By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows:-
1. The complainant and husband are living together and they have got 3 children. All the three delivery was through caesarean. The complainant was carrying 4th child during the year 2016. Then prenatal checkup started at Almas Hospital Kottakkal. The early five months treatment continued at Almas Hospital Kottakkal. The complainant was in search of best treatment center for delivery since her first three delivery was being through caesarean. The complainant came to know about the treatment center of opposite party called Sprouts International Naturopathic Maternity Studio, and she approached the opposite party. The husband of the complainant was working abroad during that period and so the complainant informed him about the treatment center and he also agreed for the treatment from the opposite party treatment center. The opposite party said to the complainant that he had attended number of delivery cases and convinced the complainant that he is legally competent to attend delivery cases also. The opposite party examined the complainant and assured normal delivery and also assured that there is nothing abnormal to fear. The opposite party said to the complainant that the fat content in the body is on higher side and to reduce the same diet control is necessary and for that the opposite party provided a prescription. As per his finding, percentage of fat was 70 and advice was to reduce the same to 20%. The complainant strictly followed the instructions and within 22 days she became too tired. Then as per instruction of family members, the complainant approached the opposite party and, on his examination, it was found that, fat content reduced up to 30% and advised her to take some food and provided fresh prescription accordingly. The complainant and her family were in anxious with the health condition of the complainant and also child in womb. The complainant again approached opposite party and the opposite party further assured that there is nothing to fear and no chance to break the stitches, and if at all, can be realized on examining the complainant, and what is required is enough courage to complainant. At that time also the opposite party said about his experience in practice. As assured by opposite party, complainant followed his instructions and he further advised certain exercise also to the complainant. The opposite party had advised to climb up to 1500 steps and also skipping exercise. She was advised to have Matta rice once a day, fruits alone in the night. She was also advised to drink herbal juice thrice a day and also 10 tender coconut juice. It was also advised to have 250 grams dates per day in addition to certain exercise. The complainant strictly followed instructions of the opposite party and had paid required fee to the opposite party.
2. On 17/10/2016 the complainant had symptom of labor pain and so contacted opposite party and as per his instruction complainant along with husband reached before the opposite party. The opposite party examined the complainant and said that the pain not related to delivery and so they sent back. But on the next day early morning itself she felt pain again and complainant along with husband went to the opposite party. The opposite party examined complainant and said that the uterus has to dilate up to 10% and presently it is dilated only 5%. So, he advised her to walk and climb steps. She was also asked to do sit on ball exercise. He assured that the delivery will be occurred at about 9 ‘o’ clock. Then at about ‘9’ o clock she was asked to sit in birth pool arranged by the opposite party therein. The complainant spent more than 45 minutes in the pool as suggested by the opposite party. Then the opposite party said that she is not properly sitting and that is the reason for delay in delivery. The complainant said that she cannot afford further sitting in the pool, then the opposite party made telephonic call to somebody and immediately lifted the complainant from the pool with the help of husband and the complainant was taken to the car of the opposite party and the opposite party drove the car along with husband, father and mother of the complainant. The opposite party said that she is required caesarean and so taking to the MIMS Hospital Kottakal. But when they reached at MIMS hospital it was found the child as expired. The delivery process was from causality itself. Complainant submit that the life of complainant was actually in threat. The complainant and husband spend days in the hospital since the uterus as well as urine bladder of complainant had ruptured.
3. The complainant submits that after the incident the opposite party absconded. The opposite party, his wife and father conducting together the treatment center. The contention of the complainant is that the opposite party along with others were conducting treatment center without proper documents, experience and qualification. The Kottakkal Police registered a crime 472/2016 under section 336,337,338 r/w 34 IPC. Since death of child happened in the womb, the dead body of the child was taken out from buried ground for postmortem.
4. The complainant alleges all the bitter experience suffered and loss caused due to deficiency in treatment and in experience of the opposite party. The complainant is totally weakened after the incident. She is suffering there onwards mentally as well physically. The complainant is not able to take care of her husband and children. The opposite party treated the complainant misleading that he has got sufficient qualification, experience, knowledge, ability and facility to attend delivery cases. The act of the opposite party led to the death of child and the remaining life of the complainant in misery. The complainant spent a lot of money for the treatment at the treatment center of opposite party and also at MIMS Hospital Kotttakal. The complainant alleges the incident resulted in insult to her before the society also. The complainant so far not recovered from miserable experience from the opposite party. The act of the opposite party cannot be justified and amounts defective service and practice. The act of the opposite party is also can be considered as cheating. Hence the prayer of the complainant is for sufficient amount as compensation and treatment expenses. The complaint spent Rs.1,00,000/- at the treatment center of the opposite party and she incurred more than 3,75,800/-rupees for the treatment at MIMS hospital. The complainant also claims 12,00,000/- on account of death of the child, mental agony, defamation and financial loss.
5. On admission of the complaint the notice was issued to the opposite party and the opposite party entered appearance and filed detailed version.
6. The opposite party denied the entire averments and allegations contained in the complaint.
7. The opposite party denied the allegation that he is not having required qualification or knowledge to treat the complainant. Opposite party submitted that he has got qualification of bachelor of naturopathy and yogic sciences, (BNYS), which is obtained from Rajiv Gandhi University of Health science from Karnataka State. He has got registration from the Travancore Cochin Medical council for Indian systems of Medicine with registration No. 106 which provides permission to the opposite party to conduct treatment as per naturopathy and yoga systems and he is treating as per his qualification.
8. The opposite party submit that the opposite party has got experience by attending several cases of delivery and he is legally empowered to attend delivery cases. The opposite party denied the allegation of the complainant that he made believe the complainant as afore stated. The opposite party submit that there is no reason to make believe the complainant as stated. The statement of the complainant that she enquired about the best treatment center for delivery and she came to know about the treatment center of opposite party and the complainant contacted the husband who was in abroad shows that the complainant enquired about the treatment center of the opposite party and convincing the same opted to approach the opposite party .
9. The submission of the opposite party is that he had said to the complainant and her family about the risk that her previous three deliveries were being through caesarean. Her earlier treatment for 5 months were at Kottakl Almas Hospital under the supervision of a gynecologist and the remaining 5 months is a short period and so the 4th delivery i.e., vaginal birth after caesarean depends upon the approach of the complainant and her family. everything was said to the complainant and her relatives in detail and thoroughly that he will be only providing consultation to the complainant. After duly informing and thoroughly understating the same by the complainant, approached the opposite party on 12/05/2016. At any point of time there was no occasion to make the complainant convincing about the treatment of the opposite party. The averments of the complainant in respect of the same is entirely false hood. The opposite party submit that the complainant was undergoing treatment for 5 months at Al mas Hospitals Kotakkal prior to the treatment from the opposite party. More over the complainant was continuing simultaneous consulting at Al mas’ hospital during this treatment period. The submission of the opposite party is that the opposite party had informed and made understand the complainant and family that being earlier three deliveries were through caesarean, the delivery through naturopathy is high risk. The complainant had advised by the opposite party to continue treatment at Almas hospital and that it will be safer than that of naturopathy which involves high risk. But the complainant said to the opposite party that she is believing the naturopathic treatment and she had heard about high-risk delivery through naturopathy by the opposite party without any complication to the mother and child. Convinced by the information, she came to the opposite party and she was ready to continue the treatment at Almas hospital and in case even the delivery can also be taken from the almas hospital.
10. The complainant and family insisted the opposite party for providing naturopathic treatment and accordingly the opposite party explained the treatment methods under naturopathy to the complainant and family. The submission of the opposite party is that a doctor is bound to provide treatment who approach for the same in accordance with medical ethics. The complainant was having weight more than required and for the normal delivery after three caesareans, reducing the weight was required. The opposite party prescribed certain diet and exercise which was agreed to obey by the complainant and family. The opposite party never advised any sort of exercise affecting the health of the complainant. But it was prescribed as per scientific method some suitable exercise. The treatment provided by the opposite party never caused any health issue and she has not become tired also. The complainant and family never expressed their concern over the treatment for the last five months.
11. The opposite party denied the averment in the complaint that she was taken from the birth pool with the assistance of her husband, she was taken to the car of the opposite party, she along with opposite party, father of the complainant, wife of the opposite party, the husband of the complainant, driven by the opposite party, asked the complainant and husband that where to moving, that the opposite party said that she is required caesarean and moving to MIMS hospital Kotttakkal etc. The opposite party submitted that the complainant approached the opposite party on 17/10/2016 and prior to that the complainant had visited the opposite party on 06/10/2016, 11/10/2016, 15/10/2016 and on some other days also. All the occasions the complainant and her family were happy about the treatment provided by the opposite party. On 17/10/2016 also the complainant visited the opposite party and turned back without any complaint. On 18/10/2016 early morning the complainant had come to the opposite party treatment center. On examination he could find that the time has ripe for delivery and accordingly the opposite party initiated the usual proceedings. But later the complainant and her husband along with others insisted to take the complainant to Kottakkal mims hospital. Actually, it was the moment for delivery, the opposite party had informed the complainant that a travelling at that time is not advisable and it will cause harm to the child in the womb and the mother and also said that there is no harm to the complainant at that moment and delivery may occur at any time. But the complainant ignored all the precautions and accordingly to their pressure agreed for the suggestion of the complainant. The husband of the complainant said that he has to take care of the complainant and requested the opposite party to corporate with the complainant to take the vehicle of the opposite party for conveying to the MIMS hospital. All these occasions there was no any sort of complaint from the side of the complainant. The opposite party also mentioned that there was a talk between the husband of the complainant and his mother that “ഇതൊന്നും വേÙ¡യിരുന്നു അവിടെതന്നെ പ്രസവിച്ചാv മതിയായിരുന്നുവെന്നും ഇതൊക്കെ അവന്റെ പണിയാണ്”. During the time the father of the opposite party was not there but the wife of the opposite party and two months old child was along with them. More over mother of the husband also was with them.
12. The opposite party denied that while at MIMS hospital, the complainant was examined, the child in womb was no more and the urine bladder as well as uterus was raptured. The opposite party submitted that there is nothing happened due to the negligence on the side of opposite party to the complainant. The opposite party at the instance of complainant and her husband assisted to take complainant to MIMS hospital and on reaching MIMS hospital the opposite party turned back. The opposite party also denied that the allegation the opposite party absconded after the incidents. The opposite party never absconded but the Kottakkal police had registered a crime 472/2016 and afraid of arrest the opposite party along with wife and father moved to Ernakulam to approach the court. The complainant twisting the incidence at their pleasure. The opposite party submitted that the opposite party along with his wife and his father is not providing treatment as alleged but the opposite party alone running the treatment center. The incident resulted in false propaganda over the locality and thus resulted news value. The incident was narrated by medias in a twisted way and thereby caused defamation and mental stress to the opposite party. The opposite party was threatening by the husband of complainant and family. One of the relative of complainant called Mr. Abdul Salam manhandled the opposite party and insulted to maximum extent as a result the treatment center was closed down.
13. The opposite party denied the statement due to defective treatment the child died in womb and due to suspicion of the death, the body of the child was taken out from the buried ground and postmortem was done. The opposite party submitted that there is no defective treatment from the side of opposite party. It is submitted that while the complainant was taken to the hospital at the instance of complainant and her husband the complainant and her child were healthy and she was prepared for natural delivery. Actually, the husband of the complainant and relatives took the complainant to the hospital against advice of opposite party while the complainant was up to delivery. The opposite party is not aware of incomprehensible death of child, burial and postmortem. If at all anything happened as stated, the complainant, her husband and others who were parties to the incident alone are responsible. The Opposite party submit that there is nothing happened to the complainant due the act of the opposite party. The complainant was to deliver but the husband along with relatives ignoring the advice of the opposite party, got discharged from the opposite party treatment center. The opposite party also denied the complainant sustained defamation in the society but the opposite party sustained defamation due to the false allegation and propaganda from the part of complainant which led to the close down of the treatment center of the opposite party.
14. The opposite party also submitted that he collected only 1,500/- from the complainant and all other averment regarding the payment to the opposite party is false. The opposite party submit that he is not aware of the treatment expenses of rupees 3,75,800/- at MIMS hospital and if at all the opposite party is not responsible for the same. The opposite party also submitted that he is not liable to pay the claim of the complainant that one lakh rupees as consultation fee, 12,00,000/ rupees as compensation. Considering the entire aspect, the prayer of the opposite party is to dismiss this complaint.
15. The complainant and opposite parties filed affidavit and documents. The documents marked on the side of complainant as Ext. A1 to A10. Ext. A1is treatment report of Haseena issued by the opposite party to the complainant dated 19/10/2016. Ext. A2 is discharge bill dated 01/11/2016. Ext. A3 is discharge bill 01/11/2016 bill payment summary. Ext. A4 is medical certificate issued by the Dr. Jalaja Radhakrishnan. Gynecologist and infertilities specialist dated 27/04/2017. Ext. A5 is photo copy of FIR 472/2016 IPC u/s 336,337,338,34 Kottakkal Police station, Ext. A6 is certified copy of statement given by Dr. Krishna Kumar Assistant police surgeon, Medial college hospital Calicut, scene Mahasar in Kottakkal police station crime 472/2016. Ext. A7 is certified copy of scene Mahasar in Kottakkal police station crime 472/2016. Ext. A8 is copy of Mahasar. Ext. A9 is certified copy of postmortem report. Ext. A10 is copy of FIR in crime No.41/2018 Manjeri Police station IPC u/s 304 A, 34. The documents on the side of opposite party marked as Ext. B1 to B6. Ext B1 is BNYS certificate issued by Rajiv Gandhi University of health sciences dated 25/03/2013. Ext. B2 is registration certificate No.106, the Travancore – Cochin medical council for Indian systems of medicine dated 10/05/2013. Ext. B3 (series) is statement of mark 1st, 2nd ,3rd and 4th BNYS examinations. Ext. B4 certificate issued from Thennala Grama panchyath dated 22/01/2016. Ext. B5 (series) is copy of statement of complainant, DR. Krishnakumar, Mr. Hamza, Mr. Mohammed, Mr. Rasheed, Dr. Yaseen Chomayil to the Kotaaakal police in CC No.125/2018 JFCM Court, Malappuram Ext. B6 is copy of CD. The complainant side examined witness as PW1 & PW2. PW1 is Haseena, the complainant and PW2 is Dr. Jalaja Radhakrishnan. Defense witness examined the opposite party Mr. Aabir Hyder Arimbra as DW1.
16. Heard Complainant and opposite parties, perused affidavit and documents. The opposite parties filed argument notes also. The following points arise for consideration
1) Whether the complaint is maintainable
2) Whether the opposite party was negligent and deficient in
service.
3) Relief and cost
17. Point No.1
The opposite party filed IA 196/2018 and also IA 3/21. Thereafter IA 31/21 and 32/2021 also filed challenging the maintainability of the complaint. The contentions is that the complaint is not maintainable and the Consumer Disputes Redressal Forum have no jurisdiction to entertain the complaint. One of the contentions is that the Kottakkal police has registered a complaint as crime No. 472/2016u/s336,337,338 r/w 34 IPC against the opposite party and the same has not yet disposed by the Judicial First-class magistrate court, which is pending as 125/2018. The allegation is against opposite party is fraud, which is a criminal offence and a matter involved a criminal offence is not triable under Consumer Protection Act. Hence the complaint is not maintainable.
18. Another contention is that the infant child died from the MIMS hospital Kottakkal and not from the maternity studio of the opposite party and so the MIMS hospital has to be a party in the proceedings and on that ground of non-jointer of necessary party, the complaint is to be dismissed.
19 The commission considered both the contention of the opposite party that due to non-joinder of necessary party and also being a criminal trial is pending against opposite party the complaint is not maintainable. The criminal procedure initiated against the opposite party is to fix criminal liability of the opposite party. Any criminal prosecution pending against the party will not oust the power of Consumer Disputes Redressal Commission in fixing civil liability and the compensation as per the law. So, there is no merit in the contention of the opposite party. The complainant has got a specific case of medical negligence and deficiency in service against the opposite party and he has filed counter statement in maintainability petition that they are not seeking any remedy against the MIMS hospital Kottakkal. It is also submitted by the complainant that they are citing the treated doctor from the MIMS hospital as witness in the complaint and if the opposite party has got any contention against the so called non joinder hospital and the treated doctor, the opposite party will get opportunity to establish the same. The complainant stoutly opposed the contention of non-joinder of necessary party and we find there is merit in the contention of complainant and so we hold the contention of the opposite party regarding non joinder is without any merit and we find the first point accordingly.
20. Point No.2
The Complainant approached opposite party with the object of natural delivery which was her 4th delivery. Earlier 3 deliveries were through caesarean and so she desired of natural delivery. She approached opposite party, who is conducting an institution offering natural delivery in the name and style “sprouts international naturopathic maternity studio”. The opposite party assured to the complainant a natural delivery without any complication. The opposite party after examining the complainant said to her there is no any issue for natural delivery but required to follow certain diet and also directed have herbal juice daily to reduce fat in the body. The complainant strictly followed the suggestions of the opposite party and met the opposite party frequently, at last on 17/10/2016 due to labor pain. The finding of the opposite party was the pain not related to delivery and so she was sent back. But on the next day early morning itself there was pain to her and so complainant along with her husband went to the opposite party. The opposite party examined the complainant and said that the uterus has to dilate 10% and at that time it was only 5% and so he instructed to do certain exercise like sit on ball and walking. She was assured that there will be natural delivery before 9 “o” clock. But at the time of 9 “o” clock she was led to birth pool and to sit there. She spends more than 45 minutes therein. At that time the opposite party said that the complainant is not sitting properly and that is the cause for delay of delivery. The complainant said to the opposite party that she is not able to sit further in birth pool. Then the opposite party made telephonic call and he took the complainant from the birth pool with the assistance of husband. The complainant taken to the car of the opposite party and began to drive with husband and while asked about the purpose of journey it was told by the opposite party that she is taking to MIMS hospital Kottakkal. When they reached at MIMS hospital it was found that the child in womb already died and from the casualty itself the child was taken out. The allegation of the complainant is that the opposite party is not qualified, in experienced and there was deficiency in service and that resulted the death of the child as well as the complications in the delivery.
21. The contention of the opposite party is that he is a naturopathic practitioner and doing practice as per naturopathic system. He submitted that he is well qualified and competent to attend delivery cases and in the present case he undertook to treat the complainant due to compulsion of the complaint as per Hippocratic oath. The opposite party contended that he had properly advised the complainant and relatives about the complications of natural delivery after three caesarian procedures. But the complainant compelled the opposite party expressing strong belief in naturopathic treatment. The specific contention of the opposite party is that he had explained all the pros and cons of the attempt for natural delivery after three caesarean sections. The submission of the opposite party is that no complication was taken place from his maternity studio but she was all right and even then, the husband of the complainant insisted for taking the complainant to MIMS hospital and from the MIMS hospital the delivery was taken place and the child died from the MIMS hospital. Hence the contention is, there is conspiracy between the MIMS hospital authorities and the complainant against the opposite party.
22. In this complaint, three witnesses were examined before the Commission. The complainant was examined as PW1. Complainant deposed that “സിസേറിയu കൂടാതെ ഒരു സുഖ പ്രസവത്തിനുവേÙ¢യാണ് എതിര്കക്ഷികളുടെ അടുത്തേക്ക് പോയത്. She has stated that അvമാസ് hptl – v നിന്ന് പറഞ്ഞത് പ്രസവം Risk ആയിരിക്കും എന്നാണ്. എത്ര സിസേറിയu കഴിഞ്ഞവര്ക്കും എതിര്കക്ഷി ആശുപത്രിയിv നിന്ന് സുഖ പ്രസവം സാധ്യമാണെന്നാണ് പറഞ്ഞത്. ഡോക്ടറുടെ സംസാരം ബോധ്യപ്പെട്ടതു കൊÙ¡ണ് അവിടെ admit ആയത്. She has stated that ഞാനോ എന്റെ ബന്ധുക്കളോ പ്രസവിക്കാതായപ്പോw വേറെ hptl v പോകണം എന്ന് പറഞ്ഞിട്ടില്ല. ………. പ്രസവം നടന്ന ഹോസ്പിറ്റലിലേക്ക് സുമാര് 10KM ഉÙവും. Main Road – ലൂടെ അല്ല കൊÙ¤
പോയത്. Dr. ജലജയുടെ നേതൃത്വത്തിലാണ് പ്രസവം നടന്നത്. ഭര്ത്താവും ഉമ്മയും, എതിര്കക്ഷി ഡോക്ടറും ഭാര്യയും എന്നോടൊപ്പം MIMS ആശുപത്രിയിലേക്ക് പോന്നിരുന്നു. Causality യിv വച്ചാണ് പ്രസവിച്ചത്. ജലജ ഡോക്ടറുടെ കൂടെയുÙ¡യിരു
ന്നവരെ എനിക്കറിയില്ല. . പ്രസവ സമയം ഞാu unconscious ആയിരുന്നു. 2 ദിവസം കഴിഞ്ഞ് ICU - വിv വച്ചാണ് ഓര്മ്മ വന്നത്. ജീവനില്ലാത്ത കുട്ടിയെ ആണ് പ്രസവിച്ചതെന്ന് ബോധം വന്നതിനുശേഷമാണ് അറിഞ്ഞത്. ഈ സംഭവുമായി ബന്ധപ്പെട്ട് മലപ്പുറം JFCM കോടതിയിv കേസ് നിലനില്ക്കുന്നുÙ®
.
23. It is very important to note that PW2 Dr. Jalaja Radhakrishnan, is none other than the gynecologist, attend the delivery of the complainant at MIMS hospital Kottakkal on the crucial day. Her deposition is as follows:
“ .... She was admitted in the hospital for uterus rupture. Her previous history was three caesarian sections. At the time of admission, she was in a morbid situation. Morbid situation is situation a patient approaching death without pulse and BP (മരണാസന്നമായ അവസ്ഥ) she was Hemodynamically unstable. Hemodynamically mean patient with low BP and pulse less. Hence Hemodynamically unstable stage may cause to heart failure and stroke. It means brain death. Uterine rapture ഉÙ¡
യാv അതിന്റെ കാരണം മുന്പ് ഉÙ¡യ 3 സിസേറിയu ആണ്. 3 സിസേറിയu കഴിഞ്ഞ patient ന് Vaginal delivery ക്ക് ശ്രമിച്ചാv uterine rupture ഉÙ¡കാം. uterine rupture may cause suffocation to the baby died. In this case, particular baby. The remedy for uterine rupture is rapid surgery. Uterine rupture may cause Internal bleeding.- മൂന്ന് സിസേറിയനുശേഷം നാച്ചുറv delivery ക്ക് ശ്രമിക്കരുത് എന്നാണ് പഠിച്ചിരിക്കുന്നത്.”
24. It is also stated that in cross examination by the counsel of opposite party “ഹസീന എത്തിയപ്പോw തന്നെ baby മരിച്ച നിലയിലാണ് വന്നത്”. On re-examination it was clarified that “vacuum cup use ചെയ്തത് കുട്ടി നേരത്തെ മരിച്ചതുകൊÙ¡ണ്.
25. The opposite party was examined as Dw1 and he admitted that there is a crime registered by the Kottakkal police against him as 472/2016 and another case registered by Manjeri police as crime No.41/2018 u/s 304(A) IPC. He also admitted that there is a complaint as C.C.77/2018 before the Consumer Disputes Redressal Forum itself. The opposite party deposed that പ്രസവ ചികിത്സ ചില സന്ദര്ഭങ്ങളിv Complication ആകാറുÙ®. Emergency situation നേരിടേÙ¢വരും. Emergency situation നേരിടാനുള്ള സൗകര്യങ്ങw എന്റെ maternity hospital ഉÙ¡യിരുന്നു. Ambu bag for air delivery, succession apparatus, BP apparatus, Thermo meter, Doppler ഇവ എന്റെ Clinic – v ഉÙ®. Birth Pool ഉം ഉÙ®. ഈ ഉപകര്ണങ്ങല്ല്ലാതെ emergency situation നേരിടാനുള്ള മറ്റ് ഉപകരണങ്ങw ഇല്ല He also deposes that obstructed delivery നടന്നാv സ്ത്രീക്ക് ജീവഹാനിവരെ സംഭവിക്കാu സാധ്യതയുÙ® Uterine rupture നടന്നാലും ജീവഹാനി സംഭവിക്കാu സാധ്യതയുÙ® . പരാതിക്കാരിയുടെ കുട്ടി മരിക്കാനിടയായ സംഭവത്തിന്റെ കാരണം എനിക്കറിയില്ല.The opposite party deposed that എന്റെ clinic – v നിന്നാv സുഖപ്രസവം ഉÙ¡കും എന്ന് ഞാu പറഞ്ഞിരുന്നു. അത് കേള്ക്കാതെ അവര് കൊÙ® പോയി.ആ സമയത്ത് യാതൊരു abnormality യും ഇല്ലായിരുന്നു...........ഹരജിക്കാരിയെ ഞാu ചികിത്സിച്ച രേഖകളെല്ലാം എന്റെ കയ്യിലുÙ® ........... രോഗിയുടെ ആവശ്യപ്രകാരം discharge ചെയ്യുമ്പോw രോഗിയുടെ അടുത്തുനിന്നു request എഴുതി വാങ്ങാറു©Ù¡ ? വാങ്ങാറുÙ® . പക്ഷെ അന്ന് സമയം കിട്ടിയില്ല. അതിലും പ്രാധാന്യമുള്ള കാര്യമായിരുന്നു ആ സന്ദര്ഭം. The witness was asked whether the heart beat rate of the complainant was recorded or not, but the answer was that to be verified by record. The question regarding blood pressure also answered to verify the record. The opposite party was put a specific question that caesarean delivery യുടെ history യുള്ള patient ന് തുടര്ന്നുള്ള delivery ക്ക് complication വരാu സാധ്യതയു©Ù¡? നാച്ചുറോപതി രീതിയിv അത്തരത്തിലുള്ള complication വരാറില്ല. He also admitted that there was no facility to identify whether there is uterine rapture or not. He was asked that “MIMIS- ലേക്ക് shift ചെയ്യുമ്പോw കാറിv സഞ്ചരിച്ചാv complication ഉÙ¡വും എന്നറിയാമായിരുന്നു. അതിലും complication ആയിരുന്നു ആ സമയത്ത്. .
26. The complainant here in had undergone 3 caesarians sections already. While she became pregnant again, started to consult at Al mas’ hospital Kottakkal for the first five months. The advice from the hospital was not to go for a vaginal delivery, since it is involved high risk factors. But the complainant desired to have a vaginal birth and approached the opposite party. The opposite party submit that he had instructed the complainant as well as relatives, not to proceed for natural delivery since she had undergone caesarian sections. But the complainant insisted to treat by opposite party and on compulsion he prescribed certain exercises and diet including herbal juice. The submission of the opposite party is that the treatment undertaken by him was as per medical ethics. His contention is that a doctor cannot discard a patient when approaches for the treatment. But in this case, there is no evidence to show that the doctor had properly instructed about the risk factor in vaginal delivery after caesarian sections. The opposite party is very well aware the complications involved in a vaginal delivery after caesarian sections as per deposition. He has admitted there are complicated situations arising in delivery occasion and even emergency situation will arise also. He claims that his institute called Sprouts international maternity studio was equipped to challenge the situation. He says that he has got ambo bag for air delivery, succession apparatus, BP apparatus, Thermometer, Doppler as well birth pool. We do not find these instruments are sufficient to meet emergency situation in delivery cases considering the chance of complications in delivery cases. The opposite party do not claim he is a Gynecologist. He does not have a case that there is available service of gynecologist. The opposite party has admitted if there is obstructed delivery there is chance for loss of life itself. In case uterine rapture, the same causality arises. The opposite party has stated that he had assured there will be natural delivery but the complainant pressurized the opposite party to take her to the hospital. But no documents shows that the complainant was taken to the hospital against the advice of the opposite party. The opposite party claims that he has kept all the treatment records of the complainant at his institution. But it can be seen that the opposite party has not produced any piece of document for the treatment of the complainant at his studio. The opposite party submit that the complainant had taken to the opposite party maternity studio on various occasions and there was no complaint against opposite party during the visits. The counsel for the complainant asked during cross examination about the pressure condition, heart beat rate etc. at the time of delivery. But the opposite party stated that, it is to be verified from the records. The question put to the opposite party was whether chance for complication to a patient in her future life who had undergone caesarian. The answer of the opposite party was there is no chance for complications as such in naturopathy. He deposed that in case of obstructed labor due to previous caesarian, there is chance for uterine rapture. He admitted that there was no facility to detect uterine rapture in his studio. He also stated that there was chance for complication during shifting the complainant to the MIMS hospital, but the situation was more complicated at that time. The complainant produced Ext. A1, the sole certificate issued by the opposite party to the complainant revealing the history of treatment held at opposite party. The content of the treatment report of Haseena is as follows:
“Haseesna w/o Muhmed kutty, aged 34, started their consultation at sprouts international from 12/05/2016 with gestational age of 18.3 wks. for her 4th pregnancy. She was advised to follow naturopathic diet, yoga exercise.
On 18/10/2016 at 3.50 am she presented at the center with labor pain and on examination cervical dilation was 5 cm, BP -110/70, FHR 137/. Her gestational Age was 41.1 days.
At 10.50 am the cite of pain changed to the level of xiphisternum and the Fhr dropped to 100. From this I suspected # uterine rapture and immediately shifted the patient to MIMS hospital Kottakkal 10.53 am”.
29. The expert witness examined in this complaint is none other than who attended the delivery of the complainant, doctor Jalaja Radhakrishnan. She has categorically explained the condition of the complainant at the time of admission at the MIMS hospital for delivery. She has deposed that the complainant was in a morbid situation and in morbid situation a patient approaching death without pulse and BP. She also deposed that the complainant was Hemodynamically unstable which means patient with low blood pressure and pulse less. She further explains that the unstable condition of the patient may cause to heart failure and stroke, in effect it is bran death. In this complaint uterine rapture occurred since there were three caesarian sections and attempt for vaginal delivery after 3 caesarian sections uterine rapture is possible. The uterine rapture may cause suffocation to the baby and in this case the baby died. In such situation the remedy for uterine rapture is rapid surgery. It can be seen that there was uterine rapture and there was no facility for the surgery at the studio of the opposite party. The obstructed delivery and as result uterine rapture are all expected complications in delivery process. Hence any attempt to attend natural delivery in case after caesarian sections that too after three sections, apparently involves high risk factors and which require extreme care and facility. The attempt of the opposite party to attend the delivery of the complainant without due care and facility, no doubt amounts gross negligence. The opposite party has not produced any authority or any expert evidence to substantiate the averments of the opposite party as well as the procedures adopted by him.
30. It can be seen that this is not the first incident of similar nature from the opposite party as per evidence. From the deposition of opposite party itself it can be seen that two criminal cases are pending and one Consumer complaint had filed against the opposite party. The documents produced by the complainant reveals the criminal case filed under section 304(A) against the opposite party is on the basis of a complaint filed by District Medical Officer itself. But no documents are produced before the Commission to peruse the present stage of the cases.
31. The complainant contended that the opposite party have no required qualification to treat a pregnant woman and thereby cheated the complainant. But the opposite party contended that he is qualified to treat as per naturopathic and yoga science including pregnant women. Opposite party produced documents to prove his academic qualifications which shows that he successfully completed Bachelor of Naturopathy and Yogic Sciences from Rajiv University of Health sciences Karnataka. On examination of his statement of marks and the papers there in, it can be seen that one paper known as obstetrics and gynecology with total mark of 140, out of which he scored 79 marks. Except the said paper nothing is there in to show he has undergone additional course qualifying to attend maternity cases. He also obtained registration certificate from the Travancore Cochin Medical council for Indian systems of medicine. He produced B4 document to show that he has got permission from the Thennala grama panchayath for running the sprout international Prakrithi chikilsha prasava kendram. So, it can be inferred that he is conferred with BNYS qualification and obtained registration from the Cochin Travancore medical council for Indian systems of medicine. Hence the contention of the complainant to the extent of academic qualification is not exactly correct. But the question again arises whether the person qualified with BNYS and certificate obtained from the concerned authority has given power to practice against the medical ethics like in this case and the answer of this commission is negative.
32. The opposite party defended the allegations of negligence placing various decisions of the Hon’ble apex court and also various other authorities including Hon’ble National Commission. The opposite party has cited decision of Jacob Mathew Vs state of Punjab and another of the Hon’ble Supreme court, 2005. Martihn F D.souza Vs Mohd. Ishfaq of 2002 and also Kusum Sharma and ors Vs Batra Hospital and medical research of 2010. All these decisions discuss in detail various aspects of medical negligence. All these discussions highlight the importance of certain factors to be considered in medical negligence cases and that should be done in most careful manner. It has reminded despite the best efforts of the doctor; the treatment may fail and sometimes despite the best effort of a surgeon the patient may die. That does not mean the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that is. So long as a doctor follows a practice acceptable to the medical profession of that deal, he cannot be held for medical negligence, merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the doctor followed. It is the view that medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competency and in the interest of patient. It is held in Jacob Mathew Vs State of Punjab Anr “we may not be under stood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human being is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against”.
33. In this case the issue is not the rashness or negligence alone. The Hon’ble supreme court while rendering judgment Martin F D.Souza Vs Mohd. Ishfaq case it is held to establish labiality on medical professional that there is a usual and normal practice and that the physician has not adopted it and the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. He must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. The above decision paragraph 40 summarized the Bolam test in the following words:” From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment or the ordinary member of his profession he should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinary competent would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he under takes no less experts, skill and care than other ordinarily competent members of his profession good bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a profession man that he be a paragon combining the qualities of a poly match and prophet.” The decision also discussed in Jacob Mathew case and it has discussed the rues lay down by the apex court that a doctor should not merely go by the version of the patient regarding his systems, but should also make his own analysis including tests and investigations were necessary, a doctor should not experiment unless necessary and even then, he should ordinarily get a written consent from the patient, full record of the diagnosis, treatments etc. should be maintained. So, the close reading of the wordings in the aforementioned decisions, will not help the opposite party in this complaint.
34. In this complaint the opposite party entertained the case which he does not competent to entertain, since she had undergone three caesarian sections. The act of the opposite party was against the medical science and the opposite party has not produced any contra evidence against the averments of the complainant. The contention of the opposite party that he was compelled to undertake the case of complainant at the pressure of complainant, is not acceptable since the opposite party had opportunity to discard the case considering the high-risk factors involved in the matter and there was enough time to advice the complainant to opt correct medical treatment. We do not accept the contention of the opposite party that there is no any chance of complications in naturopathic treatments in this sort of cases. It is also evident that he was aware of the risk factors involved in this case, but his so-called maternity clinic was not properly equipped with facilities to meet emergency situation especially in a high-risk case of delivery. Though the opposite party disputed the death of infant child was not happened from his studio, the doctor, PW2 who effectively attended delivery, categorically stated that the child had died before delivery process. She has explained cause for the death of the child in womb. The question of biological death after delivery is not an issue in this complaint. On perusal of the documents the opposite party is really thankful to PW 2 for saving the opposite party from yet another criminal case under section 304(A) IPC as like already one pending as crime No.41/2018 of Manjeri Police station. The evidence before this Commission make it appears the opposite party doing experiment in his maternity studio with the life of patients. It can be seen that he is authorized by documents only to engage in naturopathic and yoga practice. In the absence of sufficient qualification or in the absence of qualified gynecologist it will not be proper to conduct a maternity studio as claimed by the opposite party. The opposite party has not obtained consent from the complainant for this mode of experiment. Considering the entire facts and circumstances of the complaint, we find that the opposite party has committed deficiency in service and unfair trade practice. We find that the act of the opposite party is against all medical ethics and Hippocratic oath. The opposite party is not competent to conduct a maternity studio without sufficient equipment and in absence of qualified gynecologist, which the concerned authorities have to decide.
35. Pont No.3
In this complaint the complainant lost her child. She was carrying the child for the last 10 months suffering all the difficulties and following all the medical advices. She deeply desired of having a vaginal delivery since she had undergone 3 caesarian sections. All surgeries including caesarians are painful and so the desire to have a vaginal delivery is not a thin full thought. But the medical science was against her idea and so all the subsequent developments. She was convinced by the opposite party that she was perfectly all right for a vaginal birth after caesarian sections. She complied diet, exercise like sit on ball exercise, skipping, siting in birth pool. She expressed her courage to face all situations. At last, she could realize her desire is not possible at the maternity studio of the opposite party and thus she was taken to the MIMS hospital, which is 10 kilometers away from the clinic and the journey was high risky one. The delivery was from the MIMS hospital but she lost her child, there is a case of uterine repute as well as bladder rapture. She was undergone treatment at MIMS hospital for several days and still she experiences various sort of difficulties. The opposite party is liable for all the miseries happened to the complainant. Hence the opposite party is liable to pay sufficient amount of compensation considering the death of the child, as well as pain, suffering and mental agony caused to the complainant. The opposite party also liable to pay expenses met at MIMS hospital Kottakkal. We consider that 1,50,000/-rupees will be reasonable amount as compensation for the death of the child in the womb. We allow Rs.300000/-rupees as compensation on account of pain and sufferings and mental agony suffered by the complainant during the days of treatment and thereafter. The documents Ext. A2 and A3 shows that she incurred a total treatment expense of Rs.1,54,937/-at MIMS hospital and we allow the same also in favor of complainant. The complainant has not produced any document regarding the expenses met at the opposite party studio but the opposite party has admitted receipt Rs.1,500/- as consulting fee from the complainant. In the absence of document, we do not consider the same.
36. In the light of above fact and circumstances the Commission allows the complaint as follows: -
- The opposite party is directed to pay Rs.1,50,000/- on account of death of infant child due to the deficiency in service on the part of the opposite party.
- The opposite parry is directed to pay Rs.3,00,000/- on account of deficiency in service and thereby caused inconvenience, hardship and mental agony to the complainant.
- The opposite party is also directed to pay Rs.1,54,937/- as treatment expenses incurred by the complainant on account of deficiency in service on the part of the opposite parties.
- The opposite party is directed to pay Rs 20,000/- as cost of the proceedings to the complainant.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 9% per annum from the date of filing this complaint till realization.
Dated this 29th day of July, 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: PW1 & PW2
PW1: Haseena, complainant
PW2: Dr. Jalaja Radhakrishnan
Documents marked on the side of the complainant: Ext.A1 to A10
Ext.A1: Treatment report of Haseena issued by the opposite party to the complainant dated 19/10/2016.
Ext.A2: Discharge bill dated 01/11/2016.
Ext A3: Discharge bill 01/11/2016 bill payment summary.
Ext A4: Medical certificate issued by the Dr. Jalaja Radhakrishnan. Gynecologist and infertilities specialist dated 27/04/2017.
Ext A5: Photo copy of FIR 472/2016 IPC u/s 336,337,338,34 Kottakkal Police station,
Ext.A6: Certified copy of statement given by Dr. Krishna Kumar Assistant police
surgeon, Medial college hospital Calicut, scene Mahasar in Kottakkal police
station crime 472/2016.
Ext.A7: Certified copy of scene Mahasar in Kottakkal police station crime 472/2016.
Ext A8: Copy of Mahasar.
Ext A9: Certified copy of postmortem report.
Ext A10: copy of FIR in crime No.41/2018 Manjeri Police station IPC u/s 304 A, 34.
Witness examined on the side of the opposite party: DW1
DW1: Mr. Aabir Hyder Arimbra
Documents marked on the side of the opposite party: Ext. B1 to B6
Ext.B1: BNYS certificate issued by Rajiv Gandhi University of health sciences dated 25/03/2013.
Ext.B2: Registration certificate No.106, the Travancore – Cochin medical council for
Indian systems of medicine dated 10/05/2013.
Ext.B3: (series) is statement of mark 1st, 2nd ,3rd and 4th BNYS examinations.
Ext.B4: Certificate issued from Thennala Grama panchyath dated 22/01/2016.
Ext.B5: (series) is copy of statement of complainant, DR. Krishnakumar, Mr. Hamza,
Mr. Mohammed, Mr. Rasheed, Dr. Yaseen Chomayil to the Kotaaakal police in
CC No.125/2018 JFCM Court, Malappuram
Ext.B6: Copy of CD.
Mohandasan . K, President
PreethiSivaraman.C, Member
VPH Mohamed Ismayil.C.V, Member
