DOF.13.03.2006
DOO.07.09.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan : President
Smt.K.P.Preethakumari : Member
Smt.M.D.Jessy : Member
Dated this, the 7th day of September 2011
CC.80 /2006
Alwin, S/o. Jimmy(Minor)
Represented by Jimmy
Ottakkappilumakkal,
Aralam Amsom, Desom.
P.O.Aralam. Complainant
Dr.Jojo George,
‘LOURDE’ Hospital,
Taliparamba
(Rep. by Adv.P.Mahamood) Opposite parties
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite party to pay a sum of `2, 00,000 as compensation and the cost of this litigation.
The case of the complainant in brief as set up by the complainant is as follows: The mother of the complainant had been under the treatment of Dr.Jojo George, the opposite party in Lourde Hospital right from the beginning of pregnancy. She delivered a male baby on 14.3.2004. When the baby was taken to room the left hand of baby had no movement. Doctor told that it was due to complication in delivery and would be alright within a period of three months. But even after the said period there was no change in the case of left hand of baby. Thereafter baby was taken to physiotherapist in Iritty and after three months treatment it could be find little bit change in movement. Since there was no considerable change Baby was taken to another doctor Dr.Bentwall who was working in Koyili Hospital. According to him there is no hope. The treatment is still continuing even now. It is happened so due to carelessness and negligence on the part of Dr.Jojo George. He has sold his 50 cents of land for the treatment of the Baby. It has created an unsolvable loss and burden up on this complainant. Hence this complaint.
In pursuance to the notice 1st opposite party entered appearance and filed version denying the main contentions of complainant. The brief fact of the version filed by the opposite party is as follows: The mother of the complainant consulted the opposite party on 14.3.04 with complaints of decreased fetal movement. This is her second pregnancy which resulted in failure on reason of intrauterine contraceptive Devices (Cu T) insertion. Hence her LMP was not known. The gestational age was calculated by ultra sonographic studies done on 17.11.03 and 26.2.04. It was a case of near term pregnancy with pregnancy induced Hypertension and decreased fetal movement per vaginal examination showed a cervical dilatation of 4c.m and a well descended head into the pelvis. In such situation the best treatment is to induce labour and deliver the baby to prevent further complications especially to the mother. Thus to induce labour the opposite party advised Tab prostaglandin at 12.45 P.M. Since there was decreased fetal movement and hypertension the patient and fetus was being continuously monitored. At 7.00 p.m the cervix had fully dilated. Normally after full dilatation she should deliver within 30 minutes. After about an hour when the child was not being delivered the head had reached the outlet a left medio-lateral episiotomy was done, an outlet forceps applied and the head delivered. Usually once the head, which has the maximum diameter and is hard, is delivered, the rest of the baby passes through without any difficulty. However in this case after the delivery of the head it was found that the shoulder remained impacted and there was difficulty in delivery of the shoulders. Such a condition in medical terms is called Shoulder Dystocia. This is a rare complication which a doctor can know only after the delivery of the head. It can never be predicted before delivery. Once a shoulder Dystocia occurs it has to overcome at once by dislodging the impacted shoulder and delivering it lest the baby gets asphyxiated. Hence the opposite party dislodged the anterior shoulder from its impacted position. After delivering the shoulder the rest of the baby was delivered without any difficulty. Unfortunately after the delivery of the baby it was found that the baby had branchial plexus palsy on the left side resulting the decreased movement of the left upper limb. Baby was referred to the Pediatrician and orthopedician. There is no negligence on the part of opposite party. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
Party?
2. Whether the complainant is entitled for the remedy as
prayed in the complaint?
3. Relief and cost.
The evidence consists of oral testimony of PW1, DW1, to DW3, Exts. A1 to A6Ext.X1, X1(a) (b).
Issue Nos.1 to 3
Admittedly the mother of the complainant underwent treatment with the opposite arty she delivered a male baby on 14.3.2004. Unfortunately after delivery of the baby it was found that the left upper limb of the baby was not moving. Opposite party contended that baby had brachial plexus on the left side resulting the decreased movement of the left upper limb.
Complainant’s case is that the decreased movement of the left upper limb of the baby was due to carelessness and negligent act of opposite party and he is liable for the loss and mental agony suffered by the complainant. Complainant and opposite party adduced evidence by way of affidavit evidence to establish their respective pleadings. The main case of the complainant is that the weakness of the left hand of the baby was due to the injury caused to the blood vessels of the limb by the application of the forceps whereas opposite party contended that forceps is used just to assist the delivery of the head since it had reached the vaginal outlet but was not coming out on its own. Once the head is out the forceps was removed and the rest of the body is delivered with hands. Opposite party further contended that the injury to the branchial plexus was caused by the shoulder dystocia and not due to forceps application. Ext.A1 discharge summary reveals that shoulder dystocia present. Baby delivered by Mc Robert’s Method. It is also recorded left branchial plexus palsy to Baby. X-Ray-WNL
Complainant and opposite party filed affidavit evidence in tune with their respective pleadings. Complainant in his evidence stated that when the baby was taken to room from labour room there was no movement for the left hand of the baby. Complainant further says that opposite party told her that it was because of the injury that caused to the blood vessels of the limps due to the application of forceps and there ws nothing to be worried since the same would be cured and attain normal position within three months. Opposite party on the other hand denying the allegation adduced evidence by way of affidavit evidences that “The injury to the brachial plexus was caused by the shoulder dystocia and not due to forceps application. Branchial plexus is a bundle of nerves in poster lateral part of the neck supplying the muscles of the upper limp and can never be injured by an outlet forceps, which is applied over the head. If the blood vessels had been injured as alleged it would have resulted in amputation of the upper limb following gangrene of the limbs”. There is no rebutting evidence contrary to this available expert evidence. It is true that DW1 is an interested witness. But the evidence given by DW1 cannot be thrown out straight away till there is rebutting evidence to contradict what is stated by DW1.DW1 was elaborately cross examined. But nothing was brought out favourble to complainant so as to establish the allegations of the complainant.
Answering to a question DW1 deposed in cross examination thus “Delivery¡v thn outlet forceps F¶ D]-I-c-W-amWv D]-tbm-Kn-¨-Xv. CXp Xe delivery bmhm³ D]-tbm-Kn-¡p¶ D]-I-c-W-am-Wv. Xe ]pd-¯p-h-¶-ti-jT schoulder pubis symphysis \p ASn-bn block Bbn. AXp tIkv joän ImWp-T. Second page sUen-hdn t\m«v-kn Cu In-j³ dnt¡mÀUv sNbvXn-«pv . AXnsâ t]cv shoulder dystocia F¶m-Wv. CXp delivery¡v tijT Fgp-Xn-b-Xm-Wv. Delivery¡v ap³t] C¡m-c-yT dnt¡mÀUv sN¿m-Xn-cp-¶Xp A_-ÔT ad-¨p-sh-¡p-¶-Xn\p thnn-b-mWv F¶p ]d-ªm i-cn-b-Ã.” Delivery Notes of third sheet of Ext.X1 case sheet seen recorded Maternal drug history shoulder dystocia Delivered by M.C.Roberts Mancuvre. In re-examination DW1 deposed thus: “Xe h¶-Xn-\p-ti-jT shoulder hcm-Xn-cp-¶p. F{X-bpT thKT delivery B¡pI F¶-Xm-Wv- B-k-a-bs¯ D¯-c-hm-Zn-X-z-T.- A-sÃ-¦n AXp henb A]-I-S-ap-m-¡p-T.-Xe ]pd-¯p-h-¶m Ip«n izm-k-sa-Sp-¡m³ {ian-¡p-T.Body AI-¯m-b-Xn-\m izm-k-sa-Sp-¡m³ XS-ÊT h¶p tNcp-T. Oxygen supply Ipd-bpT . Brain injurybpT izm-k-X-S-Ê-hpT hcm-T. AXp ac-W-¯n-\n-S-h-cp-¯pT”. It is pertinent to note that complainant never questioned the impact position of anterior shoulder beneath the maternal symphysis pubis. Nurses Duty record of Ext.X1(a) case sheet goes to show that at 8.05 PM the patient delivered a live male baby at 8.01 p.m. It is also recorded that it was outlet forceps extraction and shoulder dystocia was present. The pleading of opposite party the facts that have been brought out in cross examination and the evidence adduced by way of affidavit and the case makes it clear that even after the delivery of the head of the baby the shoulder remained impact position beneath the maternal symphysis pubis. No doubt this is a dangerous position with threat to the life of the baby. The evidence shows that since head delivered, baby starts attempt to breath, but body of baby being still remained inside it is strain to get air which, the position if not solved may lead to death. Under such circumstances, the only way open before the doctor is to take a line of treatment that makes possible the delivery of shoulders within no time. Hence the line of treatment that has been adopted by the opposite party/doctor which made possible to dislodge the anterior shoulder from its impact position beneath the maternal symphysis pubis can only be considered as acceptable till it is proved otherwise against medical norms.
Opposite party specifically pleaded that shoulder Dystocia is a rare complication, which can never be assessed or predicted before delivery. Opposite party further pleaded that once a shoulder dystocia occurred it has to overcome at once by dislodging the impacted shoulder and delivering it lest the baby gets asphyxiated. Complainant did not challenge this contention of opposite party. Opposite party has also case that the weakness of the upper limb was due to brachial plexus palsy, which is a known complication of shoulder dystocia. No answer was given by the complainant to these contentions raised by the opposite party. Opposite party has also given supporting evidence by way of chief affidavit. The expert evidence given by DW2/Dr.P.V.Jose Professor, Department of Obstetrics and Gynaecology, Pariyaram Medical College and DW3/Dr.P.P.Raveendran, Paediatrician, Talap also support the case of opposite party.
Dr.P.V.Jose/DW2 adduce evidence in the box that “shoulder dystocia is a serious condition where the head of the baby is born out and the shoulder is obstructed with pelvis. It is a rare complication during delivery. Concerned gynaecologist cannot always predict. Once the dystocia develop the duty of the gynaecologist is to deliver the baby at the earliest. I am saying so because it is a life threatening situation for the baby and if it is delayed brain damage or death can be caused. Brain damage means asphyxia. Asphyxia is caused due to lack of oxygen. Head is outside vagina and baby is inside the uterus and hence baby should not be able to take breath. This will lead to asphyxia”. He has also opined the best method to deliver the baby is M.C.Roberts Maneuver. DW3 also stated that branchial plexus palsy is a complication of nerves as a result of injury to the roots to the roots of these nerves. When he was asked in cross examination whether the injury can be avoided if sufficient precaution has been taken by the doctor, he answered that he is not able to answer that question. When an expert gives such an answer one cannot arrive at a conclusion without the support of clear evidence that the alleged injury that cause branchial plexus palsy could have been avoided if the Doctor/complainant had taken more sufficient precaution so as to avoid the injury.
On going through the records, affidavit with cross examination, medical records and upon hearing the arguments we find that complainant failed to establish his case with support of cogent and clear evidence and we are of considered opinion that the opposite party cannot be said to be careless or negligent in the treatment of the complainant. Hence the issues 1 to 3 are found against complainant.
In the result, the complaint is dismissed.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the complainant
A1. Discharge card issued from OP’s hospital
A2. Prescription issued from Koyili Hospital dt.1.12.04.
A3. OP ticket issued from Kottayam Medical college Hospital
dt.5.4.05
A4. Discharge summary card issued from Mangalore Yenopoya
Hospital
A5. Treatment note issued from Yenepoya medical college
Hospital,Mangalore.
A6.Disability certificate of complainant issued from Dist. Hospital,
Kannur
Exhibits for the opposite party: Nil
Exhibits for the court
X1.Inpatient case file maintained by OP
Witness examined for the complainant
PW1.Complainant (Jimmy)
Witness examined for the opposite party:
DW1. Jojo George
DW2. P.V.Jose
DW3. P.P.Ravindran
/forwarded by order/
Senior Superintendent
Consumer Disputes Redressal Forum, Kannur.
