SMT. RAVI SUSHA: PRESIDENT
This complaint has been filed U/s 35 of Consumer Protection Act 2019, for getting an order directing opposite parties to pay compensation of Rs.10,00,000/- with 6% interest to the complainant together with cost of this complaint alleging medical negligence on the part of opposite parties.
Brief facts of complainant’s case are the complainant is the mother of deceased Sangeeth who have succumbed to the injuries on an accident sustained to him on 28/09/2019 at 2.30 PM. After the accident he was immediately taken to Govt. Hospital, Thalassery with grievous injuries to head and other injuries. He was unconscious, from the General hospital, Thalassery and was taken to the hospital No.3 at about 2.58 PM on the same day. Complainant reached the Thalassery co-operative hospital at about 3.20 PM. When the complainant enquire about her son to the hospital she could not get correct information till 4 PM, then her son was taken to the scanning room fromtehe causality. The complainant came to know that more than one hour her son was kept in the causality unattended inspite of noticing grievous injuries. The complainant consulted with OP No.1 and the said doctor told the complainant that taking to another specialty Hospital is not feasible and the injured need a head surgery and he cannot guarantee with respect to the risk of the surgery. Even though the complainant pleaded with OP No.1 to take her son to other higher centre, the OP No.1 dissuaded the complainant stating the no purpose will be served him taking to higher centre. As the complainant has no other option on the advise made by OP NO.1 she was made to sign in a paper of consent letter for performing the alleged head surgery. After that the complainant was told that above 4.45 PM the surgery was started and within half an hour it was informed to the complainant that her son Sangeeth succumbed to the injuries. The complainant submits that after the death of her son OP NO.2 issued a scanning report as well as hospital bill for an amount of Rs.58,000/- including the cost of surgery. On paying the bill, the hospital authorities released the body of her son. The complainant submitted that she reasonably believes that her son had in vegetative state even before reaching the hospital, but OPs in greed of money conveyed to the complainant that her son had got some hope and on emergent head surgery is required to save him. The complainant submitted that it was represented by OP No.1 that the staffs of OP No.2 and 3 conducted blood test and found that the complainant’s son blood group as A+ve and they have stored necessary A+ve blood in case of necessity and the complainant may replace the blood later. The complainant submits that OPs did not conduct any blood test, as the complainant’s son’s blood group is not A+ve as alleged in the report. As such without taking reasonable skill, care, treatment and attention were provided to the patient by the OPs that was expected from a professional like OP No.1. The OPs without identifying the blood group of the patient and diagnosing the same in a improper way and conducted surgery without providing adequate treatment to the victim. The treatment records also reveal there is an intentional act, omission and failure on the side of OPs in administering treatment to the patient. There is clear negligence on the part of OPs. Moreover the complainant could understand that after the accident her son suffered injury on the right side of the chest about 17 cm. length and the same was sutured. This fact also not disclosed to the complainant when she went to the OP hospital on the date of accident. At the time of death complainant’s son studying in 3rd year BBA and participated in the extra-curricular activities like sports and gymnastic. Complainant submits that without any proper diagnosis and proper examination including blood test on the body of the deceases Sangeeth and conducting surgery on head is a grave dereliction of duty on the part of OPs. The complainant issued a lawyer notice dated 04/02/2020 to OPs calling upon them to pay an amount of Rs.50,00,000/- either jointly or severally within 15 days of the receipt of notice. All the OPs received the notices and send reply making evasive denial. Hence this complaint.
After receiving notices OPs filed their version. The contentions in the version of OPs 1 to 3 are more or less same. The contentions of OPs are that the complainant’s son named Sangeeth A V (Patient) was brought to the casualty in the 3rd OP hospital around 3 PM on 28/09/2019 with severe head injury following a road traffic accident. On examination the patient was in a serious condition, gasping and unconscious and GCS was only E1M1 Vet. Bilateral air entry was present and pupils were sluggishly reacting. BP recorded as 80/50 mmHg and SpO2 77% on room air. CT brain revealed massive subdural haematoma indicative of emergency surgical intervention to tackle intracranial bleed. CT chest revealed lung contusion. Immediately surgical intervention through craniotomy to evacuate haematoma was the only possible life saving measure nevertheless the outcome of surgery was unpredictable. It was the duty of OP1 as a neurosurgeon to do whatever is possible to save the patient’s life, had decided to proceed with emergency surgery. Accordingly the poor clinical condition of the patient and risk factors of surgery were discussed with the complainant and a relative and they voluntarily agreed for surgery and signed written informed consent authorizing OP1 to proceed with emergency craniotomy. Blood transfusion was also given to compensate blood loss as per protocol. With all reasonable care and caution OP1 had proceeded with emergency craniotomy and evacuation of intracranial bleed. OP1 had acted in accordance with a practice acceptable to medical profession as it was my moral obligation and professional duty to do whatever is possible to save the life of the patient, there was no element of negligence or deficiency in the service on the part of OPs. Therefore it is humbly prayed that this Hon’ble Commission be pleased to dismiss the complaint with cost of the OPs.
At the evidence stage complainant filed his chief affidavit and documents. She was examined as Pw1 and the documents of complainant were marked as Ext. A1 to A13. Pw1 was subjected to cross-examination for the OPs. On the side of OPs, OP No.1 filed his chief affidavit and was examined as Dw1. The case record of the deceased Sangeeth kept in OP3 hospital is marked as Ext.B1. After closing the evidence the learned counsel of complainant and OPs made oral argument and also filed written argument notes.
We have perused the pleadings, evidence oral and documentary available before us and considered the submissions of both learned counsels.
The main argument put forward by the learned counsel of complainant is that the sudden death of the deceased son of complainant during the head surgery conducted by OP No.1 was due to transfusion of mismatched blood into the body of the victim. Further, alleged that OP had done an unwanted surgery on the patient considering the vegetative state of the patient.
On the other hand OPs contended that death of the patient happened due to severity brain injury caused due to the accident and OP1 had tried all possible effort and proceeded with emergency craniotomy evacuate intracranial bleed as a life saving measure with care and caution expected from a neuro surgeon in the management of a patient in such a condition.
Here the question to be decided is whether the death of the patient was caused due to carelessness and medical negligence on the part of O Ps?
OP has stated that on examination the patient was in a serious condition, gasping and unconscious and GCS was only E1M1 Vet. Bilateral air entry was present and pupils were sluggishly reacting. BP recorded as 80/50 mmHg and SpO2 77% on room air. CT brain revealed massive subdural haematoma indicative of emergency surgical intervention to tackle intracranial bleed. CT chest revealed lung contusion. Immediately surgical intervention through craniotomy to evacuate haematoma was the only possible life saving measure nevertheless the outcome of surgery was unpredictable. It was the duty of OP1 as a neurosurgeon to do whatever is possible to save the patient’s life, had decided to proceed with emergency surgery. Accordingly the poor clinical condition of the patient and risk factors of surgery were discussed with the complainant and a relative and they voluntarily agreed for surgery and signed written informed consent authorizing OP1 to proceed with emergency craniotomy.
OP further submitted that when the patient experiences blood loss, transfusion is carries out with blood of the same group. The determination of the required blood group for the patient is made by the treating doctor, and the blood grouping process is conducted within the hospital. This information is recorded in Ext.B1 also. Further stated that
On perusal of Ext.B1 case record, it can be seen that “A well cross matched A+ve blood transfused at 4.35 PM”. Dw1 deposed that നിങ്ങളുടെ Hospital lab-ൽ വച്ച് Patient-െൻറ യാതൊരു blood group test ഉം നടത്തിയിട്ടില്ലെന്ന് പറയുന്നു? ശരിയല്ല. Further stated that അങ്ങനെ പരിശോധിക്കാതെയും തെറ്റായ blood group transfused ചെയ്തുകൊണ്ടാണ് Patient മരിക്കാനിടയായതെന്ന് പറയുന്നു? തെറ്റാണ്. lab report case വന്നതിന് ശേഷം Hospital ൽ വച്ച് കൃത്രിമമായി ഉണ്ടാക്കിയതാണെന്ന് പറയുന്നു? തെറ്റാണ്. ഈ Patient െൻറ blood group O+ve ആണെന്ന് നിങ്ങൾ തെറ്റായി A+ve blood transfuse ചെയ്തത് കൊണ്ടാണ് Patient മരിക്കാനിടയായതെന്ന് പറഞ്ഞാൽ? ശരിയല്ല. The learned counsel of complainant further asked If blood of the wrong group is transfused a hemolytic transfusion reaction usually results, red cells are destroyed and fever and shock may occur? Correct. The kidney and liver also deranged? Correct
On perusal of postmortem report of the victim Ext.A6, the doctor who conducted postmortem on the body of the victim has reported that “Air passages contained blood stained mucus. Lungs were pale and oedimatous. Walls valves and chambers of heart were normal. Lumens of coronary arteries were patent. Aorta was normal. Liver was pale. Stomach was half full with partially digested having no unusual smell. Mucosa was normal. Urinary bladder was empty. Genital organs were normal. All other internal organs were pale. Otherwise appeared normal. Death was due to head injury.”
It can be seen that there is no sign of damage of kidney, liver brain or other internal organs due to transfusion of wrong group blood into the body of the deceased. The opinion of cause of death was due to head injury happened in the accident.
The submission of complainant that OP had not conducted blood test of the patient before surgery cannot be believed because in the complainant itself complainant admitted that blood test was conducted on the patient.
Here complainant’s submission is that the blood group of her son was O+ve group. For substantiating the submission, complainant produced his school ID and the application for services on driving license is produced. In which, the blood group of MR. Sangeeth A V is noted as O+ve.
From the case records, the blood transfusion was made at 4.35 PM and death happened at 5.45 PM. Normally if wrong blood was transfused into the body immediate reactions in the body such as, fever, chilly vomiting etc. will happen and can cause kidney failure and Hemolytic reaction and discriminated intra vascular coagulation happen, Kidney, liver, spleen and lungs will affect. Here in postmortem report no such evidence can be seen. Complainant and OP submitted one decision of Hon’ble Supreme Court. In post graduate institute of Medical Education & Research, Chandigarh VS Jaspal Singh 2009 7 SCC 330 the Hon’ble Supreme Court observed in para 21 ‘A hemolytic transfusion reaction usually results red cells are destroyed and there may be jaundice with hemoglobinemia and hemoglobinuria. Chills, fever and shock may occur. Renal insufficiency may ensue believed by some to be due to a reduced blood flow through the glomeruli.”
In the said judgment the kidney and liver got deranged due to mismatched blood transfusion. The Hon’ble State commission held that Burden of proof to establish the allegation lies on the complainant through medical practitioners to prove breach of duty, injury and causation.
In this case there is no evidence that kidney and liver of the deceased got deranged and also from the post mortem certificate, the cause of death was due to head injury happened in the accident.
Further in the medical records no evidence is seen that the blood level and hemoglobin level came down after the transfusion of blood by the doctor. The complainant did not give any complaint to the hospital about the mismatched blood transfusion and no enquiry was conducted.
Hence from the points as stated above, we cannot come to a conclusion that there was wrong mismatched blood transfusion was made from the OP hospital and due to that reason, the patient expired. Hence the said allegation of the complainant cannot be considered. From the identity card Ext.A12 and application to RTO A13 cannot be taken as a conclusive proof to come to a suggestion that the blood group of the deceased was O+ve.
The next allegation of complainant is that OP1 doctor had done unwanted surgery on the patient. According to the complainant, her son had in vegetative state even before reaching the hospital, but OPs in greed of money conveyed to the complainant that her son had got some hope and an emergent head surgery is required to save him. During cross examination of Pw1 she deposed that കുട്ടിയുടെ സ്ഥിതി അതീവ ഗുരുതരാവസ്ഥയിലാണ് എന്ന് OP1 പറഞ്ഞിരുന്നു? പറഞ്ഞിരുന്നു. ഓപ്പറേഷൻ ചെയ്താലും യാതൊരു തരത്തിലുള്ള ഉറപ്പും തരാൻ സാധിക്കില്ല എന്ന കാര്യം പറഞ്ഞിട്ടില്ല. നിങ്ങൾ കോടതിയിൽ ഫയൽ ചെയ്ത സത്യവാങ്മൂലത്തിൽ മകന് തലക്ക് പരിക്ക് പറ്റിയതുകൊണ്ട് യാതൊരു ഗ്യാരണ്ടിയും തരാൻ പറ്റില്ല എന്ന നിങ്ങളോട് പറഞ്ഞിട്ടില്ലെ? ഓപ്പറേഷൻ സമയത്താണ് അങ്ങനെ പറഞ്ഞത്. സത്യവാങ്മൂലത്തിൽ para 4ൽ “അതിനുശേഷം OP1 നെ consult ചെയ്യുകയും എന്നോട് വേറെ സ്പെഷ്യാലിറ്റി ഹോസ്പിറ്റലിൽ കൊണ്ട് പോകുന്നത് നല്ലതല്ല എന്നും മകന് തലക്ക് പരിക്ക് പറ്റിയതുകൊണ്ട് അദ്ദേഹത്തിന് യാതൊരു ഗ്യാരണ്ടിയും തരാൻ പറ്റില്ലെന്നും പറയുകയാണുണ്ടായത്. ആ സമയത്ത് ഞാൻ ആഗ്രഹിച്ചത് എങ്ങനെയെങ്കിലും കുട്ടിയുടെ ജീവൻ രക്ഷിക്കണം എന്നായിരുന്നു. എങ്ങനെയെങ്കിലും കുട്ടിയുടെ ജീവൻ രക്ഷിക്കാൻ കഴിയുമോ എന്നാണ് OP1ഉം ശ്രമിച്ചുകൊണ്ടിരുന്നത്. ഓപ്പറേഷൻ ചെയ്താൽ 5% വിജയം ഉള്ളൂ എന്ന് പറഞ്ഞാലും അപ്പോൾ അത് ചെയ്യാനാണ് നമ്മൾ ആഗ്രഹിക്കുന്നത്? അതെ.
Dw1 deposed that നിങ്ങൾ patient നെ കാണുമ്പോൾ patient വെജിറ്റേറ്റീവ് സ്റ്റേജിൽ ആണോ? Yes or no എന്ന് പറയാൻ പറ്റില്ല. patient ന് കുറേ ഇഞ്ച്വറീസ് ഉണ്ടായിരുന്നു. Surgeon, orthopedician, Neurosurgeon എന്നിവർ നോക്കേണ്ട ഇഞ്ച്വറീസ് ഉണ്ടായിരുന്നു. തലച്ചോറിലുണ്ടായ രക്ത സ്രാവവും, തലച്ചോറിെൻറ പരിക്കും ഉണ്ടായിരുന്നു. തലച്ചോറിെൻറ പരിക്കുമൂലം രോഗി അബോധാവസ്ഥയിലായിരുന്നു.
OP 1 has submitted that on examination the patient was in a serious condition, gasping and unconscious and GCS was only E1M1 Vet. Bilateral air entry was present and pupils were sluggishly reacting. BP recorded as 80/50 mmHg and SpO2 77% on room air. The patient was started on supportive medicines and medical measures and necessary investigations like CT scan of head, chest and abdomen was taken on emergency basis to diagnose the gravity of injury to decide further management. He was informed in view of brain injury and immediately came and attended the patient along with other doctors in the hospital. CT brain revealed massive subdural haematoma indicative of emergency surgical intervention to tackle intracranial bleed. CT chest revealed lung contusion. Immediately surgical intervention through craniotomy to evacuate haematoma was the only possible life saving measure nevertheless the outcome of surgery was unpredictable. Accordingly the poor clinical condition of the patient and risk factors of surgery were discussed with the complainant and a relative and they voluntarily agreed for surgery and signed written informed consent authorizing OP1 to proceed with emergency craniotomy. In the casualty itself the patient was started on IV fluids and life supportive medication under oxygen support as per the protocol followed in critical care management. Blood transfusion was also given to compensate blood loss as per protocol. With all reasonable care and caution OP1 had proceeded with emergency craniotomy and evacuation of intracranial bleed. But inspite of all care and timely measures, the patient had deranged homodynamic stability per operatively with further deterioration of his condition. Pulse and BP not recordable and inspite of resuscitating the patient expired intra operatively and declared dead at 5.45 PM. Medical record Ext.B1 also corroborate the evidence of OPNo.1(Dw1)
The learned counsel of OPs submitted number of decision of Hon’ble National Commission and State Commission. In Malhe Ram @ Male Ram Vs.Jeevan Jyothi Hospital 2022 1 CPR (NC) 63 it is held that it was serious accident and the patient was in critical stage. It was the duty of the attending doctors to treat the emergency and stabilize the patient before referring to the higher centre for further management. Further a doctor is not guilty of negligence if he has acted n accordance with a practice accepted as peroper by responsible body of medical men skilled in the particular art. Kusumam Sharma’s [2010(3) SCC 480]. Further negligence must be established and not presumed III(1999)CPJ 9(NC)=1999 CTJ 644 (CP) (NCDRC), Kanhiya Kumar Singh v Park Meicare and research centre. KIRAN BALA ROUT VS CHRISTIAN MEDICAL COLLEGE AND HOSPITAL, 2003 1 CLT(NC) 203; 2003 2 CPC(NC) 17; 2002 2 CPJ(NC) 131; 2003 1 CPR(NC) 238. Dr. Moly John Vs Lucky Johny (2013 (3) CPR60) The Kerala State Commission considered the parameter of negligence of doctors and held that what is expected from a doctor is not the standard of treatment which is the highest or lowest but of reasonable standards. If due Medical Protocol was followed no case of medical negligence is made out. 2012 (4) CPR(NC) 565.
Considering the evidence, medical records and form view of appellate commissions complainant is unable to prove medical negligence on the part of OPs and also failed to prove that death of the son of the complainant was happened due to transfusion of mismatched blood into the body of the deceased as alleged by the complainant.
Considering the entire facts and circumstances of this case, we are of the considered view that there was no medical negligence on the part of opposite parties.
In the result complaint fails and hence it is dismissed. No order a sot cost.
Exts.
A1- Lawyer notice
A2(Series)- Postal receipt (3 in numbers)
A3 to A5 - Acknowledgment card
A6- Reply of OP No.1.
A7- Reply of OP No.2.
A8- Post mortem report
A9- Accident cum wound certificate
A10& A12- Identity card of Sangeeth
A11(series)- Clinical laboratory reports
A13- Diving license of Sangeeth
B1-Case record issued by Tellichaerry hospital
Pw1-Complainant
Dw1-OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
