The Complaint is filed alleging a medical negligence and deficiency in service on the part of the opposite parties Dr. Ansari, Pediatrician (OP No.2) and mother and child hospital, South Bazar, Kannur (OP No.1) in giving treatment to the new born baby (complainant No.2) in relation to increase in bilirubin rate from the very 3rd day of his birth (ie on 01/08/2012), claiming a total compensation of Rs.19 lakhs. 1st complainant is the mother of the 2nd complainant who as a minor and availed treatment from OP No.1 hospital.
The nutshell of the complaint is that the complainant submit that she was carrying and pregnant and was under treatment for pregnancy by Dr. K Sabeena at OP No.1. The complainant gave birth to a male child on 30/07/2012 from the hospital of OP No.1. The new born child was under the observation and treatment of OP No.2 immediately after the birth of the child. The complainant says that immediately after the birth of the child on 1st day the child was healthy and active but on the next day some changes was noticed on the child. The child was found always sleeping and did not suck the mother’s breast for milk. This was informed to OP No.2 on 31/07/2012. The complainant says that OP No.2 after examining the child has informed the complainant to gently knock on the side of the child’s ear and also gently scratch on the bottom of the child’s feet sot that the child will wake up and breast feed the mother milk. The complainant says on the next day the health condition of the child did not improve and OP No.2 informed the complainant to conduct blood test and admit the child in ICU. Accordingly the newly born child was admitted in ICU. After conducting the blood test on 01/08/2012 the investigations report shows that the total bilirubin is 14.3 mg/dl where the normal should be 0.2-1.2mg%. OPs did not inform the serious condition of the child to the complainant. On 02/08/2012 OP No.2 came to the hospital for the routine check up and it is understood that OP No.2 has informed to the nurse who was attending the child to immediately admit the child to Koyili Hospital, Kannur since the total bilirubin of the child has increased. On the same day the complainant’s husband and the father of the child took the child to Koyili Hospital, Kannur. The nurse who attended the child from mother and child hospital also accompanied the child to Koyili Hospital Kannur. The child was admitted at Koyili Hospital in NICU on 02/08/2012. On 02/08/2012 clinical laboratory report of the child’s blood taken from Koyili Hospital immediately after admitting the child showed that the bilirubin total was 32mg/dl. The complainant says that in view of deep jaundice the baby was admitted in NICU and the whole blood of the baby was exchanged with new blood. After treatment from Koyili Hospital Kannur the baby was discharged on 11/08/2012. The complainant says that when the baby was admitted in NICU the baby has shown sign of fits. While discharging the baby from Koyili hospital kannur the doctor has advised to take MRI, hearing test, VEP and BEARA. The complainant was also advised to give treatment and medicine for fits to the child. The complainant submits that the OP has not prudently discharged the duty caste on a doctor. The OPs were negligent in discharging the duty as a doctor and there was breach of duty on the art of the OP. The complainant says that the OPs have omitted to give proper treatment to the complainant’s child and there was breach of duty on the part of the OPs caused by omission to do something which a reasonable doctor would have done. The complainant says that due to the negligence of the OPs and their failure to take the standard of care to the newly born child, the child is now a fits patient and is undergoing treatment for fits. The complainant says that solely due to the negligence on the part of the OPs the child is now a fits patient. On analysis of the ear of the child it is understood that there is 80% loss of hearing of the child and alleged that this was only due to the deep jaundice of the child. The complainant was further informed that the inner ear of the child was not damaged and the nerve that sends message to the brain is damaged. The complainant further begs to submit that the child has to undergo cochlear implantation surgery as per the advice and opinion of Dr. Manoj who treated the child from Calicut. The cochlear implantation surgery is a very expensive surgery which involves a cost of approximately Rs.6,00,000/-. The complainant has spent a huge amount for the treatment of the newly born child. Over and above the complainant also has undergone mental agony due to the negligence and deficiency of service on the part of the OPs. Hence this complaint.
After receiving notices OPs 1 and 2 entered appearance through counsel and filed separate versions. It is seen that the contentions in both version are more or less same. It is submitted that there is no negligence or deficiency in service as alleged by the complainant. The complainant is not entitled to get any relief as prayed for in the complaint. The complainant had a full term normal delivery on 30/07/2012 in the 1st OP hospital. The baby was having birth weight 2.750Kg and cried soon after birth. The 2nd OP examined the baby and found to be normal, active and sucking well. On 31/07/2012 also the 2nd OP examined the baby and found to be active with good refluxes and sucking well. On 01/08/2012 the baby had shown signs of mild Jaundice but the baby was active with good refluxes and sucking well. Since there was mild jaundice, the 2nd OP ordered serum bilirubin test. Its result obtained with reported total bilirubin of 14.3 mg% and directed bilirubin 1.4 mg %. Since the baby had developed signs of jaundice after 48 hours it was physiological jaundice and in view of the test result the baby was immediately shifted to NICU and started double surface phototherapy. Mean while the baby was active and sucking well. On 02/08/2012 the baby was having jaundice but active and sucking well. The phototherapy continued and a repeat serum bilirubin test was directed. The result came as serum total bilirubin as 17.6mg% direct bilirubin 1.5 mg% and indirect bilirubin 16.1 mg %. As per the test report there was a rise in the serum bilirubin 3 mg% within 28 hours and hence there was nothing to suspect active haemolysis. So along with phototherapy, IV fluids and antibiotic also started. Sepsis screening test was also done and it was found to be negative and GRBS was within normal limits. In spite medical measures the baby was found to be less active and sucking was poor and more jaundiced around 7.30 PM on 02/08/2012 and hence the baby was referred to Koyili Hosptial for further management based on repeat bilirubin evaluation and for an exchange transfusion if indicated. The OPs had treated the complainant’s son with the diligence and care as per accepted medical practice and there was no negligence or carelessness on their part in the treatment of the baby and hence they are not liable to compensate the complainant. The laboratory tests of blood samples were done using automated lab equipments by well experienced technician. The equipments were well kept and maintained under AMC with the manufacturer’s service personnel who have been regularly servicing machine and hence the allegation that the lab reports are incorrect and unreliable is totally false. Further submitted that exchange transfusion for the baby is not necessitated by any act or omission on the part of the OPs as it is required when the total bilirubin exceeds 25mg% in a 72 hour old baby. Exchange transfusion facility was not available in the 1st OP hospital and the 2nd OP had shown abundant caution in making early reference to higher centre even when the level of bilirubin showed a rise of only 3 mg% within 28 hours which is not an indicative sign for exchange transfusion. OPs submitted that complainatn’s baby developed bilirubinemia as an inherent neonatal complication induced by Rh incompatibility which was properly diagnosed and treated as per standard and accepted line of management. But in spite of timely measures, bilirubinemia did not subside and hence the baby was referred to higher centre for further treatment including exchange transfusion if indicated as per repeat total bilirubin range. Further the 2nd OP had attended the baby twice a day in the morning and evening and closely assessed the condition of the new born baby and there was resident medical officer throughout duty in the hospital. The infirmities allegedly caused to the child is attributable to the disease condition namely neonatal hyper bilirubnemia and its associated problems which has no nexus with the treatment modality of the baby at the 1st OP hospital. In the light of the above mentioned facts the OPs are not liable to compensate the complainant either jointly or severally. Hence prayed for the dismissal of the complaint.
During the pendency of this case, after examination complainant OP No.2 the doctor pediatrician who had given treatment to the complainant No.2 at OP No.1 hospital expired and his legal representatives were impleaded as additional OPs 3 to 5 vide order in IA No.289/2021 dated 16/12/2021. The additional OP No.3 filed vakalath and version through Advocate R P Ramesan and additional OPs 4 and 5 filed vakalath and version through counsel Adv. K P Subash Chandran.
The contentions in the version of OP No.3 are that she has no liability to pay any amount to the petitioners. The legal principle “Actio persoalis Moritur cum persona” is clearly applicable to the fact situation of the present case. In Balbir Sing Makol V Chairman, M/s. Sir Ganga Ram Hospital & Ors.1 the Hon’bel National Commission held that after death of the doctor, his liability for damages stood extinguished. This OP is impleaded with malafide intention. No claim is sustainable against this OP. This OP is an unnecessary party to the above complaint. Hence prayed for dismiss the complaint.
Additional OPs 4 and 5 have stated that to implead the legal heirs of OP No.2 is not maintainable either in law or on facts. Hence the procedure against these respondents before this Honorable commission is to be dismissed in limine. Being the legal heirs of the deceased doctor these OPs are unnecessary parties in the complaint. These OPs are impleaded with malafide intention.
Being the legal heris of OP No.2 these OPs have no liability to pay the compensation to the complianant as stated in the complaint. “Actio personlis Moriture cum Persona” is clearly aplplicable to the fact situation of the present case. In Balbir singh Makol Vs. Chariman, M/s Sir Ganga Ram Hospital & others the Honorable National commission held that after death of the deceased doctor his liability for damages stood extinguished. It has been observed that legal heirs of the deceased doctor also could not be taken on record. This judgment is followed in Shrawnan Kumar Vs. Ganga Ram Hospital in 2011(4) CPR 1729NC) also.
At the evidence stage, 1st complainant has filed her chief affidavit and documents. She has been examined as Pw1 and marked Ext.A1 to A82. The summonsed case sheet of Baby Sabana IP No.12007447 from Koyili Hospital is marked as Ext.X1 and disability certificate of 2nd complainant prepared on 28/10/2015 after examining him by a team of doctors constituted as medical board at KCHC Hospital Pariyaram, is marked as Ext.X2. In the side of complainant two more witnesses Dr. M K Nanda kumar, Pediatrician at Koyili Hospital, Kannur, who treated the 2nd complainant subsequent to OP No.1 hospital as Pw2, and Dr. K Narayana Naile,District Medical officer, District Hospital Kannur was examined as Pw3. Pws1 to 3 were subjected to cross-examination for the OPs. On the side of OPs Dr. Jesley Hamza, Medical Director of OP No.1 hospital is examined as Dw1. Lab report from OP No.1 hospital during the period from 20/07/2012 to 28/08/2012 is produced and is marked as Ext.B1. Dw1 is cross-examined for the complainant.
After that the learned counsels of complainant and OPs made oral arguments and OP’s counsel filed written argument note also.
The undisputed facts are that the complainant was under the treatment for pregnancy BY Dr.K Sabeena at OP No.1 and gave birth to a male child on 30/07/2012 at hospital of 1st OP. Further the newborn baby was under the observation and treatment of OP No.2 immediately after the birth. Further on 01/08/2012 the baby was admitted at NICU at 11 AM of OP No.1 hospital with the complaint of Yellowish discoloration of the body. On conducting blood investigations report shows that total bilirubin of the baby was 14.3 mg/dl. Further on 02/08/2012 OP NO.2 referred the child to Koyili Hospital, Kannur since the total bilrubin of the child was increased. Further on clinical laboratory test form Koyili hospital on the same day the total bilirubin was 32 mg/dl. Further the baby was admitted in NICU. Deep Jaundice and was instable, had seizure, hypertonic with feeding difficulty and drooling of saliva –SB 32 Mg% to Blood transfusion done. Further undisputed fact is that the baby was discharged on 11/08/2012 and disability assessed by the medical board after examination of the child on 28/10/2015 is 70% permanent disability of the whole body.
Now the question to be decided is whether complainant has succeeded in proving medical negligence or deficiency in service on the part of OP No.2 and on the part of OP No1 hospital?
Complainant alleged that immediately after the birth of the child on the 1st day the child was healthy and active but on the next day some changes was noticed on the child. The child was found always sleeping and did not suck the mothers breast for milk. This was informed to OP No.2 on 31/07/2012. OP No.2 after examining the child has informed that complainant to gently knock on the side of the child’s ear and also gently scratch on the bottom of the child’s feet, so that the child will wake up and breast feed the mother milk. Complainant further stated that on the 2nd day the condition of the child did not improve and OP No.2 informed the complainant to conduct blood test and admit the child in ICU. On blood test the report shows total billuribin was 14.3 MG/dl. The OP No.2 did not inform the serious condition of the child to her.
Further alleged that on 02/08/2012OP NO.2 came to the hospital for the routine check up and has informed to the nurse who was attending the child to immediately admit to Koyili hospital Kannur, Since the total billuribin of the child has increased and the child was admitted in NICU at Koyili Hospital on the same day. The blood investigation at Koyili Hospital was 32 mg/dl and the whole blood of the baby was exchanged with new blood. Complainant alleged that when the baby was admitted in NICU, the baby has shown sign of fits. Further while discharging the baby from Koyili Hospital, the doctors has advised to take MRI, hearing test VEP and BEARA. The complainant was also advised to give treatment and medicine for fits to the child. Complainant’s allegation is that OPs have omitted to give proper treatment to the complainant’s child and there was breach of duty on the part of the OPs caused by omission to do something which a reasonable doctor would have done. The complainant alleged that the OPs should have noted the high total billirubin in the child’s blood and should have given the standard of care and advised for better treatment on 01/08/2012 itself if the OPs are not able to give the right treatment. But the OPs have advised for better treatment only on 02/08/2012 when the total billirubin of the child has shoot up to 32 mg/dl. Further alleged that the clinical report taken from the OP No.1 hospital on 02/08/2012 shows that the total bilirubin is 17.6 mg/dl. But the clinical report taken from koyili hospital on the same day shows the total billirubin as 32 mg/dl which means that the clinical report of OP No.1 is not correct and cannot be relied on. The complainant has stated that the child is now having 100% whole body disability and due to the inefficient treatment of the child by the OP, the child is now also suffering from fits and has to undergo treatment for fits. Complainant submits that even though the OP has promised to bear the entire expenses of the treatment of the child, the OPs have not spend any amount towards the treatment of the child. Complainant has produced Ext.A12 the Standing Disability Assessment Board certificated constituted at District Hospital Kannur reported on 05/11/2014 that the child found cerebral palsy, hearing loss. The disability is 100% ie total disability. Further submitted Ext.A5 BERA/ABR Evaluation report, Ext. A8 EEG report to establish the physical and mental condition of the complainant No.2. At the time of argument, complainant No.2 has been brought before us also to establish the physical condition of the child. 1st complainant also produced Ext.A2 the letter written by A Ramachandran, Administrator, OP1 hospital in the letter pad of OP No.1 hospital stating their willingness to discuss and taking decision about the B/O Raseena.
The contentions of OPs are that the 1st complainant had a full term normal delivery on 30/07/2012 in the 1st OP hospital and he was having birth weight 2.750 Kg and cried soon after birth, 2nd OP examined the baby and found to be normal, active and sucking well. On the second day also the baby was found to be active. OP further contended that on 01/08/2012 the baby had shown signs of mild jaundice but was active. Since there was mild Jaundice, OP NO.2 ordered serum bilirubin test which was reported total billirubin 14.3mg. OPs submitted that since the baby developed signs of Jaundice after 48 hours it was physiological jaundice and in view of the test result the baby was immediately shifted to NICU and double surface phototherapy. OPs stated that baby was active and sucking well. Further on 02/08/2012 the baby was having jaundice but active and sucking well. The phototherapy continued and a repeat serum bilirubin test was directed. The result came as serum total bilirubin as 17.6 mg%. As per test report there was a rise in the serum bilirubin only 3mg % within 28 hours, and hence there was nothing to suspect active haemolysis. So a long with photo therapy IV fluids and antibiotics also started. Sepsis screening test was also done and it was found to be negative and GRBS was within normal limits. It is further submitted that in spite of medical measures the baby was found to be less active and sucking was poor and more jaundiced around 7.30 pm o 02/08/2012, the baby was referred to Koyili Hospital, Kannur for further management based on repeat bilirubin evaluation and for an exchange transfusion if indicated.
2nd OP’s main contention is that Jaundice developed on the child was physiological Jaundice and it is a medically accepted condition seen in new born babies which is not caused due to any act or omission on the part of the pediatrician. Further contended that the complainant’s baby had Rh in compatibility, which is a factor inducing neouatal bilirubinemia which usually requires conservative management. Further stated that in the management of the new born baby, the 2nd OP had exercised due care and expertise expected from a reasonably qualified and experienced pediatrician in an identical situation. The other submission made on behalf of OPs is that the neonatal bilirubinmia was the result of obstinate attitude and negligence of the complainant. Complainant had not taken anty-D injection after her abortion. In such a situation the definite complication that may happen is bilirubinemia of the baby in the next birth. So complainant herself is responsible for all the inconvenience and mishaps caused to her. Here it is to be noted that OPs have not produced and marked the medical records of the patient in their hospital to prove that they have given proper treatment to the child. It is an admitted fact that the complainant had taken treatment during the pregnancy period from the OP1 hospital. Then the treating doctor Dr.Sabina might have noted in the case sheet that the 1st complainant mother of the child had not taken Anty-D injection after her previous abortion. During the evidence time Pw1 also admitted the said fact which is recorded in the discharge summary of Koyili Hospital by Dr. M K Nandakumar also. Further after the birth of the child, it was noted that the blood group of baby was O+ve ie different from the blood group of mother (O-ve). Then as an experienced pediatrician OP No.2 should have taken more careful in treating the child when OP NO.2 noted that there was changes in the bilirubin in the baby.
It is to be noted that in Ext.A7 the discharge summary of Koyili Hospital from which the child availed subsequent treatment, presenting complaints cried soon after birth, noticed to have SB- 14.3 on 01/08/2012, 17.6 on 02/08/2012 treated with phototherapy double surface. As SB appeared more clinically, referred for further management. Diagnosis. Neonatal hyper bilirubinimia.
Opposite parties contended that on 02/08/2012 the date of discharge from OP hospital the baby was having jaundice but active and sucking well. But complainant No.1, has stated in the complaint as well as during the evidence time that immediately after the birth of the child on the 1st day, he was healthy and active but on the next day some changes was noticed on the child. The child was found always sleeping and did not suck her breast for milk. Thus was informed to OP No.2 on 31/07/2012. Further on the next day 01/07/2012 the health condition of the child did not improve and OP No.2 informed to conducted blood test and admit the child in ICU. After conducting blood test the report shows that the total bilirubin is 14.3mg. Complainant has stated that then OPs did not inform the serious condition of the child to the complainant. On 02/08/2012 the bilirubin result at OP hospital shows 17.6. OP stated that on 02/08/2012 at 1pm the blood test was done and the result shows 17.6.
It is further to be noted that the biluribin rate noted on the same day at Koyili hospital was 32 mg% and also the clinical condition of the child at the admission time at Koyili Hospital was (Ext.A7) the baby was irritable had seizure, hypertonic, with feeding difficulty and drooling of saliva, S B 32 mg %.
In this contest we have to note the enquiry report (Ext.A3) against the treatment given to the 2nd complainant at OP1 hospital, conducted by Dr. Unni B, pediatrician, District Hospital, Kannur on 13/02/2013 on the complaint lodged by E Mashood. In the enquiry report it is stated that in the OP No.1 hospital, the bilirubin value was well below exchange transfusion level and exchange transfusion was not indicated. The treatment given was appropriate.
Further noted that the lab facilities attached to OP No.1 is insufficient. The lab Technician does not pass a DMLT of a recognize institution. The learned counsel of OPs submitted that recognized qualification is required only for the appointment in the Government service. In the private establishment any qualified person can be appointed.
But the learned counsel has not submitted any supporting evidence to show that any qualified person can be appointed in a private establishment as lab technician.
Moreover OPs did not furnish the qualification of the lab Technician attached to OP NO.1 hospital before this commission, because minimum qualification of a lab technician is necessary. Further in Ext.A3 it is stated that the lab technician of OP hospital admitted that the equipment was out of order and so a difference in the value of serum bilirubin has come which means the bilirubin rate of the child noted in the OP hospital is not correct. That is the reason high variation was noted in Koyili hosipital ie at OP hospital the rate on 02/08/2012 was 17.6mg and at Koyili hospital the rate on the same day was 32mg.
The medical officer opinioned that the disorder of equipment in the lab was resulted in the pediatrician not thinking of exchange fusion earlier. Further opinioned that in the case of the doctor concerned has give appropriate treatment, but there is negligence on the part of laboratory of the hospital. So hospital is to be made liable
Dr. K Narayana Naile who is working as DMO at District Hospital, Kannur at present has been examined as a witness from the side of complainant (Pw3). Pw3 has supported the opinion as stated in Ext.A3 and has deposed that in page No.2, equipment out of order
ഉം Technician qualified അ ല്ലാത്തതും കാരണം ഹരജിക്കാരിയുടെ കുട്ടിക്ക് കൃത്യമായി Treatment നല്കാന് സാധിച്ചില്ല എന്ന് പറയുന്നു? (Ans) അതെ. അതുകൊണ്ടാണ് കുട്ടിയുടെ രോഗം ഗുരുതരമാകാന് കാരണം? ശരിയായിരിക്കാം Ext.A3 പ്രകാരം Hospital ന്റെ ഭാഗത്ത് അശ്രദ്ധ ഉണ്ടായി എന്ന് പറഞ്ഞാല്? ശരിയാണ്. During cross-examination, Pw3 has deposed that ഈ Report പ്രകാരം കുട്ടിയെ ചികിത്സിച്ച Doctor റുടെ ഭാഗത്ത് നിന്നും യാതൊരു അശ്രദ്ധയും ചികിത്സാ പിഴവുകളും ഉണ്ടായിട്ടില്ല എന്ന് Ext.A3 report ല് പറഞ്ഞിട്ടുണ്ട്. Further the learned counsel of OP asked a question page (2) ഒരു Medical lab ല് പലവിധത്തിലുള്ള Equipments ഉം ഉണ്ടാവും report ല് ഏത് equipment ആണ് out of order എന്ന് പറഞ്ഞിട്ടില്ല? (A) ആ equipment ന്െറ പേര്പറഞ്ഞിട്ടില്ല.
But we can see in Ext.A3 it is specifically stated that in page 2, 2nd para “she has admitted at the enquiry, that the equipment was out of order and so a difference in the value of serum bilirubin has come. In my opinion this has resulted in the paediatrician not thinking of exchange transfusion earlier.” This sentence clearly means that the equipment using to test billurubin was out of order and the readings of bilirubin of the child taken by the technician at the lab of OP 1 hospital was not correct from the early stage ie from 01/08/2012 onwards.
On analysis of evidence of Pw2 Dr. M K Nandakumar, who had treated the child at Koyili Hospital, reveals that on the relevant period another baby affected same complaint and referred to him at Koyili Hospital. Pw2 Doctor deposed that normal rate of bilirubin in a new born baby can be upto 5 mg. Further stated that “high rate of bilirubin in the blood of new born baby will affect the brain growth, hearing capacity, neurological damage and growth of the child and need lifelong treatment and lifelong support of others”. Here, the bilirubin of the child was 32 mg/ at the admission time in Koyili Hospital.
During cross-examination the expert doctor deposed that Jaundice happened in new born baby after 24 hours are normal called physiological jaundice and double surface phototherapy is the immediate treatment. The learned counsel of OP put a question to the expert doctor (in page 5). Biluribin ന്െറ Percentage 28 മണി ക്കൂറിനുള്ളില് 3 മില്ലീഗ്രാം കൂടുന്നില്ലെങ്കില് Bool transfusion നെ പറ്റി ചിന്തിക്കേണ്ട ആവശ്യമില്ല എന്നുപറയുന്നു? (Ans) പൂര്ണ്ണമായും ശിരിയല്ല. യഥാര്ത്ഥത്തില് 5Kg per hour അല്ലെങ്കില് 24 മണിക്കൂറിനുള്ളില് 5mg കൂടിയാല് Blood transfusion നെപറ്റി ചിന്തിക്കണം, കൂടാതെ കുട്ടിയുടെ മറ്റു കാര്യങ്ങളും പരിശോധിച്ചതിന് ശേഷമെ Blood transfusion നെ പറ്റി അവസാന തീരുമാനം എടുക്കാന് സാധിക്കൂ.
Here we can see that on 01/08/2012 itself the bilirubin rate was 14.3mg% ie 9.3 mg% high than normal rate. Moreover as per Ext.A3 report the equipment was out of order. Then the bilirubin rate might have been high than 14.3mg% on 01/08/2012 itself, because when the rate noted at OP hospital lab shows 17.6 mg % the actual rate of bilirubin after few hours taken at Koyili Hospital was 32 mg %. Further Pw2 deposed that DCT test must be done when the bilirubin rate shows increasing and when there is difference in the blood group between mother and child. Pw2 deposed that there was no such facility in OP hospital to take DCT test. OPs does not have a case that DCT test was conducted at OP hospital. It is seen that the result of DCT test conducted Koyili Hospital was +ve and also the clinical condition of the baby at the admission time at Koyili Hospital was in a worse condition ie affected deep Jaundice, irritable had seizure hypertonic, feeding difficulty, drooling of saliva S B-32 MG%. Same day DV Exchange transfusion done. Then the percentage of bilirubin was 28 mg%.
The OPs vehemently submitted that the complication of the child was caused because of the complainant NO.1 had not taken Anty – D Injection after her abortion and in such a situation the definite complication that may happen is bilirubinemia of the baby in the next birth.
Here it is pertinent to be noted that during the pregnancy period the 1st complainant had taken treatment from OP No.1 hospital. Then normally the case sheet contain the above said endorsement. Moreover the blood group of the child was different from that of his mother. In such a situation OP No.2 should have given more important and taken seriously increase of the bilirubin rate of the new born child. We can see that OP No.2 had taken the bilirubin of the child at the first time only on the 3rd day of his birth after showing the symptom of mild Jaundice. Since there was disorder of equipment in the lab, the OP hospital and treating doctor should have taken correct biluribin rate of the child from outside laboratory as well as done DCT test from other hospital from where the facility for DCT test was available. From the evidence of OP2 itself reveal that though he had given treatment of phototherapy the immediate treatment for high rate bilirubin, on the next day also it shows like amount. Even though OPs instead of discharging the child to higher center, retained the new born child at OP hospital till night on 02/08/2012. Pw2 the expert doctor categorically deposed that if the bilirubin rate became serious, that will affect the whole system and life of the baby. In such a situation, we cannot come to a conclusion that the complication of the child was happened due to not taken of Anty D injection by the mother. So from the available evidence we are of the considered opinion that there was medical negligence on the part of OPs 1 and 2. Here though the OP NO.2 doctor treated the child, but the fact remains that the condition of the child became worse due to lack of taking the correct rate of bilirubin and non-conducting of DCT test on the child.
Since there is medical negligence and deficiency in service to the part of OPs 1and 2, they are liable to pay compensation. Normally in case of medical negligence cases, it is overall view of negligence and the cause related there with as the complications suffered by the patient, which is a determining criteria for assessing the damages or the compensation.
Here, there was medical negligence as well as administrative negligence on the part of hospital and treating doctor who retained that patient there till the clinical condition of the child became worse and bilirubin rate became high, without doing proper diagnosis or treatment except for giving phototherapy, IV Fluids and antibiotics.
It was because of such a situation that the complainant had to take the child to Koyili Hospital at night where he was attended to immediately and blood transfusion DSCT Test done on the same night It is also taken into account that Ext.X2 disability certificate shows that child has 70% permanent disability of the whole body, Ext.A5 audiology and speech therapy report shows ASSR evaluation report right ear 69 deaf left ear 59 deaf and Ext.A12 standing disability assessment board certificate of District Hospital, Kannur shows disability is 100% (total disability).
Considering all the facts and circumstances of this case, we are of the view that there is gross medical negligence on the part of OPs1 and 2. In the result they are liable to pay compensation the complainants. Since OP No.2 is no more as per Kerala Torts (miscellaneous provisions) Act 1976, Part II 2. Effect of death on certain causes of action :- On the death of any person after commencement of this Act, all causes of action subsisting against or vested in him shall survive against or as the case may be, for the benefit of his estate. 3:- Damages recoverable in such cases: Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person. “The said act is an act to unify and amend the law relating to survival of cause of action, liability of joint tortfeasors and liability in case of contributory negligence in respect of torts.” Based on the provision of Kerala torts (miscellaneous provisions) Act 1976, the contributory negligence as alleged in the complaint against the 2nd OP will not cease of his death. Hence the legal heirs of 2nd OP ie additional OPs 3 to 5 are liable.
Hence OP No.1 and additional OPs 3 to 5 are responsible for the compensation ordered in this case.
In the result complaint is allowed in part. Opposite parties are directed to pay Rs.15,00,000/- to the complainants. Out of which Rs.10,00,000/- has to be paid by the hospital Opposite party No.1 and Rs.5,00,000/- has to be paid by additional Opposite parties 3 to 5 as legal heirs of Opposite party No.2. Opposite parties shall comply the order within one month from the date of receipt of this order. Failing which the awarded amount shall carry interest @9% per annum from the date of order till realization. 1st complainant is at liberty to file execution application for realization of the amount as per provisions envisaged in Consumer Protection Act 2019.
Exts
A1- Discharge bill from Mother and Child Hospital, Kannur
A2-The letter written by A Ramachandran, Administrator, OP1 hospital
A3- Enquiry report
A4- 1st information report
A5- BERA/ABR evaluation report
A6- Deposition of Smt. Geetha – lab technician
A7- Discharge summary of Koyili hospital
A8-EEG report
A9- Discharge summary from Amrutha Institute of Medical Science and Medical Center
A10- Out patient ticket issued by Dr. Manoj ENT, Calicut
A11- MRI of brain
A12- Copy of Disability certificate of Medical Board
A13 to A27- Physiotherapy treatment chart
A28- Diagnosed report by NIMH Banglore
A29 to A31- Investigation report by OP 1
A32 & 33- clinical laboratory report
A34 & A 35- Whole human blood IP
A 36 to A 39- Discharge summary with investigation report and bills of Koyili hospital
A 40 to A 82- Medical bills
Pw1-Complainant
Pw2-Dr.Nandak kumar- witness of complainant
Pw3-Dr. K Narayanan Naile-Witness of complainant
Dw1-Dr.Jesley Hamza- Witness of OP
X1-Admission form from Koyili hospital
X2-Disability certificate (KCHC Hospital Pariyaram)
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
