PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 26th day of September 2012
Filed on : 16-04-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No.233/2010
Between
Sajeena Jaleel, : Complainant
W/o. P.P. Jaleel, (By Adv. Santhosh G. Prabhu,
Peraparambil house, Prasanth S, S. Kannan & Varsha
Vattakunnam, Bhaskar, Govt. Press road,
Edappally (N) P.O., Ernakulam, Cochin-11)
Kochi-682 024.
And
1. Co-operative Medical College : Opposite parties
Hospital rep. by its Director, (1st &4th O.P. by adv. Thomas
Kalamassery, Kochi-683 503. Abraham, SRA F1, Soumya
Nagar, Alinchuvadu,
Edapppally P.O., Kochi-24)
2. Dr. Ajithakumari,
Head of Deparment, (2nd O.P. by Adv. George Cherian
Obstetrics & Gyanaecology, Karippaparambil, HB48,
Co-operative Medical College Panampilly Nagar, Kochi-682 036)
Hospital, Kalamassery,
Kochi-683 503.
3. Dr. Mathangi, (3rdO.P.By Adv. George Thomas
Resident Doctor, Mevada,SR.M. Road,Cochin-18)
Co-operative Medical College
Hospital, Kalamasserry,
Kochi-683 503.
4. Chief Executive and the
principal of Co-operative
Medical College Hospital,
Kalamassery,
Kochi-683 503.
(O.P. 4 impleaded as per
order in I.A. 769/10
dt. 28/12/2010
O R D E R
Paul Gomez, Member.
This complaint stems out of the following facts:
The complainant is a young lady who had conceived a baby. While so, on 03-10-2009, the complainant noticed severe bleeding and she was rushed to the 1st opposite party hospital where she was examined by 3rd opposite party doctor who informed the patient and her husband that an abortion was inevitable to stop the phenomenon. Husband enquired whether there was any alternative procedure to avoid bleeding. The doctor informed that abortion was the only method to stop the profuse bleeding. The husband was compelled to give his consent to avert any complications. She was shifted to the labour room and abortion was conducted under the supervision of 3rd opposite party doctor. Husband was informed that abortion was carried out by D&C method. She stayed in the hospital till 05-10-2009 and got herself discharged on request. Later, at home, when symptoms of conception were again manifested she was examined by another local Gynaecologist, who with the support of scanning test, confirmed, that a healthy foetus was growing within her intra uterinely. Subsequent tests only corroborated the finding of the doctor. The complainant is very much worried about the health of her would be child. She alleges carelessness and negligence on the part of the opposite parties in conducting the so-called D&C procedure claimed to have been conducted by the 3rd opposite party, This is especially so because of skipping the pre and post stage examinations in relation to the procedure. Therefore this complaint is filed claiming Rs. 20,00,000/- as compensation for deficiency in service on the part of the opposite parties in providing medical treatment to her.
2. All the opposite parties filed separate version. The version of the 1st opposite party begins with the claim that the treatment given therein is of high standard. The 3rd opposite party who was on duty at that time examined diagnosed and found that it was a case of inevitable abortion. In order to arrest the profuse bleeding forthwith abortion was the only option open to the doctor for which consent was obtained from her husband. Evacuation of the uterus was conducted under sedation and at the end of the procedure the uterus was found empty. The procedure passed uneventfully and she was under close monitoring and shifted to the ward on 4:10.09 and was under medication till she left the hospital on her own. The contention that complainant was subjected to D & C and she was informed accordingly and foetus was removed etc. are not true. The averments made by 2nd opposite party regarding treatment are true and may be read as part of this version. The 2nd opposite party and 3rd opposite party are well experienced doctors and the conduct of the complainant in this case is one of indifference. The uterine evacuation was conducted to save the life of the complainant only and it was done with due care and caution. Hence it is prayed to dismiss the complaint with cost.
3. In the version filed by the 2nd opposite party, the head of the department of obstetrics and Gynecology, it is stated that on examination of the complainant, the inevitable/ incomplete abortion was diagnosed because product of conception was protruding through external OS and part of the product was found expelled. Evacuation under sedation was the standard procedure and it was followed to arrest the bleeding. All other averments have been substantially endorsed in this version also. The averment that the D & C was totally unnecessary as foetus was healthy as evident from scan reports is not correct and purely unscientific. It is a scientifically proved fact that in the case of twin pregnancy only one foetus dies and the other foetus develops into full grown baby in due course. In the instant case this is what has actually happened. The subsequent examination and detailed investigation were not done because the complainant left the hospital on her own volition. In this case no D&C was done, the procedure adopted was evacuation. The mental agony and anxiety about the child is unfounded. Each foetus remains in the amniotic fluid contained in the distinct amniotic sac. The techniques like ultrasound scan was not necessary in this case because inevitable abortion was clinically obvious. There is no foundation for claiming such a huge amount as compensation.
4. In the version filed by the 3rd opposite party the events are described in detail because she was the doctor who attended on the patient and carried out the procedure of evacuation. Here that procedure was the only remedy to relieve the patient of the bleeding. The consent for the procedure was obtained without any compulsion. 3rd opposite party is unaware of the subsequent consultations and procedures undergone by the complainant. The D&C procedure was done to arrest the profuse bleeding from which the patient was suffering. There was no need to conduct a sound scan because D&C procedure was successfully completed. There is no chance of the baby getting any infirmity or defect due to the D&C conducted to its mother.
5. Fourth additional opposite party filed petition, urging the Forum to adopt the version filed by 1st opposite party on his behalf also.
6. The complainant was examined as PW1. Exts. A1 to A16 were marked on her side. Case sheet was marked as Ext. B1. Opposite parties were examined as DW1 to DW3. The learned counsel appearing for parties were heard.
7. The following points deserve consideration
(i) How many foetus were involved in the impugned procedure
(ii) What was the procedure conducted? Whether pre stage and
post stage examinations and investigations were done in
this case
iii. Whether there was informal consent in this case?
iv. Whether there was deficiency on the part of the opposite
parties?
v. What are the reliefs, if any that can be granted?
8. Points Nos. i to iii. The points raised in this complaint evokes absorbing attention. The complaint is unique by dint of its peculiar facts. The main allegation against the opposite parties is that the obstetrical procedure performed on the complainant while pregnant was carried out in a negligent manner and hence it was proved to be a failure and the spouses were made to bear the brunt of such a surgical fiasco. According to them the agony, anxiety and mental pain they have undergone till delivery were beyond words and are enduring.
9. The whole chain of events commenced when complainant was rushed to the 1st opposite party hospital on 03-10-2009 at 8.36 pm since the pregnant lady was bleeding profusely. She was examined by 3rd opposite party, the doctor in charge at that time. The doctor has recorded at page 4 of Exbt. B1 case sheet as follows:
“ Products of conception protruding through exter. os to part of the products found expelled. “The final diagnosis is recorded on page 1 of Exbt. B1 as “inevitable abortion”. On the same page it is recorded that the operation procedure carried out was “Dilation & Evacuation”. Bleeding could be arrested by this method and she was shifted to the ward the next day. On 05-10-2009, the patient successfully sought discharge on her own and left the hospital. She did not return for check up, even though she was advised to do so. Here ends the first stage of the episode. It is pertinent to note that the consent for this procedure was obtained from the patient’s husband which is found recorded in Ext. B1. For the present discussion the recording found made by the surgeon (Dr. Mathangi) at page 10 of the same document is noticeable where it is stated “uterine cavity curetted and found empty”. In fact this medical finding is the turning point in this case.
10. At home, when the symptoms of conception persisted, she consulted another doctor, and the complainant was advised to undergo certain scanning tests. Exbt. A7 test result disclosed “Intra uterine pregnancy with a viable foetus, corresponding to 13 weeks 3 days of gestation.” The test report is dated 24-10-2009. This was followed by another scan report which is marked as Ext. A8 which states, “A single live foetus in the uterine cavity corresponding to gestational age of 18 to 19 weeks is cephalic presentation”. Yet another report is Ext. 10 which confirmed finally the presence of a single intra uterine foetus. All these results lead us to the inescapable conclusion that the recording made in Ext. B1 case sheet that after evacuation and curation of the uterine cavity, it was found empty cannot be taken in its face value.
11. It is in this context the allegation that evacuation was done either negligently or it has not at all been done has to be examined. The question that lingers in our mind begging an answer is how come the surgeon record the finding that uterus was empty and still a foetus evaded detection and later grown up to a deliverable baby? The only answer to this question given by the opposite parties hinges on the theory of “vanishing twins”. May be because they were not so confident of their own averment, they have not pursued it further by producing any authoritative literature or expert opinion. We are not inclined to accept this theory on the face of the Ext. A16 Sonography report dated 14-09-2009, taken much before impugned procedure, which disclosed the presence of “single live intra uterine gestating of 6 w 6 d”. In that view, “ theory of vanishing Twins” can not have a gestation and it dies before it is born. On an overall appreciation of the whole materials and averments presented before us, we are of the view that 3rd opposite party was negligent in carrying out the procedures of dilation evacuation and curation.
12. It has to be stated that 3rd opposite party ought to have ascertained the proper physical condition of the patient before venturing on such a procedure under sedation. After the procedure the patient stayed in the hospital for one day. Still the doctor did not care to carry out any scan test to ascertain whether the aforesaid procedure could achieve the desired result. 2nd opposite party, the head of the department, on her part could have advised her junior to carry out such a test at least at the post procedural stage so as to ascertain whether the uterine cavity is empty. In the box, 2nd opposite party has deposed that scanning is not a mandatory procedure. Even if it is admitted for argument sake that it is not mandatory, it could have been done at least as a measure of precaution. Instead of recording findings on the basis of bare physical examination, it would have been performed more accurately by scientific methods. Bye gone are the days when people used to approach the ‘country midwives’ for delivery even in remote villages Today, even the illiterate and poor rush to the hospitals on the expectation that more scientific means would be applied for the precise diagnosis of their ailments. In that background, 2nd opposite party should not have been over confident and taken refuge under the defence that scanning is not a mandatory procedure in such occasions. Physical examination of the inner parts of a delicate organ such as uterus would be as imprecise as the blind man touching the elephant. In this regard the answers by the additional 4th opposite party looks strange. To the pointed question whether scanning was omitted to be done because there was no technician in the hospital available, the answer was that he was not in a position to answer. It is quite unfortunate an answer, to say the least. An efficient administration would be expected by the people particularly in view of Ext. A1 and A2 advertisements making tall claims regarding the professional expertise and other scientific amenities available in the hospital. In the same way, 2nd opposite party has also deposed that technician would come on call. This shows that such technicians are not stationed in the hospital round the clock.
13. The principle regarding medical negligence has been famously formulated by the House of Lords in the celebrated case of Bolam V. Friern Hospital Management Committee (1957) 1 WLR 582. Their Lordship observed as follows:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a clapham omnibus, because he has not got this special skill . A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”.
The same principle has been reiterated in Halsbury’s’ Laws of England (Fourth Edn. Vol. 30, Para 35) as follows:
“The Practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case is what the law requires, and a person is not liable in negligence because some one else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical man skilled in that particular art, even though a body of adverse opinion also existed among medical men”.
14. The aforesaid principle of reasonable care and diligence by an ordinary competent medical Practitioner has been adopted as the law applicable in India by the its explicit endorsement by the Hon’ble Supreme Court in Jacob Mathew V. State of Punjab AIR 2005 (sc) 3180 when it stated,
“(A) The test for determining Medical negligence as laid down in Bolam’s case (1957) 1 WLR 582, 586 hold good in its applicability in India”. By applying the test of “reasonable care of an ordinary competent man”’ in the instant case, w e are of the considered view that opposite parties 2 and 3 have not manifested that standard in the treatment of the complainant.
15. In this context, we would make clear that the doctrine of “Res ipsa Loquitur” Squarely applies to the facts of this case. The delivery of a child on completion of the full term of conception its self speaks volumes to show that the conduct of procedure in this case fell short of the standard expected of a practitioner of 3rd opposite party’s experience and qualification. Even though Learned counsel for 3rd opposite party, Adv. George Cherian has sought refuge under the doctrine of ‘Vanishing twins’. It has to be stated that the force of his defence has diffused in the face of Exbt. A16 Sonography report dated 14-09-2009 taken some days before the impugned procedure.
16. On an overall assessment of the materials produced by the Parties and the law prevailing on the subject, we have no hesitation in finding that 2nd and 3rd opposite parties have committed deficiency in their service to the complainants.
17. Even though complainant has been lucky enough to witness a happy end to this episode, the opposite parties can not be absolved of their liability in making the complainant undergo the sorrow, agony, anxiety and physical pain apart from financial loss that could have been avoided had the opposite parties, especially 3rd opposite party were a little more careful. Hence opposite parties are liable to compensate the complainant adequately for the financial loss as well as mental agony. 1st and 4th opposite parties are vicariously liable for the acts of their servants. In addition they could not honour the promises made in their advertisements and provide the complainant with medical expertise that could be expected from a medical college. 3rd opposite party who attended the case has not disclosed her designation. She has not stated that she is a faculty in the department of Gynecology. She can not be part of the teaching department since she does not hold a post graduate degree. But Ext. A1 boasts of services of several post graduate doctors. Similarly 2nd opposite party has deposed that technician would reach the hospital to conduct scanning on call, revealing that technicians are not available in the hospital round the clock. It is desirable to have a technician stationed permanently for the purpose of scanning in the hospital. When glancing through Ext. A1 and A2, advertisements people would gather the impression that such facilities are available in the hospital through out. This is also another glaring example of deficiency in service and unfair trade practice on the part of opposite parties 1 & 4. Second opposite party has admitted that 3rd opposite party was working under her direction. But 2nd opposite party has not seen the patient even once during the course of this episode 3rd opposite party disclosed that she was communicating with the unit chief over telephone. It is inevitable at the time of emergency to seek the advice of the chief over telephone. But, it is incumbent upon the chief to visit the patient at least once. This visit and examination is found wanting in this case. All the opposite parties are also liable for the excruciating mental agony caused to the young pregnant woman apprehending the infirmities, that may at any time surface to her child due to the mishandling of the Surgical procedure of evacuation.
18. In a nut shell service provided in the 1st opposite party hospital fell short of the expected standard. Consequently 1st and 4th opposite parties are liable to make recompense for the short comings from them in this regard. Also 1st and 4th opposite parties are vicariously liable for the acts of 3rd opposite party. Moreover, 3rd opposite party has deposed that she had been conveying every development over telephone to 2nd opposite party. Thus 2nd opposite party cannot wash off her hands from the misdeeds of her subordinate. 3rd opposite party the medical officer on duty who is directly involved in the matter is undoubtedly answerable for her acts of commissions and omissions.
19. Point No. iv. The next point raised by the complainant is that there is no informed consent in this case. We are afraid that we cannot agree with this contention. A mere glance at page 7 will show that the husband of the complainant had given his consent in writing after being informed of the consequences even though these terms are not incorporated therein. The only lacunae is that it is not recorded at the appropriate space. We do not think, that would advance in any manner the case of the complainant. Moreover, the complainant has deposed as PW1 that 3rd opposite party has given them a description of the situation and they were told that D&C was imminent necessity. She also admitted that consent form was signed by her husband only after disclosing all these matters to them. At page 2 of the deposition of DW3, she has deposed that she had informed the complainant and her husband about the reasons and consequences of bleeding. We are of the view that there is no merit in the contention that there was want of informed consent in this case.
20. Point No. v. Lastly we have to quantify the relief that can be allowed in this case. The relief sought in this case is Rs. 20,00,000/-. This is unrealistically huge in the facts and circumstances of the case. The opposite parties have raised the contention that complainant is not entitled for any relief because there was no injury sustained by the complainant. Even though in the first blush, the contention looks deceptively attractive, on a second look it can be seen that it is not completely right. It is true that the birth of a child should bring happiness to the parents. A healthy baby was born in due course and that need not be a matter of worry to them. It is also true that they have not approached the hospital to conduct the evacuation procedure. As a matter of fact, they approached the hospital to get relief from bleeding which was achieved by them. But the fact remains that the complainant had undergone severe mental agony and suffering due to the failure in performing the impugned procedure. According to the deposition of PW1 3rd opposite party had assured them that every thing was removed from her uterus. When such a mother comes to know that a foctus was growing inside her womb in spite of such procedure, the tension, anxiety and agony developing in the mind of the woman is beyond perception. Such is the case of her husband. All kinds of apprehensions regarding the health of the baby would be haunting them day in and day out. It is true that Ext. A7 scan report has accorded the impression of a healthy foetus. Incidentally it is note worthy to keep in mind the recording made in Ext. A10 stating that there was mild pelviccalyceal system dilation in left fetal kidney’. This medical finding is enough for the parents to disturb their peace of mind. But it has to be stated at this juncture that complainant has failed to establish by medical evidence that the said condition of the kidney was contributed by the negligent procedure performed by the 3rd opposite party. The lingering anxiety regarding the health of the baby is obvious from the several scanning procedures undergone by the lady in quick succession. Anyhow, by the grace of God, complainant has delivered a healthy female baby weighing 2250 gms. on 30-03-2010 as borne out by Ext. A15 discharge summary. Presumably for the young lady, days of anxiety and agony has faded out.
21. The spouses have incurred large sums towards charges for the procedures in the 1s opposite party hospital and scanning centers as well as hospital where delivery has taken place. It is not easy to quantify the expenses precisely. We on a rough calculation quantify the amount to be Rs. 15,000/-. On the score of mental agony also, one can not translate pain in terms of money with precision but on a rough calculation we hold that Rs. 35,000/- would do justice in this regard. Apart from both these figures complainant is entitled to recover Rs. 5,000/- towards litigation cost from opposite parties.
22. There is nothing to be surprised when a hospital which is ailing in many respects has rendered medical service which fell short of the expected standard. This hospital has been at the centre stage of many a controversy quite for some time. No cosmetic measures will do, but a major surgery is required to salvage the situation.
23. To our mind, the heart of the problem is the isolated place where the medical college is situated. In fact this Medical College bears a deserted look, unlike any other medical college in the state. Even though it is within the precincts of Kalamassery Municipality, it is situated in the middle of a jungle like place. People shy away from this institution because it is a tedious business to reach there in time.
24. The problem is compounded by dearth of proper public transportation. If the authorities are pleased to provide easy access to the place by providing shuttle transport services connecting the adjacent places such as Alwaye, Kalamassery, Kakkanad, Pukkattupady and Perumbavoor, that would definitely go a long way in solving the problem to a large extent.
25. It is a paradox that the hospital is situated in an inhospitable place. Unless the authorities address this crucial issue with a sense of urgency, we think even the God Almighty cannot save from the abyss to which this great institution has befallen.
26. To sum up, we allow the complaint as follows:
i. Opposite parties shall jointly and severally pay Rs. 15,000/-
along with interest @ 9% p.a. from 16-04-2010 till realization.
ii. Opposite parties shall jointly and severally pay Rs.35,000/-
to the complainant to wards compensation for mental agony
and physical pain.
iii. Opposite parties shall jointly and severally pay Rs. 5,000/-
to the complainant as costs of litigation.
iv. Amounts specified under (ii) and (iii)limbs of the order will carry interest @ 9% p.a from the date of receipt of copy of this order till realization in case opposite parties fail to carry out the order within the date specified for compliance
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 26th day of September 2012.
Sd/-
Paul Gomez, Member.
Sd/-
A. Rajesh, President.
Sd/-
C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Paper cutting
A2 : Copy of brochure
A3 : Discharge/Reference card
A4 : Copy of brief history and
provisional diagnosis
A5 : Copy of cash bill dt. 04-10-2009
A6 : Copy of discharge/reference card
A7 : Copy of obstetric Ultra sound
scanning report
A8 : Exam report dt. 25-11-2009
A9 : Receipt dt. 25/11/2009
A10 : Antenatal Ultrasound scan
A11 : Copy of bill dt. 03/03/2010
A12 : Copy of lawyer notice
dt. 18-02-2010
A13 : Copy of reply notice
dt. 18-03-2010
A14 : Lawyer notice dt. 05-03-2010
A15 : Lawyer notice dt. 30/03/2010
A16 : Obstetric Sonography Report
Opposite party’s Exhibits :
Ext. B1 : Case record of Co-operative
Medical College Hospital, Kochi.
Depositions:
PW1 : Sajeena Jaleel
DW1 : R. Gireesan
DW2 : Dr. S. Ajith Kumar
DW3 : DR. Mathangi Anand
