O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The brief facts of this complaint is as follows: The complainant underwent treatment at the 1st opposite party hospital on 02.11.2007 in connection with her delivery. Before that the complainant was admitted in Govt. General Hospital, Kozhencherry for her delivery on 01.11.2007 and later she was referred from Govt. Hospital, Kozhencherry on 02.11.2007 as their operation theatre was closed for repairs. Accordingly, the complainant got admitted the 1st opposite party hospital on 02.11.2007 at about 6 p.m. and underwent treatment in connection with her delivery. The gynecologist attached to the 1st opposite party hospital examined the complainant and done caesarean at about 8 p.m. under spinal anesthesia, and a male baby was taken out. During the surgery, the complainant became unresponsive and went into a deep coma. Immediately, she was rushed to the Pushpagiri Hospital, Thiruvalla for expert management on the same day itself. She was an inpatient there till 16.11.2007. But her condition continued to be critical and as such she was taken to Medical College Hospital, Kottayam and undergone treatment there from 16.11.2007 to 29.11.2007 as an inpatient. At Medical College Hospital, Kottayam, the condition of the complainant was diagnosed as post LSCS-hypoxic ISHAEMIL Encephalopathy. This happened due to the improper administration of anesthesia and improper treatment of the doctors of the opposite party. After prolonged expensive treatment the complainant got relieved from the coma stage. Thereafter she become a complete physical and mental wreck and she is become permanently disabled. She is still undergoing treatment. She was at the age of 29 years when the mishap occurred and it was due to the negligent treatment of the opposite party. The complainant issued a legal notice dated 23.07.2008 calling opposite party to pay Rs.20 lakhs as compensation and further demanded to give the details of doctors who treated there and to furnish the copy of the treatment records. The opposite party denied the demands of the complainant. Hence this complaint was filed for getting a total amount of Rs.20 lakhs with 12% interest.
3. Subsequent to the filing of this complaint and subsequent to the filing of the version 1st opposite party and during the course of the trial of this complaint, the complainant implead addl. opposite parties 2 to 4 in the party array and has made an amendment to the complaint. As per the amendment, the complainant and her relatives specifically informed addl. 3rd and 4th opposite parties that the complainant was an asthma patient at the time of her admission and before the administration of anesthesia. But without paying due attention to the said information they conducted the caesarean section by administering anesthesia without taking necessary safe guards. Thus according to the complainant, the complications of the complainant occurred due to the above reason and the said negligence of opposite parties 1,3 and 4 put the complainant in a condition of total disability. So the opposite parties are liable to the complainant for the loss and suffering sustained to the complainant. Hence this complaint for the realization of a total amount of Rs. 20 lakhs under various heads.
4. In this case, all opposite parties entered appearance and filed their versions. On going through the versions and addl. versions of the opposite parties, it is seen that the contentions raised by them is more or less the same. So we are not narrating the contentions of the opposite parties separately.
5. According to the opposite parties, the complainant was referred from Govt. Hospital, Kozhencherry with obstructive labour and meconium stained liquor and she was admitted by them on 7.30 p.m on 02.11.2007. As per the reference letter of the Govt. Hospital, the complainant was admitted there on 01.11.2007 by Dr. Saraswathy for complaints of labour pain and labour induction followed by artificial rupture of membrane. On noticing meconium stained liquor, amino infusion was given and the complainant was referred to 1st opposite party on 02.11.2007. On examination, the 4th opposite party diagnosed obstructive labour and foetal distress and she had a history of pregnancy induced hyper tension. The complainant was febrile with pulse 120 per minute, BP 140/90, per vaginal examination revealed cervix 25% effaced, caput present and Vx at-1 station. In view of the obstructive labour and foetal distress and symptoms suggestive of prolonged labour, it was decided to admit the complainant and to proceed with emergency caesarean. The condition of the mother and the baby was so critical and the situation was explained to the bystanders and high risk consent was obtained. Cross matched blood was arranged from the blood bank as blood donors was not available. The complainant was put to all necessary pre-operative investigations and pre anesthetic check up and under all aseptic care and precautious, the 4th opposite party conducted an emergency caesarean session under spinal anesthesia. The spinal anesthesia was planned to avoid airway in the rounds and the spinal anesthesia is the most commonly employed and accepted modality of anesthesia in a caesarean session. Anesthesia was administered and controlled by the 3rd opposite party by following standard and universally accepted procedure with utmost care and caution. The caesarean section was uneventful and a deeply asphyxicated baby was extracted out without difficulty at 8.31 p.m and handed over to the pediatrician present in the theatre and he started immediate resuscitative measures. The liquor was found thickly meconium stained liquor. After delivery of the baby the complainant developed difficulty in breathing and further developed respiratory arrest and pulse and BP found not recordable. In that situation, a team of doctors including specialists examined the patient and given necessary treatments and medicines which are required in the circumstances and the line of management given are as per accepted protocol. As a result at about 9.50 p.m. the patient had shown marked clinical progress from the stage of bradycardia and hypertension and opening eyes on painful stimulation. All situations were well explained to the bystanders and in joint discussion it was decided to shift the patient to Pushpagiri Medical College Hospital for further management. The 3rd opposite party himself accompanied the patient to higher centre in a well equipped ambulance. The sudden occurrence of bradycardia and hypertension and cardiac arrest was provisionally diagnosed as triggered due to Amniotic Fluid Embolism. The Addl. 3rd and 4th opposite parties had exercised due diligence and care in giving emergency treatment by conducting the caesarean section for obstructive labour and foetal distress. The patient developed dyspnoea and consequent difficulties due to the unexpected spontaneous emergence of amniotic fluid embolism and it was on account of timely treatment of the opposite parties, the patient recovered and started breathing as normal. Profound neurological impairment is a common complication in patients who survive following amniotic fluid embolism and is not due to any act or omission on the part of the surgeon or anaesthesiologist. The patient was received as a referred case from Govt. Hospital, in a serious condition and the then condition of the patient necessitated an emergency caesarean. The patient was shifted to higher centre with marked clinical progress from the stage of bradycardia and hypertension and with response to painful stimulus. Amniotic Fluid Embolism is purely unconnected to the administration of anesthesia. The allegation of improper treatment and improper administration of anesthesia is false. The allegation that the 1st opposite party has not provided information about the treated doctors is false as the bystanders are well aware of the fact that addl. 3rd and 4th opposite parties are the treated doctors. Opposite parties are not aware of the subsequent treatments of the patient, the 1st opposite party hospital is a well equipped hospital and addl. 3rd and 4th opposite parties are well qualified and experienced in their field. What all treatments given to the complainant was as per the prescribed standard and the patient is liable to substantiate and establish that the treatment given to her at District Hospital, Kozhencherry and Medical College hospital, Kottayam have no way cause for her alleged complications and other disabilities. In the addl. versions of opposite parties 1, 3 and 4 it is also contended the patient or the bystanders never informed any of the opposite parties that the complainant was an asthma patient. The question of vicarious liability is also raise by the 1st opposite party as well as the addl. 3rd and 4th opposite parties. With the above contentions, opposite parties prays for the dismissal of the complaint as there is no negligence or deficiency in service from their part as alleged by the complainant.
6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
7. The evidence of this complaint consists of the oral depositions of PWs1 to 5 and DWs.1 and 2 and CW1 and Exts.A1 to A18 series and B1 series and C1and C2. After closure of evidence, both sides except 2nd opposite party filed their argument notes separately and they were heard.
8. The Point:- The complainant’s case is that she was admitted in the 1st opposite party hospital as a referred patient from Govt. Hospital, Kozhencherry on 02.11.2007 at 6 p.m. in connection with her delivery. After the examination of the complainant, addl. 4th opposite party recommended a caesarean under spinal anesthesia under the supervision of the 3rd addl. opposite party, the anesthetist. Before the surgery, the patient as well as the bystanders informed the opposite parties that the patient was an asthma patient. But they administered anesthesia to the patient ignoring the information given to them about the asthma complaint of the patient. Due to the said negligence of the opposite parties, serious complications are sustained to the patient and she went into a deep coma. Thereafter the patient was sent to Pushpagiri Hospital, Thiruvalla on 02.11.2007 and she had undergone treatment there till 16.11.2007 and thereafter shifted to Medical College Hospital, Kottayam and she continued her treatment there till 29.11.2007. But she was not recovered from her comatic stage so far and she is become totally disabled in all respects. Such a situation was occurred to the complainant solely due to the negligent treatment of the addl. opposite parties. Therefore, opposite parties are liable to compensate the complainant and hence the complainant prays for allowing the complaint.
9. In order to prove the case of the complainant, complainant’s husband being the power of attorney holder of the complainant filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, he was examined as PW1 and the documents produced are marked as Exts.A1 to A16. Apart from PW1, 3 doctors and the sister of a complainant were also examined as PWs.2 to 5 and Exts.A17 and A18 series are also marked for the complainant through PW3 and DW2.
10. Ext.A1 is the power of attorney executed by the complainant in favour of PW1. Ext.A2 is the copy of the advocate notice dated 23.07.2008 issued to the 1st opposite party. Ext.A3 is the copy of the reply to Ext.A2 issued by the 1st opposite party. Ext.A4 is a certificate dated 04.01.2011 issued by Dr. M. Madhusoodanan showing the condition of the complainant. Ext.A5 is the prescriptions given by Dr. N. Madhusoodanan to the complainant from 13.03.2008 to 11.12.2010. Exts.A6 to A12 are the hospital bills, medicine bills, taxi charges etc. showing the expenses of the complainant in connection with her treatment. Ext.A13 is a certified copy of the S.S.L.C Book of the complainant. Ext.A14 is the treatment records in respect of the complainant’s treatment at Pushpagiri Hospital, Thiruvalla. Ext.A15 is the treatment records in respect of the complainant’s treatment at Medical College Hospital, Kottayam. Ext.A16 is a certificate dated 11.05.2009 issued from Chithra Physiotherapy Clinic, Azhoor, Pathanamthitta showing that the complainant was under Physiotherapy treatment from 04.02.2008 till 11.05.2009 and they have received an amount of Rs.48,500/- for the said treatment. Ext.A17 is the copy of reference letter kept in Ext.A14 issued from Pushpagiri Medical College Hospital. Ext.A18 series (A18 to A18(e) ) are the lab test results in respect of the various lab tests done to the complainant at 1st opposite party hospital from her admission to discharge.
11. On the other hand, the contention of the opposite parties 1, 3 and 4 is as follows: According to them, they received the patient as a referred case from Govt. Hospital, Kozhencherry at 7.30 p.m. on 02.11.2007. Before that the patient was under treatment for delivery at Govt. Hospital, Kozhencherry from 01.11.2007 morning onwards. She was so referred by saying that the operation theatre at Govt. Hospital, Kozhencherry is closed for repairs. She was referred for obstructive labour meconium stained liquor for further management. The patient was admitted at Govt. Hospital with complaints of labour pain and labour induction. Artificial Rupture of Membrane was done and amino infusion was given at Govt. Hospital, Kozhecherry. Thick meconium stained liquor was also noticed before referring the patient. At the time, when the patient was brought to the opposite parties hospital, the condition of the patient and the condition of the child was so critical. In view of obstructive labour and foetal distress and the symptoms suggestive of prolonged labour it was decided to admit the patient and to proceed with emergency caesarean. All the situations was also explained to the bystanders and obtained high risk consent. Thereafter, the patient was put to all necessary pre-operative investigation and pre-anesthetic check up and under all aseptic care and precautions, the 4th opposite party conducted emergency caesarean under spinal anesthesia which was administered by the addl. 3rd opposite party. A deeply asphyxiated baby was extracted and handed over to the pediatrician for immediate resuscitative measures. After the delivery of the baby, complications of breathing trouble, respiratory arrest, B.P etc. developed to the complainant. On noticing the said complications, opposite parties provided necessary and required treatments and medicines immediately and as a result, the patient’s condition was improved. It was provisionally diagnosed that the said complication was due to amniotic fluid embolism. Thereafter, the condition of the patient was well explained to the bystanders and in joint discussion, it was decided to shift the complainant to Pushpagiri Medical College Hospital for further management and accordingly the patient was shifted to Pushpagiri Medical College in a well equipped ambulance accompanied by the 3rd opposite party. Opposite parties exercised due diligence and care in giving emergency treatment by conducting the caesarian section for obstructive labour and foetal distress. In the management of the patient, there was no negligence or nothing falling short of the medically required standard or care and attention from the side of the opposite parties at any point of time. Dyspnoea and consequent difficulties developed due to the unexpected spontaneous emergence of amniotic fluid embolism and it was on account of timely treatment of the opposite parties, the patient recovered and started breathing as normal. Profound neurological impairment is a common complication in patients who survive following amniotic fluid embolism. The complainant has purposely suppressed the real facts that occurred at the Govt. Hospital. The patient had undergone labour induction with artificial rupture of membrane and referred to 1st opposite party hospital due to meconium stained liquor with non progress despite prolonged labour which lead to the emergent caesarean. The whole events of management and efficacious measures taken by the opposite parties from the moment of admission of the complainant till reference to a higher centre discloses the care and cautions taken by the opposite parties in the treatment. Opposite parties are not aware of the subsequent treatments undergone by the complainant. The 1st opposite party is a well equipped hospital and addl. opposite parties 3 and 4 are qualified and experienced doctors. The patient was brought in a critical condition and timely management of the opposite parties saved the life of the mother and the child and what all treatments given by them for few hours are standard and medically recognized. Therefore, they argued that they have not committed any negligence and hence the complainant is not entitled to get the complaint allowed. Therefore, they prays for the dismissal of the complaint.
12. In order to prove the case of the opposite parties, the addl. opposite parties 3 and 4 filed proof affidavits in lieu of their chief examination. On the basis of their proof affidavit, they are examined as DWs.1 and 2 and the treatment record in respect of the complainant’s treatment at opposite parties hospital is marked as Ext.B1 series.
13. Apart from the above evidences, the Chairman of the Medical Boards of Govt. Medical College, Kottayam constituted as per the order of this Forum is examined as CW1 and the disability certificate issued by the Medical Board is marked as Ext.C1 and the case sheet prepared for issuing Ext.C1 disability certificate is marked as Ext.C2.
14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute with regard to the admission of the complainant as a referred case from Govt. Hospital, Kozhencherry and the emergency caesarean section and the reference of the patient to Pushpagiri Hospital, Thiruvalla. The allegation of the complainant is that due to the negligent treatment of the opposite parties, severe complications were sustained to the complainant and as a result she is put into a comatic stage. According to the complainant, she had admitted at the opposite parties hospital for delivery in a normal condition. She had asthmatic complaints and this was intimated to the doctors at the time of her admission. But the doctors ignored it and conducted an emergency caesarean under spinal anesthesia and they have not made any precautious for pre-surgical examinations in view of the asthma complaints of the complainant which was specifically informed them at the time of her admission. This was the cause of the complication of the complainant, which resulted in putting the complainant in a comatic stage.
15. On the other hand, the contention of the opposite parties is that the complainant was admitted in a critical stage as a referred patient from Govt. Hospital, Kozhencherry. Before the admission, the complainant was under the treatment at Govt. Hospital for 2 days with complaints of labour pain and labour induction followed by artificial rupture of membrane. On examination, it was diagnosed obstructive labour and foetal distress with pregnancy induced hyper tension. Since the condition of the complainant and the baby in her womb was so critical and in view of the obstructive labour and foetal distress and symptom of suggestive prolonged labour they decided to conduct an emergency caesarean section, after explaining the situations to the bystanders. After conducting all pre-operative procedures that are required in the circumstances, the caesarean section was done under spinal anesthesia. The surgery was uneventful and a deeply asphyxiated baby was extracted out and the baby was handed over to the pediatrician for immediate resuscitative measures. Immediately, after the delivery of the baby the complainant developed difficulty in breathing followed by respiratory arrest. Effective measures have taken for rescuing the patient warranted in the circumstances as per accepted protocol. As a result, the complainant was recovered from the then casualty. The said complication was provisionally diagnosed as triggered due to aminiotic fluid embolism. For further higher management, the patient was referred to Pushpagiri Hospital, Thiruvalla. As part of pre surgical examinations the bystanders of the patients were asked about the pre-existing ailments of the complainant if any, including asthma their reply was negative. Therefore, and in view of the emergency situation, the cesarean section was done immediately for saving the life of the patient and the child. Nothing done in wrong and what all treatments given are standard and medically accepted. So there is no negligence from their part and the alleged complication is not due to any of the fault of the opposite parties and it was caused due to the negligence of the doctors of the Govt. Hospital, Kozhencherry.
16. In view of the above said contentions of the parties, the following questions are to be considered:
(i) Whether the complainant received proper treatment at Govt. Hospital, Kozhencherry and whether she was referred in a healthy condition? The answer is negative as there is no evidence to show that the complainant had received proper treatment at Govt. Hospital, Kozhencherry and she was referred in an healthy condition. It is an undisputed fact that the complainant was under treatment at Govt. Hospital for 2 days for complaints of labour pain and later she was referred when the doctors realized that the patient’s condition become out of reach and they cannot rescue the patient with their facilities. In that situation, the patient was referred by saying that the operation theatre is closed for repairs. Here the following deposition of PW3 is much relevant, which is as follows:-“Basic facilities ഇല്ലാത്ത ആശുപതിയില് (OT, Labour Room etc.) delivery യ്ക്ക് admit ചെയ്യാന് പാടില്ല. അപ്രകാരം admit ചെയ്താല് അത് negligence ആണ്”. Doctors attended the complainant at Govt. Hospital was well aware of the fact that the operation theatre was closed for repairs. The said closing of the operation theatre is not subsequent to the admission of the complainant and the repairs occurred not in an emergency situation. Moreover, the attempts made by this Forum on the application of the opposite parties for producing the treatment records of the complainant from Govt. Hospital, Kozhencherry is also failed due to the non co-operation of the hospital authorities. We feel it as a suppression and not a non co-operation from the part of the authorities of the Govt. Hospital, Kozhencherry. Further, the complainant also purposely suppressed the entire matters occurred till the admission of the complainant at opposite parties hospital. The only evidence brought by the complainant for proving that the complainant was in an healthy condition at the time of admission at opposite parties hospital is the oral testimony of the complainant’s sister who was examined as PW5. But she is a highly interested witness and hence her evidence cannot be accepted in the absence of any other supporting evidence. So it is clear that the complainant was brought to the opposite parties hospital in a critical condition.
(ii) The next question to be considered is whether an emergency caesarean section was warranted in this case? The situation discussed in the preceding paragraph and the time of admission and the time of caesarean noted in Ext.B1 clearly shows that an immediate caesarean section was highly warranted to the complainant.
(iii) The next question to be considered is whether asthma complaint was intimated to the doctors at the time of the complainant’s admission? According to the complainant, it was intimated to the doctors. But according to the opposite parties nobody intimated about any asthmatic complaints in spite of an enquiry made by the doctors to the bystanders of the complainant. But in this respect, the complainant has not adduced any evidence to prove that the asthma complaint is intimated to the doctor. At the same time, the treated doctors deposed before this Forum, that as part of pre-surgical examinations and preparations they have asked about any major illness to the complainant in the past and enquired about any drug allergy to the bystanders and they told that there was no major illness in the past and there is no drug allergy and this was also recorded in the anesthetic record. On a perusal of Ext.B1, it is found that the said things are recorded in Page No.11 of Ext.B2 (back side). Further, as per Ext.B1(a) which is prepared at the time of reference of the patient to Pushpagiri Hospital, Thiruvalla, it is clearly stated as follows:- “she had a history of bronchiole asthma which was not divulged to us earlier”. That particular portion is marked as Ext.B1(b). Ext.B1(b) was prepared long before the filing of this complaint and hence it cannot be said to be a fabricated document. Further, the complainant has not adduced any evidence to show that she had asthma complaints and she had undergone treatment in the past despite the filing of I.A.77/13 by the opposite parties asking them to produce the treatment records if any. Moreover, PW5 deposed before this Forum as follows:- “പ്രസവത്തിനു മുന്പ് ആസ്മാരോഗം ഇല്ലാഞ്ഞതുകൊണ്ട് അതിനുള്ള ചികിത്സ ഒന്നും നടത്തിയിട്ടില്ല”. So it is clear that the allegation of asthma itself is doubtful and there is no chance for intimating it to the opposite parties.
(iv) The next question to be considered is whether the complainant’s complication is the result of improper administration of anesthesia or the result of asthmatic drug allergy? In the original complaint, the allegation is improper administration of anesthesia and improper treatment and there was no allegation in connection with asthma complaint. But in the amended complaint, the allegation is that opposite parties administered anesthesia without taking any necessary safeguards that are required for an asthma patient. The complainant’s argument is that the doctors has not made any precautious before administering anesthesia in spite of the complainant’s ailment of asthma which was communicated to the doctors at the time of admission itself. But the argument of the opposite parties is that before the surgery they enquired whether the complainant is suffering from any diseases including asthma or about drug allergy. But the answer was negative. Since the condition of the complainant was very critical no tests were conducted as it will take time for getting the test results. There is no evidence to show that the asthma complaint of the complainant was brought to the notice of the doctors. At the same time, as per the pre anesthetic record in Ext.B1 (back side of page No.11) it is clearly recorded as follows:- “No H/O any major illness in the past, no history of drug allergy”. We cannot say that the said entries in Ext.B1 is made by the doctor arbitrarily and hence the said entry is made on the basis of the information collected by the doctor either from the complainant or from the bystanders. Moreover, a doctor is not supposed to make such an entry arbitrarily as it will not give any benefit to a doctor. So the allegation that the doctors ignored the complainant’s ailment of asthma before administering anesthesia is not sustainable. Moreover, the complainant’s claim related to asthma is incorporated in this complaint at a later stage of the proceedings of this complaint. The delay is justifying by saying that the 1st opposite party has not provided the treatment records in time. But the said justification will not stand on the basis of the following facts. The surgery was done on 02.11.2007. A legal notice claiming 20 lakhs and the demand of the treatment records was issued to 1st opposite party on 23.07.2008. 1st opposite party sent their reply on 06.08.2008 in which the 1st opposite party clearly stated that the treatment records will be made available at appropriate time and Forum. The complaint was filed on 21.05.2009. The petition for producing the treatment records was filed on 31.01.2011 and the treatment records are produced by the 1st opposite party on 08.07.2011. Even after getting the treatment records, complainant waited for amending the complaint for incorporating the asthma issue till 20.10.2012. Before this, PW1 was also examined. At the same time, as per the deposition of PW5, complaints of asthma of the complainant was told to all doctors and this was also informed to the complainant’s counsel at the time of preparing the complaint. The relevant portion of PW5 is as follows:- “complaint തയ്യാറാക്കാന് വിവരങ്ങള് പറഞ്ഞു കൊടുക്കാന് ഞാനും, എന്റെ പിതാവും കൂടെയാണ് വക്കീലാഫീസില് പോയതും, ഞങ്ങള് രണ്ടുപേരും കൂടിയാണ് വിവരങ്ങള് പറഞ്ഞു കൊടുത്തതും. വിവരങ്ങള് പറഞ്ഞു കൊടുത്ത കൂട്ടത്തില് രജനികുമാരിക്ക് നേരത്തെ മുതല് ആസ്മാരോഗം ഉണ്ടായിരുന്നുവെന്നും അതിനുള്ള ചികിത്സകള് ഉണ്ടായിരുന്നുവെന്നും ആ വിവരം ചികിത്സക്കുപോയ എല്ലാ ആശുപത്രിയിലേയും ഡോക്ടര്മാരോടും പറഞ്ഞിരുന്നുവെന്നും വക്കീലിനോട് പറഞ്ഞിരുന്നു”. The said deposition clearly shows that the counsel who prepared the complaint was well aware of the asthma complaints of the complainant before iling the complaint. PW5 further deposed as follows:- “കോഴഞ്ചേരി ഗവ. ആശുപത്രിയില് ആസ്മാ ചികിത്സക്ക് പോയിട്ടുണ്ട്. പ്രസവത്തിനു മുന്പ് ആസ്മാരോഗം ഇല്ലാത്തതുകൊണ്ട് അതിനുള്ള ചികിത്സ ഒന്നും നടത്തിയിട്ടില്ല”. If the above said deposition of PW5 is treated as true and a bonafide statement, why the allegation regarding asthma complaints did not find a place in the complaint. So it is clear that the deposition of PW5 is not reliable. Therefore, and the inordinate and unexplained delay in amending the complaint for incorporating asthma issue is an after thought intended for an unlawful enrichment.
17. However, when the question of medical negligence is considered, expert evidence is highly necessary. In that respect, 5 expert doctors including addl. opposite parties 3 and 4 were examined.
18. PW2, an experienced Neurologist, in his deposition in chief it is stated that as per the treatment records the complications of the complainant is diagnosed as hypoxic encephalopathy (brain damage secondary to decreased oxygen supply to the brain) and it can be caused due to anesthetic accident. But in cross-examination, he deposed that many of the heart diseases and diseases affecting the lungs can cause hypoxic brain damage and further deposed that he cannot say under what reason this patient caused this accident.
19. PW3, an experienced Neurologist, deposed before this Forum as follows:- പ്രസവം anticipate ചെയ്യാതെ artificial rupture of membrane ഉണ്ടാക്കിയാല് patient-ന് complications ഉണ്ടാകും (Q&A) foetal distress, septisemia, exhorsion for the mother, തുടങ്ങിയ complications ഉണ്ടാകാം. ഒരു pregnant lady-ക്ക് പ്രസവത്തിനുവേണ്ടി artificial rupture of membrane ഉണ്ടാക്കിയതിനുശേഷം മറ്റൊരു ആശുപത്രിയിലേക്ക് പ്രസവത്തിന് refer ചെയ്യുന്നത് patient-നെ സംബന്ധിച്ചും, കുട്ടിയെ സംബന്ധിച്ചും വളരെ അപകടകരമായ അവസ്ഥ ഉണ്ടാക്കും (Q & A).
20. PW4, another experienced Neurologist, deposed before this Forum that he diagnosed the complainant’s complication as Hypoxic Ischemic Encephalopathy and further deposed that the possible causes of this particular diagnosis noted by him is as follows:- “ (i) Hypoxic Injury secondary to spinal anesthesia (ii) Amniotic Fluid Embolism (iii) Acute Bronchosparam in a patient with previous asthma (iv) Septicemia with Hypertension”. He also deposed that this can be caused by the administration of anesthesia for a cesarean section on an asthmatic patient without taking adequate precautions. At the same time, in cross-examination he deposed as follows:- “Artificial Rupture of Membrane ഉണ്ടാക്കിയ ഒരു patient-ന് septicemia ഉണ്ടാകാന് വളരെയധികം സാദ്ധ്യതയുണ്ട്. എന്റെ observations-ല് പറഞ്ഞിട്ടുള്ള എല്ലാ കാര്യങ്ങളും septicemia കൊണ്ട് ഉണ്ടാകുന്നതാണ്”. Further in re-examination, he stated that septicemia can be occurred in special situations when the patient is already infected prior to surgery.
21. CW1, an experienced neurologist and Chairman of the Medical Board deposed that Hypoxic Encephalopathy can be occurred due to various reasons including lungs failure. He further deposed that he cannot say under what circumstances the complainant sustained lungs failure, his further deposition is as follows:- “Previous treatment records പരിശോധിച്ചതില് 3rd and 4th opposite party നല്കിയ ചികിത്സയില് യാതൊരു പിഴവുകളും കണ്ടെത്താന് കഴിഞ്ഞിട്ടില്ല. രോഗിക്ക് അടിയന്തിരമായി നല്കേണ്ട എല്ലാ ചികിത്സകളും അവര് നല്കിയിട്ടുണ്ടെന്നും ആ രേഖകളില് നിന്നും മനസ്സിലാക്കാം”. He also deposed that he is the doctor who had given the final opinion in Ext.C1 and the final opinion is hypoxic brain injury and the reasons are Amniotic Fluid Embolism or aspiration pneumonia leading to respiratory failure and it is not stated in Ext.C1 that the complainant’s complication was due to anesthetic complications. The relevant portion of the deposition of CW1 is as follows:- “Ext.C1-ലെ final opinion നല്കിയിട്ടുള്ളത് ഞാനാണ്. Ext.C1-ല് മറ്റ് doctors-ന്റെ ഒപ്പില്ല. Final opinion-ല് hypoxic brain injury എന്നാണ് പറഞ്ഞിട്ടുള്ളത്. അതിന്റെ കാരണം amniotic fluid embolism or aspiration pneumonia leading to respiratory failure എന്നാണ്. Ext.C1-ല് പറഞ്ഞിരിക്കുന്നത്. ആയത് anesthetic complication ആണെന്ന് Ext.C1-ല് പറഞ്ഞിട്ടില്ല”.
22. DW1, the anesthetist who administered anesthesia to the complainant, in his cross-examination deposed as follows:- “Asma രോഗം patient പറഞ്ഞിരുന്നുവെങ്കില് മാത്രമെ doctor-ക്ക് അറിയാന് കഴിയു. പരിശോധനാ സമയത്ത് symptoms ഉല്ലെങ്കില് അറിയാന് കഴിയില്ല. ഈ കേസില് രോഗി asthma ഉള്ളതായി ചോദിച്ചിട്ടും പറഞ്ഞിരുന്നില്ല”. He further deposed as follows:-“Spinal anesthesia-ല് breathing problem ഉണ്ടാകാറില്ല. Spinal anesthesia മുലം സാധാരണയായി Hypoxic Encephalopathy ഉണ്ടാകാറില്ല”. In re-examination, he deposed as follows:- “Anesthesia administer ചെയ്യുന്നതിനു മുന്പ് patient-നെ നേരിട്ട് കണ്ട് pre-evaluation നടത്തിയിട്ടുള്ളതാണ് (Q&A) എനിക്ക് മനസ്സിലായ സംഗതികളുടെ അടിസ്ഥാനത്തിലാണ് ഞാന് ഈ patient-ന് spinal anesthesia opt ചെയ്തത്. Patient Asthamatic patient ആണെന്ന് മനസ്സിലായാലും ഇത്തരം കേസുകളില് spinal anesthesia മാത്രമെ നല്കാന് കഴിയൂ. asthmatic patient-ന് general anesthesia നല്കേണ്ടി വന്നാല് precautious ആയി നല്കുന്ന medicines-ന്റെ effect ലഴിക്കണമെങ്കില് 4-6 hours ആവശ്യമാണ്. Planned surgery—യില് മാത്രമെ ഇപ്രകാരം ചെയ്യാന് കഴിയുള്ളു. Emergency surgery-ക്ക് precautious medicine നല്കി patient-നെ normal ആക്കി anesthesia നല്കാന് പറ്റില്ല. ഈ കേസില് emergency surgery ആയിരുന്നു. അതിനാലാണ് spinal anesthesia നല്കിയത്”.
23. DW2, the gynecologist who treated the complainant deposed as follows:- “ESR test നടത്തി result കിട്ടാന് ഒരു മണിക്കൂര് വൈകും. ഹര്ജിക്കാരി Govt. Hospital-ല് നിന്നും refer ചെയ്തു വന്നതാണ്. Emergency case ആയിരുന്നു. സിസ്സേറിയന് E.S.R ആവശ്യമില്ല ഒരു മണിക്കൂര് വെയ്റ്റ് ചെയ്യാന് പറ്റുന്ന അവസ്ഥയിലായിരുന്നില്ല ഹര്ജിക്കാരിയുടെ അപ്പോഴത്തെ condition. 7.30 p.m-ന് ഹര്ജിക്കാരിയെ admit ചെയ്തത് ഞാനാണ്”. She further deposed as follows:- “ Asthma വിവരം ചോദിച്ചപ്പോള് ഇല്ലെന്നാണ് പറഞ്ഞിരുന്നത്. ഉണ്ടെന്ന് പറഞ്ഞിരുന്നുവെങ്കില് ആ വിവരം case sheet-ല് കൃത്യമായി രേഖപ്പെടുത്തുമായിരുന്നു. Minor surgery-ക്കുപോലും Asthma വിവരം ചോദിച്ചിരിക്കും”.
24. In view of the overall circumstances of this case, and the available evidences including the exhibits and the oral evidences of the witnesses leads us to the following findings: The complainant was admitted for delivery at Govt. Hospital, Kozhencherry on 01.11.2007 and later referred to the 1st opposite party hospital on 02.11.2007 at about 7 p.m. in a critical condition. Considering the critical condition o the complainant, opposite parties 3 and 4 conducted an emergency caesarean under spinal anesthesia within half an hour for saving the life of the complainant as well as child after conducting the required pre-operative procedures that can be done within the said short time. The allegation of the complainant that the complainant’s asthma complaint was intimated to the doctors is not believable as the said contention was raised in this case only at a later stage. So the said contention can only be treated as an after thought. It is more evident from the much belated amendment application and as per the following deposition of PW5 which is as follows:- “Complaint തയ്യാറാക്കാന് വിവരങ്ങള് പറഞ്ഞു കൊടുക്കാന് ഞാനും, എന്റെ പിതാവും കൂടെയാണ് വക്കീലാഫീസില് പോയതും, ഞങ്ങള് രണ്ടുപേരും കൂടിയാണ് വിവരങ്ങള് പറഞ്ഞു കൊടുത്തതും. വിവരങ്ങള് പറഞ്ഞു കൊടുത്ത കൂട്ടത്തില് രജനികുമാരിക്ക് നേരത്തെ മുതല് ആസ്മാരോഗം ഉണ്ടായിരുന്നുവെന്നും അതിനുള്ള ചികിത്സകള് ഉണ്ടായിരുന്നുവെന്നും ആ വിവരം ചികിത്സക്കുപോയ എല്ലാ ആശുപത്രിയിലേയും ഡോക്ടര്മാരോടും പറഞ്ഞിരുന്നുവെന്നും വക്കീലിനോട് പറഞ്ഞിരുന്നു. കോഴഞ്ചേരി ഗവ. ആശുപത്രിയില് അസ്മാ ചികിത്സക്ക് പോയിട്ടുണ്ട്. പ്രസവത്തിനു മുന്പ് ആസ്മാരോഗം ഇല്ലാത്തതുകൊണ്ട് അതിനുള്ള ചികിത്സ ഒന്നും നടത്തിയിട്ടില്ല”. Further, the complainant has not adduced any evidence to show that she is an asthma patient even after the filing of a specific petition by opposite parties 3 and 4 for producing the complainant’s asthma treatment records. Thus it is clear that the information regarding the asthma complaint was not conveyed to the opposite parties prior to the surgery. Therefore, the contention of the opposite parties that they have enquired about the pre-existing diseases and the reply was negative cannot be discarded. The allegation of the complainant that the 1st opposite party has not provided the treatment records and the address of the addl. opposite parties is also has no force, in view of the undertaking made by the 1st opposite party in their reply notice (Ext.A2) and in view of the much belated application of the complainant before this Forum for getting the said documents.
25. The oral evidence of the expert doctors in general and that portions which are quoted here in above goes to show that the complainant’s complications can be caused due to various reasons. But none of them has deposed before this Forum that the complainant’s complication was due to improper administration of anesthesia or an anesthetic accident or due to any drug allergy. CW1 clearly stated before this Forum that as per the treatment records he could not find any negligence in the treatment of the complainant by the 3rd and 4th opposite parties and what all treatments they had given are warranted and highly necessary in an emergency situation. He further stated that the present complications of the complainant was due to the hypothec brain injury and it was caused either due to amniotic fluid embolism or aspiration pneumonia leading to respiratory failure and it is not the consequence of an anesthetic complication. It is the specific case of the complainant that the complainant’s complications are due to anesthetic accident. Though the experts admitted that anesthetic accidents can occur in asthma patients, their deposition is that the complainant’s complication is not due to an anesthetic accident. Further, the experts deposed that if artificial rupture of membrane is made without anticipating the delivery and the infection caused prior to surgery also can cause complications. Here in this case, artificial rupture membrane was done at the Govt. Hospital, Kozhencherry and the patient was at Govt. Hospital for about 2 days. So we cannot rule out the possibility of starting the complications to the complainant before her admission at the opposite parties hospital. Moreover, there is no evidence regarding the treatment of the complainant at the Govt. Hospital, Kozhencherry. No treatment records produced. The doctor who treated the complainant at the Govt. Hospital is not a witness in this case. Further, the complainant had no case about the facilities in the 1st opposite party hospital and the competence of addl. 3rd and 4th opposite parties. It is also pertinent to note that the complainant has not adduced any cogent evidence to show the particular deficiency in service and the particular medical negligence of the opposite parties. From the available evidence, it is seen that opposite parties had given an immediate treatment to the patient brought in a critical stage referred from the Govt. Hospital in a critical condition. As a result of the said treatment of the opposite parties, the life of the complainant and the child was saved. Thereafter the patient was referred to higher centre for better management. In the absence of any evidence showing the situations and the condition of the complainant till her admission at opposite party’s hospital and on the basis of the evidence in this case we find that there is no negligence or deficiency in service from the side of the opposite parties in connection with the complainant’s treatment. At the same time as per Ext.C1, complainant had severe disabilities. But it is not proved that the said disabilities of the complainant is caused due to the negligence of the opposite parties. Therefore and on the basis of the discussions, observations and findings made hereinabove, this complaint is found not allowable.
26. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 24th day of October, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member – I) : (Sd/-)
Smt. Sheela Jacob (Member – II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Pankajakshan. C
PW2 : Dr. M. Madhusoodhanan
PW3 : Dr.P.A. Jacob
PW4 : Dr. Reji Thomas
PW5 : Bindu. P.V.
Exhibits marked on the side of the complainant:
A1 : Power of attorney executed by the complainant
in favour of PW1.
A2 : Copy of the advocate notice dated 23.07.2008 issued by the
1st opposite party.
A3 : Copy of the reply to Ext.A2 issued by the 1st opposite party. A4 : Certificate dated 04.01.2011 issued by Dr. M.
Madhusoodanan.
A5 : Prescriptions given by Dr. N. Madhusoodanan to the
complainant from 13.03.2008 to 11.12.2010.
A6 to A12 : Hospital bills, medicine bills, taxi charges etc.
A13 : Certified copy of the S.S.L.C Book of the complainant.
A14 : Treatment records of the complainant’s treatment at
Pushpagiri Hospital, Thiruvalla.
A15 : Treatment records of the complainant’s treatment at
Medical College Hospital, Kottayam.
A16 : Certificate dated 11.05.2009 issued from Chithra
Physiotherapy Clinic, Azhoor, Pathanamthitta.
A17 : Copy of reference letter in Ext.A14 issued from Pushpagiri
Medical College Hospital, Kottayam.
A18 series (A18 to A18(e) ) : Lab test results.
Witness examined on the side of the opposite parties:
DW1 : Kuruvila Samuel
DW2 : Shyama Daniel
Exhibits marked on the side of the opposite parties:
B1 series : Treatment Records
Court Witness:
CW1 : Dr. Jacob George
Court Exhibits:
C1 : Disability Certificate
C2 : Case Record
(By Order)
Copy to:- (1) Rajani Kumari.P.V., Pulluvelil, Nellikkala.P.O,
Elanthoor Village, Kozhencherry Taluk.
(2) Dr. Joseph George, Managing Partner, Poyyanil
Hospital, Kozhencherry.P.O.,
(3) National Insurance Co.Ltd., P.B.No.67,
Kallumkathura Buildings, Govt. Hospital Road,
(Main Road), Pathanamthitta.
(4) Dr. Kuruvilla Samuel, Anesthetist,
Poyyanil Hospital, Kozhencherry.
(5) Dr. Shyama, Gynecologist, Poyyanil Hospital,
Kozhencherry.
(6) The Stock File.
