Date of Filing : 27.09.2019
Date of Disposal: 23.08.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR, B.A.,B.L., ......MEMBER-I
THIRU.P.MURUGAN,M.Com.,ICWA (Inter), B.L., ....MEMBER-II
CC. No.40/2019
THIS TUESDAY, THE 23rd DAY OF AUGUST 2022
Mrs.Nimmymol, W/o.Poornaraja,
Plot No.10A, 2nd Floor,
Jayalakshmi Nagar,
1st Street, Puthagaram,
Chennai 600 099. ……Complainant.
//Vs//
The Managing Director,
Maaya Speciality Hospital,
No.21, P.R.H.Road,
Lakshmi Puram,
Chennai 600 009, Thiruvallur District ..........Opposite party.
Counsel for the complainant : Mr.G.Kalidasan, Advocate.
Counsel for the opposite party : M/s.AAV Partners
This complaint is coming before us on various dates and finally on 04.08.2022 in the presence of Mr.G.Kalidasan, Advocate counsel for the complainant and M/s.AAV Partners counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging medical negligence during delivery of the child along with a prayer to direct the opposite party to pay a sum of Rs.18,00,000/- towards compensation for the trauma caused to the complainant and to refund a sum of Rs.2,11,922.15/- being the amount incurred to undergo the operation at SRMC for rectification of fault caused by the opposite party.
Summary of the facts culminating into complaint:-
It was the allegation of the complainant that she underwent regular check-up for pregnancy with the opposite party and the results were normal at all times and the complainant was taking the prescribed medicines without any default. On 02.03.2018 the opposite party recommended the complainant to get admitted immediately and advised for caesarean operation to ensure smooth delivery process. The caesarean operation procedure was undergone by the complainant and after that complainant regained conscious and that the family members had noticed that she was not normal and was having discomfort in breathing and other discomforts. The complainant submitted that she faced discomforts continuously with severe stomach pain and when she informed the same to the opposite party’s Doctors they did not respond and instead gave reply that it was normal and did not give proper response to the complainant and her family members of the complainant. The opposite party’s finally subjected the complainant to certain tests and after the result they did not disclose about the problem and merely stated that the complainant required another operation to get rid out the stomach pain and discomforts and the scan reports were not revealed. In the mean time the complainant developed further complications and situation became very worse due to which the complainant underwent severe mental agony and physical trauma. Left with no other option the parents of the complainant compelled the opposite party to discharge the complainant to get her admitted to Ramachandra Hospital at Chennai. Though the opposite party objected for the discharge and insisted the operation to be done in their hospital itself. They discharged her due to the strong demand made by the complainant’s relatives. However in spite of demands made by the complainant she was not given the discharge summary which goes to prove that there was something fishy. Finally in the midnight on 05.03.2018 after the parents of the complainant had yelled at the doctors and demanding immediately discharge the complainant and was taken in the opposite party’s ambulance to Ramachandra hospital. In Ramachandra Hospital she was informed that she was diagnosed with 600gms blood clot during her caesarean operation which clearly proves that the opposite party had performed caesarean operation negligently. Another operation was done at Ramachandra hospital and the complainant spent around Rs.2,11,922.14/- . The complainant also suffered severe stomach pain and mental and physical trauma for no fault of her and thus aggrieved the present complaint was filed for the reliefs as mentioned above.
Defence of the opposite party:
The opposite party filed written version contesting all the allegations made by the complainant by submitting that the patient was attended by One Gynaecologist namely Dr.Indhu and that the complainant had earlier history of abortion and LSCS from the previous pregnancy as found on the basis of the reports and tests. The LSCS was performed on 02.03.2018 and a live female baby weighing 3kilo grams was delivered. The mother and baby were normal post delivery and when the complainant on 05.03.2018 complained of mild abdominal pain it was decided by the Gynaecologist to perform a relaprotomy to ascertain the cause of pain. Though the complainant and her family members were briefed in detail about the diagnostic laprotomy they refused to understand the situation and did not give consent for the surgery and were adamant to shift the patient to SRMC, Chennai. Thus on request in the Hospital’s ambulance along with doctors and staff nurse, the complainant was shifted and what happened thereafter was not known to the opposite party.
It was submitted that on 10.11.2017 the complainant approached the opposite party for the first time and at that time she was 21 weeks and 4 days pregnant and after due examination it was seen that she had already undergone caesarean operation for her first pregnancy and subsequently had an abortion within a short interval. Caesarean was done only as per the request of the complainant on 02.03.2018 at about 01.00pm. The surgery was done under spinal anaesthesia and the uterus had contracted well and was closed in layers. There was no undue bleeding and the surgery was uneventful. The patient was conscious, stable and afebrile. Till 04.03.2018 the complainant was normal and after 02.20pm on 05.03.2018 she experienced mild abdominal discomfort and did not have any active bleeding. Immediately the complainant was screened using Ultra sonogram to ascertain the cause of the abnormal discomfort and the scan report shows presence of peritoneal fluid. It was suspected that it could have been due to intra peritoneal bleeding arising out of atonicity of uterus which is evident from the case sheets and hence emergency relaprotomy was decided to be carried out to know the cause of the bleeding. When the situation was explained to the husband and mother of the complainant they refused to give consent and requested to shift the patient to SRMC and hence the complainant was discharged against the medical advice. The discharge summary of SRMC shows that the patient had been treated for hemoperitoneum and had undergone emergency laparotomy. The complainant had to undergo the same line of treatment as suggested by the Gynaecologist of the opposite party before shifting to the specific hospital. This shows that the line of treatment suggested by the Gynaecologist of the opposite party is the standard protocol followed by every doctor to treat hemoperitoneum. Further it was also submitted that the Gynaecologist of the opposite party namely Dr.Indhu was a qualified M.B.B.S., M.S.O.G., (Ph.D). Further it was submitted that a simple lack of care, an arror of judgement or an accident, is not proof of negligence on the part of a medical professional. Thus submitted that there was no medical negligence and deficiency in service on the part of the opposite party they sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A8 were marked. On the side of opposite party proof affidavit was filed and documents Ex.B1 & Ex.B2 were marked.
Point for consideration:-
Whether the alleged medical negligence against the opposite party that they had committed negligence during the performance of caesarean operation for the complainant resulting in subsequent surgery constituting deficiency in service has been successfully proved by the complainant?
If so to what reliefs the complainant is entitled?
Point:1
On the side of complainant the following documents were filed in proof of complaint allegations;
Doctor’s reference letter dated 05.03.2018 was marked as Ex.A1;
Discharge Summary of Baby was marked as Ex.A2;
Discharge Summary of complinant was marked as Ex.A3;
Bills issued by the SRMC in the complainant’s name was marked as Ex.A4;
Birth Certificate Alanna dated 11.04.2018 was marked as Ex.A5;
Legal notice issued by the complainant to the opposite party dated 04.04.2018 was marked as Ex.A6;
Acknowledgement card for the proof of service was marked as Ex.A7;
Reply notice of the opposite party dated 14.05.2018 was marked as Ex.A8;
On the side of opposite party the following documents were filed in proof of their contentions;
Copy of case sheet along with consent dated 02.03.2018 was marked as Ex.B1;
Copy of discharge summary against medical advice was marked as Ex.B2;
Heard the oral arguments of both parties and evidences produced by them. The sum and substance of the arguments of the counsel for the complainant was that during caesarean operation performed to the complainant by the opposite party the sutures not were not properly done and hence blood clot formed and the same was left out in the uterus. Due to negligence the complainant was forced to undergo a subsequent surgery at SRMC and the Discharge Summary issued by the SRMC has proved the negligence committed by the opposite party. Thus he sought for the complaint to be allowed as prayed for.
On the other hand the opposite party’s learned counsel argued that no medical negligence was alleged against the doctors and only the hospital was made a party to the proceedings. It was argued by the learned counsel that consent in the prescribed form Ex.B1 was obtained before caesarean. It was further argued the complainant did not specifically pointed out what is the negligence committed by the opposite party. Medical literature was also submitted with regard to relaparotomy wherein it has been stated that the incidence of re-laparotomy after caesarean section is 0.12 – 1.04% 3,4 the most common indications being intra – abdominal bleeding and thus explained the complications that arises during caesarean section. Further it was argued that the complication was identified but the complainant did not want to rectify the same in the opposite party’s hospital but they adamantly wanted to shift to SRMC where the same line of procedure as suggested by the opposite party was done. It was also argued that no expert evidence was produced in proof of negligence alleged against the opposite party. Thus the learned counsel for the opposite party wanted the complaint to be dismissed.
On perusal and appreciation of the pleadings and evidence we could find that the complainant was admitted with the opposite party’s hospital on 02.03.2018 and LSCS was done as admitted by both the parties. The problem arises only on the 3rd day of the post operative period when the complainant had difficulty in breathing and discomforts. There is no dispute about the same and it was admitted by both the parties. The only allegation raised by the complainant is that when the opposite party took scan on the complainant on complaints of discomfort, abdominal pain and difficulty in breathing they did not reveal anything to the complainant or her relatives and they evaded to answer and just wanted to perform another operation for the complainant. It was also the specific allegation that the opposite party while discharging the complainant against the medical advice did not provide any discharge summary to the complainant. These are the specific allegations levelled against the opposite party by the complainant. It was also seen that the complainant got admitted in the subsequent hospital against the advice of the opposite party. Though it was alleged by the opposite party that they also have found hemoperitoneum and insisted to perform relaparotomy, if they would have explained the same to the complainant there would not have arisen any necessity for the complainant to go to SRMC. As the opposite party has the bounden duty to explain the complainant and her relatives about the real situation and when it is the special allegation by the complainant that the opposite party did not reveal anything about the scan reports, the burden is on the opposite party to prove that the scan report with regard to hemoperitoneum was given and explained to the complainant and her relatives. In the absence of any evidence or proof by the opposite party, the shifting of the complainant to another hospital could not be found fault with. If at all, the scan report was shown and given to the complainant they would have produced the same as document in the complaint. Further the discharge summary at the time of complainant’s discharge from the hospital was also not given to the complainant is one of the main allegation put forth by the complainant. For the said allegation the opposite party failed to produce any pleadings or evidence and to the least there is no mere denial made with respect of the same. It was only the opposite party who had produced the discharge summary of the complainant and hence it amply shows that the opposite party failed to issue the discharge summary to the complainant at the time of her discharge which leads to the presumption that they wanted to hide the real situation of the complainant about hemoperitoneum and the blood clot.The Apex Court in Maharaja Agrasen Hospital . vs Master Rishabh Sharma dated 16 December, 2019 had held that,
"The IMC Regulations framed by the Medical Council of India are binding on all medical professionals, who are under a statutory obligation to provide medical records to the patients or their attendants. All hospitals, whether Government or private are liable to maintain the medical records, and provide the same to patient or their attendants within 72 hours of the request."
Further it was also held "We find that withholding the medical records of Respondent No.1, who was a premature baby, for a period of over 2 years, would constitute grave professional misconduct under Regulation 7, apart from being a gross deficiency in service on the part of the Appellant No.1-Hospital and its management."
In such circumstances this commission is of the view that the opposite party had committed deficiency in service in not producing the discharge summary to the complainant.
The discharge summary issued by the SRMC dated 11.03.2018 was also in support of the allegation made by the complainant as under the procedure done and sub heading findings it has been given “around 6 litters of hemoperitoneum noted. 600g of clot removed. Uterus incision partially healed. 3x3 cm? Uterine raw area noted at the left angle. Uterus found to be boggy hence open. Placental bit/clots noted. Bilateral tube found to be edematous. Hence sterilization deffered after discussing with the attenders. Bilateral ovaries normal. IP drain kept in situ and further around 1.6 liters of hemoperitoneum including 600g of clot noted and same removed. Above mentioned findings noted. Uterus found to be boggy. Boggy raw area noted in the uterine incision on the incision site towards the left angle, clot covering same noted and same removed. Uterus open up and?clots/placental tissue removed from the uterine cavity”. When it was admitted that the complainant had been shifted from the opposite party hospital after performance of caesarean operation to the SRMC hospital and had undergone the procedure of removing around 1.6 liters of hemoperitoneum including 600g of blood clot removed from uterus, the presumption arises only in favour of the complainant that it is only the opposite party who had committed negligence and deficiency in service. Further when the negligence has been apparently proved by the complainant by documentary evidence, non furnishing of expert evidence by the complainant is not fatal to the case. Hence by application of the principle of res ipsa loqutor the negligence by the opposite party had been amply proved by sufficient evidence and pleadings by the complainant. Thus we answer the point accordingly.
Point No.2:
As we have held above that the opposite party had committed medical negligence we direct them to pay a sum of Rs.2,11,922/- for the medical expenses incurred by the complainant for the subsequent surgery undergone by her in SRMC hospital as the same occasioned only due to the act of the opposite party and for the mental agony and hardship suffered by her we order Rs.1,00,000/- as compensation and also we award Rs.10,000/- towards cost of the proceedings to the complainant.
In the result, the complaint is partly allowed directing the Opposite Party
a)to pay a sum of Rs.2,11,922/- within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.1,00,000/- (Rupees twenty thousand only) towards compensation for mental agony caused to the complainant;
c) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
d) Amount in clause (a) to be paid within six weeks from the date of receipt of copy of this order failing which an interest of 9% will be levied on the said amount from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 23td day of August 2022.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 05.03.2018 Doctors’s reference letter. Xerox
Ex.A2 ................... Discharge summary of baby. Xerox
Ex.A3 ................ Discharge summary of Nimmymol. Xerox
Ex.A4 .................. Bills Xerox
Ex.A5 ................. Birth certificate. Xerox
Ex.A6 .............. Legal notice issued by the complainant to the opposite party. Xerox
Ex.A7 ............. Acknowledgement card. Xerox
Ex.A8 ............. Reply notice of the opposite party. Xerox
List of document filed the opposite party:-
Ex.B1 02.03.2018 Copy of case sheet along with consent. Xerox
Ex.B2 05.03.2018 Copy of discharge summary against medical service. Xerox
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MEMBER-II MEMBER-I PRESIDENT
