IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 132/S/2014. DATED : 04.01.2018.
BEFORE PRESIDENT : SMT. KRISHNA PODDAR,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARYYA.
COMPLAINANT : MRS. DEEPA GUPTA,
W/O Mr. Guddu Prasad,
Resident of Gupta Building, Sevoke More,
Siliguri, Darjeeling, West Bengal.
O.Ps. 1. :DR. KAVITA MANTRY (MUNDRA),
Chamber : Family Clinic,
Bajla Motor Building, Don Bosco More,
Siliguri, Darjeeling, West Bengal.
2. : FAMILY CLINIC,
Bajla Motor Building, Don Bosco More,
Siliguri, Darjeeling, West Bengal.
3. : MITRA’S CLINIC AND NURSING HOME,
Hakimpara, Siliguri, Darjeeling – 734 001.
FOR THE COMPLAINANT : Sri Marjit Sarkar, Advocate.
FOR THE OP Nos.1 & 2 : Sri Tanoy Chakrabarty, Advocate.
FOR THE OP No.3 : Sri Bijoy Saha, Advocate.
J U D G E M E N T
Smt. Krishna Poddar, Ld. President.
The facts of the complaint case in brief are that the complainant is a regular patient for consultation of the OP No.1 and right from her initial phase of pregnancy she was under the consultation of OP No.1. On 12.08.2013 the complainant experienced immense pain of labour at around 3.45 – 4 a.m. and as a consequence the family and companions called the OP No.1 but despite numerous calls, the OP No.1 did not receive any one of those calls. Panic stricken, the family members of the complainant took her to OP No.3, but OP No.3 refused to get the complainant admitted without the recommendation of OP No.1. The complainant had to wait for almost three hours in the auto-rickshaw as the OP No.3 was adamant and did not provide a bed despite the most painful and dreaded situation the complainant was going through. Finding no other option and in apprehension of a great danger the complainant’s companions took her to a nearby hospital (New Ramkrishna Seva
Contd…..P/2
-:2:-
Sadan) at quarter past 7 a.m. and just on reaching the said hospital, the OP No.1 called the complainant’s companions, and asked them to immediately bring the complainant back to the OP No.3. Then the complainant was brought to the OP No.3 within 10 minutes and she was taken to the operation theatre and the complainant delivered twins, one female still born and one normal male child at around 8 a.m. The next morning i.e., on 13.08.2014 the OP No.1 advised that the complainant may be discharged in the evening, but the new born baby will be under ventilation for some days as the baby was said to be premature. In the evening the complainant experienced high grade intermittent fever, painful redness in the left eye with impaired vision and swelling of both lower limbs, legs and back, gluteal reason associated with difficulty in walking and moving the whole lower part as almost like it was paralysed. After observing with all her clinical expertise the OP No.1 advised the complainant to consult Dr. Sunil Singh, a Retinal Specialist and Dr. Sunil Singh diagnosed the complainant of Panophtalmids abd and prescribed some antibiotics and surgical intervention if necessary. On 15.08.2014 the complainant experienced severe pain in the lower back area and extreme swelling of the left eye with practically no visibility with it. Alarmed by the situation, the relatives of the complainant decided to take her to Apollo Hospital at Chennai but the OP No.1 opposed to it and further threaten to take no liability if any odd thing happens to the complainant. In apprehension of a great danger the relatives of the complainant took discharge of the complainant on 16.08.2014 and approached the Airport Authorities with tickets in order to take the complainant for better treatment to Apollo but the complainant was not allowed to board the flight as the OP No.1 failed to provide with proper papers necessary to fly which otherwise was within the scope of duty on the part of OP No.1 at the time of discharge. On request the OP No.1 provided the missed out paper and complainant was taken to Chennai on 17.08.2014 at night and she was admitted at Apollo at 1:00 a.m. On physical examination at Apollo it was revealed that the complainant had grown Erythematous Nodules over left thigh, pain and swelling in both legs, left eye proptosis with redness and discharge, conjunctive congestion and profuse vaginal discharge. The very next the laboratory test reports showed low haemoglobin sterile blood and urine cultures, Isolated elevation of alkaline phosphatise, elevated plasma fibrinogen and raised D-Dimer. After a lot of consultation and opinion of many specialists it was reached upon that the reason behind all these problems was the infection of the complainant’s blood which extended to the whole body affecting major organs like legs, eyes, lungs and others. The dreaded infection was caused by the retained products of conception of dimension as large as 4 cm X 3 cm in the interior walls of
Contd…..P/3
-:3:-
the uterus, which were left negligently by the OP No.1 and not taken out during the delivery procedure of the complainant (copy of the report of Apollo is annexed as Annexure-A). A procedure of suction evacuation was done on the complainant with the implied risk of freshening up of the Episiotomy wound as a consequence of the most irresponsible and negligent approach of OP No.1. After the procedure was done, the complainant though was recovering from lower back pain, but the left eye pained so much that the complainant was discharged on 27.08.2014 and was referred to Shankar Netralaya where the complainant got admitted on 28.08.2014. The doctors in Shankar Netralaya informed the complainant that she will have to lose her left eye as her left eye got totally infected due to the reason as stated above as a result of the OP No.1’s careless and reckless attitude. The complainant had to go through a surgical procedure of Evisceration of the left eye and her left eye was taken out on 28.08.2014.
It has been asserted by the complainant that she was under the advisory treatment of the OP No.1 for ten months before the delivery and as such OP No.1 had an extended duty of care towards the complainant. The infection causing her life to get ruined in every possible way was a result of simple lack of care and disinclination in performing a duty which otherwise a surgeon should perform diligently. This is a case of gross violation of medical ethics and negligence of the highest magnitude which can never be justified for a professional surgery risking the life of a person.
It has been stated by the complainant that the complainant is a consumer under the definition as extended in the Act and the complainant prays that under the above facts and circumstances of the case this Forum would be kind enough to pass an order awarding the complainant with refund of the expenditure of Rs.7,00,000/- incurred for wrong treatment by the OP No.1 and an amount of Rs.12,95,000/- as a compensation for severe loss of health and vital organ, mental agony, harassment, tension etc. payable by the OPs jointly and severally and an amount of Rs.5,000/- as litigation cost.
OP Nos.1, 2 & 3 entered appearance and contested the case by filing two separate sets of written version wherein the material averments made in the complaint have been denied and it has been contended inter-alia that the complainant has no locus standi to file the instant case and the instant case is liable to be dismissed. It has been stated by the OP Nos.1 & 2 that complainant is a 22 years old woman, a lean and thin built, with H/O PCOS and primary infertility, conceived after controlled ovarian hyperstimulatin and subsequent natural intercourse. Her LMP was 06/01/2014 and EDD was on 13/10/2014. Her
Contd…..P/4
-:4:-
Ultrasound on 20.03.2014 showed intrauterine viable sextuplet (its surrounded by choriodecidual) gestation of approx. 10-11 weeks gestation with cardiac pulsations present in all foetuses, and bilateral ovarian enlargement. She was advised to undergo fetal reduction in a centre at Kolkata where the expert/doctors carried it out in two sittings on 23.03.2014 and 26.03.2014, two fetuses were removed in each sitting, ultimately reducing the number of life fetuses to two. For few days the patient has vaginal spotting. Subsequent follow up with repeated ultra sound was normal. She had anti partum haemorrhage lasting for a week the cause of which remained obscure. Ultrasound did not reveal any placenta previa or retroplacentral clots and she was managed conservatively. She had labour pains and was admitted to OP No.3 nursing home and within an hour she delivered twins through the vaginal rout, first one was a fresh still born female baby estimated period of gestation 32 weeks and second one was a life born male baby after initial resuscitation was taken to neonatal intensive care unit for further treatment. Inspection of the placenta and membrane revealed neither a retroplacental clot which could have in this case considering the APH (anti partum haemorrhage) nor any missing fragnant or incomplete delivery of the membranes.
The complainant was checked up in the morning of 13th and had no symptoms and was planned to be discharged on 14th. In the late afternoon she complained of redness and swelling of left eye with pain for which she was immediately referred to an eye specialist Dr. Supratik Banerjee, MS (Ophth.) who diagnosed it a case of rapidly progressing panophthalmitis and referred to be seen by a Retinal Specialist. Ultrasound of the eye done the same day confirmed the diagnosis and broad spectrum antibiotics were started intravenously along with the treatment as suggested by the eye specialist. A detailed clinical examination of the patient was carried out with special care to the pelvic parts but there was no bleeding and the uterus was found to be contracted and normal as in the immediate postpartum period. On 14th an ultrasound of the abdomen was done at the nursing home by the radiologist who reported it to be normal with empty uterus and no collection anywhere. The same day she was seen by a Retinal Specialist Dr. Sunil Singh, MS (Ophth) who agreed with the diagnosis but the cause was not known. The patient started having fever and severe pain in the legs and lower back with Erythematous nodules in the lower legs. A physician’s advice was also sought but clinically there was nothing to find the source of these problems. Meanwhile the antibiotics were continued intravenously and she was closely monitored with regard to her vitals, any blood loss or foul smelling discharge etc. As the eye condition remained as before, she was advised to be taken to a better centre. The relatives did not want
Contd…..P/5
-:5:-
further investigations to be carried out here and decided to take the patient to Apollo, Chennai. The patient was referred to Chennai with a detailed history and all investigations enclosed on 16.08.2014. However, they came back in the evening saying that they could not catch the flight that day and requested for a day of admission in the said nursing home where the treatment was continued till 17th when the patient was taken to Apollo, Chennai. The baby of the complainant continued to be in the NICU and subsequently in the ward and was discharged on 22.08.2014 in favourable condition.
It has been further stated by the OP Nos.1 & 2 that the complainant was given long medical care and treatment and therefore, question of medical negligence does not arise at all.
It has been further contended by the OP No.1 that the complainant with an oblique an ulterior motive has deliberately distorted and suppressed material facts and she has not approached this Forum with clean hands and as such she is not entitled to relief and the present case is liable to be dismissed.
The OP No.3 has contested the case by filing a separate written version wherein it has been emphatically denied that OP No.3 refused to provide a bed to the complainant or refused to admit her or she had to wait about three hours rather it has been stated that when the complainant came to the nursing home i.e., OP No.3 she was admitted immediately. It has been further contended by OP No.3 that there has been no negligence or deficiency in service on the part of the OP No.3 and as such the complainant is not entitled to get any relief against the OP No.3 and the present case is liable to be dismissed.
To prove the case, the complainant has filed the following documents:-
1. The copy of the report by Apollo is annexed as Annexure A.
2. Copy of the papers pertaining to treatment in by OP 1 in OP 3 marked as B Colly for reference.
3. Copy of the papers pertaining to trea6tment in Apollo marked as C Colly for reference.
4. Copy of the papers pertaining to treatment in Shankara Netralaya marked as D Colly for reference.
5. Copy of the wasted air tickets marked as E Colly for reference.
OPs have filed the following documents :-
1. Photocopy of Original Article of Ashima Madan, MD Sharon Hollan, RN John E Humbert, BSEE William E, Benit MD.
2. Photocopy of Journal of Christian ED Geyter, Maria DE Geyer and Eberhard Nieschlag.
Contd…..P/6
-:6:-
3. Photocopy of New Zealand Medical Journal.
4. Photocopy of medical journal in respect of Management of retained placenta in patient with valular heart disease with pulmonary edema.
5. Photocopy of Neonatal morbidity and mortality associated with triplet pregnancy.
6. Photocopy of medical report in respect of Multifetal Pregnancy Reduction.
7. Photocopy of journal of pregnancy Volume 2010 Article ID 32961, 5 pages.
8. Photocopy of African Healt Sciences.
9. Photocopy of medical report of Preterm Delivery: a risk for retained placenta.
10. Photocopy of journal Justmommies.
11. Photocopy of journal in regard of retained placenta.
Complainant has filed evidence in-chief.
Complainant has filed written notes of argument.
OPs have filed evidence in chief and Written Notes of Argument.
Points for determination
1. Whether there is any deficiency in service on the part of the OPs ?
2. Whether the complainant is entitled to get any relief as prayed for ?
Decision with reason
Both issues are taken up together for the brevity and convenience of discussion.
It is admitted position that the complainant is a regular patient for consultation of the OP No.1 and right from her initial phase of pregnancy she was under consultation of OP No.1 and she had been given long medical care and advice by the OP No.1. It is also admitted position that OP No.1 is a Gynaecologist & Obstetrician Infertility Specialist and OP No.2 is the family clinic of OP No.1 and OP No.3 is a nursing home where she has been attached to. It is also not disputed that the complainant was with History of PCOS and primary infertility and she conceived after controlled ovarian hyperstimulation and subsequent natural intercourse. It is also not disputed that her ultrasound report showed in intrauterine viable sextuplet gestation and bilateral ovarian enlargement and the complainant was advised by OP No.1 to undergo fetal reduction in a centre at Calcutta and four fetuses were removed in two sitting on 23.03.14 and 26.03.14 and ultimately reducing the number of live fetuses to two.
It is also admitted position that the complainant was admitted at OP No.3 on
Contd…..P/7
-:7:-
12.08.2014 in the morning with labour pain and on that date at around 8 a.m. she delivered twins, one female still born and one normal male child. It is also admitted position that on the next day i.e., on 13.08.2014 she was advised by OP No.1 for discharge in the evening but the new born baby was kept under ventilation for some days as the baby was said to be premature and the baby was released subsequently on 22.08.2014. It is also admitted position that in the evening of 13.08.2014 the complainant experienced high fever with painful redness in the left eye with impaired vision and swelling of lower limbs, legs and back, gluteal region with difficulty in walking and moving the whole lower part of the body. It is also not disputed that after observing with all her clinical expertise the OP No.1 advised the complainant to consult Dr. Sunil Singh, a Retinal Specialist and Dr. Sunil Singh diagnosed the complainant of panophtalmids abd and prescribed some antibiotics and surgical intervention if necessary.
This is the case of the complainant that on 15.08.2014 the complainant experienced severe pain in the lower back area and extreme swelling of the left eye with practically no visibility with it and alarmed by the situation the relatives of the complainant decided to take the complainant to Apollo Hospital at Chennai, but OP No.1 opposed to it and further threatened to take no liability if any odd thing happens to the complainant. However, the relatives of the complainant took discharge of the complainant on 16.08.2014 and approached the airport authorities with tickets in order to take the complainant for better treatment to Apollo (complainant submitted the Air tickets of Indigo dated 16.08.2014), but the complainant was not allowed to board the flight on 16.08.2014 as OP No.1 failed to provide with proper papers necessary to fly. In this regard, on the side of the complainant the certificate issued by OP No.1 dated 17.08.2014 is furnished.
OP No.1 claimed that on 16.08.2014 complainant missed the flight and she was again took admission at OP No.3 and that day ultrasonogrpahy of lower abdomen of complainant was performed there. But in this regard, OP No.1 failed to submit any document in support of her claim.
It is not disputed that on 17.08.2014 at about 1.00 a.m. the complainant took admission at Apollo, Chennai for her further treatment. The copy of the treatment papers of the Apollo Hospital filed on the side of the complainant are marked Annexure-A and Annexure-C collectively.
The report of Apollo Hospital (Annexure-A) is a follows :-
Course In The Hospital & Discussion
This 26 years old lady with no comorbid illness, on 5th postpartum day of
Contd…..P/8
-:8:-
preterm twin delivery (T1-Normal, T2-stillborn) on 12.08.2014 at Siliguri, West Bengal got admitted for complaints of high grade, intermittent fever, painful redness of Left eye with impaired vision and swelling of both lower limbs, gluteal region associated with difficulty in walking. Clinically she was afebrile, conscious, oriented. Physical examination revealed erythematous nodules over left thigh, painful swelling of both legs, left eye proptosis with redness and discharge, conjunctival congestion and profuse vaginal discharge. Lab investigations done showed low haemoglobin of 8.1%, thrombocytopenia of 80,000, raised ESR of 96 mm/hr, MP/QBC – negative, sterile blood and urine cultures, isolated elevation of alkaline phosphatise of 142 U/L. DIC profile done showed elevated plasma fibrinogen of 510 mg% and raised D-Dimer of 2.64 mg/ml. She was examined by Infectious Diseases Consultant. Ophthalmologist and advise followed. Transesophageal echo done showed no vegetation. She was examined by Dermatologist and skin biopsy done showed subcutaneous necrosis and acute inflammation, suggestive of infective panniculitis. Gynaecologist opinion sought, underwent transvaginal scan, showing retained products of conception, hence underwent the following procedure.
No post operative vaginal discharge or bleeding. Patient started on symptomatic treatment, i.v. antibiotics, topical eye drops and got discharged with the following advice, Histopathological reports awaited.
Name of the Procedure : 1) SUCTION EVACUATION UNDER ULTRASOUND
GUIDANCE.
2) REPAIR OF EPISIOTOMY.
Operation Notes : Under short general anaesthesia with continuous cardiac monitoring, patient put in lithotomy position, copious discharge present.
Ultrasound done. Large product 4 cm x 3 cm in anterior wall of uterus.
Suction evacuation done.
Products sent for HPE and bacteriology pack.
Episiotomy wound freshened up debridement done.
Sutured with vicryl rapid.
No undue bleeding PV.
Now let us consider whether there was any retained product of conception in the uterus after delivery of the complainant and if so, whether there was any negligence and deficiency in service on the part of the OP No.1 in this regard.
Contd…..P/9
-:9:-
In this case the OP Nos. 1 & 2 gave explanation in their written version and evidence in respect of multifetal pregnancy reduction (MFPR) which is a procedure used to reduce the number of fetuses in a multiple pregnancy, usually of two. The reduction procedure is generally carried out during the first time-star of pregnancy. The goal of MFPR is to increase the chance of a successful, healthy pregnancy. Multifetal pregnancy reduction is usually done early in pregnancy, between 9th and 12th weeks and most often done when there are four or more fetuses present. During fetal reduction in trans-abdominal (through the bally) the doctor uses ultrasound as a guide and inserts a needle through the woman’s abdomen into the uterus to the selected fetus and injects the fetus with Potassium Chloride solution which stops the fetal heart and the fetus dies and the dead fetus is usually absorbed into the mother’s body. This may include some vaginal bleeding in absorption process. The retained product of conception either due to reduce fetuses or part of the placenta let out during the time of delivery. If it was reduced fetus it got to be absorbed into the system spontaneously and if part of placenta left attached to the anterior wall of the uterus in the absence of any significant bleeding it gets reabsorbed by the body mechanisms, the only indication to take it out is profuse vaginal bleeding or continued bleeding. The further case of the OP No.1 is that micro emboli in the circulation from the dead fetus during fetal reduction could have gain entry into the central retinal artery which is an end artery to cause such a magnitude of ophthalmities and it is not preventable.
In the instant case we find that the complainant delivered twins, one female still born and one normal male child on 12.08.2014 at OP No.3 nursing home under care and treatment of OP No.1 and when a normal life baby was born there is no question of retained fetus part in the body of the complainant. If there was any retained fetus part as claimed by the OP No.1 remained inside the body during fetal reduction there was every chance of infection and there was no possibility to give birth to a normal male baby. Here we find that the delivery of the complainant was held on 12.08.2014 and the symptoms of swelling of legs, lower limbs, swelling and redness of left eye with impaired vision started from the very next date of delivery which was complained by the complainant to the OP No.1 and it is found that on 14.08.2014 the ultrasonography of whole abdomen of the complainant was done at OP No.3 and it is clear from the said ultrasonography report that bulky uterus (post partum) with endometrial collection and suggested further clinical correlation and follow up. OP No.1 claimed that considering the redness of left eye of the complainant she was referred to Retinal Specialist and accordingly retinal specialist gave her some antibiotics but OP No.1 did not think it necessary to find out the root
Contd…..P/0
-:10:-
cause of the disease from 14th till 17th i.e. the date of discharge of the complainant. Besides sending the complainant to Dr. Sunil Singh, a Retinal Specialist no other treatment of the patient was done by the OP No.1 but it is found that the condition of the patient was gradually deteriorated and symptoms of acute back pain and extreme swelling of the left eye with practically no visibility with it started. The OP No.1 is a Gynaecologist who treats many patients and the complainant was under her advice and treatment since her pregnancy till delivery, so it is expected that she being a specialist must try to find out the root cause of the disease. But here we find that instead of performing her duty as a specialist doctor she caused delay by not supplying the required medical papers in time for which the complainant and her companions could not able to avail the flight on 16.08.2014. OP No.1 claimed that complainant missed the flight on 16.08.2014 and she took readmission in OP No.3’s nursing home but in this regard not a single paper or document furnished on the side of the OP No.1. OP No.1 further claimed that on 16.08.14 further USG of lower abdomen was done and nothing adverse was found and she tried to give best treatment to the complainant but the complainant and her companions and relatives without giving her further opportunity decided to take her to Apollo, Chennai. But here we find not a single paper or document to hold that on 16.08.14 the USG of abdomen of the complainant was done. In fact we find that from 13.08.14 to 17.08.14 i.e., till the date of discharge OP No.1 being a medical specialist/Gynaecologist having specialization in infertility did not take any serious step to find out as to why the symptoms of swelling of leg, lower limbs, acute back pain, swelling and redness of left eye with impaired vision started from the very next date of delivery and the patient’s condition was gradually deteriorated day by day. When the complainant and her relations were totally dependent on the OP No.1 for the treatment of the complainant she did not think it necessary to arrange a medical board or medical committee with one or two senior Gynaecologist having specialization on the subject and experienced MD to ascertain the actual cause of deterioration of the condition of the complainant. Here we find that the complainant went to Apollo, Chennai on 17.08.14 and admitted there at 1 a.m. and thereafter the specialist doctors of that hospital arranged a medical board to find out the disease of the complainant and they ascertained that due to retained product of conception in the anterior walls of the uterus the entire body of the complainant was infected and ultimately suction evacuation under ultrasound guidance was done and few days after such treatment the condition of the complainant gradually improved but due to serious infection the left eye of the complainant pained so much and she was referred to Shankar Netralay where the complainant got admitted on 28.08.14 and
Contd…..P/11
-:11:-
had gone through a surgical procedure of evisceration of the left eye and her left eye was taken out. If the OP No.1 took special care and provided proper medical treatment with all the knowledge and skill at her command then the complainant could not suffer and she could not lose her left eye in a tender age.
From the facts and circumstances of the present case with regard to the materials and evidence of the parties on record, it is clear that there was sole negligence and deficiency in service on the part of OP No.1 who was entrusted by the complainant since her pregnancy till delivery and even after delivery till discharge on 17.08.14 OP No.1 knew that this is a special case where the special attention was required and when immediate after delivery some complications arose to the complainant she required to arrange a medical board with other specialist doctors in the field of gynaecology to find out the root cause of the disease and to give treatment accordingly. But the OP No.1 is found totally negligent to discharge her part of duty as a gynaecologist as well as specialist in the field of infertility and due to such reckless and negligent role of OP No.1 the complainant had to lose her left eye in a tender age and she had to suffer both mentally and financially which cannot be compensated by money. Under such circumstances, the complainant is entitled to get compensation as prayed for from the OP No.1.
In the result, the case succeeds.
Hence, it is
O R D E R E D
that the Consumer Case No.132/S/2014 is allowed on contest with cost against the OP No.1 and dismissed against OP Nos. 2 & 3 but without cost.
The complainant is entitled to get a sum of Rs.7,00,000/- towards entire expenditure incurred for the wrong treatment from the OP No.1.
The complainant is further entitled to get a sum of Rs.12,95,000/- towards compensation for severe loss of health and vital organ, mental agony, harassment and tension from the OP No.1.
The complainant is further entitled to get a sum of Rs.5,000/- towards litigation cost from the OP No.1.
The OP No.1 is directed to pay a sum of Rs.7,00,000/- by issuing an account payee cheque in the name of the complainant towards entire expenditure for the wrong treatment within 45 days of this order.
The OP No.1 is further directed to pay a sum of Rs.12,95,000/- by issuing an account payee cheque in the name of the complainant towards compensation for severe loss of health and vital organ, mental agony, harassment and tension within 45 days of this order.
Contd…..P/12
-:12:-
The OP No.1 is further directed to pay a sum of Rs.5,000/- by issuing an account payee cheque in the name of the complainant towards litigation cost within 45 days of this order.
Failing which the awarded amount of Rs.19,95,000/- will carry interest @ 9% per annum from the date of this order till realization.
Copies of the judgment be supplied to the parties free of cost.
