KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.149/2007
JUDGMENT DATED 5.10.2010
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
1. Dr.Jingle,
Veliyath House,
Cherthala-17.
2. The Director, -- APPELLANTS
St.Thomas Hospital,
Pallichanda,
Pallipuram, Cherthala.
(By Adv.M.C.Suresh)
Vs.
1. Sasikumar,
S/0 Rajagopalan,
Padinjarakunnathu,
Pallipuram P.O, Cherthala.
2. Akshyakumar,minor -- RESPONDENTS
reptd. by Sasikumar, S/0 Rajagopalan,
Padinjarakunnathu,
Pallipuram P.O, Cherthala.
3. Akilraj, minor
reptd. by Sasikumar, S/0 Rajagopalan,
Padinjarakunnathu,
Pallipuram P.O, Cherthala.
(By Adv.K.P.Paulose Murimattom)
JUDGMENT
SRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellants were the opposite parties and respondents were the complainants in OP.No.A.85/04 on the file of CDRF, Alappuzha. The complaint therein was filed against the opposite parties for medical negligence and deficiency in service on their part in treating the patient by name Kanaka. The first complainant was the husband and complainants 2 and 3 were the minor children of deceased Kanaka who was treated at the second opposite party hospital on 26.1.04. The complainants alleged negligence and deficiency in service on the part of the first opposite party Dr. Jingle in treating the patient Kanaka. It was further contended that the patient Kanaka died on 1.2.04 on account of the negligence of the opposite parties. Thereby, the complainants assessed the compensation at Rs.8,50,000/-. But their claim was limited to Rs.4,99,999/-.
2. The opposite parties entered appearance and filed separate written versions denying the alleged deficiency in service and medical negligence. They contended that proper treatment was given to the patient Kanaka on 26.1.04 but her conditions became worse and so immediately, the patient was referred to a higher center for better management. They further contended that the medicines prescribed and administered to the patient Kanaka were all approved and accepted medicines for the symptoms developed by the patient Kanaka. It was also contended that the first complainant preferred to take the patient in their own vehicle and never requested for ambulance facility. Thus, the opposite parties prayed for dismissal of the complaint in OP.A.No.85/04.
3. Before the Forum below, the first complainant was examined as PW1 and 3 more witnesses were examined on the side of the complainants as PWs 2 to 4. Exts.A1 to A11 documents were also marked on the side of the complainants. The first opposite party was examined as RW1 and the administrator and authorized representative of the second opposite party was examined as RW2. Authorization in the name of RW2 was also marked. The then C.I. of Police Cherthala was examined as CW1. Ext.X1 case sheet in the name by the patient Kanaka was produced by CW1. CW2 Dr. Babu John Mathew attached to Medical Trust Hospital was examined as a court witness and Ext.X3 treatment file with respect to the treatment of Kanaka was marked through CW2. Dr. Sabu Paul, Co-operative Hospital, Koothattukulam was examined as CW3, and A11 copy of the letter dated 2.2.04 issued by this witness was marked. X2 case sheet from K.V.M Hospital, Cherthala was also marked as a court exhibit. On an appreciation of the evidence on record, the Forum below accepted the case of the complainants to some extend and found the opposite parties negligent and deficient in rendering service to the patient Kanaka. Thereby, the opposite parties are directed to pay a sum of Rs.1,45,000/- as compensation with cost of Rs.2,500/-. The opposite parties are also directed to pay Rs.40,000/- as treatment charge to the complainants with interest at the rate of 9% per annum from 1.2.04 till payment. Aggrieved by the aforesaid impugned order dated 30th January 2007, the present appeal is preferred by the opposite parties therein.
4. We heard both sides.
5. The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there was no negligence or deficiency in service on the part of the opposite parties in treating the patient Kanaka on 26.1.04. He relied on Ext.X3 case sheet produced from Medical Trust Hospital and the testimony of CW2, the Doctor who treated the patient Kanaka at the Medical Trust Hospital, Ernakulam. It is submitted that the patient died due to Septicemia and Septic Shock as a result of the infection already sustained by the patient. He much relied on Ext.A2 case summary issued from Medical Trust hospital and X3 case sheet pertaining to the treatment of deceased Kanaka at Medical Trust Hospital, Ernakulam. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below and for dismissal of the complaint in OP.A.85/04 on the file of CDRF, Alappuzha. On the other hand, the learned counsel for the respondents/complainants supported the impugned order passed by the Forum below. He pointed out that the patient Kanaka approached the second opposite party hospital with fever, vomiting, loose stools etc. But after the administration of second set of injections at the instance of the first opposite party Dr.Jingle, St.Thomas Hospital, Pallipuram, the patient became serious and unconscious. It is submitted that by mal administration of injections within an interval of 30 minutes, the patient became serious and only because of the negligence of the opposite parties the patient became unconscious and went into coma. It is also submitted that the opposite parties failed to refer the patient immediately to a higher center for better treatment and management and that the opposite parties also failed to provide ambulance with medical facilities for shifting the patient to a higher center. It is further submitted that the second opposite party hospital was negligent and deficient in rendering service in providing proper treatment to the patients like deceased Kanaka. Thus, the respondents prayed for dismissal of the present appeal.
6. The points that arise for consideration are:-
1. Whether there was medical negligence and deficiency in service on the part of the appellants/opposite parties as alleged by the respondents/complainants?
2. Whether the case of respondents/complainants that the patient Kanaka died on 1.2.04 on account of the medical negligence and deficiency in service on the part of the appellants/opposite parties can be upheld?
3. Whether there was any sort of deficiency in service on the part of the opposite parties 1 and 2 while the patient Kanaka was in the second opposite party hospital for treatment on the night of 26.1.04?
4. Is there any sustainable ground to interfere with the impugned order dated 30h January 2007 passed by CDRF, Alappuzha in OP.A.85/04.
7. POINTS 1 TO 4:-
These points can be discussed and considered jointly as the evidence on these points is inter-related and inter connected. So, for the purpose of convenience, these 4 points are considered jointly.
8. There is no dispute that the patient by name Kanaka came to the casualty of the second opposite party St.Thomas Hospital, Pallipuram on 26.1.04 and she was treated at the second opposite party hospital by the duty doctor, the first opposite party Dr.Jingle. It is admitted that at the time when the patient Kanaka was examined and treated by the first opposite party Dr.Jingle, her husband Sasikumar (first complainant) was present. It is true, that there is some dispute regarding the time at which Kanaka was treated by the first opposite party Dr.Jingle. As per the complaint, the patient Kanaka came to the second opposite party hospital by 7 PM. But, as per the version filed by opposite parties 1 and 2, the patient Kanaka came to the second opposite party hospital at 8.30 PM. There is no dispute regarding the date of treatment of kanaka at the second opposite party hospital. Admittedly, it is on 26.1.04. It was a public and national holiday being the republic day. It is come out in evidence that on the night of 26.1.04 the first opposite party Dr.Jingle was the duty doctor at the casualty of the second opposite party St.Thomas Hospital, Pallipuram.
9. It is stated in the complaint that the patient Kanaka came to the second opposite party hospital with the history of fever of one day old. She had also several episodes of vomitting and loose stools before her arrival to the second opposite party hospital. It is the case of the complainants that Kanaka went to the Amala School to attend the anniversary functions of the school where her children were studying and while returning from the school she came to the second opposite party hospital with her children to have medical consultation at the second opposite party hospital. It is also the case of the complainants that Kanaka was accompanied by her sister in law Mini and Mini left the hospital to inform the husband of Kanaka and that thereafter the first complainant Sasikumar, the husband of Kanaka came to the second opposite party hospital with the old admission card issued from the second opposite party hospital pertaining to the earlier treatment of Kanaka at the second opposite party hospital. The first complainant as PW1 has categorically admitted that he came to the second opposite party hospital with A1 admission card and the first opposite party Dr.Jingle was approached after taking the hospital chart by about 7.30 PM. PW1 has also denied the suggestion that he came to the hospital only at 8 PM and he approached the first opposite party for treating his wife Kanaka at 8.30 PM. No doubt, it is admitted by PW1 that his wife Kanaka came to the second opposite party hospital with fever, vomitting, loose stools and that for the aforesaid ailments Kanaka had the treatment at the second opposite party hospital where the first opposite party Dr. Jingle was on casuality duty.
10. Ext.X1 is the case sheet maintained by the second opposite party St. Thomas Hospital, Pallipuram with respect to the treatment of Kanaka Sasikumar from the year 1997 onwards. X1 case sheet was taken into custody by the Circle Inspector of Police, Cherthala and the same was produced on summons by CW1, the Circle Inspector of Police, Cherthala. CW1 has spoken to about the circumstance under which X1 case sheet pertaining to the treatment of Kanaka Sasikumar from 6.12.97 up to and inclusive of 26.1.04 was taken into custody. Prior to 26.1.04, the last treatment of Kanaka at the second opposite party hospital was on 12.3.03. Thereafter, Kanaka Sasikumar had treatment at the second opposite party hospital on 26.1.04. The Forum below doubted the genuineness and correctness of the entries in X1 case sheet pertaining to the treatment of Kanaka Sasikumar on 26.1.04. The Forum below was of the view that the front sheet of the case sheet is missing and thereby suspected manipulation of the case sheet. It is to be noted that the entries regarding the treatment on 26.1.04 is written in the continuation chart. A perusal of X1 case sheet (treatment record) would show that all the subsequent entries were made on continuation charts attached to the treatment record.
11. Another important aspect to be noted at this juncture is the reference letter issued by the first opposite party Dr.Jingle on 26.1.04. The aforesaid reference letter can be seen on X2 case sheet produced from KVM Hospital, Cherthala with respect to the treatment of Kanaka at that hospital. It is to be noted that the patient Kanaka was referred from the second opposite party St.Thomas Hospital, Pallipuram to KVM Super Specialty Hospital and C.T. Scan Center, Cherthala. The aforesaid reference letter issued from St.Thomas Hospital on 26.1.04 is attached to X2 treatment record. There is no reason to doubt the genuineness of the aforesaid reference letter attached to X2 treatment record maintained by KVM Hospital, Cherthala. In the aforesaid reference letter, it is specifically stated that the patient Kanaka was brought at 8.30 PM with fever since today morning vomitting and loose stools several episodes. Rantac, Perinom injection, Paracetamol given, had temperature 104 F; temperature persisting at 106 F. BP Systolic – 80 MM Hg. Kindly do the needful as physician is out of station. It is to be noted that those details would tally with the entries in X1 case sheet pertaining to 26.1.04. It is also to be noted that the aforesaid reference letter was issued on 26.1.04 at a time when there was no controversy regarding the alleged negligence or deficiency in service in treating the patient Kanaka. A comparison of the entries in the reference letter dated 26.1.04 with that of the entries in X1 case sheet (treatment records) pertaining to 26.1.04 would make it clear that there is no reasonable ground to doubt the genuineness and correctness of those entries in X1 case file. The Forum below cannot be justified in doubting the correctness of X1 case sheet. It is also to be noted that X1 case sheet was taken into custody by CW1 on 2.2.04 and there was no occasion for the opposite parties to manipulate the entries in X1 case sheet. This reference letter attached to X2 case sheet (treatment record) of KVM hospital and that of the entries in X1 case sheet would make it clear that the patient Kanaka Sasikumar had the treatment from the second opposite party hospital at 8.30 PM on 26.1.04 and that the patient Kanaka came to the second opposite party hospital with fever headache, loose stools, vomiting and that on examination it was found that the patient was having temperature of 104 F and she was having dehydration.
12. The reference letter would make it clear that the first opposite party Dr. Jingle prescribed and administered the injections Rantac, Perinomum and Paracetamol. The first opposite party as RW1 has spoken to about the treatment given to the patient Kanaka on 26.1.04 at about 8.30 PM. She categorically deposed that the injections were given because the patient had several episodes of vomiting and that if medicine is given orally there would be the tendency to vomit the medicine. So, the aforesaid explanation given by RW1 is to be believed and accepted. The first opposite party is also justified in administering IV perinomum because of the vomiting. Perinomum can be treated as suitable medicine to control vomiting. The patient Kanaka was having stomach irritation and had dehydration because of the vomiting and loose stools. So, the injection Rantac can also be treated as the suitable medicine prescribed. The patient was also having temperature of 104 F and so to control temperature injection Paracetamol was administered. Thus, the treatment given to the patient Kanaka by the first opposite party Dr.Jingle can be considered as the approved and accepted course of treatment.
13. The testimony of the first complainant as PW1and that of PW3 the witness from the side of the complainant would make it clear that the complainant was not willing for admission and that her husband first complainant was also interested in taking the patient to their home and that the first opposite party doctor asked the patient and the bye-stander to wait for some time to have a further check of the temperature. It is an admitted fact that after about 50 Mts. the patient developed chills and the temperature was at 106 F and suddenly, the patient became unconscious. The first opposite party as RW1 has also deposed about the subsequent changes and the immediate treatment given to the patient. The methods adopted by the first opposite party to meet those emergencies are recorded in X1 case sheets. It is also an admitted fact that there was a sudden fall of BP and the BP was 80 systolic.
14. The case of the first complainant as PW1 that no BP was taken at the second opposite party hospital cannot be believed for a moment. It is too much on the part of the PW1 to depose that BP was not taken for a patient who was having high temperature of 104 – 106 F. The aforesaid case of PW1 that no BP was taken by the first opposite party Dr. Jingle cannot be believed for a moment. The aforesaid version of PW1 can only be treated as an afterthought to strengthen the case of the complainants for getting compensation. The case of RW! Regarding the treatment given to the patient Kanaka is to be believed and accepted. The evidence of RW1 is supported by the entries in X1 case sheet pertaining to the date 26.1.04.
15. The patient was given IV fluid in past, foot elevation was also given; Oxygen inhalation was provided; Tepid sponging was also given to reduce the temperature; the injection avil and betnazol were also administered. Thus, the treatment given by the first opposite party can be treated as suitable treatment given in the said emergency situation. The case of the first opposite party as RW1 regarding the treatment given to the patient Kanaka is strengthened by the testimony of CW2 Dr. Babu John Mathew attached to Medical Trust Hospital, Ernakulam. It is to be noted that CW2 Dr. Babu John Mathew had the occasion and opportunity to treat the patient Kanaka at the Medical Trust Hospital Ernakulam. The patient Kanaka was admitted at Medical Trust Hospital at 11.50 PM on 26.1.04 and she was in ventilator till her death on 1.2.04 at 11.40 PM. CW2 has categorically justified the treatment procedure and method adopted by the first opposite party Dr.Jingle. He also deposed that the injections administered to the patient do not require any skin test for allergy and those injections are not antibiotics and not required any prior test before administration. It is also deposed by CW2 that at the relevant point of time, the injections administered were for different symptoms and to prevent further deterioration. A careful study of the testimony of CW2 would make it clear that there was nothing wrong with the treatment given to the patient Kanaka at the hands of the first opposite party Dr.Jingle. CW2 explained the need for giving such and such injections at the time when the patient was admitted at the second opposite party hospital. A scrutiny of the testimony of CW2 would also make it clear that he has given the evidence in the case as an independent and impartial witness. There is no circumstance available to doubt the testimony of CW2. His evidence can be accepted safely. The evidence of CW2 is sufficient enough to hold that there was no medical negligence on the part of the first opposite party Dr.Jingle in treating the patient Kanaka on the night of 26.1.04 at the second opposite party St.Thomas Hospital, Pallipuram.
16. Ext.X3 is the treatment record pertaining to the treatment of the patient Kanaka Sasikumar in Medical Trust Hospital, Kochi. X3 treatment record would show that the patient Kanaka Sasikumar was admitted in Medical Trust hospital. Kochi on the night of 26.1.04 and she continued treatment till her death on 1.2.04. She had undergone various investigations and she was treated as a patient in ventilator. Her condition was critical. Her blood was sent for culture and the result of the blood culture is also attached to X3 treatment record. The blood culture would make it clear that the patient Kanaka Sasikumar had heavy infection due to the causative organism, Klebscilla species and she had also moderate infection due to the causative organism “E.Coli”. X3 treatment record would also show that the patient died due to Septicaemia and septic shock and also due Hypoxic Encephalopathy. CW2 has also deposed about the cause of death of deceased Kanaka. Thus, the evidence on record would make it clear that the patient Kanaka had infection which she had even prior to her treatment at the second opposite party hospital on 26.1.04.
17. CW2 has categorically deposed that the blood sample for blood culture was taken on 26.1.04 itself and the result showed presence klebscilla species and bacteria. He also deposed that the bacteria klebscilla species would take at least 4 hours to appear in the blood culture. It would give a clear indication that the infection was affected the patient prior to 26.1.04. The evidence of CW2 would also make it clear that the patient became unconscious and her conditions became serious only because of the infection caused by the causative organism klebscilla species. CW2 has also given reasonable explanation for the sudden change of the condition of the patient. Thus, it can very safely be concluded that the patient Kanaka was affected by heavy infection by Klebscilla and the aforesaid infection resulted in septicaemia and septic shock, multi organ dis-function and hypoxic Encephalopathy and it resulted in the death of the patient while undergoing treatment at Medical Trust Hospital, Kochi. The Forum below cannot be justified in finding the opposite parties medically negligent in treating the patient Kanaka Sasikumar.
18. The complainants have got a case that the first opposite party failed to take the blood sample for examination and investigation and it resulted in the failure to diagnose the illness. It is to be noted that the patient Kanaka was in the second opposite party hospital and he was treated by the first opposite party doctor for about one hour. There was no enough time to take the blood sample for examination. But, at the same time, the first opposite party was very much engaged in controlling body temperature, vomiting and loose stools. The first opposite party was also eager to reduce the dehydration by providing IV fluid. It is also to be noted that the first complainant and the patient were not amenable for admission. In such a situation, the first opposite party was not in a position to send the blood sample for laboratory examination.
19. The first opposite party as RW1 has also spoken to about the situation faced by her in treating the patient Kanaka during the night of 26.1.04. The aforesaid testimony of RW1 is supported by the testimony of CW2 Dr.Babu John Mathew. It is categorically deposed by CW2 that the better management at that situation was to give drugs to control fever-vomiting gastritis. He also deposed that it was the first time management in such cases. CW2 has also deposed that initially the doctors have to stabilize the patient before attempting to conduct laboratory test or other tests. CW2 further deposed that to get the result of blood culture at least 48 hours time is required. He has also deposed that the blood test for ESR is generalized test, which does not have diagnostic value. According to CW2 causative organism could be detected by blood culture. So, failure on the part of the first opposite party to send the blood sample for investigations cannot be treated as negligence or deficiency in service.
20. The complainants have got a case that the opposite parties failed to provide ambulance facility to the patient Kanaka while shifting the patient from the second opposite party hospital to KVM Hospital, Cherthala. It is come out in evidence that the distance between the first opposite party St.Thomas Hospital, Pallipuram and KVM Hospital, Cherthala would come to 12 kms. Admittedly, the patient Kanaka Sasikumar was in a very critical condition. She was unconscious she was with the support of oxygen and IV fluid. The first opposite party as RW1 has categorically admitted that the patient was given IV fluid and oxygen inhalation. It is also admitted by RW1, that when the patient went into unconscious state due to fall in BP, the patient was provided IV fluid and other medicines. It is also deposed that the patient Kanaka was in need of oxygen inhaler and thereby she was provided oxygen inhaler with Tepid sponging to reduce the body temperature, which has gone up to 106 F. Thus, it can be seen that the patient Kanaka was in dire need of oxygen support and IV fluid. But, the patient was shifted from the second opposite party hospital to KVM Hospital in a tempo trax (vehicle) without the facility to provide Oxygen inhaler and IV fluid. The opposite parties were expected to provide all the facilities to a patient who was in dire need of oxygen support and I V fluid. The action on the part of the opposite parties in permitting the patient Kanaka to shift from the second opposite party hospital to KVM hospital, Cherthala without the facility to provide oxygen inhaler and IF fluid would amount to deficiency in service. The opposite parties being the experts in the filed were fully aware of the dire need to provide Oxygen inhaler and IV fluid to a patient who was unconscious and in a very critical condition. So, the case of the complainant regarding the deficiency in service on the part of the opposite parties in their failure to provide ambulance facility with Oxygen support and IV fluid is to be upheld.
21. RW2, the administrator of the second opposite party hospital has deposed that the second opposite party was not having the ambulance with the facilities to provide Oxygen inhaler and IV fluid. The aforesaid admission on the part of RW2 would make it abundantly clear that the second opposite party failed to provide the ambulance facility with the required oxygen support and IV fluid. The fact that the second opposite party hospital was not having the ambulance with all the medical facilities itself would amount to negligence and deficiency in service.
22. The complainants have got a case that the ambulance which was available with the second opposite party hospital had gone for some other service and that is why the opposite parties could not provide the ambulance facility to the patient who was shifted to a better center for better medical treatment and management. The opposite parties could not adduce any evidence to show otherwise. The opposite parties miserably failed in establishing their case that the ambulance was available in the premises and the driver of the ambulance was also available for plying the ambulance. The case of the opposite parties that the first complainant and the relatives of the patient were not interested in getting the ambulance facility cannot be believed or accepted. Even if, the patient or the relatives were not interested in getting the ambulance facility, it was the bounden duty of the opposite parties to see that the patient is shifted to the higher center in the ambulance with all the necessary facilities including oxygen support and IV fluid. It is also to be noted that it was the duty of the opposite parties to render the assistance of a doctor or at least a trained nurse to accompany the patient while shifting to a higher center. There can be no doubt about the fact that there was negligence and deficiency in service on the part of the opposite parties on account of their failure to provide ambulance facility to the patient Kanaka who was in a very critical state. The evidence on record would show that the patient Kanaka was in dire need of oxygen support and IV fluid. It is pertinent to note at this juncture that the patient Kanaka was subsequently shifted from KVM Hospital to Medical Trust Hospital, Ernakulam and for the said shifting of the patient, the authorities of KVM Hospital, Cherthala provided ambulance facility to the patient with Oxygen support. This circumstance would make it crystal clear that there was negligence and deficiency in service on the part of the opposite parties 1 and 2 in this respect.
23. The opposite parties are to be made liable for the aforesaid negligence and deficiency in service on their part. There can be no doubt about the fact that the failure to provide oxygen inhaler and IV fluid caused much discomforts, inconveniences and mental agony to the patient as well as the complainants and other relatives of the patient. The opposite parties could have very well avoided such a situation. So, this Commission is of the view that the opposite parties are liable to pay compensation of Rs.50,000/- to the complainants for the aforesaid negligence and deficiency in service on the part of the opposite parties 1 and 2. The impugned order passed by the Forum below is modified to the extent as indicated above. These points are answered accordingly.
In the result, the appeal is allowed partly. The impugned order dated 30th January 2007 passed by CDRF, Alappuzha in OP.A.85/04 is modified, and thereby the appellants/opposite parties are directed to pay compensation of Rs.50,000/- to the respondents/complainants with a cost of Rs.2,500/-. The impugned order passed by the Forum below directing payment of compensation of Rs.1,45,000/- with a further compensation of Rs.40,000/- towards the treatment charge is set aside. As far as the present appeal is concerned, there will be no order as to costs. The aforesaid decreed amount of Rs.50,000/- is to be paid within one month from the date of receipt of this judgment, failing which the said amount will carry interest at the rate of 9% per annum from the date of the complaint in OP.A.85/04 till payment.
M.V.VISWANATHAN -- JUDICIAL MEMBER
VALSALA SARANGADHARAN -- MEMBER
