BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 488/1999 Filed on 15.10.1999
Dated : 31.01.2011
Complainants:
S. Bindusree, Kailas, Nelliyode, Karumom P.O, Thiruvallam, Thiruvananthapuram.
S. Sreekumar, Kailas, Nelliyode, Karumom P.O, Thiruvallam, Thiruvananthapuram.
(By adv. T.R. Omanakuttan)
Opposite parties :
M/s SRKA Charitable Hospital, Sasthamangalam, Thiruvananthapuram represented by its President.
Dr. Lekshmi. S.V, Gynaecologist, SRKA Charitable Hospital, Sasthamangalam, Thiruvananthapuram.
(By adv. K. Murlidharan Nair)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 07.10.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 15.12.2010, the Forum on 31.01.2011 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that the 1st complainant was pregnant and was under treatment of the 2nd opposite party who was practicing as the Gynaecologist in the 1st opposite party hospital, that she was admitted in the hospital on 10.12.1998, that 2nd opposite party informed the complainants that the child is normal and healthy and the delivery is expected to be normal, that on 10.12.1998 the patient was taken to labour room by 9.30 am and brought back to bed on the same day, that the patient complained of feeling of split vision and discomfort, but opposite party did not care to attend the patient, that on 11.12.1998 the 1st complainant was taken to the labour room and caesarian operation was performed and the new born was reported cried once, that the 2nd complainant demanded to have the child taken to SAT Hospital, that the child died on 12.12.1998 after about 12 hours of treatment in ventilator, that 1st complainant was transferred to SUT Hospital for expert treatment for which even police intervention was needed, that indiscriminate negligent administration of Anaesthetics resulted in jaundice and the complications that followed, that 1st complainant was suffering from hypotonic encephalopathy but became conscious only on the next day and by that time the liver function of the patient was abnormal and the patient was performed laprotomy by the physician at SUT Hospital and saved the life of the patient. All these complications resulted only by the failure of timely diagnosis and treatment or timely reference to hospital with required facilities. The pain and suffering of the patient was severe. There is deficiency in service and negligence on the part of the opposite parties. Hence this complaint to direct opposite parties to pay compensation of Rs. 2,00,000/- towards the hardship and irreparable injury and loss of expectancy in life and to pay proper compensation for the loss of life of the child.
Opposite parties filed version contending interalia that the 1st complainant had been under treatment in the 1st opposite party hospital under the care of the 2nd opposite party, that 1st complainant consulted the 2nd opposite party for her second pregnancy. Her first pregnancy terminated in LSCS operation done in the 1st opposite party hospital and a male baby was delivered. The 1st complainant consulted the 2nd opposite party for her second pregnancy on 20.06.1998, that her expected date of confinement was 26.12.1998, that she had a history of rheumatic heart disease at the age of 10 and she was on injection penidure for 6 years. Cardiology consultation was done and she was found within normal limits. Her second pregnancy was uneventful till 01.12.1998. Ultra sound scanning was done, the results were within normal limits. The 1st complainant was thereafter directed to get herself admitted for elective LSCS and sterilisation operation either on 13th or 17th December 1998. On 09.12.1998 1st complainant came to opposite party hospital with complaints of back ache. On examination, uterus 38 weeks, not acting, foetal heart beats good. The patient was admitted for observation as she had no labour pain. Directions were given for recording of foetal heart beat and B.P, 8th hourly, on 10.12.1998 morning 2nd opposite party examined the patient. She had no labour pain, foetal heart was good, she had vomited once. She was not dehydrated and there was no evidence of jaundice in the eyes. As she had no other complaints during the day, she was posted for LSCS and sterilization on 11.12.1998. The patient had a pre-anaesthetic check up on 11.12.1998. By about 12.45 pm she was started General Anesthesia. The abdomen was opened after excising the previous LSCS scar. Bleeding was more than normal. The baby was delivered at 12.53 p.m and it cried soon after delivery. There was difficulty in breathing and throat and nose suction were given to clear the air way. Oxygen inhalation was also given for a few minutes. The baby was having huge mass, filling the whole of the abdomen, which was the cause of the breathing difficulty. The paediatrician was informed of the baby's condition and he advised immediate transferring of the baby to SAT Hospital where there was facility for emergency surgical intervention also. Sterilization was not done as the baby was not healthy and this fact was informed to the relatives also. The abdomen was closed in layers after attaining haemostasis. At that time also, the catheter was draining clear urine. By 1.45 p.m the patient was given reversal from the GA. She had started breathing spontaneously but other reflexes were absent. Intubation and IPV were continued, monitoring of the pulse rate, respiratory rate, blood pressure and oxygen saturation was continued. Foley's catheter was inserted and the urine drained was high coloured. Even though there was no clinical evidence to jaundice, blood and urine were sent for Serum Bilirubin estimation. The result came by 2.15 pm as Serum Bilirubin 6.8 mg. Bile salt nil, Bile pigment positive. The patient's relatives were informed about the condition of the patient. The patient had not come out completely out of anesthesia and that she had jaundice. The physician of the hospital contacted Dr. Meenu Hariharan, Professor of Gastroentrology of Medical College Hospital, Thiruvananthapuram, she said that it might be a case of Hepatitis E and advised the blood sample to be sent for test for anti H.E. Since there was no improvement in the condition of the patient, the relatives were informed at 4.30 pm that it was better to take the patient to medical college hospital as she needed intensive care. The relatives wanted to take the patient to SUT Hospital. The patient was shifted to SUT Hospital with Endotracheal tube accompanied by a doctor, staff nurse and attender in the hospital ambulance at about 6.15 pm. 2nd opposite party was in constant touch with the SAT Hospital and SUT Hospital to follow up the progress of the baby and the patient. The baby expired at 12.30 a.m on 12.12.1998. the baby was also having low set ears and hypotonia, all suggestive of congenital abnormalities. 2nd opposite party received the information that the liver function tests was slightly raised and she had a problem of clotting of blood, that in SUT Hospital the laporotomy was done on the 1st complainant on the night of 13.12.1998. She improved well and was discharged after about two weeks. It is submitted by opposite parties that they are in no way responsible or liable for any suffering or injury or hardship which the complainants may have suffered. The patient was treated with care and with that degree of professional skill and competence, reasonably to be expected from a gynaecologist. The claim of Rs. 2 lakhs as compensation has no legal basis. The claim for refund of Rs. 1 lakh is unsustainable in law. Opposite parties submitted that despite all the care that was taken by them to look after and care for the patient, this complaint was filed, twisting facts and making wholly false claims and statements. The claims are vexatious and false. Hence opposite parties prayed for dismissal of the complaint with compensatory costs.
The points that arise for consideration are:-
Whether there is negligence and deficiency in service on the part of the opposite parties in giving treatment to the complainant?
Whether the complainant is entitled to compensation? If so, at what amount?
Whether the complainant is entitled to costs? If so, at what amount?
In support of the complaint, 2nd complainant has filed affidavit in lieu of chief examination as PW1. 1st complainant has been examined as PW2 and has marked Exts. P1 to P19. One witness from the part of the complainant has been examined as PW3. In rebuttal, 2nd opposite party has filed affidavit in lieu of chief examination and has marked Ext. D1.
Points (i) to (iii):- There is no dispute on the point that complainant was consulted by 2nd opposite party, that treatment caesarian operation, death of a new born baby, seriousness and transfer of the 1st complainant to SUT Hospital etc. were admitted by opposite parties. It has been the case of the complainant that 1st complainant was forced to visit the 1st opposite party's hospital following a severe back pain and vomiting and she was admitted in the hospital on the direction of the duty medical officer. It has also been the case of the complainant that 2nd opposite party did not care to visit the 1st complainant. It is submitted by the complainant that the troubles were beyond the control of the duty doctor and duty doctor contacted the 2nd opposite party and 2nd opposite party told that these are only gas troubles and mental tension and so nothing to worry. According to complainants the death of a new born baby and seriousness and transfer of the 1st complainant to SUT Hospital was due to the carelessness, negligence and irresponsibility of the 2nd opposite party. 1st and 2nd complainants have been cross examined by the opposite party. In her cross examination 1st complainant has deposed thus: “ജന്മനാ ഉള്ള കുഴപ്പം കൊണ്ടാണ് കുട്ടി മരിച്ചത് എന്നു പറയുന്നത് എന്റെ കേട്ടറിവ് വച്ച് ശരിയല്ല. SAT-യിലെ treatment-നെക്കുറിച്ച് എനിക്കറിയില്ല. കുട്ടിയുടെ മരണ കാരണം അറിയാന് post mortem ചെയ്തില്ല. ............. pregnancy period-ല് jaundice ഉള്ളതായി എനിക്ക് തോന്നിയിട്ടില്ല. DDRC-യില് test ചെയ്യാന് എഴുതിയതിനെക്കുറിച്ച് നേരിട്ടറിവില്ല”. When asked whether the doctor was always with her, she deposed that she was not aware due to the effect of anesthesia. She has deposed further that when she was conscious she was in SUT Hospital. Complainant has not produced the case sheet from SAT Hospital. Opposite parties resisted the complainants by submitting that 1st complainant had been examined thoroughly, drugs had been prescribed, laboratory investigations had been ordered if vomiting persisted. There were no indications of any abnormality. The ultra sound test also did not indicate any abnormality and that no assurance was given to the complainant regarding the health of the child or that it was normal. It is further contended by opposite parties that the baby was delivered at 12.53 pm and it was bathed in meconeum and it cried soon after delivery. There was difficulty in breathing and throat and nose suction were given to clear the air way. Oxygen inhalation was also given for a few minutes. According to opposite parties the baby was having a huge mass filling the whole of the abdomen which was the cause of breathing difficulty. Due to that the baby was transferred to SAT Hospital even before the LSCS was completed. It is further submitted by opposite parties that sterilization was not done as the baby was not healthy. Opposite party has produced the original case sheet which contains the maternity case sheet, record of anesthesia, Neonatal record etc. On perusal of the case sheet (Ext. D1) 1st complainant was admitted on 09.12.1998 at 11.20 am. It is seen further that history of previous labour-previous LSCS, general conditions:good, condition of uterus-not acting, height of uterus-37 w/g, position of uterus-VX LOA. In the neonatal record (Ext. D1) in the place of any abnormality, it is seen written mass abdomen. Child cried immediately after delivery and has grunting, informed Dr. Jayamony, Adv. To refer baby to SATH. From the side of complainant Dr. GPN Varma has been examined as PW3. In his cross examination he has deposed that breathing difficulty of the new born baby cannot be ascertained prior to operation. But he has added that the health of the child can be ascertained by other tests like scan etc. PW3 has deposed further that prior to operation there is no facility in Thiruvananthapuram to assess the infirmity of the child. The only facility available was of scan. He has further deposed that it is better to refer the patient to a hospital where all facilities available if any problem is foreseen before caesarian. In his cross examination by the complainant he has deposed that all medicines have side effects, that will vary according to patients for which no negligence can be attributed to a doctor. He has perused Ext. P2 to P16 and deposed that the medicines stated therein are all being usually prescribed. In his cross examination PW3 has deposed that the patient was first seen on 11.12.1998 by the casualty duty doctor and the patient was admitted under Dr. Bharath Chandran, cardiologist in SUT. The patient was taken to ICU and put on ventilator. The patient condition is that she needed ventilatory support. He has deposed further that ventilators are not available in all hospitals in Thiruvananthapuram. PW3 has further deposed that he cannot say anything about the condition of the baby and the patient without seeing the case sheet of Sree Ramakrishna Hospital. According to PW3 the patient's case shows all the symptoms of HELLP. HELLP is a collection of Hemolysis Elevated Liver enzymes and Low Platelets. It was coined in 1982. They are talking about it in the last 2 or 3 years. PW3 has added further that this patient had low platelet counts. She has elevated liver enzymes. She also has haemolysis. Though PW3 has been examined by the complainant, nothing was elicited from him to substantiate the contention of the complainant that there was negligence or deficiency in service on the part of the opposite party in treating the 1st complainant in 1st opposite party's hospital. The burden is on the part of the complainant to show that jaundice was developed due to the administration of medicines by the opposite parties. There is no material before us to show that the liver damage was due to the treatment given by the opposite parties. In this context it is to be mentioned that in a complaint for damages on account of negligence the onus lies on the complainant/patient to prove that the doctor was negligent and the said negligence resulted in the injury which is complained to be compensated. Basically, medical negligence denotes such negligence resulting from the failure on the part of the doctor/hospital to act in accordance with the medical standards which are being practiced by an ordinary and reasonably competent man practicing the same art. Once a doctor accepts a patient this principle is applicable. It may be stated that to establish negligence on the part of the opposite party, the claimant must show (a) what is the standard care (b) on the facts of the case, that opposite party's conduct fell below that standard and (c) that the same had resulted to some injury to the patient. In this case 2nd opposite party is the doctor who was working in 1st opposite party's hospital at the relevant period when the complainant was admitted in 1st opposite party's hospital. They have filed affidavit and produced the case sheet. Opposite party has been cross examined by the complainant. During cross examination nothing has been brought out from the opposite parties to controvert the affidavit filed by the 2nd opposite party. On the other hand, complainant has filed affidavit and expert doctor was examined by the complainant as PW3. Complainant has been cross examined by opposite parties also. PW3 has also been cross examined by opposite parties. In the chief examination itself PW3 had deposed that “doctor-ടെ പിഴവ് കൊണ്ട് ആണ് ഇത് എന്ന് പറയാന് കഴിയില്ല”. It is to be noted that expert opinion is the basis for determining medical negligence. As regards treatment opposite parties had proved by positive and satisfactory evidence that they had taken reasonable care and caution in giving treatment to the 1st complainant to the best of their ability and knowledge of the subject and acted in good faith in the interest of the health of the complainant. No materials before us to prove otherwise. In view of the above and evidence available on records, we find opposite parties are not guilty of medical negligence. Complaint has no merits at all which deserves to be dismissed.
In the result, complaint is dismissed. Parties are left to bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31st day of January 2011.
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
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S.K. SREELA : MEMBER
jb
O.P. No. 488/1999
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Sreekumar
PW2 - Bindusree. S
PW3 - G.D.N. Varma
II COMPLAINANT'S DOCUMENTS :
P1 - Cash bills.
P2 - Maternity card
P3 - Laboratory report dated 20.06.1998
P4 - Prescription
P5 - Laboratory report dated 26.09.1998
P6 - Prescription
P7 - Prescription
P8 - Prescription
P9 - Prescription
P10 - Obstetric Ultra Sound Report dated 01.12.1998
P11 - Lab Report dated 07.12.1998
P12 - Prescription
P13 - Prescription
P14 - Discharge summary
P15 - Discharge summary
P16 - Copy of paper cutting
P17 - Copy of registered inland letter card with A/D dated 28.04.99
P18 - Copy of letter dated 27.04.1999.
III OPPOSITE PARTY'S WITNESS :
DW1 - S.V. Lekshmi
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Original case sheet.
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PRESIDENT
