CC Filed on 22.09.2008<br /> Disposed on 27.04.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 27th day of April 2010<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 73/2008<br /> <br /> Between:<br /> <br /> <br /> Sri. Kumaran,<br /> S/o. Balakrishnan,<br /> Aged 30 years,<br /> Residing at Frank & Co.,<br /> Quarter,<br /> Marikuppam,<br /> K.G.F.<br /> <br /> <br /> (By Advocate Sri. S. Ananda Ramaiah & others) <br /> <br /> <br /> V/S<br /> <br /> <br /> 1. Dinesh Maternity Home and <br /> General Clinic,<br /> Prasad Building,<br /> Geetha Road,<br /> Robertsonpet,<br /> K.G.F – 563 122.<br /> Rep. by Dr. Loganayagi,<br /> W/o. Dr. Magimai Dass,<br /> Aged 60 years,<br /> Andersonpet, K.G.F.<br /> Being the Trade licence <br /> Holder for Running the said Clinic. <br /> <br /> <br /> <br /> <br /> <br /> ….Complainant<br /> <br /> 2. Dr. Loganayagi,<br /> W/o. Dr. Magimai Dass,<br /> Aged 60 years,<br /> Andersonpet,<br /> K.G.F.<br /> <br /> <br /> 3. Dr. Shiva Kumar,<br /> Surgeon,<br /> General Hospital,<br /> Robertsonpet,<br /> K.G.F.<br /> <br /> <br /> 4. Dr. Poongan,<br /> M.B.B.S., D.A.,<br /> Anesthetist,<br /> Gowtham Nagar,<br /> Robertsonpet,<br /> K.G.F.<br /> <br /> <br /> 5. Dr. M. Mohana Priya,<br /> D/o. Loganayagi,<br /> No. 327, Bazaar Street,<br /> Andersonpet,<br /> K.G.F.<br /> <br /> <br /> 6. Smt. Malathi,<br /> Staff Nurse,<br /> General Hospital,<br /> Robertsonpet,<br /> K.G.F.<br /> <br /> (By Advocate Sri. P. Raghavan & others)<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Parties<br /> <br /> ORDERS<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to pay a sum of Rs.5,00,000/- as damages for the death of complainant’s wife due to medical negligence on the part of OPs with costs, etc.,<br /> <br /> 2. The complainant married one Smt. Geethalakshmi on 25.01.2007. Thereafter Smt. Geethalakshmi became pregnant. She was visiting Dinesh Maternity Home & General Clinic (OP.1) run by OP.2 Dr. Loganayagi for prenatal check up and treatment. OP.2 Dr. Loganayagi was examining Smt. Geethalakshmi and was giving advice and treatment. The due date for delivery was in the first week of November 2007. <br /> <br /> Smt. Geethalakshmi was feeling some pain in the abdomen in the morning on 04.11.2007. Then she approached OP.2 Dr. Loganayagi at about 8.00 a.m. on the same day at her residence. On examination it was found that Smt. Geethalakshmi was in initial stage of labour and she was advised to get admitted to the Maternity Home. OP.2 Dr. Loganayagi began treatment and as there was no labour progress even after sufficient time and fearing foetal distress, she suggested to the patient and her relatives that caesarean section was to be done. Thereafter OP.3 Dr. Shivakumar, Surgeon and OP.4 Dr. Poongan, Anesthetist were secured by OP.2 Dr. Loganyagi. ‘C’ section was done and a live male baby was extracted from the uterus. At about 6.15 a.m. on 05.11.2007 the patient Smt. Geethalakshmi was declared dead. <br /> <br /> 3. At the outset we think that the complainant has not done proper home work before drafting the complaint. It appears many sentences in the complaint fall short of expressing properly the intended allegations. It appears to us that before alleging medical negligence one should be acquainted with the basic knowledge over that subject and should consult the expert in the field and thereafter should allege the facts constituting the negligence on the part of treating doctor. We think no such effort is made before drafting the complaint. <br /> <br /> The material allegations made in the complaint that may amount to medical negligence as we could understand from reading the complaint, may be stated as follows: That on 04.11.2007 at about 02.00 p.m. OP.2 Dr. Loganyagi after thorough check up of the patient stated that there was no worry and there would be a normal delivery on or before 11.30 p.m. and she would take care of it. Contrary to such assurance OP.2 finally told that caesarean operation had to be done. Further that after preliminary steps caesarean was conducted on the patient and uterus was opened at about 12.30 a.m. Further that in between 12.30 a.m. and 5.30 a.m. proper care was not taken and the patient was struggling in one way or other for her survival and she was panic-stricken. On further analysis of the pleading we could gather that OP.2 Dr. Loganayagi pretending to take assistance of OP.3 and OP.4 secured them at about 5.45 a.m. and it was found that OP.4 had come with heavy intoxication and both OP.3 and OP.4 entered the Maternity Home on the guise of conducting caesarean operation on the patient and that within a span of 10 minutes, OP.3 and 4 left the said Hospital without intimating the result of operation or the health status of the patient to complainant or the other relatives of the patient, however OP.3 finally told that the patient had died at about 6.15 a.m. It appears that the other allegation made in the complaint is that the OP.2 was not at all concerned about patients, but she was after money. It is alleged that some gas which was supposed to be full at the time of operation was not at all available at the time of operation and there was no attendant on the patient and the caesarean operation was done without having sophisticated equipments. It appears it is alleged that there was no necessity for caesarian operation if the patient was properly cared for. It appears it was intended to be pleaded that if the complainant and other relatives of patient were asked to take the patient to a major hospital they would have arranged for better medical facility, but the complainant and his family members were kept in dark regarding the condition of patient. It is alleged that OP.2 to 5 had participated in conducting the operation and OP.6 was a staff nurse and all these OPs were negligent in discharging their duties. Therefore the complainant has filed the present complaint. <br /> <br /> 4. The consideration of the cross-examination of OP.2 shows that the complainant had given up certain allegations made in the complaint. The allegations made such as - the uterus was opened at 12.30 a.m. on 05.11.2007 and the patient was not properly attended between 12.30 a.m. and 5.30 a.m. and thereafter OP.2 pretending to take the help of OP.3 and OP.4 secured them at about 5.45 a.m. and that OP.4 came with heavy intoxication and they went inside Maternity Home on the guise of caesarean operation and within a span of 10 minutes they left the said Hospital, are not suggested to OP.2 in the course of cross-examination which implies that the said allegations were not pressed. The date and time of the events stated by OP.2 in her evidence are not disputed. <br /> <br /> Therefore we think the material allegations that remain for consideration are that OP.2 had assured that there would be normal delivery within reasonable time and inspite of ensuing delay in labour OP.2 failed to inform the complainant and relatives to shift the patient to major hospital for further treatment and that the Maternity Home of OP.2 was not properly equipped to undertake caesarean operation in the present case. <br /> <br /> 5. The defence of OPs as made out in the version signed and filed by OP.2 and 5 and adopted by others is stated in para.12 of the version which is as follows. In the earlier paras of the version the allegations made in the complaint are denied. Para.12 of the version is as follows: <br /> <br /> “12. The true facts are as under:<br /> a) One by name Smt. Geethalakshmi approached Dr. Loganayagi, opponent No.2, on 04.11.2007 at about 8 AM at her residence at Andersonpet, K.G.F. with the history of pain abdomen and on examination it was found that she was in initial stage of labour and she was advised to get admitted in any Hospital.<br /> <br /> b) on the same day at 2.00 PM the said Smt. Geethalakshmi came to Dinesh Maternity Home and General Clinic and she was accompanied by her relatives and on request she was admitted in the said Clinic and there was mild progress and Opponent No.2 began treatment and as there was foetal distress no progress was noticed till next day morning and it was suggested to the patient and her relatives that Caesarian Section is to be done as the baby was at distress. <br /> <br /> c) The opponents submit that as the patient and her family members agreed for carrying out Surgery Anesthetist Dr. Devaraj Poongan and General Surgeon Dr. Shivakumar were called and Dr. Devaraj Poongan conducted pre-anesthetist check up and she was taken for surgery. An alive baby with thrice cord around the neck with mild Asphyxia was extracted and the baby was resuscitated and while suturing the 2nd layer of the uterus the uterus the patient suddenly went into Cardiac Arrest and all efforts made to resuscitate the patient went futile.<br /> <br /> d) The case sheet maintained vouch to the fact that all procedures were duly followed.<br /> <br /> e) The opponent No.2 submits that death of Smt. Geethalakshmi was due to Cardiac Arrest and there was absolutely no negligence on the part of the surgical team.<br /> <br /> f) The opponent No.2 submits that the death of Smt. Geethalakshmi to her mother-in-law and the other Doctor informed her husband about the catastrophe and having been convinced with the misfortune they shifted the body and took the alive male baby and they pleaded for some time to settle the bill and considering the situation, and the opponent No.2 agreed for delayed payment and further rendered all kinds of help to shift the body.<br /> <br /> g) The opponent No.5 submits that she was not at all present in the clinic and it is needless to say in the operation theatre at the said time and similarly opponent No.6 of the notice was neither a member of the surgical team nor had any role to play in the surgery and she is arraigned in the complaint with ulterior motive and to put pressure on other opponents.<br /> <br /> h) The team of Doctors named in this objection statement is highly qualified and experienced and the Surgery was conducted with all care and caution and there was no negligence on their part at any point of time.<br /> <br /> i) The opponents submit that one by name Smt. Stella lodged a police complaint and made all efforts with political influence and through self-styled leaders and after enquiry it was concluded by police that the complaint has no substance and having failed to make unlawful gain through other ways the present complaint has been filed before this Forum.”<br /> <br /> 6. The complainant filed his affidavit by way of evidence and he also filed the affidavits of four witnesses. Those witnesses are mother and sister of complainant and mother and aunt of deceased Smt. Geethalakshmi. The complainant produced certain documents. OP.2 filed her affidavit by way of examination-in-chief. She was cross-examined with permission. OP.2 filed zerox copies of case sheet, operation notes, nurse’s notes and death summary at exhibit R-1 to R-4.<br /> <br /> The complainant filed written arguments and Learned Counsel for OPs addressed arguments and also filed affidavit of OP.2 by way of written arguments. In view of the controversies involved in the case, we think as against OP.3 to 6 there is any case worth to be considered. Therefore we proceed to consider whether there is any professional negligence on the part of OP.2. <br /> <br /> 7. The following points arise for our consideration: <br /> <br /> Point No.1: Whether the complainant has proved that the death<br /> of his wife Smt. Geethalakshmi was due to the medical<br /> negligence of OP.2, Dr. Loganayagi?<br /> <br /> Point No.2: If point no.1 is held in affirmative, to which <br /> reliefs the complainant is entitled to?<br /> <br /> Point No.3: To what order?<br /> <br /> 8. After considering the records and evidence and submissions of parties our findings on the above points are as follows:<br /> Point No.1: The material facts as can be seen from the case sheet and operations notes may be summed up as follows: Smt. Geethalakshmi was aged about 23 years and moderately built and nourished. She completed gestation period. She felt some pain in abdomen at 8.00 a.m. on 04.11.2007. OP.2 advised certain preliminary lab tests and at 2.00 p.m. admitted her in Dinesh Maternity Home. The true labour pain started by that time. The required injections and medicines were administered by OP.2. There was no expected labour progress till 4.15 a.m. on 05.11.2007. Then OP.2 claims to have informed the relatives regarding the condition of patient and claims to have suggested for LSCS and claims that relatives agreed for LSCS and soon thereafter she informed OP.3 and OP.4 to be present for conducting LSCS. At about 4.30 p.m. OP.3 and OP.4 reached the Maternity Home. OP.4 Anesthetist examined the patient and noted in the pre-anesthetist examination notes that high risk involved was explained and instructed to prepare the part and to inject the required injections noted by him and also instructed to take consent of the patient. At 5.15 a.m. he administered local anesthesia. Thereafter OP.2 conducted LSCS and at about 5.40 a.m. an alive male big baby with thrice cord around the neck was extracted from the uterus and cord clamped placenta removed completely. Baby cried soon after the extraction. Suture of the Ist layer of the uterus was done. At 5.40 a.m. while suturing the IInd layer of uterus patient became breathless and started sweating profusely and complained of chest pain. Anesthetist requested OP.3 surgeon to assist for cardio monitoring of patient. Intubation was done, manual ventilation started with oxygen continued but patient did not respond to the above treatments. The heart sound muffled and ceased at 6.10 a.m. Pupils dilated and fixed and pulse not felt and cardiac S1, S2 not heard. The patient was declared dead at 6.15 a.m. on 05.11.2007 due to cardiac arrest. Some medicines were also administered during this period. <br /> <br /> The complainant and his witnesses have reiterated the exact allegations made in the complaint, in their affidavits and it is replica of complaint. Therefore we can say that the material ground alleged by complainant is that the Maternity Home was not sufficiently equipped to deal with caesarean cases and that they were not informed to shift the patient to better equipped hospitals which were available at K.G.F or its vicinity. <br /> <br /> In the cross-examination of OP.2 it is made out that she retired after 30 years of Government service in 2004 and she was specialized in OBG and Laparoscopic Sterilization Operation and also conducted thousands of LSCS during her service. She started Dinesh Maternity Home & General Clinic in January 2007 at K.G.F. She was the only qualified Doctor in the Nursing Home and she had not appointed any full time or part time Physician. At that relevant time there were two nurses in that Maternity Home. <br /> <br /> OP.2 admitted that in her Nursing Home there was no facility to store blood or of any lab to conduct blood test, X-ray, ECG and scanning. She admitted there was no instance of blood transfusion to any patient till that time in her Maternity Home, she also admitted that before conducting surgery in this case she had not arranged for AB + ve blood which was the blood group of the patient. She admitted that she had not ascertained before surgery whether AB+ve blood was available in the nearby Blood Bank. She also admitted that she had not obtained the opinion of Cardiologist before conducting surgery. She denied the suggestion that there was no oxygen facility in the OT and that she made an effort to get oxygen cylinder in the middle of operation from Chetana Nursing Home situated opposite to her Nursing Home. <br /> <br /> Nearly 14 hours had lapsed before deciding to conduct LSCS, there was no labour progress as expected and foetal distress had begun. OP.2 has admitted that she had not taken consent of the patient or her relatives in writing before LSCS. She stated that at the time of admission she had taken consent of the patient and her husband and she volunteered that the said consent was sufficient even for conducting LSCS. In her affidavit by way of written argument she stated that cardiac arrest can occur in any type of medical intervention and in this case cardiac arrest during the process of surgery had occurred. <br /> <br /> From the above facts and circumstances we have to decide whether it was the duty of OP.2 to explain the risk involved and to ask whether they were willing to shift the patient to better equipped hospital in K.G.F or in its vicinity. It is not contended by OP.2 that there was no well equipped hospital in K.G.F or in its vicinity. On the other hand the submission for Counsel for complainant that there are well equipped hospitals in K.G.F and in its vicinity is not denied. <br /> <br /> A cesarean is usually a life threatening medical procedure. Therefore we think before conducting caesarean as is the case of all surgical procedures, the patient’s informed consent in writing must be obtained. In the present case, consent was obtained at the time of admission itself for conducting normal labour and in case of no progress in normal labour for conducting LSCS. We think taking such consent at the time of admission for causing normal delivery and in case there was no progress to conduct caesarean was not proper. The consent should have been separately obtained before proceeding to conduct LSCS. It appears as local anesthesia was administered to patient, her consent should have been taken. If for any reason the patient was not able to give her consent the consent of her husband should have been taken. The Anesthetist had also instructed to take the consent of the patient after his examination. This also suggests that the consent should have been obtained before conducting LSCS. <br /> <br /> The expected risks in caesarean are severe blood loss which may require a blood transfusion and cardiac arrest as stated by OP.2 herself. For handling these imminent complications, the Maternity Home of OP.2 lacked basic amenities. This was not an elective caesarean option, but an emergency surgery. Therefore we feel in the given circumstances, OP.2 should have advised well in time to take the patient to better equipped Nursing Home for ceaserean. If the patient or her relatives had pleaded their inability, then it was a different story. From the records and evidence, we believe that such step was not taken by OP.2. This amounted to professional negligence. Therefore we hold point No.1 in affirmative. <br /> <br /> Point No.2: The deceased was aged about 23 years. The male baby is alive and it is now with complainant. Considering the facts and circumstances we think a compensation of Rs.2,50,000/- may be awarded to complainant and his minor son for the death of Smt. Geethalakshmi.<br /> <br /> Point No.3: Hence we pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is allowed with costs of Rs.1,000/-. OP.2 Dr. Loganayagi is directed to pay Rs.2,50,000/- (rupees two lakh and fifty thousand) to complainant with interest at 6% p.a. from the date of complaint till the date of payment towards compensation, within 30 days from the date of this order. <br /> <br /> Out of the compensation payable 50% shall be deposited in any Nationalized Bank in the name of minor son of complainant born to Smt. Geethalakshmi till the minor son attains majority with liberty to draw interest by complainant from time to time. <br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 27th day of April 2010.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br />