IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 124/09 DATED 16.10.2009<br /> ORDER<br /> <br /> Complainants 1. Smt.Leelambika.S.M.<br /> W/o M.Nandeesh<br /> <br /> 2. M.Nandeesh, S/o Madaiah<br /> <br /> <br /> 3. <br /> Unnamed boy, S/o M.Nandeesh,<br /> Rep. by M.Nandeesh, the father<br /> All are R/at Bevakallu, Dudda Hobli, Mandya District.<br /> <br /> (By Sri. R.R.N., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Administrator, Apollo BGS Hospital, <br /> Adichunchanagiri Road,<br /> Kuvempunagar, <br /> Mysore-570023.<br /> <br /> <br /> 2. <br /> Dr.Vanitha.L.V.,<br /> Gynecologist,<br /> Apollo BGS Hospital,<br /> Adichunchanagiri Road,<br /> Kuvempunagar, <br /> Mysore-570023.<br /> <br /> <br /> 3. <br /> Dr.Harish Kejriwal,<br /> DNB (Paediatrics),<br /> Apollo BGS Hospital<br /> Adichunchanagiri Road,<br /> Kumvepunagar,<br /> Mysore-570023.<br /> <br /> (By Sri. J.Purushotham, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 28.03.2009<br /> Date of appearance of O.P. : 19.05.2009<br /> Date of order : 16.10.2009<br /> Duration of Proceeding : 4 MONTHS 27 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainants have filed the complaint under section 12 of the Consumer Protection Act, seeking a direction to opposite parties jointly and severally to pay a sum of Rs.20,00,000/- towards damages for mental tension, agony, pain and suffering on the ground of medical negligence in defective delivery conducted by second opposite party and incidental omissions on the part of third opposite party.<br /> <br /> 2. It is alleged in the complaint that, first complainant was admitted to first opposite party hospital for delivery and on 06.05.2008, the third complainant was born. The second opposite party conducted delivery. She is Gynecologist. The third opposite party Paediatrics attended the third complainant. The first opposite party being the employer of second and third opposite parties, is also liable and responsible for the defective service rendered by second and third opposite parties.<br /> <br /> During the delivery, in spite of all parameters, suggesting for caesarian delivery, with utter negligence, the third complainant suffered serious damage to the nerves in the left shoulder (left Erb’s palsy). Due to defective delivery conducted by second opposite party the third complainant suffered not only shoulder nerve damage, but also, experienced lot of pain and suffering during his infant days. The second and third opposite parties were aware of the damage, immediately after delivery, but they did not disclose it to the first and second complainant. Damage to the shoulder nerve caused on account of negligent attitude and improper delivery conducted by second opposite party.<br /> <br /> The third opposite party attended the third complainant, after his birth and in spite of the damage referred to above, did not treat properly nor disclose the cause of damage to the complainants. The third opposite party is guilty of not providing adequate and timely treatment to the third complainant, amounting to deficiency in service. The Erb’s palsy could have been reduced, if the third opposite party had given timely treatment. The third opposite party is also guilty of Unfair Trade Practice on account of non-disclosure of the above. The third complainant is enable to use his left hand properly. He is enable to lift his left hand and virtually left hand rendered useless on account of damage to the nerve, which caused during the delivery. The damage is incurable and it is permanent disability. No amount of money can substitute the damage. <br /> <br /> The first and second complainants, parents of third complainant, also suffered mentally, physically and financially on account of defective delivery conducted by second opposite party. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The second opposite party in the version, has contended that the complaint is not maintainable either in law or on facts. It is denied that, second and third opposite parties rendered defective service. It is stated that, first complainant was admitted to the first opposite party hospital on 29.09.2007 with a complaint of omitting and after treatment, was discharged on 03.10.2007 with an advise to come for review after 15 days. She failed to do so. She came to second opposite party on 11.04.2008 for anti-natal check-up and it was found that the fetus was in vertex position. Later, she never came back, but came only in active labour on 05.05.2008.<br /> <br /> It is stated that, first complainant at the time of delivery, had adequate pelvis and it was second delivery. The first delivery was normal vaginal delivery. There were no parameters suggesting for surgery. Surgery is not recommended in all breach deliveries. It is contended that, birth trauma including brachial plexus involvement is known to occur in breach delivery and the same can happen in breach extraction in caesarian delivery also. Further, birth trauma can occur in vertex presentation also. Caesarian delivery is not recommended, just because, it is a case of breach presentation. The caesarian has its own complications, like increased mortality, morbidity, anesthetic and surgical complications. In the absence of proper indication, caesarian should not be performed. The second opposite party has acted at her best in the interest of both mother and baby. It is stated, there is neither negligence nor deficiency in service on the part of the opposite parties. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. The third opposite party in the version contended that, after delivery, when the baby was handed over to this opposite party, had problem with breathing and was shifted to new born ICU for treatment. The problem with left hand was noticed on the second day itself. It was informed to the parents. It did not require any active intervention for a week except observations. The parents of the baby were informed of chances of spontaneous recovery in such cases was high and hence, they were informed to wait to see the progress. In the meanwhile, baby was treated for breathing problem and possible infection, which was most pressing and critical at that point of time. On the third day, baby developed jaundice, which was treated promptly. This opposite party counseled the parents regarding the problems and its progress on daily basis. At the end of one week, not noting much improvement in the use of left hand, an opinion was sought from the Orthopedician and x-ray of left shoulder was taken. It was normal without any fractures. Physiotherapy was advised. The parents were advised to follow-up with the Orthopedician after 3 weeks and also with this opposite party after a week. They failed to do so. On 03.08.2008, baby was admitted to the hospital with a complaint of refusal of feed and was discharged on 09.08.2008 after recovery. Even during that admission, treatment for left Erb’s palsy by way of faradic stimulation and physiotherapy was advised. Complainants were asked to bring the baby for review after 15 days. They did not comply the advise. On 04.09.2008 the complainants brought the baby with noisy breaching and it was only noted that the baby’s left erb’s palsy was improving, as this opposite party had referred the case to Neurologist. It is stated that, there is no negligence or deficiency of service or guilty of Unfair Trade Practice on the part of this opposite party. All other material allegations are denied. Hence, it is prayed to dismiss the complaint.<br /> <br /> 5. For the first opposite party, a memo is filed adopting the versions filed by second and third opposite parties.<br /> <br /> 6. To prove the facts alleged in the complaint, the first complainant has been examined as C.W.1 and also cross-examined by the opposite parties. For the complainants, certain documents are produced. On the other hand, Senior Manager of first opposite party has filed his affidavit. So also, second and third opposite parties have filed their affidavits and they have been cross-examined. Certain documents from the hospital are produced. We have heard the arguments of the learned advocates and they have also filed written arguments, along with certain medical literatures. We have perused the entire material on record.<br /> <br /> 7. Now the points arises for consideration are as under:-<br /> 1. Whether the complainants have proved medical negligence and deficiency in service on the part of the opposite parties and that they are entitled to any reliefs?<br /> 2. What order?<br /> <br /> 8. Our findings are as under:-<br /> Point no.1 : Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 9. Point no. 1:- Before proceeding to appreciate facts and the evidence in the case, we would like to put certain questions to ourselves. Admittedly, in the case on hand, the third complainant had suffered Erb’s palsy, that is damage to the nerves. What may be the probable reason or what can be inferred for the cause of Erb’s palsy? Must be use of excess traction. Why more or excess traction might have been used? The inference that could be drawn is, the child was not able to come out of the route. Why, the child was not able to come out of the route, the cause must be that the route must be not sufficient. In such a case, what can be done? To widen route. <br /> <br /> 10. In the case on hand, the complainants allege that the second opposite party ought to have ascertained the weight of the fetus, size of the head and its position, as well as position of the hands, chord etc., Though, the second opposite party contend that she clinically ascertained that pelvis was adequate for delivery, the question would be, whether clinical examination in this scientific days is sufficient. The second opposite party admits that in the first opposite party hospital, scanning was readily available. We do not want to go in detail, as to whether clinical examination will give more accurate and correct result of the scanning. In our opinion, scanning will give more accurate and correct opinion than the clinical examination. Hence, in the case on hand, when readily scanning was available in the hospital, why the second opposite party did not use it, would be the question.<br /> <br /> 11. For the second opposite party, it is argued that first complainant was in active labour and as such, scanning was not possible. The fact that, it was not possible for scanning and scanning was not necessary, are different and distinct. Since the second opposite party has specifically admitted in the cross-examination that scanning was not at all necessary, then the arguments of the learned advocate that the first complainant had come for active labour and as such scanning was not done, cannot be accepted. Moreover, the doctor in the cross-examination has admitted that, there was more than 12 hours time in between the admission and the delivery. Hence, the second opposite party ought to have done scanning of the first complainant before deciding the delivery, as to vaginal delivery or caesarean. <br /> <br /> 12. The second opposite party in the cross-examination admits and states that, Erb’s palsy may happen when they hold the shoulder of the baby and when they try to deliver the baby. It may also happen in case of vertex delivery. In the version, the second opposite party in the middle of third paragraph has stated that on 14.04.2008, the first complainant had come up for anti-natal check-up and it was found that the fetus was in vertex position. Hence, when that was so, the second opposite party ought to have taken more or extra care at the time of delivery.<br /> <br /> 13. Admittedly, present case is of breach delivery. The second opposite party in the cross-examination on 4th page, has stated that she agree that 60% breach presentation will be extracted with caesarean. When that is so, why the second opposite party did not go for scanning or caesarean delivery, under the circumstances, is not satisfactorily explained. Also, it is relevant to note the statement made by the second opposite party in the cross-examination on page 5. She states, in vaginal delivery, there may be more Erb’s palsy. Also, she states, the risk factor involved in the case, vaginal breach delivery and caesarean delivery, more in vaginal delivery. The second opposite party having such knowledge, did not go for caesarean, prima-facie points out negligence on her part.<br /> <br /> 14. The third opposite party also, in the cross-examination has stated that Erb’s palsy may happen during delivery, because of traction of head and neck.<br /> <br /> 15. As regards second opposite party, the complainants alleges that he did not conduct necessary or required tests at initial stage and consequently, he could not come to know about the Erb’s palsy suffered by the third complainant. Though, the third opposite party has tried to contend that he noticed Erb’s palsy on the second day itself, admittedly, that has not been noted in the case sheet of the third complainant. For non-mention of that fact in the case sheet on the second day, the reason assigned is that spontaneously there are chances of recovery. Chances of spontaneous recovery or otherwise is one thing, and noting or mentioning of certain problem with the patient in the case sheet, is another thing. The third opposite party in the cross-examination has admitted that till 14.05.2008, Erb’s palsy was not noted in the case sheet. He admits noting of Erb’s palsy is a significant thing to be recorded. When that is so, non-recording or non-mentioning of Erb’s palsy with third complainant, under the circumstances, goes to show that the third opposite party did not examine the baby properly, let it be by conducting any tests or otherwise. Further, it is relevant to note that, though the third opposite party claims that he noticed Erb’s palsy on the 2nd day and was treated conservatively, that has not been noted in the case sheet. Also, the third opposite party claims Erb’s palsy of the third complainant was treated by physiotherapy. The doctor in the cross-examination has admitted that physiotherapy chart has not produced. It is contended for the opposite parties and the learned advocate argued that the parent did not follow up the advice. The third opposite party in cross-examination admitted that, in the discharge summary, he has not mentioned to continue physiotherapy at home. Hence, contention of the opposite parties that the parents did not follow up the treatment regarding Erb’s palsy of third complainant and as such, there was no improvement, cannot be accepted. If at all, there was specific advice given in the discharge summary, then we could have believed the submission of the opposite parties on the point. Moreover, the third opposite party in the cross-examination has also admitted that there was no much improvement of Erb’s palsy and hence, stretching exercise was advised. To substantiate this fact also, there is no cogent evidence for the opposite parties.<br /> <br /> 16. The learned advocate for the complainant and the opposite parties have referred to certain medical literature, but mention of the same in detail is not necessary in view of the fact that second and third opposite parties in their cross-examination have admitted certain aspects as considered here before.<br /> <br /> 17. Advocate for the opposite parties relied on the ruling in Mortin E D’soza Vs. Mohammed Isfach in Civil Appeal No.3541/02, judgement dated 17.02.2009. The learned counsel specifically points out the observation made by the Hon’ble Apex Court in the said judgement that, the Consumer Forum being not experts in medical sciences must not substitute their own views for that of specialists. Hence, it is argued for the opposite parties that unless, the complainants prove negligence on the part of the opposite parties placing expert evidence, the case of the complainants cannot be accepted. Firstly, in the case on hand, certain facts are admitted by second and third opposite parties themselves in the cross-examination. Further, the learned advocate for the complainants points out that in the said judgement, Hon’ble Apex Court has also made observation that, it is practically very difficult to get an adverse report against a doctor from brother doctor or committee of doctors, because of very strong bond of pretainity amongst doctors. Further more, recently Hon’ble Apex Court in Maliah Kumar Vs. Sukumar and others reported in III (2009) CPJ 17 has held that, section 45 of the Evidence Act, is not applicable to the Consumer Court and the Forum has to merely comply with principles of natural justice.<br /> <br /> 18. Considering the fact, evidence and the discussion made here before, we are of the opinion that second and third opposite parties are negligent and there is deficiency in service on their part. Hence, we hold that them liable and responsible. Considering the entire facts, and the circumstances, awarding of total damages or compensation in a sum of Rs.75,000/- will meet the ends of justice. <br /> <br /> 19. Accordingly we answer the point partly in affirmative.<br /> <br /> 20. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The second opposite party is hereby directed to pay a sum of Rs.50,000/- and the third opposite party a sum of Rs.25,000/- to the third complainant, within a month from the date of this order, failing which the amount shall carry interest at the rate of 12% p.a. <br /> 3. The second and third opposite parties shall credit the said amount in this Forum and that amount shall be kept in F.D. in the name of the third complainant till he attains majority. <br /> 4. The second and third opposite parties jointly and severally shall pay a sum of Rs.5,000/- cost of the proceeding to the complainants.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 16th October 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br />