CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present

Sri. Santhosh Kesavanath P. President

Smt. Bindhu M. Thomas, Member

Sri. K.N. Radhakrishnan, Member

CC No. 206/2006.

Wednesday, the 28^th day of April, 2011

Petitioner                                              Lizy Cherian,

Opposite parties                       :   1)     Matha Hospital,

 

2)          Matha Hospital

Thellakom, Kottayam

reptd. by its Administrator

(By Adv. M.C Suresh)

3)          The United India Insurance Company,

Municipal Shoping Complex,

Muvattupuzha.

(By Adv. Agi Joseph)

 

 

Sri. Santhosh Kesavanath P., President

 

Petitioner was admitted in the first opposite party hospital on 28..3..2006with complaint of  stomach ache.  As per the advise of the doctors petitioner had under gone scanning and it was informed that she had no special problems. Since the petitioner informed that she is suffering from pain she was suddenly subjected to celiac plexus block. Details of the treatment procedure were not explained to the petitioner or her relatives. Due to negligent treatment petitioner suffered spinal code infraction and  respiratory arrest. 

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Petitioner was then taken to Medical College Hospital and irresponsible left there. Petitioner underwent treatment at different centers but she is paralyzed. According to the petitioner first opposite party is responsible for  her pathetic  

condition. Petitioner states that the injection was given negligently in wrong site to cause troma to spinal code. It is alleged that condition of the petitioner was due to negligent and careless treatment of first opposite party. Petitioner claims an amount of Rs. 15 lakhs for deficiency in service and Rs. 5 lakh for mental agony and  suffering.

            First opposite party entered appearance and filed version contenting that the petition is not maintainable. Petitioner is not at all approached the fora  with clean hands. Petitioner was treated at St. Johns Medical College Hospital, Bangalore before she came to the first opposite party Hospital and said fact was suppressed and the expert doctors discovered the fact during their examination and then only she admitted the fact. Petition is not maintainable for non-joinder of necessary parties. Petitioner is a chronic calcific pancreatitis patient and has undergone treatment at St. Johns Hospital, Bangalore. On 28..3..2006 petitioner was admitted to first opposite party hospital with complaints at severe abdominal pain and vomiting, petitioner was a known case of diabetics  and was on treatment. Since CT report of the patient did not show any pancreatic duct dilation surgery was not indicated and celiac plexus block was planned. The procedure was explained to the petitioner and her husband   Celiac plexus block was only viable solution to give relief to the patient from her severe abdominal pain. Petitioner was taken up celiac plexus block with bupivacaine and petitioner

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had excellent pain relief and was symptomatically better for 24 hours following block. Therefore for giving   pain relief it was decided to give neurolystic block with absolute alcohol.       Petitioner un expectedly went in to respiratory arrest and un expected complication developed. Doctors had offered to   refer the patient else where if the relatives so desired. Doctors of  first opposite party hospital formulated the further course of action in consultation with other eminent doctors in neurology. At this stage the relatives of the patient were consulted and it was decided with their concurrence to transfer the patient to Medical College Hospital, Kottayam for expert neurological management. According to the first opposite party they discharged its duties properly at each stage in the treatment period and it cannot be held liable for any un expected complication or defectives which the patient developed.  According to the opposite party the  amounts claimed  is highly exaggerated and is without any basis. So, first opposite party pray for dismissal of the petition with their costs.

            Second opposite  party filed version contenting that  petition is not maintainable. The complainant was a known case of chronic calcific pancreatitis previously treated in St. John’s Medical College, Bangalore. She was admitted in the opposite party hospital on 28..3..2006, with complaints of abdominal pain and vomiting. She was a known case of diabetes on treatment. Since the CT report of the patient did not show any pancreatic duct dilation, surgery was not indicated presently and celiac plexus block was planned. The procedure was duly explained to the complainant and her husband. The complainant was taken up for celiac plexus block with 0.25% Bupivacaine 20

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ml. on 29..3..2006 in main operation theatre under C-aram guidance. She was symptomatically better for 24 hours following the block. Celiac plexus block with absolute alcohol was performed on 30..3..2006 under C-arm guidance.  

Complainant unexpectedly went into respiratory arrest. But her BP, cardiac status and Pulse rate were normal. The complainant was revived from the respiratory arrest and was put on ventilatory support. She was noted to have developed paraplegia with sensory loss up to T 4 level. The provisional diagnosis of spinal cord ischemia due to ? Anterior Spinal Artery Spasm, was made and the patient was treated with Inj. Methyl Prednisolone, Ing. Heparin, Clopidogrel 75 mg o.d,. Capsule Amoxycillin 500 mg. TDS, human Act rapid insulin for diabetic control and with IV fluids. The case was discussed with neurologist and MRI Scan was done which showed spinal cord infraction at T4 to T10 level. The complainant was referred to the Neurology Department,

Medical College Hospital, Kottayam for expert neurological management. There was no negligence or deficiency in service on the part of the second opposite party in the treatment of the patient.

            3^rd opposite party filed version contenting that the petition is not maintainable  3^rd opposite party filed version raising same contention raised by the first and second opposite party. According to the 3^rd opposite party there is a valid insurance policy for a period from 31..3..2006 to 30..3..2007. The provisional indemnity policy is in favour of M/s. Velankanni Matha Hospital (P) Ltd. From the  averment petitioner was admitted at Matha Hospital on 28..3..2006. Hence there is no coverage of insurance in this case. The insured has not informed the 3^rd opposite party as per the conditions of the policy. So,

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 according to the 3^rd opposite party they are not liable to pay any compensation.    So, they pray for dismissal  of the petition with their costs.

Points for determinations are:

i)                    Whether  there is deficiency in service on the part of the opposite party?

ii)                   Reliefs and costs?

 

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medical negligence of the hospital authority. The petitioner alleges negligence on the part of the opposite party as follows.

a) There is no proper consent (b) There is no proper diagnosis before and after the treatment. (c) Paralyzing of the T4 to T10 itself shows that there is negligence on the part of the opposite party.

            Petitioner has a definite case that there is no valid consent of the petitioner or  relatives of the petitioner  before   block was done. Petitioner’s counsel argued that   consents are of  2 types ie. general  consent and special consent. According to the petitioner before administering Boopi vacaine and alcohol for giving  coeliac plexus block a valid special   consent is  necessary. DW1 head of department of anesteshia Medical College Hospital, Kottayam (in page No. 2 her of deposition) stated that   “25 % of bupi vacaine 20 ml. coeliac plexus block is a standard dose.   If the patient give medically symptomatically better, Pain  relief, the doctor proceed to block with absolute alcohol. It is an accepted treatment. If the patient request and consents for procedure after knowing the procedure doctor can proceed”. B1 is the medical record of the petitioner kept in the opposite party hospital.  In page No. 23 the consent is noted.  According to the petitioner there is no valid consent.    B1 is     prepared  by covering  their  mischief. Further more in page No. 23 of B1  there is no full name or address in    first column of the consent and which is kept  blank.   There is no hospital number in the consent form. Risk factor regarding the possibility of paraplegia is not seen referred to the patient. Further more  rectangular column ment for special instruction to be given to the patient never refers  to any references as to be seriousness or after effect

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regarding the treatment given to the patient. According to the petitioner in the consent form there is no signature of the patient or the by stander. Further more name of the patient is mis-spelled. So learned counsel appeared for the petitioner vehemently argued that there is no valid consent. We are of the opinion that as a complicated procedure  opposite party has a  bounden duty to mention  the risk   factor to the patient or   the by- stander including the possibility of para plegia. Consent that is given by a patient should be  after receipt of following information (a) nature and purpose of proposed procedure (b) expected out come and likelihood of success,   risks involved (c) alternatives (d) effect of no treatment or procedure (e)  what should be done if procedure forms one to be harmful or unsuccessful. While considering the above facts in our view there is no valid consent in this case.

 According to the petitioner there is no diagnosis before and after the

treatment.  From Ext. B1 medical records of the hospital it can be seen that the preliminary treatment was done on 29..3..2006  under C-arm guidance. Doctors who had given medicine is examined as DW3 he denies the primary test on 29..3..2006. During cross examination of DW3 (In page No. 2 of cross examination)  counsel for petitioner asked .”Was there was any administrative of alcohol to the patient before his final block was tried? Answer of the Doctor is No. DW3 (in    page 2) denies that there was no experimental block on 29..3..2006.   . So , records of having tried the medicine preliminary on 29..3..2006 in Ext. B1 is false and fabricated. The other question to be decided is whether there is any professional diagnosis in Ext. B1 The doctor who treated the patient mentioned that professional diagnosis is chronic

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pancreatitis.   During cross examination of DW3 the question is put  as “was their any provisional or final diagnosis with the pain of the patient”? @ This

  type of pain is a typical pancriatic orgin there fore my department treated for pancreatitis. DW3  answered the specific question is in evasive manner or else DW3 has not know the cause of pain of petitioner.  

             Petitioner for examination was solely paused in the court hall of the forum in a wheel chair sitting   like a vegetable with her hands remaining motionless . In the case of V Krishan Rao Vs. Nikhil Super Speciality Hospital (Reported in 2010 (5) Supreme Court cases page 513) Hon’ble Supreme Court opined that in a case where negligence is evident, the principle of  res-ipsa loquitor operates and the petitioner does not have to prove anything as things (res) proves itself. In such case it is for the respondent to prove that he has taken at most care and done his duty to repel the charges of negligence. If the general direction in para 106 in Martin F D’ sousa Case (Reported in 2009 3 Sec I)  are to be followed then the doctrine of res.ipsa loquitor which is applied in case of medical negligence by the courts on Indian and England would be redundant . Admittedly the petitioner become paralyze from T4 to T10 soon after the injection. Opposite party even though examine the anesthetist to prove that there is no negligence on their part they have not examine any neurologist to prove that respondents had taken care and done their duty without negligence . While considering the evidence adduced by the expert doctor it is proved that the treatment given to the petitioner is a risky one so opposite party shall associate a neurosurgey for diagnosis and at

 

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the time of giving block  Here in this case there is no need for an expert evidence.  From the Ext. B1 records and evidence adduced by the petitioner   

itself we can came to a conclusion that there is medical negligence on the part of the opposite party.

 The 3^rd opposite party insurance company had taken a stand in the version  that their is no  valid policy at the time of the treatment. The copy of the  policy is marked as Ext. B2. From the policy certificate   it can be  seen that the hospital has a valid insurance coverage for the limit of Rs. 4,75,000/- after deducting the policy excess of Rs. 25,000 /-. 3^rd opposite party taken another contention that doctor who treated patient is not an employee of the first opposite party,. According to 3^rd opposite party petition is alleging negligence against doctor who treated her in matha and not against other service of hospital. There is no vicarious liability. So, 3^rd opposite party has no liability to indemnify the insured. But in our view stand taken by the 3^rd opposite party is not sustainable because the divisional manger of 3^rd opposite party during cross examination deposed that their is no condition in the policy excluding liability of the company if the hospital appoints a doctor under a contract. So, the 3^rd opposite party is liable as far as the extent of liability as per the contract of insurance entered.

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 Though petitioner averred that the petitioners monthly salary is Rs. 7500/- she has not produced any document to prove the same. At the same time we often

find that a person injured and bed ridden in a vegetative stage causes her family in greater distress, pitiable condition, feeling of hurt , helplessness, despair and often destitution   every day. The support that is needed for a paralyzed lady comes to an enormous price, physical, financial and emotional, not only on the victim but even more so on her family and attendants.  Stress saps their energy and destroy their equanimity. We also visualize the anxiety of the husband and relatives of the petitioner about petitioners future. We therefore compute compensation keeping  in mind about the loss of earning , mental agony, loss of consortium, nursing expenses etc. In view of the above finding we find medical negligence on the part of opposite party No. 1 and 2. Being the insured 3^rd opposite party is liable to compensate the opposite party 1 & Opposite party 2 to the extent as per the policy certificate. So, point No. 1 is found accordingly.

 

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date of complaint till realization.

 

Sri. Santhosh Kesavanath P., President Sd/-

Smt. Bindhu M. Thomas, Member                    Sd/-

Sri. K.N. Radhakrishnan, Member                    Sd/-

Ext. A1(a) to A1 (b3):         Series of Medical and Pharmacy bills.

Ext. A2 to A2(a)        :         Series of Medical bills

Ext. A3(a) to A3(r)    :         Series of Medical bill and prescription slip.

Ext. A4 to A4 (at)      :         Series of Medical bills

Ext. A5 to A5 (ao)     :          Series of Medical bills

Ext. A6 to A6 (ac)     :          Series of Medical bills

Ext. A8 to A8 (bi)     :           Series of Medical bills

Ext. A9 to A9 (bc)    :           Series of Medical bills

Ext. A10 to A10 (a) :           Series of Medical bills

Ext. A11 to A11 (z) :           Series of Medical bills

Ext. A12 to A12 (m) :           Series of Medical bills

Ext. A13                :     Case & Discharge summery from St. Johns Hospital, Bangalore  .

Ext. A14:                  :         Certificate issued by Dr.Aravind T.R Dt: 6..8..09.

 

Ext. B1:     Medical record of Lizy Cherian

Ext. B2:      Copy of policy certificate issued from Insurance Company

Ext. B3:       Receipt from Insurance company Dtd: 17..3..2006

Ext. B4:        Certified copy of charge   taken during injunction

Ext. B5:       Copy of policy with vide No. 101101/46/05/32/00000379.

 

By Order,

 

 

Senior Superintendent