BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 304/2001

Dated : 30.06.2009

Complainant:

Suganthi, Sugantha Mandiram, Chellanchi, Perayam Post, Nedumangadu, Thiruvananthapuram.

(By adv. K. Satheesh Kumar)

Opposite parties:

1. Dr. Santhamma Mathew, Consultant, Obstetrics and Gynacology, S.P. Fort Hospital, Thiruvananthapuram.

    

   (By adv. V.K. Mohan Kumar)

    

2. The Proprietor, S.P. Fort Hospital, Thiruvananthapuram.

(By adv. K. Muralidharan Nair)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 26.12.2003, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.05.2009, the Forum on 30.06.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

This complaint is filed by Smt. Suganthi against Dr. Santhamma Mathew and the Proprietor of S.P. Fort Hospital, the opposite parties, for the deficiency and negligence in service by the opposite parties. Facts of the case are:-

The complainant was regularly consulting the 1^st opposite party at her hospital for pre-natal-care and she was admitted in the hospital by the 1^st opposite party on 20.05.2001 for delivery. On the same day the complainant delivered a male baby and as per the records delivery was a 'vacuum extraction delivery' and there were sutures also and she was discharged on 25.05.2001. At home the complainant developed pain, discomfort and foul smelling discharge and when the matter was reported to the 1^st opposite party, the 1^st opposite party advised that such pain is normal and will last for a few days. But contrary to that, the above referred discomforts continued and since the complainant's condition became worst she was taken to Taluk Head Quarters Hospital, Nedumangadu on 26.05.2001 where the complainant was subjected to an emergency surgery by the doctors wherein the sutures were removed and found foul smelling pack wiper inside the body of the complainant and the same was removed. Due to the negligent and careless act of the 1^st opposite party, the complainant's surgical wound was sutured without removing the pack wiper from the wounds which resulted in severe pain and discomfort to the complainant. Hence this complaint has been necessitated.

The 1^st opposite party has filed their version contending as follows: The complaint is not maintainable either in law or on facts. This opposite party had admitted the complainant with labour pain in the hospital on 20.05.2001 and she was taken to the labour room at about 8.30 a.m. This opposite party attended the delivery of the complainant in a very successful manner. Since there was foetal heart of slowing, vacuum was applied and baby was delivered at about 2.30 p.m. After suturing the episiotomy it was found that there was bleeding per vaginum. So a vaginal pack was kept in order to wipe bleeding. Immediately after the delivery the very next day complainant wanted to go home and hence she wanted a discharge from the hospital. This opposite party advised her to be in the hospital for a few more days so that any complication that may arise such as bleeding can be treated effectively. But the complainant insisted for discharging her from the hospital and she assured that she will immediately come back in case she need any help. She also said, in case of any emergency she will take the assistance of the local hospital and the vaginal pack will be removed by herself or with the help of a local hospital. Thus the complainant was discharged on 21.05.2001 at her will, against the medical advice given by the opposite party. When the complainant developed discomfort as alleged she did not consult this opposite party, and if she was brought to the hospital of the opposite party the complainant would have obtained efficient medical care and treatment. The whole discomfort was due to the latches on the part of the complainant that she did not remove the vaginal pack as advised by the opposite party. Instead of that she was keeping the pack wiper for few more days. In the Nedumangadu Hospital the doctors removed the vaginal pack and given treatment for pain and discomfort and no surgery was conducted as alleged in the complaint. The pack wiper which was kept in the vaginum was removed. The allegation that the first opposite party sutured the wound without removing the wiper and that was the reason for the complainant's discomfort, pain and foul smelling discharges per vaginal is absolutely false and hence denied. This opposite party is not aware of any treatment alleged to have been taken in the Nedumangadu Taluk Head Quarters Hospital. At any rate those alleged treatment were taken not due to any latches, negligence or careless act of the opposite party. Proper medical attention and service was rendered to the complainant, the complainant has misunderstood the purpose for which the pack wiper was kept in the vaginal. It was placed there to wipe out vaginal bleeding from the vaginal walls. The complainant assumes that the pack wiper was negligently and carelessly placed there and it was not removed as if it was a mistake and this resulted in the complainant's pain and discomfort. There is absolutely no deficiency of service while the complainant was treated by this opposite party, on the other hand the complainant was subjected to utmost medical care and attention and treatment in the hospital of the opposite party. At any rate the opposite party is not liable to pay any amount whatsoever to the complainant on any account. Hence prays for dismissal of the complaint.

The 2^nd opposite party has filed their version contending as follows: The complaint is not maintainable in law. S.P. Fort Hospital, herein after referred to as the Hospital is not a proprietory concern. There is no one, answering to the description of the 2^nd opposite party. The complaint is not maintainable as against the 2^nd opposite party. The petitioner, whose expected date of confinement, was 5^th June 2001, was admitted in the hospital on 20.05.2001 for delivery. Since there was slowing down of the foetal heart rate, it was decided by the 1^st opposite party, to go in for vacuum extraction. By2.30 p.m, the baby was delivered by vacuum extraction. The episiotomy was sutured in layers. There was slight bleeding per vaginum. In accordance with standard practice, a vaginal pack wiper, was therefore kept in order to absorb the blood. The petitioner was not discharged from the hospital on 25.05.2001 as contended in the complaint. She was in fact discharged, the day, following the delivery, i.e, on 21.05.2001, since she insisted on discharge. The petitioner had undertaken to return, in case any problem arose. She had also undertaken to have the vaginal pack removed as advised, by herself, or with assistance from any doctor in a local hospital. The petitioner did not consult or report to the 1^st opposite party after she was so discharged on 21.05.2001. The contentions regarding emergency surgery etc. are denied. The vaginal wiper pack, had to be removed as advised. The petitioner, apparently against advice, retained the wiper pack leading to discomfort and pain. The pack had only to be removed. No surgery was needed and no surgery had been performed on the petitioner. The petitioner is attempting to take advantage of her own faults. The petitioner is alone responsible for her problems, if any. In the hospital, the petitioner was treated with care, professional skill and expertise. The 1^st opposite party is a renowned gynaecologist, of standing and all allegations of negligence, carelessness etc. are denied. The petitioner is not a consumer, as claimed. There was no hiring of service. No compensation can be claimed by the complainant as there was no negligence or want of care in the treatment of the petitioner by the 1^st opposite party or by anyone connected with the hospital. The claims made with regard to pain and suffering are unsustainable. No compensation is payable under any head to the petitioner by any of the opposite parties. Hence prays for dismissal of the complaint with compensation and costs.

The complainant's evidence consists of Exts. P1 to P10 and her deposition as PW1. 1^st opposite party has been examined as DW1 and marked Ext. D1 and MO1 & MO2.

From the contentions raised, the following issues arise for consideration:-

1. Whether the opposite parties were negligent and rendered deficiency in service?

2. Whether the complainant is entitled to get any compensation as prayed for?

Points (i) & (ii):- There is no dispute with regard to the admission of the complainant in S.P. Fort hospital for delivery on 20.05.2001 and the fact that the complainant delivered a male baby on the same day is also not in dispute. The grievance of the complainant is that, after the delivery by means of vacuum extraction, the 1^st opposite party sutured the wound without removing the pack wiper which caused severe pain, discomfort along with foul smelling, discharge per vaginum and since the complainant's condition became worst due to this negligent and careless act of the 1^st opposite party, she was subjected to an emergency surgery by the doctors at Taluk Head Quarters Hospital, Nedumangadu. The 1^st opposite party in their version has admitted that after suturing the episiotomy, since there was bleeding, a vaginal pack was kept in order to wipe bleeding, but the complainant wanted to go home the very next day immediately after the delivery and though she was advised to be in the hospital for a few more days the complainant wanted to be discharged from the hospital. Thus the complainant was discharged on 21.05.2001 at her will, against the medical advice given by the opposite party. The 1^st opposite party further contends that the allegation of suturing of the wounds without removing the wiper is absolutely false and further contend that the whole discomfort was due to the latches on the part of the complainant as she did not remove the vaginal pack as advised by the opposite party and instead she kept the pack wiper for few more days. The 2^nd opposite party contends that the complainant had undertaken to have the vaginal pack removed as advised, by herself or with assistance from any doctor in a local hospital, but the complainant retained the wiper pack, against advice, which lead to discomfort and pain.

In the instant case, the only aspect for consideration is whether the complainant has been discharged from the hospital after the delivery with proper advice. Whether the complainant had the knowledge with regard to the fact that vaginal pack wiper has been kept and whether the complainant was advised to remove the said pack wiper as contended in the versions are to be looked into at this juncture. For considering the above aspect, the opinion of an expert doctor or extracts from any medical text is not required. Whether the complainant has disregarded any advice of the opposite party as contended in the versions is the issue which comes up for consideration.

The complainant alleges that she developed severe pain and discomfort with foul smelling discharge per vaginum and when the matter was informed to the 1^st opposite party, the complainant was advised that such pain is normal and will last for a few days. But contrary to that the above discomforts continued and she was taken to the Taluk Head Quarters Hospital, Nedumangadu, on 26.05.2001, where the complainant was subjected to an emergency surgery and the wound was again opened and the foul smelling pack wiper inside the body was removed. Ext. P6 is the case sheet dated 26.05.2001 produced by the complainant. As per Ext. P6, it has been recorded that 'vacuum delivery 7 days back at S.P. Fort Hospital complaint of discomfort and pain with foul smelling discharge. It is further recorded in Ext. P6 that 'foul smelling pack wiper removed'.

As per Ext. P4, wherein the date of admission has been noted as 18.05.2001 and the date of discharge as that of 19.05.2001, the treatment on discharge has been noted as review after 2 weeks along with other entries. In Ext. P5 it has been noted that review after 6 weeks. As per Ext. P5 there is no mentioning with regard to the removal of the pack wiper. The 1^st opposite party doctor, as DW1, has deposed and admitted that she has not written it in the discharge card. DW1 has deposed that 'the complainant had agreed to take it out when she reached Nedumangadu i.e; after 24 hours of its insertion. At this juncture it is pertinent to note that, as per the discharge card, admittedly, the complainant has not been seen advised to remove the vaginal pack wiper. But the 1^st opposite party states that she had orally advised the complainant to remove the same after 24 hours. But there is no evidence for the same except the deposition of the 1^st opposite party. Moreover, DW1 has further deposed that the cards are written by junior doctors. This may be the procedure followed in the opposite parties hospital, but the doctors concerned have a duty to check the entries made in the discharge card issued to the patients at the time of discharge. The doctors should definitely check as to the entries made in the discharge card are complete and whether the patient is advised properly about the precautions to be taken after discharge from the hospital. Mere statement by the 1^st opposite party that the entries are made by junior doctors does not justify this oversight which has caused the complainant distress, agony, pain and sufferings. From the records on file, we find that the opposite parties have miserably failed in following the same which has resulted in trauma to the complainant.

The 1^st opposite party has admitted that she has not made the entry with regard to the removal of the pack wiper in the discharge card. Had the doctor prescribed the removal of the pack wiper and had the complainant been properly advised in discharge card, she may not have been probably made to suffer as alleged in the complaint. The opposite parties cannot get away with its responsibility to issue a proper discharge certificate prescribing post operative care and treatment.

The complainant had pleaded that on 26.05.2001, the complainant was subjected to an emergency surgery by the doctors and Ext. P6 in support of the same. As per Ext. P6 it can be seen that the complainant has been attended by the doctors and a foul smelling pack wiper removed. From Ext. P6 it cannot be made out that the complainant was subjected to a surgery. But anyhow the wiper has been removed and certain medicines are also seen prescribed.

The 2^nd opposite party had contended that S.P. Fort Hospital is not a proprietory concern and there is no one answering to the description of the 2^nd opposite party so the complaint is not maintainable as against the 2^nd opposite party. They further contended that the version has been filed only because summons was served in the hospital to the officer addressed as Chief Executive Officer, S.P. Fort Hospital as against the description of the 2^nd opposite party as 'Proprietor, S.P. Fort Hospital'. At this juncture, the point to be noted is that there is no case that the complainant was not admitted in the hospital and the opposite parties have no case that she has not been treated in their hospital. It can well be imagined that the consumer does not and need not know whether the hospital is a proprietory concern or not. Moreover, since the opposite parties have not denied the fact that the complainant was treated in their hospital, justice cannot be denied to the consumer by the rule of technicality. The Consumer Protection Act being an Act enacted for the protection of consumers, the interest of justice cannot be defeated by a rule of technicality and hence this objection raised by the opposite party is not sustainable.

Considering the above facts and circumstances of the case, we find that the complainant has succeeded to establish negligence and deficiency in service on the part of the opposite parties. There is no yardstick specially provided to assess the loss on account of mental agony or pain suffered in such like matters. The complainant is found entitled for an amount of Rs. 10,000/- towards compensation for the same and a sum of Rs. 3,000/- as costs of the complaint.

In the result complaint is allowed and the opposite parties shall pay an amount of Rs.10,000/- to the complainant as compensation along with a cost of Rs. 3,000/- within a period of one month from the date of receipt of the order failing which the entire amount shall carry interest at 12%.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 304/2001

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Sugantha

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of prescription dated 03.11.2000

P2 - Copy of prescription dated 07.05.2001.

P3 - Copy of prescription dated 08.03.2001.

P4 - Copy of visiting card dated DOA 18.05.2001

P5 - Copy of visiting card dated DOA 20.05.2001

P6 - Copy of nurses record dated 26/05 and case sheet dated 26.05.2001

P7 - Copy of out patient ticket dated 26.05.2001

P8 - Copy of advocate notice dated 15.06.2001.

P9 - Original acknowledgement card.

P10 - Returned letter endorsed as 'no such proprietor”

III OPPOSITE PARTY'S WITNESS :

DW1 - Dr. Santhamma Mathew

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Reply notice dated 10.07.2001.

PRESIDENT