DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad – 678001, Kerala

Dated this the 14^th June, 2010

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

CC.No.282/1999

Subaida,

W/o.Jabbar,

Thankayathil House,

Kunnappally(P.O),

Kunnappally. - Complainant

(By Adv.K.Balachandran & K.K.Suresh Lal)

Vs

1. Dr.Nayan Thara,

Gynaecologist,

Al-Shifa Hospital,

Perinthalmanna.

(By Adv.P.M.Bhaskaran Nair)

2. M/s.Al-Shifa Hospital,

Kakooth,

Ootty Road,

Perinthalmanna. - Opposite parties

(By Adv.P.M.Bhaskaran Nair & Sunil.V.N)

O R D E R

By Smt.Seena.H, President

Case of the complainant in brief:-

Complainant during her early stage of second pregnancy approached the 2^nd opposite party hospital of which the 1^st opposite party was the gynaecologist. During the advanced stage of pregnancy, 1^st opposite party assured normal delivery. 26/01/1994 was fixed as the most expected date of delivery. On 31/01/1994, she was admitted in the 2^nd opposite party hospital. Thereafter labour was induced with the application of cervi prime. Pitocin drip was also administered due to which complainant developed allergy and pulses also became feeble. 1^st opposite party immediately conducted delivery by the use of forceps. Suddenly complainant became very weak, there was a fall of BP and severe bleeding.

Complainant alleges that neither the 1^st opposite party nor any other gynaecologist was present at the time of administration of pitocin drip. According to her the said complications aroused due to excessive dosage of pitocin drip and want of proper care and observation by the 1^st opposite party. Complainant further submitted that the nursing staff has not discontinued the pitocin drip for want of proper advice. The 1^st opposite party reached hospital only after 15 to 20 minutes.

During the ante natal check up, the blood grouping of the complainant was done by the 1^st opposite party and group was detected as O+ve. Complainant's husband arranged persons with O+ve blood group to meet any emergency. But during bleeding when blood was sent for cross matching to arrange for transfusion, it was reported that the complainant is having AB+ve blood group. Complainant submitted that her relatives found it very difficult to arrange donors. This also caused so much worries to the family. Further for want of AB+ve blood group, the 1^st opposite party transfused one pound of AB-ve blood and 3 bottles of B-ve blood to the complainant. Complainant submitted that 1^st opposite party was so negligent in discharging the duty of care expected from a Doctor. It was only due to forceps delivery, the complainant's uterus ruptured and subsequently removed. Complainant alleges that removal of uterus at the age of 24 was forced to be done only due to the recklessness and want of proper care on the part of opposite parties.

Due to the above stated complications, the child developed asphyxia, neonatal convulsion and birth palsy. The child was immediately taken to Medical College Hospital, Calicut where the child was admitted for 4 days and thereafter for a periodical check up every week for 3 months.

Complainant claims a total amount of Rs.3,00,250/- as compensation under different heads.

Both opposite parties filed version contending the following.

1^st opposite party admitted that the complainant used to consult her for prenatal check up and advice. The expected date of delivery was calculated as per the accepted way as 25^th January, 1994. 1^st opposite party further submits that the complainant's periodical antenatal check up did not reveal anything abnormal regarding the position, its growth or blood pressure of the mother and other parameter. According to 1^st opposite party it is incorrect to say that she assured normal delivery because it is humanly impossible since complications may arise at any point of time which is a fact accepted by medical science. The course of labour of a pregnant woman can never be predicted by any obstetrician. 1^st opposite party further admits that the complainant reported on 25/01/94 and on examination, it was found that she was not in labour and was adviced to report on 29/01/94 giving her a few more days for the natural process of labour to act as it is usually done. Again she reported back on 29/01/94 and was instructed to get admitted on 31/01/94 and she got admitted on 31/01/94. On 31/01/94 since there was no pain and since further prolongation would sometimes cause foetal distress, it was decided to induce labour. Accordingly cervi prime was applied at about 1 p.m and she went into labour at about 2 p.m. The 1^st opposite party remained with the patient for periodical assessment and at about 3.15 p.m, the patient developed labour very slowly. 1^st opposite party went home for lunch at about 3.30 p.m instructing the staff nurse to inform the progress of labour periodically leaving the complainant under the supervision of the casualty Resident Medical Officer. At about 4.20 p.m the staff nurse telephoned and informed the 1^st opposite party that the patient has not developed effective pain, considering the rate she has shown initially though the cervix was fully dilated. 1^st opposite party rushed to the hospital after instructing the staff nurse to be ready for a pitocin drip to be administered. The pitocin drip of 2.5 units of pitocin in 5% dextrose of 500 ml was started to hasten labour in the

presence of 1^st opposite party. The patient developed allergic reaction within a few seconds and the pitocin drip was immediately stopped and antidote was given. At that point of time 1^st opposite party detected foetal distress, which necessitated forceps delivery which was strongly indicated and was the only method recommended according to the scientific management. The baby was delivered at 4.42 p.m. The baby was referred to a paediatrician as it had mild asphyxia. The mother was taken care of and the BP was normal and the allergic reaction was controlled. As everything was normal, 1^st opposite party left home at 5.15 p.m. At about 5.45 p.m it was informed from the hospital that the patient had bleeding and was being attended by the casualty RMO as well as the anesthetist. 1^st opposite party immediately rushed to the hospital and found that the casualty RMO as well as anesthetist were in the labour room. Emergency care were administered with dopamine drip on flow, but bleeding continued intermittently with uterus becoming flabby and BP remained as low as 70 systole. While the resuscitative measures were being continued, injections methergin and prostaglandin to control bleeding was repeated. The condition of the patient was monitored and meanwhile her blood sample was sent for cross matching to arrange for blood transfusion in case it is necessitated. 1^st opposite party submits that till that point of time a condition for blood transfusion was not in existence, which was the sole reason for not subjecting her blood for cross matching. Further it was reported by the patient as well as her husband who is a medical representative that this was her second pregnancy and her blood was found to be AB+ve when examined at the time of 1^st delivery. But at the time of emergency 1^st opposite party has not acted upon the oral version of the complainant. The patient's blood was sent for grouping and cross matching without leaving any room for any sort of negligence. The blood after grouping was found to be AB-ve. Since AB-ve blood group was not available, one of the staff nurse named Shareefa volunteered to donate blood to save the life of the patient. After that two more bottles of AB-ve and one bottle of B-ve group of blood was

also transfused during and after hysterectomy. 1^st opposite party submits that B-ve group of blood can safely be administered to an AB-ve woman if the specific group is not available. 1^st opposite party denies the say of the complainant that blood grouping was done by the 1^st opposite party and was detected O+ve. Further submits that 1^st opposite party has never inscribed anywhere that the blood group of the complainant as O+ve. It is also incorrect on the part of complainant to say that all the three bottles of blood transfused was B-ve though it can be safely administered on AB-ve woman.

1^st opposite party submits that though matching blood group was transfused to the patient, the condition remained bad and uterus relaxed intermittently causing profused bleeding. This condition was risky to the life of the patient. When the conservative method of the treatment failed to stop the bleeding and improve the condition of patient and since BP remained low, the only life saving method was to do an immediate hysterectomy. At that point of time the condition of the patient was such that her life can only be saved at the expense of her uterus. The fact was explained to her husband and to her near relatives. Hysterectomy was done on the patient after getting her written consent and the uterus removed was sent for hysto-pathological examination. 1^st opposite party submits that later it was informed that the husband of the applicant took away the specimen stating that he will get it examined at his own discretion. From 5.45 p.m on 31/01/94 till 3 a.m on 01/02/94, 1^st opposite party was with the patient monitoring the condition thoroughly. Only when it was satisfied that the condition of the patient improved and remained stable she returned home.

1^st opposite party submits that the complexity of the human body and its response to drugs is such that nobody can predict its outcome since medical science has not reached a stage of perfection. Though pitocin is usually not allergic, it is a fact that any drug including

pitocin, distilled water etc. can some times promote allergic reaction to an individual due to the peculiar behavior of human body to extraneous agents. 1^st opposite party denies the say of the complainant that forceps delivery has resulted in the rupture of the uterus of the complainant. Forceps delivery was the only way out to save the life of the patient at that time. Complications developed are not due to the negligence or want of proper care on the part of opposite parties.

1^st opposite party also denies the say of the complainant that the complications developed during delivery has resulted in the child developing asphyxia, neonatal convulsion and birth palsy. After delivery the child was shifted to the nursery under the close observation of the paediatrician attached to 2^nd opposite party and remained there till 8^th February, 1994. The child was steadily improving and the complications seen earlier subsided. On 8/2/94 the complainant's husband got the baby discharged saying that he wanted to take the baby to Medical College Hospital for expert management. Complainant was discharged on 11/02/94 with advice to report after 2 weeks for review which she did not comply.

According to opposite party No.1 there is no negligence on her part in rendering treatment to the complainant. The claims put forward by the complainant under different heads is baseless and without any bonafides and hence prays for dismissal of the complaint.

2^nd opposite party which is the hospital has contented that the complainant was under the care and treatment of 1^st opposite party who is an experienced obstetrician. Further submits that the institution has never reported the complainant's blood group as O+ve. Further contentions are in tune with that of 1^st opposite party.

Evidence adduced by the parties consists of their respective affidavits. Exts.A1 to A7 marked on the side of the complainant and oral evidence of PW1 to PW4. Ext.B1 to B6 marked on the side of opposite parties. DW1 and DW2 adduced oral evidence. Further an expert in the relevant field was examined as CW. Exts.C1 to C3 were also marked.

Now the issues for consideration are;

1. Whether there is any deficiency in service on the part of opposite parties?

2. If so, what is the relief and cost complainant entitled to?

The case in hand was originally numbered as OP No.89/1995 in the file of District Forum, Malappuram. The said forum dismissed the complaint on 20/01/1996. An appeal was preferred against the said order with the Hon'ble State Commission. The ground for appeal as stated by the complainant was that the District Forum rejected the prayer of the complainant to adduce expert evidence for the reason that it was a belated application after closing evidence. The Hon'ble Commission without going into the merits of the case has set aside the order and remitted back the matter to District Forum, Malappuram with a direction to give opportunity to the complainant to render expert evidence. Accordingly expert in the relevant field has tendered evidence. Subsequently a Transfer OP No.7/1998 was preferred by the complainant stating that the complainant has lost faith in the District Forum as he feels that he may not get justice as the forum refused the prayer of the complainant for short adjournment for hearing. The Hon'ble State Commission vide order dt.25/11/1998 has withdrawn the case from the file of District Forum, Malappuram and has transferred it to the file of District Forum, Palakkad. After transferring the case to this forum it was renumbered as CC No.282/1999. Complainant filed IA for production of registration certificate and qualification certificate of the opposite party. Application was allowed and was posted for the production of the documents. At this juncture opposite

parties has produced order of the Hon'ble High Court dt.21/10/1999 staying further proceedings. Stay ordered in the year 1999 continued for nearly 5 years when it was finally vacated on 14/03/2005. Our predecessor finally heard the matter on 17/1/2008 and it was posted for orders on 15/2/08. Thereafter the tenure of the Members of the forum was terminated and the case was adjourned for want of quorum. The present Members has finally reheard the matter and has taken for orders.

The sum of the allegations of medical negligence assailed by the complainant are as under.

1. Though it was not specifically pleaded in the complaint, after the case was transferred to this forum, complainant raised a contention that the 1^st opposite party Doctor does not possess the requisite qualification to undertake the case and therefore has committed medical negligence.

2. It is alleged that for inducing labour, 1^st opposite party administered cervi prime and also pitocin drip. That within a few seconds of giving pitocin drip, complainant developed allergy to pitocin. That the 1^st opposite party was not present at the time of administration of pitocin. There was no other Doctors to attend the complainant. That the said complication aroused due to the excessive dosage of pitocin and for want of proper care and observation on the part of 1^st opposite party.

3. That when the complainant developed complication, in order to effect delivery immediately 1^st opposite party applied forceps. That due to the application of forceps, the uterus of the complainant ruptured, resulting in profused bleeding and finally removal of uterus. That the application of forceps was wrong and the 1^st opposite party ought to have adopted the method of caesarean section for delivery in the given situation.

4. That due to the above said complications, the child developed asphyxia, neonatal convulsion and birth palsy. The child had to be taken to Medical College Hospital, Calicut and had to be treated there for four days. Further the child had to continue treatment there for which complainant incurred monetary expenses.

5. That the blood group of the complainant was checked by the 1^st opposite party during ante natal period and was stated as O+ve. At the time of delivery, there was profused bleeding and blood transfusion was adviced. Before such transfusion when the blood group was checked it was stated as AB-ve. Later at the time of transfusion, AB-ve blood and B-ve blood was transfused stating that the blood group was AB-ve. That the complainant family were put to much hardship as they could not arrange the blood donors at such a short notice. That the said situation arouse only due to the lack of care on the part of 1^st opposite party in checking the blood group of the complainant.

Refuting these allegations, the submissions made on behalf of opposite parties are as under.

1. That the 1^st opposite party is fully qualified to undertake the case of the complainant and there is no medical negligence on that account.

2. That cervi prime was administered for inducing labour since there was no pain and further prolongation of delivery would lead to foetal distress. That 1^st opposite party has left home at 3.30 p.m instructing the staff nurse to inform the progress of labour leaving the complainant under the supervision of casualty RMO. That receiving a telephonic information from the staff nurse that the complainant has not developed effective pain, 1^st opposite party rushed to the hospital instructing the staff nurse to get ready with a pitocin drip to be administered. The drip was administered in the presence of 1^st opposite party only. That the pitocin drip of 2.5 units of pitocin in 5%

dextrose of 500 ml was administered to hasten labour.

0. That the complainant developed allergic reaction within a few seconds and the pitocin drip was immediately stopped and antidote was given. That at that point of time 1^st opposite party detected foetal distress which necessitated forceps delivery which was strongly indicated and the only method recommended according to scientific management. That inspite of proper medication and blood transfusion, bleeding continued intermittently with uterus becoming flabby and BP remaining very low as 70 systole. That the condition of the patient remained bad and uterus relaxed intermittently causing profused bleeding. That the said condition was risky to the life of the patient. That when the conservative method of the treatment failed to stop the bleeding and improve the condition of the patient, the only life saving method was to do an immediate hysterectomy. That at that point of time the condition of the patient was such that her life can only be saved at the expense of her uterus. That hysterectomy was done after getting the written consent of the patient. That the uterus removed was sent for hysto-pathological examination, but later it was informed that the husband of the applicant that he will get it examined at his own discretion.

1. That the baby was delivered at 4.42 p.m and was referred to a paediatrician attached to 2^nd opposite party hospital. That the child remained there till 8^th February, 1994. That the child was steadily improving and the complication seen earlier subsided. That on 8/02/1994, complainant's husband got the baby discharged saying that he wanted to take the baby to Medical College Hospital, Calicut for expert management.

2. That the 1^st opposite party has never inscribed any where that the blood group of the complainant was O+ve. That the patient as well as her husband who is a medical representative stated that it was her second pregnancy and her blood group was

found to be AB+ve when examined at the time of 1^st delivery. That till that point of time a condition for blood transfusion was not in existence which was the sole reason for not subjecting her blood for cross matching. That at the time of emergency 1^st opposite party has not acted upon the oral version of the complainant. That the patients blood was sent for grouping and cross matching without leaving any room for any sort of negligence. That the blood after grouping was found to be AB-ve. That since AB-ve blood group was not available, 2 bottles of AB-ve and 1 bottle of B-ve blood was transfused. It is submitted by the 1^st opposite party that one of the staff nurse even volunteered to donate blood considering the emergency situation. 1^st opposite party further submitted that B-ve group of blood can safely be administered to an AB-ve group person.

From the above rival submissions, the foremost point that stood for analysis is whether 1^st opposite party possess the requisite qualification, skill and experience for treating the complainant.

The complainant has filed IA No.90/06 to call for the documents from the 1^st opposite party. As per order in said IA, 1^st opposite party produced Registration certificate, certificate of diploma in gynaecology and certificate issued by Osmania University, Hyderabad for MBBS degree and is marked as Ext.C1 to C3. On perusal of the said documents it is evident that the 1^st opposite party is qualified to undertake the case of the complainant. It was argued on behalf of the complainant that the 1^st opposite party has not obtained registration to practice in Kerala and therefore was unqualified at the time when 1^st opposite party treated the complainant. On perusal of the evidence on record it is seen that the 1^st opposite party has obtained registration from Travancore-Cochin Council of Modern Medicine in the year 1999. The incident of this case happened on 31/01/1994. It is

true that registration was obtained much later. But we are of the view that any such lack of registration will only amount to violation of the provisions of Travancore-Cochin Medical Practitioners' Act and will not take away the qualification and skill acquired by the 1^st opposite party. For these reasons, we hold the view that 1^st opposite party is fully qualified to undertake the case of the complainant and there is no medical negligence on this account.

The other allegation is regarding the excessive dosage of pitocin administered and the absence of 1^st opposite party at the time of administration of pitocin. Opposite party has contented that she was very well present at the time of administration of pitocin and no excessive dosage of pitocin was administered.

From Ext.B1, case sheet, it is evident that the pitocin drip was started at 4.30 p.m and within 5 minutes due to the allergic reactions it was stopped at 4.35 p.m. Complainant has no case that Ext.B1 is not a genuine document. The same is corroborated by the oral evidence of DW1 that “around 4.15 to 4.20 p.m I got telephone call and I came to the hospital and examined the complainant and found that there was full dilation of cervix, but as the pain was not strong enough, I instructed the staff to make pitocin drip, another drug to increase pain”. DW2, the Resident Medical Officer has also corroborated the evidence of DW1. PW1 also has deposed in the cross examination that 1^st opposite party returned at 4.30 p.m. PW3 examined to corroborate the evidence of PW1, deposed that the 1^st opposite party returned at 4.30 p.m and he heard a nurse saying that complainant developed allergy at about 4.15 p.m. Going through the evidence both oral and documentary, we are of the view that the documentary evidence has to be relied on and we find that pitocin drip was administered in the presence and under the direction of 1^st opposite party. Further regarding over dosage, 1^st opposite party has stated that 2.5 units of pitocin in 5% dextrose

of 500 ml was started to induce labour. In order to find out whether the dose administered is excess, we need to have a look at the deposition of the expert witness. Expert witness has deposed that usually for augmentation of labour 2.5 to 5 units of pitocin is added to a drip containing 500 ml of 5% dextrose or normal saline. It is also further added that “if it does not have effect by 15-20 minutes, the doze is increased. It is also stated that the reaction of allergy to pitocin need not be due to a large doze. It can be even with a trace of any drug”. It is seen recorded in Ext.B1 that the pitocin was started at 4.30 p.m and within 5 minutes at 4.35 p.m it was stopped. In view of the specific findings we are of the view that complications was not due to the over dosage of pitocin.

The learned counsel for the complainant has argued for the position that 1^st opposite party instead of adopting caesarean to effect immediate delivery has adopted instrumental

delivery by forceps which has resulted in the complications. It is explained by DW1 that in the given situation the ideal method was the use of forceps. The evidence of the expert in this regards is as under:

“cervix must be fully dilated before application of forceps”. Further deposed that when the cervix is at 4/5 stage it cannot be said to be fully dilated. It is also further stated that “in the genuine case because of urgency when the cervix is around the head as a rim, it is possible to push up the rim and apply forceps”.

During cross examination, expert deposed that “after administration of pitocin, the patient is seen developed complication such as edima of the face, puffiness of eye lids, falling of BP increased pulse rate, slowing foetel heart rate etc. In this condition to expedite delivery for saving the baby, any method for delivering the baby has to be done. In these circumstances for preparing caesarean and effecting delivery half an hour minimum is necessary. The condition of the baby may worse in this time. Under the above

circumstance delivery forceps can also be justified.

The evidence of expert will substantiate the contention of 1^st opposite party that forceps was not a wrong option and that opting caesarean could have worsened the situation. It is a settled position of law that a Doctor adopting one of the different methods for treatment cannot be said to be deficiency in service.

From the above discussions and evidence we do not find any substance to conclude that the application of forceps was negligent.

It is also contented by the complainant that application of forceps caused injury to uterus and resulted in bleeding where as the expert has categorically deposed that in the present case it is not traumatic bleeding and is atonic bleeding. Traumatic bleeding can be due to injury to vagina, injury to cervix or rupture of uterus. Hysterectomy was done only after attempting to manage the bleeding by blood transfusion. At this juncture it has also to be stated that opposite party contends that the husband of complainant has taken the specimen of uterus which was removed on assurance that he would sent it for histo-pathology report. Complainant does not dispute that he has not taken the sample from the hospital. But the histo-pathology report is not placed before us. Such report if placed should have certainly thrown light to the truth if any of the contentions raised by the complainant. We can draw adverse inference against the complainant for not producing the report. On these grounds we are not able to reach the conclusion that there is negligence in application of forceps or doing the hysterectomy.

It is an allegation of the complainant that during ante natal check up of complainant, the blood group was tested and reported by 1^st opposite party as O+ve. But

later it was stated to be AB+ve and at the time of blood transfusion after cross matching it was informed to be AB-ve. AB-ve blood and B-ve blood was given for blood transfusion. That the act of opposite parties in stating various groups and not properly confirming the blood group prior to delivery is negligence. This allegation is contented by the opposite parties denying that it was never stated by opposite parties that the blood group of the complainant was O+ve. AB+ve group was endorsed as the complainant and her husband stated that it was checked during 1^st delivery. But it can be seen that before doing blood transfusion, 1^st opposite party did not rely upon this oral statement but did the blood grouping test and got it confirmed as AB-ve. On perusal of Ext.B1, case sheet, page 3 that the blood group of the complainant is seen recorded as AB+ve. But it is clear that the blood group was checked and confirmed prior to transfusion as is evident from Ext.B4 & B5. Hence there was no negligence on their part. O+ve seen entered in discharge card (Ext.A1) does not inspire our confidence because it is entered in such a place where there is no specific column for the same.

Considering the pleadings, evidence on records and the arguments of respective learned counsels, we are of the view that complainant failed to prove deficiency in service on the part of opposite parties.

In the result complaint dismissed.

Pronounced in the open court on this the 14^th day of June, 2010

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Appendix

Date of filing: 04/08/1999

Witnesses examined on the side of complainant

PW1 – Smt.Subaida

PW2 – Shri.R.Dinesh

PW3 – Shri.Mujeeb Rahman

PW4 - Shri.Abdul Jabbar

Witnesses examined on the side of opposite parties

DW1 – Dr.Nayanthara

DW2 – Dr.Fathima Shehanaz

Dr.Sekharan was examined as CW1

Exhibits marked on the side of complainant

Ext.A1 – Discharge summary

Ext.A2 – Laboratory report

Ext.A3 – Patient's name index card

Ext.A4 – Referal OP ticket of Medical College Hospital, Calicut

Ext.A5 – Copy of lawyer notice dt.3/9/94 with postal receipt, acknowledgment etc.

Ext.A6 – Reply notice

Ext.A7 – Reply notice from 2^nd opposite party to complainant

Exhibits marked on the side of opposite parties

Ext.B1 – Case sheet

Ext.B2 – Case file of the child

Ext.B3 – Salary Register

Ext.B3a – Page of Salary Register in respect of Dr.Fathima Shehanaz

Ext.B4 – Conduct certificate

Ext.B5 – Slip stating blood group of the complainant as AB-ve

Ext.B6 – Blood bank report

Ext.C1 – Registration Certificate

Ext.C2 – Certificate of diploma in gynaecology from College of Physicians and Surgery,

Bombay

Ext.C3 – Certificate issued by Osmania University, Hyderabad