BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 464/2004 Filed on 21..12..2004

Dated: 30..10..2010

Complainant:

A. Reeja, w/o Ravi. J., Kuzhinjankala Puthen Veedu, Mariyapuram – P.O., Neyyattinkara Taluk, Thiruvananthapuram. (By Adv. K. Narayanan Nair)

Opposite parties:

1. Dr. Jayasree, Gynaecologist, Govt. Hospital, Parassala, Parassala – P.O

   (By Adv. K. Murlidharan Nair)

    

2. The Government of Kerala, represented by its Secretary, Health Department, Govt. Secretariat, Thiruvananthapuram.

   (By Sri. Paraniyam Devakumar)

This O.P having been heard on 31..07..2010, the Forum on 30..10..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant had consulted the 1^st opposite party in connection with her Pregnancy and had been under treatment of the 1^st opposite party at Government Hospital, Parassala, that the expected date of delivery was August 9, 2004, that she felt labour pain on 5/8/2004 and she was rushed to the said Hospital by her husband and her relatives, that though she was admitted in the labour room during the night, and complainant's husband repeatedly requested 1^st opposite party to attend her personally, she refused to do so, saying that it was night and she had problems of her own in her house and the duty Nurse would do the needful, that complainant was given Enema and the accompanying treatment by the duty Nurse without the advise and instructions of the 1^st opposite party, that after much force, compulsion and threat the 1^st opposite party came to the labour room at about 5.15 A.M ( 6/8/2004) and in negligent and careless manner with a little bit of vengeance pulled out the baby thereby caused a fracture of humerus of the right hand, that the baby was immediately rushed to Medical College Hospital, Karakonam and was given proper initial medical aid and as per their advise the baby was taken to S A T Hospital, Thiruvananthapuram and underwent treatment as In-patient for seven days in the Neonatology Unit of SAT Hospital for which complainant spent more than Rs. 50,000/-, and that 1^st opposite party's negligence has caused irreparable loss and injury to complainant and great loss of the future prospects of the child. Hence this complaint to direct opposite parties to pay an amount of Rs. 2,00,000/- towards compensation for mental agony, injury, loss, hardship, future prospects and medical expenses to the complainant along with cost.

2. 1^st opposite party filed version inter alia that 1^st opposite party regularly conducted Out-patient consultation of the Government Hospital everyday, that complainant chose to consult the 1^st opposite party at her house on her own volition and not as per the advise and direction of the 1^st opposite party, that complainant was under the antenatal check up by the 1^st opposite party, that she was brought to the Government Hospital, Parassala on 5/8/2004 at 4.35 P.M with complaints of labour pains and got admitted, that 1^st opposite party examined her immediately, that she had two children from two previous deliveries, both of which were conducted at other hospitals, that her expected date of delivery was August 9, 2004, that at the time of admission, the patient had no pallor/edema, that finding the complainant in the latent phase of labour, the 1^st opposite party advised to give Enema and to prepare the patient for labour, that 1^st opposite party also gave instructions to monitor her uterine contractions and Feotal heart rate, that after admission, the patient was monitored carefully by the Nurse on duty and did not have any contractions, at 12 midnight, the complainant was again examined by 1^st opposite party and the P.V findings were the same as that at admission and she was getting mild contractions. Since the patient was in the latent phase of labour, the 1^st opposite party advised the Nurse to monitor the patient and start IV drip, that the patient progressed into active labour, that at 5.00 A.M the 1^st oppostie party received a call through a hospital staff that the patient was getting good contractions and that Cervix was almost fully dilated. 1^st opposite party immediately came to labour room and on examination found that the Certix was 9cms dilated, that after waiting for the Cervix to dilate fully and the head to reach + 3 station, 1^st opposite party put the Episiotomy and delivered the baby, that there was difficulty in delivering the shoulders and while using the accepted Cork screw manuevre to disimpact the posterior shoulder the right humerus was fractured, that the 1^st opposite party personally attended to the baby and strapped the arm to the chest with adhesive plaster to prevent further damage, that the general condition of the baby was good and the 1^st opposite party advised the husband of the complainant to take the baby to SAT Hospital for Ortho or Paediatric consultation after first feeding the baby, that the baby received its first feed within ½ hour of delivery. The baby was taken to SMCSI Medical College Hospial, Karakonam according to the interest of the complainant's own relatives, that the 1^st opposite party gave them the reference to SAT Hospital, the 1^st opposite party denied the allegation of non-attendance and not giving proper care to the complainant, that 1^st opposite party came to labour room voluntarily that 1^st opposite party examined the complainant and gave necessary medications, rermained with the patient, conducted the delivery and did all that was necessary to give the utmost care and attention to the complainant, that shoulder dystocia is an obstetricians's nightmare and has an incidence ranging from 0.6 to 1.4%, that though usually associated with large birth weight it is highly unpredictable and has been reported with delivery of 2.26kg infant. In the event of shoulder dystocia certain manuevres are carried out to bring down the head to body delivery time. These manuevres usually result in resolution of the dystocia, shoulder dystocia is associated with significant maternal and feotal consequences, post-partum haemorrhage due to lacerations and atony is the major maternal risk, that the foetal complications include fracture of humerus, Clavicle, Erb's palsy, neurological damage or even mortality. Reduction in interval of time from delivery of head to delivery of body is of prime importance to survival. During the cork screw manuevre to bring the posterior shoulder anteriorly, delivery of the posterior arm is difficult if in the fully extended position and is associated with fracture, that such fractures in the Neonate usually heal rapidly without any consequences and in fact saves the infant from more serious nerve injury, 'Asphyxia' or even death. The 1^st opposite party is a well qualified in Obstetrics and Gynaecology and has good clinical experience, that she has given reasonable care and attention to the complainant as would be given by any other similar professional. There was no medical negligence on the part of the 1^st opposite party. Hence 1^st opposite party prayed for dismissal of the complaint.

2. 2^nd opposite party Govt. Of Keraka, represented by its Secretary filed version contending inter alia that complaint is not maintainable, that complainant is not a consumer, that there has been no want of attention or negligence on the part of the 1^st opposite party and hence 2^nd opposite party in treating the complainant and her new born, that the entire allegations are denied. Hence 2^nd opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

    

1. Whether there is negligence and deficiency in service on the part of opposite parties in giving treatment to the complainant?

    

2. Whether complainant is entitled to compensation, If so, at what quantum?

    

3. Whether complainant is entitled to get cost, If so, at what quantum?

In support of the complaint, complainant has filed affidavit in lieu of examination in chief as PW1 and has marked Exts. P1 to P12 . 2 witnesses were examined as PW2 and PW3. In rebuttal, 1^st opposite party has filed affidavit and Ext. X 1 was marked.

4. Points (i) to (iii) : Admittedly, complainant was admitted to Government Hospital, Parassala on 5/8/2004. It has been the case of the complainant that inspite of her being in pain the 1^st opposite party refused to attend her as the 1^st opposite party had to go home. It is further contended that 1^st opposite party came to see the complainant only at 5.15 A.M on 6/8/2004 and that too only after much force, compulsion and threat. Complainant's husband has been examined as PW3. The oral testimony of PW3 is the only evidence in support of this aspect of the complaint. Ext. P1 is the O.P Ticket at Government Hospital, Parassala. Ext. P2 is the discharge card. On perusal of Ext. P2 it is seen recorded that male baby shoulder dystocia present, baby delivered c difficulty by delivering manoeuvring the shoulders clinically fracture of right humerus + otherwise baby well, cried immediately etc......... "It is also seen recorded in Ext. P2 that baby advised to SAT Paed surgeon / orthopaedic for expert management. Ext. P3 is the Referral O.P Card, Medical College Hospital, Thiruvananthapuram. Ext. P4 is the discharge Card issued by Medical Officer, Neonatology Unit, Department of Paediatrics, S A T Hospital, Thiruvananthapuram. Ext. P5 is the copy of Advocate notice dated 18/9/2004 addressed to 1^st & 2^nd opposite parties claiming compensation of Rs. 2 lakhs. Ext. P6 is the postal receipts. Ext. P7 is the acknowledgement card. Ext. P8 is the acknowledgement card, Ext. P9 is the prescription issued by Dr. Jayasree. Ext. P10 is X-ray. Ext. P11 is the Treatment Certificate issued by Dr. Sugandhi David, Ortho Paedic Surgeon, Medical College Hospital, Thiruvananthapuram. Ext. P12 is the Certificate issued by Dr. Sugandhi David. Dr. Sugandhi David has been examined as PW2. She has deposed in box that she has issued Ext. P12 Certificate dated 10/11/2005 and Ext. P11Treatment Certificate dated 9/9/2005. In her chief examination she has deposed that the patient had sustained fracture humerus (Right) on 6/8/2004 and he was treated in Medical College Hospital and SAT Hospital and sustained injuries due to shoulder dystocia and respiratory distress as per I.P Ticket No.04-26854. The patient was treated by CMR and G' slab and plaster were removed on 27/08/2004 as per O.P. Ticket No. 130858, the fracture was united and the patient attended Ortho O.P till 10/10/2005. PW2 has further deposed in chief examination that the patient has a temporary disability of 100% from the date of injury ie. on 6/8/2004 till the removal of the plaster on 27/8/2004 due to mental and physical strain for the patient as well as the parents. PW2 has further deposed that the patient has no deformity and pain and fracture is well united. In her cross examination by 1^st opposite party she has deposed that her qualification is MS Ortho and she is not an expert in Gynaecology. It has been the case of the complainant that the fracture of the right humerus of the baby happened because the 1^st opposite party in her negligent and careless manner with a little bit of vengeance pulled out the baby. It is pertinent to note that 1^st opposite party had averred in her version that the baby had a complication of shoulder dystocia, while attempting to cure the said problem by doing cork screw manoeuvre and while doing the said manuevre the fracture of a humerus occurred. Complainant has never adduced any evidence to show that there was delay in the treatment of the complainant, the only evidence in support of the complaint is the oral testimony of the complainant herself and her husband. PW2 has deposed that she is qualified in MS Ortho and she is not an expert in Gynaecology. The onus is on the part of the complainant to prove that the injury to the baby was due to the negligent act of the opposite parties. Except the oral testimony of the complainant herself and her husband, no expert opinion on that ground has brought in. PW2 in her deposition has admitted that the injury to the baby was sustained as a result of shoulder dystocia. Opposite parties in their version have accepted that the baby had a complication of shoulder dystocia. Opposite parties further argued that shoulder dystocia is associated with significant maternal and foetal consequences while foetal consequences include Neurological damage and even mortality. Fractures in the humerus of the baby usually heal rapidly without any consequences and opposite parties saved the baby from more serious nerve injury 'Asphyxia' or even death. It is argued by opposite parties that 1^st opposite party had used the accepted cork screw manoeuvre to disimpact the posterior shoulder to deliver the baby and to avoid more serious consequences. To prove the stand of the 1^st opposite party, opposite party had referred to Williams Obstetrics which is an accepted authority on the subject of Obstetrics and Gynaecology. Opposite party has produced the relevant pages of 459 to 564 of Williams Obstetrics. Admittedly, from Exts. P2, P4 and P12 it is evident that the child was suffering from shoulder dystocia. On perusal of Williams Obstetrics pages 459 to 464 (21^st Edition) it is seen that in case of shoulder dystocia Cork Screw Manuevre to disimpact the shoulder is an accepted method of treatment and that fracture of the bone of the baby is an accepted complication of the said procedure.

5. Thus, in the facts and circumstances mentioned above the question for consideration is whether the 1^st opposite party was negligent in giving treatment to the complainant. It is to be noted that negligent is defined as tort which is the breach of a legal duty to take care which results in damage undesired by the opposite party to the patient. It would comprise existence of a legal duty, breach of legal duty and damaged caused by the breach. In a complaint for damages on account of negligence the onus lies on the patient to prove that the Doctor (opposite party) was negligent and the said negligence resulted in the injury which is complained to be compensated. Basically medical negligence means such negligence resulting from the failure on the part of the Doctor to act in accordance with medical standards which are being practised by an ordinary and reasonably competent man practising same art. Once a Doctor accepts a patient this principle became applicable. It may be stated here that to establish negligence on the part of a Doctor the claimants must show (a) what is the standard care (b) on the facts of the case, that opposite parties conduct fell below the standard and (c) that the same had resulted to some injury to the patient. The expert opinion is the basis for determining medical negligence. PW2 had deposed that she is not an expert in Gynaecology and she is qualified in MS Ortho. Complainant did not produce expert evidence to prove any negligence and deficiency in service on the part of opposite parties. In view of the above we find opposite parties are not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of profession, skill and competence. Complainant has no substance which deserves to be dismissed.

In the result, complaint is dismissed. Parties are directed to bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of October, 2010.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

MEMBER.

ad.

O.P.No: 464/2004

APPENDIX

I. Complainant's witness:

PW1 : Reeja. A

PW2 : Dr. Sugandhi David, M.S. Ortho

PW3 : Ravi. J

II. Complainant's documents:

P1 : O.P ticket at Govt. Hospital, Parassala

P2 : The discharge card

P3 : Referral OP card dated 17/8/2004

P4 : Discharge card

P5 : Copy of advocate notice dated 18/9/2004

P6 : The postal receipts

P7 : Acknowledgement card

P8 : Acknowledgement card

P9 : Prescription issued by Dr. Jayasree

P10 : X-ray

P11 : The treatment certificate issued by Dr. Sugandhi David

P12 : The certificate issued by Dr. Sugandhi David.

III. Opposite parties' witness:

DW1 : Dr. Jayasree

IV. Opposite parties' documents:

X1 : Case sheet produced by opposite party

PRESIDENT.