THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan Member
CC No. 121 /2006.
Tuesday, the 31st day of January, 2012.
Petitioner : Kucky Johney @
Kucky Merin Punnoose,
Mammoottil House,
Kuzhimattom Kara,
Panachickadu Village,
Kottayam Taluk.
(By Adv. Siby Chenappady)
Vs.
Opposite parties : 1) The Administrator,
St. Thomas Hospital,
Chethipuzha, P.B No. 1,
Changanacherry.
(Adv. Siby Mathew)
2) Dr. Molly Thomas,
Gynecologist,
St.Thomas Hospital,
Chethipuzha,
Changanacherry.
(By Adv. M.C Suresh)
3) Oriental Insurance Company Ltd.
Changanacherry Branch.
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 27..7..2006 is as follows.
Petitioner is a patient who availed service of first opposite party hospital for consideration. Second opposite party is a gynecologist who treated the petitioner. 3rd opposite party is the insurer of first and second opposite party. On 26..7..2004 petitioner as O.P No. 763/2002 consulted the second opposite party gynecologist, suspected pregnancy. As a part of treatment on 13..3..2005 petitioner under went cesarean in first opposite party hospital done by second opposite party. On
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18..3..2005, post operation, high fever with shivering was occurred to the petitioner. Though petitioner informed the matter to the doctor, she assured the petitioner that this is only a common post operative problem and there was nothing to worry about it. On 19..3..2005 petitioner was discharged from hospital. On 20..3..2005 fever was aggravated. On 21..3..2005 petitioner consulted second opposite party and informed about the complaints. Petitioner was inspected by second opposite party and give her some medicines. Due to high fever and shivering petitioner again consulted the second opposite party and there was no improvement in her condition. After some days petitioner noticed that yellow discharged is oozing out from surgical wound and petitioner felt hardness above stitches. On next day itself petitioner consulted the second opposite party. Second opposite party informed that the surgical wound will be healed within 3 or 4 months. On the following days also yellow discharged began to increase. Petitioner again approached second opposite party then she told the petitioner that there is no need for registering in the out patient section for further visits she told the petitioner to consult at her consulting room directly without registering. According to the petitioner she visited the second opposite party at least thrice in a week. On 31..5..2005 petitioner visited the second opposite party she sent her to the dressing room and insisted not to make any payment for further treatment. In the meantime petitioner and her husband apprehends some wrong in the attitude of the doctor in offering free treatment. Thus they decided to go to CMC hospital Velloor for further treatment. On 25..6..2005 petitioner approached gynecology department of CMC hospital, Velloor for further treatment and a scan was taken. After various investigation the problem of the petitioner was diagnosed as “Post LSCS” abdominal wall sinuses due to a typical Mico bacteria infection. At CMC
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Velloor emergency surgery was done on 28..6..2005. After surgery petitioner had to remain at the hospital for 30 days and was discharged on 26..7.2005. She had to stay there for an additional period of 10 days for further treatment. Doctors of CMC Velloor advised to dress the wound for six months and prescribed medicines. Petitioner under gone treatment at Mandiram hospital, for a period of six months. An amount of Rs. 600/- was spend for dressing and medicines and for transportation. In spite of treatment surgical wound do not heal except an area below umbilicus. Again petitioner was admitted in CMC Velloor and second surgery was done on 9..12..2005 and was discharged on 15..12..2005. According to the petitioner she reliably learned that many of the patient who underwent surgeries at first opposite party hospital during the said period . Sustained mico bacteria infections and consequent complications. A certificate issued by the surgeon of the first opposite party’s hospital reveals above facts. According to the petitioner act of the opposite
party amounts to callus negligence and deficiency in service. Complainant prays for a direction to the opposite party to pay Rs. 19,78,267/- with 12% interest from the date of petition till realization.
Notice of opposite parties served first and second opposite party entered appearance 3rd opposite party is impleaded as per order in IA-56/06 Dtd: 16..1..2007.
First opposite party filed version contenting that the petition is not maintainable. First opposite party admitted that petitioner was admitted in first opposite party hospital and she had given birth to male baby in cesarean section as per hospital records there was no shivering on 18..3..2005. On 19..3..2005 petitioner was discharged at her request. At the time of discharge temperature of the petitioner is 98.6 degree. First opposite party denied allegation of the petitioner that she met
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second opposite party on 21..3..2005 at the gynecology department. If there was such a visit it ought to have been recorded in O.P department and the consulted doctor might have recorded her diagnosis and details of medication in the records. In fact petitioner came to the hospital after her discharge, on 19..3..2005, only on 28..4..2005 ie. on the 47th day post cesarean postnatal check up is scheduled on 45th day post partum. On visit on 28..4..2005 petitioner did not raise any complaint as to her fever or shivering. On 13..5..2005 petitioner consulted Dr. Antony George with the complaint of cold and he treated her. On 28..4..2005 during check up minimal oozing was present from one site of the cesarean scar for which 2nd opposite party prescribed beta dine ointment. No treatment will be given to the petitioner in the first opposite party hospital without taking treatment file. From the records it is clear that petitioner never came to the gynecology department of first opposite party after 28..4..2005. On 13..5..2005 petitioner met Dr. Antony George with a complaint of cold. The averment that on 31..5..2005 petitioner came to first opposite party hospital is denied by the first opposite party. Second opposite party never offered any treatment free of cost. Finding of the CMC hospital as alleged by the petitioner is denied by the first opposite party. According to the first opposite party there are every chance of bacterial infection from external sources. During and subsequent to cesarean first opposite party hospital, its staff, were taking at most care and caution in treatment and surgery . According to the first opposite party no patients were sustained bacteria infection and consequent complication. They admitted that one or two post operative superficial surgical site infection was noticed during December 2004 to March 2005. Those patients were treated in opposite party hospital and they were cured by treatment given from the hospital. Subsequently on the detailed
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evaluation to the first opposite party it was diagnosed that a typical myco bacterial wound infection caused by myco bacterial Avium complex sensitive to rifampicin and ethabutol . First opposite party contented that these are rare cases and some infection may be caused in spite of all precaution and due care. If the petitioner had such infection it would have been diagnosed and treated properly if the petitioner report the matter to the second opposite party. According to the first opposite party there is no negligence or deficiency in service on their part. First opposite party also insured the hospital with 3rd opposite party so if at all any amount ie. to be paid by the 3rd opposite party.
Second opposite party filed version contenting that the petition is not maintainable. According to the second opposite party petitioner was a primigravida with her LMP on 21..6..2004 and having expected date of confinement on 28..3..2005. Second opposite party conducted the cesarean operation and patient gave birth to a healthy male baby. During post operative period there was mild rise in temperature ranging from 98.6 degree F to 99.8 degree F which is usual manifestation seen in post operative period in a case of patient having history of Premature Rupture Of Membrans. After discharge on 19..3..2005 petitioner came in routine postoperative check up on 28..4..2005. On examination patient had minimal oozing from one site of LSCS scar for which the second opposite party prescribed Betadine ointment. Petitioner had only one visit on 28..4..2005 to the gynecology department. At that time second opposite party prescribed standard medicine for external application. Petitioner did not turn up again to consult the second opposite party and lost further follow up. Second opposite party had given standard and acceptable medical treatment expected from a reasonable and experienced
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gynecologist in an identical situation. According to the second opposite party petitioner herself voluntarily abandoned further treatment after 28..4..2005. So, there is no negligence or deficiency in service on the part of the second opposite party.
3rd opposite party filed version contenting that the petition is not maintainable. According to the 3rd opposite party as per the averment in the petition it is stated that she approached the CMC Velloor on 25..6..2005 this is after one month from 31..5..2005. If the petitioner feels any deficiency, in the treatment of first opposite party, she will not wait to approach CMC Velloor up to 25..6..2005. She might have been treated in any other hospital in between this time. If any Mycro Bacterial infection caused on as a result of treatment at first opposite party hospital. Already infection in connection with a surgery will appear soon after such surgery and usually after 2 or 3 months. Alleged certificate issued by Dr. Tomy Mathew is
collusive document prepared on the influence of the petitioner. According to the 3rd opposite party there is no deficiency in service on the part of first opposite party. Amounts claimed are highly excessive. 3rd opposite party admitted that there is a valid insurance policy in favour of the first opposite party for the period from 31..10..2004 to 30..10..2005. According to the 3rd opposite party petition is to be dismissed with their costs.
Points for determinations are:
i) Whether there is any negligence or deficiency in service on the part of the first opposite party?
ii) Relief and costs?
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Evidence in this case consists of deposition of DW1 to 3 and Ext. A1 to A7 documents on the side of the petitioner and opposite parties evidence consists of Ext. B1 document and Court Ext. X1 and X2.
Page No. 1
Crux of the case of the petitioner is that petitioner had treated in first opposite party hospital. She got some complaints as post operative problem. There after she went to Velloor Christian Medical College and treated their. Treatment given by first opposite party hospital was defective hence the petition.
It is well settled that standard to be applied for judging whether the person charged with an offence of medical negligence has been negligent or not; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch he practices. Negligence cannot be attributed to a doctor so long as doctor performs duties with reasonable skill and competence. Merely because the doctor choose one course of
action in preference to other one available, he would not be liable with the course of action to some like him so acceptable to medical profession this principle is called “bolam test”.
Both opposite parties admitted in their version and further first and second opposite party during their cross examination admitted that during December 2004 to March 2005 there were incidence of infection at first opposite party hospital. DW2 gynecologist who treated the petitioner during her cross examination admitted that one or two patients affected with bacterial infection. DW1 the administrator of of first opposite party hospital stated that there was incident of a typical mycro bacterial infection to the patients. DW2 further admitted that during the disputed
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period Dr. Tomy Jose was working in 1st opposite party’s hospital. Petitioner produced a certificate issued by Dr. Tomy Mathew, M.S. Surgeon of first opposite party hospital stating that there was a few cases of LSCS surgical site infection during December 2004 to March 2005. The certificate issued subject to proof is marked as Ext. A6. Even though maker of the document is not examined. Issuance of Ext. A6 is admitted by the 1st opposite party. In Ext. A6 the surgeon categorically stated that few patient present with small suture-line abscess 3 to 4 weeks after discharge. A few presented with subcutaneous nodules away from in cession site. When treatment with drainage and antibiotic were un effective a detail evaluation was done. It was found to be wound infection caused by myco bacteria Avium complex. Ext. X1 is the treatment record of the complainant at CMC Velloor from Ext. X1 treatment records it can be seen that the organism finally identified as mycro bacteria fortuatum. From Ext. X11, treatment record Ext. A4 treatment summary from CMC Velloor, and Ext. A6 certificate we can come to a conclusion that petitioner is diagnosed to be caused LSCS infection due to mycro bacteria infection.
According to the opposite party infection is caused from some where else and not due to the surgical operation. For considering that aspects the deposition of DW2 and PW2 is to be looked in to. DW2 is the gynecologist who conducted the surgical operation. PW2 is the surgeon who treated the patient at CMC hospital Velloor. DW2 during cross examination stated that myco bacterian infection is a rare type of infection. She further deposed that there were some reported cases of such infection in her hospital and all such infections were reported post operatively.
PW2 doctor, who treated petitioner at CMC Velloor stated that the typical mycro bacteria is in nature, water surgical solution and instruments (surgical).
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Normally patient does not acquire this infection. But if there is a breach in sterilization process this can come or even if dressing material are not properly sterilized this infection can come. It is possible in this case that because she had an operation in non sterilized condition. DW2 stated that similar organism or different strain is stated in Ext. A6. According to the DW2 since CMC Velloor, is a referral hospital they saw many of such cases. He further asserted that because of the surgical procedure this infection was caused to the petitioner.
According to the opposite party the petitioner had sought discharge from hospital at her request. In Ext. A6 organism is myco bacterian Avium Complex and the case of the petitioner is that she had got infection by myco bacterian forturtum . So, counsel for the opposite party argued that if the case of the petitioner that she had sustained infection from first opposite party hospital she ought to have infected by the organism as stated in the Ext. A6 certificate. So, the source of infection alleged to have been caused was external sources after her discharge. First opposite party further argued that petitioner had never visited the hospital after her discharged on
28..4..2005 other than on 13..5..2005. In Ext. A6 document the surgeon of first opposite party hospital certified that some patient presented to the hospital with surgical sight infection 3 / 4 weeks after discharge. So, in our view the discharge in the complication may also ought to have been noticed after 4 weeks. Petitioner’s definite case is that after the discharge from the hospital petitioner consulted the second opposite party Ext. A2 is the bill issued from the first opposite party hospital on 21..3..2001. So, from Ext. A2 it can be presumed that petitioner visited the hospital on 21..3..2005. From Ext. A2 bill it can be seen that petitioner purchased a medicine “OFLIN 200 Mg.” from first opposite party hospital. DW2 admitted in her
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cross examination that it is an antibiotic used for the treatment of urinary track infection. Ext. B1 is the treatment records of the baby of the petitioner we cannot assume that no such medicine is possible to be prescribed to one day old child. Probability that can be inferred is that petitioner visited 2nd opposite party in 1st opposite party hospital on 21..3..2005. Petitioner has a specific case that she regularly visited the second opposite party with complaints of fever, yellow discharge and pain and the 2nd opposite party advised simply dress applied with the beta dine. Petitioner stated that most of the time she had seen the second opposite party without registering in the O.P Department. It is come out in evidence that DW2 is residing in the hospital quarters. As per the admitted case there were few insistence of surgical site infection by a typical myco bacteria but opposite party has not produced any treatment records of those patient whom they treated successfully. So the inference that the case of the petitioner that opposite party purposefully avoided registration is much probable. Opposite party has another contention that petitioner has not impleaded the head of the para medical staff and the physician and the other physician who treated the petitioner. In our view since the hospital is made a party even though there is any negligence on the part of para medical staff hospital is vicariously liable. In our view from the available evidence it can be seen that opposite party has not perform the duties with reasonable care and caution. In the case of Martin F Disusa Vs. Mohammed Ishafaq reported in 2009 SCC page No. 1 Hon’ble Supreme Court had given certain directions and precautions to doctors / hospital/ Nursing Homes. In the said case Supreme Court observed that current practices, infrastructure, para medical and other staff, hygiene and sterility should be
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observed very strictly . In this case opposite party committed act of deficiency. Point No. 1 is found accordingly.
Point No. 2
In view of the finding in point No. 1 petition is allowed. While considering the quantum of damage petitioner’s claim for Rs.19,78,267/-. Series of medical bills produced by the petitioner is marked as Ext. A1 to A7. Total medical expenses at C.M.C Velloore will come to Rs. 1,70,771/-. Treatment expenses at Mandiram hospital amounts to Rs. 96010/-. In our view a normal lady who undergone cesarean surgery due to the lack of precaution in hygene and sterility had suffered a lot. A person injured and bed redden causes her family in great distress and pain, feeling of hurt, helpless ness, despair and often destitution in that days. The condition of the petitioner affected not only lady victim but also her husband, child and family members. Stress saps their energy and destroy their equanimity. We therefore compute compensation keeping in mind about the loss of earning, mental agony, loss
of consortium, nursing expenses. Being insured 3rd opposite party is liable to compensate the opposite party 1 & opposite party 2 to the extent as per policy certificate.
In the result petition is allowed opposite parties are ordered to pay the petitioner an amount of Rs. 7,00,000/- (Seven lakh only) as compensation. 3rd opposite party as per Ext. B1 policy is liable to pay an amount of Rs. 5,00,000/- (Five lakh). Balance award amount is to be paid by 1st and 2nd opposite party. Order shall be complied with within 30 days of receipt of a copy of this order. If order is not complied as directed petitioner is entitled for 9% interest for the award amount from
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the date of filing of petition till realization.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 31st day of January , 2012.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents of the Petitioner
Ext. A1: Medical bill Dtd: 19..3..2005
Ext. A2: Medical bill Dtd: 21..3..2005
Ext. A3: Medical bill Dtd: 13..5..2005
Ext. A4: Treatment summary from CMC Velloore Dtd: 26..7..2005
Ext. A5: Treatment summary from CMC Velloore Dtd: 15..12..2005
Ext. A6: Certificate issued by Dr. Tomy Mathew Dtd: 18..8..2005
Ext. A7to A7 (fc) series of medical bills.
Documents for te opposite party.
Ext. B1: Treatment records at St. Thomas hospital
Ext. B2: Policy schedule & conditions of policy
C1: Treatment record ceased by advocate commissioner from St. Thomas
Hospital, Changanacherry.
X1: Treatment records of petitioner at CMC Velloore
X2: Treatment records of petitioner at Mandiram Hospital.
By Order,
Senior Superintendent
