D.O.F:12/12/2011
D.O.O:25/10/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.339/2011
Dated this, the 25th day of October 2023
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
1. Misiriya (Since Dead)
D/o Chalakkara Mohammad,
Povval, Nellikal House,
P.O Muliyar, Kasaragod.
2. Chalakkara Mohammad (Since Dead)
S/o Mamminhi Chalakkara
R/at Chalakkara House,
Povval, Nellikal,
P.O Muliyar,
Kasaragod Taluk
3. Fathima aged 6 years DOB 14/06/2006
D/o Misiriya
4. Zainabath Mirsana C.N, aged 3 years DOB 26/03/2009
Grandfather Chalakara Mohammad
Being the natural guardian
R/at Chalakkara House
Povval, Nellikkal
P.O Muliyar, Kasaragod Taluk
5. Hassainar aged 40 years,
S/o Moideen Kutty,
Perwad, P.O Kumbala,
Kasaragod Taluk
6. Beefathima aged 63 years,
W/o (Late Chalakkara Mohammed
7. Mohammadkunhi aged 35 years
S/o Chalakkara Mohammad and Beefathima, : Complainants
8. Nazeer aged 22 years
S/o Chalakkara Mohammad and Beefathima,
All the above are R/at Chalakkara,
Nellikkal, Povval, Muliyar, Kasaragod.
(Adv: U.S. Balan)
And
1. Dr. (Mrs) Zuhara Hameed B.Sc. MD, D.G.O
Gynecologist and Obstetrician,
Reg. No. TCMC 7917,
Carewell Hospital and Research Centre,
Nullipady, Kasaragod 671121
2. Dr. C A Abdul Hameed,
Anesthesiologist,
Carewell Hospital and Research Centre,
Nullipady, Kasaragod 671121
3. Dr. M.A.M Afsal MS,
Managing Director,
Carewell Hospital and Research Centre,
Nullipady, Kasaragod 671121
4. Dr.Rajesh Shetty, M.D
DM (Neuro) Medical Superintendent
A.J. Hospital & Research Centre, Mangalore.
5. Dr. Ashfaq. U. Rahiman
S/o Late Dr. C.A Abdul Hameed
6. Abdul Rahiman Muhammad Azhar
S/o Late Dr. C.A Abdul Hameed
7. Abdul Khader Mohammed Ajmal
S/o Late Dr. C.A Abdul Hameed
All are R/at “Al –Mafazah”
Near Care-well Hospital, Nullipady
Kasaragod Kasaba Village
Kasaragod Taluk And Dt. – 671121
(Adv: Mahesh M)
ORDER
SRI.KRISHNAN.K : PRESIDENT
The complaint filed under section 12 of Consumer Protection Act 1986 on 14/12/2011.
The case of the complainant is that she was admitted in the hospital of opposite Party No: 1 to 3 on 20/03/2009 as Primi Gravida (a woman is pregnant). On 26/03/2009 LSCS operation is done, due to complication referred to Opposite Party No: 4 hospital on 30/03/2009 and tumor in spinal area is detected operation is conducted, discharged on 14/04/2009.
The opposite Party No: 1 is doctor who conducted LSCS operation, opposite Party No: 2 is the doctor who had given anesthesia, opposite Party No: 3 is the Managing Director of hospital, opposite Party No: 4 is the medical Superintendent of A.J hospital Mangalore. The opposite Party No: 5 to 7 were added as per order in IA 31/2021. Supplemental complainants were added as per order in IA 327/2012 and IA 186/2014.
The grievance of complainant is that opposite Party No: 1 to 3 did not take any care to detect or condect tumor operation prior to LSCS operation, failure to exercise reasonable skill. No informed consent is obtained for spinal anesthesia opposite Party No: 1 to 3 has no facility or equipments thereby could not detect nature of tumor formation, no MRI scanning system in opposite Party hospital following allegations attributed to opposite Party No: 1 to 3.
- No examination of spinal or neurological system prior to anesthesia.
- No pre anestheithitic evaluation done
- No neurological evolution done
- Spinal anesthesia caused paralysis of both legs
- Spinal anesthesia is given without examing tumor with in spinal cord
- Neurological detect and tumor when detected spinal anesthesia ought not to have been restored to
The complainant is limping and paralyzed after LSCS operation. She is aged 22 years then. Medical board assessed 50% disability. She died during pendency of the case. The opposite Party No: 1to 4 is liable to pay 20 lakh as compensation.
Para 17 (a) is added as per order in IA 328/2012 Dated 24/09/2012. The complainant died on 15/07/2012 supplemental complainants 2 to 5 are her legal representatives.
2. The opposite Party No: 1 to 3 filed written version denying the allegation complaint is filed beyond two years and thus barred by limitation. There was no negligence. The opposite Party No: 1 is highly skilled Gynecologist with 40 years experience. The Opposite Party No: 2 having 23 years experience.
The Opposite Party admitted that complainant is hospitalized on 23/03/2009 for her second delivery. Labour pain started on 26/03/2009 at 1 PM. She developed leaking of clear liquor following premature rupture of membrances. Cervix was not dilating and no progress of labour thus decided for cesarean. Female baby was extracted at 6.17 Pm on 27/03/2009 at 7.30 Pm duty nurse noted patient having weakness on both lower limbs. Doctor examined the patient. Physician also consulted. He referred to Opposite Party No: 4 hospital with a letter on an ambulance. Later it is learnd that MRI scanning done on 28/03/2009 confirmed patient had tumor on spinal cord. Surgery was conducted tumor removed. Complication is not associated with delivery or LSCS operation Medical records were ready complainant filed CC 17/2011 in CDRF Kasaragod alleging deficiency in service but dismissed on merits as per order dated 03/03/2012, second complaint is barred by resjudicata.
The Opposite Party No: 4 filed written version denying the allegations. Surgery was done by Dr. Sunilshetty. Cc 17/2011 for same relief dismissed on merits. Second complaint is not maintainable. The complainant is barred by limitation. No negligence by Opposite Party No: 4 and case is to be dismissed.
The Opposite Party No: 5 to 7 filed their version denying any negligence on their part. They are only legal heirs of deceased Opposite Party No: 2.
3. The complainant filed chief affidavit and Ext A1 to A13 documents marked from their side. Ext A1 is the discharge bill, Ext A2 to A4 case sheet, Ext A5 is disability certificate, Ext A6 is discharge summary, Ext A7 is medical bill, Ext A8 and 9 lab report, Ext A10 to A 13 are bills Ext X1 is the entire case file of CC17/2011 on the file of this court and X2 is entire case file of Medical College Calicut .
The Opposite Party No: 1 filed chief affidavit and cross examined as Dw1, Ext B1, reference letter marked. Heard both side detailed argument notes filed by both parties.
The following points are formulated for consideration in this case.
- Whether before conducting LSCS operation, is it usual medical practice to rule out tumor in the spinal cord.
- Whether medical test will reveal the tumor in the spinal cord
- Whether there is any medical negligence on the part of Opposite Party No: 1 or any of the Opposite Parties in the above case in the matter of treatment of the illness of the original complainant as consequential sufferings
- Whether there is any deficiency and negligence in the matter of treatment by the Opposite Party hospital there by patient suffered limping and paralysis and whether Opposite Party’s is liable to pay compensation to the complainant and if so for what reliefs?
All the issues are discussed together for convenience.
The main grievance of the complainant is that Opposite Party No: 1 to 3 failed to conduct the test to diagnose tumor prior to LSCS operation and anesthesia. Both parties admit that complainant was admitted in Opposite Party No: 1 hospital on 20/03/2009 for her 2nd delivery. It is also true that the LSCS operation commonly known as cesarean is done by Opposite Party No: 1 on 26/03/2009, anesthesia was given by Opposite Party No: 2 to the spinal code. The complainant delivered a baby on 27/03/2009, patient complained that she could not move her limps and she was referred to the hospital of Opposite Party No: 4 from there MRI scanning were done and this detected tumor in the spinal code. Tumor removed by surgery. It is very relevant to note that the complainant in her complaint. Specifically stated that she was normal before LSCS surgery she had no complaint physically and mentally. According to the complainant, due to anesthesia on the spinal cord and due to anesthesia local as well as general, she suffered move less in her limps and thereby paralyzed.
The Opposite Party No: 1 examined as Dw1, and Dw1 denied the suggestion that she failed to take reasonable care before and after LSCS operation. She further denied that she did not perform what is expected from a doctor with professional skill and experience. She asserted that patent was physically and mentally normal during admission there were no signs or symptoms of any neurological disorder to suspect spinal tumor. She complained of limpness immediately contacted to Opposite Party No: 4 hospital and made arrangements to shift patient to Mangalore. Patient never complied about any pain or disturbance and though in the complaint, no pleadings relating to qualification, experience and professional skill of Opposite Party No: 1, is raised but still complainant elicited the qualification and experience of Opposite Party No: 1 and 4 during cross examination to the direct question when did Opposite Party No:1 detected the tumor in Missiria, Dw1 replied that when paralysis developed 1 day after LSCS, tumor in the spinal cord is suspected and she deposed that LSCS will not form as cause spinal tumor during the anesthesia period and neurological problem. The baby was lying transverse and therefore it became necessary to conduct LSCS. Patient was totally bedridden and crippled because of the paralysis caused by spinal tumor and not due to LSCS. Tumor was extending C4 to T7 and tumor cannot be detected from external examination. According to Opposite Party No: 1, consent is obtained for treatment, total as well as general anesthesia was given on the spinal cord, and medical documents were kept ready in the hospital for delivery to the patient.
The complainant side witness Pw1 to Pw 5 were examined. Pw1 is the relative of complainant, chief affidavit filed in English and agreed that she could not withstand the cross examination and cross discontinued. Pw2 is doctor Mohamed Mustafa of E.K Nayanar Hospital. Pw3 Doctor Raghuraj bhat of K.S Hegde hospital Mangalore. Pw4 is Dr. Shasidaran, Medical college hospital Calicut. Pw5 is Sunilshetty doctor from A.J Hospital Mangalore who removed tumor.
It is pertinent to note that when a patient was both physically and mentally normal, that too advance stage of pregnancy, patent came to the hospital by walking and this there is no suspicious relating to existence of tumor in the spinal cord. No doctor will subject the patient to undergo test for diagnosing tumor, when a women reports to hospital for delivery having no other complaint till then.
Pw4 deposed that tumor cannot be seen with naked eyes. Doctor will not suspect tumor when patient comes for delivery. LSCS was conducted on emergency and otherwise life of baby and mother will be in danger. Pw4 further says that anesthesia is given at a far below level then T1 to T6. He is sure that it cannot cause paralysis spinal Anesthesia for conducting LSCS cannot cause tumor in the patients. Unless patient complains, there is no way to suspect or detect tumor when admitted for delivery. He is given the opinion that treating doctor has done whatever she can do and she did not find any negligence or short coming in the treatment of the complainant. Pw4 also says it is not necessary for conducting MRI when patient is attending the hospital for delivery. Pw2 says for detecting tumor in spinal cord, MRI scanning has to be conducted. At that time MRI scanning facility is available only in Mangalore. Without any indication or symptoms MRI is not being advised during advanced stage of pregnancy.
Pw3 Dr: Raghuram bhat of Ks Hegde hospital Mangalore was examined to prove discharge card, Ext A7 and A9 , A9 case sheet is shown to him. It is shows MRI was done on 28/03/2009, tumor detected in spinal code. Pw4 admits that conducting of LSCS surgery or giving spinal anesthesia or general anesthesia will not cause tumor in the body of patient.
Pw5 admit that he conducted the surgery. He says when the patient is healthy and walking, a doctor will not suspect a tumor. A tumor in spinal cord cannot be visible with the necked eyes. Tumor cannot grow over night. Tumor of the nature cannot be detected by physical examination. There must be sure symptoms to detect tumor.
Dw2 also deposed that there must be same symptoms to suggest a spinal cord tumor.
4. Specific case of complainant is that patient was normal before the LSCS operation and physically mentally she had no complaint (Para -12 of the complaint). The complainant showed no symptoms of suggestive of spinal cord mass lesion.
Depositions of Pw2, PW3 and Pw4 are no help to prove the case of complainant. Pw5 is the doctor who conducted surgery of removal of tumor.
Dw1 is the doctor who conducted LSCS operation. The Opposite Party No: 4 is examined as Dw2. He produced letter of reference marked as Ext B1 in the case. He did not conducted the surgery for removal of tumor but surgery is done by Pw5. He has taken care of patient till discharged on 14/04/2009.
Suggestion was put to whom regarding facilities in Opposite Party No: 1 hospital. He deposed it is fully equipped for admitting for delivery but no facility to treat neurological patients. Patient had a spinal code tumor from C4 to 7 caused placidity. It is revealed by MRI scanning.
The H’ble Supreme court observed in a cathena of cases that a medical professional cannot be held negligent merely because the treatment is no successful or patient dies during surgery/treatment.
To indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action choosen by him was acceptable to the medical profession.
In this case, a part from the allegations made by the claiments there is no other medical evidence tendered by the complainant to indicate negligence on the part of the opposite parties.
Dr. Harish Kumar Kharana Vs Joginder Singh – AIR 2021 SC 4650
Without any proof of deficiency the Opposite Party cannot be held responsible for deficiency in service, the onus of proof of deficiency in service is on the complainant in the complaints under Consumer Protection Act 1986. It is the complainant who had approached the commission, therefore without any proof of deficiency the Opposite Party cannot be held responsible for deficiency in service.
5. In Medical negligence case if there is gross negligence then medical negligence can be attributed. In the particular case doctors of both hospitals treated the patient. No specific pleadings in the complaint about medical negligence attributed to hospital or its doctors.
6. A medical practitioner attending and treating the patient as per accepted medical practice is not negligent or deficiency in service. In the light of the above mentioned evidence and reasons there was no negligence or deficiency in service on the part of opposite parties and they are not liable to compensate the complainant.
7. There is nothing on record to prove medical negligence or due to any act of gross negligence or otherwise, the complainant suffered injury of complication is due to any act or omission of any of the opposite parties. Hence complainants did not succeed in proving necessary gross medical negligence and for reasons aforesaid complaint is dismissed without any order as to costs.
In the result complaint is dismissed.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1- Discharge Summary
A2 to A4 - Case sheet
A5- Disability Certificate
A6- Discharge summary
A7- Medical bill
A8– Lab report
A9- Radiology report
A10 to A13- Bills
B1- Reference letter
X1- The entire case file of CC17/2011 on the file of this court
X2- Case file Medical College Calicut
Witness Examined
PW1- Beefathima
PW2- Muhammed Musthafa
PW3- Raghuraj. U
PW4- Dr.P.K Sashidharan
PW5- Dr.Sunil Shetty
DW1- Dr. Zuhra Hameed
Dw2- Dr. Rajesh Shety
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
