Skip to content


Smt V. Madhavi Vs. Dr.K.Thirupal Reddy and Others - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided On
Case NumberC.C.No.4 of 2010
Judge
AppellantSmt V. Madhavi
RespondentDr.K.Thirupal Reddy and Others
Excerpt:
oral order: (sri r.lakshminarasimha rao, honble member) 1. the complaint is filed seeking direction to the opposite parties for payment of `14,00,000/- towards medical and other expenses along with compensation of `50 lakh and costs. 2. the averments of the complaint are that on 6.8.2008 the complainant during her period of pregnancy, approached the opposite party no.1 for regular check-up and he suggested lscs to the complainant and advised her to be admitted in opposite party no.3 hospital. on 7.8.2008 at about 8.00 p.m. she was admitted in opposite party no.3 hospital and cesarean operation was done on the complainant on 8.8.2008. the complainant gave birth to a male child. the opposite party no.2 after conducting investigation on 9.8.2008 issued report showing no complications. on.....
Judgment:

Oral Order: (Sri R.Lakshminarasimha Rao, Honble Member)

1. The complaint is filed seeking direction to the opposite parties for payment of `14,00,000/- towards medical and other expenses along with compensation of `50 lakh and costs.

2. The averments of the complaint are that on 6.8.2008 the complainant during her period of pregnancy, approached the opposite party no.1 for regular check-up and he suggested LSCS to the complainant and advised her to be admitted in opposite party no.3 hospital. On 7.8.2008 at about 8.00 p.m. she was admitted in opposite party no.3 hospital and cesarean operation was done on the complainant on 8.8.2008. The complainant gave birth to a male child. The opposite party no.2 after conducting investigation on 9.8.2008 issued report showing no complications. On 9.8.2008 at about 4.45 p.m. the complainant was administered blood transfusion as per the instructions of the opposite party no.1. The complainant developed complications during blood transfusion and it was discontinued immediately at 5.30 p.m. The complainant developed chest tightness and breathing problem and Lesix injection through intravenous and also Asthalin Nebulisation was administered. The opposite party no.3 visited the complainant and suggested paracetamol injection for mild fever. The vital senses of the complainant were checked on 10.8.2008 between 2.00 a.m. and 5.30 p.m. which disclose abnormal changes. The nurses notes indicated symptoms of renal failure.

3. On 10.8.2008 at about 5.45 p.m, the complainant was shifted to ICU ward of the opposite party no.5. The opposite partyno.1 attended on the complainant. The opposite party no.5 does not have any consultant nephrologist with them and it did not take the assistance of any of the nephrologist available in Kurnool. The report of the opposite party no.5 disclose that the complainant was suffering with hypotension, renal failure, coagulation failure and jaundice. The complications were developed after blood transfusion. The hospital of the opposite party no.5 does not have any equipment to treat for renal failure. Before the blood was transfused the opposite party no.1 ought to have checked the blood samples. There was no documentation regarding the numbers of blood bags and units transfused to the complainant. The blood samples were not taken for investigation. The opposite parties failed to refer the complainant to any specialist doctor or to any other hospital having facilities to treat for the complications.

4. During the intervening night of 10/11.08.2008, the complainant was shifted to Fernandez Hospital, Hyderabad on the advice of the opposite parties no.1 , 2 and 5 where the authorities of the hospital refused to admit the complainant and she was shifted to Apollo Hospital, Hyderabad where she was attended by various specialist doctors. The complainant incurred an expenditure of `9 lakh at Apollo Hospital. The opposite parties also charged `50,000/- towards treatment. The complainant rendered in rented premises at Kukatpally and stayed there along with her husband and child for follow up treatment for a period of four months for which she has to incur huge expenditure towards rent, loss of business of her husband etc. The complainant alleged that due to negligent act of the opposite parties, in transfusing the blood without checking the blood samples she had developed severe complications for which she had to incur huge expenditure and also underwent mental agony for claiming which she has filed the complaint.

5. The opposite parties no.1, 2 and 5 resisted the claim by filing counter and contended that the complainant is an anemic and as such she was advised to preserve one bottle of blood for the purpose of her quick recovery and wound healing she was transfused with blood on the next day of surgery. On 9.8.2008 at 4.45 p.m. she was given blood transfusion. The attendant of the complainant obtained one bottle of blood from Red Cross Blood Bank, Kurnool. The blood bank supplied the blood after due investigation and cross matching with the donors blood. Subsequent to the blood transfusion, the complainant developed complications and immediately blood transfusion was discontinued. The complainant was administered Lasix injection and she was given Asthalin Nebulization.

6. The opposite party no.3, at the instance of the opposite party no.1 visited the complainant and suggested paracetamol injection for mild fever. The opposite party no.2 attended the complainant and found her vital signs and urine output normal. At 1.30 a.m. on 10.8.2008, the complainants vital signs were normal. The nurses had not noted any abnormal changes in functioning of the vital signs of the complainant. The opposite parties regularly visited the complainant and took precautionary measures for the reaction caused due to blood transfusion. It was found that the condition of the complainant was stable regarding urine output and vital signs.

7. The opposite parties no.1 and 2 attended the complainant on 10.8.2008 and advised to shift her to the opposite party no.5 for the purpose of treatment of hypotension and resuscitation. The opposite party no.5 monitored the treatment for a period of three hours from 6.30 p.m. to 9.30 p.m. for urine output. The condition of the complainant was improved pertaining to the blood pressure from 60/0 to 100/80 mmHg. Renal parameters of the complainant was found to be normal. The complainant was advised to go to Fernandez Hospital which is a high risk management hospital and charitable hospital as well and equipped for treatment of obstetrics related complications. The opposite parties no.1, 2 and 5 had taken all precautionary measures from hour to hour and attended the complainant till she was referred to Fernandez Hospital Hyderabad where after examining her the hospital advised her to go to Government General Hospital.

8. The complainant got admitted in Apollo Hospital Hyderabad for further treatment and later on recovered. The opposite parties have taken blood investigation and found that it was of the same blood group. The Red Cross Blood Bank is reputed blood bank. The Red Cross Blood Bank is proper and necessary party and in its absence the complaint is not maintainable. About 5% of patients receiving blood transfusion will have a reaction. Most of the reactions are relatively mild which can also be severe and fatal. The responsibility for selecting and testing donors and the preparation, quality control and storage of blood products is the responsibility of specially organized blood transfusion service. Transfusion laboratories in local hospitals will match the product with the patient and the clinician exerts little control over the laboratories. The complainant suppressed the fact as to from where the blood was supplied. The expert panel constituted by the Superintendent, Government General Hospital Kurnool answered the questionnaire given by the police.

9. The questionnaire was not prepared by any medical expert. The complainant and the opposite parties were not examined. As per the report of the exert panel no negligence was attributed against the opposite parties no.1, 2 and 5. The police has not furnished complete record to the expert panel such as preoperative investigation, hemoglobin content report and other laboratory report. The complainant suppressed the fact that she is anemic and needs blood transfusion after surgery for quick recovery. There is no negligence on the part of the opposite parties before and after the period of blood transfusion. The opposite parties are reputed medical practitioners without any complaint at any time. There was no post-operative complications. The opposite party no.1 and 2 had not collected any fees for conducting surgery.

10. The mother of the opposite party no.1 was in serious condition on 10.8.2008 and in view of the condition of the complainant the opposite party no.1 could not see his mother even when she breathed her last and attended the complainant. The mother of the opposite party no.1 died the very next day i.., 11.8.2008. There was no negligence on the part of the opposite parties no.1, 2 and 5 and hence prayed for dismissal of the complaint.

11. The opposite party no.3 has filed counter contending that the complaint is not maintainable against him and that he received a phone call from the opposite party no.4 with a request to see the complainant on 9.8.2008 at about 6 p.m. and he immediately visited the opposite party no.4 hospital and examined the complainant. By the time of his visit, the blood transfusion to the complainant was stopped. The complainant was having mild fever and her blood pressure and urine output were normal. He came to the conclusion that the complainant suffered from febrile non-hemolytic transfusion reaction and he advised paracetomol to the complainant and requested the opposite party no.4 to inform him as and when necessary. Investigations on the complainant were done on 10.8.2008 which revealed jaundice, raised renal parameter and she was shifted to opposite party no.5 hospital and from there to Hyderabad. The opposite party no.3 is not a regular consultant doctor of the opposite party no.4 hospital and he had not received any information in regard to the complainant either from the opposite party no.1 or 4. There was no deficiency in service on the part of the opposite party no.3.

12. The opposite party no.4 resisted the claim on the premise that it had no knowledge what was transpired between the complainant and the first opposite party and the terms of treatment between them. The opposite party no.4 is a full-fledged hospital with necessary equipment doctors of various specialization as its consultant as also paramedical staff for in house management maintenance of the hospital and to treat the patients. It is contended that the opposite parties no.1 to 3 are consultants having their own establishments and clinics.

13. The opposite parties no.1 to 3 admit their patients with the opposite party no.4 hospital for hospital accommodation, operation theatre and equipment. The nursing staff of the opposite party no.4 hospital would act as per the instructions of the doctors and they do not act independently in regard to treating the patients. The complainant was admitted by the opposite party no.1 on 7.8.2008 at 8 p.m. with the opposite party no.4 hospital for LSCS to be conducted on 8.8.2008. The team of doctors for LSCS was selected by the first opposite party and he was assisted by Dr.Shiv Shanker Reddy, anesthetist, and the second opposite party a male child was born. There were no post-operative complications of the complainant. The nursing staff of the fourth opposite party checked the BP and other parameters of the complainant as per the instructions of the doctor.

14. The first and second opposite parties examined the complainant on 9.8.2008 and instructed for transfusion of blood to her. In compliance of the instructions of the opposite parties no.1 and 2, the duty nurse of the fourth opposite party hospital transfused the blood for 15 minutes and the complainant developed chills. The nurse immediately reported the matter to the second opposite party who inspected her to stop the blood transfusion and thus the blood transfusion was stopped.

15. Even after the transfusion of the blood was stopped, the complainant developed breathing difficulty . The opposite parties no.1 and 2 checked her blood pressure and pulse rate as also her vital signs. Medicine was administered to the complainant as per the instructions of the complainant no.1 and 2. The complainant was administered with Lasix injection and was given asthalin nebulization.

16. Oxygen was administered and the opposite parties no.1 and 2 called upon the opposite party no.3 for further course of action and later the first opposite party instructed for discharge of the complainant to be shifted to opposite party no.5 hospital. The complainant was shifted to the opposite partyno.5 along with discharge summary/case sheet. The blood sample to be taken for investigation in the matter does not arise for the reason that during pre-operative stage it was verified by the opposite parties no.1 and 2. The blood group, blood pressure and other parameters of the complainant were checked and noted as per the instructions of the opposite parties no.1 and 2.

17. The complainants relatives brought the blood packet and the blood was transfused to the complainant. The procedure mentioned by the complainant cannot be adopted since the blood bank supplies the blood after the sample is tested and kept in cold storage for ready to use. There is no negligence or deficiency in service on the part of the opposite party no.4 and the opposite party no.4 has no knowledge of the matter after the complainant on 10.8.2008 was shifted to another hospital. The complainant lodged complaint with police II Town Kurnool who registered a case against the opposite party no.4 as one of the accused. The opposite party no.4 is no way responsible for the complications that the complainant developed.

18. The complainants husband has filed his affidavit and the affidavit of Dr.N.Ravinder Reddy and the documents, ExA1 to A25. On behalf of the opposite parties the first opposite party has filed his affidavit and the affidavit of Dr.Kamma Laxma Reddy and the documents, Exs.B1 to B15.

19. The learned counsels for the complainant and the opposite party no.3 have filed written arguments.

20. The point for consideration is whether the opposite parties have rendered deficient service in administering medical treatment to the complainant?

21. The complainant was admitted in the hospital of the opposite party no.3 on 7.08.2008 for Elective Lower Segment Cesarean Section. The discharge summary evidences the admission of the complainant in the hospital on 7.8.2008 and her discharge on 10.08.2008; the treatment administered to her was that she was given IV fluids, biotax, amikacin, tinba, Zobid, Fortwin etc. The administration of Larex injection and her blood pressure, urine output and vital signs noted as monitored. One bottle of blood was transfused to the complainant on 9.8.2008 while she had undergone LSCS on 8.8.2008 as also at the time of transfusion of the blood, she developed breathlessness and mild fever. Immediately, blood transfusion to the complainant was stopped.

22. The opposite parties no.1 to 5 have administered treatment to the complainant and noticing the problems that the complainant developed on account of transfusion of blood, the opposite parties no.1 and 2 summoned the opposite party no.3 who examined the complainant and advised for paracetomol injection as and when felt necessary. On 10.8.2008, the discharge summary indicates that the complainant suffered from breathlessness and pain in abdomen at 4 p.m. and there was no active bleeding. She was advised to go to higher center for further management.

23. The opposite parties no.1,2 and 5 contend that the complainants relatives brought one bottle of blood from the Red Cross Blood Bank which would supply the blood after subjecting the donors to various tests and after conducting relevant tests to eliminate any chance of infection. The opposite parties no.1,2 and 5 would contend that the Red Cross Blood Bank which supplied the blood to the complainant is not made party to the complaint.

24. There is no dispute that duty is cast up on the opposite parties no.1,2 4 and 5 to conduct test in order to know the complainants blood group. The compatibility test is essential to avoid any complications that would develop when blood of different group than that of the patient is transfused. The first opposite party has deposed that after the complainant developed complications on account of the transfusion of blood supplied by the Red Cross blood bank, they had got conducted tests as to know the group of the blood that was transfused and found that the blood group of the complainant and the group of the blood that was transfused to her is one and the same. He has stated as under:

It is submitted that after developing complication during blood transfusion these opposite parties have taken blood investigation and found the same blood group. 25.  The Police, II Town Kurnool had sent questionnaire to the Superintendent of the Government Hospital, Kurnool who constituted an expert committee of doctors to go through the record. This Commission at the time of admission of the complaint has sought for the opinion of team of doctors from NIMS, in compliance of the requirement of law laid in “Martin F. De Souza vs Mohd Ishfaq”. The expert committee constituted by Superintendent, NIMS had furnished opinion indicating prima facie negligence and deficiency in service on the part of the opposite parties no.1 to 5 in administering treatment to the complainant. The complainant has filed the affidavit of Dr.Ravinder Reddy who stated that the opposite parties were negligent in rendering treatment to the complainant. Thus, there are three sets of medical opinion available on record on the aspect of administration of treatment to the complainant with reference to the aspect of transfusion of blood to her.

26. The learned counsel for the opposite party no.4 has contended that the opposite parties no.1 to 3 and 5 are the doctors who treated the complainant and their contention has to be considered as the medical opinion of an expert. She has contended that the four sets of medical opinions would not settle the issue on the aspect of medical negligence. The learned counsel for the opposite parties no.1,2 and5 has contended that the team of doctors who furnished their opinion had not examined the complainant or the opposite parties and the questionnaire supplied by the police is not framed by a doctor. The learned counsel for the complainant has submitted that the opposite parties no.1 to 5 had been grossly negligent in rendering treatment to the complainant and due to their negligence the complainant had suffered loss of health and but for the subsequent treatment at Apollo Hospital she has escaped from the fangs of death.

27. The team of doctors of the Government Hospital, Kurnool has expressed their answers to the questionnaire supplied by the police and their opinion as follows:

2) No

3) No

4) Yes, Normal

5) Documents are not clear.

6) No

7) xxx

8) xxx

9) xxx

10) xxx

11) xxx

12) Re-crossmatching with pilot blood, peripheral blood smear of the patients, FDP, Blood, Urea, Serum Creatinine, Serum Bilirubin, X-ray Chest, ECG, Haemoglobin, Urine for Haemoglobinurea

13) No clear documentation about this

14) Blood transfusion should be stopped. Anti-Histamine, Steroid, Oxygen followed by symptomatic treatment depending upon the systems involved. Yes, immediate treatment is necessary.

15) xxx

16) xxx

17) It is the duty of the Surgeon to attend the Post-Operative Care and treatment and without the consent of the patient or the relatives he cannot transfer the responsibility to others.

28. The team of doctors constituted by the Superintendent of NIMS, has expressed their opinion in the following words:

1) xxx

2) This note of Dr.K.Thirupal Reddy (No.15) dated 06.08.2008 reveals that Doctor has ordered/planned for blood transfusion (“Reserve One bottle of blood”) in this note. Investigating Agency or Medical Records does not reveal at what time patients sample was sent for Grouping and Compatibility and to which Blood Bank and when transfused unit was obtained.

3) Subsequent Pre-op and Intra operative notes do not reveal any Lab evidence/Clinical situation which can warranty One unit transfusion on 2nd post-operative day.

4) Anesthesia and Nurse notes of post operative period do not suggest that this patient required Blood Transfusion.

5) Indication for Transfusion not sufficiently recorded.

6) Transfusion practice and process is not upto the standard.

7) Due care to Transfusion process like from which blood bank the culprit unit was obtained at what time, what was their Cross matching and compatibility report, patient and unit under transfusion identity etc., is not recorded or not available.

8) In spite of adverse reaction reported by the patient and nurse no extra care to investigate further like sending back the samples to concerned blood bank and ordering for basic lab investigation as to confirm the adverse reaction is due to blood or any other causes Is not being recorded or not done or not available.

9) The concerned doctors of the hospitals has not carried further clinical exercise nor any aggressive steps taken for treating and managing such known adverse reaction in Kurnool Town itself – when such facilities are available.

10) There is a unexplained delay in recognizing and treating this known cause of any blood transfusion.

11) xxxx

OPINION

Collectively all parties from 1 to 5 are responsible for medical negligence however their individual share of responsibility is beyond purview of this committee.

29. Dr.Ravinder Reddy, Prof. in forensic medicine, Sri Mukambica Institute of Medical Sciences, Kulaseharam, Kanyakumari District Tamilnadu has stated that he is an expert in forensic medicine with an MD in Forensic Medicine with 30 years of experience in teaching forensic medicine to undergraduates and post graduates. He has opined that he has not expressed any opinion on reduced expectancy of life of the complainant and he made observations and mentioned the lapse on the part of the treating doctors on perusal of the case records, the reply of the treating doctors, expert committee report of Kurnool General Hospital and NIMS. He has stated that the following lapses on the part of the opposite parties no.1 to 5 in treating the complainant were observed by him:

a) The necessary pre-operative investigations were not carried out.

b) Nowhere do the case records mention that the patient was anemic and required blood transfusion.

c) No post-operative and anesthetic notes are recorded in the case sheet. The post-operative condition of the patient did not require any blood transfusion. No tests were conducted before transfusion of blood. There were no surgical complications.

d) Precautions before transfusion were not taken.

e) The complications of blood transfusion were not explained to the patient and no consent for transfusion of blood was taken as blood transfusion could cause serious risks to the patient.

f) The consent obtained at the time of admission is not valid for all subsequent procedures. The consent form does not mention the name of the doctor who operated the patient.

g) The consent form does not mention about the responsibilities of the subsequent post-operative care whether it was Dr. Thirupal Reddy or his assistants or St. Theresas Hospital doctors to administer.

h) The doctor was informed about the transfusion reaction but he failed to immediately attend on the patient, failed to investigate the reasons and to conform that adverse reaction was due to blood transfusion or due to some other causes.

i) The patient was unattended for a day and in renal failure but no specialist consultation even sought but a MD General Medicine was summoned to the hospital who after knowing that it was case of blood transfusion reaction failed to treat or advise for specialist treatment by a Nephrologist.

j) The doctor admitted the patient in a Heart and Brain Center where were no facilities for dialysis even though such facilities were available in other hospitals at Kurnool.

k) The doctor finally accepting and realizing that it was acute hemolytic transfusion reaction refers the case to a Fernandez Hospital Hyderabad which has no facilities to treat the case.

l) The patient was said to be under the care of Dr. Surekha, who assisted Dr. Thirupal Reddy. She failed to attend the patient after the reaction. The patient was left unattended by any medical doctor leave alone a specialist.

m) St. Theresas Hospital failed to obtain consent from the patient for blood transfusion. The hospital failed to send the post transfusion blood sample, urine sample and the blood bag and the tubing with the remaining contents for investigation.

n) No tests were conducted before or after blood transfusion. The case record do not mention the name of the duty doctor who transfused blood.

o) Medical records are incomplete, the notings are tampered, intake and output chart clearly show that the patent was in a state of anuria (no urine output) due to renal failure consequent to blood transfusion. No specialist doctor was summoned to attend to the patient.

P) Dr. S. Chandra Sekhar is said to have visited the patient on the date of the reaction. The records do not reveal any investigation to be done. He failed to record medical history of the patient. He failed to recognize the seriousness inspite of his being a specialist in general medicine. The doctor prescribed paracetomal injection for mild fever.

30. The first opposite party has stated that he diagnosed the complainant as anemic basing on the laboratory reports and advised her for blood transfusion and the fourth opposite party hospital authorities directed the attendant of the complainant to get one bottle of blood from Red Cross Blood Bank Kurnool. He has stated :

“The second opposite party instructed the nurses on duty for transfusion of blood which she has done as per their instructions. Within 15 minutes patient reported chills and as per the doctors advise transfusion was stopped and vital signs were checked. The second respondent instructed to give lasix injection intravenous and also asthelene nebulization. As per the instructions given, medicines were administered and the same was recorded in the case sheets”

“The authorities of the blood bank will issue the blood only after due investigation and cross matching with the donors blood. The complainant has intentionally not enclosed the report of the pre-operative investigations conducted in ALR Laboratory. Now I am filing the said attested copies of the entries of the laboratory. That subsequent to the blood transfusion, the complainant developed complications and immediately after noticing the said complications the blood transfusion was discontinued and thereafter the complainant was administered Lasix injection and also given asthalin nebulization”.

31. Dr.Ravinder Reddy has stated that the opposite parties no.1 to 3 were aware of the blood transfusion reaction, its hazards and complications like renal failure, jaundice, hypotension and coagulation failure and also they were aware of the nature of post transfusion tests to be conducted and patient suffering from anuria (no urine output). According to him the complainant was to be treated by dialysis under a nephrologists care and the opposite parties no.1 to 4 referred her to the opposite party no.5 hospital where no facility for dialysis was available exists and the complainant was treated by the opposite party no.1 who is a gynecologist and not an expert in treating the disease the complainant suffered from. Dr.Ravinder Reddy in his reply to the interrogatories of the opposite parties no.1 2 and 5 has stated that he is aware of various blood transfusion reactions and their causes and the investigations to be done before and after the transfusion. On the question of his lack of competence to express opinion on the quality of medical care given to the complainant in a hospital without having any experience in treating the patient, he replied that he possessed reasonable degree of skill and care with adequate knowledge in treating the case and opined that the opposite parties no.1 to 4 failed to enclose care in the course of treatment rendered by them to the complainant and their medical records do not reflect whether the blood transfusion was necessary.

32. The opposite party no.3 has stated that he is not a regular consultant doctor to the opposite party no.4 hospital and on receiving call from the opposite party no.4 hospital on 9.9.2008 at about 6 p.m. he examined the complainant by which time the blood transfusion was stopped and the complainant was suffering from mild fever. Her blood pressure was normal as also urine output and he advised paracetomol to the complainant and instructed the staff of the opposite party no.4 hospital to inform him about the patient whenever his assistance is necessary. He has stated that he noted the condition of the patient at page 24 of the case sheet and he had received any further information from the opposite party no.4 hospital.

33. The opposite party no.4 has contended that his role in the treatment rendered to the complainant is limited to the post-operative stage particularly with reference to the stage where the complainant suffered from breathlessness on account of blood transfusion which was stopped by the time he visited the opposite party no.4 hospital.

34. Dr.N.Uma Maheswara Rao, Prof in Obsteritics and Gynaecologist Shantaram Medical College, Nandyal, Kurnool has stated that according to the statement of pathologist of KLR Lab, the complaint was anemic and there is an entry to the effect that her hemoglobin percentage was 7.5 gm on 10.8.2008. He has stated that the first opposite party ordered by telephone for blood transfusion and the third opposite party examined the patient following the report of blood transfusion reaction and before blood transfusion injection evil, injection decodran were given following breathing difficulty and blood transfusion was stopped and injection Lasix was given as also asthalin nebulization was done.

35. The contention of the complainant that there was no need for blood transfusion to her and as the LSCS she had undergone is not an emergency and elective surgery, there was any necessity for blood transfusion to her cannot be held sustainable as it is the first opposite party and the second opposite party who at the relevant time were administering treatment to her, are the proper persons to decide whether there was requirement for blood transfusion to the complainant either during the pre-operative stage or post-operative stage. In “C.P.Sreekumar M.S (Ortho) vs S.Ramanujam” in CIVIL APPEAL No.6168 OF 2008 decided on 1 May, 2009.

‘It is also relevant that though the respondent had sought the opinion of Dr. Ajit Yadav of the Tamil Nadu Hospitals on 30th May 1992, he produced no evidence to off.set the appellant's evidence as to why he had chosen hemiarthroplasty over internal fixation. It is qually significant that the respondent had taken the advice of several renowned doctors including Dr. Mohan Das and Dr. Nand Kumar, but none of them in their treatment notes observed adversely about the choice of treatment nor any negligence in the actual operation. In the light of the fact that there is some divergence of opinion as to the proper procedure to be adopted, it cannot be said with certainty that the appellant, Dr. Sreekumar was grossly remiss in going in for hemiarthroplasty. In Jacob Mathew case (supra) it has observed as under:

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed”;

21. It would, thus, be seen that the appellant's decision in choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably erroneous or unacceptable as to dub it as a case of professional negligence‘

36. The first opposite party had left the opposite party no.4-hospital after the complainant had undergone LSCS. The first opposite party has stated that the blood was transfused by the nursing staff of the opposite party no.4-hosptial whereas the Administrator of the opposite party no.4-hospital has stated that as per the instructions of the second opposite party, the nurse, Ms Madhavai has transfused blood to the complainant. The first opposite party would has stated that :

“ It is submitted that the next day i.e., 10.08.2008 at about 1.30 a.m. the O.P.No.1 attended on the complainant and found all vital signs normal, including urine output”.

37. The administrator of the fourth opposite party-hospital, Sister Lina Thettayil in her affidavit has stated that the second opposite party has instructed the nurse for transfusion of blood to the complainant. She has stated as under:

“The second opposite party instructed the nurses on duty for transfusion of blood which she has done as per their instructions. Within 15 minutes patient reported chills and as per the doctors advise transfusion was stopped and vital signs were checked. The second respondent instructed to give lasix injection intravenous and also asthelene nebulisation. As per the instructions given, medicines were administered and the same was recorded in the case sheets”

38. She in her reply to the interrogatories of the complainant has stated that:

“As per the instructions of Dr. Thirumal Reddy his assistant Dr. P. Surekha instructed and supervised the blood transfusion to the patient Smt. V.Madhavi and as transfusion was in process staff nurse noticed the breathlessness of the patient and immediately stopped the blood transfusion and nurse phoned to Dr. Thirumal Reddy who sent Dr. Chandra Shekar physician who came immediately and by the time Dr. Thirumal Reddy and Dr. P. Surekha were with the patient”.

39. As against what has been stated by the opposite party no.4-hospital, the second opposite party in her reply to the interrogatories of the complainant as to whether she was present when the blood was transfused to the complainant she has stated that :

“No. I am informed by Dr.Thirupal Reddy about the blood transfusion reaction after stopping of the blood. By the time I went to the hospital, the transfusion was stopped and Physician Dr.P.Chandrashekar was attending on the patient”.

40. The cumulative effect of the statements of the opposite party no.1,2 and 4 is that the complainant was left at the mercy of a nurse who transfused the blood to her.

41. Apart from leaving the complainant to the discretionary treatment of the nurse of the opposite party no.4-hospital, the first opposite party would contend that on 7.08.2008 the complainant was admitted to the opposite party no.4-hospital and he got conducted pre-operative tests at KLR Laboratory, Kurnool on 7.08.2008 and to the effect he filed the affidavit of the owner of KLR Laboratory. The owner of KLR Laboratory has deposed that he has stated in the affidavit basing on the record available in his laboratory and he had given copy of the report to the first opposite party . He has stated that after conducting tests such as blood grouping, RBS, HIV,HBS Ag, AntiHIV etc, he handed over the reports to the complainants husband.

42. The first opposite party has given reply to the interrogatories of the complainant furnished to the owner of KLR labor rotary, Dr.K.Laksmi Reddy and stated that Dr.K.Laksmi Reddy telephonically informed him that the investigation reports would be handed over to the patients and that he would maintain the records for a period of three years and that Dr.K.Laksmi Reddy would identify the complainants husband. The learned counsel for the complainant has contended that the reply has to be given by Dr.K.Laksmi Reddy and not the first opposite party and as such the evidence of Dr.K.Laksmi Reddy has to be eschewed. Subsequently, Dr.K.Laksmi Reddy has filed his reply wherein he has stated that the first opposite party without consulting him had given reply to the complainants interrogatories furnished to him (Dr. Lakshmi Reddy) and the first opposite party misled this Commission by giving answers on his own accord without consulting him He has stated that he has no records with him and he cannot identify the husband of the complainant. Thus, the evidence of Dr.K.Laksmi Reddy is not credit worthy and cannot be considered for any purpose as it does not have any evidentiary value.

43. If the evidence of Dr.K.Laksmi Reddy is brushed aside, there is no evidence on record to show that the first and the second opposite party had advised the complainant for the preoperative tests such as blood grouping, HIV etc., The learned counsel for the complainant would contend that there were inadequate pre-operative investigations, no proper consent; unnecessary blood transfusion to the complainant; no post-operative care; shifting of the complainant to the fifth opposite party- hospital where no medical facilities are available; incompetence of the first opposite party; non-maintenance of treatment record and fabrication of lab report as the factors that establish deficiency in service on the part of the first opposite party.

44. Except the plea of the unnecessary blood transfusion to the complainant and improper consent, all other plea hold much water as the evidence on record both the documents and the affidavits as also the reply to the interrogatories given by the witnesses in the form of affidavits would establish that the first opposite party has not maintained proper record. The complainant had been consulting the first opposite party much prior to her admission in the fourth opposite party-hospital. The first opposite party has not maintained any record showing the medical advice he had given and the line of treatment he adopted. The complainant has not raised any protest or objection at any time prior to filing the complaint that the first opposite party has not obtained the consent in proper form from the complainant.

45. The learned counsel for the complainant has referred to the reasons for obtaining consent, full disclosure to be made by the treating doctor and informed consent mentioned in the decision of the Honble Supreme Court in “In “Samira Kohli Vs Dr.Prabha Manchanda and Another” reported in (2008) 2 SCC 1. In that case, the reasons for obtaining consent, full disclosure and informed consent are elaborately dealt with. It was held that:

“We may now summarize principles relating to consent as follows:

(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose

(a) nature and procedure of the treatment and its purpose, benefits

 and effect;

(b) alternatives if any available;

(c) an outline of the substantial risks; and

(d) adverse consequences of refusing treatment.

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. “

46. The consent obtained prior to performing surgery would show that the complainant and her husband were informed the line of treatment to be adopted which include blood transfusion and the complications if any, thereof. The ratio laid in the decision is not applicable to the facts of the case. The consent form, ExA2 would establish that the opposite parties no.1 and 2 had obtained the consent dated 8.08.2008 of the complainant for operation, diagnostic examination, biopsy and transfusion of blood. In the complaint there is no averment to the effect that the complainant was not informed the surgical procedure and transfusion of blood etc. This Commission does not accept the complainants plea of the improper consent said to have been obtained by the first opposite party.

47. In regard to the first opposite party shifting the complainant to the fifth-opposite party-hospital, the contention of the learned counsel for the complainant is found to have acceptable force as the fifth-opposite party-hospital is not equipped to meet the contingency where the complainant was suffering from renal problem and abnormal functioning of liver. The opposite party no.5-hospital does not have consultant nephrologists nor is it equipped to treat the cases of renal failure. Referring to anuria the complainant suffered from, Sister Lina in her reply to the interrogatories of the complainant has stated as under:

Up to 10 P.M. of 9th August 2008 there was urine output recorded in the fluid chart as per the case sheet. Blood transfusion was given at 4-45 pm on 9-8-2008. When there was no urine output the nurse on duty having found the respiratory abnormality which is more serious cause so the nurse informed Dr. Thirumal Reddy who in turn called Dr Chandrasekhar the Physician, then Dr. Thirumal Reddy shifted the patient to the higher medical centre as we do not have facilities for treating such cases.

48. The learned counsel for the complainant has contended that nephrologist was available and despite the fact, the opposite party no.1 and the opposite party no.5 had not called for nephrologist. The complainants husband has stated that the deteriorating condition of his wife required close monitoring at the opposite party no.5-hospital which the hospital failed to take care of and that the first opposite party is not competent to treat such case. The complainant was diagnosed at the opposite party no.5-hopsital, suffering from hypotension, renal failure, coagulation failure and jaundice. The opposite parties no.1 and 5 failed to exercise reasonable degree of care in treating the complainant.

49. The learned counsel for the complainant has placed reliance on the following books:

1. The Synopsis of Forensic Medicine and Toxicology

2. Emergency Medicine concepts and clinical procedure by Barsan and others

3. Guyton and Halls Text Book of Medical Physiology.

4. WinTrobes Clinical Hematology.

50. In “Emergency Medicine concepts and clinical procedure, the author while dealing with the topic,”Blood and Blood Components” had observed that with the discovery of A,B,O and AB blood types , the era of blood transfusion began in the early 1900s and the first blood bank in the United States was established in 1937. He observed the legal aspects of blood transfusion under the head ”Administration” as under:

Legal Aspects:

Before “a blood product can be infused, it must be checked at the bedside by two qualified personnel. This check includes recipient and unit identification, compatibility, and expiration. “. The identification of the patient and the intended product prevents a potentially fatal clerical error.

51. He has referred to the management of blood transfusion under sub-caption “Decision Making” that:

Decision Making:

The decision to use blood component therapy must encompass the entire clinical picture. The patients age, severity of symptoms, cause of the deficit, underlying medical condition, ability to compensate for decreased oxygen-carrying capacity, and tissue oxygen requirements must all be considered. Clinical evaluation including appearance (pale color, pale conjunctiva diaphoresis), mentation (alert, confused), heart rate, blood pressure, and the nature of the bleeding (active controlled, uncontrolled) can be supplemented by laboratory evaluation of hemoglobin, hematocrit, platelets, and clotting functions.”

Transfusions are needed if a rapid loss is greater than 30% to 40% of blood volume and if tachycardia and hypotension are not corrected by crystalloid replacement alone. Transfusion is rarely needed with a hemoglobin concentration greater than 10 g/dL and almost always needed when the hemoglobin is less than 6g/dL.

Intravascular Hemoiytic Transfusion Reaction: Intravascular hemolytic transfusion reaction is the most serious transfusion reaction and is usually the result of ABO incompatibility. It is often the result of a clerical error. An antigen-antibody reaction results in the intravascular destruction of transfused cells. Lysis of the transfused RBCs causes hemoglobin to be released, producing hemoglobinemia and hemoglobinuria. The onset of symptoms is immediate, and the patient may have fever, chills, headache, nausea, vomiting, and a burning sensation at the site of the infusion. A sensation of chest restriction, shock, and severe joint or low back pain may also be present.” Treatment includes stopping the transfusion immediately, haning all new tubing, and initiating vigorous crystalloid fluid therapy. Diuretic thereby should be used to maintain urine output at 1 to 2 mL/kg/hr. Dopamine in renal sparing closes may be needed to sustain the blood pressure and protect the kidneys. The use of steroids is not currently recommended, Renal and coagulation status should be monitored. Because acute tubular necrosis and DIC may develop, a urine and a blood specimen should be obtained and sent to the laboratory, as well as the remainder of the transfusion and the blood tubing.

52. A.Victor Hoff brand in “Postgraduate Hematology” observed that the complications of blood transfusion may be acute, delayed and immunological and non-immunological described the Hemolytic reactions as:

Haemolytic transfusion reactions:- This is premature destruction of transfused red cells reacting with antibodies in the recipient. Red cell alloantibodies form in occur immediately after the transfusion, or may be delayed for anything upto 2-3 weeks. Immediate haemolytic transfusion reactions immediate, intravascular destruction of recipient red cells should be avoidable. In practice, the main cause is error, when the incorrect blood component is transfused. The most severe reactions occur in major incompatibility, when a group O recipient with high –titre anti-A and /or anti –B, is transfused with group A, B or AB red cells. Less severe intravascular haemolysis occurs.

53. The author described to Intravascular destruction of red cells in the following words;

“Haemolytic transfusion reactions:- This is premature destruction of transfused red cells reacting with antibodies in the recipient. Red cell alloantibodies form in occur immediately after the transfusion, or may be delayed for anything upto 2-3 weeks. Immediate haemolytic transfusion reactions immediate, intravascular destruction of recipient red cells should be avoidable. In practice, the main cause is error, when the incorrect blood component is transfused. The most severe reactions occur in major incompatibility, when a group O recipient with high –titre anti-A and /or anti –B, is transfused with group A, B or AB red cells. Less severe intravascular haemolysis occurs.

Intravascular red cell destruction is the most dangerous type of haemolytic transfusion reaction. Intravascular destruction of red cels liberates Hb into the circulation. Once haptoglobins are saturat, Hb will also appear in the urine. If haemoglobinuria is very severe, haemosiderinuria may be seen. Renal complications consist of acute renal failure with oliguria and anuria, possibly the result of hypotension dependency unit may be required. The rental team should be involved early if urine output is poor (1 mL/kg/h) and haemofiltration may be necessary. Appropriate blood component therapy will be required if there is DIC.

All packs of transfused units should be returned to the blood bank. Pretransfusion samples should be tested in parallel. If no identification mistake is discovered immediately, a sample should be sent for bacteriological testing and all urine passed during the first 24 should be measured and examined for Hb. Subsequent management depends upon awareness of the possible complications and prompt therapy if these occur. If the patient develops only a rise in temperature, unaccompanied by other symptoms, red cell incompatibility is unlikely and the transfusion should be slowed, under strict monitoring , but need not be stopped.

54. The learned counsel referred to the authors observation on “Transfusion-related acute lung injury and the author is of the opinion that”

Transfusion –related acute lung injury (TRALI) consists of pulmonary infiltrates on chest radiograph, accompanied by chills, fever, could and dyspnoea with low oxygen saturation and low or normal central venous pressure. The clinical picture, depending on the severity, will be the same as acute lung injury (ALI) or acute respiratory distress syndrome (ARDS) due to other causes, and a differential diagnosis is essential. Symptoms develop very rapidly plasma –containing component.

Management is essentially supportive, requiring high-dependency unit care, and careful attention to fluid balance. The reaction is due in most cases to passive transfer of leucoagglutinins.

Transfusion of heavily contaminated blood will usually lead to sudden, dramatic symptoms, with collapses, high fever, shock and DIC with haemorrhagic phenomena. These symptoms resemble, and may be more severe than, those of ABO incompatibility. Prompt recognition of the cause and administration of broad-spectrum intravenous antibiotics, in conjunction with the treatment of shock are vital. The diagnosis should be confirmed by direct microscopic examination of the blood, and blood cultures from the recipient and the blood bag.

Prevention of this potentially disastrous complication of blood transfusion rests on stringent observation of procedures for aseptic techniques in blood collection and in the manufacture of anticoagulant solutions and packs. Packs should never be opened for sampling, and the unit should be transfused within 24 hours if any open method of preparation has been used (for example, washed red cells, frozen –thawed blood) Blood should always be kept in accurately controlled refrigerators (with alarms) , maintained strictly at 2-6C , and a unit of blood should never be removed and taken to the ward or theatre until it is required. The Practice of obtaining multiple units of blood for the same patient, and leaving unused units at room temperature(or in uncontrolled was refrigerators ) until needed must not be tolerated. Bacteria may cause hemolysis or clotting of blood and all units should be inspected for discoloration, foaming and absence of swirling.

55. Guyton and Hall in their book Medical Physiology had dealt with “Acute Intravascular hemolysis” as

Transfused red cells react with the patients own anti –A or anti-B, and the red cells are destroyed in the circulation, causing collapse, renal failure, and disseminated intravascular coagulation. Transfusion of ABO-incompatible cells usually results from an identification error. This can occur at point of blood sampling and labelling (wrong blood in tube), laboratory testing (technical error), blood unit labelling (administrative error), and collection from the blood refrigerator or inadequate bedside checking. If red cells are mistakenly transfused to the wrong patient, there is approximately a 1 in 3 chance that ABO incompatibility will occur. The reaction is most severe if group A blood is transfused to a patient who is group O, and only a few milliliters of red cells are required to cause this reaction. Prompt action in recognising this acute emergency and stopping the transfusion may lead to a better outcome because the severity depends on the volume of blood transfused. If an acute transfusion reaction is suspected, the laboratory must be informed immediately and the unit of blood and giving set must be returned to the laboratory with blood and urine samples from the patient.

Acute Intravascular Haemolysis:-

Acute intravascular heamolysis is potentially fatal and is usually due to ABO incompatibility resulting .

I. Check for haemolysis:

(i) Examine patients plasma and urine for haemoglobin.

(ii) Blood film may show spherocytosis, agglutination or erythrophagocytosis.

(iii) Biochemical evidence, including bilirubin and haptoglobin levels.

II. Check for incompatibility:

(a) Clinical causes

An identification error will indicate the type of incompatibility

(b) Serological causes

(i) Repeat ABO and RhD group pf patient (pre-and post-transfusion0 and donor units.

(ii) Screen patients serum (pre-and transfusion for red cell antibodies)

(iii) Repeat cross-match with pre- and post-transfusion serum.

(iv) Direct antiglobulin test ( pre- and transfusion samples)

(v) When direct antiglobulin test is postivine, elute the antibody from the cells.

II. Check for bacterial infection.

Gram stain and culture donor blood.

IV Check for baseline renal function.

Urea / creating and electrolytes.

From a misidentification error. This is an acute emergency, in which prompt diagnosis and treatment can be life saving. At the first suspicion of reaction, the transfusion must be stopped, as the severity of the clinical consequences depends partly on the volume of red cells transfused to the patient. The laboratory performing the pre-tranfusion compatibility testing must be notified immediately.

Diagnosis depends on demonstrating haemolysis in the patient and incompatibility between the donor and the patient. Patient identification and the donor unit compatibility label should be rechecked at the bedside. As clerical errors involving one patient may involve others crossmatched at the same time, it is essential to check the samples.

Serological investigations:

Specimens required.

1. Pre-transfusion serum and red cells of the patient.

Red cell incompatibility.

Transfusion of infected blood.

Other causes of haemolysis:

(i) Post-operative infection (e.g. clostridial septicaemia)

(ii) Infusion of hypotonic solutions (including hypotonoc dialysis)

(iii) Haemolytic anaemia(e.g PNH)

(iv)

Transfusion of lysed red cells:

(i) Thermal damage (pre-transfusion heating or freezing)

(ii) Mechanical damage (e.g. extracorporeal machines, excessive infusion pressure and / or small bore needle)

(iii) Addition of drugs or intravenous fluids.

(iv) Donor red cell enzyme deficiency.

Presence of haemoglobin in the case of intravascular haemolysis.

Serological tests:

1. Confirm the ABO and RhD groups of the patients pre-and transfusion samples and the donor units.

2. Perform DAT on the patients pre-and Post transfusion washed red cells a negative DAT post transfusion does not exclude a severe haemolysis reaction. In the event of positive DAT, clussion of the antibody may aid identification or confirm the specificities identified in the scruman cases of non-ABO incompatibility.

3. Repeat the cross match tests of donors red cells with patients serum, using pre-and post transfusion samples.

4. Screen the donor plasma and the patients pre and post transfusion serum samples for un-expected antibodies.

5. If the donor was group of O and the patient Grop A or B, then titre the anti-A and anti-B levels in the donor plasma, as high titres (64) are found in dangerous grope of donors.

Haematological tests:

1. Blood count – including platelet and reticulocyte counts.

2. Blood film – Spherocytosis, red cell agglutinates and possibly some fragmentation.

3. Coagulation screen, including fibrinogen assay and a test for fibrin degradation products.

Disseminated intravascular coagulation (DIC) is a feature of intravascular HTR and the transfusion of infected blood, serve DIC is a bad prognostic sign.

Bacteriological tests:

Inspect the donor unit(s) for any obvious haemolysis. The donor blood Unit(s) and giving set should be tested by culturing the remaining blood at 4C, 20C and 37C and by Gram stain and smear examination.

Biochemical tests:

The patients post-transfusion serum should be inspected for haemolysis, tested for free haemoglobin and haptoglobin and bilirubin levels estimated, and the results compared with those of the pre-transfusion sample. Urea/creatinine and electrolytes should also be estimated to obtain baseline information on renal function.

If, the above testing does not indicate a HTR or infected blood, other possible causes of an adverse immunological but non-haemolytic reaction, e.g. leucocyte antibodies, allergic reactions to plasma proteins should be taken into consideration when selecting blood for further transfusions.

56. The learned counsel for the opposite parties have referred to the literature on Hazards of Transfusion which reads as under:

The transfusion of blood products is not without its complications and about 5 % of patients receiving a transfusion will have a reaction. Most of the reactions are relatively mild but they can be severe, even fatal. The symptoms related to transfusion reactions are non-specific. It is often very difficult to distinguish on clinical grounds between a transfusion reaction and other complications which may occur during a patients hospitalization. The appreciation of these symptoms may obviously be extremely difficult in the anaesthetized patient. The safest approached is to assume that the event is transfusion related, stop the transfusion and begin the appropriate investigations. Transfusion reactions can be classified as acute, if they occur within 72 hours, or delayed.

57. The safe transfusion practice is mentioned as

The clinician expects to be supplied with high-quality blood products. In many parts of the world the responsibility for selecting and testing donors, and the preparation, quality control and storage of blood products are the responsibility of a specially organized blood transfusion service. Transfusion laboratories based in local hospitals, will match the product with the patient and the clinician exerts little control over these areas. However, the cause of the majority of fatal haemolytic transfusion reactions is a clerical error due to faulty labeling of the specimen and / or a failure to identify the recipient correctly. This type of error can be minimized by following the procedures outlined in principle below. Individual hospitals will frequently have their own policies for ordering and administering blood for transfusion and blood products, which should be followed.

A clinician drawing blood for cross-matching should.

Positively identify the patient at the bedside.

Label the tubes and request form after identifying the patient.

Ensure that all the information requested by the transfusion laboratory is given on both the tube and request form. This information must match.

The person administering blood should:

Positively identify the patient at the bedside.

Ensure that the patient identification and the identification of the units match

Check that the ABO and Rh D groups of the patient unites are identical.

Inspect the units for evidence of damage.

Ensure that the checking procedures are validated be another member o the nursing or medical staff.

Complete the necessary documentation, indicating detailed identification of the units transfused.

58. The opposite party no.4-hospital contends that preoperative tests were not done in the opposite party no.4-hospital and they were done at KLR Pathology Laboratory on 7.08.2008 before admitting the complainant in the opposite party no.4-hospital and all the records were handed over to the complainants husband by KLR laboratory and the reports or the findings thereof were not noted in the case sheet. Sister Lina of the opposite party no.4-hospital has stated in reply to the interrogatories of the complainant as follows:

3. The case sheet and answers to the questionnaire administered by the police during the course of investigation reveal that one Ms. Madhavi and another Ms. Rukmini administered and discontinuation of blood transfusion? What are the qualifications of Ms. Madhavi and Ms. Rukmini on the date of transfusion of blood? Whether there is any written instruction by competent doctors to administer transfusion of blood?

4. Are the detail of blood bag is recorded in the case sheet?

3and4 As per the instructions of Dr. Thirumal Reddy his assistant Dr. P. Surekha instructed and supervised the blood transfusion to the patient Smt. V.Madhavi and as transfusion was in process staff nurse noticed the breathlessness of the patient and immediately stopped the blood transfusion and nurse phoned to Dr. Thirumal Reddy who sent Dr. Chandra Shekar physician who came immediately and by the time Dr. Thirumal Reddy and Dr. P. Surekha were with the patient and noted in the case sheet the treatment part as per the advise of Dr.Chandra Shekar. Miss B.Madhavi BSc Nursing staff nurse. Mis Rukmini is a RNRM (Registered nurse and registered midwife) holding diploma in General Nursing. The blood transfusion was done as per the oral instructions of Dr.Surakha who asked the husband of the patient Sri Venkata Ramana Reddy to bring the “O”positive group blood and gave the requisition-prescription to the patient attendant who brought the blood packet from Red Cross blood bank which was administered as per the instructions of Dr.Surakha. Because the patient developed complications nursing staff on duty was busy with the patient and as per the instructions of doctors the nurse was acting so she could not record about the blood transfusion in the case sheet.

59. In “synopsis of Forensic Medicine and Toxicology” Doctor Naryana Reddy emphasized the importance of preparation and maintenance of medical records as under:

MEDICAL RECORDS:

The objects are:

1. To serve as the basis for patients care and for continuity in the evaluation of the patients care and for continuity in the evaluation of the patients treatment.

2. To serve as documentation for reimbursement.

3. To provide data for use in medical education and clinical research.

4. To document communication between the doctor treating the patient and any other health care professional who contributes to the patients care.

4. To assist in protecting the legal interests of the patient, the hospital and the practitioner responsible for the patient.

6. To follow up patients, evaluation of drug therapy and cost accounting.

The minimum requirements of accurate medical records are:

1. Evidence of informed consent.

2. An exhaustive history.

3. Relevant past and family history.

4. A description of the present disease or injury.

5. The report of physical examination showing objective findings and subjective complaint.

6. Diagnostic aids used and any reports received concerning the patient.

7. Impression of diagnosis.

8. Treatment, including medicines prescribed, and any procedures recommended or performed.

9. Complications if any.

10. Instructions given to the patient including diet.

11. Progress notes including clinical observations.

12. Notations concerning lack of co-operation by the patients.

13. Failure of the patient to follow advice or failure to Keep appointments.

14. In emergency cases, specific clinical data and observations should be noted periodically. The omission of essential details from the notes may cast of doubt on the truthfulness of the witness.

Patient has the right to know what is in his records and is entitled to a copy of his hospital record on discharge, by paying the cost of reproduction. The next of kin can get the record in case of patients death. Hospital had the responsibility to supervise the maintenance of appropriate, accurate, timely and up to-date patients records. The entries must be factual, substituted or added from the record, i.e. tampering should not be done, if tampering is done, patient may be awarded large sums, even though there had been no negligence.

60. The need to maintain medical record is mentioned in Annexures IV,V and VI in “The A.P. Allopathic Private Medical Care Establishments (Registration and Regulation) Rules,2007 which are extracted herein below:

i) Availability of Medical Record Room with enough number of racks and cupboards etc.

ii) Knowledge of staff in keeping the medical records in desired fashion

iii) Regular reporting of birthsand deaths to the appropriate authority(verify)

iv) Regular WHO (ICD 10) classificat5ion of diseases.

v) Quarterly submission of the morbidity, mortality reports(Check the report of the last ;month to assess the correctness)

vi) Monthly Death audit Meetings held minutes of meeting recorded/reported.

vii) Organization of Hospital Infection Control Committee meetings. Action taken on minutes and investigation done if any, (verify)

viii) Organization of Clinical Meetings and recording of Minutes. Involvement of IMA or Professional associations etc.

ix) If the doctor is not qualified for particular specialty but the hospital has the facilities to manage the case, the patient should be admitted and the concerned consultant called for. The doctor should start treatment by the time the consultant arrives.

61. Sister Lina of the opposite party no.4-hosptal has replied to the question as to whether the blood transfusion was noted in the case sheet and the instructions of any doctor who opted for such transfusion of blood to the complainant, that “the instructions for blood transfusion was given orally by Dr.P.Surekha at the instance of Dr.Thirupal Reddy and there was no blood loss during the operation but pre-operatively the blood report show low hemoglobin levels of 8gms”.

62. The gross negligence of the opposite party no.4-hosptial is manifest in not making note of the vital aspect of the treatment administered to the complainant and not keeping the record as also attempting to shift the burden on to the complainant on the premise that the records were handed over to the complainants husband by KLR Pathological laboratory.

63. The learned counsel for the complainant has relied upon the following decisions:

1. M.C.Katare vs Bombay Hospital and Medical Research Center and others 2010(5) ALD(Cons)1 NC.

2. Baburao Vithal Lohakpure and another vs Yuvraj Lohakpure and others in CCNo.44 of 1997 decided by the National Commission on 16.08.2007.

3 Samira Kohli vs Dr.Prabha Manchanda and another (2008)2SCC.

4. Holi Cross Hospital vs Maniram 2009(4)ALD (Cons)1 NC.

5.  A.K.Mittal vs Raj Kumar 2009(5)ALD (Cons)1 NC.

6. Savita Garg vs Director, National Heart Institute (2004)8 SCC 56.

7. Ram Gopal Varshey vs Lasor Sight India pvt ltd and another.(2009)CPJ 23(NC).

8. S.Kishan Rao and others vs Sudha Nursing Home and others III(2001)CPJ 478.

9. Dhanwanti Kaur vs S.K.Jhujhunwala(Sr) and another 2010(6) ALD 19(NC).

10.  Ashok Kumar Upadhyaya and another vs Dr.D.N.Mishra and others 2011(3)ALD(Cons) 5(NC).

11. Varanasi Subrahmanyam vs Dr.Ravi Kumar 2004(1) ALD (Cons) 9.

12. MS.ShefaliBhargava vs Indraprstha Appollo Hospital and another I(2003)CPJ 216(NC).

64. The learned counsel for the opposite parties have relied upon the following decisions:

1. The Calcutta Medical Research Institute vs Bimalesh Chatterjee and others199(1) CPR 3 (NC).

2. INS.Malhotra(Ms) and Dr.A,kriplani and others (2009) 4 Scc 705.

3. Martin D Souza vs Mohd.Ishfaq AIR 2009 SC 2049;

4. Kusum Sharma and others vs Batra Hospita and Medical Research Centre and others, AIR 2010 SC 1050.

65. In M.C.Katares case, the Honble National Commission held that the hospital failed to maintain the record of diagnosis and treatment in accordance with the direction of the Honble Supreme Court and the surgeon failed to exercise due care and diligence as also that there was failure on the part of the hospital and attending doctors to consult cardiologist at the time it was imminently required to provide a bed for patient in ICU six hours after her highly problematic surgery.

66. Babu Rao Vithal is a case where a 38 years old patient was admitted to the hospital for hysterectomy and taken to the operation theatre at 1.40 pm and was declared dead at 3.00 p.m. before the commencement of surgery in the presence of anesthetist, gynecologist, nurse and the surgeon as also a chest specialist who came to the operation theatre a few minutes before her death.

67. The National Commission held that treating doctors had taken ordinary precaution nor did they exhibit average skill possessed by an average surgeon or an anesthetist and that no pre-anesthetic checkup was conducted. It was held that the negligence of the anesthetist in administering anesthesia has resulted in cardiac arrest of the patient. The National Commission held that the treating doctors have not passed “the Bolam Test”.

68. In Holi Cross Hospital, the principal laid in Samira Kohli decision was made applicable to the facts of the case. In the aforementioned paragraphs, we have already discussed the law laid in Samira Kohlis case.

69. A.K.Mittals is a case where a child suffering from ear infection was admitted and operated upon and thereafter the child, Master Mahesh Kumar developed facial paralysis of right side and he was discharged from the hospital. In the complaint filed by the patient through his father, the opposite party hospital was held negligent for its failure to furnish hospital records to the complainant to enable him to present the records to AIIMS where he was subsequently treated. The National Commission held that the act of the hospital in producing the records before the State Commission and not furnishing the crucial records ie., discharge summary before the District Forum, State Commission and before the National Commission would amount to deficiency in service on the part of the hospital.

70. In Savita Gargs case, the Honble Supreme Court dealt with the circumstances where the complainant had discharged the initial onus cast upon him. The Supreme Court held that the burden lies upon the hospital to show that there was no negligence on its part or on the part of the treating doctor and the hospital has to prove it by producing the treating doctor. The Apex Court observed:

Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/ hospital than that of the claimant. The institution is private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple of weak links which has caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties”

71. Ram Gopal Varshney is a case where the patients eye was operated upon and his vision was lost. The complainant contended that there was lack of hygiene in the hospital. The National Commission held that the complainant failed to prove negligence on the part of the hospital or the doctor as there was no post-operative infection developed by the complainant. The National Commission proceeded to allow the complaint for the reason that there was no informed consent obtained from the patient and though there was no deficiency in service on the part of the treating doctor insofar as the treatment administered to the patient is concerned.

72. In S.Kishan Raos case, this Commission dealt with situation where the patient complaining of chest pain was admitted to the opposite party nursing home and she was diagnosed with Benign Cystic of Breast” and she had undergone an operation after the pathologist issued report and she developed a lump in her right breast six months after she was discharged from the hospital for removal of which another surgery was performed and thereafter another lump developed in the same breast and the opposite party referred her to Dr.Krishna Kumar for radiotherapy. She was treated at Bibi General Hospital and Cancer Centre Malakpet and breathed her last. This Commission held that the hospital was lacking infrastructure and facilities in rendering treatment to a cancer patient which coupled with the negligence of the treating doctor amounts to deficiency in service.

73. In Dhanwanti Kaurs case (supra) surgery for removal of stones in gall bladder was performed upon the patient by adopting laparoscopic procedure and the doctor without obtaining the consent of the complainants husband opted for open cholecystectomy. The National Commission held that there was no informed consent from the complainant or her husband for conducting open cholecystectomy and the opposite party failed to exercise requisite care and attention during postoperative stage.

74. In Ashok Kumar Upadhyayas case the question that fells consideration of the National Commission was whether service rendered by the doctor is amenable to the jurisdiction of the consumer forum and whether an expert evidence is required for determination of a case involving medical negligence. The National Commission held that doctor had not rendered treatment free of charge and insofar as the requirement of experts opinion is concerned in determining medical negligence, the National Commission held that the decision in Martin D Souzas case is considered in V.Kishan Raos case and held that the question whether expert medical evidence is necessary or not has been directly addressed by Honble Supreme Court in V.Kishan Rao Vs Nikhil Super Specialty Hospital.

75. In Varanasi Subrahmaynam is a case where the daughter of the complainant was treated by one doctor for the acute pain in stomach and vomiting and her condition was deteriorated and another doctor treated despite which the patients condition became worse and she remained unconscious and the doctors left her without administering further treatment as a result of which she died. This Commission held that the failure of the doctor who treated the patient for the first time to refer the patient for any test and his failure to advise the patient to be admitted as in-patient as also his negligence in not referring the patient to any other hospital with better facilities as also his abruptly leaving the patient to her fate when she was in critical condition constitutes deficiency in service on the part of the treating doctor.

76. In Ms Shefali Bhargavas case a 17 year old girl was admitted to the hospital with complaint of fever and she was subjected to blood test which had shown the platelet count of 59000 as against the normal range of 1,50,000 whereupon blood, platelets was transfused to her. The patients mothers blood which matched her blood was not transfused to the patient. The patient after the platelet blood was transfused, her blood was tested for HCV (Hepatitis C), antibodies and HB antigens which were found to be negative. She was discharged from the hospital with the advice that she should continue using the prescribed anti-malarial drug. Three months thereafter her SGBT (liver enzyme test) had shown abnormal result and the tests conducted at Dr.Lals Pathology which included a biopsy of her liver revealed that she got an acute attack of hepatitis C infection.

77. The National Commission elaborately dealt with the aspect of the patient contracting infection of liver subsequent to the platelet blood transfusion at the hospital and held that failure of the hospital to produce the medical record would be a circumstance for an inference to be drawn against the hospital as the hospital failed to produce medical record to show that none of the donors medical record who had donated their blood was produced by the hospital to show that any of them had not contracted infection hepatitis C. The National Commission held that :

The complainant argued that firstly the chances of infection during window period are 1 in 1,00,000 (Epidemiology of Hepatitis C virus infection: A Global Perspective by J. I. Estefan -Page 323); secondly that a superspeciality hospital like Apollo should have taken care and precaution to carry out a simple SGPT enzyme test on donor blood, in addition to the anti-HCV test, to detect elevated levels of SGPT (donors with level of more than 45-60 10/L carry 50% risk of Hepatitis with transfusion of only one unit) which indicate chances of Hepatitis C weeks before detection by anti-HCV method. In support of this, the complainant relied on extracts from Harrisons Principles of Internal Medicine (Exhibit 24 page 266). We see force in the contention of the complainant. Further, however, we would have accepted these arguments of the respondent that while it is unfortunate that the complainant got the infection of Hepatitis C virus, there is no wilful default on the part of the respondents because of this "Window Phase" period, if only the hospital had maintained meticulous records relating to the blood donation and the further processing of the blood for Platelet concentration. As we indicated above, at least in the case of two donors, complainant alleges that the Platelet concentration was made on 18th June (and this has not been satisfactorily countered) whereas the hospital records show that the blood itself was received from the donors on the 20th June which is an impossibility. The circumstances of this case clearly show that the complainant must have got the Hepatitis C infection through contaminated blood.

78. in the Calcutta Medical Research Institute decision, the National Commission set aside the order of the State Commission. The State Commission allowed the complaint awarding an amount of Rs.42,225/- towards medical expenses and a sum of Rs.2 lakh towards compensation. The National Commission held that the State Commission awarded for negligence and deficiency in service in transfusing blood of wrong group to the complainant. It was held that the onus of proving negligence and resultant deficiency in service was cast upon the complainant and the complainant failed to discharge the onus cast upon him.

79. INS.Malhotra(Ms)s decision (supra) the Supreme Court considered the circumstances where the patient suffering from burning sensation in stomach, vomiting and diarrhea was admitted to Bombay Hospital where he was prescribed to undergo several tests and diagnosed as having kouches abdomen and thereafter she was referred to a nephrologist who diagnosed her with kidney failure and chronic renal failure. The patient had undergone hemodialysis which had not given any positive result and further tests confirmed her having Kouchs abdomen. She was advised laparoscopy and her femoral catch was removed. After the operation she was removed to recovery room where she became speechless and suffered from breathing difficulty. Subsequently she became unconscious and she was subjected to hemodialysis and pneumothorax and at night on the same day she expired. The postmortem report revealed that the cause of death was due to peritonitis and renal failure. The Supreme Court held that negligence of a doctor can be held on application of the law laid in Jacob Mathew Vs State of Punjab (2005), VI SCC,1 wherein it was held:

In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

80. In Martin F.DSouzas case, the Honble Supreme Court laid down the precautions which doctors/hospitals should have taken, in the following terms.

(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly…

(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.

(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.

(d) A doctor should not make experiment unless necessary and even then he should ordinarily get a written consent from the patient.

(e) An expert should be consulted in case of any doubt…"

(f) Full record of the diagnoses treatment etc., should be maintained.

81. The Supreme Court referred to para 52 of Jacob Mathews case which reads as under:

A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

82. Kusum Sharma is a case where surgery was performed for removal of abdominal tumor and it was held that procedure adopted by the doctor performing surgery being supported by expert opinion and as such negligence cannot be attributed to the doctor. The Supreme Court held that medical professionals are not to be unnecessarily harassed or humiliated so as to enable them to perform their duty without fear and apprehension. Their Lordships referred to the earlier decisions in Jacob Mathews case, Poonam Vermas case, Springmeadows Hospitals case and reiterated the principles to be the parameters for deciding medical negligence cases which read as under:

I.  Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II.  Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.  The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.  A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V.  In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI.  The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.  Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX.  It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X.  The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI.  The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

83. Recently the Supreme Court decided V.Kishan Raos case and in the decision the Apex Court referred to all important its earlier decisions and held that the illustrations of the author Michael Jones on “Medical Negligence” explained the principle of res ipsa loquoitur which would assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. The Supreme Court approved the illustrations which are set out below:

Where a patient sustained a burn from a high frequency electrical current used for electric coagulation; of the blood

Where gangrene developed in the claimant's arm following an intramuscular injection When a patient underwent a radical mastoidectomy and suffered partial facial paralysis

Where the defendant failed to diagnose a known complication of surgery on the patient's hand for Paget's disease

Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin

Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes

Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma

When a needle broke in the patient's buttock while he was being given an injection

Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient.

Where an infection following surgery in a "well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury and

Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap

84. Further the Supreme Court has approved the guidelines laid in Indian Medical Association Case and Jacob Mathews case and it has not accepted the directions laid in Martin D Souzas case as constituting a binding precedent in cases of medical negligence. In para 53 of the judgment it was held that:

53. The two-Judge Bench in D'souza has taken note of the decisions in Indian Medical Association and Mathew, but even after taking note of those two decisions, D'souza (supra) gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant (supra) has not been noted in D'souza (supra). Apart from that, the directions in paragraph 106 in D'souza (supra) are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act

85. A conspectus of the ratio laid in all the aforementioned decisions would show that medical negligence on the part of treating doctor or hospital has to be determined on the touchstone of the principle laid in Bolams case. The guidelines provided for determination of medical negligence of a doctor or hospital indicates that in cases of gross medical negligence the principle of res ipsa loquitor can be applied and that a doctor or hospital can be found negligent in case of failure to exercise due care and reasonable skill if it does fell below that of the standards of a reasonably competent practitioner. The acts or omissions of the doctor or the hospital whether constitutes negligence depends upon the current state of knowledge of the doctor in medical science at the he treated the patient. The question of medical negligence is a mixed question of fact and law.

86. The statement of the complainant husband Dr.Ravinder Reddy coupled with the opinion of Expert Committees constituted by the Superintendent of government General Hospital, Kurnool and NIMS Hyderabad would establish that the opposite parties no.1 to 4 had not taken reasonable care at the time of and also prior to the time of transfusion of blood to the complaint and equally the opposite party no.5 was held negligent by the team of doctors and Dr.Ravinder Reddy as well.

87. The complainant has claimed an amount of `14,00,000/- towards medical and other expenditure, `50,00,000/- towards compensation for pain and mental agony said to have suffered by her and costs of the proceedings. The complainant has not impleaded the Red Cross Blood Bank despite specific objection taken by the opposite parties. The complainant has not filed her affidavit for the reasons best known to her. It is rightly contended by the opposite parties that the husband of the complainant is not competent to state that the complainant has suffered mental tension. The expert committees of the Government General Hospital Kurnool and NIMS have not specifically arrived on a conclusion that but for mismatching of blood group the complainant developed complications after the blood was transfused to her at the opposite party no.4-hospital.

88. The Honble Supreme Court in “State of Gujarath vs Shantilal Mangaldas” AIR 1969 SC 634. held the compensation to mean”…..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression ‘paid would have been more appropriate”.

89. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In “Charan Singh vs Healing Touch Hospital and others” 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held “While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”.

90. The complainant has to file affidavit or enter witness box to state the mental tension she had undergone due to lapse in treatment administered by the opposite parties . The complainant has not adduced evidence nor filed her affidavit to the effect and as such she is not entitled to the amount claimed as compensation for mental agony. The chance of the blood transfused getting infected at any stage from the time it was collected by the Red Cross Blood Bank til it was transfused to the complainant is very high. The hazards of blood transfusion is also an important factor to be considered while awarding compensation against the doctors. The complainant has not produced documents for the actual expenditure she has incurred and even there is any evidence to the effect, the amount as a whole cannot be sought for against the opposite parties as the blood bank is also a party to the entire episode. Therefore, taking into consideration we award the amount of `6,00,000/- in favour of the complainant and the amount is payable by the opposite parties in proportion to the degree of negligence they had shown in rendering treatment to the complainant.

91. In the result, the complaint is partly allowed. The opposite party no.1 is directed to pay an amount of `2,00,000/-, The opposite party no.2 an amount of `1,00,000/-, the opposite party no.3 a sum of `50,000/-, the opposite party no.4 an amount of `1,50,000/- and the opposite party no.5 a sum of `1,00,000/- a total amount of `6,00,000/- (Six lakh rupees only) and each of the opposite parties shall pay costs of `1,000/- to the complainant. Time for compliance four weeks.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //