Madhavan Malankad vs University Medical Centre

THE complainants have filed this complaint seeking for an award of compensation of Rs. 35,20,000 under various heads but have restricted their claim to Rs. 20,00,000.

THE case of the complainants is as follows: Complainant No. 1 is the husband of deceased Smt. Susheela Madhavan (for short, the ''patient'') and complainant Nos. 2 to 4 are the children of complainant No. 1 and the patient. The patient was admitted to opposite party (for short, ''O.P.'') No. 1 Hospital for the purpose of Bone Marrow Aspiration Test (for short, ''BMA Test'') on 2.4.2000. The admission was made by O.P. 3 as instructed by one Dr. Chakrapani, Associate Professor of O.P. 1 Hospital, and the patient was allotted Room No. 815. On 3.4.2000 at about 9.00 a.m. the patient was informed by O.Ps. 2 and 3 that she has to report to the treatment room for the purpose of preliminary check -up and to get ready for BMA Test. Accordingly, the Duty Nurses took the patient to the treatment room. The case of the complainants is that complainant No. 1 informed O.Ps. 2 and 3 that the patient was a patient of Dr. Chakrapani and in his absence no test should be conducted but he was assured that the patient was taken only for a preliminary check up to get ready for BMA Test to be done by Dr. Chakrapani. The nature of preliminary check up or its consequences were not explained to the patient. According to the complainants, consent of complainant No. 1 was not taken for conducting the BMA Test by OPs 2 and 3. Written consent of the patient was also not obtained in the presence of complainant No. 1. After the patient was taken to the treatment room, within few minutes after entering the treatment room, the closed door of the treatment room was opened and O.Ps. 2 and 3 rushed outside in a hurry. Then complainant No. 1 saw the patient was lying unconscious. Her eyes were closed and she was immediately removed to the Intensive Care Unit in the 10th Floor of the Hospital after the arrival of Dr. Chakrapani. The further case of the complainants is that O.Ps. 2 and 3 conducted the BMA test on the patient without her consent, without any authority or permission and without any minimum professional care. The further case of the complainant is that due to the negligence of O.Ps. 2 and 3, the BMA needle pierced into the right ventricle and caused injury to the heart of the patient. Therefore, Thoracic surgery was conducted in O.P. 1 Hospital and thereafter the patient was put on ventilators for three more days and she was declared dead in the morning of 6.4.2000. In this regard, Dr. Chakrapani has given a written complaint to O.P. 1 that O.P. 2 has undertaken the procedure without his knowledge or consent and without supervision and that during the procedure the patient went into shock and shifted to Intensive Care Unit. The further case of the complainants is that O.Ps. 2 and 3 colluded each other and subjected the patient for BMA Test as a ''Test Case without authority, permission, supervision or consent of Dr. Chakrapani or the husband of the patient and without observing the minimum professional care. The sum and substance of the case of the complainants is that the patient died due to the negligence of O.Ps. 2 and 3 in conducting the BMA Test and the same has resulted in great hardship and injury and, hence, they are entitled for compensation of Rs. 20,00,000 from the O.Ps. O.P. -1 has filed its version stating that Dr. Chakrapani is an Associate Professor, Department of Medicine of O.P. 1 Hospital. The patient was admitted to O.P. 1 Hospital on 2.4.2000 as a routine hospital procedure by the Duty Doctor, i.e., O.P. 3 Dr. Vijay Agarwal. It is averred in the version that O.P. 2 appears to have approached the patient and complainant No. 1 having come to know that there was a case for BMA Test and having explained the procedure of the test and possible complications with the help of the Nurses obtained an informed consent from the patient and took the patient to the procedure room for the test. It is further stated that O.P. 2 persisted to do the test on his own without the consent of the patient and complainant No. 1. In the version, O.P. 1 has specifically stated that the Head of the Unit, i.e., Dr. Chakrapani had not authorised O.P. 2 nor had he requested him to conduct the procedure. In the version it is admitted that due to the complications developed after the BMA Test, the patient was shifted to Intensive Care Unit, where the general measures to resuscitate the patient were taken. Since the patient did not improve, Dr. Ashok Shetty, suspected Crdiac Tamponade. He performed emergency Thoracotomy, as an emergency life saving measure, and ultimately the patient was declared as dead on 6.4.2000.

O .P. 2 has filed his version denying the averments made in the complaint and sought permission to file a further version, if required. Subsequently, O.P. 2 filed additional version. The defence taken by O.P. 2 is that the complaint is liable to be dismissed for non -joinder of parties, since Dr. Chakrapani and Dr. Ashok Shetty have not been made parties to these proceedings. O.P. 2 has further stated in his version that the patient was admitted and examined by O.P. 3 and he was informed by O.P. 3 on 3.4.2000 at about 8.30 a.m. in the hostel about the BMA Test case admitted by him on 2.4.2000. The further case of O.P. 2 is that O.P. 3 requested him to conduct the BMA Test on the patient at the earliest on the very same morning on 3.4.2000. After obtaining the necessary consent from the patient, the patient was admitted for the procedure and, accordingly, the procedure was done taking all required precautions, professional care, caution and competence as per the practice/procedure, as he had already conducted about 36 such cases earlier. According to O.P. 2, the patient suddenly went into shock and, therefore, O.P. 2 took all remedial measures and informed Dr. Chakrapani who was in the same building and who came immediately to provide all possible care and the patient was shifted to Intensive Care Unit. In the Intensive Care Unit, Dr. Ashok Shetty performed emergency Thoracotomy, as an emergency life saving measure. The sum and substance of the version of O.P. 2 is that there is no negligence on his part and, therefore, the complaint is liable to be dismissed.

O .P. 3 has filed his version pleading his ignorance about the patient. O.P. 3 has stated in his version that he was not at all acquainted with nor did he know the patient nor happened to see her at any point of time prior to her sudden demise. Therefore, according to him, he is in no way responsible for the death of the patient and he prays for dismissal of the complaint filed against him. All the parties have filed their affidavits by way of evidence in support of their case and produced documents. The parties were also permitted to file Interrogatories and Replies to the Interrogatories delivered to each of the parties.

FROM the pleadings referred to above, the point that arises for consideration is: Whether the complainant proves that O.Ps. 2 and 3 have conducted the BMA Test on the patient negligently which resulted in taking away her life?

THE fact that the patient was admitted to O.P. 1 Hospital for BMA Test on 2.4.2000 is admitted. It is also admitted that O.P. 2 conducted the procedure of BMA Test on 3.4.2000. The fact that the patient was declared dead on 6.4.2000 is also admitted. According to the complainants, O.P. 2 conducted the BMA Test, even though he was informed by complainant No. 1 not to conduct any test in the absence of Dr. Chakrapani. From the records produced by O.P. 1 Hospital it is seen that the patient was admitted as a patient of Dr. Chakrapani as per Exhibit R -1. When that being the case, only Dr. Chakrapani had to conduct the BMA Test by himself or refer the patient to some other Doctor for performance of the BMA Test. The hospital records show that there is no such reference by Dr. Chakrapani. The case of O.P. 2 is that O.P. 3 admitted the patient as a patient of Dr. Chakrapani for the purpose of BMA Test and he requested him to conduct the BMA Test immediately on 3.4.2000 and, accordingly, he conducted the procedure. The case of O.P. - 3 is a total denial. According to him, he had not even seen the patient till her death. The affidavit of Dr. Chakrapani discloses that the patient was admitted on 2.4.2000 by the Duty Doctor Vijay Agarwal, i.e., O.P. 3. The case of O.P. 1 is also to the effect that the patient was admitted by O.P. 3. If really O.P. 3 was not involved in this case, the Head of the Department of Medicine, under whom O.P. 3 is working, could not have stated that the patient was admitted by O.P. 3. Further, there was no reason for the Hospital Authorities to say that the patient was admitted by O.P. 3 as a patient of Dr. Chakrapani. Therefore, we are of the considered view that O.P. 3 had admitted the patient for BMA Test on 2.4.2000. The defence taken by O.P. 1 is that O.P. 2 is a Post -Graduate student in Pathology and he was not authorised to conduct the BMA Test. Dr. Chakrapani, who is the Head of the Department of Medicine, has stated in his affidavit that he did not authorise O.P. 2 to conduct the BMA Test. According to O.P. 1 any test to be conducted by a student of Post -Grauduate used to be under the supervision of the Departmental Head. Further, the students have no right whatsoever to conduct the BMA Test on their own without there being any reference by the Hospital Authorities or their superior officers. In the instant case, O.P. 2 has not produced any material to show that he had been authorised to conduct the BMA Test. O.P. 3 is also a Post -Graduate Student studying under the supervision and guidance of Dr. Chakrapani. According to O.P. 2, O.P. 3 informed him in the Hostel that one patient was admitted for BMA Test and the said Test was to be conducted in the early morning of 3.4.2000. No doubt, O.P. 3 has stated that he was not at all acquainted with or knew the patient or happened to see her at any point of time prior to her sudden death, as stated earlier.

THE case of the complainants is that O.Ps. 2 and 3 took the patient to the treatment room on 3.4.2000 for the procedure, though complainant No. 1 informed them that no test should be conducted in the absence of Dr. Chakrapani. The further case of the complainants is that the patient was taken to the treatment room saying that the patient was taken only for preparation for the BMA Test and not to conduct the BMA Test. According to the complainants, without their knowledge, O.Ps. 2 and 3 have conducted the BMA Test without obtaining the consent of the patient or her husband. No doubt the records of the Hospital speak that the patient had given her consent by subscribing her signature on the Form, which is marked as Exhibit R -3. The patient was a housewife. According to the complainants, she did not know any language other than Malayalam. No doubt, the signature of the patient is in English. When O.Ps. 2 and 3 were aware of the fact that the husband of the patient was also present along with his children, they ought to have informed about the BMA Test to the husband of the patient and obtained his consent also. But, in this case, the consent of the husband of the patient was not obtained nor was he informed about the BMA Test. No material has been placed before this Commission to show that the husband of the patient was informed about the complications involved in the procedure. Since the patient is dead, it is not known whether she was explained the complications involved in the procedure. But the fact that O.P. 2 conducted the said procedure is not disputed.

THE further case of the complainants is that O.P. 2 conducted the BMA Test without the authority of law, as he was not authorised to do the same, and while doing the BMA Test he damaged the heart of the patient which ultimately took away her life. As per the averments in the complaint and the affidavit filed by complainant No. 1, within few minutes after taking the patient inside the treatment room, the door of the treatment room was opened and O.Ps. 2 and 3 rushed outside and at that time the husband of the patient saw that his wife was unconscious and her eyes were closed. Immediately thereafter Dr. Chakrapani came and he having noticed the seriousness of the patient, shifted the patient to the Intensive Care Unit. Dr. Chakrapani had written a letter to the Superintendent of O.P. 1 Hospital stating that the patient was admitted on 2.4.2000 to undergo BMA procedure but he was given to understand that O.P. 2 from the Department of Pathology has undertaken the procedure without his knowledge or consent or supervision and that during the procedure the patient went into shock and she was shifted to Intensive Care Unit by referring the patient to Dr. Ashok Shetty. A copy of the said letter is marked as Exhibit C -2. From this letter it is seen that though the patient was admitted as a patient of Dr. Chakrapani, O.P. 2 undertook the procedure without the knowledge or consent of Dr. Chakrapani. Further, there was no senior Doctor to supervise the procedure conducted by O.P. - 2. The parties have filed their Interrogatories and Replies to the Interrogatories filed by the other parties. O.P. 2 in his reply to the Interrogatories states that ''in practice, in a medical college senior residents and PG students form a very critical part of the entire team. The consultants are not physically present in the hospital, at all times, to look after and monitor the patients on a continuous basis.... a senior PG student is competent enough to work in hospital independently...'' Per contra, O.P. 1 in its answers to the Interrogatories delivered has stated that the Post Graduate Students ''can attend, learn and get clinical experience in departments where they are specifically posted/deputed strictly under the supervision and guidance of the Head of Department of the concerned departments''. O.P. 2 was doing Post -Graduation in Pathology and, therefore, the patient was not referred by Dr. Chakrapani to the Pathology Department for conducting BMA Test. The Head of the Department of Pathology also did not authorise O.P. 2 to conduct the BMA Test. Therefore, we are of view that O.P. 2 was not authorized by any of the Doctors to conduct BMA Test and, therefore, he ought not to have proceeded to conduct the procedure. The evidence produced before this Commission discloses that there was a tear in the anterior surface of the right ventricle suggesting that the initial collapse of the patient was due to traumatic rupture of the right ventricle as a complication of sternal puncture. Tear in the anterior surface of the right ventricle at the level of the 3rd intercostal space cannot be due to pericardiocentesis at all since it is done from inferior aspect. The case of O.P. 2 in the written arguments is that ''during the incomplete Bone Marrow Procedure on the first attempt, no blood came out and after re -adjustment of the guard and B.M. Needle the aspiration was attempted which yielded the blood but unfortunately the patient went into a C.V. shock and immediate steps had to be taken for her resuscitation''. Exhibit ''R -7'' is an extract of Progress Sheet maintained by O.P. 1 Hospital. The Note made therein reads thus: ''The Bone Marrow guard was adjusted and the to and fro movement of needle was done to reach the Marrow cavity. The stillete was removed and the aspirate was done. No marrow aspirate came out. Guard was again adjusted and again the stillete showed blood. Then aspirate was done blood came out. The needle was removed imme -diately and compression with the guage was done. The patient collapsed after procedure and Medicine P.G. was informed. The patient was immediately shifted to I.C.U.'' This Note is made by O.P. - 1 Hospital. A reading of the said Note discloses that after piercing needle to draw marrow, instead of marrow, blood came out. This note is inconsistent with the stand taken by O.P. 2 referred to above. If O.P. 2 had correctly inserted the needle for drawing marrow, blood could not have come out instead of marrow. In all probability blood had come out because O.P. 2 instead of inserting the needle at the right point punctured the heart of the patient. O.P. 1 in answer to the reply to the Interrogatories has stated as follows: ''There is hardly any space between 3rd Intercostal space as referred in ''The American Journal of Forensic Medicine and Pathology 1987 entitled ''Is Sternal Bone Marrow Needle Biopsy Still a Hazardous Technique? authored by Vincenzo L. Pascali and others. In this case, the wound on the heart was one and half cm. Tear because needle touched the heart.'' (underlining supplied)

DR . Ashok Shetty after examining the patient had noted the following points during the operation: ''(1) Tense Hemo Pericardium, (2) 1.5 cm. tear in right verticle, (3) Edematous and Friable Heart, (4) Superficial abrassion on the left ventricle. Pericardium was opened and blood and clots were evacuated. Internal Cardiac Massage and defibrillation was done.''

From this Note we are of the considered view that while piercing the needle at the right point to draw marrow, O.P. 2 has punctured the heart of the patient. If O.P. 2 had taken Roper care, in all probability there would not have been any injury to the heart of the patient, which ultimately resulted in taking away the life of the patient.

FURTHER , the case sheet referred to above also discloses the presence of O.P. 3 at the time of conducting BMA Test. Therefore, the defence putforth by O.P. 3 about his ignorance is far from truth and it cannot be believed. The case of O.P. 2 is that he had conducted several BMA Test in the past and, therefore, he was qualified to conduct the BMA Test on the patient and, accordingly, he did the procedure at the request of O.P. 3. No doubt there is some material to show that O.P. 2 had conducted about 36 BMA Tests earlier under the supervision of some other Doctors. But the said fact does not authorize O.P. 2 being a Post -Graduate student to conduct the BMA Test on his own. Further, the case was not referred to him either by Dr. Chakrapani or any one of the Hospital Authorities. Similarly, O.P. 3 being a Post Graduate student of Medicine also had no authority whatsoever to authorise O.P. 2 to conduct the procedure in the absence of any reference either by Dr. Chakrapani or by any of the Hospital Authorities. If at all if Post Graduate Students were required to do BMA Tests, they ought to have conducted the Tests under the supervision of a senior doctor. In this case, there was no one in the treatment room at the time of conducting the procedure except O.P. 3. Therefore, we are of the view that the BMA Test was conducted by O.P. 2 without any authority and without taking proper care to save the life of the patient. But for the fact that there was negligence in not taking required care by O.P. 2 in conducting the procedure of BMA Test, the patient would not have died.

O .P. - 1 Hospital though contested the case at the time of the arguments agreed to pay Rs. 1,00,000 as compensation to the complainants. O.P. 1 is vicariously liable for all acts done by the employees working under its control. Since O.P. 1 has come forward to pay Rs. 1,00,000 as compensation voluntarily, we hold that the remaining amount of compensation that may be fixed by us is to be paid by O.Ps. 2 and 3.

THE patient was the wife of complainant No. 1 who is a Practising Advocate. Complainant Nos. 2 to 4 are the children of the patient and complainant No. 1. Complainant No. 1 is deprived of the company and services of his wife. Complainant Nos. 2 to 4 are deprived of the love, affection and services of their mother. The deceased patient was a middle aged woman. O.Ps. 2 and 3 being Post Graduate students in Pathology and Medicine, respectively, in their exuberance and with a view to gain knowledge might have conducted the BMA Test on their own. Taking all these facts into consideration, we are of the view that O.Ps. 2 and 3 are liable to pay Rs. 1,00,000 each as compensation to the complainants.

IN the result, we pass the following Order: (1) The complaint is allowed in part. (2) O.P. 1 is directed to pay Rs. 1,00,000 to the complainants with interest at 9% per annum from the date of the complaint till realization. (3) O.Ps. 2 and 3 are directed to pay Rs. 1,00,000 each to the complainants with interest at 9% per annum from the date of the complaint till realization. (4) O.Ps. are also directed to pay Rs. 2,000 each to the complainants towards the costs of these proceedings. (5) Complainant Nos. 2 to 4 are the minor children. They being the legal heirs of the deceased patient are entitled to get the compensation. Hence, the compensation ordered above shall be deposited in any of the Nationalized Banks in the name of the minor children till they attain majority. However, complainant No. 1 is permitted to draw interest payable on the said Deposits for the maintenance and education of complainant Nos. 2 to 4.

Complaint partly allowed.