BEFORE THE DISTRICT CONSUMER FORUM : MEDAK AT SANGAREDDY

PRESENT: Sri Patil Vithal Rao, B.Sc., LL.B.,President

Smt. Meena Ramanathan, B.Com., Lady Member

              Sri G.Sreenivas Rao, M.Sc., B.Ed.,LL.B.,PGADR (NALSAR),Member

Tuesday, the 22^nd day of January, 2013

CC.No. 31 of 2010

Between:

Babu Khureashi S/o Quasim Khureshi,

Age 56 years, C/o H.No. 9-4-77, Street Charwada,

Siddipet, Dist Medak.

     …. Complainant

And

1. Mrs. Dr. Suguna Sateesh,

M.B.B.S., D.G.O., (Osm),

Rohini Maternity & Nursing Home,

Siddipet.

2. Dr. Smt. Ramadevi, M.B.B.S. Practice Ltd.,

To OB, GYN, Ravi Nursing Home, Siddipet.

3. The D.M.O.,

B.B.R. Multi specialty Hospital,

Ferozguda, Balanagar, Secunderabad.

4. The Medical Superintendent,

Nizam’s Institute of Medical Science,

Punjagutta, Hyderabad.

5. Indian Medical Association A.P. State Branch

Hyderabad.

                                                                                       … Opposite parties.

                This case came up for final hearing before us on 09.01.2013 in the presence of Sri P. Sathyanarayana Reddy and Sri Gundi Ramulu, Advocates for complainant, Sri. R. Manik Reddy, Advocate for opposite parties Nos. 1,2 & 5, Sri. B. Ravishankar and Sri. C. Narsing Raj, advocates for opposite party No. 3 and opposite party No. 4 set exparte, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:

O R D E R

(Per se Smt. Meena Ramanathan, Lady Member)

1.            This complaint is filed under Section 12 of the Consumer Protection Act, 1986 by the complainant on the grounds, in brief, that his daughter late Smt. Salma, aged 25 years, was being taken for regular checkup during her pregnancy to the opposite party No. 1 in the year 2009. On 06.09.2009 the deceased Smt. Salma delivered a baby girl at the Maternity Nursing Home of opposite party No. 1. It was a normal delivery and she was discharged on 08.09.2009. Subsequently when the deceased complained of pain in abdomen she was taken to opposite party No. 1 by the complainant on 19.09.2009. She was prescribed some medicines without being examined properly. When the pain did not subside the complainant took the deceased to opposite party No. 2 as the opposite party No. 1 was out of station, on 26.09.2009. On medical examination it was found that the placental tissues were retained in her abdomen. Then medical advice the deceased was taken to opposite party No. 3 on 27.09.2009 on the advice of opposite party No. 2. She was treated there from 27.10.2009 to 31.10.2009. During the said period she was also operated upon for removal of placental tissues on 01.11.2009. But when her health deteriorated, she was shifted to opposite party No. 4 on 01.11.2009 and unfortunately she died on the same day. The complainant has alleged that his daughter died on account of negligence on the part of the opposite party Nos. 1 & 3. Accordingly he got issued legal notice to them to which the opposite party No. 3 sent a reply with untenable allegations. The complainant did not claim any reliefs against opposite party Nos. 2 & 4 and arrayed then as formal parties to this case. He sought compensation of Rs. 15,00,000/- on account of mental agony, suffering and medical expenses with interest @ 18% p.a., damages and costs against opposite party nos. 1,3 & 5 jointly and severally for the death of his daughter and her baby.

2.            The opposite party No. 1 filed the counter and opposed the claim by contending, in brief, that the complainant has no locus standi to file the present case during the life time of the deceased’s husband. In fact the opposite party No. 1 is a senior Gynaecologist having 25 years of experience in conducting deliveries. It was a normal delivery and opposite party No. 1 has completely expelled the placenta from the deceased’s abdomen. In fact the opposite party no. 1 took all the necessary care and precaution of the deceased while conducting delivery by following due medical procedure but the complainant has filed the present case with false and baseless allegations with an intention to gain monetarily. Unfortunately the opposite party No. 2 came to the conclusion on 26.09.2009 on examining the deceased about retention of placental pieces in her body. In fact the opposite party No. 3 found placental tissues in the uterine cavity of the deceased after conducting medical test. There was no viginal bleeding except fever as evident from the hospital record of opposite party No. 3. However opposite party No. 3 removed placental pieces on 01.10.2009 by conducting D & C after correcting her Hg. levels by giving 5 to 7 bottles whole blood and 3 FFB bottles and discharged patient on 07.10.2009. Subsequently on 27.10.2009 the deceased was again admitted in the hospital of opposite party No. 3 and underwent several tests and it was found that she was suffering with SYSTEMIC LUPUS ERYTHEMATOSIS (S.L.E.). Therefore she was referred to NIMS Hospital, Hyderabad, where she died on 01.11.2009 due to the said disease. In fact she had informed to the opposite party No. 1 that her first delivery was complicated and as such the one as such the doctors advised her not to conceive again. But to get a male child she conceived again, against the wishes of her husband and parents-in-law. Further, opposite party No. 1 is member of opposite party No.5 and as such her interest is protected by opposite party No. 5. For all these reasons the opposite party No. 1 has prayed to dismiss the complaint with costs.

3.         The opposite party No. 2 has filed only a formal counter giving nature of the treatment given by her to the deceased at her Nursing Home and then her referral to a corporate hospital.

4.          The opposite party No. 3 has opposed the complaint by filing a counter on the grounds, in brief, that they had treated the deceased by removal of placental tissues from the abdomen by D & C procedure, after conducting various tests. She was also examined by a qualified gynecologist and was treated for anaemia, blood transfusion was done along with life supporting medicines. A physician was closely monitoring her heath all through her stay in the hospital. She was also diagnosed as S.L.E. and further treatment was given.  But she got discharged against medical advice. In view of these facts it is clear that opposite party No. 3 took all the care in treating the deceased. But she died on account of negligence on the part of opposite party No. 1. The opposite party No. 3 has further contended that the allegations noted in the complaint are baseless and as such prayed to dismiss the same with costs.

5.              The opposite party Nos. 4 & 5 did not participate in the proceedings.

6.           The complainant got examined himself as PW. 1 and marked Exhibits: A1 to A113 to substantiate his claim. The opposite party No. 2 got examined herself as RW.1 and opposite party No. 3 has examined RW. 2, RW. 3 and Exhibits: B1 to B3 were marked in defence.

7.                 The complainant, opposite party No. 1 and opposite party No. 3 have submitted their written arguments. Heard the counsel for the contending parties to the case.

8.              Now the points for consideration are:

           i)    Whether the complainant is competent to file the present complaint?

ii)    Whether the deceased, Smt. Salma died on account of medical negligence on the part of opposite party No. 1 and opposite party No. 3?

iii)                 Whether the complainant is entitled to the reliefs as prayed for?

9. Point (i):

                   Section 2 sub clause (v) of clause b is inserted by Act 62/2002 by inclusion of ‘Legal Heir’ or “Representative” in the definition of ‘complaint’.

                   In this present case, the father of deceased can be a representative as he has borne all the expenses of his (deceased) daughter.

                   In his deposition (PW.1) he states that after the death of his daughter, his son-in-law married again and did not evince interest, in proceeding against the persons responsible for the death of his wife and hence he; as the father of the deceased has filed this complaint and hence this complaint is maintainable. The point is answered accordingly in favour of the complainant.

10. Point (ii): 

                Admittedly the deceased was under the care of opposite party No. 1 during her prenatal period. Ex. A1 to A6 are the documents pertaining to her treatment during the said period. It is also not in dispute that she delivered a female child on 06.09.2009 at the maternity home of opposite party No. 1. It was her 2^nd and a normal delivery. There after she was discharged on 08.09.2009. As per the medical record under Ex. A3 to A5, she was anaemic. Even opposite party No. 1 has admitted this fact. It is to be seen that anaemia will have its own effect on pregnancy. The learned author, D.C. DUTTA in his “Text book of obstetrics”, 6^th edition, 2004 states at pg No. 262 that “as per the standard down by WHO, anaemic in pregnancy is present when the haemoglobin concentration in the peripheral blood is 11 gm/100 ml or less. During pregnancy plasma volume expands (maximum around 32 weeks) resulting in haemoglobin dilution. For this reason, haemoglobin level below 10 gm/dl at any time during pregnancy is considered anaemic (WHO – 1993, CDC 1990). haemoglobin level at or below 9 gm/dl requires detailed investigations and appropriate treatment. Adopting this lower level, the incidence of anaemia in pregnancy ranges widely from 40-80 percent in the tropics compared to 10-20 percent in the developed countries. Anaemia is responsible for 20 percent of maternal deaths in the third world countries”.

11.              In the present case except the hand written notes of opposite party No. 1 on her prescription Ex. A1 that the haemoglobin level of the deceased was 56%, there is no other record available. Even in her deposition (RW.1) she has given the same percentage of haemoglobin level, but there is no record to show that opposite party No. 1 conducted a blood examination. Therefore it is not known the base for her opinion regarding the haemoglobin level. Even the gynaecologist (RW.2) has stated in her evidence, that the deceased was anaemic. In the given circumstances opposite party No. 1 ought to have conducted detailed investigations and given appropriate treatment but she has failed to do so. Thus non investigation of Cause of anaemia is certainly a negligent act on the part of the opposite party No. 1.

12.             After discharge from the maternity home the deceased again went to opposite party No. 1 on 19.09.2009 with a complaint of abdominal pain and was prescribed some medicines vide Ex.A7. Even at this point of time also no investigations were carried out by opposite party No. 1.

13.              On 26.09.2009, as the deceased did not recover, she again went to opposite party No. 1 but the doctor was not available, so she approached opposite party No. 2 – Ravi Nursing Home. There on examination, the doctor found “Retained placenta tissue” in her uterine cavity and as such she referred the patient to a corporate hospital in Hyderabad i.e., Fernendez hospital. These facts are supported by Ex. A10 to A13. The blood test conducted in the Nursing Home of opposite party No. 2 – Ex. A11 – shows the Hg reading as 4.3 hg/dl (recommend values are between 11.0 – 16.5). It confirms anaemia. Thus it is apparent that the deceased was severely anaemic with remains of placental fragments in her uterus which caused her abdominal pain and the ensuing complications. The opposite party No. 1 doctor has failed to carry out her primary duty of verifying the placental fragments, if any, present in the uterine cavity after delivery, but the deceased was promptly discharged on 08.09.2009.

14.              Exs. A10 to A13 are the documents with regard to treatment given at the Nursing Home of opposite party No. 2. The findings of opposite party No. 2 are also corroborated by the documents relating to the treatment of deceased at the hospital of opposite party No. 3 vide Exs. A36 to A44 and Exs. B3 & B4.

15.              Exs. A21 and A25 are the ultra sound scan reports, where in it is noted as, – “Enlarged uterus with collection in endometrial cavity”. This is further reiterated in the evidence of RW.2, where the doctor has deposed that the patient was having complications of retained fragments of placenta. The doctor RW.3 has also categorically stated that the - cause of bleeding was due to retained placental tissue, and retained placental tissue will lead to puerperal sepsis.

16.              The patient was treated at opposite party No. 3 Hospital initially from 27.09.2009 to 01.10.2009. Being severely anaemic, blood transfusion was done and Hg level was improved to 10.2 gm., which is evident from Ex. A28.  After D & C (Dilatation and Curettage) procedure on 01.10.2009 the placental tissue was completely removed and patient stopped bleeding. Ex. B4 is the document in this regard.

17.              On 06.10.2009 she had convulsions for which she was treated but she got discharged on 07.10.2009 against medical advice. But was re admitted on 27.10.2009 with complaints of swelling of abdomen, legs and mouth ulcers and was provisionally diagnosed as suffering from S.L.E. (Systemic Lupus Erythematosis). Exs. A14 to A63 are the documents pertaining to her treatment at opposite party No. 3 hospital from 27.09.2009 to 31.10.2009. The nature of the disease. SYSTEMIC LUPUS ERYTHEMATOSIS (S.L.E.) has been explained in HARRISONS’S PRINCIPLES OF INTERNAL MEDICINE, 16^th Edition as:

                 Page No. 1 of 19: Systemic lupus erythematosus Lupus is often abbreviated to SLE or lupus, is a systemic autoimmune disease ( or autoimmuneconnective tissue disease) that can affect any part of the body. As occurs in other autoimmune diseases, the immune system attacks the body’s cells and tissue,

                  Page No. 2 of 19: SLE is treatable through addressing its symptoms, mainly with cyclophosphamide, corticosteroidsand immunosuppressants; there is currently no cure SLE can be fatal, although with recent medical advances, fatalities are becoming increasingly rare. Survival for people with SLE in the United States, Canada, and Europe is approximately 95% at five years, 90% at 10 years, and 78% at 20 years.

                  Page No. 15 of 19: SLE is considered incurable, but highly treatable. In the 1950s, most people diagnosed with SLE lived fewer than five years. Advances in diagnosis and treatment have improved survival to the point where over 90% now survive for more than ten years, and many can live relatively asymptomatically. (It is important to note that “ten years” in this statistic does not indicate an average survival rate, but is merely the length of the referenced study. According to the Lupus Foundation of America, “the majority of people with lupus today can expect to live a normal lifespan”.

                 S.L.E was confirmed by opposite party No. 3 vide Exs: A52 and A55 and referred the deceased on 31.10.2009 to opposite party No. 4. Referral letter to NIMS, is Exs. A62 and A63. She died at NIMS on 01.11.2009. Ex. A65 is the death certificate.

18.              From the above it is evident that the placental tissues remained in the uterine cavity of the deceased, and opposite party No. 1 failed to detect and clear the same. Simply because it is normal delivery, it does not eschew her from her said responsibility. In her deposition opposite party No. 1 claims to have had 25 years of experience as a gynaecologist. But having so much experience, she should have verified the patient’s uterine cavity after normal delivery and before discharging her. Thus it is a clear case of medical negligence.

19.             No doubt in the ultra scan reports vide Exs.A21 to A25, the traces of placental tissues were not found at the opposite party No. 3 hospital, but it is to be noted that the Radiologist has clearly stated his impression there in as enlarged uterus with collection in endometrial cavity. Ex. A21 is dt. 28.09.2009 and Ex. A25 is dated 30.09.2009. On the very next day of Ex. A25 i.e. on 01.10.2009 the D & C was done and placental tissues were removed from the uterine cavity as evident from the case sheet, EX. B3 issued by the opposite party No. 3. From these facts it is clear that the enlarged uterus with collection in endometrial cavity was on account of the remains of placental tissues.

20.              The learned counsel for opposite party No. 1 has vehemently contended that the deceased died on account of S.L.E. and that no systems of it were found by the opposite party No. 1 at the time of delivery at her maternity home and that as such she could not treat it. On this premise he would contend that there is no negligence on the part of the opposite party No. 1. To support this argument he has placed reliance on the opinion of gynaecologist RW.2, who has stated at the end of her cross examination that retained placental tissues is not a cause for S.L.E. But we are unable to appreciate this contention because the dead body of the victim was not subjected to autopsy. Thus the cause of her death is not known. As per medical literature of HARRISON referred above, S.L.E. is incurable but at the same time highly treatable and a patient’s life can be prolonged to some extent. But in the instant case there is no record to show that the victim died due to S.L.E.  On the other hand the placental remains played a major role in taking the toll. Because the patient was anaemic for which no proper tests were conducted and no proper treatment was given and added to it, the placental tissues were left uncleared after the delivery, as discussed above. Thus the standard of care on the part of the opposite party No. 1 at the vital stage of delivery was lacking. This view is fortified by the decision in “M/s Spring Meadows Hospitals & Anr., vs. Harjot Ahluwalia & Anr.,”, AIR 2000 SC 1888. The relevant portion in it is as under:

                “Negligence is a ‘tort’. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as ‘implied undertaking’ by a member of the medical profession that he would use a fair, reasonable and competent degree of skill”.

                In view of the aforesaid reasons the opinion of: Gynaecologist , RW. 3, noted above becomes insignificant. The Hon’ble Apex court in “V. Kishan Rao vs. Nikhil Super Speciality Hospital & Anr.”, 2010 SAR (Civil) 550 SC held that in most of the cases, Medical negligence is a mixed question of law and facts and that the Fora is not bound in every case to accept the opinion of expert witness. In the light of this binding dictum the decision in “Dr. S. Gurunatha vs. Vijaya Health Centre” 2003 (1) CPR 222 (NC) will not come to the rescue of opposite party No. 3. In this decision, cited by the learned counsel for opposite party No. 1, it was held that in the absence of expert evidence, affidavit of doctor on behalf of the hospital in a case of medical negligence can be relied on. But the facts of the present case are different than the facts of the said case.

21.              The learned counsel for opposite party No. 1 has further argued that the complainant did not allege any specific act of negligence on the part of opposite party No. 1 except stating pre-operation and post operative care was not taken and that too, without adducing any evidence to prove the same. To base this contention he has relied on, “C.V.S.R. Prasad vs. Sri Vasudha Nursing Home & Anr.”, 2008(5) ALT 25 (NC) (CPA). In the said case medical literature and enquiry reports were brought on record about the cause of death and that post mortem report was not showing medical negligence on the part of doctor and that the complainant could not prove any fault in treatment of the deceased. But in the present case on hand there is ample evidence on record to establish negligence on the part of opposite party No. 1 and that there is no record showing the cause of death of the victim as S.L.E. In view of the distinguished facts this decision will not come to the aid of the opposite party No. 1.

22.        No doubt as per the case sheet Ex. B2 of opposite party No. 1 the deceased allegedly stated to her on the date of her discharge from the hospital that her first delivery was complicated at Khammam and she was advised by the doctors not to conceive again. But even if this version is taken to be gospel truth to say that the deceased herself was negligent in getting second pregnancy, it does not shun opposite party No. 1 of her responsibility to act with due care and caution in dealing with a maternity case.

23.          Now coming to the role of opposite party No. 3, it is to be seen that the doctors of this hospital have shown their due diligence in treating the deceased. The evidence of the doctors RW.2 & RW.3 amply exhibits this fact supported by the documents under Exs. A14 to A63, referred supra. It is also significant to notice that the deceased herself got discharged from the hospital against medical advice of the opposite party No. 3. Even then the doctors at opposite party No. 3 gave a referral letter to the deceased vide Ex: A62 with an advice to approach a corporate hospital in Hyderabad. Nothing was elicited during the cross examination of RW.2 and RW.3 either by the complainant or by the opposite party No. 1 to blame the opposite party No. 3 hospital for the tragic end of the victim lady. For these reasons we find that the opposite party No. 3 hospital did not exhibit any negligence while treating the deceased.

24.             In view of the aforesaid discussion we hold that the deceased, Smt. Salma died on account of medical negligence on the part of the opposite party No. 1 only but not on the part of the opposite party No. 3.

25.          The role of opposite party Nos. 2 & 4 is negligible in the instant matter. The opposite party No. 2 simply gave initial treatment to the deceased after conducting essential investigations and that she died at the opposite party No. 4 hospital on the same day of her joining there. Therefore, in the circumstance no negligence can be attributed to them.

          The point is answered accordingly.

26. Point (iii):

               The complainant seeks a compensation of RS. 15,00,000/- on account of death of his daughter with her baby, medical expenses and mental agony and sufferance with interest there on apart from damages. The complainant is a butcher by occupation. He took the deceased, as a dutiful natural father to the doctors and looked after her treatment all through till her demise. As per his evidence, his son-in-law married with another lady and did not show any interest in initiating the present proceedings. The complainant himself bore all the medical expenses of the hospitals of 1 to 4 but unfortunately failed to save her life. Exs. A68 to Ex.A113 are the medical bills in this regard. No doubt the deceased was a house wife and must be having her own contribution in family earnings but the fact remains that she was a married woman as such not a family member of the complainant. Her husband did not come forth to claim any compensation etc., Therefore, in the given set of facts and circumstances the quantum of compensation is reasonably settled at Rs. 2,00,000/- towards mental agony and sufferance apart from the medical expenses of Rs. 48,542/-. The said amount shall carry an interest @ 9% p.a. Further, the complainant is also entitled for a sum of Rs. 5,000/- towards costs of the present proceedings.

               The opposite party No. 1 has been running a Maternity & Nursing Home along with her husband, Dr. Sateesh K. She performed delivery of the deceased at the said maternity home. Her husband is a member of Indian Medical Association (I.M.A) of A.P. State Branch. Ex. B1 is the certificate to the said effect. Therefore, opposite party No. 5 is jointly and severally liable along with opposite party No. 1 to pay the awarded amount to the complainant.

The point is thus answered in favour of the complainant.

27.             In the result, the complaint is partly allowed directing the opposite party Nos. 1 and 5 jointly and severally to pay a total sum of Rs. 2,00,000/- towards compensation and medical expenses of Rs. 48,542/- to the complainant with interest @ 9% p.a. from the date of filing of the complaint till realization with cost of Rs. 5,000/- . Time for compliance is one month.

                   Dictated to Stenographer, after correction the order was pronounced by us in the open court this the 22^nd day of January, 2013.

     Sd/-                                     Sd/-                                   Sd/-

          MALE MEMBER              LADY MEMBER               PRESIDENT   

     APPENDIX OF EVIDENCE

                        WITNESS EXAMINED

For the complainant:                                             For the opposite parties:-

DOCUMENTS MARKED

For the complainant:                                            For the opposite parties:-

          Sd/-                                                      Sd/-                            Sd/-

     MALE MEMBER                           LADY MEMBER               PRESIDENT   

Copy to

1)   The Complainant

2)   The opp.Parties

3)   Spare copy