DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 10^th day of April 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                  Date of filing:  01/12/2014

              : Sri.V.P.Anantha Narayanan, Member  

(C.C.No.189/2014)

1.  Ashik,

    S/o Jaberulla,

    Rsiya Manzil, Nalleppilly Post,

    Chittur Taluk,

    Palakkad Dist.                                                               -        Complainants

2.  Afsana,

     W/o Ashik,

     Rsiya Manzil, Nalleppilly Post,

     Chittur Taluk,

     Palakkad Dist.

3.  Muhammed Milhan,

    (aged 14 months minor),

     S/o Ashik,
     Rsiya Manzil, Nalleppilly Post,

     Chittur Taluk,

     Palakkad Dist.

    (Represented by 1^st complainant)

    (By Adv.Nouphal)

 V/s

1.  Thangam Hospitals of PMRC,                                         -        Opposite parties

     West Yakkara, Palakkad,

     Palakkad Taluk,

     Kerala, Pin – 678 004
    (Represented by its Manager)

    (By Adv.Preetha John.K)

2.  Dr Priyadarshini,

     MD (GYNAEC),

     Thangam Hospitals of PMRC

     West Yakkara, Palakkad,

     Palakkad Taluk,

     Kerala, Pin – 678 004

 (By Adv.V.K.Venugopalan)

                                                          O R D E R

By Smt.Shiny.P.R. President

Brief facts of the complaint.

          The 3^rd complainant is the minor son of 1^st and 2^nd complainants. 2^nd opposite party is the doctor working under 1^st opposite party hospital.  Complainant submitted that on 30.03.2012 the complainants approached the opposite parties in connection with the fertility treatment. Unfortunately 1^st pregnancy was aborted. After the abortion of 1^st pregnancy they continued treatment with the opposite parties.  2^nd complainant again conceived and treatment and proper check-ups were done as per the direction of 2^nd opposite party. The 2^nd opposite party informed that the expected date of delivery was on 21.09.2013.  As per the direction of 2^nd opposite party, complainants came to the hospital on 23.09.2013 for admission. 2^nd opposite party directed the 2^nd complainant to get admission immediately in the hospital for cesarean by saying that normal delivery was difficult.  The follow-ups were carried for about three days and during that time, the complainants were tried to meet the 2^nd opposite party, but not permitted them by saying that she is busy in her out patient department.  Thereafter, on 26.09.2013 the 2^nd opposite party examined the 2^nd complainant and told that nothing to worry and no complications were seen and the delivery would be normal.  On 27.09.2013 shifted the 2^nd complainant from the labour room.  On 28.09.2013 the 2^nd opposite party examined the 2^nd complainant at about 8 AM and told that fever started and it was not a good symptom and hence cesarean has to be done immediately.  Then consent was given by the complainants for the cesarean.  The cesarean was done after 11 AM and found that baby aspirated Meconium and then the baby was shifted to NICU.  The new born has deformity to the face and head.

Complainants submitted that deformity of the face and head of 3^rd complainant is caused due to the pressure exertion due to the delay in causing the cesarean in time.  Further due to the same, brain damage is caused to the baby 3^rd complainant.  After the cesarean, the 2^nd opposite party not attended the 2^nd complainant for about 5 days and during that time the infection was caused for which she was treated there for about further 16 days. On enquiry, it was told that she was on leave.  The baby was treated there in NICU for about 13 days and thereafter in the room for 3 days.  The pediatric of the 1^st opposite party told the complainants that the developmental issues and anomalies will be caused to the child in future and no medicine available in such case.  Now the baby was treated under Homeopathy. Oxygen therapy at Jubilee Mission Hospital at Thrissur and the treatment is still continuing.  Even now the 3^rd complainant could not be able to perform the activities of a normal child. Complainants submitted that all the above difficulties were caused due to the negligence of opposite parties.     Hence the complaint.  Complainants sought for order directing opposite parties jointly and severally to pay

1. Rs.1,00,000/- (Rupees one lakh only) towards the  treatment expanses of 2^nd complainant
2. Rs.1,50,000 (Rupees one lakh fifty thousand only) towards  for treatment expenses of the 3^rd complainant
3. Rs.10,00,000/- (Rupees ten lakh only) towards the  future treatment expenses and follow-up to the 3^rd complainant
4. Rs.7,00,000/- (Rupees Seven lakh only) towards the pain sufferings, mental agony and discomfort caused to the complainants due to the negligence and deficiency in service on the part of the opposite parties and
5. Cost of the proceedings to the complainants.

Complaint was admitted and notices were issued to opposite parties. Opposite parties entered appearance and filed their version separately.

          1^st opposite party filed their version contending the following:-

The complaint is not maintainable either in law or on facts. 1^st opposite party admitted that 2^nd complainant had taken infertility treatment from the 1^st opposite party hospital and had conceived under the treatment of 2^nd opposite party doctor.  Unfortunately her 1^st pregnancy was ended in a miscarriage.  She again conceived without delay and the pregnancy proceeded to them uneventfully.  As per EDC was calculated to be on 21.09.2013, she was asked to get admitted on 18.09.2013 for induction as her Bishop’s score was poor.  The patient was not willing for an induction prior to expected date of delivery.  Then the 2^nd complainant approached the hospital on 23.09.2013 and she was admitted there by 2^nd opposite party.  The chance of normal delivery was poor as the baby’s head was not fixed and the cervix unfavorable which was informed to 1^st two complainants during admission and they were LSCS would be a better option against induction.  As the parties were keen on induction of labour, induction protocol were started on admission and continued for 3 days but the patient was did not respond to induction.  As there were no progress, the patient and bystanders were informed that LSCS should be done for the best interest of the mother as well as the baby but the patient and her bystanders did not want a surgery as the patient had a difficult post operative period following a surgery during her child hood.  As there was no favourable reply pitocin drip was started at 6 AM on 28.09.2013.  But unfortunately at about 8 AM she was found febrile, so the chance of chorioamnionitis and its sequel were informed to the patient and bystanders.  As the parties gave their consent to do cesarean only at 10 AM on 28.09.2013 and LSCS was done with utmost care and caution by 2^nd opposite party and a baby boy was taken at 11.05 AM.  The pediatrician on duty was also present in the operation theatre to receive the baby.  As the baby didn’t cry at birth, the baby was shifted to NICU wherein the baby was attended by the pediatrician Dr.Jayaraman and the baby was under the care and supervision of the pediatrician thereafter.  As there are 2 gynecologists in this hospital, patient was attended every day by either of 2 gynecologists attached to opposite party No.1 hospital.  Fetal heart along with maternal parameters was being monitored continuously in this case.  The delay in cesarean had occurred only because of the delay in giving the consent for the procedure by the complainant.  The decision to shift the baby to NICU was taken by the pediatrician since the baby had not cried on birth.  Further the baby was kept in the NICU for respiratory distress and all resuscitate measures were taken.  The post operative care of the mother and the baby was done by a team of doctors.  The 1^st opposite party hospital is equipped with all facilities for dealing with problems connected with the disciplines of infertility, gynecology and obstetrics and the doctors working in the hospital are qualified and are dedicated professionals.  Hence the complaint is to be dismissed with cost of the 1^st opposite party. 

2^nd opposite party filed version contending the following:-

          The complaint is not maintainable either in law or on facts.  This opposite party admitted that the 2^nd complainant had consultation with the 2^nd opposite party for infertility treatment.  Her first pregnancy, conceived while under treatment of the 2nd opposite party, had ended in abortion.  She again consulted the 2^nd opposite party and again conceived while undergoing treatment.  Pregnancy proceeded to term uneventfully.  Her expected date of delivery (EDD) was on 21.09.2013 and considering EDD she was asked to get admitted on 18.09.2013 for induction, as her Bishop’s score was poor.  But the 2^nd complainant came to the first opposite party hospital only on 23.09.2013 and she was admitted on the same day.  On admission they were informed about her chances of a normal delivery were poor as the baby’s head was not fixed and the cervix unfavorable.  Routine consent for treatment was taken from the patient and her husband on the day of admission.  As per clinical indications the 2^nd opposite party advised the 2^nd complainant for LSCS as a better option than labour induction.  But the 2^nd complainant and her bystanders wanted to wait for normal delivery by induction of labour and were unwilling to give specific consent for cesarean section.  As per request labour was induced as per protocol.  They were informed that there was no progress of labour on the following days and on 27.09.2013 also, the patient had not gone labour.  The patient and bystanders were informed that a week had passed since her expected date of delivery which is a reasonably permitted time as per protocol and further waiting would cause problems for the baby and informed that LSCS would be the best option in the interest of the mother and the baby.  But the patient and bystanders were not willing for cesarean stating that the patient had history of laparotomy earlier and had a difficult post operative period following the same. 

          Being unable to post the case for elective cesarean section without getting written consent from the patient and her relatives, trial labour continues.  The monitoring of vitals and foetal heart sound continued and asked the patient and bystanders to rethink on LSCS.  Pitocin drip was started at 6.00 AM on 28.09.2013 and mild contractions started at 8.00 AM she was found to be febrile.  The patient and bystanders were again called upon and informed about the condition of the patient as she was febrile and explained the risk chorioamnionitis and its sequel unless extracted the baby by cesarean section.  The patient and bystanders were warned about the impending complications and the 2^nd opposite party insisted for their written consent for continuing trial labour accepting the risk in continuation of trial labour in the hospital or else she has to be referred to some other centre for continuing trial labour.  In this circumstance they agreed for surgery and the patient was prepared for emergency LSCS.  Under all aseptic care and precautions the 2^nd opposite party conducted cesarean section on 28.09.2013 and extracted a male baby weighing 3.1 kg.  The liquor was meconium stained and the baby did not cry at birth.  The baby was immediately resuscitated and shifted to the NICU and he cried after suctioning and stimulation.  In the NICU the baby was attended by the pediatrician and stabilized with IV fluids and started on antibiotics and oxygenation.  But timely resuscitative and supportive measures the condition of the baby improved and baby was shifted to mother’s side on 13^th day.  All the risks and consequences were informed.  Both the mother and baby were well attended and cared and discharged on 13.10.2013 with an advice for review after six weeks.  The 2^nd opposite party had attended and treated the patient with the care and she and her relatives were advised cesarean section on the day of admission itself and labour was induced and waited for trial labour solely due to the patient’s refusal to give specific written consent for cesarean.  In the process of trial labour the 2^nd opposite party had closely monitored vital parameters and foetal heart sound (FHS) and FHS was recorded as normal till the date of surgery.  There was no negligence or deficiency in service on the part of the 2^nd opposite party at any point of time in the management of the delivery of the 2^nd complainant and hence she is not liable to compensate the complainants.  The patient was noted to have developed fever during examination on 28.09.2013 and the risk of chorioamnionitis was explained to the patient and her bystanders and they were prepared to give written consent for cesarean only on 28.09.2013.  The post operative infection was not caused due to any act or omission on the part of the 2^nd opposite party.  The patient was regularly attended by the 2^nd opposite party and other gynecologists and physician’s consultation was done and she was managed with wound dressings and antibiotics as per culture and sensitivity.   Wound infection was settled by timely treatment and she was discharged as perfectly cured.  The amount quantified as damages is highly exorbitant, exaggerated and without any substances, merit or rationale behind it and hence denied.  In the light of the above mentioned facts the 2^nd opposite party is not liable to compensate the complainants either jointly or severally.

1^st and 2^nd complainant filed their respective chief affidavits. Documents from the side of complainants were marked as Exts.A1 to A4. 1^st complainant was cross examined as PW1 and 2^nd complainant was cross examined PW2. Witness from the side of complainant filed chief affidavit and was cross examined as PW3. 1^st opposite party filed chief affidavit and cross examined as DW1. 2^nd opposite party filed chief affidavit and cross examined as DW2. Two witnesses were examined from the part of opposite parties as DW3 and DW4. Documents from the part of opposite parties were marked as Exts.B1 series and B2 series.  

The following issues that arise for consideration are.

1. Whether there is any negligence on the part of opposite parties?
2. If so, what is the relief and cost?

Issues No.1 & 2

We have perused the affidavits and documents produced by both the parties. Opposite parties admitted in their version that it was informed to 1^st two complainants during admission that LSCS would be a better option against induction as the chances of a normal delivery were poor at the time of admission as the baby’s head was not fixed and the cervix unfavorable. Complainants also admitted that 2^nd opposite party directed the 2^nd complainant to get admission immediately in the hospital for cesarean by saying that normal delivery was difficult. Opposite parties further contended that even after repeated request, complainants did not give consent, instead they  requested to wait for normal delivery by induction of labour as the patient had history of laparotomy earlier and had a difficult post operative period following the same. No documentary evidences were adduced by the opposite parties before the Forum to prove that they were asked consent letter for cesarean section from the complainants and her relatives from 23.9.2013 till 27.9.2013. On the perusal of Ext B1 series it is revealed that only on 27.9.2013 2^nd opposite party explained the condition of the 1^st complainant and the risk of chorioamnionitis to the complainants. If the complainants requested to wait for normal delivery due to the fear of past surgery complications, that aspect should have to be recorded in the case sheet by the 2^nd opposite party. No such entries were made out in the case sheet. Past history of the complication caused in laparotomy also not reported in the case sheet Ext B1 series. 2^nd complainant deposed at the time of examination that after 23.9.2013, 2^nd opposite party did not examine the 2^nd complainant till date of 26.9.2013. Complainants pleaded that as the 2^nd opposite party was busy in her out patient department, only on 28.9.2013 2^nd opposite party informed the complainant and her relatives about condition of the 1^st complainant and the necessity of cesarean. In the version of opposite parties submitted that as there are two gynecologists in 1^st opposite party hospital, patient was attended every day by either of two gynecologist attached to 1^st opposite party hospital.     2^nd opposite party deposed while cross examination that  Krishnanunni doctor  Fsâ  colleague BWv. At±lw Cu  patient s\  admit  sNbvX tijw Ipd¨p Znhkw   leave  Bbncp¶p.  F{X Znhkw F¶v HmÀ½bnÃ. Deposition of 2^nd opposite party (DW2) clearly shows that she was busy in outpatient department as Dr. Krishnanunni was on leave. So there is no reason to disbelieve the allegation raised by the complainant that 2^nd opposite party did not take proper care and caution to the 2^nd complainant till date of 27.9.2013 due to the busy work in outpatient department. Entries dated 27.9.2013 in Ext B1 series proves that only on 27.9.2013 2^nd opposite party explained the condition of the 1^st complainant and the risk of chorioamnionitis to the complainants.

According to complainants there was no delay form their part in giving consent for cesarean. As and when demanded by the opposite parties they gave consent for cesarean. While  cross examination DW2 (2^nd opposite party) deposed that Rm³ patient t\mSpw, c£IÀ¯m¡tfmSpw consent \v th­n Bhiys¸«ncp¶p F¶ Imcyw Ext.A1  ImWnÃ.  NnInÕ¡v hnk½Xn¡p¶ patient  s\ \nÀ_Ôn¨v NnInÕn¡p¶ Hcp procedure F\nt¡m, Fsâ hospital t\m CÃ.  Hcp patient, cesarean \v R§Ä X¿mdà F¶v ]dªm A¡mcyw AhtcmSv FgpXn hm§n¡m³ _p²nap«nÃ.  A{]ImcapÅ Hcp patient s\ thsd hospital te¡v refer sN¿m³ \nba]cambn XSÊanÃ. In this the present case nothing was done by the opposite parties. Instead they waited for 5 days for cesarean.  From the above discussions we are of the view that there was no delay or refusal from the part of complainants in giving consent for cesarean. 2^nd opposite party purposefully waited 5 days for cesarean of the 2^nd complainant as she was busy in outpatient department.

In the version 2^nd opposite party submitted  that on the date of admission they were informed about her chances of a normal delivery were poor as the baby’s head was not fixed and the cervix unfavorable. On the contrary, at the time of cross examination 2^nd opposite party deposed that there was no problem to the 1^st complainant till the date of cesarean. Condition of the complainant was normal till 28.9.2013. She deposed that   “2^nd pregnancy  bsXmcp Ipg¸hpw IqSmsXbmWv  t]mbncp¶Xv. AhÀ Fs¶ h¶p I­t¸mÄ  AhcpsS Condition normal  Bbncp¶p.  AhcpsS condition abnormal Bbn  F¶v ]dbp¶Xv 28/09/2013 \mWv.  A¶v Xs¶ AhcpsS cesarean \S¯pIbpw sNbvXp”. In the above circumstances we cannot believe the version of 2^nd opposite party as a whole. We observed that delay in cesarean was caused only due to the negligence of the 2^nd opposite party.

Opposite parties admitted in their version that the Meconium aspiration of the 3^rd complainant baby and infection to the 2^nd complainant mother were caused due to the delay in cesarean. At the time of cross examination 2^nd opposite party deposed that Affidavit \v th­ \nÀt±iw Rm³ sImSp¯XmWv. Cu Ip«n¡v D­mb deformities Cu Ip«nbpsS amXmhnsâbpw c£IÀ¯m¡fpsSbpw `mK¯v \n¶v D­mb \nÊlIcWw aqeamWv F¶v Rm³ ]dªn«p­v. cesarean Ignªv Ipªns\ ]pds¯Sp¯t¸mÄ Ipªv Meconium consume sNbvXncp¶p.  Cu Ip«n¡v km[mcW Ip«nIsft]mse Igp¯v Dd¨n«nÃ, \n¡m³ ]änÃ, I®v Dd¨n«nÃ, kwkmcn¡m³ ]änÃ, amXmhnsâbpw, c£IÀ¯m¡fpsS `mK¯v \n¶pÅ \nÊlIcWw F¶v sIm­v Rm³ Dt±in¡p¶Xv AhÀ cesarean \p th­nbpÅ consent letter  FgpXn X¶nà F¶pÅXmWv.  Hcp Ip«n KÀ`]m{X¯n sh¨v Meconium consume sNbvXm Breathing trouble Dw aäp consequences D­mhpw. In the cross examination 2^nd opposite party admitted that the baby consumed mecomium and it was caused due to the delay in cesarean. We have already observed that delay in cesarean was caused due to the negligence on the part of 2^nd opposite party. Due to the negligence of the 2^nd opposite party, the new born baby has the deformity to the face and head and brain damage.  2^nd opposite party admitted in their version and at the time of examination that all the mishaps were caused due to delay in cesarean. Admitted facts need not be proved. Hence question of expert opinion did not arise. At the time of examination of DW 4 pediatrician, 3^rd complainant was present before the Forum. DW4 deposed that even now the head size of the baby is small when compared to other babies. There is a ridge on the forehead of the baby having 3 to 4 milli meters. There is disfigurement on the head and face of the baby. Now the child is having 3 ½  years. The neck portion of the baby is still not stable. The baby cannot sit, stand or walk even now. The baby can be treated as a special child. As per the assessing standard of International standard of disability considering the head size, facial disfigurement, incapacity to sit, stand and walk, the percentage of disability of the baby may be in and around 60 to 70 %.  He further deposed that throughout the life baby cannot perform the normal life of a human being.  Under the above circumstances we are of the view that all the sufferings and mishaps caused to the 2^nd complainant and her new born baby 3^rd complainant were due to negligence on the part of 2^nd opposite party. Hence opposite parties are liable to pay compensation to the complainants.

In the case of Dr.Laxman Balkrishna Jopshi v Dr.Trimbark Babu Gdbole and another air 1969 sc 128 and as Mittal v State of up air 1989 sc 1570, it was laid down that certain duties of doctor which area. Duty of care in deciding whether to undertake the case, b. Duty of care in deciding what treatment to give and c. Duty of care in administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the present case 2^nd opposite party committed breach of duty of care in administration of treatment by causing delay in cesarean. In the above circumstances 2^nd opposite party has liability to pay compensation to the complainants for the mental agony and mishaps caused.  1^st opposite party is also vicariously liable for the acts of 2^nd opposite party as the 2^nd opposite party is working under control of the 1^st opposite party hospital.

Both opposite parties have the liability to pay compensation to the complainants. Hence the complaint is partly allowed.   Opposite parties are jointly and severally liable to pay Rs.5,00,000/- (Rupees five lakh only) towards compensation for mental agony and hardship caused to the complainants and Rs 5,00,000/-(Rupees five lakh only)  towards future treatment expenses of the 3^rd complainant and Rs.10,000/- (Rupees twenty thousand only) towards cost of proceedings.  

This order shall be executed within one month from the date of receipt of this order; failing which the complainant is entitled to realize 9% interest p.a from the opposite party on the total amount due to him from the date of this order till realization. 
 

          Pronounced in the open court on this the 10^th day of April 2018.

                                                                                                Sd/-

                  Shiny.P.R

                   President 

                         Sd/-       

                   Suma.K.P

                    Member

      Sd/-

    V.P.Anantha Narayanan

                    Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          -            True copy of the treatment record issued by Thangam Hospital

                       of PMRC, West Yakkara, Palakkad to the 2^nd complainant

Ext.A2 series -  Hospital Bills issued by Thangam Hospital of PMRC, West Yakkara,

                       Palakkad to the 2^nd complainant

Ext.A3 series -  Original inpatient receipts, outpatient receipts, discharge summary

   and other testing reports & bills  issued by Jubilee Mission Hospital,

    Thrissur for the treatment of the 3rd complainant

Ext.A4 series -  Original Medical Certificate issued by Pro.Dr.A.Esmail Sait MD (Hom)

                      Director & Chief Consultant, Dr.SAIT’S Medical Centre for Homeopathic

                      Research, Coimbatore

Exhibits marked on the side of Opposite parties

Ext.B1 series - Original Treatment record of the 2^nd complainant issued by Thangam    

                     Hospital of PMRC, West Yakkara, Palakkad

Ext.B2 series - Original Treatment record of the 3^rd  complainant issued by Thangam  

                     Hospital of PMRC, West Yakkara, Palakkad

Witness examined on the side of complainant

PW1   -  Ashik.J

PW2   -  Afsana

PW3   -  Dr.A.Esmail Sait

Witness examined on the side of opposite parties

DW1   -  Rajmohan Nair

DW2   -  Dr.Priyadarshini

DW3   -  Dr.C.Sreedhar Warrier

DW4   -  Dr.T.P.Jayaraman

Cost

          Rs.10,000/-