Kerala

StateCommission

CC/09/9

Veena Krishnan - Complainant(s)

Versus

M/s Cosmopoltan Hospital - Opp.Party(s)

P.Mohanan

09 Jun 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION

 

SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

CC NO.09/2009

JUDGMENT DATED:09/06/2016

 

PRESENT

 

SHRI.K.CHANDRADAS NADAR  : JUDICIAL MEMBER

 

SMT. A. RADHA                             : MEMBER

 

COMPLAINANT

 

          Smt. Veena Krishnan,

          W/o,  Mr. Anil. G.S.,

          T.C. 3/2029(1), Vinayaka,

          Varukadu, Thiruvannathapuram.

 

          (By Adv: Sri. C.P. Venugopalan Nair & Sri. A. Nazeer))

 

                                                          Vs.

 

RESPONDENTS

 

1. M/S. Cosmopolitan Hospital (P) Ltd.,

          Pattom, Thiruvananthapuram.

          R/by its Managing Director.

 

2. Dr. Subhadra Nair M.S., D.G.O.,

          Consultant Obstetrician & Gynaecologist,

          Cosmopolitan Hospital,

          Pattom, Thiruvananthapruam

 

3. Dr. Krishna Kumar P.K.,

          General Medicine, Cosmopolitan Hospital,

          Pattom, Thiruvananthapruam.

 

          (By Adv: Sri. K. Muralidharan Nair)

 

JUDGMENT

 

SHRI. K. CHANDRADAS NADAR          :  JUDICIAL MEMBER

          This is a complaint filed u/s 17 of the Consumer Protection Act.   The allegations in the complaint in brief are the following:

          The complainant is an educated lady employed as business executive in the firm M/s. Popular Automobiles Pvt. Ltd.  The 1^st opposite part is one of the leading private hospitals in South Kerala and opposite parties 2 and 3 are well known doctors employed by the 1^st opposite party.  The complainant approached the 1^st opposite party hospital at the beginning of her 1^st pregnancy and consulted the 2^nd opposite party expecting best treatment.   The 2^nd opposite party examined the complainant and after physical and clinical examination confirmed the pregnancy.  The 2^nd opposite party advised the complainant to consult her with scan report from Dr. Girija’s Diagnostic Laboratory and Scans, Attingal on 7.7.2008.  On 7.7.2008 after examination of the test report and physical examination the 2^nd opposite party assured the complainant that the foetus was in good condition and growth.  Thereafter the complainant was undergoing routine check up as advised by the 2^nd opposite party.

          2.      Meanwhile serious breathing problem developed and consequently complainant felt very difficult to sleep during night.  The complainant approached the 2^nd opposite party on 2.10.2008 with the above complaint.  On that day as advised by the 2^nd opposite party, the complainant consulted the 3^rd opposite party.   Both of them examined the complainant and prescribed medicines.  Though the complainant took the medicines advised by the doctors, there was no relief for the breathing problem.  So the complainant again consulted the 2^nd opposite party on 29.10.2008 and on 8.11.2008.  On all those occasions the 2^nd opposite party prescribed medicines for breathing problem with the suggestion that breathing problem is an usual phenomenon found during pregnancy and advised the complainant not to worry.  Believing the doctor the complainant took the medicines without fail.  But the breathing problem continued.  On 24.12.2008 the complainant experienced extreme breathing problem.   Added to that there was inflammation (oedema) of her legs.  On the next day the complainant met the 2^nd opposite party at her residence since the 2^nd opposite party was on leave.  After examination the 2^nd opposite party prescribed medicines. But there was no relief or recovery from the problem.  The complainant was forced to get admitted in the hospital on 1.1.2009.  Opposite parties 2 and 3 treated her.   On 5.1.2009 complainant was advised to take ultra sound scan and to undergo other clinical tests.  After the examination of the results opposite parties 2 and 3 assured the complainant that the child in her womb was very healthy and there was nothing to worry.  At that stage the husband of the complainant and relatives enquired opposite parties 2 and 3 about the scope of caesarean operation in order to save the child and the mother, since the complainant was sinking from 5.1.2009 onwards.  But opposite parties 2 and 3 ruled out scope for caesarean operation, though both were convinced that complainant could not lie on bed and had not slept thorough out those days.  They were repeating that the complainant’s child was healthy.

          3.      But on 13.1.2009 opposite parties 2 and 3 examined the complainant and suggested caesarean operation since some labour symptoms had developed on the complainant.  As a preparation for the caesarean operation the anaesthetist examined the complainant and on his direction opposite parties 2 and 3 referred the complainant to a cardiologist who advised the complainant to undergo ECG and Echo tests.   After examination of ECG and Echo test results by the cardiologist opposite parties 2 and 3 disclosed that the child in the womb died on 12.1.2009 due to dilated cardio myopathy. The complainant and her husband were totally shocked to hear the disturbing news.  But opposite parties as a matter of escapism referred the complainant to KIMS Hospital, Thiruvananthapuram saying that there was lack of facilities in the 1^st opposite party hospital.

          4.      The complainant was treated in the KIMS hospital as inpatient from 13.1.2009 to 5.3.09 and from 11.3.09 to 18.03.09.  During the said period the complainant underwent surgical operation, dialysis and other treatments.  The complainant is still continuing her treatment.  The complainant was subjected to untold miseries due to improper and wrong diagnosis and careless and negligent attitude from the side of the opposite parties.  She lost her baby as a result of the negligent treatment by the opposite parties.   The kidney functions of the complainant were badly affected and complainant’s health and vitality deteriorated. The complainant lost her job.  Further the complainant lost faith in carrying another child.  All these have affected the mental health of the complainant also.  The complainant spent huge amount of money in the opposite party hospital.  She spent about 25,000 rupees in the 1^st opposite party hospital and spent more than 6 lakhs rupees in the KIMS hospital for treatment.  The opposite parties are liable to compensate the complainant for all the sufferings sustained on account of the deficiency in service on the part of the opposite parties.  They failed to heed the legitimate demands of the complainant by a notice sent by her through her advocate.  Hence the complaint.  The complainant seeks compensation of rupees 30 lakhs from the opposite parties.

          5.      The opposite parties filed joint version raising the following contentions.  The 1^st opposite party hospital is represented by its chairperson and not by the Managing Director.  It is true that the complainant approached the 1^st opposite party hospital and consulted the 2^nd opposite party.  But it is incorrect to say that the complainant was advised to have scan report from a particular diagnostic laboratory.  The actual facts relating to the consultations and treatment of the complainant in the 1^st opposite party hospital are as follows.  The complainant first consulted the 2^nd opposite party on 17.1.2008 with complaints of urination.  The patient was examined and appropriate medicines were advised.  Thereafter on 19.1.2008 the patient consulted the 2^nd opposite party as follow up.  On 5.4.2008 the patient met the 2^nd opposite party with doubts regarding pregnancy.  But her pregnancy was confirmed only on 13.6.2008.  She did not have any complaint then.   On 16.07.2008   the patient consulted the 2^nd opposite party and there were signs of threatened abortion.   She was prescribed medicines and investigations were done and repeat ultra sound scan was advised on 21.7.08.  On 21.7.08 foetal growth was assessed.   It was noted as 11 weeks gestation, low implantation placenta with estimated date of delivery on 3.2.09.  Pregnancy proceeded normally with mother and baby in good condition.  There were routine consultations on 1.8.08, 27.8.08, 1.10.08, 8.11.08, 2.12.08, and 15.12.08 when nothing unusual was reported or observed. On 1.1.09 the patient complained of breathlessness and difficulty in lying down.   Foetus was 34 weeks, foetal heart was good and BP was normal.  The patient was referred to the 3rd opposite party who is the consultant physician as it was a medical problem complicating pregnancy.

          6.      The 3^rd opposite party examined the patient and she was admitted and treated for acute bronchitis and asthma.  The 2^nd opposite party was also reviewing the patient in the hospital as gynaecologist.   The patient’s condition improved with anti asthma meditation, antibiotics and iron tablets.  On 7.1.09 the patient was referred to Dr. P. Ravindran professor of pulmonology.  He saw the patient and advised her to continue medication for asthma.  On 9.1.09 Dr. Ravindran again saw the patient and advised reduction in the dose of one tablet and continuation of other medicines.  On the next day Dr. Ravindran reduced the dose of another medicine.   On that evening at 7.45 p.m. the patient developed hypoglycaemia and BP drop.   IV glucose was given immediately and blood sugar returned to normal and oxygen saturation was 96%.

          7.      On 13.1.09 the patient reported leaking per veginum in the labour room. Foetal cardiogram showed movements and foetal heart sound was recorded till 11.25 a.m. as normal when the patient was shifted to KIMS hospital. The patient was seen by Dr. Tennyson prior to caesarean and cardiology check up at 9.15 a.m.  ECG and echo showed dilated cardiomyopathy.  Caesarean surgery was considered necessary because the patient had already started leaking, cervix was not favourable for a normal delivery and the condition of the patient was not at all satisfactory for prolonged labour.  In view of the need for the availability of facilities such as intra aortic balloon pump support if necessary along with intensive care unit facility and other facilities not available in the 1^st opposite party hospital, the patient was referred to the KIMS hospital. Had the complainant reported breathing problem and inflammation of lungs she would have been advised hospitalisation.  On 1.1.2009 the patient complained of breathlessness inability to lie down even for short period etc. Therefore she was advised admission in the hospital.  Opposite parties 2 and 3 and Dr. Ravindran are reputed specialists in their respective fields.  Caesarean section though considered it was felt that caesarean section could not be attempted at that time because the baby was too premature for removal and if done on a patient with acute respiratory problem would aggravate the condition and could prove fatal. On 13.1.2009 the patient went into labour spontaneously.  It is incorrect to say that the 2^nd opposite party disclosed that the child in the womb died on 12.1.2009.  The baby was in good condition on 12.01.2009 and on 13.01.2009.  It is also incorrect to say that the patient was referred to the KIMS hospital as a matter of escapism.  The reference was made in the best interest of the patient.  The allegations regarding improper diagnosis, wrong diagnosis, negligence, carelessness etc. are made without any basis.  The complainant is attempting to take advantage of the unfortunate condition for which no one can be blamed.  The patient had cardio myopathy a serious condition which would require expert and often elaborate procedures spread out over a period of time.   Peripartem cardio myopathy is seen occasionally in the last month of pregnancy or two weeks after delivery.  It is a very rare condition occurring in one out of 20,000 pregnancies.  It cannot be diagnosed early.  Diagnosis can be made when it occurs.  It is seen more in the 2^nd or 3^rd pregnancy.  What had happened here is sudden onset of cardiac failure with acute renal failure following leaking of membrane (onset of labour) due to peripartem cardio myopathy.  The complainant failed to disclose completely her medical history.   Once a patient has been diagnosed to have peripartem cardio myopathy she would be advised against further pregnancy.  There was no negligence or deficiency in service on the part of opposite parties.  The complainant is not entitled to any relief.

          8.      On the above pleadings the points that arise for determination are;

1. Whether there was negligence or deficiency in service on the part of the opposite parties in treating the complainant?
2.  If the answer is in the affirmative what is the quantum of compensation the complainant is entitled to realise?

9.      The evidence in this case consists of the deposition of the complainant as PW1,  Exts. A1 to A22 marked on the side of the complainant, the deposition of the 2^nd opposite party as DW1 and Ext.B1 marked on the side of the opposite parties.  On filing the complaint available medical records were forwarded to the medical board, Medical College hospital, Thiruvananthapurm.  The expert opinion received from there forms part of the records.  So also at the instance of the complainant answer to certain interrogatories were obtained from

 Dr. Sreekumari, Additional Professor, O&G, SAT hospital Govt. Medical College, Thiruvananthapuram which also forms part of the records. 

Point No.1 

          At the outset it may be mentioned that this is one of the cases prosecuted by the learned counsel for the complainant who held brief initially without due diligence.  As a result no expert evidence was adduced on the side of the complainant.   The 2^nd opposite party Gynaecologist was not cross examined on behalf of the complainant.  The 3^rd opposite party also filed proof affidavit, but the evidence was closed without his cross examination particularly because of the lack of diligence in conducting the case on behalf of the complainant.  So the learned counsel who subsequently argued on behalf of the complainant had to limit his arguments based on the available evidence and admitted facts.   The available evidence as already indicated are the admissions   in the version of the opposite parties the opinion of the medical board and the answers to the interrogatories. Ext. B1 is the inpatient record kept in the first opposite party hospital.

          11.    Admittedly the complainant first consulted the 2^nd opposite party a gynaecologist in the first opposite party hospital on 17.1.2008 with complaints of urination.  On 19.1.08 complainant consulted the 2^nd opposite party as follow up.  Complainant approached the 2^nd opposite party on 5.4.08 with doubts regarding pregnancy which has confirmed on 13.6.08.  When there was signs of threatened abortion, the complainant consulted the 2^nd opposite party on 16.7.2008.  According to the opposite parties routine consultations were done subsequently on 15.12.08 and on various dates but nothing unusual was reported or observed.  In the meanwhile the growth of the foetus was assessed through ultra sound scans. Ultra sound scan report are produced and marked as Exts.A3 to A10.  It is admitted that the pregnancy progressed uneventfully till 1.1.09 when the foetus was 34 weeks old.  On the said day the complainant reported breathlessness and difficulty in lying down.  Hence the 3^rd opposite party a consultant physician saw the patient as a medical problem complicating pregnancy was suspected.  The 3^rd opposite party observed pallor and mild oedema; lungs showed plenty of rhonchi.  Accordingly she was admitted and treated for acute bronchitis and asthma.  The 2^nd opposite party was also reviewing the condition of the patient.   Opposite parties claim that the patient’s condition improved with anti asthma medication,.  But this is a doubtful claim because on 7.1.2009 the patient was referred to Dr.P.Ravindran professor of pulmonology.  He advised continuation of treatment for asthma with some variation in the dosage of medicines prescribed.  It was only on 13.1.09 when the patient reported leaking per vaginum as prepaparatory to. Caesarean section an anaesthetist examined the patient who suggested evaluation by a cardiologist.  Evaluation by Dr. Tennyson and cardiology check up with the assistance of ECG and echo showed that the patient was suffering from peripartem cardio myopathy.  Opposite parties claim that foetal heart sound was recorded and was normal till 11.25 a.m. on 13.1.09 when the patient was shifted to KIMS hospital Thiruvananthapuram.  This claim also seems to be doubtful for Ext.A15. 2^nd trimester sonogram report dated 13.1.09 showed that cardiac activity was not present in the foetus. The foetus was 34 weeks and 2 days old.  So when the patient was admitted in the KIMS hospital the child in the womb was already dead for the single foetus in cephalic presentation was without movements at the time of scanning. Caesarean section was conducted at the KIMS hospital and a still born child was taken out.  The complainant survived, but prolonged treatment was necessitated and still she is suffering from the after effects of the illness.  Ext.A11 is the echo cardiogram report prepared at the 1^st opposite party hospital.  It assessed the cardiac function of the complainant.  It was then she was found to suffer from dilated cardio myopathy peripartum with poor LV function.  The condition of the child is not seen assessed in Ext.A11.  Ext.A10 imaging report from the 1^st opposite party hospital dated 5.1.2009 shows that the foetal movements were normal on the said day.

          12.    So the main grievance of the complainant on the admitted or disclosed facts is that on admission in the 1^st opposite party hospital on 1.1.2009, the complainant was diagnosed to suffer from acute bronchitis and asthma.  But really her ailment was peripartum cardio myopathy.  According to the opposite parties peripartum cardio myopathy is a very rare condition occurring in one out of 20,000 pregnancies.  This condition is seen occasionally in the last month of pregnancy or two weeks after delivery.  Diagnosis of this ailment can be made when it occurs but not early.  It is seen more in the 2^nd or 3^rd pregnancy. What had happened is sudden onset of cardiac failure with acute renal failure following onset of labour due to peripartum cardio myopathy.  So negligence or deficiency in service cannot be attributed on the part of the opposite parties.  The opinion of the medical board attached to the Medical College Hospital, Thiruvananthapuram is also relevant.  According to the medical board also peripartum cardio myopathy is a condition of severe heart failure which develops during the last month of pregnancy and can occur till 5 months postpartum.  According to the medical board it is very likely, the patient had peripartum cardio myopathy during the last months of pregnancy.  However the symptoms would have been masked by the presence of bronchial asthma earlier.  This opinion is without any basis.  We have referred to the version of the opposite parties in detail which clearly indicates that breathlessness and difficulty in lying down were reported only on 1.1.2009 and till then the pregnancy proceeded normally without any complaint.  There is also nothing on record to show that the complainant suffered from bronchitis and asthma earlier.  The conclusion of the medical board is that there was no evidence of medical negligence on the part of the gynaecologist and physician but the observation “however chest x-ray and cardiac evaluation could have been sought for earlier” is relevant.  The medical board reports that peripartum cardio myopathy as such is a serious cardiac condition with high maternal and foetal mortality.   Even if the patient survives the 1^st episode, there is a high chance of recurrence on subsequent pregnancy and patients once diagnosed to have peripartum cardio myopathy are advised against any further pregnancy. 

          13.    According to Dr. Sreekumari who furnished answers to interrogatories clinical examination, ECG and echo cardiogram are to be conducted to diagnose peripartum cardio myopathy.  This disease cannot be diagnosed on physical examination of the patient alone.  When complaints of severe bronchitis, asthma, sleeplessness, unable to lie on bed etc. are raised, usually tests to diagnose peripartum cardio myopathy are not suggested.  But according to her when the patient does not respond to treatment or when there are physical signs suspicious of other disease other investigations may be done.  According to her also there is chance for peripartum cardio myopathy recurrence in subsequent pregnancy.   A cardiologist’s opinion is valuable in each situation.

          14.    So undoubtedly the complainant had the onset of a rare disease namely peripartum cardio myopathy and the treating doctors cannot be blamed for the consequences of this disease which severely affects the functioning of the heart of the mother. The possible lack of diligence on the part of opposite parties 2 and 3 lies elsewhere.   On 1.1.2009 when the patient reported breathlessness and difficulty in lying down initial diagnosis of bronchitis and asthma was made and the patient was treated accordingly.  The immediate question is whether opposite parties 2 and 3 were bound to suggests tests to diagnose the rare of disease of peripartum cardio myopathy.  The available expert opinion suggests that if the symptoms of the disease was masked by the presence of bronchial asthma earlier then the opposite parties could have reasonably assumed that the patient was suffering from bronchial asthma.  We have held that there is absolutely no evidence to indicate that the patient was suffering from bronchial asthma earlier.  Though in the version there is attempt to plead that the complainant might not have disclosed other ailments fully, admission of the very fact that pregnancy proceeded without complaints up to the 34^th week of pregnancy rules out the existence of bronchial asthma earlier.  In such a situation opposite parties 2 and 3 should have referred the patient for cardiac evaluation and that is what  is indicated in the report of the medical board, when the report said “however a chest x-ay and cardiac evaluation could have been sought for earlier”. After admission of the patient on 1.1.09 till 13.1.09 opposite parties 2 and 3 never thought of cardiac evaluation of the patient.  In this regard they fell below reasonable standards of medical treatment.  It may be that onset of  peripartum cardio myopathy happens during the last month of pregnancy but this is a condition which can be diagnosed by clinical examination ECG and echo cardiogram and the patient was never subjected to cardiac evaluation till the anaesthetist suggested the same as preparatory to the caesarean section.   Had cardiac evaluation been done within few days of admission of the patient when symptoms of asthma persisted despite treatment, in, all probability the life of the child could have been saved.  The other aspect that the child must have been dead by the time the patient was referred to the KIMS hospital is already referred to.  In short on appreciating the evidence as a whole we hold that opposite parties 2 and 3 failed to evaluate the condition of the patient diligently and refer the patient for cardiac evaluation at the right time and thereby  they fell below reasonable standards of a medical expert expected in such situation and are guilty of medical negligence.

Point No.2

          It follows from the conclusions arrived at while discussing point no.1 that opposite parties 1 to 3 are liable to compensate the complainant for the loss and agony suffered by her as a consequence of the negligence of the opposite parties.  In this regard also it is relevant to mention that peripartum cardio myopathy is a rare condition, the consequences of which are well defined. The inconveniences suffered by the complainant are due to the failure to diagnose the illness at the right time.  It cannot be diagnosed early nor can recurrence of the illness be prevented.  But diagnosis of the illness at the right time would have saved the complainant from unnecessary sufferings and in all probability,   the life of the child could have been saved.  But that is only a reasonable possibility.  The complainant had to undergo treatment for long duration at the KIMS hospital subsequently inviting expenses. There is no evidence adduced to show the actual expenses incurred by the complainant at the KIMS hospital.  The allegation is that the expenses come to more than Rs.6 lakhs.  So the quantum of compensation can be fixed only on broad probabilities and not as claimed in the complaint.   Considering all aspects,  we hold that the complainant is entitled to realise reasonable compensation of Rs.12 lakhs from opposite parties 1 to 3 jointly and severally for the negligence and deficiency in service committed by opposite parties 2 and 3.

          In the result the complaint is partly allowed.  Opposite parties are directed to pay to the complainant jointly and severally compensation of Rs.12 lakhs with interest @ 9% p.a. from the date of complaint till date of realisation and costs of Rs.10,000/- within one month from the date of receipt of copy of this order.

 

          K. CHANDRADAS NADAR  : JUDICIAL MEMBER

 

1. RADHA               : MEMBER

 

•  

 

APPENDIX

 

List of witnessess for the complainant

PW1                    -  Veena Krishnan

List of witnesses for the opposite parties

DW1                    -  Dr. M. Subhadra Nair

List of Exhibits for the complainant

Ext.A1        -        Registration card of Cosmopolitan Hospital

                    dated:      13.06.2008.

Ext.A2                 - Veenakrishnan’s blood test result of Dr. Girija’s    Diagnostic             Laboratory & Scans dated 6.7.2008.

Ext.A3                 - Obstetric Ultrasound Scan result of Travancore Scans &  Laboratories dated: 21.7.2008.

Ext.A4                 - Obstetric ultrasound scan result dated: 27.8.2008.

Ext.A5                 - Obstetric ultrasound scan result dated: 15.12.2008.

Ext.A6                 - Imaging report of Radiology Department dated:7.7.2008.

Ext.A7                 -  Veenakrishnan’s consultations of Cosmopolitan

Hospital dated: 1.1.2009, 15.12.2008, 2.12.2008 & 8.11.2008.

 

Ext.A8                 - Prescriptions dated: 2.10.2008,29.10.2008, 8.11.2008, 15.12.2008 & 25.12.2008.

 

Ext.A9                 -  Room allotment slip dated:1.1.2009.

 

Ext. A10              - Imaging report of Radiology Department dated:5.1.2009.

 

Ext.A11               -    Echo Cardiogram Report dated: 13.01.2009.

 

Ext.A12               -    Dr. Subhadra Nair’s report dated: 13.1.2009.

 

Ext.A13               -    Patient Registration Card dated: 13.1.2011.

 

 

 

Exhibit for the opposite parties

Nil.

 

K. CHANDRADAS NADAR  : JUDICIAL MEMBER

 

1. RADHA               : MEMBER

 

SANTHAMMA THOMAS      : MEMBER

 

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KERALA STATE CONSUMER

DISPUTES REDRESSALCOMMISSION

SISUVIHARLANE VAZHUTHACADU

 THIRUVANANTHAPURAM

 

CC NO.09/2009

JUDGMENT DATED: 09/06/2016

 

 

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