CONSUMER DISPUTES REDRESSAL FORUM    PALAKKAD

Dated this the  29^th day of November, 2014

PRESENT :  SMT. SEENA. H, PRESIDENT

             :  SMT.  SHINY. P.R, MEMBER

             :  SMT. SUMA. K.P, MEMBER                       Date  of filing : 31/01/2012

CC/26/2012

Gayathri,

W/o.Anilkumar,  Lakshmi Nivas,

Thatturumbakkadu,                                                  :        Complainant

Akathethara Engineering College P.O,

Palakkad, Kerala

(Adv.P.Sree Prakash)

                   Vs

1.  Dr.Binitha Prasad MBBS, DGO,

     Chief Consultant Gynaec and Obst.Department,

     Dr.Menon’s Hospital, Olavakkode,                        :        Opposite party

     Palakkad – 678 002.

     Residing at “Krishna Bilasam”,

     By-Pass Road, Sekharipuram,

     Kalpathy, Palakkad.

     (Adv.V.K.Venugopalan)

2    Manager,

      Messers.Dr.Menon’s Hospital,

      Olavakkode, Palakkad – 678 002

      (Adv.M.Narayanankutty)

O R D E R

By Smt. Suma. K.P, Member,

Brief case of the complaint :-

          Complainant has been consulting the 1^st opposite party at the 2^nd opposite party hospital for her prenatal treatment and care.  The 1^st opposite party had clinically examined her on more than one occasion and not even once gave slightest hint about any complication whatsoever to the complainant.  The complainant being completely at the mercy of the 1^st opposite party, never had any inkling about what was in store for her when she was admitted at 2^nd opposite party hospital on 31/08/2011 after she developed labour pain at about 9.30 p.m.  The complainant gave birth to a male baby at 11.37 p.m .  The 1^st opposite party was in total control of the proceedings with few nurses for assistance. The bystanders were informed that it was a normal delivery.  When the bystanders found that no one was coming out of the labour room even after half an hour of delivery,  they enquired and was told that the complainant had developed some complications during delivery.  A team of doctors reached the hospital and it was advised to shift the complainant immediately to Thrissur Jubilee Mission Hospital.  The complainant was taken in an ambulance from the hospital to Thrissur  Jubilee Mission Hospital accompanied by one nursing staff from the hospital.  At Jubilee Mission hospital, Thrissur on physical examination the doctors found that it was a case of pubic symphysis diatasis and urethral  rupture during child birth.  The final diagnosis of complainant showed intrapartum pubic symphysis diatasis and urethral  rupture.  The reports prior to the complainant’s admission for delivery did not show anything which could developed in to such major complication in normal course.  Presently the complainant is confined to bed and she is told that there are remote chances of her leading a normal life in future.  She depends on external aids and instrument, even for slight movements on bed.  She needs either bladder neck re construction or urinary diversion (Mitrofanoff Procedure) depending on the status of bladder neck after few months.  She has lost her sleep and the pain becomes unbearable at times. 

          A bare reading of the reports show that the 1^st opposite party had been grossly negligent in the case of the complainant.  Though the 1^st opposite party had enough time to clinically or otherwise detect the problems if any as a matter of precaution to rule out any complications during delivery, she failed to take any precautions and put the complainant’s life in peril.  The complainant submits that the 1^st opposite party has been negligent in dealing with delivery of complainant and resulted in inflicting gravest injuries on her both physically and mentally.  Complainant had already spent huge amount for her treatment subsequent to the negligent acts of the 1^st opposite party and will have to shell out a lot more which cannot be quantified at this stage of her treatment. The complainant belongs to financial weaker section of the society and had to borrow huge amounts from outside.  Even the family life of the complainant is at doldrums.  She is unable to attend to even the smallest of the demands of her 8 year old daughter and the new born.  The complainant’s husband caused a letter to the 1^st opposite party through registered post on 27/10/2011, for which there was no reply.  On 19/12/2011 complainant caused a lawyer notice to both the opposite parties through registered post which were received by them.  The 1^st opposite party sent a reply denying the version put forward by the complainant.  Hence complainant had approached before the forum seeking an order directing the opposite parties to compensate the complainant to the tune of Rs.15 lakhs with cost.

          Opposite parties entered appearance through their counsels.  The 1^st opposite party filed written version contending as follows:  The complaint is not maintainable either in law or on facts.  There is absolutely no medical negligence alleged or proved.  It is true that the complainant a second gravid with history of full term vaginal delivery came to 2^nd opposite party’s hospital for antenatal check up in 9^th month of her pregnancy on 22/08/2011.  Her expected date of delivery was on 18/09/2011.  The 1^st opposite party examined her and uterus was 36 weeks size with good foetal heart sounds.  Blood investigation reports and USG reports were found to be normal.  The complainant came up for review on 29/8/2011 and as per examination, uterus was 36 – 38 weeks gestation, head not engaged, FHS good and advised USG abdomen.

          On 31/08/2011 the complainant came to the hospital around 9.15 P.M with labour pain and she was admitted by the duty doctor.  At 10.15 p.m the 1^st opposite party examined the patient.  As per vaginal examination cervix was found well effaced, OS at 3/5^th dilated and vertex at 0 station. 
At 11.30 p.m membrane ruptured spontaneously and uterus was found acting well, vertex at +2 station with clear liquor draining.  At this stage as the labour was well  progressing without any contra indication, the patient began to react violently by kicking the 1^st opposite party and nursing staff attending delivery.  Inspite of repeated request for co-operation, she continued to behave abnormally and violently kicked on the shoulder of the 1^st opposite party and by the unexpected hit the 1^st opposite party fell down on the floor.  It was difficult to manage the complainant as she continued violent behavior and at 11.45 p.m. liberal episiotomy was given after infiltration with cc local anesthesia.  At this moment also during the process of labour the complainant again violently kicked the 1^st opposite party and forcefully expelled the baby weighing 3.3 kg as in precipitate labour.  Placenta and membrane delivered and uterus contracted well.  On examination uterus was found partially lying outside the vaginal introitus, urethral and anterior perineal tissue tear noticed.  Pelvic tenderness was also present but bleeding was within normal limits.  Inj.Cefriaxone  1 gm IV stat after test dose and inj, Ketocol 1 cc after test dose was administered as 1 m.

          Since the 1^st opposite party suspected pubic symphysis diastasis and consequent urethral injury she called upon the senior Gynecologist Dr.Hema Warrier, Orthopedic surgeon Dr.Ravi G Nair and Senior Consultant Urologist Dr.Eashwaran for expert opinion and assistance.  As per request the Urologist Dr.Eashwaran conducted clinical examination and USG investigation and found that urinary bladder empty, no free fluid in abdominal cavity.  As per clinical examination urethra could not be traced.  Orthopedic surgeon Dr.Ravi.G.Nair also examined the patient and X-ray pelvis taken as per X-ray findings pubic symphysis diastasis  was confirmed.  Based on the clinical and investigation findings confirming pubic symphysis diastasis, immediately Lumbosacral belt was applied.

          The 1^st opposite party had exercised utmost care and caution in attending the delivery of the patient and the occurrence of the pubic diastasis was not caused due to any fault or failure on her part.  Immediately on suspecting pubic symphysis diastasis and consequent urethral injury, the 1^st opposite party obtained assistance of other specialists and treatment was given in joint discussion with experts.

          The condition of the patient was informed to the relatives and explained the cause of occurrence of the said condition and with their consent it was decided to shift the patient to Jubilee Mission Hospital for further management.  The 1^st opposite party herself contacted the doctors at Jubilee Mission Hospital and gave a detailed description about the condition so as to make arrangement to give emergency care and attention.  The patient was shifted in a well equipped ambulance with IV fluid on flow and with back up of emergency medicines and standby oxygen if required.  A senior and well experienced staff nurse also accompanied the patient and the patient remained stable with well maintained oxygen saturation during transit to higher centre.  In the case of the complainant the progress of labour was normal and an otherwise uneventful vaginal delivery had turned complicated leading to pubic symphysis diastasis and consequent urethral injury due to unexpected violent behavior of the complainant.  At the last stage of labour and about to deliver with vertex at +2 station, the patient reacted violently by kicking the attending doctor and nurses and which led to sudden expulsion of the baby as in precipitate labour leading to pubic symphysis diastasis and consequent urethral injury.  The complainant was treated in the 2^nd opposite party’s hospital as per the accepted medical practice and the 1^st opposite party had exercised all reasonable degree of skill and care in the treatment of the complainant.  There was no negligence or deficiency in service on the part of the 1^st opposite party and hence she is not liable to compensate the complainant.

          The  complication developed in the complainant’s case was such a nature that it could not be anticipated or predicted by antenatal clinical examination.  Hence the averment that in spite of clinical examination the 1^st opposite party did not give slightest hint about any complication to the complainant is irrelevant and immaterial.  This can happen in normal delivery due to a variety of causes and reasons beyond the control of the attending gynecologist.  In the case of the complainant it occurred due to precipitate labour accelerated by the acts on her part in the last stage of labour.

          It is true that immediately on noticing pubic symphysis diastasis and consequent urethral injury the 1^st opposite party had called Senior Gynecologist.  Orthopaedic surgeon and Senior consultant Urologist for expert opinion and assistance.  The experts immediately reached the hospital and examined the patient and as per their advise necessary investigations were carried out and immediate treatment also given.  These facts were well explained to the relatives stood outside the labour room and reference was made in consultation with them.  All other allegations against the treatment made in the petition are cooked up stories to fetch compensation.

          In any case the alleged condition of the complainant and the treatment procedures required for recovery from the state are not caused due to any negligence or fault on the part of the 1^st opposite party.  Hence she is not liable to compensate the complainant.

          The 2^nd opposite party filed written statement contending as follows:-

          On verifications of records it is found that the complainant has consulted 1^st opposite party only at the advanced stage of pregnancy and not before.  1^st opposite party is a qualified, well experienced Gynecologist and she was put in charge of the gynecology and obstetrics departments in the hospital and she has been attending delivery cases everyday without any complaints from any quarter.  The records maintained by 1^st opposite party in respect of the complainant evidences that all clinical and other findings regarding pregnancy of the complainant including the scan findings were quite normal.  There was no complication noticed.

          The complainant was admitted with labour pain at about 9.30 p.m on 31/08/2011 and she had a quick normal delivery within a span of ½ to 2 hours.  It was a precipitate labour.  Doctor cannot anticipate pubic symphysis diastasis which occurred in this case.  The doctor did all the needful, including summoning of the experts from the required fields of medical science within a short span of time, made investigations, assessed the complication and diagnosed the happening as pubic symphysis diastasis.  This can happen during precipitate labour in one out of 500 cases, which is beyond the control of human agencies.

          In some cases, the ligaments may be weak, which condition cannot be assessed by any examinations.  If ligaments are weak pelvic bone joint is likely to widen in excess which may caused rupture of urethra.  It is due to natural causes and beyond the control of human agency.  Whatever expected out of an expert gynecologist has been done by the doctor following the procedures.  As such there is no negligence on the part of the opposite parties and they are not liable to compensate the complainant.

 Since complainant’s counsel reported no instructions on 4/6/2012 the complaint was dismissed for default.  Again the matter was restored to file as per order in IA.No.306A/12.  Complainant filed chief affidavit along with documents.  Opposite parties also filed chief affidavits and documents.  2^nd opposite party filed an application to cross examine the complainant.  Ext.A1-A5 series was marked from the part of the complainant and Ext.B1-Ext.B3 was marked from the part of opposite parties.  Complainant was cross examined as PW1.  Complainant filed an application to examine Dr.Haris Paul as a witness.  Application was allowed and the witness was examined through Advocate Commissioner as PW2.  1^st opposite party was examined as DW1.  A doctor from Thankam Hospital was examined as a witness as DW2 from the part of opposite parties. 

The issues to be decided are

1. Whether there was any negligence on the part of the 1^st opposite party as alleged in the complaint?
2. If so, what are the reliefs and costs?

Issue No.1: The case of the complainant is that she had approached the 1^st opposite party while she was in the 9^th month of pregnancy.  On 31/8/2011 she was brought the 2^nd opposite party hospital with labour pain attended by 1^st opposite party.  During her delivery the complaints of pubic symphysis diastasis and urethra rupture was caused to her.  Thereafter she was referred to Jubilee Mission Hospital.  According to the complainant all these problems, caused due to negligence on the part of the opposite party.  According to the opposite parties since it was a case of 2^nd delivery, with a history of normal 1^st delivery, there is no risk factor and in the instant case complication developed due to the conduct of patient during delivery.  She kicked the doctor and nurses and due to this there was precipitate labour leading to pubic symphysis diastasis.  Complainant alleges that all these complications happened due to the negligence on the part of the doctor.  But according to the opposite parties it is an unpredictable complications occurring due to natural causes beyond the control of human agency.  The grievance of PW1 against the doctor (1^st opposite party) was that her legs which were in closed position was set apart by the doctor.  PW2 the witness from
Jubilee Mission Hospital had deposed that “during delivery it is necessary that the muscles and bones extends to a limit. This happens at the time of delivery only naturally.  The excessive laxity of pelvic bones could cause urethral injury”.  According to him mismanagement during delivery also could cause urethral injury.   PW2 has stated that “during pregnancy joints and ligments become soft and loose.  Some widening of pubic symphysis is necessary for normal labour.  Depending upon each case the widening will be more.  If widening is beyond certain limits it can cause urethral injury”.  In the chief examination he has answered to the question that the movements of legs however violent will not cause urethral rupture.  In normal case it will not happen.  In every case of precipitated labour urethral injury may or may not cause.  Urethral rupture may cause due to mismanagement during delivery.  The pelvic bone joint is expected to widen during delivery.  Ligments are expected to support the pelvic bones.  The widening of pelvic bones may cause due to mismanagement during delivery.  The question to be decided is upon whom the burden of proving negligence lies?  Complainant alleges that all these complications happened due to negligence on the part of the doctor.  During cross examination complainant had denied the violent acts like kicking etc. during delivery.   In “Medical Negligence” by Michael Jones at page 146, the author states thus: “The principle of res ipsa loquitur is in essence an evidential principle, which, in certain instances, allows the court to draw an inference of negligence.  Although in some cases it has been suggested that the principle has the effect of reversing the burden of proof, the better view would seem to be that this is incorrect.  The burden of proof remains with the plaintiff, but the defendant must adduce evidence to rebut the inference of negligence, in order to avoid a finding of liability”.

          Principles of res Ipsa Loquitur says that where the thing is shown to be under the management of the opposite party or his servants and the accident is such as in the ordinary cause of this does not happen, if those who have management, use proper care, it efforts reasonable evidence, in the absence of explanations by the opposite party that the accident arose form want of care.  Here is a case were opposite party contend for a position that she had taken care.  It is an admitted fact that there was a complication.   It is for the opposite party to prove that such thing happened not due to negligence.  Hence burden is absolutely on the opposite parties to prove the reason for complication.  Even otherwise a patient is not supposed to know about the medical terms or reasons due to which complications developed.  She can only give a common man’s narration of facts.  On the other hand a person having expertise or knowledge of a branch of medical science to assign actual reasons for complication.   Keeping this legal position in mind  if we appreciate the case in hand it can be seen that there are two rival contentions.   Complainant contend that without any fault from her side her life is spoiled due to the mismanagement.  Opposite parties  on the other hand in the version and in the chief affidavit assert that  “ at the last stage of  labour and about to deliver with  vertex +2 station,  patient reacted violently by  kicking  the attending  doctor and nurses which led to sudden expulsion of baby as in precipitate labour leading to pubic  symphysis and consequential urethral injury”.    Doctor complains that in spite of repeated requests for co-operation she continued to behave abnormally ………. ”  (Para 6 version 1^st opposite party).  Hence only reason assigned by the 1^st opposite party kicking and non-co-operation by the patient.  But during oral evidence DW1   (1^st opposite party) has given a complete goby to this case.  During cross examination (Page 2)”   the behavior of the schezire happens in the case of epileptic patients”.  Hence a new reason which is not pleaded in version nor stated in chief affidavit is given during cross examination.  During cross examination by the complainant   (Page 6) 1^st opposite party made it clear that   “kicking by normal conduct and kicking as a symptom of epilepsy are totally different situation.  Obedience or compliance of the order of the doctor can only be expected in the first case only  ” She continued “ at the 2^nd stage of delivery (      തല  പുറത്തേക്കു വന്നപ്പോൾ        ) I noted the abnormal behavior.  Witness adds at the 2^nd stage I noted the conduct of epileptic patient,  nothing was done by me at that stage to control the situation.  This evidence is having twin consequences.  1.   The contention that the violent, voluntary conduct of the patient against the directions of the doctor resulting to precipitate labour and its consequences is proved to be untrue.  2.     The contention that the patient was suffering from a peculiar type of epilepsy and due to the involuntary conduct of that everything happened is not pleaded in the version nor stated in the chief affidavit.  As stated early there is a burden upon the opposite parties to assign the reason.  When she assigns in consistent contradictory and mutually destructive reason the burden cannot reset to have been discharged.

          The decision reported in Dr.Pinnamaneni Narasimha Rao v. Gundavarapu Jayaprakashu & Anr. , AIR 1990 Andhra Pradesh 207, deals with a case where a patient went for tonsillectomy operation.  But after the operation, he became unconscious and suffered from dementia.  Of course, it was a case where evidence was adduced by the Doctors.  The contention taken was that it was a misfortune, which really happens.  In Para.16 of the judgment, the learned judge, after considering the different aspects, quoted from the decision in Laxman v. Trimbak, AIR 1969 SC 128, which as follows:

“The duties which a doctor owes to his patient are clear.  A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.  Such a person when consulted by a person owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.  A breach of any those duties gives a right of action for negligence to the patient.  The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”

          Thus in this particular case it is clear that 1^st opposite party have failed to exercise reasonable care.  There have been breach of duty on the part of 1^st opposite party, by reason of her failure, an act per se negligence in the circumstances  to administer the necessary arrangement to prevent the sudden expulsion of the baby. 

          Thus, we find that here is a case where if proper care had been taken, damage to the urethra could have been avoided.  Whether proper care had been taken was not proved.  Hence we are of the view that there was negligence on the part of 1^st opposite party. 

          Effort was made from the part of the opposite parties to show that complainant is an epileptic patient.  They had examined Dr.Chandrakumar from Thankam Hospital as DW2 to mark Ext.B4 document.  On the basis of Ext.B4 he has stated that Gayathri mentioned in the document is an epileptic patient.  DW2 admits that it is a photocopy, and the name of the patient is added in the photocopy.  He had also admitted that the name is not written by him. Hence the   evidentiary value of Ext.B4 cannot be considered. The 2^nd opposite party had taken pain to call for the original document to be in possession of the District Hospital, Palakkad.  But those pages were not seen in the document produced.  At no stretch of imagination it can be presumed that a doctor attached to District Hospital is a person who is keeping custody of alleged document is under the power or possession of the complainant.  Moreover the photocopy cannot be considered as a secondary evidence, since what is incorporated in writing, when denied by the author. Moreover it is pertinent to note that doctor(DW2) who has issued Ext.B4 to the patient deposed that after clinical examination and EEG it was found that she was normal.  The complainant had also deposed before this forum that she had never had epileptic attack before, which will conclude the matter. 

          Another contention of the opposite parties is that there is no expert evidence.  In 2010 KHC 4333 Supreme Court held that expert evidence is not mandatory in simple cases of medical negligence.  Hence non examination of expert is of no consequences.

Issue No.1 is answered accordingly.

Next  Issue remaining  is regarding compensation.

          Presently the complainant is confined to bed and she is told that there are remote chances of her leading a normal life in future.  She depends on external aids and instruments even for slight movements on bed.  The doctors treating the complainant have appraised her case needs further assessment of bladder for incontinence.  She needs either bladder neck reconstruction or urinary diversion depending on the status of the bladder neck after few months.  This particular procedure carries high morbidity.  She has lost her sleep and the pain is unbearable.  Complainant had already spent huge amount for her treatment and will have to shell out a lot more which cannot be quantified.  Complainant also submits that she belongs to financial weaker section of the society and she had to borrow huge amounts from outside which has only added to her miseries.  Even the marital life of the complainant is affected.  She is unable to attend even the smallest of the demands of her elder daughter and the new born.  Ext.A4 series are the medical bills produced by the complainant regarding expenses for her treatment from which it is revealed that she had incurred about Rs.2,55,000/- (Rupees Two lakhs fifty five thousand only) for her treatment. Taking in to account the fact that the complainant is now bed-ridden, we allow Rs.60,000/- for the amount spent for a person to look after the complainant, Rs.50,000/- for the pain and suffering, Rs.50,000/- will be for the loss of consortium to the husband.  Rs.50,000/- will be granted to her children for their sufferings due to loss of attendance by complainant and Rs.1,00,000/- towards further treatment.  Thus a total amount of Rs.6,00,000/- has been awarded. Considering the facts and circumstances of the above case we are of the view that the complainant is entitled for an amount of Rs.6,00,000/- for the physical and mental injuries suffered by her. The 2^nd opposite party being the employer of the 1^st opposite party is also vicariously liable to compensate the complainant.  Thus opposite parties are jointly and severally liable to compensate the complainant.  In the result complaint is allowed.  Hence we direct the opposite parties  to pay an amount of Rs.6,00,000/- as compensation for the mental agony suffered by the complainant along with cost of Rs.10,000/- within one month from the date of receipt of this order failing which the compensation amount shall carry 9% interest from the date of order till realisation.  Complaint allowed with cost as above.

                                Pronounced in the open court on this the 29^th day of November, 2014

                                                                    Sd/-

                                                                   Smt. Seena. H

                                                                     President

                                                                    Sd/-

                                                                    Smt. Shiny. P.R

                                                                        Member

                                                                    Sd/-

                                                                    Smt. Suma. K.P

                                                                       Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1  -   Notice along with acknowledgment dtd.27/10/2011 complainant’s  

                husband  send to 1^st opposite party.

Ext.A2 - Lawyer’s  notice along with postal receipts and acknowledgment  dtd.19/12/2011  send to the opposite parties.

Ext.A3    - Reply notice of 1^st opposite party dtd. 26/12/2011

Ext.A4 series  - Medical Bills

Ext.A5 series  - Treatment sheet of Gayathri at 2^nd OP hospital

Exhibits marked on the side of opposite party

Ext.B1  -    Case sheet of Gayathri at Dr.Menon’s Hospital Dtd.31/08/2011

Ext.B2  -    Maternity Case Booking Record of Gayathri at Dr.Menon’s Hospital .

Ext.B3 series-     Reply notice dtd.01/02/2012

Witness marked on the side of complainant

PW1  -          Gayathri

PW2-  Advocate Commissioner (Viju Raphel)

Witness examined on the side of opposite parties

DW1-Dr.Binitha Prasad, Menon Hospital, Olavakkode, Palakkad.

DW2- Harris Paul, Associate Professor, Jubilee Mission Hospital, Thrissur.

DW3- R.Chandrakumar, Doctor, Thankam Hospital, Palakkad.

Cost Allowed

Rs.10,000/- (Rupees Ten Thousand as Cost)