DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  27^th  day of July,  2022

Present      :   Sri.Vinay Menon V.,  President

                  :   Smt.Vidya A., Member                        

                  :  Sri.Krishnankutty N.K., Member             Date of Filing: 06/03/2020    

     CC/41/2020

Anitha Vipin,

W/o.Vipin,

Kottayil House,

Sreekrishnapuram P.O.

Palakkad District – 678 633

(By Adv.C.Radhakrishnan Nair)                                                         -           Complainant

                                                                                                  Vs

1. Dr.Annies,

       Gynaecologist,

Mothercare Hospital, Vattambalam,

Mannarkkad P.O., Palakkad – 678 583

2. The Proprietor,

Mothercare Hospital, Vattambalam,

Mannarkkad P.O., Palakkad – 678 583                                 -           Opposite parties

(OPs by Adv.C.Madhavankutty)

O R D E R 

By Sri. Vinay Menon V.,  President

1. The complainant, a qualified nurse, is aggrieved by the profuse bleeding that resulted postpartum owing to retention of products of conception within her uterus arising out of negligence on the part of opposite party 1 who is a gyneacologist in opposite party 2 hospital.
2. The complainant alleges that she underwent an LSCS in the OP2 hospital under the care of OP1 on 11/11/2019. She was discharged on 15/11/2019 even though she was having bleeding. Complainant, being a nurse, sought advice of OP1 as to whether further examinations were required for ascertaining the cause of bleeding and was assured that bleeding for about 90 days was normal. On 21/12/2019 she developed acute pain and bleeding started with clots and was taken to Valluvanadu Clinic, at Sreekrishnapuram, where she was administered an analgesic injection. On 22/12/2019 she reached OP2 hospital. On the request of the complainant she was admitted. But the OP1 doctor was hesitant   to treat the complainant as she had to attend programmes in connection with Christmas. As the bleeding and pain stopped by afternoon, the complainant was directed to leave the hospital. On 25/12/2019 severe pain, profuse bleeding and passing of clots occurred again and the complainant consulted Dr.Asiya in OP2 hospital as OP1 doctor was on leave owing to Christmas. USG recorded that “Uterus anteverted, Bulky in size, Ecogenic Lesion measuring 68 x 39 mm seen the endometrial region, Moderate vascularity seen within, No focal Myometrial lesion, endometrium thin” Even though D&C was started, it had to be discontinued since the complainant started bleeding profusely and her BP fell, pulse increased to 145 bpm and Hb came down to 7.4 from a normal of 12.5. Even though a bill was generated and payment effected, the same was revoked and payment returned by the OP1 hospital. The OP1 hospital did not handed over the treatment records to the complainant.

On 29/12/2019 she suffered from profuse bleeding and abdominal pain again coupled with chest pain. She was taken to Baby Memorial Hospital, Kozhikkode. She was admitted on 30/12/2019.  The treating doctor advised that repetition of D&C would be dangerous in her condition. She got discharged on 1/1/2020 and got admitted at Moulana Hospital at Perinthalmanna. Her condition was diagnosed as arising out of retained product of conception and was managed conservatively. She  was discharged on 2/1/2020. Yet she was advised to undergo treatment at Rajagiri Hospital as her condition was worsening gradually. She was admitted at Rajagiri Hospital, Aluva on 2/1/2020 where the complainant was subjected to evacuation under ultra sound guidance. She was discharged on 6/1/2020.

The complainant alleges that the doctors at Rajagiri Hospital  informed that she went through her sufferings owing to negligence in the procedure carried out at OP2 hospital by OP1 on 11/11/2019.  There is negligence in managing the condition of the complainant which is a deficiency in service as contemplated under the Consumer Protection Act. The complaint is filed seeking payment of Rs.1,50,000/- being the amount spent on treatment and expenses at various hospitals including OP2 hospital. She also sought for Rs.7 lakhs as compensation.

3.         The opposite parties entered appearance and filed a detailed version. They described the progression of her pregnancy and was slated to undergo LSCS as she was unable to go through the difficulties of pregnancy. The procedures were uneventful.  She was discharged on 15/11/2019. She returned on 30/11/2019 and was having no complaints. On 22/12/2019 (33^rd day after caesarean), the complaiant approached the 1^st opposite party with acute abdominal pain and bleeding PV. Even though the first opposite party had advised USG of pelvis to rule out any retained products of conception, the complainant opted to go home as her bleeding stopped. The complainant and her family insisted on having DAMA even after the first opposite party advised USG. Complainant returned on 25/12/2019 but on that date the opposite party was on leave. Facts that occurred and  pleaded in complaint are undisputed herein. Subsequent to 22/12/2019 the first opposite party had not  met the complainant. Couple of days later complainant’s father approached the first opposite party and told her about the complainant being admitted in BMH, Kozhikkode and sought opinion regarding the condition suffered by the complainant.

4.         Over and above what is already stated the opposite parties could not state  anything more on facts. Rest of version pleadings are denial of complaint pleadings.   

5.         The following issues arise for consideration

1. Whether the complainant could prove that the complainant suffered owing to deficiency in service on the part of OP1 ?
2. Whether there is any deficiency in service on the part of opposite parties ?
3.  Whether the complainant is entitled to any reliefs as sought for ?
4. Reliefs,  if any ?

6.         Evidence comprised of proof affidavits  on the part of   complainant and opposite parties. Complainant marked Exts.A1 to A12. Opposite parties marked Exts.B1 to B7.

            Issue No. 1

7.         The crucial question that is to be answered herein is whether the complainant underwent the suffering owing to deficiency in service on the part of 1^st opposite party.

8.         The fact that complainant was suffering from chronic retained products of conception is proved beyond an iota of doubt on going through Exts.A3, A5, A7, A8 & A11. Hence, we need not dig deep into that aspect.

9.         In the facts and circumstances of this case, especially a medical negligence case, the burden of proof that is cast on the complainant is heavy. Even though she could prove unequivocally that she was undergoing symptoms arising out of chronic retention of  products of conception, she failed to prove that there is negligence on the part of first opposite party. The complainant ought to have adduced evidence by way of expert opinion to prove that the chronic products got retained in her uterus because the first opposite party  failed to put in a level of expertise that was expected of a gynecologist  of   the 1^st opposite party’s standing. 

10.    Hence, we hold that the complainant has failed to prove her case. Even though she herself is  an experienced nurse, no medical literature was produced for our perusal and understanding of the ground realities. No expert doctor who had treated her was summon to adduce evidence to state that there was negligence on the part of the first opposite part.  Even though there is ample evidence  to show that principle of Res Ipsa Loquitor  is applicable when coming to the condition suffered by the complainant, none of the documents would prove the culpability of OP1 doctor.

11.       Eventhough we can resort to a presumption regarding culpability based on documentary evidence, solely on the ground that byproducts of conception were found in the uterus of the complainant,  in the absence of any evidence adduced by an expert conversant with the physiological aspects of the body, changes and development after pregnancy and delivery, nature of products and byproducts found within, complications that can arise, analysis of the procedure carried out by the 1^st opposite party etc. which all are relevant factors herein to come to a conclusion, such a presumption would be immature and unjustifiable as we are unaware of the various complex physiological  aspects of the human body.

            Issue No.2

12.       We hold that the complainant has failed to prove by cogent evidence that there is deficiency in service on the part of opposite party 1. Complaint is therefore dismissed.

            Issue No.3 & 4

13.       As a concomitant of the findings above we hold that the complainant is not entitled to any of the reliefs sought for and the parties are directed to bear their respective costs.  

            Pronounced in open court on this the 27^th  day of  July,  2022.

        Sd/-

                                                                                                         Vinay Menon V

                                                      President

        Sd/-

    Vidya.A

                        Member     

                               Sd/-

                                                                                               Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Original discharge summary bearing hospital No.16/24337

Ext.A2 series –    48 original hospital discharge bills

Ext.A3 –  Original USG abdomen dated 25/12/2019

Ext.A4 –  Original bill bearing No.30714 dated 25/12/19 

Ext.A5 –  Original MRI report  - Pelvis  for order No.IORD04628067 dt.30/12/2019

Ext.A6  -  Original inpatient bill No.BIL000301045 dt.1/1/2020

Ext.A7 –  Original discharge summary bearing IP No.ADM000345912 dt.1/1/2020 of BMH     

                 Ltd.

Ext.A8 – Original discharge summary dated 2/1/2020 for IP No.1516/005775/2 of Moulana

                 Hospital.

Ext.A9 –  Original discharge bill bearing No.1920/018928 dated 2/1/2020 of Moulana

                 Hospital

Ext.A10 –Original ambulance bill bearing No.278 dated 2/1/2020

Ext.A11 – Original discharge summary dated 6/1/2020 for IP No.100548

Ext.A12 – Original inpatient bill  bearing No.RHIC102483 dated 6/1/2020

Exhibits marked on the side of the opposite party

Ext.B1 –  Photocopy of outpatient additional sheet

Ext.B2 –  Photocopy of pre-operative preparation check list dated 25/12/19

Ext.B3 – Photocopy of printed consent form for anaesthesia.

Ext.B4 – Photocopy of written consent dated 27/12/2019

Ext.B5 – Photocopy of doctors order

Ext.B6 – Photocopy of anaesthesia record

Ext.B7  - Photocopy of operation notes

 Court Exhibit

 Nil

Witness examined on the side of the complainant

Nil

Witness examined on the side of the opposite party

NIL

Court Witness

Nil

Cost :  No cost  allowed

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.