mortem certificate. It contains the final opinion as to cause ofdeath of mini Philips. As per Ext.A5, the death of Mini Philips was due to combined effects of brainhypoxia and adult respiratory distress syndrome.

17. Brain hypoxia and adult respiratory syndrome are end results and the allegation in thecomplaint is that simultaneous administration of spinal anaesthesia and general anaesthesiatriggered the crisis leading ultimately to brain hypoxia and adult respiratory system. It is admittedin the version that some crisis arose immediately after the completion of laparoscopic sterilization



surgery. According to the opposite parties negative pressure pulmonary oedema leading to brainhypoxia and ARDS is a known but serious complication of general anaesthesia. But it appearsfrom the version and the records produced that when the complications arose 3 anaesthesiologists,one obstetricion a surgeon and a physician were summoned from nearby hospitals to review thesituation. There was attempt to resuscitate the patient and as the patient was not improving shewas referred to a higher centre having ventilator support facility. It is contended that developmentof pulmonary oedema following general anaesthesia is one of the dreaded complications that cannever be predicted. It is further contended that the 4th and 5th opposite parties are in no wayresponsible for any anaesthetic complication. It is also contended that what happened in this casewas a medical accident beyond the control of the opposite parties. In fact the learned counsel for theopposite parties meticulously argued each and every point raised in the version. Beforeconsidering his arguments it is fruitful to refer the expert evidence available in this case to see whatexactly were the complications that ultimately led to brain hypoxia and ARDS.

18. PW2 was the Professor and Head of Department of Forensic Medicine Medical College,Kottayam at the time of examination. While she was serving in the Medical College Hospital,Thiruvananthapuram, she conducted the post mortem examination on the body of Mini Philips. Her opinion is that injury No.1 referred to earlier could have happened within 24 hours of the deathof the person. She explained that the injection could have been before death but within 24 hours. The injury found on the right side of the neck according to PW2 could be inflicted at the time ofhandling the patient by coming into contact with some hard or rough surface or object. This injuryis projected to argue that the patient was in fact handled so carelessly but that injury has no connection with the subsequent complications. She was of the opinion that needle puncture markcould have resulted from a puncture for investigation purpose. She explained that as a forensicexpert she could not distinguish one from the other. She further explained that she did not collectcerebro spinal fluid during the post mortem examination because it was difficult to get clear CSFsample during autopsy. The brain of the deceased was oedematous and that would also reduce theamount of CSF in the brain. She further explained that there are situations when antibiotics andpain killers are administered through spinal canal. But those are rare special situations. Thepatient had no meningitis to administer drugs through the spinal canal. Further injury Nos.2 & 3suggested that intra peritoneal operation was performed on the patient within 24 hours of the death. Hence she could infer the injection mark described as injury no.1, as one that had beenadministered by way of spinal anaesthesia. According to PW2, clear CSF would give a better result ifanalyzed for the presence of the drugs administered for anaesthesia. She is not an authority to sayabout the half life of the drug that is given for spinal anaesthesia or whether a chemical examinerwould be in a position to detect a small quantityof the drug after 24 hours of the death of thepatient. According to PW2 infiltration of blood noted in relation to injury No.1 might have beencaused by rupture of blood vessels on its way. The suggestion was that the infiltration of bloodwas on account of increased permeability when the injection was given. But PW2 insisted thatinfiltration was due to injury to blood vessel and not due to increased permeability. If infiltration ofblood was due to increased permeability it cannot be a localized one but a generalized one. Sheadmitted that brain hypoxia could cause increased permeability. PW2 also opined that brain



hypoxia could occur due to spinal anaesthesia and in continuation ARDs also can be developed. Cardiac arrest, head ache and meningitis are the common complications of spinal anaesthesia.

19. As against this evidence, the opposite parties examined RWs 5 & 6, two experts in support oftheir case. RW5 holds MBBS degree with post graduate diploma in anaesthesia. According to him,the Anesthesiologist is responsible for ensuring that the patient undergoing surgery gets adequate oxygen intake. According to him, if there is prolonged hypoxia or lack of oxygen then there will bebleeding from any injury. After going through Ext.P4 post mortem report he opined that it wasunlikely that injuries 1,2 & 3 described in Ext.A4 had happened at the same time as there was morebleeding in the first injury and no bleeding in the second injury. It also indicated that the patientwas having bleeding tendency. According to him an Anesthesiologist would not permit operation, ifthere was adverse reaction on administration of anaesthesia till it is rectified. According to him, fallof blood pressure can cause cardiac arrest which can lead to brain hypoxia. There must becardiac arrest prior to brain hypoxia. Injury No.1 need not necessarily be a spinal anaesthesiainjury, it could also be for examining spinal fluid. He could not rule out that spinal anaesthesiawould have been administered. According to him laparoscopic sterilization surgery can be done onthe spinal anaesthesia. When asked whether administration of spinal anaesthesia and generalanaesthesia simultaneously can lead to a tragic event he took time to answer and answered in thenegative.

20. RW6 is the retired Principal, Medical College, Thrissur. He was actually involved in thedepartment of Forensic Medicine and was the Professor, Forensic Medicine and Police Surgeon under the Government of Kerala. According to him, it is not possible to conclude that injury No.1 inExt.A4 was due to administration of spinal anaesthesia for 2 reasons. Firstly the chemicalexamination report does not reveal any poison or drug and secondly because the injection mark isidentical with one caused by lumbar puncture for diagnostic purposes. Normally in injectionmark, there will be no infiltration of blood in the surrounding tissues as no injury to any majorblood vessel will be caused. The reason for infiltration blood with respect of injury No.1 could bebecause the deceased was in a state of hypoxia during the period preceding death. Any injuryinflicted during such state is very likely to result in extra vasation of blood into the tissues. According to him in the post mortem certificate infiltration and petechiae (blood spots) are noted inseveral places and the same is unmistakable evidence of hypoxia. It cannot be precisely said howlong it would take to develop hypoxia.

21. He mentioned four common causes for ARDS. The third one was aspiration of stomach contentsinto the respiratory tracts. This is one of the possibilities to be taken into account when consideringthe cause of ARDS. As to the question whether there was connection between head low position andARDS, RW6 answered in the affirmative and added that in the head low position, the gastric



contents will be aspirated first to the throat area and thereafter down the air passage and the acidcontained in the stomach juices will injure the capillary blood vessels of the lungs and start theprocess of ARDS. Head low position can facilitate ARDS faster than in the other postures. According to him there can be silent aspiration. In such cases clinical symptoms will developbelatedly after the damage is done. This phenomenon is not reasonably foreseeable. According tohim, it is essential to collect CSF sample for analysis in suspected case of death associated withspinal anaesthesia. Staining of blood will not materially affect the test result. Assuming that it isdifficult to get CSF sample from the injection site, it can be taken from any other standard site andone is at the back of the neck called cisternal puncture.

22. As mentioned already the consistent stand taken by the opposite parties is that spinalanaesthesia was never administered in the hospital of the first opposite party lumbar puncture couldhave been made for diagnostic or therapeutic purposes while in some other hospital. In support oftheir arguments infiltration of blood around injury number one mentioned in Ext.A4 post mortemcertificate is relied on. On this aspect the evidence given by PW 2 and RWs 5 & 6 is alreadyreferred to. Opposite parties 2 to 5 as RWs 1 to 4 re-iterated their version in this regard. One of themain arguments carefully advanced by the learned counsel who appeared for the opposite partieswas also that infiltration of blood as regards injury No.1 and absence of infiltration of blood inrespect of other injuries clearly indicate that the injuries were inflicted at different points of time. Further extravasation of blood happens when there is hypoxia for a prolonged period. On thisaspect also we have referred to the expert evidence available. Anaesthesia at the District Hospital,Second edition, written by Michael B. Dobson is relied on to point out that in order to collect cerebrospinal fluid the needle should enter the dura of the spinal cord and because the dura ispunctured no harm would be done to the patient (see page 101). Current Methods of AutopsyPractice Second Edition written by Jurger Ludwig M.D is relied on to argue that there are manypossible causes of anaesthesia associated death which are not drug related such as acute air wayobstruction by external compression, aspiration tumor, or an inflammatory process. Some of thecomplications are characteristically linked to specific phase of anaesthesia and many cannot beproved marphologically. The same book is relied on to argue that if the anaesthetic agent had beeninjected into or near the spinal canal, spinal fluid should be withdrawn from the injection site, preferably from the sub occipilal cisterna. If the anaesthetic agent was injected locally, tissueshould be excised around the needle puncture marks at a radius of 2 to 4 cm. serial post mortemanalysis of specimens may permit extrapolation to tissue concentration at the time of death. Soalso pathologic Basis of Disease written by Robins 6th edition is relied on to point out that aspiration of gastric contents can cause ARDS including septic shock (vide page 701). In'pathology' written by Alen Stevens and James Lowe second edition several conditions causingARDs are given. Pulmonary aspiration of Gastric contents is one of them.

23. So the two immediate questions that suggest itself are firstly whether there is evidence to showthat ARDS developed as a result of aspiration of Gastric contents into lungs and secondly whether



spinal anaesthesia was administered and whether erroneous procedure in administering spinalanaesthesia can lead to hypoxia and consequently ARDS.

24. Coming to the first question it may be mentioned that the expert evidence is already referred to. It is true that aspiration of gastric contents into lungs during the laparoscopic procedure can lead toARDS but that is only one of the possibilities and the question is whether actually such an eventhappened in this case. In this connection, it is relevant to notice that tissue bits of lungs collectedduring post mortem examination were subjected to histo pathological analysis. Ext.A4 (b) histopathological report does not reveal that any particle from gastric contents had entered the lungs. Ext.A4 certificate of chemical analysis is also relevant. Chemical analysis showed that stomach andintestinal parts were neutral, whereas the bile was alkaline. It is relevant to notice that thegastric contents were nutral. Ext.A4 post mortem certificate shows that the stomach of thedeceased contained blackish fluid with few unidentifiable particles having no unusual smell. So, byand large the stomach was empty. So the evidence indicates that the patient was prepared well pre-operatively and there is no evidence of aspiration of stomach contents into the lungs. In thiscontext the evidence of RW6 is relevant. His evidence shows that aspiration of gastric contentsbecomes more probable in head low position. In fact head low position can facilitate ARDS faster than in other postures. But in the case of silent aspiration (micro aspiration) the clinical symptomswould develop belatedly and after the damage is done. In this case medical records show that aftersurgery, the symptoms of pulmonary oedema developed rapidly and there is no indication as to aspiration of gastric contents into lungs. But if as a matter of fact head low position was achievedwhich appears to be a convenient posture to perform laparoscopic surgery there is yet anotherpossibility. That possibility is associated with the question whether spinal anaesthesia was in factadministered and this leads to the second question mentioned earlier. In this regard the evidencefurnished by Ext.A4 post mortem certificate and PW2 are already referred to. RWs 5 & 6 wereexamined to contradict the evidence of PW2. But their evidence as such does not rule out thepossibility of spinal anaesthesia having been administered to the deceased.

25. As seen already one of the main arguments to contradict the case of the complainants that spinalanaesthesia was administered is infiltration of blood surrounding the needle mark described asinjury No.1 and the absence of infiltration of blood in respect of the tissue surrounding the otherinjuries. It is true that surrounding injury No.2 in Ext.A4 which is obviously a surgical wound noinfiltration of blood is mentioned. The third injury was also inflicted as part of the surgicalprocedure. Surrounding that surgical incision no infiltration of blood is mentioned. But it ismentioned along with that injury that loops of intestine showed small infiltration at places. Twofallope rings were noted in the left fallopian tube with infiltration of blood around the inner end 2.7cms distal to uterine end. A portion of fallopian tube of length 1.8 cm was found partially cut withminimal infiltration in the inner end of the piece and was 2.5 cm distal to the uterine end. Broadligament on the leftside showed infiltration over an area of 1.5 x 1 x 0.5 cm and in right utero-sacralligament over an area of 1.5 x 1.5 x0.3 cms. So, it is quite clear that extravasation of blood took



place in other places also. This aspect shows that the needle mark described as injury No.1 was infact inflicted around the time of surgical procedure. A surgical wound would be cleaned up beforesuturing the wound and that might explain the absence of infiltration of blood around surgicalwounds. In fact RW6 has explained that when infiltration happens due to fracture of major bloodvessels, it would be localized and if due to hypoxia or negative pulmonary pressure infiltrationhappens that would be generalized. Secondly if as a matter of fact the spinal injury was inflicted fordrawing CSF for diagnostic or therapeutic purposes there would be indication from thecircumstances and medical records. The records already referred to, show that the patient wasbrought to the Poyanil Hospital with symptoms of pulmonary oedema in a critical condition afterthe expiry of precious few hours. In fact before shifting the patient for ventilatory support to thePoyanill Hospital at least six expert doctors were summoned to the 1st opposite party hospital in anattempt to save the patient. So, there was very little chance of drawing cerebro spinal fluid fordiagnostic or therapeutic purposes. The evidence of RW6 shows that only in certain specific illnessmedicines would be injected in to the cerebro spinal fluid. Scope of drawing CSF for diagnosticpurposes is also very limited. Apparently no such circumstance existed in the case of thedeceased. So the reasonable possibility was that the needle mark was for the purpose ofadministration of spinal anaesthesia.

26. In fact the report of the apex body constituted to enquire into the death of Mini Philips markedin evidence as Ext.X1 supports the above conclusion. The apex body assessed that the spinalpuncture might have been done at Deen Hospital, Punalur to give spinal anaesthesia and then converted into general anaesthesia due to some pre-operative complications. The learned counselfor opposite parties urged that merely because the records kept by the Poyanil Hospital andAnanthapuri Hospital do not show that spinal puncture was not made there, it is erroneous toconclude that the needle puncture was made at the hospital of the 2nd opposite party. But that thespinal puncture was made at the 1st opposite party hospital is the reasonable possibility under thecircumstances explained earlier. The expert apex body also pointed out that spinal anaesthesia isnot ideal for laparoscopic sterilization because of steep head down position and carbon dioxideinsufflations during laparoscopic procedure. This conclusion is in a way supported by the evidenceof RW6 also. It is also pertinent to notice that the injection mark was just to the left of mid line and12 cms above the natal cleft. In a laparoscopic sterilization operation in order to achieve the desiredresult of anaesthesia, the drug must be administered at or around the point mentioned above andthis has its own risk and that appears to have been the cause of all complications.

27. So analyzing the evidence on this aspect it appears that development of pulmonary oedema andARDS as a result of aspiration of stomach contents into lungs can be fairly ruled out. It is also areasonable conclusion that spinal anaesthesia was administered to the patient. It is admitted thatgeneral anaesthesia was administered to her. Simultaneous administration of spinal anaesthesiaand general anaesthesia might not perse lead to any complication and there is no evidence to thateffect. But complication can occur in the steep head low position. Anaesthetic drug administered



into spinal canal would in that position move down to the brain stem which can instantaneously cause total spinal shut down. In that case all the functions in the body would be affected. It ispertinent to notice that the case of the opposite parties is that once surgery was completed and thepatient was extubated her oxygen saturation started to come down gradually which could not bekept up with bag and mask. From the contentions and the evidence available it is quite clear thatthe condition of the patient rapidly deteriorated there after. This could have happened only becauseof total spinal shut down. Once that happened IV fluid was supplied to maintain the requisite bloodpressure. That itself can lead to pulmonary oedema. It is pertinent to notice that the case of theopposite parties is that ARDS might have developed as a result of negative pulmonary pressure. It isalso pertinent to notice that the patient was brought to Poyanil Hospital as well as Ananthapurihospital with ionotropic support. As mentioned earlier hypoxia and ARDS as causes of death areonly end results and the evidence as a whole shows that brain hypoxia and ARDS resulted due tothe erroneous administration of spinal anaesthsia and when the patient was brought to steep headlow position to facilitate laparoscopic surgery. Had general anaesthesia alone was administeredsuch a complication would have never happened. This being the situation the fact that CSF fluidwas not collected for analysis to show that anaesthetic drug was administered by spinal puncturemakes no difference.

28. Coming to the other allegations on which deficiency is sought to be imputed on the oppositeparties it is urged that pre-operative preparations were not properly done and in fact the patientwas handled roughly while inside the operation room. In order to project the latter argument, theinjury sustained at the neck of the patient is referred to. It appears that the patient was admitted inthe hospital at 8.15 am. The 5th opposite party saw the patient at 11.40 am. The pre-operativepreparations were apparently started thereafter. The operation was performed around 5.30 p.m. Opposite party No.3 was the anaesthesiologist and opposite party No.4 performed the laparoscopicsterilization surgery. We may at this stage refer to the conclusion of the apex body in Ext.X1 reportthat pre-operative assessment for selecting the patient for an elective surgical procedure was notdone properly. The apex body found that the patient should have had a pre-operative evaluation ofcardiac status especially being diabetic. Pre-operative work up including pre-anaesthesia work upwas not done properly. There is no evidence to show that cardiac failure in the course of surgerywas the cause of the complications. On the contrary the cardiac shock developed as a result of theother complications referred to. But it appears that the stomach of the patient was by and largeempty and so she was properly instructed about the pre requisites of surgical procedure. It is truethat the patient was hastily prepared for the surgery after she was examined by the 5th oppositeparty at 11.40 am. It also appears that in the event of a reasonably foreseeable complication, no facility was available in the hospital for meeting such eventuality. That is why once complicationsarose she could not be provided ventilatory support and for ventilatory support she had to beshifted to Poyanil hospital.



29. The complainants have also got a contention that opposite party No.3 was not qualified to be anAnaesthesiologist. Though a general contention is taken that opposite parties 4 & 5 were also notqualified it is quite clear that they had the requisite qualifications. Regarding opposite party No.3, admittedly, he has MBBS degree in Modern Medicine. The contention is that he does not holdeither degree or diploma in anaesthesiology. In order to support this contention Exts. A6 and A7are relied on. Ext.A6 is issued by the Travancore Cochin Medical Councils, Thiruvananthapuram. It is mentioned that the third opposite party is a holder of MBBS degree only as per the list maintained by Travancore Cochin Medical Councils, Thiruvananthapuram. The said informationwas collected under the Right to Information Act. As to the second query raised under the Right to Information Act, it is mentioned that as per minutes of the meeting of the disciplinarycommittee of Modern Medicine held on 30.6.07 an Anaesthesiologist is any person who is having basic qualification of MBBS and having diploma or degree in Anaesthesiology ie. MBBS +DA/MD/DPNB/MNAMS in anaesthesia. Ext.A7 is issued by the Medical Council of India in answerto an application under RTI Act 2005. It is mentioned that a graduate of MBBS is required tocomplete MD degree in the specialty of anaesthesia or diploma in the specialty of anaesthesia forbeing qualified as anaesthesiologist. On the contrary, the opposite parties relied on Exts.B1 to B5. Ext.B1 is a certificate issued from the Medical College, Thiruvananthapuram signed by thePrincipal. Ext.B1 certifies that the third opposite party had been working as a Resident SeniorHouse surgeon in the Department of Anaesthesiology from 31st October1979 for a period of oneyear. Ext.B2 is another certificate issued by the Professor of Anaesthesia, Medical College,Thiruvananthapuram. It certifies that the third opposite party worked as a Senior House Surgeonfrom 31.10.1979 for a period of one year and during the period he worked in all the branches ofanaesthesia and picked up Clinical Anaesthesia quite well. He has proved himself reliable and canmanage cases independently and confidently. Ext.B3 is another certificate issued by the AssociateProfessor, Department of Anaesthesiology, Medical College, Thiruvananthapuram which certifiesthat the 3rd opposite party had worked in that department as Resident Senior House Surgeon from31.10.1979 to 30.10.1980. During the period he had intensive training in all the routine and specialtechniques in Anaesthesiology. He had training in all the specialities including Thoracic Surgery,Neuro Surgery, Orthopaedics, Obstetrics and Gynaecology and Paediatrics. He had taken part inall the academic activities in the department and has a sound knowledge of the subject He used totake emergency duties and can manage any problem independently. He had also worked in theIntensive Care Unit in the Department. He was very popular among the patients and collegues andhad a perfect temperament to work in a team. Ext.B5 is a certificate issued by the Superintendentof Government Hospital, Pulalur. It is mentioned that the 3rd opposite party had administeredanaesthesia for cases posted for surgery from 2.8.05 to 11.2006. During that period he hadhandled all varieties of cases in General Surgery, Orthopaedics and Gynaec and obstetrics. Ext.B4is the copy of the certificate of registration in Modern Medicine issued by the Travancore Cochin Medical Councils. It shows that he holds MBBS degree in modern medicine issued by the Kerala University.

30. The opposite parties also relied on the letter dated 22.2.08 written by the Medical Council ofIndia to the Registrar of Travancore Cochin Medical Councils, informing that apart from the



recognized degree and diploma holders in anaesthesia only those doctors who have been giventraining by an order of Government in administering anaesthesia from time to time are eligible toadminister anaesthesia. The opposite parties also relied on Anaesthesia at the District Hospitalwritten by Michael B. Dobson Second Edition page 1 to point out that in small hospitals a specialistanesthetist will not be available, and anaesthesia will be the responsibility of a medical officer withone or two years of postgraduate training, who will need to provide anaesthesia not only for routineelective surgery but also for emergency surgery requiring more major procedures, when a lifethreatening condition prevents referral of the patient to a larger hospital. Together with thesedocuments the circumstance that the 3rd opposite party was working as an anaesthesiologist for apretty long time in various hospitals is relied on to contend that the third opposite party wasqualified to administer anaesthesia. Ext.A18 (a) report furnished by the District Medical Officer ofHealth, Kollam also mentions the fact that the 3rd opposite party had produced the certificate forhaving undergone residency in senior House Surgency for one year at the Department ofAnaesthesiology at Medical College, Thiruvananthapuram. It is also mentioned that as per theQuality Assurance manual for sterilization published by the Govt. of India 2006 onlyanaesthesiologists are considered qualified to administer anaesthesia for electro laparoscopicsurgeries. Ext.A10 is the copy of the Quality Assurance Manual for sterilization Service prescribedby the Ministry of Health and Family Welfare, Government of India in October 2006. Ext.A11 isthe copy of standards for female and male sterilization services published by the Government ofIndia The contention of the opposite parties is that Exts.A10 and A11 were issued after the allegedincident. But Exts.A10 and A11 themselves show that the said contention is not correct. It ismentioned that the 1st Edition of Exts.A10 and A11 were published in 1989. As regards Ext.A11 itis the 5th Edition and as regards Ext.A10 it is the 2nd Edition. So it cannot be contended thatExts.A10 and A11 were not in existence at the time of the incident. Thus it is in evidence that the 3rdopposite party holds MBBS degree in Modern medicine and had worked as a Resident Senior HouseSurgeon in the department of Anaesthesiology Medical College, Thiruvananthapuram for one year. On that basis he might have been working as Anaesthesiologist but his competence remainsdoubtful.

31. The complainants have also got the contention that the 1st opposite party hospital did not haveaccreditation to perform laparoscopic sterilization surgery. Ext.A8 issued by the Under Secretary tothe State Public Information Officer(PW5) under the RTI Act shows that either on the date ofapplication on 6.9.07 or before Deen Hospital, Punalur (1st opposite party) had no accreditationfrom the Ministry of Health and Welfare Government of India for performing laparoscopicsterilization surgery. Ext.A9 shows that the claim for compensation submitted by the 1stcomplainant was rejected on the ground that the 1st opposite party hospital had no accreditation toperform laparoscopic sterilization surgery. The 2nd opposite party as RW1 has admitted that as on29.9.06 no permission or accreditation was given to his hospital for laparoscopic sterilization. Butthe contention is that accreditation is not mandatory to perform laparoscopic sterilization, but itremains as a fact that because the hospital lacked accreditation, the complainants lost thecompensation usually allowed to the relatives of the patients who die during laparoscopicsterilization.



32. The complainants have also a contention that 1st opposite party hospital was not sufficientlyequipped to perform laparoscopic surgeries. The opposite parties contended that opposite parties 3& 4 are freelancing medical practitioners. Opposite party NO.4 is a qualified laparoscopic surgeonand he is having all equipments. Once laparoscopic surgery is to be performed he arrives in thehospital with all equipments and then the 1st opposite party hospital becomes fully equipped. While this argument can be accepted to a limited extent, the case of Mini Philips itself shows that incase of serious complication the hospital of the 1st opposite party lacked the facility to meet all theeventualities and the opposite parties went ahead with the operation at their own risk. Complainants have also a case that the guidelines prescribed in Ext.A11 were not followed inperforming the surgery. As regards anaesthesia, it is mentioned at Page 7 of Ext.A11 that localanaesthesia is preferred choice for a tubectomy operation. General anaesthesia is to be givenrarely. However in the case of a non co-operative patient, in case of excessive obesity and in caseof history of allergy to local anaesthetic drugs general anaesthesia can be administered. Asmentioned already the case of the complainants in this case is that both spinal anaesthesia andgeneral anaesthesia were administered simultaneously which ultimately led to all the complicationsand this aspect is already discussed in detail.

33. The contention that the patient had the history of ectopic pregnancy has little relevance in thiscase. The complainants have also a case that when the relatives were let in after developingcomplications the eyes of the patient were seen covered with plaster. In this regard the oppositeparties have contended that that was done to prevent injury to eye and it is a standard procedure. But it appears that it was a crude procedure adopted by the opposite parties. Lately eye pads areused to cover the eyes of the patient who is being subjected to surgery and the reason is different. But, it is an insignificant aspect. So also it may not be desirable to allow unlimited entry to therelatives of the patient while the patient is in the operation theatre. The complainants have reliedon Asha Devi Vs. Sanjay Lal Das (DR) & Anr. 111 (2011) CPJ 73 (NC) decided by the NationalConsumer Dispute Redressal Commission. It was found there that due precautions were not takenwhile administering anaesthesia. The situation is slightly different in this case and are alreadyreferred to in detail. In BRS Heart Institute and Research Centre Vs. Kuljith Kaur III (2011) CPJ 78(NC) decided by the National Commission, it was found that post operative investigation andmanagement could have been better. Hence liability was fixed on the third opposite party there.

34. The cause of death of Mini Philips as a result of laparoscopic sterilization surgery is alreadyanalyzed in detail. It is found that in fact spinal anaesthesia as well as general anaesthesia wereadministered to the patient and administration of spinal anaesthesia and some error while handlingthe patient ultimately caused spinal shut down and as a consequence the other complicationsdeveloped. It appears that the 3rd opposite party was not fully qualified to handle an unexpecteddevelopment. The very fact that at least 3 anaesthesiologists had to be called in to contain the



situation bears ample testimony to that fact. It also appears that the opposite parties failed torealize the gravity of the situation immediately. That was why there was delay in giving ventilatorysupport by shifting the patient to the nearby hospital having ventilatory support. Before shiftingthe patient from the first opposite party hospital nearly 4 hours elapsed and by the time the patientbecame critical beyond recovery. In fact RW4 could not say whether the patient had sustainedbrain death at the time when she was shifted the Poyanil Hospital. Then the question suggestsitself which of the opposite parties are liable. It appears that the 4th and 5th opposite parties arerespectively qualified surgeon and gynaecologist. The 4th opposite party was also qualified inperforming laparoscopic surgery. It appears that the 4th opposite party with the assistance of the5th opposite party had completed laparoscopic surgery without any cause of complaint. Thecomplication was by and large anaesthesia related. So the 3rd opposite party cannot escape theliability. Opposite parties 1 & 2 have the contention that opposite parties 3 & 4 are not their employees. But it is a fact that the surgery was performed at the 1st opposite party hospitalmanaged by the 2nd opposite party as proprietor without full facility to handle emergent eventualities. It also appears that the 5th opposite party is the wife of the 2nd opposite party andthey together are running the hospital. So it is obvious that opposite parties 3 & 4 associated withthe hospital whenever their service was required. So opposite parties 1 & 2 cannot escape bycontending that opposite parties 3 & 4 are only freelancing medical practitioners. Nor it can becontended that what happened was a medical accident. There is no element of unexpected event inthe whole incident. It is true that the standard of care expected from the opposite parties is not thatof the highest or the lowest but of reasonable standard of a medical expert. The circumstances as awhole show that service of an anesthesiologist of reasonable standard was not provided to thepatient. It follows that opposite parties 1 to 3 are liable to compensate the complainants for thedeficiency in service on their part.

35. POINT NO.2 Coming to the quantum of compensation payable to the complainants it appearsthat the deceased was employed as a cashier of Hoora Super Market, Manama Bahrain. PW1, the 1stcomplainant was the husband. He deposed that Mini Philips held computer diploma in softwareapplication. She was employed for a consolidated monthly salary of 150 BD equivalent to IndianRs.18,000/-. The opposite parties contended that as per Ext.A1 passport Mini Philips was notauthorized to take up foreign employment. Ext.A20 is the passport first issued to her. It appearsthat Mini Philips was abroad for quite a long time and it is most likely on employment as claimed bythe complainants. But being a foreign private employment no security of job was attached to it. The relative cost of livelihood would also be high in a foreign country. So, the loss sustained by thecomplainants cannot be exactly quantified. Considering her qualifications, the relative salary thatwould be obtained in India would be less. Along with this several other contingencies will have to be taken into account. She was aged 37 years at the time of death and complainants 2 and 3 aretender children. In fact it appears that they are the most likely sufferers. It has come out inevidence that within one year after the death of Mini Philips the first complainant got re-married. This may add only to the sufferings of the children. The circumstances as a whole show that theclaim of Rs.99,40,000/- by the complainants is highly exaggerated. Considering the circumstancesas a whole we feel that Rs.7 lakhs would be reasonable compensation for the complainants.



36. In the result, the complaint is allowed as follows:-

Opposite parties 1 to 3 are directed to pay jointly and severely compensation of Rs.7 lakhs (sevenlakhs) to the complainants within 2 months from the date of receipt of copy of this order, failingwhich the amount would carry interest at the rate of 9% per annum. They shall also pay cost ofRs.10,000/- to the complainants. Opposite parties 4 & 5 are exonerated from the liability. It ismade clear that the major share of compensation should go to minor complainants 2 & 3. The 1stcomplainant shall deposit Rs.3 lakhs each in the names of complainants 2 & 3 and expend theamount and interest only for their welfare such as education. In case, on attaining majority, complainants 2 & 3 approach the Commission the 1st complainant shall be bound to account theshare of compensation of minors 2 & 3.

K.CHANDRADAS NADAR -- JUDICIAL MEMBER A.RADHA -- MEMBER SL APPENDIX EXHIBITS FOR THE COMPLAINANT SIDE Ext.A1 : Original passport of Mini Philips dated 11.7.2000 Ext.A2 : Salary certificate of Mini Philipsdated 29.10.07.

Ext.A3 : Certified copy of in-patient recorded in Ananthapuri Hospital,Thiruvananthapuram dated 26.9.06 Ext.A4 : Copy of post mortem certificate dated 27.9.06 Ext.A(a) : Photocopy of clinical analysis certificate dated 27.9.06 Ext.A5 : Postmortem certificate dated 19.3.07 Ext.A6 : Letter received from the public InformationOfficer Travancore-Cochin, Medical Counsel, Trivandrum Dated7.10.08 Ext.A7 : Letter issued by the Medical Counsel of India in Answer to an applicationunder RTI Act 2005 dated 1.9.08 Ext.A8 : Letter received from the State PublicInformation Officer,(F.W), Trivandrum dated 10.1.08 Ext.A9 : Letterissued by the State Public Information Officer (H) & Family Welfare Department dated 30.1.08 Ext.A10 : Quality Assurance Manuel for sterilization services issued by the Research studies.

Ext.A11 : Standard for female and male sterilization service issued by the Researchstudies &standard division.



Ext.A12 : Certified copy of FIR.229/06 of Vanchiyoor Police Station, Trivandrum dated26.9.06.

Ext.A13 : Certified copy of inquest report of Vanchiyoor Police Station, Trivandrum dated27.9.06.

Ext.A14 : Certified copy of FIR No.590/06 of Punalur Police Station dated 28.9.06.

Ext.A15 : Certified copy of the case sheet of Deen Hospital, Punalur.

Ext.A16 : Certified copy of case sheet by Poyanil Hospital, Punalur.

Ext.A17 : Certified copy of final report submitted before Judicial First Class Magistrate CourtIII dated 5.10.07 Ext.A18 : Final report of Kerala Police, Punalur Police Station dated22.8.08.

Ext.A18 (a) Report of the Dist.Medical Officer of health, Kollam.

Ext.A19 : Extract Minutes of the meeting of the reconstituted Disciplinarycommittee of Modern Medicine dated 30.6.07.

Ext.A20 : Passport of Mini Mathew.

EXHIBITS OF THE OPPOSITE PARTIES Ext.B1 : Certificate issued by the PrincipalM.C.H.



Trivandrum in favour of Dr.S.Balachandran. dated 31.10.80.

Ext.B2 : Certificate issued by the Professor of Anaestheia, M.C.H Thiruvananthapuramdated 31.10.80.

Ext.B3 : Certificate issued by Professor M.V.Mahadean, Associate Professor, Department ofAnaesthesiology , MCH, Thiruvananthapuram dated 1.11.80.

Ext.B4 : Registration certificate No.10045 issued by the Registrar, Travancore-Cochincouncil of modern Medicine dated 7.1.11.

Ext.B5 : Certificate issued by Dr.Joseph, Forensic Superintendent, Govt.Hospital, Punalurdated 28.11.07.

Ext.B6 : Letter of Public Information Officer along with the copy of the report dated13.12.10.

WITNESS FOR THE COMPLAINANT PW1 : Philips Thomas PW2 : Dr.K.Sasikala.

PW3 : Dr.Sreekumari PW4 : C.K.Padmakumaran PW5 : P.M.Thomas WITNESS FORTHE OPPOSITE PARTIES RW1 : Dr.R.V.Asokan RW2 : Dr.Balachandran RW3: Dr.Vinu Balakrishnan RW4: Dr.Lila Asokan RW5: Dr.VenugopalRW6: Dr.Kanthaswamy Court Exhibits X1 : Report of the Apex meeting inconnection with the death of Mini Philips dated 3.8.2010.

K.CHANDRADAS NADAR -- JUDICIAL MEMBER A.RADHA -- MEMBER SL [HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER




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