KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 126/2014

JUDGMENT DATED: 13.12.2023

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANT:

Silvester, S.B. Cottage, Malappanamkodu, Vilappilsala P.O., Thiruvananthapuram.

                              (By Adv. Sabu N.S.)

OPPOSITE PARTIES:

1. Institute for Women’s Health & Family Research, Credence Hospital, Ulloor, Thiruvananthapuram represented by its Chairman.

2. Dr. Mrs. Santhamma Mathew, Department of Gynaecology, Institute for Women’s Health & Family Research, Credence Hospital, Ulloor, Thiruvananthapuram.

(By Adv. T.K. Ananda Padmanabhan)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is a complaint filed under Sec. 12 of the Consumer Protection Act, 1986 against the Institute for Women’s Health and Family Research, Credence Hospital represented by its Chairman and Dr. Santhamma Mathew, Gynaecologist of the above hospital seeking compensation of Rs. 1 Crore attributing medical negligence. 

2.  The case contained in the complaint in short is as follows: The complainant is the husband of one Baby Silvester.  Baby Silvester had undergone treatment from the 1^st opposite party hospital.   As a result of the treatment availed from the 2^nd opposite party Baby Silvester had conceived twin foetus.  She was employed as a Stenographer to the Vice Chancellor, North East Regional Institute of Science and Technology, Arunachel Pradesh.  She was regularly consulting with the 2^nd opposite party over internet and phone and was taking medicines as directed by the 2^nd opposite party.  On 12.12.2012 Baby Silvester was taken to Arunachal State Hospital with a complaint of slight bleeding.  She had undergone inpatient treatment in the hospital for four days under the constant supervision of the 2^nd opposite party.  As directed by the 2^nd opposite party Baby Silvester got discharged from the hospital and came to Thiruvananthapuram and got admitted in the 1^st opposite party’s hospital on 17.12.2012.  As per the advice of the 2^nd opposite party, a cesarean section was done on 23.12.2012 and twin babies were delivered.  After the cesarean, Baby Silvester was taken out from the operation theatre around 5 pm on 23.12.2012.  But in the morning on 24.12.2012 complainant received an urgent call from the Intensive Care Unit of the hospital that the patient had to be immediately shifted to SAT Hospital, Thiruvananthapuram for better post operative management.  The complainant rushed to the ground floor and he could see Baby Silvester in an ambulance. Inside the ambulance two nurses were seen pressing the chest of Baby Silvester for giving artificial respiration.  On the ambulance reaching at SAT Hospital, the doctors declared that Baby Silvester was no more and in fact she was brought to the hospital dead.

3.  Autopsy was done on the body of the deceased.  It was revealed that the death occurred due to bleeding followed by gynaecological surgeries.  From the post mortem report it was revealed that the 2^nd opposite party did the surgery in a negligent manner who did not initiate any steps to control the bleeding which resulted in profuse bleeding.  There was also negligence on the part of the 2^nd opposite party in not referring the patient to SAT Hospital for a better treatment at an earlier point of time.  The death of Baby Silvester was solely due to the negligence of the 2^nd opposite party.  The two new born babies were also treated in the hospital.  Both of them died on the 5^th and 47^th day respectively of their birth.  It also was caused due to the negligence on the part of the opposite parties.  The opposite parties had declined to issue the medical records pertaining to the treatment of Baby Silvester despite repeated requests made by the complainant.  Since the negligence was on the part of the 2^nd opposite party she is primarily liable and the 1^st opposite party being her employer is vicariously liable.  Hence the complaint. 

4.  The opposite parties on receipt of notice entered appearance and filed version with the following pleadings:-   The complaint is not maintainable.  It is admitted that on 09.04.2012 the complainant and his wife had visited the 1^st opposite party for pregnancy related treatment.  The wife of the complainant was 50 years old who had already attained her menopause.  She was the second wife of the complainant.  Before approaching the 1^st opposite party, the wife of the complainant had undergone treatment at Samad Hospital, Thiruvananthapuram during the period from 2009 to 2011.  She had also undergone invitro fertilization thrice at Samad Hospital.  But all the three attempts went in vain.  The medical/health condition of the wife of the complainant was bad as she was having acute diabetes and was taking insulin.  Considering the age and the physical condition of the complainant’s wife the opposite parties explained the risks involved in the treatment.  But the complainant and his wife insisted on proceeding with the treatment even after having understood the risks involved.  On account of their insistence the 2^nd opposite party had carried out the treatment process and the wife of the complainant was admitted on 16.04.2012 and discharged on 20.04.2012.  During this period, she had undergone invitro fertilization process.   On 11.07.2012 three embryos of four cells, A grade were transferred to the uterus of the deceased.  Since the couple insisted to stay at the hospital the wife of the complainant was admitted and she was discharged on 16.07.2012.  The transfer was successful and the deceased had conceived twin foetus.  After discharge, the wife of the complainant was fully under the supervision of the hospital at Arunachal Pradesh.  It is incorrect to say that the complainant’s wife developed bleeding on 12.12.2012 and got admitted at Arunachal State hospital.  As per the records produced by the complainant it could be seen that the deceased was suffering from bleeding and there was a delay of around 5 days in admitting her in the opposite parties’ hospital.  This delay had aggravated and deteriorated the health condition of the deceased.  On 17.12.2012 the deceased was admitted in the hospital.  As per the referral report from the Arunachal State Hospital the deceased was having bleeding on the 7^th and 8^th of December 2012. 

5.  On 23.12.2012 the patient developed abdominal pain and bleeding.  There were life threatening symptoms on the patient and the twin babies in her womb.  So the only medical option available at that stage was to deliver the babies so as to save the life of the mother. So the deceased was taken to the labour room from where she had delivered twin babies at 2.10 pm and 2.11 pm respectively.  Since the condition of the deceased was complicated on account of the post operative hemorrhage it was decided to perform hysterectomy.  In spite of delivering the babies the bleeding continued on account of the medical condition known as “atonic PPH” and in such a situation the uterus fails to contract and stop bleeding and there was no other way but to remove the uterus.  Hysterectomy was done after obtaining consent from the complainant.  The critical condition of the patient was made aware to the complainant and his close relatives.  Since the presence of a specialist doctor was needed Dr. Akbar, the former Director and Professor of Surgery, Medical College was brought to the theatre to perform the surgery.  In addition to Dr. Akbar, the 2^nd opposite party, Dr. Bindhu and Dr. Sagar were also present and the entire procedure was conducted under the due care and attention of the doctors and other staff of the 1^st opposite party.  The surgery was successful and the deceased was shifted to post operative room and the complainant was allowed to see the patient.  She was under constant observation.  On the eve of 23^rd December by the timely intervention of the doctors and the precautionary steps taken by them which included blood transfusion the deceased was feeling well till 5.30 am on 24.12.2012.  By 5.30 am the patient developed unexplained and unexpected complications.  The 2^nd opposite party and Dr. Sagar had examined the patient and decided to shift her to SAT Hospital.  As per their direction, at 5.40 am the patient was shifted to SAT Hospital.  She was accompanied by Dr. Bindu and other staff.  The doctor attached to SAT Hospital declared that the patient had died at 6.05 am.  There was no negligence or lack of care on the part of the opposite parties.  The babies were born preterm and the complainant and his wife were fully made aware about the problems in conceiving at the age of 50 and about her health condition.  The opposite parties took all reasonable care to save the life of the babies.  But unfortunately they couldn’t succeed in saving the life due to the reasons beyond their control.  The 2^nd opposite party is a renowned gynaecologist who has got 44 years of service.  The complainant or his wife had no occasion to raise any complaints regarding the treatment given by the opposite parties.  The death occurred in 2012 but the complaint was filed after a lapse of two years.  The complaint arose when the complainant was asked to pay the bills due to the 1^st opposite party and after the initiation of legal measures for the realization of the amount.  The opposite parties had filed OS 2406/2014 for the recovery of medical bills and the matter is pending before the III Additional Munsiff’s Court, Thiruvananthapuram.  There is no negligence or carelessness on the part of the opposite parties.   They would seek for the dismissal of the complaint.  

6.  On the side of the complainant PWs 1 to 4 were examined and Exts. P1 to P8 and X1 were marked.  No oral evidence was let in by the opposite parties.  Exts. B1 and B2 were marked on their side.  Written notes of arguments were filed by the counsel for the complainant.

7.  Heard the counsel for both sides. 

8.  The points which arise for determination are:

1. Is there any negligence or carelessness on the part of the opposite parties with respect to the treatment given to the deceased wife of the complainant?
2. Whether the complainant is entitled to get compensation and if so what is the quantum?
3. Reliefs and costs?

9.  Points (i) & (ii):- These points are considered together since the facts are interlinked.  The complainant had given oral evidence as PW1 in support of the averments contained in the complaint.  The complainant’s wife was working as a stenographer to the Vice Chancellor of North East Regional Institute of Science and Technology, Arunachal Pradesh.  On 12.12.2012 while she was at her work place she had bleeding and got admitted in the State Hospital at Naharlagun.  Ext. P1 is the copy of the discharge slip issued by Arunachel State Hospital, Naharlagun which would show that she had underwent conservative management in the said hospital from 07.12.2012 to 12.12.2012.  Ext. P1 was admitted in evidence subject to the objection that the same is only a copy.  Ext. P2 is the discharge summary issued by the Credence Hospital.  As per Ext. P2 it could be seen that the deceased was admitted in the Credence Hospital on 16.04.2012 and discharged on 20.04.2012.  This document was also objected by the opposite party for the reason that it was a photocopy.  Ext. P3 is a notice issued by the counsel for the complainant claiming compensation against the opposite parties alleging medical negligence.  After the demise of the wife of the complainant autopsy was done.  The copy of the post-mortem report issued by the Professor and Head and Police Surgeon of the Directorate of Medical Education, Medical College, Thiruvananthapuram is marked as Ext. P4 subject to the objection that the same is a copy.  Ext. P5 is the copy of the First Information Report prepared by the Medical College Police as Crime No. 1852/12 under Sec. 174 for unnatural death.  Ext. P6 is the legal heirship certificate issued by the Tahsildar, Neyyattinkara.  Ext. P7 is the reply notice issued by the 2^nd opposite party dated 16.10.2014.  The news item published in Mathrubhoomi daily dated 25.12.2012 in respect of the deceased was marked as Ext. P8. 

10.  The complainant would attribute medical negligence on the part of the 2^nd opposite party in providing treatment to his wife during her delivery from the hospital.  PW2 was the Professor and Head of the Department of Forensic Medicine, Thrissur.  While he was working in the Medical College Hospital, Thiruvananthapuram autopsy of the deceased was conducted.  He identified the signature contained in Ext. P3.  He spoke before this Commission that while conducting the autopsy he had verified the clinical case records maintained at the Credence Hospital.  According to him the cause of death was bleeding following the gynaecological surgeries.  PW3 was a post-graduate trainee working along with PW2 when the autopsy was done on the body of the deceased on 24.12.2012.  She also gave evidence that the death was due to the bleeding following gynaecological surgeries.  The complainant had also examined an expert as PW4.  PW4 was working as the Professor in SAT, Hospital, Thiruvananthapuram.  The medical records pertaining to the deceased were summoned on an application filed by the complainant and the same was shown to PW4.  The medical record is marked as Ext. X1.  As per Ext. X1 it could be seen that Baby Silvester was admitted in the hospital on 17.12.2012 at 4.57 pm.  As per the summary chart “the deceased was on IVF Pregnancy, clinically had ante partum haemorrhage, placenta previa, emergency hysterectomy done”.   PW4 was shown with Ext. P1 the discharge card issued by the hospital at Arunachal Pradesh.  According to PW4, in Ext. P1 no serious symptoms were seen.  But the doctors had advised her to take rest.  As per the medical records, on 17.12.2012 the patient was admitted in the hospital.  Her Hb level was 7.8 at that point of time and hence the doctor had advised to provide her blood.  Ext. X1 shows that on 18.12.2012 blood transfusion was done.  After the blood transfusion, a slight hike in the Hb is seen noted as 8.5.  Blood transfusion was again done on 19.12.2012, 20.12.2012 and 22.12.2012.  On 22.12.2012 also there was no complaint of bleeding.  In the sixth page of Ext. X1 “informed consent for emergency caesarean” is seen noted.  The consent has got two paragraphs.  The doctor had explained these aspects.  Normally when consent for caesarean is obtained, consent for removal of uterus is not warranted.  When bleeding continues and any complication would arise removal of uterus may be necessary and only in such a circumstance consent for removal of uterus could be obtained. Since the consent for removal of uterus may arise during the process of surgery the subsequent writing might be effected by a different person.  There is no case for the complainant that he did not grant consent for conducting caesarean and hysterectomy.  As per Ext. X1 it could be seen that by 12.30 pm on 23.12.2012 bleeding and abdomen pain occurred and the deceased was taken to the labour room.  As per Ext. X1 by 1.55 pm caesarean was done.  By 2.10 pm delivery of the first baby and by 2.11 pm delivery of the second baby was effected.  But bleeding continued.  Since the bleeding was uncontrollable removal of uterus was necessitated.  The medical record shows that by 6.45 pm bleeding was controlled and thereafter no severe complication was noticed.  But at 5.30 am on 24.12.2012 complication arose.  The blood pressure of the deceased came down as 80/60 and immediately she collapsed.  PW4 would depose that the sudden collapse occurred on account of pulmonary edema, pulmonary embolism, ARDS and haemorrhage.  Ext. P4 was shown to PW4.  She had also endorsed the cause of death noted in Ext. P4 that the deceased died due to the bleeding following gynaecological surgeries.  She added that the internal injuries might have caused bleeding.  Bowel injuries had also occurred which was repaired. 

11.  Basing upon the evidence let in by PWs 1 to 4 the complainant would submit that it is convincingly established that the death of the deceased was caused due to the negligence and carelessness on the part of the opposite parties in attending the deceased when she was admitted in the hospital for her delivery.  When medical negligence is attributed the primary burden is upon the complainant to convince the Commission that there was negligence on the part of the doctor who attended the patient.  No adverse inference could be drawn against the doctor merely because the life of the patient could not be saved.  The adverse result alone can never be a circumstance in reaching a conclusion that the doctor was negligent or careless in attending the patient.  In this connection the evidence let in by the expert as PW4 is significant.  She has given evidence that the patient had a complicated condition as she was having placenta previa which is a serious condition. On a perusal of Ext. X1, PW4 had given evidence in the cross examination that the condition of the deceased was bad when she got admitted in the hospital on 17.12.2012.  She was a diabetic patient which was also an adverse factor and that is why doctors had started blood transfusion.  The deceased Baby Silvester was at the age of 50 when she got admitted in the hospital.  When a lady aged 50 years become pregnant one would expect more complications compared to an ordinary delivery.  Placenta previa condition may result in frequent bleeding.  PW4 had given a positive answer to the question put to her that the hospital authorities had given all medically and humanly possible treatment to the patient.  She also gave positive answer to the suggestion that there was no negligence on the part of the hospital or the doctor in providing treatment to the deceased.  The evidence elicited through PW4 would reveal that the delivery of the deceased was a highly complicated one on account of placenta previa, caesarean and also hysterectomy.  The expert was definite on perusal of the medical records that no inference regarding negligence on the part of the doctor could be drawn.  PW4 had also given evidence that in certain cases placenta previa may cause death of the patient.  From the evidence let in by PWs 1 to 4 one cannot reach a conclusion that there was negligence or lack of care on the part of the opposite parties in conducting the caesarean and in providing further treatment to the deceased from the hospital.  The learned counsel for the complainant would submit that an injury was caused to the sigmoid colon of the deceased which according to the counsel for the complainant is a clear indication regarding the negligence on the part of the opposite parties.  The intra operative notes seen in Ext. X1 would show that “both tubes and ovaries could not be identified and later found to be adherent to the posterior surface of uterus.  There was severe atonic PPH not responding to medical management, so decided to do hysterectomy.  Uterus was highly vascular, sigmoid colon was densely adherent to posterior surface of uterus and pouch of doughlas was obliterated.  So uterus could not be delivered out.  So a specialist surgeon was called upon who proceeded with hysterectomy.  While releasing the intestinal adhesions from posterior surface of uterus, lower part of sigmoid colon near to rectum was injured and mucosa exposed (about 2.5cm).  Subtotal hysterectomy done by clamping, cutting and ligating the pedicles.  The sigmoid colon injury sutured in layers.  Hemostasis achieved”.  From the intra operative notes one can understand the complexity of the operation carried out.  A portion of the uterus was found adhered to the lower part of the sigmoid colon and in such situation when those areas were removed possibility of causing an injury may arise.  It can be seen that the injury caused to the sigmoid colon was properly sutured in layers.  So, one cannot infer any negligence on the part of the doctors in conducting the operation. 

12.  The facts elicited through the cross examination of PW1 would also work out against the case of medical negligence.  PW1, during the cross examination had given evidence that at the time of delivery blood transfusion and all possible treatment were given by the doctors.  The only reason for PW1 in filing the complaint is that his wife died at the hospital.  On a careful scrutiny of the entire evidence let in by PWs 1 to 4 one cannot reach a conclusion that the death of the deceased had occurred due to the negligence or carelessness on the part of the opposite parties.  When the initial burden is not discharged by the complainant, the failure on the part of the opposite parties to make themselves available for cross examination of the complainant alone will not help the complainant in proving his case.  An adverse inference can be drawn against the opposite parties if the primary burden is discharged by the complainant that there was negligence or carelessness on the part of the opposite parties.  Therefore, we have no hesitation to reach a conclusion that the complainant had failed to establish the case of medical negligence so as to entitle him to get compensation from the opposite parties.  Points (i) & (ii) are answered against the complainant. 

          In the result, the complaint is dismissed.  On a consideration of the peculiar nature of the dispute it is found that the parties shall bear their respective costs. 

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                  AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                                  RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

I         COMPLAINANT’S WITNESS :

 II      COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :

V       COURT EXHIBIT :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                               AJITH KUMAR  D. : JUDICIAL MEMBER

jb                                                                                        RADHAKRISHNAN K.R.  : MEMBER