D.O.F:27/12/2013
D.O.O:15/12/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.No.313/2013
Dated this, the 15th day of December 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Mrs. Naufarah N.A, Aged 27 years,
Wife of Niyas, house hold
R/at Azad Manzil, P.O - Mogral,: Complainant
Kasaragod
(Adv: Shajid Kammadam)
- Dr. Usha Menon MBBS, M.D, DGO
Kasaragod Institute of Medical Science
Ashwini Nagar,
Kasaragod 671 121
: Opposite Parties
- Kasaragod Institute of Medical Science,
Ashwini Nagar,
Kasaragod 671 121
Rep by its Manager
(Adv: Sri. Mahesh.M)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The Complaint filed under section 12 of Consumer Protection Act
The averment in the complaint is that complainant is a married lady and high desire to have a baby, she consulted Dr.Savithri of Bangalore during initial stages of her 2nd pregnancy. Subsequently shifted to native place and availed the service of opposite party No:1 at KIMS hospital Kasaragod (opposite party No:2). She followed all instructions and took prescribed medicine. Opposite Party No:1 deliberately not displayed her registration number in any of the prescriptions. During intervening night of 25/09/2013 and 26/05/2013, she was undergone excessive vaginal fluid discharge. Immediately rushed to opposite party No:2 hospital by 11 PM. The mother of the complainant has appraised the problem of excessive vaginal fluid discharge to the duty nurse and requested to contact opposite party No:1, in view of the emergency medical aid. In turn, the duty nurse of opposite party No:2 has contacted opposite party No:1 over telephone and conveyed the deteriorating condition of the Complainant.
2. As instructed by the opposite party No:1, The Complainant was admitted to room and administered certain medicine without full clinical assessment and brother of complainant paid Rs.1000/- as advance. On enquiry, the duty nurse informed the brother of the complainant that opposite party No:1 has evaluated the medical condition of complainant and ascertained to be stable. By believing information of the duty nurse, the relatives of the complainant constrained to go ahead with the treatment of the opposite party No:1. After the laps of considerable time, the mother of the complainant has brought to the notice of excessive fluid discharge and deteriorating condition of the complainant and demanded the immediate service of opposite party No:1 or RMO. However, the duty nurse pacified the relative of the complainant that she has contacted opposite party No:1 and ensured with the opposite party No:1 regarding stable condition and assured the service of opposite party No:1 at early spell in the morning since RMO was available. On 26/09/2013 at 10 AM the duty nurse has subjected the complainant further ensured the service ultrasound scanning. But the service of opposite party No: 1 was not ensured or informed the condition of her to any relatives which resulted in shifting the complainant to CAREWELL Hospital, Kasaragod. On reference of Dr.Suhara of CARE WELL Hospital, the complainant is taken to immediately to Vijaya clinic, Mangalore, examined by concerned doctors, concluded that for not getting timely treatment, confirmed the death of fetus and strongly advice to the management or not inhibiting labour. In the eventually, they have removed the dead fetus by cousing better health. At that moment, the fetus by considering better. Complainant was deprived of peace of mind and suffered irrecoverable loss, and caused mental agony, physical stain and emotional insult.
3. Due to careless act of opposite party the complainant had to give up her desire to have baby. The opposite party No:1 was expected to provide timely treatment by evaluating the medical condition and chalking out treatment plan. However, they failed to do so, then she could be secondary party to the Deficiency in service.
4. The Complainant therefore sought an order, a) diverting the opposite parties to pay an amount of Rs.5,00,000/ as damages to complainant and cost of proceedings and other relief as forum deems fit under the circumstances of the case, under section 14(f) of Consumer Protection Act .
5. For opposite parties advocate Mahesh filed vakalath and version denying the allegations as the averments made there under are false and hence denied. There was no negligence. The averments in the complaint is purposefully framed by suppressing the true facts solely for the undue financial advantage of the complainant. The Complainant came to the hospital at 1.00 AM on 26/09/2013 with complaint of par vaginal leaking, since 11 PM on 25/09/2013, in her 6th month of pregnancy. Her expected date of delivery was on 27/12/2013. The gynecologist examined the patient at 3 AM and per vaginal examination revealed cervix unaffaced and closed. There was no fluid leaking out of the vagina at the time but there was some wetness on the pad. The patient did not have any pain and she was not in labour. Hence on the basis of a provisional diagnosis of preterm premature rupture of membrane, she was advised admission to the hospital for investigations including Ultra Sonogram (USG), antibiotics and observation under the bed rest. The vital signs of the patient remained stable at the time of admission. It was informed to the complainant and her by standers that since the baby was premature, there was poor prognosis for the baby and no option other than stopping this loss of fluid and if fluid loss was excessive, the baby would not be able to service because of its pre-term and pre-maturity. The patient was shifted to the room for observation. The USG was done around 10 AM and the report revealed a condition called anhydramnios (no liquor surrounding the baby) with 26-27 weeks of gesturing. The clinical as well as sonological examination findings were instructed to the opposite party No:1, who had also advised strict bed rest and monitoring of vital signs and contraction of medicines.
6. The first opposite party had discussed about the USG findings with the sonologist and since the USG report revealed loss of excessive fluid and chance of survival of the baby was too remote, she had instructed the duty medical officer to inform the patient and her relatives about possibility of inducing labour as otherwise continuation of leakage would cause ascending infection and consequent intra- uterine death. But when the gynecologist reached patient’s room there was nobody in the room they went out for the reason best known to them without informing in utter disregard to the strict medical advice for bed rest. When complainant was contacted over the phone number given she replied that she would soon come back to the hospital. She was alerted about consequences likely to happen by straining induce further fluid leak. Therefore, the hospital informed that complainant settled the hospital bill. The patient left hospital for reason best known them they want and for the reason without informing the doctor of the duty staff.
7. The clinical condition anhydramnios of amniotic fluid in pre-term condition membrane there is no option of treatment other than adviced the first opposite party. The patient investigations and strictly adviced observation clinical condition and assessment of fluid loss, labor should have been induced. In such a condition no doctor could guarantee fetal survival. Complainant herself and acted against proper medical advice staining of the patient in such a condition might have aggravated fluid loss caused straining. Further the complainants decision to dis continue opposite party hospital and taking her to care well hospital also might have caused straining aggravation condition of anhydramnios characterized by excessive loss- term condition caused by premature rupture of option of treatment other than the modality of treatment. Death of baby was not caused due to any act or omission on the past of opposite party. A medical practitioner attending and treating the patient as per accepted medical practice is not an insurer against the risk factors involved in the treatment nor she/ he is liable for the same. In the light of the above mentioned facts there was no negligence or deficiency in service on the part of opposite parties and they are not liable to compensate the complainant.
8. As per the information given by the complainant it was her first pregnancy with earlier consultations elsewhere. The averment that the first opposite party deliberately not displayed registration number in her prescriptions is highly ill motivated and hence denied. The opposite party No: 1 is having MD DGO with and experience of 13 years in obstetrics and Gynecology and having Medical Council registration No.25225 and during the treatment of the patient she had not done anything deliberately or intentionally as alleged in the complaint.
9. The averment stated in para 2 of the complaint shows the complainant had been suffering from fluid leak from the intervening night of 25/09/2013 and 26/09/2013 but she came to the hospital only at 1.00 AM on 26/09/2013 in acute anhydramnios condition. The averment stated in the Complaint that the complainant’s mother requested to contact the opposite party No:1 is not correct. The first opposite party herself examined the patient at 3 AM and due care and medical measures stated as per advice of the opposite party No:1.
10. The averment stated in para 3 of the complaint are false and baseless and hence denied. The averment that the patient was administered certain medicines without full clinical assessment is not correct and hence denied. The statement that by believing the information of the complainant constrained to go ahead with the second party hospital is not correct and hence denied. Patient been under the care of the first opposite party monitored and assessed but after scanning the complainant along with bystanders, left the hospital without informing anyone. As per information of the duty nurse, the relatives to go ahead with the treatment in the second opposite party and hence denied. As already stated her condition was periodically observed by the opposite party. The averment that but after scanning the complainant along with her mother of the complainant noticed of and deteriorating condition of the complainant and excessive fluid discharge and deteriorating condition demanded the immediate service of opposite party No: 1 stated for undue gain and hence denied the statement her relatives were not informed about her in shifting the complainant to Carewell hospital and condition was resulted in shifting kasaragod is not correct and denied. The opposite partys are not aware of modality of treatment and advice of Dr: Suhara as Vijaya Clinic, Mangalore and hence denied. There was no negligence or deficiency. The amount of compensation is highly exaggerated, exorbitant and without any rational behind it and in any case the opposite parties cannot be held liable for the same. Since there was no negligence of Deficiency in Services on the part of opposite parties in the treatment of the patient they are not liable to pay any compensation the complainant either jointly or severely and prayed for dismiss the complaint.
The Complainant filed Chief affidavit . Complainant was cross examined as Pw1, documents produced by her marked as Ext A1, it was advance payment bill. She re iterated her case in complaint in her chief affidavit namely that fluid was fully discharged for want of timely treatment and confirmed death of fetus.
The Opposite party filed Chief Affidavit as Dw1, produced document marked as Ext B1 to Ext B3. Nurse is examined as Dw2. Head of Gynecology department as Dw3. Witness are cross examined by complainant counsel. Documents from hospitals marked as Ext. X1 and X2. Opposite party submitted argument notes with medical references.
Considering the contentions raised by both parties, following issues arise for consideration in the Case.
- Whether there is any gross negligence in the treatment of complainant and whether death of fetus caused due to the medical negligence in the treatment of opposite parties.
- Whether there is Deficiency in service of opposite party in the matter of treatment of complainant ? If so for what reliefs?
All the issues are inter connected and thus taken up together for convenience.
From the evidence of complainant in cross examination her case is that nurse has done treatment without advise of the doctor. Her Complaint is that no doctor has come and see her not even a single doctor of opposite party No: 2 hospital seen her during her stay on opposite party No:2 hospital. So the allegation is that though patient reached opposite party No:2 hospital with vaginal leakage except the nurse no doctor visited the patient nor told her about the non-availability of doctor in case of emergency treatment and even ultrasound scanning was done at 10 AM on 26/09/2013 though reached at 11 PM on 25/09/2013.
The Dw1 deposed that she does not know hospital keeps her records of treatment of patient . She denied suggestion that there is Deficiency in service on her part in the matter of treatment. Dr: Ajith has examined as Dw3. He has 23 years of experience. He admits that after confirmed diagnosis of premature rapture of membrane patient has to be advised to take rest. Ext B1 is the USG report, it shows that fetus is alive but liquire is completely drained and baby was of 26 weeks and five days, weight-919 grams. Discharge summary is shown to Dw3, admits that she reached opposite party No:2 hospital at 3 AM on 26/09/2013, patient’s general condition was stable that baby was alive. But opined there was poor chance of survival of but due to extreme pre-maturity and risk of infection to the mother. But pregnancy is terminated patient delivered dead baby. Complainant strongly argued that the documents are created by opposite party after filing case.
Opposite party submitted argument notes with medical references. It shows that Opposite party admits that patient came to the hospital at 3 AM on 26/09/2013. Gynecologist examined the patient. There was no fluid leaking out of vagina except wetness on the pad. Patient has no complaint of pain and she was not in labour. She was advised admission for ultra-sonogram and observation under the bed rest. The Complainant was informed that baby was too premature there was poor prognoses for baby and no option except stopping loss of fluid and if fluid was excessive baby may not survive due to pre-term and pre-maturity. USG done at 10 AM, it is reveled condition of Anhydramonios ( no liquids surrounding the baby) with 26-27 week of gestation. Intimated result of investigation to patient, monitoring continued with medicines. Opposite party No:1 visited the patient room but noticed that there is nobody in the room but knew that patient is removed to another hospital. In such a case no doctor can guarantee fetal survival. To prove the treatment in Opposite party No:2, they rely on Ext B1 which contains note by doctors including physical examination at 3 AM by Opposite party No:1 and treatment advised, re visited at 9 AM followed by 11.50 AM and then they left the room. Ext B2 is the birth certificate of child of same patient, B3 is the relevant pages of LT register showing entries of doctor concerned.
The position of law on claims under medical negligence case is well settled by decision of Honorable Supreme Court by various decisions.
Doctors duties to the patient :- A person who holds himself out as ready to give medical advice or treatment implicitly takes that he is possessed of skill and knowledge for the purpose. Such a person owes the patient certain duties, namely a duty of care in deciding whether to undertake the case, a duty of case in deciding what treatment to give: and a duty of care in his administration of that treatment. Kusum Sharma and others Vs Batur Hospital and Medical Research Centre and other,(2010) 3Sec 480)
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the contact of human affairs would do, or doing something which a prudent and reasonable man would not do. (Law of torts, Ratanlal and Dhirajlal edited by Justice G.P.Singh)
A medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of Judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
Once it is found that there is duty to treat, there would be a corresponding duty to take care upon the doctor / patient. There is obligation on the part of the doctors with the captioned “patient must not be neglected”. Whenever there is breach of the aforesaid code, the aggrieved patient or the party can file a claim as per law.
We have our duty and obligation of the civil society to ensure that medical professionals are not unnecessary harassed or humiliated, so that they can perform professional duties without fear and apprehension. Now we shall examine whether the Opposite party No:1, committed any medical negligence in or while performing in her treatment. No hospital or medical practitioner shall refuse to provide emergency medical care in emergency. Hospitals and medical practitioners have to initially screen the persons to decide if the persons require emergency medical treatment.
Regulation 2.4 of the Indian, Medical Council (Professional conduct, Etiquette and Ethics) Resolutions, 2002 reads as follows:
- 2.4 the patient must not be neglected. A physician is free to choose whom he will serve. He should however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdrew from the case without giving adequate notice to the patient and her family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient from necessary medical care”
Coming to the merits of the case, the patient was admitted in the hospital for severe vaginal bleeding and pain on June 25, 2013.The gross negligence of hospital and its doctors is also clear from the fact that the critical patient of vaginal bleeding treated by a nurse who is not at all qualified for the same.
“Deficiency” means any fault imperfection shortcoming or inadequacy in the quality, nature and manner of performance which is requested to be maintained by or under any law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any services.
- “Service” means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing insurance, transport, processing supply of electrical or other energy board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”
The Apex Court in Malay Kumar Ganguly Vs Dr.Sukumar Mukherjee and others (2009) 9 Sec 221 held that negligence or medical negligence is omission to do something which ought to have done or a act of commission which ought not have been done”
Medical Ethics and doctor –Patient relationship:-
2. Duty of care which a doctor owes towards his patient:-39 Once it is found that there is “duty to treat” there would be a corresponding “duty to take care” upon the doctor qua his patient. In certain context, the duty.
Negligence duties owned to the patient:- A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertaken that he is possessed of skill and knowledge for the purposesuch a person, whether he is a registered medical practitioner or not, who is consulted by a patient owes him some duties, namely a duty of care in deciding whether to undertake the case; and duty of care in deciding what treatment to give: and a duty to care in his administration of that treatment. (b) A breach of any of these duties will support an action for negligence by the patient.(c) No doubt the Deficiency in Service cannot be alleged without attributing fault, imperfection, short coming and inadequacy in quality and nature in manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Burden of proof: The Apex Court in Nizam’s Institute of Medical Sciences Vs Prasanth S Dhanaka and others (2009) 6 sec 1 held that once the claimant discharges the initial burden by making out a case of negligence, held onus shifts on the hospital or doctors to satisfy the court that there was no lack of care or diligence.
We are also cognizant of the fact that in cases involving medical negligence, once initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned the onus then shifts on the hospital or to the attending doctor and it is for the hospital to satisfy the court that there was no lack of care or diligence.
In the light of the above facts, we have no option but to hold that the attending doctors were gross negligent in the conduct of their duties in emergency and it was on account of this negligence that the complications set in. We accordingly held that Opposite party No:1 and Opposite party No:2 committed gross negligence in treating the patient in time.
We have referred the citation in Savita Garg (Smt) Vs Director, National Heart institute (2004) 8 Sec 56, where in it is held that once the complainant has filed a claim has successfully discharged the initial burden that the hospital was negligent, and that, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctors who treated the patient to show there was no negligence involved in the treatment. Hospital is bound to produce the record to show that there was no negligence. Para 10 of the Scc in Sarita Gargies Case (Sapra)
In the given case, the complainant had successfully put up the highly probable case.
The Opposite party No:1 while on the box as DW1 did not even state anything as to why she failed to extent the possible treatment to the complainant in time or inform her in ability to prevent catastrophe.
Further it is also the burden of the Opposite party No:1 and Opposite party No:2 to furnish adequate information to the patient and his party so as to enable the patient and his party to make a balanced judgment. The Apex Court in Samira Kohli Vs Dr: Prabha Manchanda and another (2008) 2 Scc 1 held that attending doctors should furnish the adequate information to the patient so as to enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. The adequate information which means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect (b) alternative if any available (c) an outline of the substantial risks and (d) adverse consequences of refusal of consent for the necessary treatment. Similarly there is no need to explain the remote risks of refusal to take treatment, which may persuade a patient to undergo a fanciful or un necessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deferred from agreeing to a necessary treatment or offering to undergo and unnecessary treatment.
No material evidence either in the form of documents or oral evidence to show that adequate information had been furnished to the complainant or relative so as to enable them to take the balanced judgment or to treatment. The Opposite party No:1 and Opposite party No:2 not only failed to give adequate information to the complainant but also failed to give necessary treatment to the complainant to stop Vaginal leakage in time. Accordingly, we hold that there were Deficiency in Service on the part of the Opposite parties more particularly from Opposite party No:1 thereby resulting medical negligence.
Compensation:- The Apex Court in state of Haryana and another Vs Jashir Kaur and other (2003) 7 Sec 484 held that there can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measures of damages cannot be arrived at by precise mathematical calculations. Every method or mode adopted for assessing compensation has to be considered in the background of “Just” compensation, which is the pivotal consideration and requires judicious approach. The Apex court in V.Krishna kumar Vs State of TamilNadu and other (2015) 9 Sec 388 held that quantification of compensation.
Thus the aggrieved person should get that a sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered to the event, the pain and suffering under gone and the liability that he / she would have to incur due to the disability caused by the event”.
By considering the nature of evidence the complainant had undergone the ordeal of pain for days in the course of the period, she has suffered with immense pain and suffering and undergone mental agony because of the negligence of the doctor and the hospital which has been proved by the claimant.
In view of the above decisions the Apex court as to the amount of compensation, we are of the considered view that “Just” compensation. For pain and suffering mental tension, Deficiency in Service Rs.1,00,000/- cost of litigation Rs.10,000/-
There a total sum of Rs.1,10,000/- only in the compensation awarded in favor of the complainant. Opposite party No:1 and Opposite party:No:2 are jointly and severally liable to pay the said compensation with in a period of one month from the date of receipt of the judgment and order.
In case of failure to deposit the said amount with in the period indicated above, there shall be 8% interest per annum from the date of expiry of the period for payment of the amount mentioned above.
The present complaint is allowed to the extent indicated above.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1: Advance payment bill
B1: USG Report
B2: Birth certificate of the child
B3: Relevant pages of LT register
X1: Documents from hospital
X2: Document from hospital
Witness Cross examined
Pw1: Naufarah N.A
Dw1: Dr. Usha Menon
Dw2: Annamma Stany
Dw3: Dr. Ajith. S
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
