Facts : Husband of the complainant aged about 40 years met
with an accident while going on a motorcycle as a pillion rider, sustained some
inner injuries on lower portion of his right leg, was taken to the clinic of
the petitioner, X-ray was done, and the petitioner diagnosed fracture in the
lower side of his right leg.
Operation was performed at
about 5:30 p.m. on 9-10-1998 itself. After half an hour the petitioner came out
of the operation theatre and told the complainant and others that he had
performed the operation and the petitioner would regain consciousness after
half an hour. Patient was shifted to a room in the petitioner’s nursing home
but it was noticed that he was unconscious and in quite an abnormal condition.
Even after lapse of more than half an hour’s time, the patient did not regain
consciousness and he was not at normal. The attendants learnt from the
compounder that high dose of anesthesia appeared to have been administered to
the patient at the time of operation and hence they rushed to the petitioner
who came and examined the patient and told the complainant that the patient
required oxygen and asked them to take him
Observations: It is not under dispute that the deceased husband
of the complainant was in good and sound health before he was taken to the
operation theatre except injury which he had suffered on account of the
accident. No doubt, the petitioner is an orthopedic surgeon with long practice
in his field to his credit, that the petitioner performed the
operation upon the deceased person under general anesthesia and he was removed
from the operation theatre and shifted to the room no.6 in the state of
unconsciousness although the petitioner told that he would regain consciousness
within half an hour, that the petitioner himself administered ether as
anaesthetician for making the patient unconscious. The for a below through their concurrent finding have
found this action on the part of the petitioner who is simply an orthopedic
surgeon as an act of negligence keeping in view the testimony of the witnesses
to the effect that the deceased person died without regaining consciousness. In
the circumstances, there was high degree of probability that the petitioner
administered excess dose of ether as means of anesthesia which caused various
complications damaging certain organs of the body of the deceased.
Findings of the state
commission relied upon: “the
respondent in her complaint contended that the deceased was having low blood
pressure just prior to his undergoing operation though it was alright during
the day time and the appellant doctor underestimated the complication that
might arise from the operation while the patient was running low blood pressure
and he ignoring all this performed operation for the sake of money. The
appellant did not appear to have specifically denied the factum of low blood
pressure of deceased in his written statement.
It was to be kept in view
that the deceased was in quite good and sound health before he was taken to
operation theatre and the condition got deteriorated after the appellant
administered medicine anesthesia and operated upon. There was ample cogent and
reliable evidence to establish that the appellant performed the operation upon
the deceased under general anesthesia and he was removed from the operation
theatre and shifted to room no.6 in the state of unconsciousness and the doctor
told the respondent and her father –in-law that he would be regain
consciousness within half an hour. It was also the admitted position that the
appellant an orthopedic surgeon himself, administered ether as anesthestician
for making the patient unconscious. He claimed to have vast experience with
long outstanding practice and he required no service of anesthestician. It also
stood well proved that the deceased never regain consciousness and he died in the state of unconsciousness just
within 2 or 3 hours after the operation. The complainant-respondent and her
witnesses asserted that the deceased was given excess quantity of ether as
means of anesthesia in consequence of which he died without ever regain
consciousness. Howsoever, well reputed and experienced orthopedic surgeon the
appellant might be he could not be accepted to be an anesthestician and an
expert to administer anesthesia to a patient to put him/her in unconsciousness
for performance of surgery on such patient. There was high degree of
probability that the appellant (orthopaedician) administered excess dose of
ether as a means of anesthesia which caused various complications and also
damaged certain organs of the body of the deceased. Oral evidence adduced on
behalf of the doctor-appellant would not render him expert in the field of
administration of anesthesia. His act of assuming the role of an anesthestician
and administering anesthesia to the deceased could not be approved.”
Defence : The
contention of the petitioner was that there was no post-mortem and hence the
cause of death could not be regarded as excess dose of anesthesia and that
there was no expert opinion taken in the matter at any stage. Reliance was
placed on “essential of medical pharmacologist”
by K.D tripathi that ether(diethyl ether)used as anesthesia by open drop
was relatively safe even in experienced hands, besides copy of medical council
of India’s regulation on graduate medical education to show that he had
adequate training in administering anesthesia right at MBBS stage besides his
long experience in administering anesthesia as orthopedic surgeon.
On burden of proof: The respondent submitted that reference to the
extracts from the book of K.D tripathi regarding ether used as anesthesia by
open drop was misleading because the reference in the book is in respect of its
use by a general orthopedician. This was a case where negligence on the part of
the petitioner is writ large since the facts and circumstance of the case
clearly established, based on the celebrated principle of “RES ISPA
LOQUITER”, that the anesthesia was the cause
of death of the husband of the complainant who was otherwise in sound
health except the injury for which he was operated by the petitioner.
Case law : V. kishan rao vs Nikhil super specialty
hospital and anr,[(2010) 5 SCC 513]
Where the earlier ratio
laid down in the case of Martin F.D’souza vs mohd.ishfaq
[(2009) 3 SCC 1] has been distinguished
and it has been held that “in a case where negligence is evident, the principle
of res ipsa loquiter operates and the
complainant does not have to prove anything as the thing(s) proves itself. In
such a case it is for the respondent to prove that he has taken care and done
his duty to repel the charge of negligence.”
Held : Taking into consideration the undisputed facts and
circumstances of this case and applying the ratio laid down by their lordships
of the supreme court in the case of nikhil
super speciality hospital, we do not
find any irregularity or legal infirmity or jurisdictional error in the
concurrent finding returned by the for a below in favour of the respondent
.consequently, we do not see any reason to interfere with the impugned order
and the same is confirmed herewith.
The revision petition
stands dismissed accordingly with the parties bearing their own costs.
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