IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Thiru. Justice R. SUBBIAH PRESIDENT
Tmt Dr. S.M.LATHA MAHESWARI MEMBER
F.A.NO.171/2015
(Against order in CC.NO.62/2012 on the file of the DCDRC, Krishnagiri)
DATED THIS THE 26th DAY OF OCTOBER 2021
1. Dr. I. Nithya
Nithya Hospital
14b, Nethaji Bye Pass Road
Dharmapuri – 636 701
2. M/s. Nihtya Hospital M/s. AAV Partners
14b Nethaji Bye Pass Road Counsels for
Dharmapuri – 636 701 Appellants /Opposite parties
Vs.
Perumal .K
Karuvelampatti
Kongarapatti Post M/s. V. Balaji
Harur Taluk Counsel for
Dharmapuri District Respondent / Complainant
The Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Commission dt.13.2.2015 in CC.No.62/2012.
This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed by the opposite parties as against the order dt.13.2.2015 passed by the District Commission, Krishnagiri, in CC.No.62/2012, in allowing the complaint by directing the appellants /opposite parties to pay Rs.79337/- towards medical expenses alongwith compensation of Rs.500000/- and cost of Rs.2000/-.
2. The brief facts of the complaint before the District Commission are as follows:
The Respondent/ complainant’s wife late Mrs.Sudha aged 20 years was admitted for delivery on 22.7.2011 at 4.00 a.m and the opposite parties performed LSCS. The opposite party gave treatment to the complainant’s wife from 22.7.2011 to 25.7.2011 as an inpatient, and was discharged on 25.7.2011. During the period of treatment, on 23.7.2011, the complainant’s wife had a severe fever of 103o F. On 24.7.2011, the opposite parties took blood test of the complainant’s wife and the result showed low platelet count in the blood i.e, 1.2 lakhs instead of minimum 1.5 lakhs. Then the opposite parties diagnosed it as a fever. When the platelet count was below 1.5 lakhs, the opposite parties must have tested whether it was malaria or dengue, but they did not do so, even when she had the significance of low platelets. On the other hand, they discharged her on 25.7.2011 at 8.00 pm., without monitoring the fever. At the time of discharge, the complainant’s wife’s Blood pressure was 90/60, which was low. At the time of discharge, the complainant was informed that his wife could not walk and she was having giddiness too. But the opposite parties ignored all his requests and despite the inconsistent stage of the patient, had simply discharged her. Again after one day of the discharge on 27.11.2011, the complainant’s wife was admitted by the opposite parties as an outpatient for treatment of giddiness, urinary problem since she has not passed urine since morning, and had no food since morning.” The opposite parties referred the patient for blood test. In that blood test, the complainant’s wife had 0.18 lakhs platelets instead of minimum 1.5 lakhs platelets. Then the complainant was advised to go to Salem for platelet infusion and for further treatment. The complainant’s wife was admitted in Manipal Hospital, Salem on 28.7.2011 at 10.50 am., and there she was diagnosed with dengue fever and the platelets were infused. But on 30.7.2011 at 11.20 pm., she was declared as dead and her 8 days born baby was treated by keeping in an incubator. The complainant collapsed due to this pathetic situation, which had happened due to the medical negligence of the opposite parties and he could not recover till now by seeing his motherless baby. The complainant complained to the District Collector about the act of the opposite parties for conducting elaborate enquiry. The baby weighed 2.2 kg. at the time of delivery, the opposite parties must have preserved her in incubator, but they discharged the patient on 25.7.2011, which affected the baby. Then the complainant saved the baby by spending huge expenses. This was due to the deficiency on the part of the opposite parties. Hence he filed a complaint before the District Commission, against the opposite parties, praying for compensation.
3. Resisting the claim, the opposite parties had filed their version as follows:
On 22.7.2011 at 4.45 am, the complainant’s wife was admitted the 2nd opposite party’s hospital with the history of 9 months amenorrhea with pains. Amenorrhea means absence of menstrual period in the women, at reproductive age. On examination, the general condition was fair. Besides ultrasound scan was advised. Ultra sound scan revealed a term baby with oligohydramnios (placental insufficiency), and blood investigations were found to be normal. Immediately, the risk was explained to the patient as well as to the attendees and was induced with cerviprime for pre-induction cervical ripening and dilation in pregnant women at or near term. On 22.7.2011 at 8 am the patient was taken up for LSCS since there was no progress in labour due to failed induction. On 22.7.2011 at around 8.34 am, an emergency LSCS was done and a male baby weighing 2.2kg was delivered. Uterus was firm and well contracted and no undue bleeding per vagina. At the time of LSCS usual parameters were normal and patient was not anemic and no pedal edema was found. On 23.7.2011 at 2 pm the patient had fever and was febrile. Injection Avil iv, inj. Dexa, inj par aim, inj metrogyl ic and inj. Augmentin iv tds were given. At 10 pm the patient was afebrile and the injections were continued. On 24.7.2011 at 2.0 am the patient was febrile, uterus involuting and lochia healthy and temperature was 101o F. Injection para 2 cc im given. At 10 am the patient was afebrile. Blood investigation for fever was done, result showed low platelet count at 1.24 lakhs. Hence it was diagnosed as viral fever. From 24.7.2011 at 10.00 am the patient was afebrile till 6 pm. On 25.7.2011 at request the patient was discharged, advised to come for review after 5 days. On 27.7.2011 at 4.00 pm the patient came to the opposite party with complaints of giddiness having not passed urine for 6 hours and had not taken food since morning. Investigations showed that her platelet count was 18000. As the platelet count was low, she was referred to a higher centre in Salem for further management. After she left the opposite parties hospital, they had no knowledge about what had happened. At no stretch of imagination they can be held negligent, since the complainant delivered the baby in good condition, and when discharged, the patient and the baby were afebrile and more so since the attenders of the patient had sought for discharge which is evidenced by the noting in the case sheet. As per medical protocol and medical literature the treatment was given to the patient which was strictly in line as prescribed. Thus prayed for dismissal of the complaint.
4. In order to prove their case, respective proof affidavits were filed alongwith documents before the District Commission, which were marked as Ex.A1 to A10 on the side of the complainant and one document was filed on the side of the opposite parties, which was marked as Ex.B1.
5. The learned District Commission, after hearing the submissions of both parties and on perusing the documents, had concluded that there is deficiency in service on the part of the opposite parties, and thus by allowing the complaint, directed the opposite parties to pay a sum of Rs.79337/- towards medical expenses alongwith compensation of Rs.500000/- and cost of Rs.2000/-. Aggrieved over the said order, the opposite parties are before us now.
6. Before this commission, the learned counsel for the appellant would submit that on 22.7.2011 at 4.45 am, Respondent’s wife was admitted in the 2nd appellant’s hospital. She was found to have the history of 9 months amenorrhea with pains. However on examination it was found that her general condition was fair and blood investigation were found to be normal. Ultrasound scan revealed that a term baby with oligohydramnios (placental insufficiency) condition was found, and due to which the baby gets less oxygen and nutrients. At 8 pm after getting informed consent, the patient was taken for LSCS, since there was no progress in the labor due to failed induction as seen from Ex.B1 case sheet, at 8.34 a.m., an emergency LSCS was performed and the patient delivered a live male baby weighing 2.2kgs. At the time of LSCS vital parameters were normal, uterus was firm and well contracted and there was no undue bleeding per vagina. While so on 23.7.2012 at 2 pm., the patient was first found to have fever of 103oF. She was administered injection Avil, inj.Dexa iv, Inj. Para administered intramuscular, inj. Metrogyl (antibiotic) intra venous, inj.Augmentin iv. Following this, at 10.00 pm same day, the patient was found to be afebrile and did not have a fever and as an abundant measure of caution treatment was continued, the patient was kept constant monitoring and the injections and medications continued. However, on 24.7.2011 at 2 a.m, again the patient was found to have fever of 101oF and was febrile. Inj. Para 2 CC im was administered for the fever. Following this at 10.00 am, the patient was found to be afebrile and did not have a fever. However from the blood investigation it was found that the patient had a blood count of 1.24 lakh which was diagnosed as viral fever. On 24.7.2011 from 2 p.m onwards, the patient did not have a fever and was afebrile till her discharge on 25.7.2011 at 6 p.m. At no point of time during the treatment the platelet count had gone below 1,00,000. She did not have any symptom of dengue. Blood investigation for fever was done on 24.7.2011 and the result showed that the platelet count was 124000. Hence the patient was immediately diagnosed with viral fever. She did not possess any symptom of dengue. The learned counsel also invited the attention of the court to the medical literature from Mayo clinic which states that the symptoms of dengue are headache, muscle, bone or joint pain, nausea, vomiting, pain behind the eyes, swollen glands and rash. But the patient did not have any of these symptoms, and showed only the symptoms of viral fever. Even at the time of discharge, she did not have fever for more than 24 hours. Hence she was discharged. However on 27.7.2011 at 4.00 p.m., again she was admitted as an outpatient, since she had giddiness and had not passed urine and consumed food from that morning. On investigation it was seen that her platelet count was 18000, therefore she was immediately referred to higher centre at Salem for further management. In fact the appellants had already spoken and briefed the doctors at RK Hospital and Vidhya Hospital in Salem, but the respondents had chosen to go to Manipal Hospital in Salem. Thus the learned counsel for the appellant submitted that as per the settled law of medical negligence a professional can be held liable for negligence on one of the two findings either he was not possessed of the requisite skill which he professed to have possessed, but he did not exercise, with reasonable competence in the given case the skill which he did possess. In the instant case the appellants/ opposite parties had possessed the required skill and had also administered timely treatment using their skill. The appellants had discharged their bounden duty with utmost care by following all medical protocols in diagnosing and treating the patient. Therefore, absolutely there is no negligence on the part of the appellants/ opposite parties.
In this regard the learned counsel for the appellants had drawn the attention of this court to the judgement of the Hon’ble National Commission in RP Nos.208-209/ 2015 dt.10.8.2015 held in Mukhthyar Singh Vs. Kasturi Devi Munshi Lalvide wherein it was held that “referring the patient to another hospital does not in any manner amount to negligence”.
7. The next fold of submissions of the learned counsel for the appellants is that no expert evidence has been let in by the Respondent/complainant to prove that the Appellants had not acted as per the normal protocol. In this regard the learned counsel for appellant had also relied upon a judgement of the Hon’ble National Commission in Kamla Bai Pandey Vs. P.C.Dwivedi and ors vide RP No.233/3004 and appeal No.1331/2001 dt.3.12.2008, wherein it was held that “since there is no expert evidence in support of the contentions, we find that the petitioner has completely failed to prove the case of medical negligence against the doctor”.
For the same proposition the appellants also had relied upon a judgement of the Hon’ble Supreme Court in Harish Kumar Khurana Vs. Joginder Singh and Ors. Vide Civil Appeal Nos.7380, 8118 and 6933 of 2009 dt.7.9.2021, wherein it was held that “when there was no medical evidence available before the NCDRC on the crucial medical aspect which required such opinion, the mere reliance placed on the magisterial enquiry would not be sufficient”.
The learned counsel for the appellants also by relying upon the medical literature would further submit that the “Dengue Hemorrhagic shock syndrome is unlikely to have been the cause of her death as she is not of the age that is prone to be affected by such a syndrome”. Thus it is submitted that the appellants had followed the medical protocol in treating the patient, and these aspects have not been considered by the District Commission, and thus prayed for dismissal of the complaint.
8. Countering the submissions the learned counsel for Respondent/ complainant had submitted that it is totally incorrect to state that there is no medical negligence on the part of the opposite parties. In this regard the learned counsel for the complainant drew our attention to Ex.B1 and submitted that on 23.7.2011 in the case sheet it has been noted at 2 p.m there was 103oF fever, and again on 24.7.2011 at 2 am., she had 101oF fever. But the entry made at 10 am., the temperature was recorded as ‘nil’. On the same day at 2 pm., again it was recorded as ‘nil’. But the BP and pulse rate chart marked on 24.7.2011 at 10 am PR 122 and BPL 100/60, on the same day at 2 pm PR showed as 140 and BP as 90/60, again at 8 pm PR showed as 108 and BP as 110/70. It is therefore seen that the patient had temperature on 24.7.2011 also. When the patient was re-admitted on 27.7.2011 at 4.00 pm, there was a specific recording done by the doctor as viral fever in view of the low platelet count, the patient was advised to go to Salem for further management. When the patient was having fever at frequent interval, the opposite parties ought not to have discharged her from the hospital particularly when platelet counts showed less than 1,50,000. Further negligence is that the opposite party had not prescribed proper medication for fever. Only in the hospital at Salem she was diagnosed to be suffering from Dengue.
The learned counsel for Respondent/ complainant had also relied upon a judgement of the Hon’ble Apex Court held in Arun Kumar Manglik Vs. Chirayu Health and Medicare Pvt. Ltd., and Another reported in III (2019) CPJ 1 (SC), wherein it was held that as per the “WHO guidelines the Dengue is a ‘systemic and dynamic disease’ which usually consists of three phases i.e., febrile, critical and recovery”. Further the learned counsel for the complainant submitted that had the blood parameters been monitored regularly alongwith the temperature during the course of hospitalization, they would have diagnosed the patient was suffering from dengue, but they failed to do so. Therefore, the act of the opposite parties amounts to medical negligence.
While countering the stand of the appellants/opposite parties that the complainant had failed to obtain any expert opinion, the learned counsel for the Respondent/ complainant had relied upon a judgement of the Hon’ble Apex Court in V.Krishnan Rao Vs. Nikhil Super Speciality Hospital & Another reported in 2010 (III) CPJ 1 (SC) wherein it was held that “In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence”.
The learned counsel for Respondent/ complainant thus prayed for dismissal of the appeal.
9. Keeping the submissions in mind and on careful perusal of the materials submitted on record, we have raised the following question to decide the appeal:
Though very many contentions had been raised on either side, the only issue that has to be decided in this case is
Whether there is any negligence on the part of the Appellants/ opposite parties in treating the patient? If so, whether the relief granted by the District Commission would meet the ends of justice?
10. POINT NO.1:
The learned counsel for the appellants/ opposite parties by inviting the attention of this court to Ex.B1 case sheet had elaborately demonstrated the treatment given to the patient from 22.7.2011 to 25.7.2011 till 6.00 p.m when she was discharged. Actually the patient was admitted in the hospital for delivery. According to the learned counsel for appellant, on examination it was found that the patient’s general condition was fair and blood investigations were found to be normal and Ultrasound scan revealed a term baby with oligohydramnios, which is a condition wherein there is too little amniotic fluid around the baby, placental insufficiency due to which the baby gets less oxygen and nutrients. At 8 am after obtaining informed consent, the patient was taken for LSCS and the patient delivered a live male baby weighing 2.2 Kgs. As far as the delivery is concerned the opposite parties had given proper treatment. While she was in hospital, she had developed fever on 23.7.2011 at 2 pm. The patient was administered medication for three hours. At 10 pm the patient was afebrile i.e, had no fever. The medication continued. Again on 24.7.2011 at 2 am the patient was noted with a temperature of 101oF, which could be seen from Ex.B1. From 24.7.2011 from 2 pm onwards there was no temperature. Since the patient did not have fever subsequently for 2 hours, she had been discharged on 25.7.2011. Since the blood investigation also showed platelet counts at 124000, it was diagnosed as viral fever.
Whereas according to the complainant at the time of discharge she was having giddiness and she could not walk. Inspite of that she was discharged from hospital.
11. Be it as it may, it is a common knowledge when a patient was having frequent fever, that too when admitted for delivery, and when platelets shows less than 1.50 akhs the opposite parties ought to have taken much more care and diligence in giving treatment, instead the opposite parties discharged her at 6 pm on 25.7.2011.
In this regard our attention was drawn to a decision of the Hon’ble Supreme Court in Arun Kumar Vs. Chirayu Health and Medicare Pvt. Ltd., & Anr. Reported in 2019 (III) CPJ 1 (SC) in identical facts and circumstances of the case after following guidelines of World Health Organization and National Vector Borne Diseases Control Programme (2008) and analyzing the various judgement of the Hon’ble Supreme Court in Medical Negligence case held as “The World Health Organization guidelines indicate that Dengue is a ‘systemic and dynamic disease’ which usually consists of three phases i.e., febrile, critical and recovery’.
In the instant case, keeping the dictum laid down in the case, if we go through the present case, it could be seen that on 24.7.2011 the platelet count was 124000, against normal value of 150000. Again when she was readmitted in the hospital, the platelet count was 18000 only.
As seen from Ex.B1, as per the case sheet it is noted that the blood pressure and the pulse rate were also not uniform, whereas it showed ununiform graph. For example the BP and pulse rate chart marked on 24.7.2011 at 10 am PR 122 and BPL 100/60, on the same day at 2 pm PR showed as 140 and BP as 90/60, again at 8 pm PR showed as 108 and BP as 110/70. Therefore, in our view, the opposite parties ought to have shown some more diligence in treating the patient. When the primary significance for the dengue affected patient is dropping of platelets, the hospital authorities / doctors must have ruled out the cause. Atleast they ought to have tested for dengue, eventhough they have not suspected. Then it could be considered that due diligence have been shown towards patient. As was stated supra it was held by the Hon’ble Apex Court in Nikhil Super Specialty Hospital case that the principle of res ipsa loquitur operates here. Since the opposite parties had failed to rule out the cause for the fever at the initial stage itself, the disease was aggravated to that extent of grabbing the valuable life of the complainant’s wife leaving the new born child a motherless baby. Therefore, we conclude that to some extent, there is deficiency in service on the part of the Appellants/ opposite parties. Point No.1 answered accordingly.
12. Point No.2:
As far as the awarding of compensation is concerned, this commission is of the considered opinion that the victim is admitted in that hospital mainly for delivery. It is not denied that there was no negligence on the part of the opposite parties in treating the patient for delivering her baby. It is also admitted that both mother and baby were good after delivery. Therefore, there was no attributable negligence that could be fixed on the part of the opposite parties in giving treatment for what they have admitted.
Eventhough, being a medical practitioner they cannot be lethargic in concentrating on all other parameters of a patient. As was submitted by the learned counsel for the Respondent/complainant, by quoting a decision that “God wanted to be in every home. So he created mothers”. Accordingly, as was discussed above, and was held by the District Commission, a little carelessness in detecting the cause of the fever, had snatched the valuable life of the complainant’s wife, a mother of the 8 days bud, into the lotus feet of the God. Therefore, by considering the mental agony of the complainant, we feel that he has to be compensated,
In so far as the quantum of compensation is concerned, we are of the considered opinion that while allowing the appeal, considering the fact that the doctors have treated the deceased for delivering the baby in a perfect way eventhough there occurred some problem in delivery, compensation awarded at Rs.5,00,000/- shall be reduced to Rs.2,00,000/- which would meet the ends of justice. Point No.2 answered accordingly.
13. In the result, the appeal is allowed in part, by modifying the order of the District Commission in CC.No.62/2012 dt.13.2.2015, by reducing the compensation to Rs.2,00,000/- instead of Rs.5,00,000/- while confirming the rest of the order. There is no order as to cost in this appeal.
S.M.LATHAMAHESWARI R. SUBBIAH
MEMBER PRESIDENT
