THE DISTRICT CONSUMAR DISPUTES REDRESSAL FORUM No.419, Ist Floor,. H.N. Gowda Building, M.B.Road, Kolar-563101 consumer case(CC) No. CC/07/285
Lakshmamma
...........Appellant(s)
Vs.
Dr.Paul
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 14.11.2007 Disposed on 06.08.2009 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 06th day of August 2009 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 285/2007 Between: Smt. Lakshmamma, W/o. late Thirumalappa, Aged about 55 years, House Wife, R/o. Ambedkarnagar, Srinivaspur Town, Kolar District. (By Advocate Sri. C. Kodandappa and Others) .Complainant V/S 1. Dr. Paul, ENT Specialist, ETCM Hospital, Kolar. 2. Dr. Rajdas, Superintendent, ETCM Hospital, Kolar. (By Advocate Sri. N. Ramachandraiah) .Opposite Parties ORDERS This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to pay compensation of Rs.15,00,000/- for the death of complainants daughter Smt. K.T. Lakshmi Devi due to the medical negligence of OPs with costs, interest, etc., 2. The material facts of complainants case may be stated as follows: The complainants daughter Smt. K.T. Lakshmi Devi aged about 25 years was admitted to E.T.C.M Hospital, Kolar on 27.10.2006 at 6.30 a.m. for delivery of child. At about 7.30 a.m. OP.1 took Smt. K.T. Lakshmi Devi to operation theatre and conducted C section and a female baby was taken out from her womb and also tubectomy was conducted. Thereafter she was brought to maternity ward and after some time she gained consciousness. A pipe was introduced to her to pass urine. But her abdomen was swollen and she was crying due to pain. At that time the complainant, and her son and her daughter-in-law approached OPs and requested to take care of her daughter. But the OPs had not given required medical attention and showed gross negligence. At the same time the first OP directed the complainant to get some medicines and other materials from the medical shop. Accordingly the complainant brought those medicines and materials worth Rs.15,000/-. Inspite of that OP.1 did not take care of the patient and totally neglected to give proper treatment. Further the OP.1 asked the complainant to supply blood for giving it to patient, but the complainant being aged women could not donate blood. OP.1 informed complainant to get the blood from other sources. Then the complainant arranged the blood. Evenafter two days the condition of Smt. K.T. Lakshmi Devi did not improve and through out the period her condition was serious. The OPs failed to take care of her and failed to give proper and required treatment, thereby her health condition totally deteriorated. At that stage the OPs wanted to shirk their responsibility and directed the complainant and her son to shift Smt. K.T. Lakshmi Devi to St. Johns Hospital, Bangalore. But the complainant and her son were afraid to take her to Bangalore as there was no proper conveyance. Due to the serious and critical condition of Smt. K.T. Lakshmi Devi, the complainant and her son took her to R.L. Jalappa Hospital, Tamaka, Kolar on 01.11.2006 at 12.30 p.m. which was near to E.T.C.M. Hospital. The Doctors at R.L. Jalappa Hospital admitted Smt. K.T. Lakshmi Devi in ICU and informed that the condition of patient was serious. Smt. K.T. Lakshmi Devi died at 4.30 p.m. on the same day while being treated. The death of Smt. K.T. Lakshmi Devi was solely due to the negligence and carelessness of both OPs. The OP.1 is only an ENT Specialist who is not eligible to conduct C section on the pregnant women with tubectomy. The OPs did not refer Smt. K.T. Lakshmi Devi to qualified Gynecologist. OP.1 is also not eligible to administer anesthesia during surgery, but he himself gave anesthesia to Smt. K.T. Lakshmi Devi. The OPs were aware that there was no blood bank in their Hospital. OP.1 had done scanning without the help of Radiologist. These short comings of OPs led to the death of Smt. K.T. Lakshmi Devi. OP.2 did not properly manage the affairs of E.T.C.M. Hospital and thereby he was also responsible for the death of Smt. K.T. Lakshmi Devi. Thereafter the complainant and her relatives moved their grievances to different authorities for necessary action against OPs. The then D.C. Kolar referred the matter to District Surgeon, S.N.R. Hospital to find out the cause of death of Smt. K.T. Lakshmi Devi. Dr. Ravi Halakatti, D.S. of S.N.R Hospital, Kolar conducted enquiry and submitted his report giving his finding that the death of Smt. K.T. Lakshmi Devi was due to professional negligence of both OPs. The complainant being the mother of deceased Smt. K.T. Lakshmi Devi, has to take care of the female baby now born and also another son of Smt. K.T. Lakshmi Devi born earlier, as there are no other persons to take care of them. G. Sadashiv the husband of deceased Smt. K.T. Lakshmi Devi had deserted her during second pregnancy. The complainant is suffering physically and mentally due to the death of her daughter Smt. K.T. Lakshmi Devi. Therefore she filed the complaint claiming compensation of Rs.15,00,000/-. 3. The OPs appeared in response to notices issued to them. OP.1 filed the version. OP.2 adopted the version of OP.1. The admission of Smt. K.T. Lakshmi Devi in E.T.C.M. Hospital, Kolar on 27.10.2006 for delivery was admitted. The rest of the allegations made against OPs alleging professional negligence are denied. The defence of OP.1 is as follows: That the E.T.C.M. Hospital is a private Hospital and the Deputy Commissioner of Kolar has no jurisdiction to order for enquiry regarding the alleged professional negligence and that the enquiry conducted by Dr. Ravi Halakatti was one sided, biased and not based on true facts and no opportunity was given to OPs to put forth their case and everything was done behind their back, in connivance with persons who were on enmity towards their Hospital with a view to tarnish their image in public. It is contended that the OPs are professionally competent and well equipped to handle any situation in the medical field and they have handled the similar situations many times with ease and efficiency. Similarly the OPs have handled the patient Smt. K.T. Lakshmi Devi with utmost care and professional efficiency. In fact by seeing the critical condition of the patient on account of earlier C section and low blood level of 4 grams against normal level of 10 grams, immediate surgery was needed and it was a must and the OPs advised the complainant to go to Rl. Jalappa Hospital, Tamaka, Kolar (SDUMC), but the complainant expressed her inability and helplessness and requested the OPs to admit the patient Smt. K.T. Lakshmi Devi in their hospital only and provide necessary treatment. So, when immediate surgery was a must, consent from the complainant and her relatives were taken and conducted operation. In fact, the operation was successful in saving the baby and mother and the patient responded properly and after operation she had attended to her normal work and went to levorotary and walked in varanda on her own. In spite of their best efforts the patient Smt. K.T. Lakshmi Devi could not survive on account of her earlier C section and low blood level which were disastrous and negative symptoms during pregnancy period. Therefore they contended they were not at all responsible for the death of Smt. K.T. Lakshmi Devi and there was no negligence on their part. The complainant is examined as PW.1. She examined two more witnesses PW.2 Dr. Ravi Halakatti and PW.3 Dr. Sujatha of S.N.R. Hospital, who conducted enquiry regarding the death of Smt. K.T. Lakshmi Devi. Exhibit P.1 original case sheet relating to the treatment of deceased Smt. K.T. Lakshmi Devi maintained in E.T.C.M. Hospital and Exhibit P.2 enquiry file conducted by PW.2 Dr. Ravi Halakatti are marked on behalf of complainant. OP.1 is examined as RW.1. Both parties filed certain documents with list apart from the documents marked at Exhibit P.1 and P.2 during evidence. 4. We heard the arguments advanced by both Learned Counsel for parties. We perused the records and the citations produced by them. 5. From the rival contentions the following points arise for our consideration. 1. Whether the complainant has proved that OP.1 committed professional negligence during the treatment of deceased Smt. K.T. Lakshmi Devi? 2. Whether complainant has proved that OP.2 also committed professional negligence in managing the affairs of E.T.C.M. Hospital? 3. If point No.1 and 2 or any of them are/is held in affirmative to which reliefs the complainant is entitled to? 4. What order? 6. After considering the records and the submissions of the parties our findings on the above points are as follows: Point No.1: Before analyzing the facts of this case the gist of the principles laid down to ascertain medical negligence may be noted: That a doctor is not liable if he takes reasonable care, which a person of his skill and qualifications should take. He is liable only if he is negligent. The duties which a Doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient. The Practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the Law requires. The Doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In a hospital, when a person was ill and came in for treatment, no matter what care was used, there was always a risk; and it would be wrong and bad law to say that simply because a mishap occurred in the hospital the doctors are liable. The jury must not find him negligent simply because one of the risks inherent in an operation actually took place, or because in a matter of opinion, he made an error of judgement. They should find him guilty when he had fallen short of the standard of reasonable care, when he was deserving of censure. Negligence must be established and not presumed. In absence of expert evidence on behalf of complainant, no negligence or deficiency in service could be found against affidavits filed by doctors. 7. The allegations in the complaint that the OPs have not given required attention towards the patient though she was crying with pain and her abdomen was swollen and that evenafter bringing medicines worth Rs.15,000/-, the OPs did not take care of patient and totally neglected her and that evenafter two days though the condition of patient was not improved and she was serious, the OPs failed to take care of her, need not be given much importance. The case sheet relating to the patient clearly discloses that OP.1 as well as other Doctors apart from nurses attended the patient from time to time. It appears such allegations were made out of despair due to the death of complainants daughter. During the cross-examination of RW.1 no such allegation is made against him. Therefore we reject this part of allegations of the complainant. The District Surgeon of S.N.R Hospital, Kolar conducted enquiry and gave his findings to conclude that the death of patient was due to negligence of OPs. In the complaint these findings are stated as grounds for inferring negligence of OPs. PW.3 Dr. Sujatha a gynecologist, accompanied PW.2 Dr. Ravi Halakatti and she gave her findings after considering the case sheet of patient. Her findings are at page-7 of Exhibit P.2 Enquiry File. They are: 1. The surgery (LSCS with tubectomy) done by Dr. Paul who is an ENT Surgeon. 2. Surgery and Anesthesia were done by Dr. Paul at the same time. 3. Surgery done on a severely anemic patient under spinal anesthesia which is contraindicated (spinal anesthesia). 5. Even though no blood bank is there at E.T.C.M Hospital blood was drawn in the same Hospital from the donor and the same was transfused to the patient. 6. Blood transfusion given on 29.10.2006 and only one bottle of whole blood given on a severely anemic patient. Packed cell transfusion was ideal. 7. Scanning done by Dr. Paul himself. 8. Blood sugar level on 01.11.2006 at 8.30 a.m. was 20 mg/dl and 10.30 a.m. 466 mg/dl (after giving 25% dextrose 1 amp. 10% dextrose 1 bottle). The above grounds are almost repeated in the complaint to make out a case of medical negligence. The defence taken with reference to the above grounds by OP.1 in his version and evidence may be stated as follows: That OP.1 did his M.B.B.S degree from B.M.C. Bangalore in the year 1966 and Diploma in E.N.T from Madras University in the year 1971. He claims that he worked in Anesthesiology and General Surgery Department and for many years in E.T.C.M., he was giving anesthesia and also performing operations including caesarean section and he has got vast experience in obstetrics and gynecology (department) and he has conducted number of operations and C section on many patients. OP.1 has contended that considering the seriousness and critical condition of patient he advised the complainant to take the patient to major hospital, but the complainant expressed her helplessness and requested OP.1 to give available treatment in the hospital. Therefore according to him he was bound to attend the patient as C section was urgently needed. It is contended that in the given circumstances giving of whole blood of one bottle was not improper and there was no arrangement for packed cell transfusion in the Hospital. It is contended that OP.1 has experienced in conducting scanning and he was not disqualified for it. He also contended that the C section was successful and the general condition of patient was stable for 4 days till 30.10.2006. Further he contended that when platelets of blood continuously found decreasing, the complainant was explained the risks and bleeding tendencies and need of treatment in major Hospital, but the complainant was not willing to shift the patient due to her financial condition. Therefore he contended that there was no negligence on his part. 8. The patient Smt. K.T. Lakshmi Devi had C section during her first delivery. Nearly after 2-3 years she again became pregnant. Her husband had deserted her when she was carrying three months during her second pregnancy. Thereafter she was with her mother. She had taken prenatal treatment at Srinivaspur Government Hospital. She was brought to E.T.C.M. Hospital on 27.10.2006 at about 6.30 a.m. when she was under labour pain. The first delivery had taken in E.T.C.M Hospital itself. Her mother was residing in Srinivaspur Town which is about 30-35 kms. away from E.T.C.M Hospital, Kolar. OP.1 has stated in his evidence the patient was brought to the hospital with history of labour pain and leaking from vagina from the previous night and she was in severe pain with anemia. Further he stated that seeing the critical condition of the patient he advised the complainant to take the patient to major hospitals, but the complainant expressed her helplessness and requested to give available treatment in the hospital. The complainant contended that no such advice was made, to take the patient to any other major hospital. There is no entry in the case sheet of patient for making such advice on 27.10.2006. The Learned Counsel for complainant submitted that if such advice was made an entry should have been found in the case sheet on 27.10.2006 and in absence of it, the contention of the OP.1 cannot be accepted. However considering the facts as a whole, we think OP.1 has made such advice. It appears as the first delivery was in E.T.C.M. Hospital the complainant must have thought to have the second delivery in the same Hospital. It can be seen that when there was an advice on 30.10.2006 to shift the patient to major hospital, the complainant expressed her helplessness and the patient was allowed to remain in the same Hospital. OP.1 has stated in his statement before Enquiry Officer PW.2 Dr. Ravi Halakatti that he had advised the complainant to take patient to some other major hospital seeing her condition. It appears such contention is not an after thought contention. Therefore even in the absence of an entry in the case sheet we think such advice was made and the complainant insisted for delivery in E.T.C.M. Hospital itself. 9. PW.3 Dr. Sujatha states in her cross-examination, after going through the entries in the case sheet dated 27.10.2006 made at the time of admission that the patient was in high risk pregnancy. She also stated that after C section the general condition of the patient was satisfactory till 30.10.2006 as per the case sheet. The platelet count was 1,85,000 /per cubic millimeter on 27.10.2006, it was reduced to 60,000 /cubic millimeter on 30.10.2006, further it reduced to 45,000/cubic millimeter on 31.10.2006. On seeing the rapid decrease in the platelet count it was advised to shift the patient to major hospital for transfusion of concentrated platelets. The complications arouse on 01.11.2006. The case sheet shows that on 01.11.2006 at 4.45 a.m. there was low B.P. and rising of pulse rate in the patient. The B.P. was 110/70 mm/Hg, pulse rate was 114 per minute and no demonstrable low B.P. recordable, patient was in normal sensorium, respiratory system was clear, cardiac system was normal, abdomen examination revealed that both upper and lower abdomen tenderness but was soft, uterus was palpable and well contracted, bowls sounds was normal. The platelets count was found to be 35,000/per cubic mm. Then Dr. Vivek a Physician advised to shift the patient to major hospital as the platelet counts were dropping and their Hospital did not have any arrangement to transfuse the concentrated platelets. Then the patient was shifted to Rl. Jalappa Hospital at Tamaka, Kolar. In RL. Jalappa Hospital the patient was seen by obstetrician on duty at 12.30 p.m. on 01.11.2006. The observation and treatment shown in case summary of that Hospital is as follows: On examination:- Patient breathless, conscious and restless Severe Pallor present. Pulse 130 beats/min BP 90/60 mm/Hg CVS-S1 S2 (+), Tachyeardia present Respiratory system-Bilateral crepitations present over the lung fields Jaundice present Prolene mattress skin stitches in situ, bowel sounds absent. Genital examination:- Minimal vaginal bleeding present Diagnosis of severe anemia with CCF with lower respiratory tract infection with septicemia shock was made. Patient was started oxygenation & intravenous fluid. Patient was attended by physician on duty at 12.50 pm on 01.11.2006. O/E:- Pulse and BP became unrecordable. Patient started gasping and Endotracheal tube intubation was done & connected to T Piece & O2. Inj. Dopamine 10 ugm/kg/min was started, Inj Augmenting 1.2 mg IV and advised along with 2 pint of packed cell transfusion and patient was shifted to ICU at 1.45 PM on 01.11.2006 and patient attended in ICU by duty anesthesiologist. O/E Patient was with 8.0 cuffed ETT in situ fixed at 22 cm & ambu bag ventilation started. Pulse 130/min BP 92/58 mm/hg SPo2 85 90% RS - ! B/L air entry with B/L crepts CVS S1 S2 heard At 3 pm on 01.11.2006 Patient developed bradycardia Pulse 55b/min BP-not recordable Inj. Atropine 1 amp given At 3:10 pm on 01.11.2006, Pulse not felt BP not recordable ECG Monitor showed flat line Inj. Atropine and Inj. Adrenaline 1 amp each given and CPR was started & continued At 3:20 pm Inj. Atropine & Inj. Adrenaline were repeated once more At 3:30 pm O/E:- Pulse not felt. BP not recordable and pupils dilated and fixed. Inspite of all above measures patient could not be revived & declared dead at 3.30 pm on 01.11.2006. 10. The complainant has not produced the Death Certificate disclosing the cause of death of the patient. Admittedly postmortem of the body was not done to find out the cause of death. The Doctor who treated the patient before death in RL Jalappa Hospital was the competent person to say the cause of death even in the absence of postmortem report to find out the cause of death. Therefore we are not in a position to know the cause of death. The patient has not died on the operation table or soon thereafter. There is no expert evidence that inefficiency in conducting C section lead to further complication which arouse in the patient. The say of PW.3 Dr. Sujatha is that OP.1 was not Specialist in OBG, anesthesia and radiology, thereby the death of patient had occurred. But she does not say the exact reason for the cause of death. She does not say that the further complications which lately found in the patient were the result of inefficiency in conducting surgery. She also states that primarily if the patient was referred to major hospital there were chances of survival of deceased Smt. K.T. Lakshmi Devi. The evidence of PW.2 also does not show the cause of death. He has mainly relied upon the findings of PW.3 Dr. Sujatha to come to the conclusion that OP.1 was not competent to handle the present case. 11. OP.1 has produced documents to show that he obtained Medical Registration Certificate from Madras Medical Council on 11.11.1968 and Certificate of Registration from Mysore Medical Council on 18.09.1967. These Certificates show that the person registered is legally qualified for the practice of Medicine, Surgery and Midwifery. OP.1 had passed M.B.B.S in 1966 and he was holding Post-graduate Diploma in April 1971 in ENT. He produced documents to show that he worked in the Department of Anesthesiology, Ophthalmology and General Surgery. He produced the list of cases from 2003 in which he conducted LSCS + tubectomy on different dates in E.T.C.M. Hospital. The list shows that he conducted number of surgeries during this period. He stated in his evidence that he was giving anesthesia and performing operations including caesarean sections in E.T.C.M. Hospital for many years and he has got vast experience in the obstetrics and gynecology. The evidence of PW.2 Dr. Ravi Halakatti and PW.3 Dr. Sujatha does not establish that an M.B.B.S Doctor having experience in dealing with LSCS with tubectomy is not qualified from dealing with such cases. At best their evidence shows that it was preferable to deal such cases by Specialist in the field. As already noted there is no expert evidence that there were latches in conducting LSCS with tubectomy by OP.1, which led to further complications found in the patient which caused the death. That part of the evidence was necessary to fasten liability on OP.1. In the absence of ascertaining the cause of death it is not possible to prove that the LSCS with tubectomy conducted by OP.1 had led to death of patient. There may be many reasons which are unconnected to the surgery, to develop different complications in a patient after surgery. A direct nexus between the complications and the act done by the doctor should be established. If the patient had died for some complications unconnected with the surgery, the doctor conducting surgery cannot be held liable. 12. According E.T.C.M. Hospital record platelet counts were falling rapidly day by day and transfusing concentrated platelet was essential and for that reason it was advised to take the patient to major hospital where that facility was available. The case summary of RL Jalappa Hospital does not disclose that concentrated platelet transfusion was done and even it does not disclose that it had taken into consideration the rapid decrease of platelet counts. OP.1 has stated that anemic infectious diseases like dengue, bacteria diseases, leukemia, etc., are some of the causes for decline of platelet count. It cannot be said whether RL Jalappa Hospital itself has not followed the proper line of treatment by not giving concentrated platelet. As OP.1 had vast experience in conducting caesarian section with tubectomy he was competent to conduct the surgery. He found that seeing the critical condition of the patient he had also initially advised to approach higher hospital. The evidence shows that OP.1 had sufficient experience in giving anesthesia and doing scanning, though he was not Specialist in the field. PW.3 Dr. Sujatha found that in a severely anemic patient doing surgery under spinal anesthesia was not advisable. But OP.1 has stated that there was nothing wrong in giving spinal anesthesia in such cases. It was found that the surgery was successful and no complication had arisen relating to the surgery and on the other hand the patient had recovered after surgery. One unit fresh blood was given on 29.10.2006 to the patient. The Laboratory reports show that the blood drawn was matched and tested and only thereafter it was given to the patient. PW.3 appears to have stated that giving one unit of blood was not sufficient for such anemic patient and further she stated packed cell transfusion was ideal. OP.1 stated that the complainant and her relatives were asked to bring the blood on 28.10.2006 itself that they were not able to bring it. He stated that there was no blood bank in the hospital. It is not shown that non-transfusion of packed cell led to the further complications in the patient. Therefore on these grounds it cannot be said that OP.1 was negligent in performing his duty. The Learned Counsel for complainant contended that (a) failure to call specialist if his service is required and (b) failing to arrange for blood supply in labour room before conducting surgery amount to medical negligence and in the present case OP.1 had not secured any specialists and had not arranged for blood before surgery, therefore OP.1 is liable for medical negligence. In the present case OP.1 was competent to conduct surgery and no complications had arisen during surgery or thereafter. Considering the urgency for surgery there was no need to waste of time for securing the blood before starting surgery. The Learned Counsel for complainant submitted that consent was not properly obtained for doing surgery or tubectomy. OP.1 has denied it and stated that he obtained consent from the relatives of patient as patient was not in a position to give her consent. Complainant had admitted that consent was given for operation. The Learned Counsel for complainant further submitted that OP.1 was not competent to conduct tubectomy as per the circular issued to the doctors of Government Hospital. It appears that circular is not applicable for private hospital doctors that too when tubectomy was done after C section. 13. Therefore we hold that the complainant has failed to prove the medical negligence on the part of OP.1 while conducting operation and treating Smt. K.T. Lakshmi Devi. Point No.2: As point No.1 is held in negative Point No.2 should also be held in negative. Point No.3: As point No.1 and 2 are held in negative, Point No.3 does not arise for consideration. Point No.4: We pass the following: O R D E R The complaint is dismissed. Parties shall bear their own costs. Dictated to the Stenographer, corrected and pronounced in open Forum this the 06th day of August 2009. MEMBER MEMBER PRESIDENT
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