IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 31ST DAY OF January 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri. M.Praveen Kumar,Bsc, LL.B ,Member
CC.No.245/2010
Safeela Beevi : Complainants
W/o Sulaiman,
Kuzhinjathundil Vellavil Veedu,
Pallisserikkal Muri,
Sasthamcotta Village
2. Salnul Farisi (Minor )
S/o Shakeela
Kuzhinjathundil Vellavil Veedu
Pallisserikkal Muri,
Sasthamcotta Village
[ By Adv.G.P.Anil Kumar, Kollam]
V/S
1. Managing Director : Opposite parties
A.M.Hospital
Padanayarkulangara
Vadakkummuri,
Karunagappally Village
[By Adv.Thirumullavaram.G.Sivasankara Pillai, Kollam]
2. Dr.Anna Mohan,
Formerly Gynecologist of A.M.Hospital,
Manjadi Vilakathu Veedu,
Near Sankers Hospital,
Asramom South,
Kollam Corporation
[By Adv.A.Sudheer Bose, Kollam]
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ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
this case is based on a complaint filed by the 1st complainant Safeela Beevi representing minor 2nd complainant seeking compensation to the tune of Rs.20. lakhs on the death of Shakeela, who is the mother of the 2nd complainant and the daughter of 1st complainant due to the alleged medical negligence on the part of the opposite parties .
According to the complainant the deceased Shakeela was admitted on the afternoon of 02/05/2006 at the 1st opposite party’s hospital for her 2nd delivery. Her first delivery was a normal delivery. After she became pregnant she has consulted the 2nd opposite party and continued the treatment at the 1st opposite party hospital and 2nd opposite party was attending the complainant from the very beginning of her pregnancy. Even before the 2nd delivery the 2nd opposite party was having full knowledge of the health and physical conditions of the complainant. On the next day, that is on 03.05.06 at about 8.45 am the complainant was taken to labour room. It was informed to the 1st complainant that the condition of Smt. Shakeela was critical . Hence the complainant was subjected to operation and the child was taken out but dead and as the condition of the complainant continues to be worse they are taking steps to refer the patient to KIMS Hospital, Thiruvananthapuram and taking steps to send fax message to bring ambulance but
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till 6 pm no steps taken nor the ambulance was brought. However at about 7.30 P.M it was informed that the complainant died. The fact that the opposite parties are subjecting the complainant to operation has not been divulged to the complainant or other relatives of the deceased. According to the complainant the cause of death was due to the Amniotic Fluid Embolism which was due to the excessive administration of pitocin trip from the time of admitting at the labour room and at about 10.30 am leaking started. At about 2.30 pm she was affected with fits and became unconscious. According to the complainant the death of the deceased Shakeela was due to the negligent administration pitocin injection which caused Amniotic Fluid Embolism and hence the Karunagappally police has registered crime No.545/06 and laid charge sheet against the 2nd opposite party doctor alleging that the death of Shakkeela was due to the negligent treatment of the 2nd opposite party negligence under Section 304 A I.P.C. The complainant would allege that conducting cesarean which leads to the death of the child in the womb . It is further alleged that pitocin was given to the pregnant lady on high dose which resulted in the death of the deceased Shakeela.
The deceased Shakeela who was attended for her 2nd delivery at the first opposite party Hospital and was under treatment of the 2nd opposite party . But the 2nd opposite party has not given proper treatment nor subjected her to cesarean at the appropriate time and as the cesarean has been delayed. The child at the womb
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happened to die at the womb itself and if the deceased Shakeela was subjected to proper time the life of the child could have been saved. As the 2nd opposite party doctor has given pitocin in high dose it created Amniotic Fluid Embolism which accelerated the death of the deceased Shakeela. The 2nd opposite party doctor is expected to use appropriate skill attention and expertise at the appropriate time while treating a pregnant lady. But the doctor has deliberately showed the deceased Shakeela who was a young lady of 23 years and her child in the womb.
The deceased Shakeela was completely healthy lady graduate and her family members were very cordial to her and very lovingly and she was very happy. The death of the deceased Shakeela and the child in the womb complainant has created mental pain which was unable to suffer the love, affection and also the protection of the mother has been lost the 2nd complainant at the childhood itself. He is also suffering very much mental pain for the death of the younger sister. The deceased Shakeela was about to live along with her husband to gulf country and seek employment and generate income of her own. The police has taken time to conduct investigation and lay charge against the 2nd opposite party and the 2nd complainant is a minor there is no delay in filing the complaint. In the circumstances the complainant no.1&2 claim Rs.20 lakhs as compensation from the opposite parties no.1&2.
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1st and 2nd opposite party resisted the complaint by filing separate versions. The 1st opposite party in the written version would admit that the fact of admission of the deceased Shakeela at the 1st opposite party hospital and also the treatment procedure adopted by the 2nd opposite party Gynecologist, It is further contented that the hospital was a well established specialty hospital having an unblemished service record of many years . The 2nd opposite party was a consultant Gynecologist at the 1st opposite party hospital and she was having 17 years of service experience in her credit as on those day and after passing MBBS she took specialization in Gynecology and did her post graduation and got MD in 1994 and thereafter she was working in Gynecology in various hospitals . She carried out the treatment of the patient very carefully and by adapting appropriate and correct method of treatment. The diagnosis was correct and proper . The line of the treatment adapted by the 2nd opposite party was medically accepted and conventionally followed for the condition of the patient.
After the Cesarean Section on the patient, the said Shakeela , during which the body of child was removed , hysterectomy was also done because her uterus was found flabby and had the potential to cause excessive bleeding. The patient regained spontaneous respiration after the surgery but continued to be in shock (dangerously low blood pressure). The patient developed bleeding from multiple locations, a condition known as DIC (Disseminated Intravascular Coagulation).
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Fresh blood transfusion was done immediately. It was decided to refer the patient to KIMS, Trivandrum, towards , which ambulance was summoned by the hospital authorities and all those developments whatever were being informed from time to time to the relative of the patient . The patient developed cardiac arrest at 7.00 PM. She did not respond to resuscitation measures initiated by a team consisting a Cardiologist, Anesthetist and 2 Gynecologists. The patient was declared dead at 7.15 P.M. The cause of death was suspected to be Amniotic Fluid Embolism .
An Apex Body was constituted to enquire into the matter. The Chairman of the Apex Body, The Director of Health Services, Kerala State and Members , The Director General of Prosecution, Government of Kerala, The Director of Medical Education and Additional Director of Health Services (Vigilance ) in their meeting held on 18/01/2010 arrived at the unanimous opinion that the cause of death was Amniotic Fluid Embolism developed in the mother, Shakeela and that there cannot be found any willful negligence on the part of the Gynecologist (Dr. Anna Mohan, the 2nd opposite party herein) who conducted the Cesarean Section. The Apex Body arrived at the said conclusion on their own, as also after seeking the opinions of (a) Professor and Head of the Department of Gynecology, Medical College Hospital, Thiruvananthapuram and also (b) the Deputy Director Health Services(Anesthesiologist ). The death of the patient was caused due to Amniotic
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Fluid Embolism, a condition for which there is no known definitive treatment available to modern science.
The 2nd opposite party would content in her written version that she was working as consultant Gynecologist at 1st opposite party hospital and the patient Shakeela aged 23 is a second gravida with a previous normal vaginal delivery 4 years back was admitted for safe confinement on 2nd May 2006. Her EDC (Expected date of delivery) was 3rd May 2006. On 3rd May 2006 at 8.30 AM pitocin drip with 5 units was started. FHS (Fetal Heart Sound) was good and patient started getting contractions. At 10.30 AM ARM (Artificial repture of membrance) was done . Liquor was meconium strained . As the patient had previous normal delivery and she was progressing in labour , decided to wait for vaginal delivery . Patients relatives were informed and they wanted to wait for vaginal delivery. At 1.30 PM the second opposite party examined the patient and FHS was found to be within normal limits. At 2.15 PM the patient developed fits and went in to cardio respiratory arrest. As it was day time and the labour room and theater is nearby, the Anesthetist attended the case immediately and immediate resuscitative measures were taken. Meanwhile call was given to cardiologist, physician and senior most Gynecologist available in Karunagappally (Dr.Narayana Kurup). The team of doctors decided to do cesarean section hoping it may improve cardio respiratory function. After informing the patient’s relatives LSCS,
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cesarean was done . As the patient continued to be in shock and developed DIC (Disseminated Intra Vascular Coagulation), Hysterectomy was done. At around
7 PM patient developed cardiac arrest from which the medical team could not revive her. She was declared dead at 7.15 PM. Body was handed over to the police for medico legal autopsy . The cause of death is identified as amniotic fluid embolism . The treatment methods used were scientific and common methods practiced in similar cases. The quantity of medicines administered was within limits and also as per protocol. The care given by medical team during resuscitation was as per the medical practice and procedure and it was up to the mark. There was no negligence or deficiency of service from the part of the second opposite party.
The KIMS hospital was also contacted and ambulance was arranged. But the patient continued to be in shock, developed bleeding from multiple sites due to DIC (Disseminated Intra Vascular Coagulation ) and had severe bradycardia and developed cardiac arrest at 7.00 PM. Inspite of proper and sufficient resuscitative measures, patients life could not be saved and she died at 7.15 PM . the dose of pitocin administered was within limits and as per protocol . Even as per the chemical analysis report attached to the postmortem certificate no poison was detected in general examination or other poisons test. All the poisons tests were
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negative. Further there is no casual relationship between use of pitocin and amniotic fluid embolism.
It is further contended by the 2nd opposite party that she is a qualified Gynecologist having 17 years of unblemished Professional experience to her credit. After passing M.B.B.S, she had passed post graduation qualification (MD) in Gynecology in the year 1994 from the KMV Manipal and there after she has been working as consultant Gynecologist in various hospitals. The 2nd opposite party has been treated almost all complicated cases relating to Gynec and Obstetrics and the 1st opposite party is well equipped multi-specialty hospital having all facilities and infrastructure to carry on all Gynec related surgeries.
In view of the above pleadings the following points arise for consideration .
- Whether the death of the deceased Shakeela and her child was due to the negligent treatment of the 2nd opposite party?
- Whether there is any professional negligence and deficiency in service on the part of the 1st and 2nd opposite parties?
- Whether the complainant No.1&2 are entitled to get compensation from opposite party 1&2 as claimed in the complaint?.
- Reliefs and costs.
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Points 1 and 2:-
For avoiding repetition of discussion of materials these two points are considered together. The following facts are undisputed rather admitted by both sides.
The 2nd opposite party was the consultant Gynecologist at the 1st oppose party A.M. Hospital Karunagappally as on the date of death of the deceased. That the patient Shakeela aged 23 was a second Gravida with a previous normal vaginal delivery 4 years back was admitted at the 1st opposite party hospital for delivery on 02/05/2006 . Her expected date of delivery was 3rd May 2006 and thereafter at about 8.30 AM pitocin trip with 5 units was started. As the patient had previous normal delivery the 2nd opposite party decided to wait for vaginal delivery . At 2.15 PM the patient developed fits and went in to cardio respiratory arrest. As the patient continued to be in shock and developed DIC (Disseminated Intra Vascular Coagulation), Hysterectomy was done. At around 7PM patient developed cardiac arrest from which she was not revived and she was declared dead at 7.15 PM. Body was handed over to the police for medico legal autopsy. The cause of death is identified as Amniotic Fluid Embolism.
It is further admitted that Crime No.545/2006 of Karunagappally Police Station was registered and started investigation and referred the matter to the expert committee for their opinion . the expert committee filed a report with finding that there is prima facie negligence on the part of 2nd opposite party
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who treated the deceased Shakeela at the 1st opposite party hospital. On the basis of the above report Karunagappally police started investigation and after completing investigation they filed charge sheet on 29/01/2010 alleging offence under section 304(A) IPC. However the Hon’ble High Court based on the apex committee report quashed the proceedings against opposite party 2 vide order in Crl.3404/2011 by citing the judgment in Suresh Gupta V/s Govt. of NCT of Delhi SC 422 .
The learned counsel for the complainant has argued that the death of the late Shakeela was not an unexpected death and there was sufficient time tosalvage the life of the victim by giving proper treatment. Admittedly treatment started at 2.30 am and the death occurred after 7 PM. There was sufficient time to rescue the patient. But the 2nd opposite party was not even ready to refer the patient to any hospital for better management . This leads to cardiac arrest. Administration of over dose of pitocin caused amniotic fluid embolism which according to the complainant’s counsel proved to be the real reason to cause death of the deceased and her baby.
The learned counsel for the complainant has further argued that the principles of Res Ipsa Loquitor is applicable in this case. It is also argued that the 2nd opposite party has failed to take reasonable care and skill in treating the deceased Shakeela which resulted in the loss of two lives.
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According to the opposite parties there was no negligence or deficiency in service on the part of the 1st and 2nd opposite parties. The treatment methods used were scientific and common methods practiced in similar cases. The quantity of medicines administered was within limits and also as per protocol . The care given by medical team during resuscitation was as per the medical practice and procedure and it was up to the mark. The KIMS Hospital was also contacted and ambulance was arranged. but the patient continued to be in shock, developed bleeding from multiple sites due to DIC (Dissiminated Intra Vascular Coagulation) and had severe brady cardia and developed cardiac arrest at 7 P.M. Inspite of proper and sufficient resuscitative measures patient’s life could not be saved and she died at 7.15 P.M. According to the opposite party No.1&2 inspite of proper and sufficient treatment and care the patient died. The allegation of the 1st complainant that excessive administration of pitocin has resulted in Amniotic Fluid Embolism which is a wrong notion on the part of the complainant. As per medical science there is no casual association or connection between pitocin and Amniotic Fluid Embolism. It may occur during labour pain or during cesarean section or immediately postpartum However the predisposing cause for amniotic fluid embolism remains obscure.
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It is further contended that the 2nd opposite party is a qualified Gynaecologist having 17 years of service experience in her credit and after passing MBBS she took specialization in Gynaecologist and did her post graduation and got MD in Gynaecology in the year 1994 from the KMV Manipal and thereafter she was working in Gynaecology in various hospitals . The 2nd opposite party has been
treating almost all complicated cases relating to Gynac and Obstetrics and the 1st opposite party is well equipped multi specialty hospital having all facilities and infrastructure to carry on all gynac related surgeries. In the circumstances there is no willful negligence on the part of the 1st opposite party hospital or 2nd opposite party doctor.
As the death of the deceased Shakeela and her child at the womb is admitted while the deceased was under going treatment of the 2nd opposite party at the 1st opposite party hospital, the Principle Res Ipsa Loquitor is applicable. It is also an undisputed fact that the deceased Shakeela was not having any cardiac problem still she was admitted in the above hospital for her 2nd delivery. According to PW1 the 1st delivery of the deceased Shakkela was a normal delivery which was attended by another Dr.Rachel Thomas.
It is clear from the materials available on record including pathology report dated 30.09.16 that the features are consistent with amniotic fluid embolism which may rarely occur in child birth . Amniotic Fluid Embolism is pregnancy
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complication that may cause life threatening condition. The materials available on record would also indicate there is possibility of occuring amniotic fluid embolism due to the usage of high dosage of pitocin. Even according to the 2nd opposite party five units of pitocin was given which is definitely high dosage. It is also clear that amniotic fluid embolism requires rapid treatment to address low blood oxygen and low blood pressure. Hence emergency treatment was required for the patient including catheter placement, inserting hollow tube into one of arteries to monitor pressure blood. But no step was seen taken by the opposite party no.2 to carry out the above treatment and had it been done in time, the life of mother and baby could have been salvaged.
It is true that in Ext.P6 Expert committee report would state that there is negligence on the part of the Gynecologist in delaying the cesarean section . It is also stated in Ext.P6 that the administration of high dosage of pitocin has affected the life of the child as well as the mother. But as state level apex body has been constituted as requested by the 2nd opposite party and the said apex body has prepared Ext.D2 report, we are of the view that Ext.P6 report has been superceded by D2 report and hence Ext.P6 cannot be relied up on. However it is admitted case that 5 units of pitocin was started to be administered at the beginning itself instead of administering lesser quantity initially and gradually increasing the dosage of the same. In the circumstance it can be inferred that use of high dosage
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of pitocin from the very beginning would have accelerated or precipitated amniotic fluid embolism in the mother which caused her death.
It is true that the apex body in Ext.D2 report has stated that there cannot be any willful negligence on the part of the Gynecologist which cannot be justifiable in the light of the oral evidence of DW1 and other findings stated in Ext.D2 apex body report itself. It is true that the first delivery of the deceased Shakeela was a normal delivery. Even if prior delivery was a normal one an experienced Gynecologist is expected to do cesarean if it is found absolutely necessary. It is further to be pointed out that the oral evidence of DW2 who prepared the state level apex body report coupled with Ext.D2 report would indicate that some delay is noticed in conducting the cesarean section and that patient monitoring chart during and immediately after surgery was not seen prepared. It is clear from the available evidence of PW1and DW1 that at about 2.15 pm the condition of deceased Shakeela was become critical. However DW1 has not taken any steps to remove the victim to higher institution for a better management. Even though it is stated in the case sheet that they have contacted KIMS hospital to sent ambulance which is at 6 pm. But the time of contacting KIMS authorities is not noted in the case sheet. Though the opposite parties would claim and DW1 has deposed that they have invited experts including Dr. Narayana Kurup, according to PW1 no doctor
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was arrived from outside hospital including Dr.Narayana Kurup, the evidence of PW1 would make it clear that the above contention of the opposite parties that they have invited experts from nearby hospitals including Dr.Narayana Kurup and consulted further course of action in the treatment of the deceased Shakeela is not correct. None of the above doctors has been examined on the side of the opposite parties to establish that the medical team attended and care was given and resuscitation was up to the mark as stated in Ext.D2.
PW2 would claim that she is an expert Gynecologist having 17 years practice in Gynaecology and also having Post Graduate qualification on Gynecology. Such an experienced doctor waited for a normal delivery even when the condition of the patient has become complicated. Even according to DW1 if the 2nd opposite party could have timely acted the mother and baby could have been salvaged . In between 2.15 pm and 6 pm the 2nd opposite party doctor had enough time to rescue the patient and baby as argued by the learned counsel for the complainants. It is clear from the available materials that the 2nd opposite party did not take reasonable care, skill and caution in treating the deceased Shakeela. Timely action on the part of the 2nd opposite party to salvage the mother and child in the womb is lacking in this case. It is also clear from the available materials that the belated doing of ‘Hysterectomy’ caused high bleeding which accelerated the death of the mother.
According to the learned counsel for the opposite party No.1&2 the Director of Health Service in D2 report would completely exonerate the 2nd opposite party Gynecologist from liability of the death of the patient Shakeela. The above
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of the learned counsel for the opposite side has been resisted with tooth and nail by the counsel for the complainant and has argued that Ext.D2 , apex body report is not reliable which was prepare by an expert committee without including any experienced Gynecologist. It is true that though 4 members including the Director were present and the Director himself was chaired the meeting, no Gynecologist or any expert in Gynec section was present in the meeting. Nobody from A.M Hospital, Karunagapally other than the 2nd opposite party doctor was heard by the apex body before entering into the finding. It is further to be pointed out that the findings of the apex body is that pitocin injection is started at 10.30 am. As per the available records actually it was started at 8.30 am. Further more there is nothing on record to indicate that how the apex body has found that pitocin injection is within the limit as per the protocol. But we are of the view that even if the report (Ext.D2) prepared by the expert committee is relied up it would not salvage the opposite parties, since it is clear from the oral evidence of DW1 and Ext.D2 that there is delay in conducting cesarean section and that the patient’s monitoring chart during and immediately after the surgery was not seen prepared. These two findings are sufficient enough to hold that there is medical negligence on the part of the 2nd opposite party and deficiency in service on the part of the 2ndopposite party which resulted in the death of the deceased Shakeela.
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Doctors who are specialized in each branch is expected to use sufficient and reasonable degree of skill and knowledge while treating a patient. But in the present case the 2nd opposite party has miserably failed to exercise the same while treating in the deceased Shakeela. Hence it is clear that there is deficiency in service on the part of the opposite party. As there is lack of reasonable care and skill on the part of the doctor (2nd opposite party) employed by the 1st opposite party hospital it is also liable for the deficiency in service committed by the 2nd opposite party. The points answered accordingly.
Point No.3
As it is proved beyond reasonable doubt that there is deficiency in service on the part of the 1st and 2nd opposite parties, the legal heirs of the deceased Shakeela and her child including the complainants are entitled to get compensation from the opposite party 1&2 jointly and severally. The death of a 23 year old mother of the 2nd complainant when she was admitted in the 1st opposite party hospital for her 2nd delivery especially her first delivery was normal has seriously affected the life of the dear and near of the deceased including the complainants. The mental shock exerted on the 2nd complainant who is an infant boy cannot be ascertained in terms of money. The child has lost forever the motherly affection and also the love and affection of the younger sister due to the negligent and callous conduct of
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the 2nd opposite party doctor at the 1st opposite party hospital. It is true that the mental shock and pain to the 1st complainant and also the loss of motherly and
sisterly affection to the 2nd complainant cannot be ascertained in terms of money. Yet another fact to be taken in to consideration while ascertaining compensation is the younger age of the deceased Shakeela who was aged 23 years only as on the date of death.
In view of the entire facts and circumstances available on record we are of the view that Rs.10 lakhs will be reasonable and sufficient compensation to the legal heirs including the complainants. The point answered accordingly.
Point No.4
In the result complaint stands allowed in the following terms.
The opposite party No.1&2 are directed to pay Rs.10,00000/-to the legal heirs including the complainants No.1&2 within 45 days from today failing which the legal heirs of the deceased are allowed to realise Rs.10 lakhs with interest @9% per annum from today onwards till realization from the opposite party 1&2 jointly and severally and from their assets.
The opposite party No.1&2 are also directed to pay Rs.10,000/- as costs to the legal heirs of the deceased within 45 days from today failing which they are entitled to realise the same from the opposite party No.1&2 jointly and severally
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and from their assets . If the opposite parties fails to pay or deposit the compensation and cost as ordered above the legal heirs including the complainants no.1&2 are entitled to realise the compensation along with costs and interest at the rate of 12% per annum for Rs.10 lakhs from today till realization.
Dictated to the Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 31st day of January 2018.
E.M.Muhammed Ibrahim:Sd/-
President
M.Praveen Kumar:Sd/-
Member
Forwarded/by Order
Senior Superintendent
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INDEX
Witnesses Examined for the Complainant
Ext.PW1:-Safeela Beevi
Ext.PW2:- Dr.Peethambaran
Ext.PW3:-Prasanna kumar
Documents marked for the complainant
Ext.P1:- Attested copy of FIR
Ext.P2:- Attested copy of post mortem report & Chemical analysis report
Ext.P3:- Certified copy of mahazar
Ext.P4:- Inquest report
Ext.P5:- Copy of post mortem certificate
Ext.P6:- Copy of Medical Experts report
Ext.P7:- Copy of Charge sheet
Ext.P8:- Copy of ration card
Ext.P9:- Copy of Mahazar (Records)
Ext.P10:- Copy of Pathological report
Witnesses examined for the opposite parties
Ext.DW1:- Dr. Anna Mohan
Ext.DW2:- Dr.M.K. Jeevan
Documents marked for the opposite parties
Ext.D1:- Case sheet of A.M. Hospital
Ext.D2:- Report of state level apex body
Ext.D3:- High court judgment
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar:-Sd/-
Forwarded/by Order
