SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/S 35 of Consumer Protection Act 2019 seeks to get an order directing opposite parties to pay Rs.1,00,00,000/- to the complainant towards damages together with cost of the complaint.
The facts of the case, in brief, are that complainant was admitted in the OP No.3 Mims Hospital under the treatment of OP No.1 with respect to her 2nd pregnancy and she was admitted on 10/05/2021 in the OP No.3 for her delivery and on the same day she was taken to the labour room and prior to the surgery she was given sedation and under the influence of sedative medicine she became unconscious and later she came to know that during the surgery she got serious burn from her right chest to her right leg knee due to the negligent usage of cautery machine. The burn was caused only due to the medical negligence of OP No.1 to 3. Due to burn the complainant got serious injury and her body became deformity and she was admitted and treated for the deformity she suffered due to the brun and was discharged on 7th June 2021. The complainant further claims that she was bedridden due to the medical negligence happened from the OP No.1 to 3 and the said burn effected her health very much caused complaints to her heart and seriously affected her life. So she claims damages for an amount of Rs.1 crore for the medical negligence happened from OP No.1 to 3, for which she sent lawyer notice on 02/07/2021 to OP No.1 to 3. Hence the complaint.
After receiving notices, opposite parties 1 to 3 entered appearance through counsel and filed version jointly. OPs 1 to 3 contended that the OPs admits that the complainant is the wife of the Shahnaj and she was admitted in the third party hospital for the 2nd delivery. OPs submits that complainant was admitted in the hospital of 3rd OP on 10/05/2021 morning as a patient of above OP No.1 for lower segment caesarean section. Surgical preparation was made by OP No.1 with alcohol based chlorhexidine solution which is having class 1A indication as per the international guidelines for preventing surgical site infection. The complainant was draped with care on surgical drape which is made of SMS material at 12.05 PM, which is used in all major health care organization including government hospitals. After 5 minutes of preparation, skin incision was put and subcutaneous dissection with electro cautery made by megadyane. Suddenly some was found from the operation field and OP No.1 stopped the procedure immediately and found the fire spreading on the right side of the patient and immediately OP No.1 removed all drapes and stopped the fire and thereafter she was again draped with new surgical drape and completed the surgery by 12.45 Pm. The burn was cause due to the manufacturing defect of alcohol based chlorhexidine which was manufactured by the Rushaic Pharmdian Pvt. Ltd. in Mumbai. So the fire in the operation theatre was happened only due to the use of alcoholic based chlorhexidine and not due to electro cautery. OP No.1 is a Gynaecologist having the qualification of MBBS, MD, DGO, DNB and having an experience of more than 30 years. All the doctors and nurses present in the labour room at the time of surgery are also qualified professionals. Also OP No.3 is a Super Speciality hospital having all modern equipment to conduct cesarean delivery and OP No.1 to 3 have followed standard medical practice acceptable to the medical profession. The incident happened in the complainant’s case is beyond the control and no fault of OP No.1 to 3. There is no deficiency of service and medical negligence on their part. Hence, prayed for the dismissal of complaint with cost.
On the basis of the contention raised by OPs 1to 3, complainant has taken steps to implead the insurance company United India Insurance company of OP No.3 as additional OP No.4. After receiving notice, OP No.4 filed their written version stating that this OP had issued an ‘Errors and Omissions Insurance Policy for Medical Establishments’ bearing Policy No. 1002002720P115357378 for the period from 25/03/2021 to midnight of 24/03/2021 to Malabar Institute of Medical Sciences Ltd.-Aster Mims – Kannur Byepass Road Chala East, PO Chala east, Kannur 670621, Kannur (OP No.3). But liability under the policy is governed as per the terms and conditions, Exclusions, Exceptions and other clauses contained in the policy document as well as the provisions of IRDA and Insurance Act and other relevant law in vogue. Further submitted that OP the insured had neither acted nor complied the stipulations and conditions contained in the policy. The OP was not aware of the alleged incident until this OP received notice from this Commission. Since the insured had violated the terms and conditions, Exclusions, Exceptions and other clauses contained in the policy, this OP is not liable for any relief sought in the complaint. Hence it is prayed that this commission may be pleased to dismiss the case against this OP with costs.
In order to prove the case complainant filed her chief affidavit and documents. She was examined as PW1and marked documents as Exts.A1 to A40. PW1 was subjected to cross examination for the OPs. On the side of OPs, OP No.1, Dr. Jubiriath filed chief affidavit and was examined as DW 1. OP No.4 produced the copy of policy schedule issued to OP No.3 and was marked as Ext.B1. After that counsel for complainant’s made argument. OPs also argued and OPs 1 to 4 filed their written argument notes and also submitted judgments of National commission and case report. The undisputed facts are that the complainant was admitted in OP No.3 hospital under treatment with respect to her 2nd pregnancy and 10/05/2021 she was taken to the labour room for doing caesarean. Further on 10/05/2021 caesarian was conducted by OP No.1 and taken baby. During caesarean , electrocautery machine was used by OP No.1 and during caesarean burn injury was happened from below of her right chest to her right leg knee. Further on 07/06/2021, she was discharged from OP 3 hospital. Further on 26/05/2021, while complainant was in OP hospital as impatient, felt complaint of breathing difficulty and fever. On 26/05/2021 spiral CT angiography of the pulmonary arteries done, showed acute pulmonary thrombolism involving right lower lobe posterior segmental and sub-segmental arteries with pulmonary infarct. It is also admitted that after happening of burn injury, case was seen by plastic surgeon.
Complainant’s allegation is that the burn was caused only due to the medical negligence of OP No.1 to 3. Due to burn the complainant got serious injury and her body became deformity and affected her health.
On the other hand OPs 1 to 3 contended that complainant was admitted in the hospital of 3rd OP on 10/05/2021 morning as a patient of above OP No.1 for lower segment caesarean section. Surgical preparation was made by OP No.1 with alcohol based chlorhexidine solution which is having class 1A indication as per the international guidelines for preventing surgical site infection. The complainant was draped with care on surgical drape which is made of SMS material at 12.05 PM, which is used in all major health care organization including government hospitals. After 5 minutes of preparation, skin incision was put and subcutaneous dissection with electro cautery made by megadyane. Suddenly some was found from the operation field and OP No.1 stopped the procedure immediately and found the fire spreading on the right side of the patient and immediately OP No.1 removed all drapes and stopped the fire and thereafter she was again draped with new surgical drape and completed the surgery by 12.45 Pm.
OPs further contended that the burn was caused due to the manufacturing defect of alcohol based chlorhexidine which was manufactured by the Rushaic Pharmdian Pvt. Ltd. in Mumbai. So the fire in the operation theatre was happened only due to the use of alcoholic based chlorhexidine and not due to electro cautery.
OPs stated that OP No.1 is a Gynaecologist having the qualification of MBBS, MD, DGO, DNB and having an experience of more than 30 years. All the doctors and nurses present in the labour room at the time of surgery are also qualified professionals. Also OP No.3 is a Super Speciality hospital having all modern equipment to conduct cesarean delivery and OP No.1 to 3 have followed standard medical practice acceptable to the medical profession. The incident happened in the complainant’s case is beyond the control and no fault of OP No.1 to 3. There is no deficiency of service and medical negligence on their part.
Here complainant submitted medical bills and photos of the burn portions of the complainant in order to substantiate her allegation about the nature of burn injuries sustained to her. According to OP, complainant has sustained only minor injuries from the incident. OPs submitted that complainant was draped with care on surgical rape which is made of SMS material at12.05 PM. That drape issued in all major health care organization including government hospital. After 5 minute, of preparation, skin icision was put and subcutaneous dissection was done with electrocautery made of Megadyne. Suddenly smoke was found away from the operation files. OP 1 stopped the procedure immediately and inspected. She and the other team in the theatre found the rapidly spreading fire on the right side of the patient where OP 1 was standing and immediately removed all drapes and stopped the fire. Immediately after the surgery, the wound was assessed by the plastic surgeon where your client sustained superficial burns at right flank and thigh. Burned area was cleaned and applied with collagen and dressing given by the plastic surgeon and your client was advised to discharge on the next day as usual for a case of LSCS since the burns were very minor in nature. Further says that the patient and bystander was advised of the discharge after a multi discipline team meeting at my client’s hospital on the next day of the incident, as there is no requirement for further treatment by admitting a in the hospital. But complainant and her bystander requested to permit her to remain in the hospital till the wound heals. Considering the request, she was permitted to remain in the hospital.
OP’s strong contention is that the burn injury to the complainant was not the source of flame from cattery machine. Also contended that fire in operation there was only due to the use of alcoholic based chlorhexidine and electrocautery is a well documented phenomenon across health care practices and alcohol based solution have class 1 A indication for surgical preparation. It is also stated that the incident in this case are an accepted complication in using the same as per the medical literature.
But OP failed to submit any medical literature or expert opinion to submit that the event happened in this case is an accepted complication in using the alcoholic based chorhexidine and electro cacutery procedure. Further there is no evidence that alcohol based solution used by OP No.1 have class 1A indication. OPs 1 to 3 further submitted that the fire was caused from alcoholic based chlornexidine by named AHD 300D used for surgery and if complainant has sustained any loss, she can proceed against the said company Rushal Pharmodon Pvt. Ltd. Mumbai, and claim compensation from them. This argument of OPs 1 to 3 cannot be accepted. The complainant does not have any relative with the above said company, manufacturer of chlornexidine (AHD 300D). The said solution was selected by OP No.1 to 3 for using in the surgeried process for preventing surgical site infection as alleged. Complainant has privity of contract with OPs 2 and 3 since OP 1 is an employee of OP No.3, she is also a responsible person. So OPs 1 to 3 cannot wash off their hands after occurrence of an event from their side. A consumer is primarily concerned with the person from whom he availed service as privity of contract is between them. Here the medical bills etc. clearly shows that complainant had paid consideration to OP No.1 for availing treatment.
Further, OPs No.1 to 3 claims that the electro cautery machine used by OP No.1 in connection with this case is not a defective one. It is submitted that “immediately after the surgery, the wound was assessed by the plastic surgeon where complainant sustained superficial burns at right flank and thigh. Left side where the cautery pad was placed was intact without any evidence of fire. Wire of electro cautery was also inspected by the bio medical engineering team attached to the hospital of above OPs, which showed no breach in insulation continuity or any evidence of the fire damage. The equipment was taken out from the operation theatre by biomedical department and sent for verification to the manufacturer.” But no report of inspection is submitted by OP. So we cannot accept the above said contention of OPs 1 to 3.
Here it is to be noted that in discharge summary of the complainant issued by OP hospital (Ext.A2 original) it is clearly stated the course in Hospital as Superficial subcutaneous vessel cautery, 20 burns occurred on the right lateral skin of chest, abdomen and upper thigh with superficial peeling of skin. LSCS done and delivered a live female bay at 12.26 pm on 10/05/2021. Baby cried soon after birth. An mdt meeting held at board room, Aster Mims Kannur on 11/05/2021 at 11.40 am. Inference was it may be due to a unexpected short circuit and explained to the bystander, bystander requested for in hospital treatment until he wound is healed. Case seen by plastic surgery, collagen application dressing done on 10/05/2021. On 15/05/2021 wound debridement with collagen application done. Managed with antibiotics, silvered heal gel, analgesics. H/o abdominal pain on 25/05/2021, USG abdomen done – mild splenomegaly, C/o pain over back on 25/05/2021. C/o breathing difficulty, fever on 26/05/2021. She had greenish discharge from burn site – cultures grew pseudomonas. Antibiotics were escalated (Cerftriaxone to Meropenem). Spiral CT angiography of the pulmonary arteries done on 26/05/2021 showed acute pulmonary thomoembolism involving right lower lobe posterior segmental and sub-segmental arteries with pulmonary infarct. Acute pulmonary thomoembolism in left lower lobe segmental and sub-segmental arteries with peripheral ground glassing? Pulmonary infarcts. USG lower limb showed DVT. She was shifted to ICU and was started on Inj. Enoxaparin 0.6 ml s/c BD. Echo on 27/05/2021 showed mild TR, mild PAH, trivial MR, grade I AML prolapsed, traccepericaridial effusion. ANA profile SM (+), KU++ and was started on T.HCQs. 300 mg HS. Anti Ps2 GD 1 –negative, anit –ds DNS-negative, anti C&a negative. On 31/05/2021, changed to T. Warf 6mg. Wound managed with C & Ds and on 06/06/2021 Warf was changed to 5mg. Wound healthy, INR normal. Hence discharged with T.Warf 4mg.”
Hence from Ext.A2 it is very clearly stated that event may be due to an unexpected short circuit while using cautery for superficial subcutaneous vessel caurtery. Further on 26/05/2021, greenish discharge from the burn site- cultures, grew “pseudomonas,” Antibiotics were ‘escalated’ (Cetriaxone and meropenein). Further it is seen that on 31/05/2021, changed to T Warf 6mg. wound managed with C & Ds and on 06/06/2021 war was changed to 5 mg. wound healthy, Hence discharged with T warf 4mg”. So from the above said description we can reject the plea raised by OPs that, burn injury happened to the complainant was minor in nature and need not remain in the hospital as in patient till 06/06/2021. Further it is a fact that on 26/05/2021. She felt breathing difficulty “pericardial effusion.”
On analysis of the evidence of Dw1 she has deposed that ഈ പൊള്ളൽ പരാതിക്കാരിയുടെ വലത് brest മുതൽ കാൽമുട്ടുവരെയാണ് പൊള്ളലേറ്റത്? അതെ. ഇതു സംബന്ധിച്ച് പരാതിക്കാരിക്ക് compensation ഒന്നും കൊടുത്തിട്ടില്ല? ഇല്ല. എന്നെ ഇപ്പോൾ കാണിച്ചത് പരാതിക്കാരിക്ക് പൊള്ളലേറ്റതിെൻറ ഫോട്ടോകൾ ആണ്? അതെ. Witness identified Ext.A31 (series). പൊള്ളൽ ഏൽക്കുന്നതിന് മുൻപ് ബ്ലീഡിംഗ് ഉണ്ടായിരുന്നില്ല? ഇല്ല. അതിന് മുൻപ് മുറിവില്ല. Chlorhexidine സ്വയം burn ചെയ്യുന്ന സൊലൂഷൻ അല്ല എന്ന് പറയുന്നു? ശരിയാണ്. Chlorhexidine സർജ്ജറിക്ക് മുൻപ് രോഗിയെ ക്ലീൻ ചെയ്യാൻ ഉപയോഗിക്കുന്നതാണ്? അതെ. patient െൻറ ഭാഗത്ത് നിന്നുണ്ടായ എന്തെങ്കിലും ഉപേക്ഷ കൊണ്ടോ, പ്രവൃത്തി കൊണ്ടോ അല്ല തീപിടുത്തം ഉണ്ടായത്? അല്ല. Operation caurtery machine ഭാഗത്ത് നിന്നുണ്ടായ എത്തെങ്കിലും ഓപ്പറേഷൻ സമയത്ത് caurtery machine പ്രവർത്തിപ്പിച്ചത് നിങ്ങളാണോ? അതെ. ഇങ്ങനെയൊരു സംഭവം ഉണ്ടാവാനുള്ള കാരണം എന്താണ് എന്ന് സംബന്ധിച്ച അന്വേഷണം ആശുപത്രി നടത്തിയോ? നടത്തിയിരുന്നു, ആശുപത്രിയിലെ biomedical group ആണ് investigation നടത്തിടയത്. അത് എപ്പോഴാണ് നടത്തിയത്? സംഭവം നടന്ന് പിറ്റേദവസം തന്നെ അന്വേഷണം നടത്തി. എന്തുകൊണ്ടാണ് തീപിടിക്കാൻ കാരണം? caurtery ഉപയോഗിച്ചത് കൊണ്ടാണ് സ്പാർക്ക് ഉണ്ടായത് ആ സ്പാർക്കിൽ നിന്നാണ് തീ ഉണ്ടായത്.
Hence Dw1 (OP 1) admits that burn incident was happened by using cautery machine.
In the present case, it is evident that the burn injury was happened to the complainant during surgery conducted by OP No.1 while using caurtery machine at OP No.3 hospital. So it is the responsibility of the operating surgeon OP No.1 to have been extra ordinary careful to ensure that no burn injury or other complications happened during surgery. Here, as early discussed above, it is for the hospital or the doctor concerned to discharge the burden of proving that no negligence was committed. The non-production of the investigation report of the caurtery machine shows OPs failed to discharge their burden. Further it is fact that while complainant was in the OP hospital as IP, the complainant was happened acute pulmonary Thromboembolism. OP does not have a case that she was a heart patient prior to the incident in connection with this case.
More over Ext.A35 and A37 prescriptions issued by OP 3 hospital clearly shows that there was second degree superficial and Deep burns and supertrophic Scar over the (R) lateral of abdomen on 27/08/2022 also prescribe plan of care “continue oil message, compression garment, silicon gal sheet.
Considering the entire facts and circumstances of this case, we are of the view that OPs 1 to 3 are liable for negligence amounting to deficiency of service.
OP No.3 hospital further submits that OP No.3 is validly insured with united India Insurance Company Ltd. (OP 4) with policy No.1002002720P115357378 against the damages likely to arise out of the professional duty by reason of any negligent act error or omission whenever committed or alleged to have committed. So the insurance company (OP No.4) is bound to pay the compensation if there is any findings that the complainant is entitled to get compensation.
On the other hand OP No.4 submitted version stating that though OP4 Company issued policy to OP No.3 hospital the liability under the policy is governed as per the terms and conditions in the policy document. Further submitted that since OP3 had violated the policy terms and conditions, OP No.4 is not liable for any relief sought in the complaint. OP4 submitted policy document and marked as Ext.B1. As per the condition 2(a) “Such Act during hate period of insurance results in a calm being first made in writing against the insured during the policy period. Further Exclusion clause at the time of happening of any event resulting into a liability under this policy, there be any other liability insurance or insurances effected by the insured or by any other person covering the same liability, then the company shall not be liable to pay or contribute more than its rateable proportion of such liability.
As per the said clause, the personal negligence of OP No.1 will come under the exclusion clause. Hence our opinion is that OP No.4 is not liable to indemnity complainant. OPs 1 to 3 are liable to pay the compensation to the complainant.
OPs1 to 3 contended that expert opinion not adduced by complainant. Here from the entire evidence and facts oral as well as medical records, it is evident that there is negligence from the side of OP No.1. So expert opinion need not be necessary, we can apply the doctrine of ‘Resipsa Loquitor.’
Next for calculating the quantum of compensation, though OPNo.3 had given free treatment to complainant after the incident, there was mental agony, and physical hardship and deformity caused to the complainant. From the prescriptions it is seen that the complainant availed treatment on 27/08/2022 also (Ext.A35).
Considering all the facts and circumstances of this case, the complaint allowed in parts. Opposite parties 1 to 3 are directed to pay Rs.2,50,000/- to the complainant towards compensation for negligence of opposite party No.1(Opposite party Nos.2 &3 is vicariously liable to pay as opposite party No.1 is an employee of opposite party 3 hospital). Opposite parties 1 to 3 are further directed to pay Rs.50,000/- towards mental agony and hardship caused to the complainant. Opposite parties are also directed to pay Rs.10,000/- towards cost to the complainant. Opposite parties 1 to 3 are directed to comply the order within one month from the date of receipt of the certified copy of this order failing which awarded amount carries interest @ 9% per annum form the date of receipt of this order. Complainant can execute the order as per provision in Consumer Protection Act 2019.
Exts.
A1- Discharge checklist issued by Aster Mims
A2- Discharge summary issued by Aster Mims
A3- Prescription issued by BMH
A4- Prescription issued by Aster Mims
A5-Bill of Compression garment
A6-Trans-Thoracre Echo represent
A7-Ultra sound report
A8-Scan report issued by Aster Mmis dated 27/05/2021
A9 to A12- Scan reports
A13-Printal screening report
A14-Test report issued by Aster Mims dated
A15 &A16-Test report
A17- Report issued by Aster Mims
A18 to A20-Test report
A21-Diagnostic report
A22,A23, A25 and A28- Test reports
A24-Syrology report
A26 & 27- Blood bank lab report
A29-Cash bill
A30-Medical prescription
A31(series)-Photos 10 in Numbers (subject to proof)
A32- Lawyer notice and postal receipt
A33-(Series)-AD Card (3 in numbers)
A34-Reply notice
A35,A37,A40- Medical prescriptions
A36 & A38- Bills issued by Aster MIMs
A29- bill issued by Medinova diagnosis centre
B1-Copy of policy schedule
Pw1-Fathima Jabeera-Complainant
Dw1- Jubairiath V K-OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
