IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 30th day of July, 2016
Filed on 23.09.2010
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.231/2010
between
Complainants:- Opposite Parties:-
- Sri. Shaju. A.X. 1. Dr. Vasantha, Kadavil Kovilakathu
Azheekkal Veedu Veedu, North of Milma Factory at
Ward No. 3 Thuravoor, Ward No.13, Thuravoor
Kadakkarappalli Panchayat Panchayat, Cherthala
Cherthala
2. Dr. Fenol Jemma, Munjappelli
- Anju Maria, D/o Late Jessy Veettil, Power House Ward
-do- -do- Alappuzha
- Abhinav @ Abhinav Jessy 3. Sister Vinny, Administrator
S/o Late Jessy -do- Holy Cross Hospital, Thanky
(Minor 2nd and 3rd complainants Cherthala
are represented by their father (By Adv. S. Unnikrishnan – for
Shaju the first complainant) opposite parties 1 and 3)
(By Adv. S. Murukan – for complainants)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The first complainant is the husband of deceased Jessy. The 2nd and third complainants are their minor children. The first complainant’s wife by name Jessy was getting treatment from the 3rd opposite party’s Hospital in connection with her 2nd pregnancy on payment. At that time she has been getting regular treatment and necessary advice from the 2nd opposite party. The first complainant and his wife had strictly adhered to the advice of the doctor and she underwent 2 scans. On seeing such reports the doctor assured them that everything is normal and that she can have a normal delivery. The first delivery of Jessy was a normal delivery in Green Garden Hospital at Cherthala. She has been continuing her regular check up from the 2nd opposite party of the department of Gynecology of the 3rd opposite party hospital. Finally on 8.8.2008 she was admitted in 3rd opposite party’s hospital as directed by the first opposite party. On the same day at 9.45 p.m. Jessy (now deceased) gave birth to a male child, who is the 3rd complainant herein. It was a normal delivery. At that time it was informed by a nurse to the first complainant that it was normal delivery and that everything is O.K. and he has to meet the first opposite party who had attended the delivery. The first complainant met the first opposite party and she made him to believe that she was who attended the delivery and that everything is fine. Thereafter on the next day Dr. Jemma visited the first complainant’s wife and repeated their earlier assurances and told him that she will be discharged within 2 days. Then on 10.8.2008 the first opposite party visited the deceased Jessy. Thereafter on 11.8.2008 Jessy was examined by the 2nd opposite party and on her advice Jessy was discharged with an advice to come for review. But she was not advised to take any antibiotics. Even after the discharge, Jessy was taking absolute rest and the care of her mother and her husband the first complainant, the same way she had been doing with her first delivery. But on 14.8.2008 at 3 a.m. Jessy was seen shivering in a confused stage and she was unable to recognize even the first complainant or any one. On seeing that the first complainant got afraid and shocked. Then he immediately took her to the 3rd opposite party’s hospital in an autorikshaw leaving the 3rd complainant who was only 6 days old with the mother of deceased Jessy. But to his shock it was informed by the duty doctor and the staff attached to the 3rd opposite party’s hospital that they cannot treat her. Not only that they refused treatment, they even ordered him to remove her from the hospital for no reasons whatsoever. As he had no other go, he took her at first to the Green Gardens Hospital, Cherthala, wherein he was informed that she be immediately taken to Medical College Hospital, Alappuzha. Hence he took here to Medical College Hospital, Alappuzha and the doctors in the Medical College Hospital informed him that Jessy breathed her last even some time before. Then Postmortem was conducted on the body and the cause of death was confirmed as “Death was due to Septicemia following retained placental bits following Delivery.” The first complainant gave information to the Police concern on 14.8.2008 and a crime was registered for the commission of offences. An expert committee was also formed to enquire into the incident. The first opposite party was negligent in attending the case of the deceased Jessy. She has not given or shown the reasonable skill which is expected from a doctor. That is to say even though on 8.8.2008 artificial rupture of membrane was done at 8 p.m. Ampicilin (antibiotic) is seen instructed only after delivery at 9.45 p.m. The first opposite party instructed to administer the antibiotic only on 9.8.2008. It is also submitted that the instruction has not been repeated on 10.8.2008 or on 11.8.2008. No antibiotic was prescribed in the discharge note also. All these negligence both on the part of the first opposite party and the 3rd opposite party’s staff have been clearly stated in the report of the Experts. The 2nd opposite party who is attached with the Department of Gynecology of the 3rd opposite party is also answerable and responsible along with the first and 2nd opposite parties in as much as she has also treated the deceased. The death of the Jessy occurred on account of the negligence on the part of the opposite parties, the first complainant who is only in the threshold of his life has lost his loving wife forever. The 2nd complainant minor has lost her mother at a tender age and the 3rd complainant was deprived of even the maternal care and affection of his mother within a week of his birth. It is needless to add that the complainants have undergone untold miseries, mental shock, agony and anguish on account of the untimely death of the deceased Jessy. Now the first complainant is unable to eke out his livelihood as he cannot go for any work leaving the children. Even now the complainants are undergoing mental agony besides the huge pecuniary loss on account of Jessy’s untimely death. All these have been caused as the direct result of the negligence, procedural error in the treatment and lack of reasonable care on the part of the opposite parties. Alleging negligence and deficiency in service on the part of the opposite parties, the complaint is filed claiming the following reliefs:-
To direct the opposite parties,
a) Treatment expenses in the 3rd opposite party’s hospital : Rs. 10,000/-
b) Expense including transportation including for the
treatment of deceased till 14.8.2008 : Rs. 3,000/-
c) Funeral expenses : Rs. 25,000/-
d) Compensation for mental agony : Rs. 50,000/-
e) Compensation for mental shock : Rs. 30,000/-
f) Lost of Consortium : Rs. 25,000/-
g) Loss of love and affection for all the complainants : Rs. 1,00,000/-
h) Compensation for the untimely death of Jessy : Rs.15,00,000/-
Total : Rs.17,43,000/-
2. The version of the first and 3rd opposite parties are as follows:-
The allegation of the complainant that he was informed by the nurse to the first complainant that it was normal delivery and that everything is O.K. and he has to meet the first opposite party who had attended the delivery. The first complainant met the first opposite party and she made him believe that she was who attended the delivery and that everything is fine is false. Nobody has advised the first complainant to meet the first opposite party and it is not true that the first complainant met the first opposite party. The statement of the complainant that the first opposite party visited Jessy on 10.8.2008 is not true. 10.8.2008 was a Sunday and off day to the first opposite party. Jessy was admitted to the hospital was 8.8.2008 for delivery. Antibiotics were started to her on 8.8.2008 itself. Antibiotics were purchased for her for the use of five days. At the time of her discharge on 11.8.2008 the patient was advised to continue to use the medicines already in her hands and she was supposed to use the said antibiotics. It is true that Jessy was brought to the Holy Cross Hospital on 14.8.2008. At that time her condition was such that she required to be admitted in a major hospital where she might get better and expert treatment and where medical I.C.U. with ventilator was available. Such facilities are not available in the Holy Cross Hospital. That is why the husband of the deceased Jessy was advised to take her to Medical College Hospital, Alappuzha. Instead of taking her to Medical College Hospital, Alappuzha, she was admitted to Green Gardens Hospital, Cherthala. Hence precious time has been lost. The husband and other relation of the patient failed to obtain expert medical treatment in their hurry to take the patient away. The allegation that the duty doctor in the Holy Cross Hospital refused to treat her and has ordered him to remove her from the hospital is totally false. The opinion of the doctor who conducted the postmortem of the deceased Jessy that “her death was due to septicemia following retained placental bits following delivery” is faulty, incorrect and baseless. So too the opinion of the so called Medical board is also absolutely wrong. The allegation that there was lack of skill and care in taking the delivery of the deceased on the part of the doctors is absolutely false. There is no negligence or dereliction of duty on the part of the doctors, staff and the hospital.
3. The version of the second opposite party is as follows:-
It is admitted the 2nd opposite party was the Gynecologist in the Holy Cross Hospital. Deceased Jessy was a patient there and the 2nd opposite party treated the deceased during antenatal period and post partum period. After delivery the deceased Jessy was in the hospital for four days. During that period there was no fever or tachycardia or hypotension for the patient. There was no evidence that the patient’s condition was related to post partum sepsis or septicemia. At the time of discharge the mother and the baby were perfectly healthy. The allegation that the deceased was not advised to take any antibiotic is not correct. As per doctors’ orders and nurses’ records antibiotic was given to the deceased. On the day of delivery itself prophylactic dose of intravenous ampiclox was started and this was followed by a course of oral capsule ampiclox for five days. Accordingly capsule ampiclox was purchased for the patient form the hospital pharmacy. At the time of discharge Jessy was verbally advised to take the remaining capsules of ampiclox which was already with her. She was also advised to come for review after one week or earlier. The husband could have brought the patient earlier to the hospital. The 2nd opposite party was on leave from 12.8.2008 to 31.8.2008 in connection with her son’s marriage. So 2nd opposite party is not responsible for the events which took place later. The cause of death stated in the postmortem certificate is not correct and hence denied by the 2nd opposite party. The death may be due to other reasons. The 2nd opposite party has exercised utmost care and concern for patient and looked after her according to the prevailing standards of management. There was no negligence at all in the treatment during antenatal period and post partum period.
4. Complainant was examined as PW1. The documents produced were marked as Ext.A1 to A21. Witnesses were examined as PW2 and PW3. First opposite party was examined as RW1. 2nd opposite party was examined as RW2. The documents produced were marked as Exts.B1 to B4. Ext.B4 marked subject to objection. 3rd opposite party was examined as RW3. Dr. Lalithambika was examined as RW4 for the expert opinion. Pathologist Dr. Geetha Gopal was examined as RW5 and one witness was examined as RW6.
5. The points that arose for consideration are as follows:-
- Whether there is any deficiency in service on the side of the opposite parties?
- If so the compensation and costs?
6. The admitted facts of the case are the following:-
1) First complainant’s wife was admitted in the 3rd opposite party’s hospital on 8.8.2008 for delivery and on that day itself she gave birth to a boy child.
2) It was a normal delivery.
3) Opposite parties 1 and 2 are the doctors attended to the 3rd opposite party hospital.
4) The first complainant’s wife was treated by the 2nd opposite party the antenatal period and post partum period.
5) The first complainant’s wife was discharged from 3rd opposite party hospital on 11.8.2008.
6) The first complainant’s wife died on 14.8.2008.
7. The main allegation of the first complainant is that his wife died due to the carelessness and negligence on the part of the opposite parties. Complainant produced the postmortem report of the deceased Jessy which marked as Ext.A16. The postmortem report shows that “death was due to septicemia following retained placental bits following delivery.” First complainant gave information to the police concerned, a crime was registered for the commission of offence u/s 304(A) and 34 IPC against the opposite parties. Ext.A1 evidenced the same. An Expert Board named Dr. A.Khairunniza, District Medical Officer, Alappuzha, Adv. C.V.Lumumba, Asst. Govt. Pleader, Alappuzha and Dr. Sreekumary, Professor of Forensic Medicine have given their expert opinion that there was reasonable lack of skill and care in the conduct of delivery and thereafter during the post partum period on the part of the doctors who treated the patient Jessy. The said expert committee opinion also produced. Dr. A Khairunniza was examined as PW2 and expert report produced marked as Ext.A19. The three members of the Board stated their opinion separately and those statements were also produced and marked as Ext.A18, Ext.A20 and Ext.A21. In Ext.A18, Dr. A. Khairunniza stated that on 8.8.2008 artificial rupture of membrane was done at 8 p.m. and Ampicilin (antibiotic) is seen instructed only after delivery at 9.45 p.m. and instruction has not been repeated on 10.8.2008 or on 11.8.2008 and no antibiotic was prescribed in the discharge note also. The contention of 2nd opposite party is that after the delivery the deceased was in the hospital for four days and there was no fever or tachycardia or hypertension for the patient. Apart from that antibiotic was also given to deceased. On the day of delivery itself prophylactic done of intravenous ampiclox was started and this was followed by a course of oral capsule ampiclox for five days. At the time of discharge patient was verbally advised to take remaining capsules of ampiclox which was also already with her. The first and 3rd opposite parties also raised the same contention. They further stated that the D.M.O. visited the hospital about three months of the death of Jessy and though the rooms actually in case were shown to her, she did not come to examine the rooms. In order to substantiate their contention the opposite parties produced the case records of deceased kept in Holy Cross Hospital, Cherthala which marked as Ext.B1 and Nurses’ records which marked as Ext.B2.
8. From the facts and circumstances of the case, it is clear that the delivery of deceased Jessy was attended by the opposite party Dr.S. Vasantha and the patient was examined before the delivery and after the delivery by the 2nd opposite party. As per Ext.A16 the postmortem report the death was due to septicemia following retained placental bits following delivery. In Ext.A16 it is also stated, no antibiotic is seen prescribed in the discharge note. It is pertinent to notice that this report was not challenged by the opposite parties. The nurses record Ext.B2 is not seen as a genuine document. While cross examining the RW6 who has put signature in Ext.B2 categorically stated that, “ ………………………..” Apart from that she also stated, there was no difficulty in producing the Ext.B2 record before the police and the panel appointed for investigation. But it was not seen produced. Had there been Nurses record maintained regularly and properly it would be the best evidence and they could have produced it before the police at the first instance or at least before the expert committee. Hence Ext.B2 the so called nurses record before this Forum appears to be not genuine, it appears that it is a document prepared subsequently or producing before this Forum. While cross examining the RW5 the Pathologist she also admitted that the authority to speak about the cause of death is the Police Surgeon making. Ext.B4 was not proved by examining the doctor who prepared it. Hence making of those documents were opposed by the complainant. When the expert RW4, was cross examined by opposite parties 1 and 3, to the question put by learned counsel, “ ……………………….” But when she was cross examined by the complainant, she stated that Septicemia occurs within 48 hours of delivery. Moreover while the learned counsel of the complainant put a question, “In such a situation, non prescription of medicine can aggravate the septicemia (Q) She answered, no opinion can be given.” On a close scrutiny of deposition of RW4 it comes out that Septicemia can occur within 48 hours if the Placentia bits retained in the uterus after delivery. From the version filed by the opposite parties 1 and 3, it is admitted that the patient was brought again to the hospital on 14.8.2008, but she was not treated there. According to the complainant not only they refused treatment, they even ordered him to remove her from the hospital. The 3rd opposite party should have given a primary attention or at least accompanying the patient, because it is an admitted fact that the patient died on the way to Medical College Hospital.
10. For all the afore going reasons we are of opinion that there was carelessness and negligence on the part of the 2nd opposite party who attended the delivery and also on the part of the first opposite party who discharged the patient. The 3rd opposite party is vicariously liable for the act of the opposite parties 1 and 2.
11. The next point to be considered is the quantum of compensation deserved by the claimants. The complainants claimed Rs.17,43,000/- towards compensation. As per the decision reported in CPR V 2016 (2), “the compensation has to be within certain broad guidelines and within certain broad parameters.” In the instant case, the deceased was a coir worker aged 33 years. In order to prove the income of the deceased, income certificate is produced and marked as Ext.A10. While cross examining the PW3 the Secretary who issued Ext.A10 certificate, he stated that the deceased was not a member of the society. But in chief examination he deposed that, the first complainant and his wife were jointly done the work and were earning Rs.8,000/- per month. Hence the monthly income of the deceased can be taken as Rs.4,000/-. In a decision of Hon’ble Supreme Court Rajesh Vs. Rajbir Singh 2013 (3) KLT 89 (SC) Hon’ble Apex Court considered the self employed persons and the prospects of increase in the wages of them and stated that, “In the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects.” Therefore it is only normal that a further amount of Rs.2,000/- will have to be added to Rs.4,000/- and accordingly the total monthly income is fixed as Rs.6,000/- towards personal expenses 1/3rd can be deducted. If that be so Rs.2,000/- will have to be deducted as personal expenses of the deceased and monthly contribution will be Rs.4,000/- (6000 – 2000) as far as the claimants are concerned.
12. On going by the decision in Sarala Varma Vs. Delhi Transport Corporation 2010 (2) KLT 802 (SC) with regard to the person above the age group 31 to 35 the correct multiplier will be 16. We adopt the same. Going by the judgment of the Apex Court in Rajesh Vs. Rajbir Singh for loss of consortium and loss of affection Rs.1 lakh each can be awarded. In the said judgment Apex Court has awarded Rs.25,000/- towards funeral expenses also. Therefore we are of the view that claimants are entitled to get Rs.25,000/- for the same. Since the bills for the treatment expenses is not produced only Rs.5000/- can be given under that head. Accordingly the amount of compensation is granted in the following manner:-
1) Towards transportation : Rs. 2000/-
2) Treatment expenses : Rs. 5000/-
3) Funeral expenses : Rs. 25000/-
4) Loss of consortium : Rs. 1 Lakh
5) Loss of love and affection : Rs. 1 lakh
6) Loss of dependence : Rs.768000/- (4000x12x16)
Total : Rs.10,00,000/-
The amount will carry interest @ 9% per annum in the light of settled position of law declared by the Supreme Court in Supedi Vs. National Insurance Company Ltd. [2009(4) SCC 513].
In the result complaint is allowed. The opposite parties 1 to 3 are directed to pay an amount of Rs.10,00,000/- (Rupees ten lakhs only) towards compensation to the complainants with 9% interest from the date of filing the complaint till realization. The opposite parties are further directed to pay an amount of Rs.5000/- (Rupees five thousand only) towards the costs of this proceedings to the complainants. Since the complainants 2 and 3 are minors, they are entitled for 50% of the award amount which shall be equally divided among them and deposit in the Nationalized Bank till they attain majority. The opposite parties are directed to produce cheque or D.D. for the amount entitled in the name of the complainants 2 and 3 to be deposited in a Nationalized Bank till they attain majority and another cheque or D.D. for the balance amount and cost in the name of the first complainant. The order shall be complied within one month from the date of receipt of this order. Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 30th day of July, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Shaju A.X. (Witness)
PW2 - Dr. A. Khairunniza (Witness)
PW3 - Akhashkumar (Witness)
Ext.A1 - Copy of the Final Report of Police
Ext.A2 - True copy of the deposition of Sri. Varghese dated 19.5.2010 to the Police
Ext.A3 - True copy of the deposition of Sri. Jobi dated 19.5.2010 to the Police
Ext.A4 - True copy of the deposition of Sri.Kunjukunju dated 19.5.2010 to the Police
Ext.A5 - True copy of the deposition of Sri.Joseph dated 19.5.2010 to the Police
Ext.A6 - True copy of the deposition of Sri.Shanu dated 19.5.2010 to the Police
Ext.A7 - True copy of the deposition of Sri.Joji dated 19.5.2010 to the Police
Ext.A8 - True copy of the mahazor
Ext.A9 - Paper report
Ext.A10 - Certificate dated 11.5.2011
Ext.A11 - Marriage Certificate dated 7.5.2011
Ext.A12 - Attested copy of the Birth Certificate of 2nd complainant
Ext.A13 - Attested copy of the Birth Certificate of 3rd complainant
Ext.A14 - Acknowledgement cards (3 Nos.)
Ext.A15 - Copy of the Postmortem Certificate dated 14.8.2008
Ext.A16 - Copy of the Postmortem Certificate dated 22.1.2009
Ext.A17 - True copy of the registered notice
Ext.A18 - True copy of the deposition of Medical Officer Dr. A. Khairunnuiza to
The Police
Ext.A19 - True copy of the Minutes of the meeting dated 19.2.2010
Ext.A20 - True copy of the deposition of Forensic Medicine Professor Dr. K.
Sreekumari to the Police
Ext.A21 - True copy of the deposition of Govt. Pleader & Public Prosecutor Sri.
Lumumba to the Police
Evidence of the opposite parties:-
RW1 - Dr. S. Vasantha (Witness)
RW2 - Dr. Fenol Jemma (Witness)
RW3 - Sister Vinny (Witness)
RW4 - Dr. Lalithambika (Witness)
RW5 - Dr. Geetha Gopal (Witness)
RW6 - Sister Susanna (Witness)
Ext.B1 - Copy of the IP No.717/08
Ext.B2 - Nurses Record (Original)
Ext.B3 - Copy of the Certificate of Sister Vinny
Ext.B4 - Copy of the Pathology Report (Subject to objection)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
