BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 11/12/2006

Date of Order : 30/01/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 506/2006

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :-

The complainant is the husband of the deceased Simi Malik. The 2^nd and 3^rd opposite parties are the Gynecologist and Anesthesiologist respectively of the 1^st opposite party hospital. On 25-07-2006, the late Simi Malik was admitted in the 1^st opposite party hospital for delivery of her second baby. On 26-07-2006, she was taken to the labour room at about 1.40 P.M. At around 2.30 P.M., the relatives were informed that she had delivered a baby girl. As per the direction of the opposite parties, the baby was taken to Ernakulam Medical Centre. Since, the baby suffered from respiratory problem. Thereafter at 3.30 P.M., late Simi was taken to Medical Trust Hospital, Ernakulam. When the relatives arrived at the Medical Trust Hospital, they are informed that Simi had died. The baby Sanjana as well died on 25-04-2008 due to the permanent disability sustained by her during birth. There has been gross deficiency in service and negligence on the part of the opposite parties in rendering services. The opposite parties are liable to compensate for the death of the mother and baby. The complainant is entitled to get a total compensation of Rs. 12 lakhs from he opposite parties. This complaint hence.

2. The version of the opposite parties :-

The complainant’s wife Simi Malik came to the hospital on 25-07-2006 for safe confinement. She was examined by the 2^nd opposite party on 26-07-2006 and had been continuously monitored. At around 12.40 P.M., she was brought to the first stage room, and thereafter, at around 1.40 P.M. shifted to labour room. At about 1.56 P.M., she suddenly had a convulsion and became cyanosed and unconscious, senior doctors of the hospital attended and decided to do an emergency caesarian section. Following the caesarian section, the baby was found to be asphyxiated and referred to Ernakulam Medical Centre for better treatment. Following the extraction of the baby and while suturing of the uterus was going on the patient developed sudden cardiac arrest. Disseminated Intravascular Coagulation was suspected. Hence it was decided to shift the patient to Medical Trust Hospital, Ernakulam. The patient was shifted in an ambulance accompanied by two anaesthesiologists and staff nurses. The patient did not recover and was declared dead about half an hour after arrival at Medical Trust Hospital. There was no negligence or deficiency in service on the part of the opposite parties. The treatment given to the late Simi and her baby was the standard treatment and the opposite parties have taken reasonable care in the treatment. The opposite parties request to dismiss the complaint.

3. The complainant was examined as PW1 and Exts. A1 to A5 were marked on his side. The 2^nd and 3^rd opposite parties were examined as DW’s 1 and 2. The witness for the opposite parties was examined as DW3. Exts. B1 and B2 were marked on their side. Both sides filed argument notes. Heard the respective counsel.

4. The only point that came up for consideration is whether the complainant is entitled to get a compensation of Rs. 12 lakhs from the opposite parties?

5. The learned counsel Mr. Saji Isaac appearing for the complainant submitted that the onus is heavily on the opposite parties to prove that the death of the Simi Malik was due to amniotic fluid embolism or intra cerebral bleeding in which they failed to prove. The counsel relied on the decision rendered by the Hon’ble Supreme Court in Savita Gang (Smt.) Vs. Director, National Heart Institute IV (2004) CPJ 40 (SC).

6. The learned counsel Mr. George Cherian Karippaparmabil appearing for the opposite parties highlighted the following anomalies from the deposition of PW1 :

1. PW1 has not perused Exts. B1 and B2. Case sheets or to get it examined by anybody.

2. A problem had been developed during the delivery of the complainant’s wife and it is only a hearsay knowledge as regards him.

3. He is not aware of the reason for the immediate caesarian section.

4. He is not able to state the circumstances in which the patient was taken to Medical Trust Hospital.

5. The request of the 3^rd opposite party to conduct postmortem was not accepted by the relatives and they caused to issue a request to release the body without postmortem.

7. Further, the learned counsel submitted that DW’s 1 and 2 the treating doctors established the fact that they had taken reasonable care in the treatment of the late Simi and the cause of death was reason beyond their control. He further contended that DW3 the expert doctor has confirmed the same and deposed that intra cerebral bleeding and amniotic fluid embolism are known medical complications that can occur during labour.

8. Admittedly, the complainant was abroad during the hospitalisation of his wife at the 1^st opposite party hospital. He came to India only in the next day of death of his wife. Though he was examined as PW1, his evidence does not help this Forum to sort out the issue involved in this complaint.

9. Ext. B1 in the case sheet of late Simi maintained at the 1^st opposite party hospital. The same was seized from the 1^st opposite party hospital at the instance of the complainant and produced in the Forum as per order in I.A. No. 385/2006 dated 13-12-2006. DW1 is the Gynecologist who treated the late Simi. However, she deposed in cross-examination that she has not recorded anything in Ext. B1 case sheet in her handwriting on the contrary, her junior recorded the entry in it but their names have not been mentioned. DW1 further deposed that she could not come to a definite conclusion regarding cause of death of the late Simi. According to her, two provisional diagnosis are there, one is ’amniotic fluid embolism’ and the other is ’intra cerebral bleeding’ . She maintains that the symptoms of ’intra cerebral bleeding’ is convulsion and the symptoms of amniotic fluid embolism is BP fall, tachycardia and convulsion and in both the cases symptoms will be manifested.

10. During cross-examination, DW1 stated as follows :

1. Cyanosis means bluish discoloration of the extrinities in other words the formation of bluish colour at the finger tips.

2. The reason for the same is lack of oxygen and the reason for development of cyanosis is one thing she had convulsion that will lead to hypoxia then BP fall.

3. The parameters of cyanosis patients are oxygen saturation level, BP, pulse rate etc., the saturation will be below 80-85, pulse rate above 90, BP may be 90/70.

4. Through the monitoring of oxygen saturation level, the development of cyanosis could have been prevented, but not in all cases of low risk normal patients, this is impossible.

5. The exact time to have a caesarian section has not been mentioned in Ext. B1 case sheet.

6. From the point of convulsion, the patient became a high risk patient.

11. DW3, during the chief-examination stated as follows :

Within few seconds, cyanosis can occur during convulsion. Initial stage is tonic stage, in that stage all the muscles and respiratory muscles would become stand still, since at that time there is no respiration, oxygen exchange will not be there due to the deficiency of oxygen cyanonis will occur. The 2^nd stage is the chronic stage and in that stage continuous frequent contraction of the whole muscles of the body can occur and at this stage as well proper respiration is not there, at that moment saliva would come out and froth will occur there is every possibility of froth entering into the lungs. The 3^rd stage is the coma. At that stage gradual breathing is there, the patient may become unconscious the duration may from second to hours. In case of amniotic fluid embolism postmortem may not reveal much except a few fetal cells in lungs of the mother “Amniotic fluid embolism’ is the fluid that is present in the uterus during pregnancy, but usually all of this will come out during labour. Unfortunately in some cases, this fluid will be pumped back into the maternal consolation that enters into the lung and block blood vessels in the mother’s lung. Out come of this will depending upon how much fluid is gain in, if too much fluid is gaining in that will block the major vains of the lung. So there may be respiratory collapse followed by cyanosis, difficulty in breathing (dysnia) some times convulsion and if the entry is not as much then it can produce difficulty in breathing the patient may not die but she can be clotting defect. So blood will not clot and breeding can”

12. In cross-examination, DW3 stated as follows :

1. Due to the amniotic fluid embolism on the mother naturally the baby also suffers from its impart.

2. Fetal heart beat can be ascertained by heart sound tocogram.

3. If the mother get cyanosed immediately the condition of the baby must be monitored and immediate steps should be taken to protect the health condition of the baby.

4. Unit wise fetal heart beat has not been recorded in Ext. B1.

5. Brady cardiac is occurred as and when the baby lacks considerable oxygen supply.

6. DW3 had worked in K.M.K. Hospital, Paravoor for a month about 25 years back.

13. Admittedly, the late Simi had a convulsion and had also Tachycardia the symptom of amniotic fluid embolism, DW1 came to the conclusion that it was intra cerebral bleeding. The opposite parties had not properly monitored the vital signs like oxygen saturation and ECG uncontroverted by them. If they had monitored the same diligently in time possibility for cyanosis would have been avoided. Admittedly, the patient was taken to the labour room at 1.40 P.M. on 25-07-2006 and had convulsion at 1.56 P.M. and LSCS (Lower Segment Ceasarean Section) started only at 2.10 P.M. that is 14 minutes later in delay. If it were done, forthwith when convulsion was noticed probably the valuable 2 lifes could have been saved. As per Ext. B1, the opposite party took only two minutes for LSCS that is from 2.08 P.M. to 2.10 P.M.. It is highly improbable to have LSCS within 2 minutes. No explanation forthcoming.

14. It is pertinent to note that even according to the opposite parties, the condition of the patient was very much critical at the time of LSCS that is at 210 P.M. Then what prompted them to retain the patient till 3.45 P.M. at the hospital for no reasons mentioned is answerable. The patient was taken from the 1^st opposite party hospital by 3.45 P.M. and reached at Medical Trust Hospital by 4.30 P.M. The physical findings as per Ext. A1 case sheet is “patient brought in a stage of cardio respiratory arrest.” Nothing is on record to show the vital sings of the patient between 3.45 P.M. and 4.30 P.M., though DW2 claims to have accompanied the patient. The patient was declared dead at the Hospital by 5 P.M., the baby as well breathed her last after her prolonged treatments in various hospitals.

15. The evidence of DW1 is not at all reliable and trustworthy especially so, because she has not recorded anything or put her signature in Ext. B1 in her own handwriting. Apart from the oral testimony of DW1, nothing is on record to show that DW1 had examined, diagnosed or treated the patient as assumptions there too which speaks volumes. In the absence of anything to the contrary, we are of the opinion that there was sheer negligence, dereliction of duty and lack of care on the part of the opposite parties. According to the Hon’ble National Consumer Disputes Redressal Commission, the non maintaining of proper written record of treatment given to a patient itself is a deficiency in service on the part of the doctor (Paramjith Singh Grewal (Dr.) & Anr. Vs. Charanji Singh Chawla 1 (2007) CPJ 125 (NC).

16. The Hon’ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital and Another 2010 CTJ 868 (SC) (CP) held that “In a case where negligence is evident the principles of res ipsa liquitor operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repeal the charge of negligence.” The same point has been put forth by the learned counsel for the complainant by relying on the decision of the Hon’ble Apex Court in Savita Garg (Smt.) Vs. Director, Natural Heart Institute (Supra). In the instant case, as well the complainant has prima-facie proved that there is negligence on the part of DW1 who purportedly treated the patient. Now, the burden shifts to the hospital and to treating doctor to disprove that no negligence is on their part in treating the patient.

17. In Laxman Balakrishna Joshi Vs. Dr. Trinbak Bapu Godbole and Anr. AIR 1969 SC 128, the Hon’ble Apex Court has held that, “it is negligence if the doctor fails in discharging his duties that a doctor owes to his patient.” In totality of the aforesaid circumstances and decisions, we are of the irresistible conclusion that there was negligence on the part of the treating doctor and the hospital. While determining the compensation to the complainant, we have kept in view the broad parameters followed by the Hon’ble Supreme Court in Nizam Institute of Medical Sciences Vs. Prasanth S. Dhamaka and Others 2009 CTJ 712 (SC) (CP).

18. Time and tide does not stand in favour of any one, it comes and goes and has to be accepted it. Here is a case such but even then one has been put to irreparable loss which calls for compensation. The agony of the complainant for the loss of his wife and infant child has to be consoled for the fact that he is survived by another child who has to be maintained legally and otherwise. But does not fully answer his prayers unless compensation is awarded in the case. For facts that the complainant and his son have to go a long way in life calls for adequate compensation. We fix it at Rs. 6 lakhs.

19. In the result, we partly allow the complaint and direct that the 1^st and 2^nd opposite parties shall jointly and severally pay a compensation of Rs. 6 lakhs (Rupees Six lakhs only) to the legal heirs of the late Simi Malik.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the aforesaid amount would carry interest @ 12% p.a. till payment.

Pronounced in the open Forum on this the 30^th day of January 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant’s Exhibits :-

Opposite party’s Exhibits :-

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