IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 14th day of November, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.09/2009 (Filed on 23.01.2009)
Between:
1. Sreejaya. P.S.,
Kuriyilethu House,
Melukara P.O.
Kozhencherry Village.
2. Sreejesh. K.J, aged 9 years,
S/o Jayadevan K.A. of do- do-.
3. Sreelekshmi, aged 3 years,
D/o Jayadevan K.A. of do- do- … Complainants.
(By Adv. R. Gopikrishnan)
And:
1. Pushpagiri Medical College-
Hospital Thiruvalla, represented
by its Managing Director,
Pushpagiri Medical College Hospital,
Thiruvalla – 689 101.
(By Adv. G.M. Idiculla)
2. Dr. Dominic Anto,
Neuro Surgeon,
Pushpagiri Medical College Hospital,
Thiruvalla.
Addl.3. United India Insurance Co. Ltd.,
Pathanamthitta Branch,
Represented by its Branch-
Manager.
(By Adv. P.P. Mohammed Mustapha)
Addl.4. Dr. Raju Paul,
Neuro Surgeon,
Pushpagiri Medical College Hospital,
Thiruvalla. … Opposite parties.
(By Adv. P.K. Mathew for opposite parties-
2 & 4)
ORDER
Sri. Jacob Stephen (President):
The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.
2. The brief facts of this case is as follows: Complainants are the legal heirs of deceased Jayadevan. K.A. being the wife and children of the deceased. Second and third complainants are minors and they are represented by the first complainant who is the mother of the minors. Second opposite party and additional 4th opposite party are the doctors of the first opposite party hospital and additional 3rd opposite party is the insurance company who issued the policy in the name of the opposite parties.
3. The complainants’ case is that the first complainant’s husband Jayadevan. K.A. had fell down from his bed in the morning on 20.06.2007 due to the unconsciousness of high fever and sustained an injury on the back side of his head. Immediately he was taken to Poyanil Hospital, Kozhencherry and the doctors therein referred the patient to first opposite party hospital for better treatment. Accordingly, the patient was taken to first opposite party hospital and he was admitted there on the same day itself. The second opposite party after examining the patient advised for a surgery on his head for saving his life. Subsequently, the surgery was conducted by the additional 4th opposite party and told the relatives of the patient that the surgery was successful. But on 05.07.2007 at about 1-35 a.m., the patient died. The treated doctors did not given any authentic reply with regard to the cause of death. Thereafter on the basis of the complaints of the relatives, Aranmula Police registered a crime for unnatural death as Crime No. 337/2007. Subsequently, post-mortem was conducted on 06.07.2007 on the body of the deceased. As per the post-mortem report, the cause of death was surgical injury to the liver. The deceased was admitted for the treatment of head injury. But the cause of death was surgical injury to the liver. According to the complainants, the surgical injury to the liver was happened due to the gross negligence of the opposite parties. If the treatment was done in a better way, such an incident would not have happened. The deceased was an young and healthy man and he was a carpenter earning ` 12,000 per month at the time of his death. The complainants lost love and affection and the income of the deceased due to the death of the deceased. For the treatment of the deceased, the complainants had spent an amount of ` 1,20,000 as treatment expenses at the hospital. The unfortunate death of the deceased was due to the negligence of the doctors of the first opposite party hospital which caused mental agony and financial loss to the complainants. The above said acts of the opposite parties are clear deficiency in service and the opposite parties are liable to the complainant for the same. Hence this complaint for the realization of the treatment expenses of ` 1,20,000 and compensation of ` 3,00,000 along with cost of this proceedings.
4. In this case, opposite parties entered appearance and opposite parties 1 and 2 and additional 3rd opposite party filed separate versions. The additional 4th opposite party adopted the version of the second opposite party. The main contention in the versions of opposite parties 1 and 2 and additional 4th opposite party are one and the same and hence we are not dealing it separately.
5. The main contention in the versions of opposite parties 1 and 2 and additional 4th opposite party is as follows: They admitted the admission, treatments and the death of the deceased. But they denied the allegations raised by the complainants. According to the said opposite parties, the patient was brought to the hospital on 20.06.2007 at about 1-30 p.m. in an unconscious state referred from Poyannil Hospital, Kozhencherry with a history of unconsciousness, following a fall at home at 6.00 a.m. on the same day. On examination, the patient was in a comatose state. Emergency CT scan of brain had taken which showed the presence of a large acute subdural haematoma (a localized collection of blood) in the right fronto-temporo-parietal region with subarachnoid extension, with gross midline shift and transtentorial herniation. The patient was intubated immediately and ventilated. The conditions were explained to the accompanying relatives of the patient. The only option left was surgical removal of the blood clot. The situations are explained to the relatives of the patient and after obtaining informed consent and after complying all pre-surgical formalities, Decompressive craniectomy and expansive duroplasty was done on the same day at 2-30 p.m. On opening up the skull, there was a large acute subdural haematoma of size 15 cm x 12 cm approximate with 3 to 5 in depth with basifrontal contusion of the brain. After the surgery, the patient was shifted to the Neurosurgery ICU. As the patient was having persistent hypotension following surgery, he was put on dopamine support. He was also on ventilator support in the ICU. Inspite of the intensive management, there was no significant improvement in the patient’s neurological status during the post operative period. As the patient continued to be in a comatose state, there was accumulation of secretions in the throat. Hence tracheostomy was performed for tracheobronchial toileting. Patient continued to be on ventilator. The patient developed the known complications of head injury like the ARDS (A Respiratory Distress Syndromes), ventilator associated pneumonia and pleural effusion. He then developed bilateral posterior cerebral artery infarction as a complication of brain herniation, which was evident on the postoperative CT scan.
6. He later developed diabetes insipidus, hypoproteinaemia and septicemia. All these complications were treated aggressively along with appropriate investigations, including serial CT scans of brain. The necessary changes in management were also made in accordance. His deteriorating clinical status due to all these complications was explained in detail to his relatives on a twice daily basis. All through out the postoperative period, he was hemodynamically unstable, and his blood pressure was maintained on dopamine. The patient’s ARDS status was found to be progressively worsening and the last chest X-ray taken was suggestive of associated pleural effusion. An immediate consultation with general surgeon was made on 04.07.2007. The patient was also advised to have a pulmonolgy consultation, which was duly sent. Unfortunately, the patient’s condition continued to deteriorate. By 10 p.m. on 04.07.2007, he developed severe respiratory distress. A decision was taken to introduce an intercostals drain. The drain was introduced on the right side of the chest as an emergency procedure in a desperate attempt to improve the respiratory status. Despite all intensive measures taken, the patient’s condition further deteriorated and he expired by 1-30 a.m. on 05.07.2007 following a cardiac arrest.
7. This being the facts, all other allegations in the complaint are false and hence denied by the opposite parties. Opposite parties had not committed any negligence in the treatment of the patient. They have rendered proper treatments as per medical ethics. What all treatments they have given are proper and required in the circumstances of the patient. The allegation that the cause of death is the surgical injury on the liver is false. The patient’s complications due to his head injury are the cause of death. It is unfortunate that the police surgeon who conducted the post-mortem has overlooked all those complications and come to a conclusion that the death of the patient was only due to the injury of the liver is merely based on the presence of 500 grams of blood clot over the liver. In the post-mortem report, the police surgeon has also noted certain other findings regarding the complications of the deceased. Despite all these findings, it is unfortunate that the police surgeon has come to the inference that the small injury to the liver was the cause of death by ignoring the other findings. Opposite parties had given proper and standard treatment with best attention and care and had acted with reasonable skill and diligence as could be expected from any other neuro surgeon in identical circumstances. The allegation that the patient died due to the treatment laches is false. The compensation claimed under different heads are exaggerated and without any basis. This complaint is frivolous and vexatious and filed only for harassing the opposite parties.
8. Apart from the common contentions, first opposite party further contended that the first opposite party has only qualified doctors and the first opposite party has a valid insurance policy with United India Insurance Company Ltd., Pathanamthitta. The second opposite party contended that he is only an employee of the first opposite party and the principle of vicarious liability of the employer is squarely applicable in this case.
9. The additional 4th opposite party raised a contention that this complaint is barred by limitation against him as the date of death of the deceased was on 05.07.2007 and he was impleaded in the party array only in the year 2012 which is after the expiry of 2 years from the date of death of the deceased.
10. With the above contentions, opposite parties 1 and 2 and additional 4th opposite party prayed for the dismissal of the complaint with their cost as they have not committed any negligence in the treatment or any deficiency in service.
11. The noticeable contentions raised in the version of additional 3rd opposite party is that the insurance policy issued by them in favour of the first opposite party is only for indemnifying the losses or damages sustained to the hospital buildings by fire and the said policy will not cover any claim occurred from medical negligence cases. Hence they pray for the dismissal of the complaint against them.
12. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
13. The evidence of this complaint consists of the oral deposition of PW1, DWs.1 and 2 and Exts. A1 to A7 series and B1 and B2. After closure of evidence, the complainant and the first opposite party and additional 3rd opposite party filed argument notes and the parties were heard.
14. The Point: The complainants’ allegation is that the first complainant’s husband Jayadevan K.A. was admitted in the first opposite party hospital on 20.06.2007 for the head injury sutained to him. The second opposite party after examination advised for a surgery and the additional 4th opposite party conducted a surgery on the same day. While the patient was undergoing treatment after the surgery, he died on 05.07.2007 at about 1-35 a.m. The first complainant and the near relatives of the deceased raised some doubts over the death of the deceased and hence a crime for unnatural death was registered by Aranmula police as Crime No. 337/2007. On the basis of the said crime, the body of the deceased was sent for post-mortem. As per the post-mortem report, the reason for the death was due to the surgical injury sustained to the liver of the deceased. According to the complainants, the patient was admitted for head injury and the surgery was conducted on the head of the patient and therefore there is no chance for sustaining a surgical injury to the liver. Therefore, the surgical injury to the liver was sustained from the hands of the treated doctors due to their negligence which resulted in the death of the deceased. The death of the deceased put the complainants to severe mental agony and other financial loss. For the treatments, they have also incurred an expense of ` 1,20,000 as treatment expenses. Further, the deceased was a carpenter by profession and he was the sole bread winner of his family. The death of the deceased was caused due to the negligence of the opposite parties and the said death put the complainants to much difficulties. So the opposite parties are liable to compensate the complainants for their loss and sufferings.
15. In order to prove the case of the complainants, the first complainant filed a proof affidavit along with 2 documents. On the basis of the proof affidavit, the first complainant was examined as PW1 and the documents produced were marked as Exts. A1 and A2. Subsequently, 5 documents were produced from the side of the complainants. Out of the said 5 documents, 4 documents were marked as Exts. A3 to A6 on the basis of the order of this Forum. Ext. A7 series were marked on the basis of the additional proof affidavit of the first complainant. Ext. A1 is the FIR and FIS of Crime No. 337/2007 of Aranmula Police in respect of the death of the deceased. Ext. A2 is the post-mortem certificate dated 06.07.2007 issued from District Hospital, Kozhencherry in respect of the post-mortem of the deceased. Ext. A3 is the attested copy of Ext. A1. Ext. A4 is the attested copy of the inquest report of the dead body of the deceased dated 06.07.2007 prepared by Aranmula Police. Ext. A5 is the final report of Aranmula Police in respect of the crime registered by Aranmula Police in connection with the death of the deceased. Ext. A6 is the certified copy of the deposition of Dr. Raju Paul as PW2 in C.C. 15/2009 of this Forum. Ext. A7 series are the 63 medical bills for ` 1,51,569 issued from the first opposite party hospital in connection with the treatment of the deceased Jayadevan K.A.
16. On the other hand, the contention of the opposite parties 1, 2 and additional 4th opposite party is that the patient was brought to their hospital in an unconscious stage with a head injury and he was referred from Poyanil Hospital, Kozhencherry. His condition was very serious at the time of his admission. He was examined by the second opposite party and subjected for scanning and other tests and found blood clot over the brain. The condition of the patient and the risks involved in the surgery were explained to the near relatives and after obtaining informed consent and after complying all pre-surgical formalities, surgery was conducted by additional 4th opposite party. But his conditions were not improved inspite of all efforts made by the opposite parties. However, the patient died on 05.07.2007 at 1-35 a.m. following cardiac arrest. According to opposite parties, what all treatments they have given to the patient was required and warranted in the circumstances of the patient and they have not committed any negligence in the treatment. Due care and cautions also taken by the opposite parties in the treatment of the patient. The alleged surgical injury to the liver was not the cause of death of the patient and the findings in this regard by the doctor who had conducted the post-mortem is without any basis and the said doctor had not considered the seriousness of the patient’s head injury and its further complications. The alleged surgical liver injury is not a fatal injury. The real cause of death is due to the complications of the head injury and hence they argued that the complainants are not entitled to get any of the reliefs as prayed for in the complaint as there is no negligence or deficiency from their part in the treatment of the patient.
17. In order to prove the contentions of the opposite parties, the second opposite party filed a proof affidavit along with one document. On the basis of the proof affidavit of the second opposite party, he was examined as DW2 and the document produced is marked as Ext. B2. Ext. B2 is the copy of the treatment records of the first opposite party hospital in respect of the treatment of the patient.
18. The contention of the additional third opposite party is that the insurance policy issued by them in favour of the first opposite party does not cover any medical negligence committed by the opposite parties and it was issued for covering the buildings and other assets of the first opposite party and hence they are not liable to the complainants or to the opposite parties in the nature and circumstances of this case.
19. In order to prove the contention of the additional third opposite party, the Divisional Manager of the additional third opposite party filed a proof affidavit along with one document. On the basis of the proof affidavit, he was examined as DW1 and the document produced was marked as Ext. B1. Ext. B1 is the copy of the policy certificate attached with the policy conditions issued by them in the name of the first opposite party.
20. On the basis of the contentions and arguments of the parties, we have perused the available materials on records and found that there is no dispute between the parties with regard to the treatment of the patient at the first opposite party hospital by the second and additional 4th opposite party. The only question to be decided is whether the second opposite party and additional 3rd opposite party had committed any negligence in the treatment of the patient.
21. According to the complainants, the patient was admitted for the treatment of a head injury sustained to him. During the course of the treatment, the patient was died and the post-mortem reported revealed that the cause of death of the patient was due to the surgical injury to the liver of the deceased. Since the treatment was for the head injury, the surgical injury found by the doctor who had conducted the post-mortem was sustained to the deceased was due to the negligence of the treated doctors. Such an injury was not sustained before the admission of the patient or any such injury was brought to the notice of the complainants or it was not noticed in the treatment records of the patient at the time of his admission. So it is clear that the said injury was sustained during the stay of the patient at the hospital and it was happened from the hands of the doctors or other staff of the hospital. If the opposite parties have exercised their duties properly, such an injury would not have been caused to the patient.
22. On a perusal of the version of opposite parties 1 and 2 and on a perusal of Ext. A6, certified copy of the deposition of additional 4th opposite party in C.C. No.15/2009 of this Forum, it is seen that a hole was made at the right side of the chest of the patient for inserting a tube as part of the treatment of the patient. The findings in the post-mortem report regarding the surgical injury to the liver of the deceased and the statements in the version of the first and second opposite parties and the deposition of the additional 4th opposite party in Ext. A6 clearly shows that the treated doctors had put a hole on the right side of the chest of the patient. It is no doubt the said hole made by the treated doctors is the cause of the liver injury which resulted in the death of the patient. At the same time, opposite parties had no case or no evidence that they are not responsible for the liver injury and the said liver injury is not the cause of death of the patient. In the circumstances, we find that the death of the deceased was due to the negligence and deficiency of service of second opposite party and additional 4th opposite party. The said negligence and the deficiency of service put the complainants to much hardship and hence this complaint is allowable.
23. However, the second opposite party and additional 4th opposite party are the employees of the first opposite party, the first opposite party is vicariously liable to the complainants for the acts of second opposite party and additional 4th opposite party.
24. We have also considered the contention of additional 4th opposite party regarding the question of limitation raised by him. It is true that he was impleaded in the party array after the expiry of 2 years from the date of death of the deceased. But such an impleading was made by the complainants in a belated stage, because the information regarding the involvement of additional 4th opposite party is revealed by the complainants only when the second opposite party was examined as DW2 before this Forum on 18.10.2011. So we find that the question of limitation raised by the additional 4th opposite party is not sustainable.
25. At the same time, on a perusal of Ext. B1 policy, it is seen that the said policy does not covers the liability of medical negligence and hence we find that the additional third opposite party is not liable to first opposite party or to the complainants.
26. In the result, this complaint is allowed as prayed for in the complaint, thereby the first opposite party is directed to return the treatment expenses of ` 1,20,000 (Rupees One lakh twenty thousand only) along with compensation of ` 3,00,000 (Rupees Three lakhs only) and cost of ` 5,000 (Rupees Five thousand only) to the complainants within 30 days from the date of receipt of this order, failing which the complainants are allowed to realize the same from the first opposite party along with interest @ 10% per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 14th day of November, 2012.
(Sd/-)
Jacob Stephen, (President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree(Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainants:
PW1 : Sreejaya. P.S.
Exhibits marked on the side of the complainants:
A1 : Copy of FIR and FIS of Crime No. 337/2007 of Aranmula
Police in respect of the death of Jayadevan K.A.
A2 : Post-mortem certificate dated 06.07.2007 issued from
District Hospital, Kozhencherry in respect of the post-
mortem of Jayadevan. K.A.
A3 : Attested copy of Ext. A1 FIR and FI statement.
A4 : Inquest report in Crime No.337/2007 of Aranmula Police
Station.
A5 : Final report in Crime No.337/2007 of Aranmula Police
Station.
A6 : Certified copy of the deposition of Dr. Raju Paul as PW2 in
C.C. 15/2009 of CDRF, Pathanamthitta.
A7 series : Medical bills (63 in number) for ` 1,51,569 issued from
the first opposite party hospital in connection with the
treatment of the deceased Jayadevan K.A.
Witness examined on the side of the opposite parties:
DW1 : Joy Varghese.
Exhibits marked on the side of the opposite parties:
B1 : Copy of the policy certificate attached with the policy
conditions issued by additional 3rd opposite party in the
name of the first opposite party.
B2 : Copy of the treatment records of the first opposite party
hospital in respect of the treatment of the patient.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Sreeja. P.S., Kuriyilethu House, Melukara P.O.
Kozhencherry Village.
(2) Managing Director, Pushpagiri Medical College-
Hospital Thiruvalla.
(3) Dr. Dominic Anto, Neuro Surgeon,
Pushpagiri Medical College Hospital, Thiruvalla.
(4) Branch Manager, United India Insurance Co. Ltd.,
Pathanamthitta Branch,
(5) Dr. Raju Paul, Neuro Surgeon,
Pushpagiri Medical College Hospital, Thiruvalla.
(6) The Stock File.
