Karnataka

Kolar

CC/60/2013

Smt. B.S. Rajeswari, - Complainant(s)

Versus

. Dr. Leela Mahesh.N., - Opp.Party(s)

B.S.Sathyanarayana

19 Oct 2015

ORDER

Date of Filing: 18/09/2013

Date of Order: 19/10/2015

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 19^th DAY OF OCTOBER 2015

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 60 OF 2013

Smt. B.S.Rajeswari,

W/o. Venkataswamy,

D/o. Sampangiramaiah,

Aged About 22 Years,

R/at: Hungenahalli Village,

Kasaba Hobli, Malur Taluk.

 

(Rep. by Sriyuth.B.S. Sathyanarayana, Advocate)       ….  Complainant.

 

- V/s -

1) Dr. Leela Mahesh.N,

MBBS, MD (OBG), Gynecologist,

 

2) Dr. Mahesh. R.L,

MBBS, D.A (DNB), Anesthesiologist,

 

Both are practicing Doctors at:

Sri Leela Sai Hospital,

Behind Pragathi Gramina Bank,

Near Bus Stand, Malur-563 130.

 

(OP Nos.1 & 2 are represented by

Sriyuth. T.M. Shivanna, Advocate)                         …. Opposite Parties.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainant having submitted the complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred in short as “the Act”) has sought, relief of recovery of expenses of Rs.1,10,000/- and Rs.10,00,000/- thus total sum of Rs.11,10,000/- as compensation from Ops together with other expenses as this forum to deem fit.

 

02.   The facts in brief:-

It is contention of the complainant that, on 08.03.2013 around 9.00 p.m. being pregnant for the first time got admitted in Sri. Leela Sai Hospital at Malur run by Ops being couple.  And that OP-1 is Gynecologist, whereas, OP-2 is Anesthesiologist.  It is also contended that, on 09.03.2013 around 7.50 a.m. OP-1 conducted caesarean section, and thus she delivered a male child.

 

(a)    Further it is contended that, Ops had told her that, she would be given computerized stitches for the operated area of the stomach.  And that, however manual stitches were put.  And that even such stitches were not correctly made.  And that within three days the stitches were removed and discharged (as per records on 13.03.2013).

 

(b)    It is also contended that up to 22.03.2013 the Ops had advised her to get treatment daily in their hospital.  And that accordingly she complained.  And that in spite of dressing being given there used to be bleeding from the operated area and there was formation of puss.  And that the Ops told that, such a condition was common factor and hence she was not to worry.  Further it is contended that as she was not cured ultimately the Ops on 22.03.2013 referred her to R.L. Jalappa Hospital, Kolar.

 

(c)    Further it is contended that, the Ops ought to have administered antibiotics, which they failed. 

(d)    Further it is contended that, she got admitted in Narendra Hospital at Kolar on 22.03.2013 and she was operated on 28.03.2013 for the continued bleeding, and she remained as in-patient in the said hospital till 02.04.2013.  And that even as on the date of the complaint (18.09.2013) her visit to the said hospital did continue.

 

(e)    Further she has contended that because of the operations she underwent she is not in a position to bend her body downward or upward and she is not even in a position to work.  And that she cannot even take care of herself and her baby.  And that someone should be there to support her in daily routine work.  And that because of the said health complaint being a BBM student could not complete the course.

 

(f)     Further she has stated that, a legal notice came to be issued to the Ops on 02.09.2013.  And that the Ops in spite of receipt of the same did not reply.

 

(g)    Further it is contended that, the said things happened to her because of negligence and lethargic attitude of Ops who lacked sincerity, promptness and medical knowledge.  And that she paid nearly Rs.50,000/- to the Ops and the hospital bill as issued by Narendra Hospital, Kolar, came to Rs.60,000/-.  And that she is bound to be compensated by awarding damages of Rs.10,00,000/-. 

 

(h)    So contending, the complainant has come up with this complaint on hand to seek above set out reliefs.

 

03.   On registration of the case and on issuance of the notices the Ops have put in their appearance and have resisted claim of the complainant in toto.

 

04.   However, these Ops have conceded with regard to running of the said Sri. Leela Sai Hospital at Malur and of them OP-1 is a Gynecologist, whereas, OP-2 is Anesthesiologist and both of them being couple.

 

(a)    These Ops have denied contention of the complainant that, they had stated that computerized stitches would be done.  Further they have denied that within three days the manual stitches were removed lethargically and she was discharged.

 

(b)    Specifically they have contended that the complainant was told to approach them on 16.03.2013, whereas, on 10^th day she did not come.

 

(c)    It is further specifically contended that, they had never advised caesarean section, but, they did the same because of the pressure given by the husband of the complainant and her mother.  They have contended that, they had suggested normal delivery.  And that husband of the complainant represented that, she (the complainant) was too sensitive to tolerate normal labour pains.

 

(d)    They have conceded that till 22.03.2013 they had advised the complainant to attend the hospital daily for the purpose of treatment.  They have contended that allegations of the complainant that there was bleeding on the very next day of the discharge from the operated area even resulting in formation of puss are false.  They have also denied that they had stated about this as nothing to worry.

 

(e)    Further it is contended that, the very husband of the complainant had unnecessarily demanded to refer her (the complainant) to R.L. Jalappa Hospital, Kolar, as they would get free treatment.  And that, hence with no other alternative they referred her at her own request.  And that, thus such a reference was against the medical advice.

 

(f)     Further it is contended that when the complainant was so sent against the medical advice there was only infection and no gape was present.  Further contended that, they had taken proper care and had given proper treatment to this complainant.  Thus, they have sought dismissal of the complaint with exemplary costs.

 

05.   The very complainant got herself examined as PW-1 by preferring affidavit evidence and by even facing the cross-examination.  On her behalf Dr. Gayathri Devi has been examined and her evidence is taken as of PW-2.  On behalf of the complainant Exhibits –P-1 to P.39 came to be marked. 

 

06.   OP-1 got herself examined by putting her affidavit evidence and also facing cross-examination as DW-1.  Exhibits D-1 to D-12 came to be marked. 

 

07.   On 22.04.2015 the learned counsel appearing for the complainant has submitted treatise on caesarean section of maternal request.

 

08.   On 12.05.2015 the learned counsel appearing for the Ops has submitted further written arguments along with changing patient needs: issues and ethics of maternal requested caesarean delivery, Elective Caesarean Section or Caesarean by choice.  Further on 13.10.2015 the learned counsel appearing for the OP-2 has submitted further written arguments.

 

09.   Both sides have submitted their written arguments on 14.10.2015.  The learned counsel appearing for the complainant has submitted a print-out with regard to commentary on risks of caesarean section.

 

10.   On 16.10.2015 the learned counsel appearing for the Ops has submitted Xerox copy of insurance policy issued in favour of the OP-1 with regard to professional indemnity Dr. (Other) Policy valid from 21.01.2015 to 20.01.2016 with retroactive date: 09.01.2013.

 

11.   Heard the oral arguments as advanced by the learned counsel appearing for both sides. 

 

12.   Therefore the points that do arise for our consideration in this case are:-

1. Whether Ops.1 & 2 are guilty of deficiency in service with regard to the caesarean section done on the complainant on 09.03.2013?

 

2.  If so, to what compensation the complainant is entitled to?

 

3.  What order?

 

13.   Findings of this District Forum on the above stated points for the following reasons are:-

 

POINT 1:     In the Affirmative.

 

POINT 2:     The complainant is held entitled to Rs.1,51,000/- together with interest at the rate of 9% per annum from 18.09.2013 being the date of the complaint till realization for being recovered from Ops 1 & 2 jointly and severally.

 

POINT 3:     As per final order for the following:-

 

REASONS

POINTS 1 & 2:-

14.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a)    On going through the pleadings and evidence as maintained and adduced by the Ops, it is crystal clear that, the complainant was physically fit for normal delivery, and according to these Ops, caesarean section was at the instance of the husband and other relatives of the complainant.  For this contention of these Ops is that, as per say of the husband of the complainant, the complainant was too delicate to undergo the labour pains and hence caesarean section was imposed by them (husband of the complainant and other relatives on complainant’s side).  And thus they contend that being under such imposition they were constrained to conduct caesarean section (reliance placed at para-2 of the written version of these Ops and para-3 of affidavit evidence of OP-1/DW-1 by way of examination-in-chief).  This very DW-1 during the course of cross-examination has asseverated thus in Para-12:-

“I do not agree to the suggestion that, on medical grounds to conduct caesarean section would mean severe pre-eclampsia which would mean high BP, but I agree that, in case of improperly shaped pelvis, placenta praevia, umbilical cord prolapse, fetal distress, and mal-presentation we compulsorily opt for caesarean section, which is called emergency caesarean section.  This complainant had not developed these complications.”

 

15.   So even according to this OP-1/DW-1 being a Gynecologist in case of pregnant women were to suffer from high BP (medical term sever pre-eclampsia) there would be no need to conduct caesarean.  The complainant was not even suffering from very high BP.  And in either event according to this OP-1/DW-1 the complainant was physically fit for normal delivery which is termed in medical field as “vaginal delivery”.

 

16.   Further as per such a version given by this OP-1/DW-1 as noted above the caesarean section would become compulsion if the patient women to have improper shaped pelvis, placenta praevia, umbilical cord prolapse, fetal distress, and mal-presentation.  Admittedly the complainant did not face with anyone of the said situations.  So the complainant was in normal health condition and to the very knowledge of these Ops she was bound to have normal delivery.

 

17.   The Ops contend that, the pressure came from the side of the complainant for caesarean section and hence being helpless they conducted the caesarean section.  It cannot be believed.  When these Ops till 7.00 a.m. on 09.03.2013 were of the definite opinion that, the complainant would have a normal delivery, how come within 10 minutes the situation turned opposite all of a sudden?  Theory of husband of the complainant and relatives from complainant’s side pressurizing, cannot be taken as an informed valid consent given by the complainant.  Therefore what went on as caesarean section was either against the will of the complainant or without her knowledge even, for, what is on record is the so called consent given by husband of the complainant.  Even we doubt this document Exhibit-D.2 the contended consent for emergency LSCS.  There is sufficient space between the last line and the signature of husband of the complainant.  Besides at the site of signature of the husband of the complainant there is “X” mark which would compel us to come to the conclusion that this consent was a mechanical process, as admittedly there was no threat of any kind in physical health of the complainant who was quite fit for normal delivery.

 

18.   Even on going through this document it is more of an assurance on the part of husband of the complainant than his consent in as much as it is recited that they were not to hold doctors and hospital staff responsible for any untoward happenings occurring.  And the document commences with words “consent for emergency LSCS”.  Where from comes the question of emergency?  For, to the knowledge of the Ops till 7.00 a.m. on 09.03.2013 this complainant was physically fit to have normal delivery.

 

19.   Even on going through the said treatise cautioning and the need with regard to conducting of caesarean section on maternal consent we are of the definite opinion that, the very complainant was all along under the impression of normal delivery and caesarean section was rather imposed on her surprisingly by these Ops.

 

20.   We cannot believe the version of the Ops that the complainant being unable to bear the pain; through her husband and other relatives came forward opting for caesarean section.  Therefore we are of the definite opinion that, both Ops were guilty of deficiency in service when they conducted caesarean section on the complainant in the absence of alarm.

 

21.   Even otherwise we are of the definite opinion that, to the knowledge of the OP-1 the caesarean section conducted on the complainant was defective, for, in para-6 of the affidavit evidence she has asseverated that, when the patient was sent against the medical advice there was only infection and no ‘gaping’ was present.  So, these ops admit that the infection had continued as on 22.03.2013.  It is not that the complainant was in-patient as if to get discharged against medical advice.  The complainant was out-patient and she was only to be treated for the infection at suture site for which these Ops failed to treat.  So these Ops are bound to be held as guilty of deficiency in service.  Therefore we are in a position simply to believe the evidence of PW-2 Dr. Gayathri Devi of Narendra Hospital at Kolar who conducted the operation and rectified the error that had continued because of the erroneous approach made by the Ops while they conducted caesarean section on the complainant on 09.03.2013.

 

22.   The discharge summary which is at exihibit-P.6 is to reveal that, on 22.03.2013 the complainant was admitted in this Narendra Hospital and on 28.03.2013 surgery was conducted as there was purulent discharge (discharge of puss) from the wound.  And she was discharged on 02.04.2013 and condition noticed at the time of discharge is that, the said wound was healed.  The very negligence of the Ops was the cause for such development.  Hence we repeatedly hold that, these Ops were guilty of deficiency in service. 

 

23.   Exhibit-P.33 the receipt dated: 03.04.2013 issued by Narendra Hospital Pharma discloses that, Rs.9,911/- were spent for purchase of medicines.  Exhibit-P.34 is the receipt dated: 03.04.2013 issued by Narendra Hospital disclosing that, the complainant had paid Rs.17,000/- as she was in-patient in the said hospital for 12 days, from 22.12.2013 till 02.04.2013 and this document is even inclusive of charge of surgery conducted on 28.03.2013.  Thus the total amount would come to Rs.26,911/-.  This we would take to the next round figure of Rs.27,000/-. 

 

23.   Exhibit –P.10 is the receipt issued by Leela Sai Hospital as the complainant was admitted in the hospital on 08.03.2013 and was discharged on 13.03.2013.  This receipt is to disclose that, the complainant had paid Rs.24,060/- which we restrict to the round figure of Rs.24,000/-.  Thus the total amount spent by the complainant for medical treatment would come to Rs.51,000/- which amount she is entitled to recover.

 

24.   Now, we are to concentrate with regard to the claim of the complainant for damages/compensation.  As noted above this complainant underwent caesarean section unnecessarily and even the said caesarean section conducted by the Ops was not completely successful.  For, by second surgery that was conducted on 28.03.2013 the complainant got herself saved from the very life risk.  Therefore for the mental agony suffered and for suffering physically also because of the said unnecessary caesarean section, we are of the definite opinion that, she is to be compensated in a sum of Rs.1,00,000/-.

 

25.   Therefore we hold that, the complainant is entitled to recover total compensation of Rs.1,51,000/- together with interest @ 9% per annum from 18.09.2013 till realization, from these Ops jointly and severally.

 

26.   We know OP-1 has got Professional indemnity Dr. (Other) policy with effect from 21.01.2015 to 20.01.2016 with retroactive date: 09.01.2013.  This aspect has nothing to do with the case.  It is only for the OP-1 if to opt to make claim from the said insurer United India Insurance Company Limited.

 

POINT 3:-

27.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons this complaint stands allowed with costs of Rs.5,000/- against these OPs as hereunder:-

 

(a) The complainant is held entitled to recover compensation of Rs.1,51,000/- together with interest at the rate of 9% p.a. from 18.09.2013 being the date of the complaint till realization from the OP Nos.1 & 2 jointly and severally.

 

(b)    The Ops are given time of one month to comply the order from the date of receipt of the same.

 

(02)  Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 19^th DAY OF OCTOBER 2015)

 

 

 

 

 

MEMBER                             MEMBER                     PRESIDENT