B.H.KUMAR vs V.RANGASWAMY

SOMETIMES a minor surgery may take away the life of patient due to negligence of Doctor. In this case a patient died after undergoing a surgery for removal of knot/node on her neck due to cut of blood vessel.

THE complainant has filed this complaint alleging "Deficiency in Service" on the part of the opposite parties (for short, "O.Ps.") Nos. 1 and 2. O.P.-3 is the Insurance Company, which has issued Policy in favour of O.P.-1 covering certain risks as provided in the Policy. The wife of the complainant one Smt. Shanthamma (for short, the "patient") had developed a knot/node in the right side of her neck on account of which she was suffering from severe pain. With the said complaint, the patient approached O.P.-1. O.P.-1 on examination advised the patient to get herself admitted to the O.P. Hospital and to undergo an operation for removal of the knot/node. Accordingly, the patient was admitted to O.P. Hospital. On 27.8.2002 O.P.-1 operated the patient. After the operation there was considerable bleeding at the place of the operation. As O.Ps. 1 and 2 were unable to control the flow of blood, they referred the patient to St. John's Hospital, Bangalore, for further medical care and treatment. St. John's Hospital refused to admit the patient. Ultimately the patient was taken to Manipal Hospital, where she was admitted as an inpatient. It appears in spite of the best treatment given in the Manipal Hospital, the patient died on 29.8.2002 at 1.00 a.m. (midnight). The complainant has admitted that O.Ps. 1 and 2 have paid a sum of Rs. 30,000 on the demand made by the complainant and also gave a letter stating that the complainant can claim compensation with O.P.-3 since the Policy issued by O.P.-3 covered the risk of casualties, loss of life, etc.

According to the complainant, if O.P.-1 had taken due care while conducting the operation, there would not have been any cut of blood vessel which ultimately resulted in heavy bleeding and taking away the life of the patient. Therefore, according to the complainant he is entitled for compensation of Rs. 10,00,000 from the O.Ps. with interest.

O.P.-1 has filed his version. In the version O.P.-1 has admitted the surgery. According to O.P.-1 he did excision biopsy on the knot/node developed on the right side of the neck of the patient at Seva Hospital, Tumkur and that he had taken due care in discharging his duty as an experienced Surgeon. The further case of O.P.-1 is that the node/knot was so small and it had adherent to the blood vessel underneath it. Consequently, when the excision biopsy was done, the blood vessel opened. This was not on account of any accident or negligent act on his part but on account of the diseased process/formation of the node/knot on the blood vessel itself. The further case of O.P.-1 is that he has paid the treatment charges at Manipal Hospital to the tune of Rs. 1,00,000. He has further stated that he has paid Rs. 30,000 to the complainant towards the funeral expenses, etc. O.P.-2 has filed her version stating that she has not participated in the surgery or assisted in any way O.P.-1 in conducting the surgery and, therefore, she is not liable to pay any damages or compensation in favour of the complainant.

O.P.-3 has filed an affidavit admitting the insurance coverage. O.P.-3 has also produced a copy of the Insurance Policy, which is marked as Exhibit ''R-3''. Under the said Policy, the assured sum is Rs. 3,00,000. The parties have filed their affidavits in support of their case by way of evidence and have also produced documents in support of their case, which are marked as Exhibits. The complainant and O.Ps. 1 and 2 were subjected to cross-examination. On the above said pleadings, the points that arise for consideration are: (1) Whether the complainant proves and establishes the negligence as against O.P.-1 as pleaded in the complaint? (2) To what relief the complainant is entitled? Point No. 1:

IT is not in dispute that the patient was admitted to Seva Hospital, Tumkur, for removal of knot/node on the right side of her neck on 27.8.2002. On that day, O.P.-1 conducted the surgery. Immediately after the surgery, there was oozing of blood and O.P.-1 was not able to control the flow of blood. Ultimately, O.P.-1 referred the patient to St. John's Hospital at Bangalore. But the said Hospital after looking at the condition of the patient did not admit the patient to the Hospital. Ultimately, the patient was admitted to Manipal Hospital, Bangalore and the patient died on 29.8.2002 at about 1.00 a.m. (midnight). The case of the complainant is that if O.P.-1 had taken proper care to ascertain the depth of the wound developed on the blood vessel and if he had examined whether any attempt to remove the knot/node could cause any damage to the blood vessel, there would not have been any damage or injury to the blood vessel. In the instant case, O.P.-1 admits that there was knot/node on the right side of the neck of the patient. When O.P.-1 knew that any attempt to remove the knot/node would cause injury to the blood vessel he would not have resorted to do surgery for removal of the knot/node. The very fact that there was a blood vessel below the knot/node which ultimately resulted in uncontrolled oozing of blood itself disclose that but for the negligence of O.P.-1 there would not have been any damage to the blood vessel and the patient would not have died. Therefore, we are of the considered view that the death of the patient was due to the negligence on the part of O.P.-1.

IN the instant case, the risk is covered under the INsurance Policy since as on the date of the operation, the INsurance Policy issued by O.P.-3 was in force. O.P.-3 also does not dispute the said fact. Taking this fact into consideration, we hold that it is for O.P.-3 to indemnify the loss, if any, of the complainant for and on behalf of O.P.-1. Point No. 2: According to O.Ps. 1 and 2, the complainant is running a Hotel on footpath. But no material is produced before us in support of the said contention. It looks as if the complainant is a coolie. O.P.-1 has met the medical expenses in respect of the patient at Manipal Hospital and has also paid a sum of Rs. 30,000 towards the funeral expenses. The patient died leaving behind the complainant and three children. The complainant is also deprived of the companionship of his wife and her services. Therefore, taking all these facts into consideration, we hold that awarding a sum of Rs. 1,50,000 as compensation in favour of the complainant and the children of the complainant would meet the ends of justice.

In the result, we pass the following order: (1) The complaint is allowed in part. (2) O.Ps. 1 and 2 are jointly and severally liable to pay Rs. 1,50,000 (Rupees one lakh and fifty thousand only) in favour of the complainant and his children with interest at 9% per annum from the date of the complaint till realization. (3) Since there is an Insurance Coverage, O.P.-3 is directed to satisfy this order by depositing the compensation awarded, in the name of the minor children of the complainant in a Nationalized Bank, after ascertaining the names of the minors. The amount so deposited shall continue to be in the name of the minor children till they attain majority. However, the complainant is entitled to withdraw the interest on the said deposit for the purpose of education and maintenance of the minor children. (4) The learned Counsel for the complainant is directed to file the particulars of the minor children of the complainant before this Commission within one week from today.

Complaint partly allowed.