1. The Hospital and its Managing Director Dr. Hafees Rahman Padayath, the surgeon, who performed the surgery, have come up in appeal assailing the order dated 31.10.2018 of the Kerala State Consumer Disputes Redressal Commission at Thiruvananthapuram (hereinafter referred to as the State Commission), wherein, finding negligence against the appellants for the death of Mrs. Vinitha Naveen on whom surgery was performed, the State Commission has imposed a compensation of Rs.33,16,000/- with interest @ 8% and costs of Rs.1,00,000/-.  The appellant no.2/Doctor has also been called upon to pay a sum of Rs.5,00,000/- as compensation out of the amount awarded and the hospital has been directed to pay the rest of the awarded compensation.
2. The entire event of the alleged medical negligence is spread over between 28.05.2010 till 31.05.2010.  The surgery was for a complaint for removal of Ovarian Cysts and adinomiosis of the uterus which late Mrs. Vinitha Naveen was advised to undergo through a laparoscopic operation.  The appellant no.2 is the surgeon who conducted the surgery on 28.05.2010 in his hospital (the appellant no.1).  According to the respondents/complainants, the deceased faced complications of breathlessness, chest pain and other symptoms post-surgery that were not properly attended to as a result of which her difficulties continued and then her condition deteriorated from 29.05.2010 onwards up-to 31.05.2010 when ultimately she was treated but by that time it was too late and she suffered a severe stroke of pulmonary embolism resulting in her death on 31.05.2010/01.06.2010 at about midnight.
3. The complaint was filed alleging that inspite of the patient witnessing chest pain, breathlessness, fatigue, respiratory and cardiac problems post-surgery, was neither diagnosed nor properly treated or attended to that resulted in an expected possibility of pulmonary embolism.  The said status of the patient required an aggressive treatment but lack of reasonable and standard skill and care by the appellants/opposite parties resulted in her untimely death.  A legal notice was issued to the appellants where-after the complaint was filed and the appellants filed a joint written version and then also led expert evidence.
4. After examining the documents on record and having noticed the arguments advanced, the State Commission recorded findings in the impugned judgment from paragraph 16 onwards upto paragraph 19 where the status of the patient post-operative was discussed to conclude that the signs and symptoms of pulmonary embolism had set in which were not investigated and diagnosed till 31.05.2010.  An echocardiography was taken by the cardiologist confirming the precarious condition of the patient, where-after little time was left and the patient could not be saved.
5. From paragraph 20 onwards the State Commission has recorded that the discomforts of the patient were brought to the notice of the surgeon and the chest physician and the entries indicated the continued breathlessness and pain on the left side of the chest.  The appellant no.2 examined her only at 5.00 p.m. on 31.05.2010 where-after pulmonary consultation followed and it was confirmed that the patient had pulmonary congestion.  Severe tachycardia on the echocardiography was confirmed.  The State Commission concluded that the discomfort of the patient on the preceding dates as noted in the doctors’ sheet did indicate these symptoms, but her complaints were not diagnosed and no treatment thereof was provided till that time.  The State Commission granting concessions that the non-detection at the earlier stages could possibly be excused, but once it had been detected on 31.05.2010 morning by the visiting doctor, the immediate attendance of a chest physician was lacking and medical attendance to examine the same arrived only after the appellant no.2 reached on the scene at 5.00 p.m. that evening.  The crux of the findings recorded by the State Commission is extracted hereunder:-  

“20.  … …  …  The non detection of pulmonary embolism at an earlier stage up to early morning of 31.5.2010 can be excused but not there afterwhen the visiting doctor in the early morning itself noticed that she had tachypnea and needed care and assistance of the chest physician. No chest physician examined her and was done only after the 2^nd opposite party doctor visited and examined her at 5pm are telltale circumstances showing there was negligence on the part of the medical practitioners in the 2^nd opposite party hospital including the 1^st opposite party in timely attending to the patient and diagnosing her complaints carrying out proper tests required till the evening of 31.5.2010. The patient had been showing various symptoms associated with pulmonary embolism and even the visiting doctor who examined her in the early morning on that day noticed that she had tachypnea and the advice of chest physician was needed, but, that was sought for only in the evening and by that time it was too late and fatal. The chest physician examined her only at 7.35pm in the evening is clearly indicative that till the visit of the 2^nd opposite party at 5 pm the serious complaints shown by the patient giving room to suspect pulmonary embolism were not looked into nor taken care of with immediate corrective measures.

21. We may also point out that there is every reason to suspect that the first opposite party has produced Ext.C1 case sheet of the patient manipulating the nurses daily record forming part that medical record. Pages 55 to 60 of Ext.C1 contain nurses daily record. Surprisingly pages 55, 56 and 57 are seen to be photocopies and after page 55 there are two blank pages and after page 57 also there are 3 blank pages. Scrutiny of the nurses daily record shows that the entries made by the nurses during the entire period of hospitalization of the patient have not been produced. What we notice is that after the entries made available till 6pm on 29.5.2010 subsequent entries are only from 9.30pm on 31.5.2010. The entries after 6pm on 29.5.2010 till 6pm on 31.5.2010 are found missing. We have already pointed out the observations and findings made by the visiting doctor on the early morning of 31.5.2010 with the advice made to seek the opinion of the chest physician. Naturally the nurses’ record of the patient from 30.01.2010 and till 6 pm on 31.5.2010, if produced, would have shown what was the condition of patient during that period. Evidently the nurses record on 30.5.2010 and up to 9.30pm on 31.5.2010 have been withheld from the Commission and a truncated nurses record with some photocopies are appended to Ext.C1. Production of the nurses record containing the entries on 30.5.2010 and till 6pm on 31.5.2010, it seems, would be prejudicial and harmful to the interest of the opposite parties. Most probably the entries made in nurses record withheld by the opposite parties might have contained noting of the various complaints suffered by the patient and that was the reason why it was withheld from the Commission. That is also an added circumstance to conclude that atleast from the early morning of 31.5.2010 there was culpable latches and wilful default on the part of the medical practitioners and paramedical staff of the first opposite party hospital in properly diagnosing the complaints of the patient as arising from pulmonary embolism and providing her immediate necessary treatment thereof, and, the delay in the diagnosis and treatment which arose from sheer negligence turned out to be fatal in causing the untimely death of the patient.

22. Opposite parties in their versions and also in evidence, it is seen, have tried to project a case that till noon of 31^st May 2010, she had no signs indicative of pulmonary embolism and once chest physician after taking x ray formed the impression that she had pulmonary congestion, what all treatment that could be provided as per the standard procedure had been given to her and in spite of their best efforts, suffering bradycardia and cardiac arrest, she breathed her last. Whether she was provided appropriate treatment as per the standard procedure after detection, which was made belatedly, would not absolve the opposite parties of medical negligence and deficiency in service. We notice that the 2^nd opposite party who conducted the surgery on the patient, as per the entries made in exhibit C1 and as asserted by the complainants, has not visited her after the surgery till the noon of 31^st May 2010. When examined as DW2, he has agreed to produce his passport, but that was not produced. He is stated to be having practice even outside the country and if at all he was absent after the surgery carried out on the patient, whether proper and necessary arrangements had been made to take care of her by entrusting her care to efficient medical professionals remain unexplained. What we notice is that the duty doctor who examined the patient ignored her complaints of breathlessness, pain in the lower limb, chest pain etc. as gaseous discomforts which normally happen to a patient after a laparoscopic surgery. She was administered medicines as if her complaints related to gaseous problems. We have already pointed out that her ECG taken on 29.05.10 i.e. the next day after the surgery, indicated that she had sinus tachycardia. Even then, it appears, the opinion of cardiologist was not taken and no further probe was made as to what could be the cause thereof. We find from the materials that all serious symptoms shown by the patient after the operation which continued unabated increasing its intensity day by day, were not seriously investigated and no proper diagnosis was made till 5 pm. on 31.05.10 when only examination by the chest physician was sought for, who after examining her at 9.35pm, formed the impression that she suffered chest congestion. The inescapable conclusion in the proved facts and circumstances presented in the case can be nothing but that there was culpable medical negligence and deficiency in service on the part of the opposite parties in attending to a post operative patient, probing of her complaints and forming proper diagnosis thereof, and, providing of adequate and necessary treatment immediately to save her life, and the failure to do so has resulted in her untimely death.”

6. Learned counsel for the appellants while advancing his submissions has extensively read the statements of the witnesses, including that of PW-1 Sasikala Menon.  Pointing out towards her statement and cross-examination, it is urged that she has admitted having not stated relevant facts in the complaint to urge that the pleadings were absent while such facts were deposed in the evidence.  It is therefore submitted that any proof without pleading clearly establishes that the complaint was deficient for pleadings.  The omissions in the pleadings have been admitted according to the learned counsel for the appellants. 
7. He has then invited the attention of the Bench to the statement of expert witness PW-2 Dr. Suresh K. who having explained the entire mechanism of diagnosis and treatment of pulmonary embolism has opined that symptoms of pulmonary embolism were not suspected at that stage and no further tests were available to confirm or exclude the symptom till 31.05.2010.  He also deposed that appropriate treatment was given on 31.05.2010 but unfortunately it was late.  He however deposed that from 28.05.2010 onwards there were no signs at that stage of any pulmonary embolism.  He also indicated that the status of the patient appeared to be stable on the basis of the documents that he had perused.  His opinion was that the only symptom the patient was having, was a mild pain in the abdomen and the vitals of the patient were stable, as such at that stage during the first 24 hours of the surgery there was no symptom or sign to suspect pulmonary embolism.  The appellant no.2, according to the said witness, had mentioned palpitation and dyspnea for two days.  That confirms that on 29.05.2010 the deceased was having symptoms of palpitation and breathlessness.  He however stated that the exact area of the pain was not recorded but pulmonary embolism was first confirmed and diagnosed at 8.00 p.m. on 31.05.2010 and the appropriate treatment was given without any delay thereafter.
8. Learned counsel for the appellants then invited the attention of the Bench to the statement of DW-1 who is the appellant no.2 and is stated to have travelled to Dubai after the operation on 28.05.2010.  He however admitted that he saw the patient on 30.05.2010 and again on 31.05.2010.  On cross-examination about his not having seen the patient on 30.05.2010, he denied the same and then stated that there was no other diagnosis so as to suspect any other problem even though for further confirmation an ECG was conducted which was normal.  He maintained that the patient did not show any signs or symptoms positively attributing to pulmonary embolism, yet steps for proper medical consultation and ECG were conducted to rule out any such possibility.  According to him, it was only on 31.05.2010 that the chest pain complained of by the patient and her high pulse rate as well as respiratory rate was noticed, and witnessing these symptoms immediate consultation was made with the pulmonologist and cardiologist who conducted an echocardiography to diagnose pulmonary embolism.  It was also stated by him that till the evening of 31.05.2010 since the patient’s ECG had been normal and the vitals were also normal, there was no suspicion about any symptoms of pulmonary embolism.  On his cross-examination, he referred to the textbook explanations and also the symptoms relating thereto.  He deposed and verified the notings made on the doctors’ sheet and the advices and the entries made on the same.  According to him, the patient was fine and was performing her activities like going to the toilet on her own like a normal patient on 30.05.2010.  It is for the said reason that no doctor felt the need of starting Heparin as it is a dangerous drug which can have adverse effects on a person having undergone surgery that might lead to bleeding.  The said drug has to be administered very cautiously and therefore it was not necessary to be administered looking to the symptoms of the patient.
9. Learned counsel then invited the attention of the Bench to the deposition of DW-2 Dr. Anil Magdum, the expert gynaecologist and laparoscopic surgeon who had also seen the deceased patient and had examined her.  She has deposed that she had seen the patient and that her vitals were stable on 28.05.2010 and even thereafter.  She has supported the notings made on doctors’ sheet.  Learned counsel for the appellants submits that her statement categorically indicated that all possible steps and care was taken and the patient was fully attended to.
10. Learned counsel for the appellants then invited the attention of the Bench to the statement of DW-3 Dr. Rajiv Zachariah, the cardiologist.  He also supported the records as well as the clinical recordings and he went on to depose that the pathogenic symptom of acute pulmonary embolism is acute heart pain that has not been recorded nor was it a symptom indicated on examination.  He then went on to explain the steps of clinical diagnosis of pulmonary embolism and then indicated that the vitals of the deceased were stable as per the records. On cross-examination he indicated that a gaseous discomfort and unilateral crepts might have occurred.  It is urged that in the entire statement there is no indication of any serious symptoms.  He explained that sinus tachycardia in the electrocardiogram means that if the heart rate is going above normal range and within acceptable limits i.e. 100 – 120 beats, then it is known as sinus tachycardia.
11.  Having heard learned Counsel for the parties, the issue pertaining to the patient being managed from 28th May 2010 onwards has to be gathered from the doctor’s orders on record compared with the nurses’ daily records. On 28th May 2010, the patient is reported to be comfortable on an examination by the Doctor with no fresh complaints but with a minimal pain in abdomen. The oxygen level was 98% with a pulse rate of 88. Again, the patient was reported to be comfortable with stable vitals and was advised oral dry-liquids (Page 126 & 127). The nurses medication and daily record dated 28th May 2010 also reports patient to be stable after having come out of the surgery with stable vitals and no other complaints. The patient was shifted to the room. The duty changed sister also reported vitals to be stable (Page 145 & 146).
12. The patient was reported comfortable on 29th May 2010 and was advised to be shifted to the room with liquid soft diet.
13. At 6:15 PM on 29th May 2010, the patient complained of Palpitation and Breathlessness with a blood pressure of 100/60 and pulse rate 110/minute chest medical consultation coupled with ECG was advised. ECG was conducted and at 6:55 PM. The ECG was reported to be within normal limits. The same is supported by the document filed at page 96 which is the ECG report that states Sinus Tachycardia. Gaseous discomfort was noted with palpitation and difficulty in getting complete breath. The advice was a Pantocid Injection and Nebulization with Capsule Omez.
14. After some time palpitation and bloating was complained of by the patient and then drugs were administered that are noted in the doctor's orders.
15. The nurses daily record indicates that patient had complained of pain and palpitation and breathlessness being noted a physician's consultation was advised. Where after Dr. Reenee saw the patient. The nurse’s daily record dated 29th May 2010 that she slept well (Page 149).  Oral feeding is also stated to have been given and then again the patient was reported to have slept well at night and there was nothing special to be noted.  The blood pressure was 100/60 and further blood tests including D-Dimer test was also advised to be taken. This is indicated at Page 57 of the nurses’ daily record (Page 151).
16. On 30th May 2010, the patient again reported breathlessness on being shifted to a side. She complained of general weakness but her vitals were reported to be stable as recorded in the Doctor's orders sheet (Page 129). The nurses’ sheet dated 29th & 30 May 2010 is missing in continuity. This has been noted by the State Commission and which is borne out from the record.
17. It is therefore necessary to examine the pleadings of the Opposite Party which is contained in Paragraph 4 of the WS which extracted hereinunder.

“4. The patient as well as her relative bystander voluntarily gave written informed consent after fully conversant with the pros and cons of the surgery. Under all aseptic care and precautions the second opposite Party conducted laparoscopic conservative surgery for severe endometriosis under general anesthesia on 28/05/2010. Intra operatively uterus was found enlarged to 8-10 weeks size adenomyotic. Ovaries were found adherent to ovarian fossa and tubes to ovaries. Cul de sac was obliterated due to endometriosis and bowel was adherent with uterus and right ovary. With utmost care the Second Opposite Party released bowel and ovarian adhesions. Right ovarian endometrioma drained and cyst wall excised. Adenomyomectomy done and uterus closed with no.1 Centycryl suture. Specimen removed through left lateral port after extending incision. Haemostasis confirmed and closed suction type drain kept in situ. Post operatively she was kept under close observation and treated with antibiotics, analgesics and IV fluids. Anaesthesiologist, Dr. David Jacob advised Inj. Pentazocine, Inj. Butorphanol and Inj. Diclofenac and the patient was fully conscious, vital signs were stable and Oxygen saturation was 99% and the patient was shifted to the postoperative ward and instructed for close monitoring of vital signs and Oxygen saturation. The Gynaecologist, Dr. Anil Magdum had also seen the patient twice on 28/05/2010 in postoperative ward and necessary prophylactic antibiotics were advised. The patient was advised to start with liquid and soft diet after 4 hours of surgery. She remained stable and had complaints of minimal pain which is expected in the immediate post operative period. Patient was reviewed again on 29/05/2010 morning by Dr. Anil Magdum and she was found to be clinically stable and accordingly advised to shift the patient to room. Accordingly at 9 AM on 29/05/2010 patient was shifted to room. The consultant gynecologist, Dr. Shobhana Shrikumar attended the patient in the evening and advised for ECG and medical consultation in view of the patient's complaints of Palpitation and breathlessness. In view of the medical consultation sought, the physician Dr. Reenee MD evaluated the patient and found the ECG within normal limits. She diagnosed gaseous discomfort and in view of the bilateral crepts on respiratory system examination which is a common symptom post operatively due to anesthetic medication, she had ordered Inj. Pantocid, Cap Omez and Duolin nebulization. On 30/05/2010 the patient complained generalized weakness, breathlessness on shifting to a side and bluish discoloration of urine. She was advised IV fluids and urine examination. The patient was advised Dulcolax suppository, ambulation and full diet. On 31/05/2010 the patient had complaints of pain during breathing. On examination she was having tachypnea, pulse rate was 120/mt and no calf muscle tenderness. In view of tachypnea, the Second Opposite Party advised for consultation of chest physician and advised chest physiotherapy. On examination by Dr Reenee MD found pain was on the left side of the chest and advised for X-ray chest and propped up position X- ray was normal. The patient was shiited to post operative ward at 5 PM. The Second Opposite Party had also examined the patient and asked for chest physician's opinion and chest physiotherapy. The Pulmonologist examined the patient at 7.35 PM on 31/05/2010 and found the patient tachepneic and Oxygen saturation 84%. The impression noted at that time was pulmonary congestion and? pulmonary edema (cardiogenic/non cardiogenic) and advised oxygen, inj. Lasix, IV normal saline and cardiology consultation along with blood tests, X-ray chest and CT scan. The Cardiologist examined the patient at 8 PM and her pulse rate was 120/mt, BP 80/60 mmhg, loud P2 and RVS4. Her ECG revealed sinus tachycardia. Her echocardiography result revealed RA, RV dysfunction, moderate TR, RSVP by TR jet 45 mmhg, good LV systolic function and MPA dilated. The above findings of echocardiography were diognostic of massive acute pulmonary embolism and advised to shift the patient to Cardiac Care Unit for expeditious management. Based on the echocardiography findings diagnostic of massive acute pulmonary embolism, the Cardiologist discussed about the condition of the patient and the need for thrombolytic treatment with the relatives of the patient. After fully conversant with the unexpected and sudden occurrence massive acute pulmonary embolism, the patient's husband voluntarily gave written informed consent for thrombolytic theraphy (Thrombolysis) for the patient. The treatment continued with Oxygen, inj. Heparin, inj. Elaxim, inj. Dobutamine in CCU. At 11.15 PM, SpO2 suddenly decreased to 78% to 80% despite Oxygen inhalation and medication and the patient was attended by the Anesthetist and her pulse rate was 1.30/mt, BP 130/80 mmhg, respiratory rate 40/mt. The patient was intubated and put on ventilator. Immediately the Gynecologist, Cardiologist and Physician rushed to the CCU and jointly started all possible resuscitative measures.. But in spite of timely measures and medication her SpO2 was not improving, BP not recordable and HR 50/mt and developed bradycardia also.  Cardiac massage continued along with administration of inj. Adrenaline and inj. Atropine. At 12.05 A.M, the patient developed asystole and intubated with cardic pulmonary resuscitation as per accepted ACLS protocol. Despite of timely resuscitative measures the patient developed severe saturation drops and cardiac arrest and succumbed to death at 12.35 A.M. The cause of death of the patient is massive acute pulmonary embolism. The Second Opposite Party had exercised due care and caution in conducting the laparoscopic surgery and in postoperative management a team of experienced and well qualified doctors of various specialities attended and treated the patient and there was nothing falling short of the medically required standard of care and attention on the part of the Opposite Parties at any point of time. Hence there was no negligence or deficiency of service on the part of the Opposite Parties and hence these Opposite Parties are not liable to compensate the Complainants.”

18. At this stage, the argument on behalf of the Appellants regarding the deposition of PW1 needs to be mentioned. The Complainants have alleged that the patient had complained of excruciating pain in the left leg. This fact of pain in the left leg is not borne out from the records of the Hospital and seems to have been stated in the evidence affidavit. On this issue, PW1 was examined and the learned Counsel has invited the attention of the Bench to her deposition dated 21st March 2012 where this fact of pain in the leg has been admitted to have not been pleaded in the complaint. Not only this, the allegations of palpitation and Tachycardia also were admitted to have been omitted in the complaint. Even though it has been stated in the evidence, however, this may not be much of relevance keeping in view that the Complaint is of negligence which according to the Complainant led to Pulmonary Embolism. The Opposite Parties in their written version have stated that the pain which was complained of immediately after surgery on 28^th May 2010 were minimal which is expected in immediate post-operative period.
19.  There is one thing which needs to be noted and that is the Opposite Party No.2 Surgeon had left for Dubai and it was the Gynecologist Dr. Anil Magdum who had attended the patient on 28^th May 2010 who reviewed her again on 29^th May 2010. The consultant Gynecologist Dr. Shobana Shrikumar attended on the patient in the evening and advised ECG as already noted above in view of the patient’s complaint of palpitation and breathlessness. Accordingly Dr. Reenee, the physician, evaluated the patient and found the ECG within normal limits.
20. On 30^th May 2010, the patient seems to have complained of general weakness and breathlessness on being shifted to a side with bluish colour of urine. It is for this period where the nurses’ note sheets seem to be missing which could have reflected on the symptoms of the patient. The State Commission has therefore very carefully examined the evidence and has recorded its finding that have been extracted hereinabove.
21.  It may be the Opposite Party No.2 arrived back from Dubai and on being examined he avoided showing his passport to confirm his return.
22. These facts have been noted and then the State Commission came to the conclusion that the non-detection of Pulmonary Embolism up to 30^th May 2010 can be excused as no such symptoms could be confirmed which according to the Appellants was reflected in the Electro Cardio Gram (ECG) which reported no abnormality. Nonetheless the patient’s condition with palpitation and breathlessness did continue and it for this reason that this fact was noted on 31^st May 2010 at 10 in the morning itself.
23.  The expert witness statement of Dr. Suresh K. PW2 indicates that no further tests were available to confirm or exclude the symptom of Pulmonary Embolism till 31^st May 2010. All this coupled with the conclusion drawn by the State commission is that Pulmonary Embolism could not detected or confirmed up to 30^th May 2010.
24. However, the patient on 31^st May 2010 was examined at 07:30 AM and again at 10:00 AM and the complaint of having difficulty in breathing was recorded. The Opposite Party No.2 arrived and saw the patient at 05:00 PM on 31^st May 2010 when he advised for a chest physician’s opinion and physiotherapy. The consultation of a Pulmonary expert arrived at 07:35 PM who indicated that the patient was suffering from Pulmonary congestion and then an Eco Cardiography was conducted  by Dr.Renju Kumar who confirmed that the patient had massive acute Pulmonary Embolism.
25. It is on this basis that the State Commission concluded that the symptoms of breathlessness pain etc. was continuing from the preceding dates that culminated into the revelation of Pulmonary Embolism on 31^st May 2010 as indicated above. It was thus held that a lack of correct diagnosis and absence of treatment that led to the situation and by the time the patient was administered the treatment for Pulmonary Embolism, it was too late.
26. This aspect of the matter about complaint of pain during breathing is also indicated in paragraph 4 of the written version extracted hereinabove, but the explanation given is that it was gaseous discomfort. The crepts on respiratory system are a common symptom postoperative due to an anesthetic medication. The aforesaid explanation is in respect of the symptoms on 29^th May 2010.
27. On 30^th May 2010, the patient complained again of breathlessness. There is no explanation as to why appropriate or aggressive steps were not taken on 30^th May 2010 itself to further confirm the cause of breathlessness and pain which was complained of by the Complainant.
28. There is no repeat ECG or any other test and all this exercise was undertaken on 31^st May 2010 after the patient had complained of the persisting breathlessness in the morning of 31^st May 2010. The tests were carried out and it was only in the evening at about 07:35 PM that the Cardiologist indicated her condition where after the patient was administered injection Heparin when she was in the CCU.
29.  The question is as to whether this arrival of late treatment was a negligent cause that can be attributed to the Opposite parties. On a specific question being asked the expert PW2 Dr. K. Suresh in which his answers given by him to two questions needs to be reproduced.

“(Q) in Exht. C1 at page 37 the doctor recorded that the patient complaints of palpitation, dyspnea since 2 days from 28.5.2010 6.15 p.m., is it correct

(Ans.) That is what is noted in the file

(Q) Though the patient complained palpitation and dyspnea from 28.5.2010 6.15 p.m. and also complained palpitation difficulty in getting complete breath chest bilateral crepts on 28.5.2010, 29.5.2010 and 30.5.2010 as recorded in Exht. C1 the doctors neither suspected PE nor conducted chest CT or Echo to diagnosis PE is not an appropriate treatment, what you say?

(Ans.) It is true that patient complained of about the above symptoms on the dates noted. As per the records available an ECG has been taken and a medical consultation obtained. Apparently PE was not suspected at this stage. Calf muscle tenderness was noted as absent indicating a search for venous thrombosis. However no further test to confirm or exclude PE seems to have been done as per the records until Echo was done on 31.05.2013

(Q) I put it you that if late Smt. Vineetha Navin is administered with proper and necessary coagulants like Hepparin or wasfarin on similar coagulants well ahead that is on 28.5.2018, 29.5.2010 or even 30.5.2010 when she repeatedly complained about the symptoms of PE, she would have been alive today, what you say?

(Ans) In all honesty I do not know. I believe the essential function of a doctor is to make a proper evaluation, diagnosis and then institute appropriate treatment as per his judgment. Life and death obviously depend on other factors too. In this particular instance the symptoms of breathlessness, chest pain and palpitation does not seem to have been attributed to P.E. as per the records available. When this diagnosis was confirmed on 31.5.2010 standard appropriate treatment was given but unfortunately it was too late. Whether she did have this PE on the earlier dates is not evident and it is a matter of conjecture.

Cross examination of Ops 1 and 2

Witness is taken through pages 39 and 40 of Exht. C1 On the basis of the clinical evaluation and investigative findings therein would you agree with the diagnosis of the cardologist that "Massive Acute Pulmonary embolism

(Ans) Yes.

(Q)The treatment followed as is evident from pages 40, 41 and 42 of Exht. C1 are the standard and appropriate treatment for massive acute PE, do you agree?

(Ans.) Yes Doctor is taken through page 46 of Exht.

C1, the anesthesia record

(Q) The surgery had begun about 12 noon and completed by about 4 p.m.

(Ans.) Yes, Doctor is taken through pages 31 and 32 of Exhbt. C-1, that is the anaesthesia post operative notes

(Q) From 28.5.2010 from 4.10 onwards the Anaesthetist had examined the patient in regular intervals and recorded his findings. From these findings I suggest that there was no signs of PE

(Ans.) At this stage no PE

(Q) When the patient complained of pain breathing difficulty, tachypnea, dyspnea, palpitation whether the doctor examined the patient to rule out the possibility of PE as per the records ? (Question objected and replied by the counsel concerned)

(Ans.) For the first 24 hours after the surgery as per the records the only symptom patient had was mild pain in the abdomen and vital signs have been documented as stable. At this stage there is no symptoms or signs to suspect PE

(Q) Doctor you have stated that the treatment followed at page 40,41, 42 of Exht. C1 as standard and appropriate treatment for massive acute PE, please tell me it was early in this case to have detected PE and started appropriate treatment?

(Ans.) PE was first confirmed and diagnosed at 8 p.m. on 31.5.2010 and the appropriate treatment was instituted without delay although to no avail as it could not save the patient.”

30. The aforesaid examination of PW1 does not in any way confirm that there was a delay in the treatment or inappropriate diagnosis had resulted in the worsening of the patient’s condition. Nonetheless his concluding statement is that when it was detected appropriate treatment was given but it was too late. The statement of the aforesaid witness demonstrates that even though the treatment was started on 31^st May 2010 but by that time it was too late. It is also indicated in the said statement that no further tests to confirm or exclude Pulmonary Embolism seems to have been done until Echo was performed on 31^st May 2013. This therefore clearly indicates that no diagnosis was attempted to further confirm the existence or otherwise of the traces of Pulmonary Embolism which was ultimately confirmed in the evening of 31^st May 2013. Possibly if the tests of chest CT or Echo had been carried out a little before 31^st May 2010 either on 29^th May or 30^th May, there was a probability of tackling the situation appropriately. It is for this reason that PW2 in his statement hsas indicated that no further tests were done to confirm or exclude Pulmonary Embolism. This therefore, suggests that confirmatory tests ought to have been attempted at that stage itself.
31. The statement of Dr. Rajiv Zachariah DW3 who was produced on behalf of the Opposite Parties has also after studying the records stated that as per the records there was nothing specific to suggest Pulmonary Embolism till 30^th May 2010. He then states that the pathogenic symptom of acute Pulmonary Embolism is an acute heart pain which was not seen recorded. He has indicated that the anesthetist had visited the patient on 5 occasions and had given essential medications and left only after the patient was relieved of pain. He then went on to explain steps for clinical diagnosis of Pulmonary Embolism and then states that on a clinical suspicion investigations like ECG, X-ray, Echo and CT Scan are conducted to confirm the same. He also explained that Sinus Tachycardia is when the heart rate goes above normal range but within acceptable limits that is with 100 to 120 beats. He also stated that the same should be evaluated if there are no well explainable causes. He, however, concluded that even though a high degree of clinical suspicion is needed for the diagnosis of an acute Pulmonary Embolism but he was in extreme dilemma for suggesting any treatment in the background of chances of bleeding. On being questioned about the persisting complaints of palpitation, breathlessness etc. can a doctor rule out the possibility of Pulmonary Embolism, the answer was absolutely not. This again suggests that the symptoms complained of did require substantive further investigation to confirm Pulmonary Embolism that was not done promptly.
32.  From the above statements, it is confirmed that the patient did die from Pulmonary Embolism but the only issue is as to whether the patient did get timely treatment after correct diagnosis. It is this question which has been posed by the State Commission in paragraph 22 of the impugned order. On the basis of the evidence that has been discussed and the explanation given by the Opposite Parties as well as the facts noted above, the probabilities of not appropriately taking a prompt opinion of the cardiologist/pulmonary expert on the persistent complaints of pain and breathlessness on 30^th May 2010 and delaying it on 31^st May 2010 in spite of the diagnosis in the morning of 31^st May 2010 the investigations, the diagnosis and the treatment to be undertaken seems to have been lacking in promptness. An early action by undertaking further investigations as suggested by the experts could have possibly and in all probability saved the life of the patient who was still young and could have survived.
33. Thus, on an overall conspectus the conclusions drawn by the State Commission on the basis of the findings arrived at cannot be said to be erroneous pointing out towards the negligence as referred to hereinabove.
34.  The facts on the basis whereof the opinion has been formed by the State Commission have been correctly recorded and there is no perversity or any infirmity in the appreciation of facts for this Commission to take a different view. The chain of events as emerging from the evidence on record and discussed hereinabove as well as by the State Commission establishes that negligence occurred on account of in all probability due to absence of the Opposite Party No.2 who had gone to Dubai after performing surgery and on his return also, there does not seem to be any prompt action taken. As recorded by the State Commission, the missing nursing sheets with no endorsements after page 58 also corroborates the fact of no attention or due care having been taken to appropriately diagnose the symptoms that were developing fast with the persistent breathlessness and pain being complained by the patient. This negligence therefore in my opinion has been rightly assessed by the State Commission as it falls short of the expected skills and expertise of the Opposite party No.2 and his team of doctors who seem to have been lethargic and unattentive to the urgent needs of the patient..
35. Coming to the issue of quantum of compensation as assessed by the State Commission, keeping in view the age of the deceased her status and the negligence as proved by the Complainant there does not seem to be any reason to revise or review the same as there is no material on the basis whereof the appellant could dispute the quantum as awarded by the State Commission.
36. The Opposite Party No.2 and the Hospital have therefore failed to take due care and the circumstances as well as the evidence that have been appropriately assessed and gone into by the State Commission, does not call for any interference with the impugned order. The appeal is accordingly dismissed.