G RAJAVATHANI Vs. B KRISHNA RAU

JUDGEMENT

(1.) THE complainant s case is as follows : The complainant s husband Gunasekaran was admitted in the Hospital of the 1st opposite party on 30.8.1995. The complainant paid a sum of Rs. 4,150 towards consultation and scopy charges. The complainant was asked to pay a sum of Rs. 1,87,500 as advance to meet the cost of further treatment. It was informed that the complainant s husband was suffering from jaundice and, therefore, he had to be operated upon. Accordingly he was operated upon by the 1st opposite party on 5.9.1995. Again, another operation was done on 8.9.1995. A third operation wad done on 29.9.1995. The complainant s husband died on 2.10.1995. There was imperfection, inadequacy in quality, nature and manner of performance. The complainant s husband died due to deficiency in service. Something went wrong with the operation on 5.9.1995 and, therefore, the second operation had to be performed on 8.9.1995. At the time of the second operation, the 1st opposite party was not available and he had gone to Calcutta. Due to the sheer negligence on the part of the opposite parties in treating the complainant s husband he died. Proper case was not taken. Therefore, the complaint is laid claiming compensation in a sum of Rs. 9 lakhs on the ground that there was deficiency in service on the part of the opposite parties in treating the complainant s husband.

(2.) IN the version filed by the opposite parties, it is contended as follows : The 2nd opposite party is a well -equipped hospital with specialized medical facilities. The complainant s husband was first seen by the 1st opposite party on 8.8.1995 at 11.40 a.m. It was at that time diagnosed that he was affected with jaundice which was about 2 months old. The complainant s husband was also proven to have cancer of the head of the pancreas and also was Hepatitis B +ve. The 1st opposite party explained the consequences and suggested surgery which is the internationally accepted mode of treatment for cancer head of the pancreas. The surgery was performed on 5.9.1995 after following the procedure for a major surgery. In spite of the best treatment given to the patient, he developed complication which was the expected risk in this kind of surgery. The patient died on 2.10.1995 after the third surgery was performed. The 1st opposite party saw the patient on 8.8.1995. The complainant was also informed that her husband was suffering from jaundice. The complainant was made aware of the nature of the illness and the seriousness and the consequences thereof. There was no deficiency in service in the performance of their duties by the opposite parties. There was no imperfection or inaccuracy or negligence either medically or in the performance of the operation. The surgery was done on 5.9.1995 by the 1st opposite party. The 1st opposite party had to go away to Calcutta on 7th and 8th of September, 1995. When he left the hospital on the 6th evening the patient was in ICU and was placed under the care of Dr. V. Ramachandran and Dr. Salem J. Thomas. Dr. V. Ramachandran is a leading Vascular Surgeon and Dr. Salem J. Thomas is a Surgical Oncologist. They are part and parcel of the 1st opposite party s surgical team. Necessary care and caution was taken in treating the complainant s husband. During the absence of the 1st opposite party the complainant s husband was looked after by two eminent and qualified persons along with Dr. Mathiazhagan, MD, Medical Registrar and Dr. Jyothinathan, MS, Surgical Registrar. At the time of admission itself, the patient was HBV positive and also had cancer head of the Pancreas besides Lymph nodes along the Hepatic Artery and Mesentric Lymph Nodes were also positives indicating a very poor prognosis. Studies show that the survival rate is between 15% and 17%. In India, the survival rate is much less. The mean survival of post operative cancer head of the pancreas is between 10 months and 36 months. When no surgery is undertaken, the life expectancy is less than 3 months. It is not true to say that the complainant s husband died due to the negligent act of the opposite parties. There is no deficiency in service.

(3.) THE points for determination are : (1) Whether there is deficiency in service? (2) whether the complainant is entitled to compensation? (3) To what amount? The Points : The undisputed facts are that the complainant s husband had jaundice from May 1995. Besides, at the time of admission of the complainant s husband, it was diagnosed as cancer of the head of the pancreas. He was HB + Ag Positive. A person with such complications was admitted in the hospital of the opposite parties for treatment. The first surgery was performed on 5.9.1995. It was followed by a second surgery on 8.9.1995. The third surgery was done on 29.9.1995. The patient died on 2.10.1995. The allegation made in the complaint is that something went wrong during the first operation and, therefore, another operation was performed on 8.9.1995. The other part of the allegation is that when the 2nd surgery was performed on 8.9.1995 the 1st opposite party who performed first surgery was not there to attend upon the complainant s husband and thus there was want of care and there is negligence on his part. The case of the complainant is that because the 1st opposite party went away leaving the complainant s husband the tragedy has occurred, cannot be accepted at all. It is not possible for a Doctor, especially a leading surgeon or physician, to be in the hospital all the 24 hours of the day and all the 30 days in a month. The 1st opposite party has stated that he being the President of the Indian Association of Surgical Gastro -Enterologists, he had to attend a conference at Calcutta which was an already planned one and, therefore, after completing the operation on 5th he left for Calcutta leaving the patient under the care of eminent doctors and at the time he left the patient, the patient was not in a dangerous condition. Therefore, from the mere absence of the 1st opposite party during the relevant point of time, one cannot fix any liability upon him or accuse him of deficiency. He has stated that he had made suitable arrangements. He has stated that his assistants viz., two eminent doctorsa vascular surgeon and surgical oncologistwere present to look after the patient besides the Registrar and medical officer of the hospital who were also present and attended upon the patient in his absence. The complainant merely says that because of his absence there was negligence in the manner of performance of the operation. It is generally stated in paragraph 7 that there was deficiency in service and there was imperfection and inaccuracy in quality and nature of performance of the operation which has resulted in the death of the complainant s husband. The complainant has not examined any expert to show how and in what manner the 1st opposite party has been negligent, what is the precaution he failed to observe and how there was a violation in the procedure adopted by the 1st opposite party. The decisions of the Supreme Court as well as the National Commission are to the effect that the burden is heavy upon the person accusing the doctors of medical negligence to establish the same. They further go to show that there must be an expert evidence available to support the complainant s case in that regard. Mere allegations of negligence and deficiency in service cannot be taken as substitutes for proof. It is incumbent upon the complainant to show how and in what manner there was failure on the part of the 1st opposite party to observe the normal procedure or adopt the standard of practice in treating the patient. Mere usage of expressions such as "deficiency in service" and "imperfection and inaccuracy in the nature and manner" of performance of the operation, cannot be considered in the absence of any specific proof of negligence. The 1st complainant examined herself in support of the complaint. In her testimony before this Commission what all she has stated is that after her husband died she demanded the 1st opposite party to state the reasons for the death of her husband and that he refused to give her the reasons and, therefore, she gave a complaint. She has stated so in her evidence in chief examination and only narrated the sequence of the operations. She has not stated how and in what manner there is negligence on the part of the opposite parties. Nor she has stated in what manner there was any deviation from the procedure or how she has stated that there was any failure to observe any precaution in that regard. On the other hand, in the course of cross -examination she has stated that she was never informed that her husband had jaundice and cancer head of pancreas. Such a case is not stated either in the complaint or in the course of chief examination. The Doctor has taken the witness stand. He speaks to the referral letter given by Dr. Badarinarayanan of Tirunelveli who referred the patient. The referral letter is marked as Ex. A -1, which reads as follows: