KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos.  721/2016 & 728/2016

COMMON JUDGMENT DATED: 08.11.2023

(Against the Order in C.C. No. 231/2010 of CDRC, Alappuzha)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPEAL No. 721/2016

APPELLANT:

Dr. Fenol Gemma, Muniappelli Veettil, Power House Ward, Alappuzha.

(By Adv. Sreevaraham N.G. Mahesh)

                                                Vs.

RESPONDENTS:

1. Shaju A.X., Azheekkal Veedu, Ward No. 3, Kadakkarappalli Panchayat, Cherthala. 

Anju Maria, D/o late Jessy, Azheekkal Veedu, Ward No. 3, Kadakkarappalli Panchayat, Cherthala.

Abinav @ Abhinav Jessy, S/o late Jessy, Azheekkal Veedu, Ward No. 3, Kadakkarappalli Panchayat, Cherthala.

(By Adv. G.S. Kalkura)

2. Dr. Vasantha, Kadavil Kovilakathu Veedu, North of Milma Factory at Thuravoor, Ward No. 13, Thuravoor Panchayat, Cherthala.

3. Sister Vinny, Administrator, Holy Cross Hospital, Thanky, Cherthala.

APPEAL No. 728/2016

APPELLANTS:

1. Dr. Vasantha, Kadavil Kovilakathu Veedu, North of Milma Factory at Thuravoor, Ward No. 13, Thuravoor Panchayat, Cherthala.

2. Sister Vinny, Administrator, Holy Cross Hospital, Thanky, Cherthala.

(By Adv. Rajmohan C.S.)

                                                Vs.

RESPONDENTS:

1. Shaju A.X., Azheekkal Veedu, Ward No. 3, Kadakkarappalli Panchayat, Cherthala.

(By Adv. G.S. Kalkura)

2. Anju Maria, D/o late Jessy, Azheekkal Veedu, Ward No. 3, Kadakkarappalli Panchayat, Cherthala. 

3. Abinav @ Abhinav Jessy, S/o late Jessy, Azheekkal Veedu, Ward No. 3, Kadakkarappalli Panchayat, Cherthala.  

4. Dr. Fenol Gemma, Munjappelli Veettil, Power House Ward, Alappuzha.

(By Adv. N.G. Mahesh for R4)

COMMON JUDGMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

These appeals arose from the order of the District Consumer Disputes Redressal Commission, Alappuzha (will be referred to as District Commission for brevity) in C.C. No. 231/2010.

2.  The complaint was filed alleging medical negligence against two doctors and the Administrator of the Holy Cross Hospital, Thanky, Cherthala.  The complaint was allowed by the District Commission.

3.  Appeal No. 728/2016 was filed by the opposite parties 1 &3 and the second opposite party filed Appeal No.721/2016.

4.  For the sake of convenience and being cases involving the same issue these two appeals were heard together and now disposed of vide this common Judgement.

5.  The brief facts in the complaint are summarised below:

The complainants are the husband and two minor children of the deceased Jessy who had succumbed to death on account of the alleged medical negligence on the part of the opposite parties.  Jessy had availed treatment from the Holy Cross Hospital in connection with her second delivery.  On 08.08.2008 Jessy was admitted in the hospital at 5.00 p.m as per the advice of the first opposite party.  On the same day at 9.45 p.m she gave birth to a male child.  The delivery was attended by the first opposite party and on the next day the second opposite party had visited the patient.  On 11.08.2008 Jessy was discharged from the hospital by the second opposite party with an advice to come for review.  But no medicines were prescribed to the patient.

6.  After the discharge Jessy was taking bed rest at home.  But on 14.08.2008 at 3.00 am she had severe shivering and immediately she was taken to the hospital, but the duty doctor and the staff attached to the third opposite party refused to provide treatment.  So, the patient was taken to the Medical College Hospital, Alappuzha where she succumbed to death.

7.  Post Mortem was conducted on the body of the deceased and the cause of death was detected as “Septicaemia” due to the retention of placental bits in the uterus. The first complainant reported the matter to the Police and a crime was registered alleging commission of offences u/s 304(A) r/w 34 IPC against the opposite parties.  An expert committee was also constituted by the government to explore the issues involved.  The expert committee consisted of the DMO, Alappuzha and others.  The DMO and team inspected the hospital and gave their opinion as discussed below:

The labour room and operation theatre run by the third opposite party were found to be unhygienic and unsanitary and the committee filed a report after perusing the case records and the post mortem findings and opined that there was reasonable lack of skill and care at the time of delivery of the deceased patient and also during the postpartum period from the side of the doctors and staff who treated the patient.  The first opposite party was negligent in attending the delivery who failed to show any reasonable skill.  She effected artificial rupture of the membrane at 8 pm on 08.08.2008 but antibiotics were prescribed only after the delivery by 9.45 pm.  Antibiotics were advised only for 09.08.2008 by the first opposite party.  No antibiotics were advised on 10.08.2008, 11.08.2008 or at the time of discharge.  All the opposite parties were negligent in respect of the treatment provided to the deceased.

8.  The death of Jessy had caused untold miseries to the complainants. The first complainant had lost his wife during younger age.  The minor complainants had lost their mother in their childhood.  The third complainant never had an occasion to get maternal care.  The first complainant was unable to carry out his routine work as he has to look after the minor children in the absence of their mother.  The complainants would claim Rs. 17,43,000/- as compensation and they allege that the third opposite party is the person liable for the unhygienic and unsanitary conditions in the labour room and the operation theatre and also vicariously liable for the negligent act by the first and second opposite parties.

9.  The opposite parties 1&3 filed joint version with the following contentions:

The complaint is not maintainable either in law or on facts.  They would admit their status as the Administrator and the doctor of Holy Cross Hospital.  The claim raised is exaggerated.  They would admit the fact that Jessy had delivered a child from their hospital.  Jessy was admitted to the hospital on 08.08.2008.  Antibiotics were administered on 08.08.2008 and she was discharged with an advice to continue the same as the medicines were purchased by the patient on 10.08.2008.  The first opposite party was not present in the hospital as the said day was a Sunday.  The averments in the complaint would reveal that at the time of discharge till 14.08.2008 the patient was normal.  When the patient was brought to the hospital on 14.08.2008 her condition was such that she was required to be admitted in a hospital with medical ICU and ventilator.  Since such facilities were not available in the hospital the patient was advised to avail treatment from the medical college hospital.  So, it is not correct to say that the doctors had refused to admit the patient.  The finding in the Post mortem report that the patient died due to “septicaemia" consequent to the retention of placental bits is incorrect.  It is also incorrect to state that there was lack of skill and care in attending the delivery and treatment by the opposite parties. There was no negligence on the part of the first opposite party and the duty nurse in attending the delivery. There was no bleeding while the patient remained in the hospital.  The DMO had visited the hospital three months after the death of Jessy and the facts reported are false.  The expert committee did not act in conformity with the direction of the Supreme Court.  The Holy Cross Hospital is run by Sisters who are dedicated to serve the poor and sick.  The hospital and doctors are not liable to pay compensation. They would pray for dismissal of the complaint.

10.  The second opposite party filed separate version with the following pleadings:

The capacity as the Gynaecologist of the hospital is conceded.  The fact that Jessy was admitted in the hospital for delivery is also conceded.  After delivery the patient was in the hospital for four days and at the relevant period, she had no fever or Tachycardia or hypotension till she was discharged.  As per the Doctor’s advice antibiotics were given to the patient.  The patient had purchased antibiotics and she was advised to take the medicines. The second opposite party was on leave from 12.08.2008 to 30.08.2008, so the second opposite party is not liable for the events that took place after 12.08.2008.  The cause of death as shown in the Post mortem report is incorrect.  The report alleged to be issued by the expert board is incorrect.  The second opposite party had exercised utmost care and concern for the patient and looked after her in accordance with the prevailing standards.  There was no negligence in the treatment extended to Jessy.  She requested for exonerating her from the liability.

11.  The evidence consists of the testimonies of PWs 1 to 3 and Exts. A1 to A21 for the complainants.  RW1 to RW6 were examined by the opposite parties and Exts. B1to B4 marked.

12.  The complaint was allowed by the District Commission and the opposite parties were directed to pay the complainants Rs.10 Lakhs as compensation and Rs. 5,000/- as costs.  Being aggrieved by the above order these appeals were filed.

13.  In the appeal memorandum the second opposite party raised the following grounds:

The District Commission failed to consider the question of limitation as there was delay of 40 days in filing the complaint.  The District Commission had also failed to consider Exts. B1 to B4 and the evidence of the expert as RW4.  The District Commission did not consider the fact that the mother and baby were healthy at the time of discharge.  As per Ext. B2 it could be seen that the patient was given antibiotics.  The District Commission also failed to take note of the fact that the second opposite party was on leave from 12.08.2008 to 31.08.2008.  The observation made by the District Commission that the second opposite party had attended the delivery is factually incorrect.

14.  In the appeal memorandum filed in Appeal No. 728/2016 identical contentions as that of the second opposite party are seen raised.  The case sheet was seized by the police and now they are in the custody of the criminal court and without perusing such records the District Commission came to a conclusion that no antibiotics were administered to the patient.  The District Commission failed to consider the fact that the patient had meningitis which also can be a reason for septicaemia.  The District Commission did not consider the fact that in Ext. B4 there is no finding that placenta was present.  PW2 was unable to state the day on which she had inspected the hospital which fact was not taken into account when reaching a conclusion that the operation theatre and the labour room was unhygienic.

15.  Heard the lawyers appearing for the appellants in both the appeals.  The counsel for the appellant in Appeal No. 721/2016 had filed written notes of arguments.  Perused the records received from the District Commission.

16.  The first complainant had given evidence as PW1.  Ext. A11 is the certificate of marriage between the deceased Jessy and PW1.  Exts. A12 (2 in Nos.) would prove that the second and third complainants were born in their wedlock.  Ext.  A13 is the death certificate in respect of Jessy.  The fact that Jessy had availed inpatient treatment from the third opposite party's hospital is not disputed.  It is also proved that Jessy had succumbed to death on 14.08.2008.  Pattanakkad Police had registered a crime against the first and second opposite parties attributing medical negligence. Ext. A1 is the final report filed by the police before the First Class Magistrate’s Court, Cherthala.  The investigation was concluded with a finding that the deceased died due to the negligence on the part of the first and second opposite parties.  The delivery was attended by the first opposite party.  The negligence on her part is that she did not remove the entire placenta from the uterus of the patient which caused infection.  The negligence on the part of the second opposite party is in not prescribing antibiotics to the deceased at the time of discharge.  The cumulative effect of this negligence culminated into septicaemia and death of Jessy.  Exts. A2 to A7 are the copies of the statement of the witnesses recorded by the investigation officer during the investigation of the crime.  Ext. A8 is the copy of the mahazar prepared by the investigation officer.  The investigation officer reached at a conclusion on the basis of the post mortem report issued by the Police Surgeon. Ext. A15 is the post mortem report dated 14.08.2008 where it is reported that placental bits measuring 11x8x2 cm size were found inside the uterus which was found infected.  In Ext. A15 the opinion was reserved as the report from the pathologist was awaited.  After getting the report from the Pathologist final post mortem report dated 22.01.2009 was issued and the cause of death was opined as “due to Septicaemia following retained placental bits following delivery”. The above report is exhibited as A16.  The copy of the statement recorded by the police surgeon during investigation is also marked as Ext. A20.  For finding out the cause of death a committee consisting of the DMO, Government Pleader and Police Surgeon was constituted as per the request of the police.  The report in this regard is marked as Ext. A19.  In Ext. A19 it is opined that the doctor who attends the delivery should ensure that no placental bits remain in the uterus after delivery which is not seen done in this case.  The maternal Death Audit Report of the DMO revealed that the labour room and the operation theatre were unhygienic.  On the basis of the above circumstances coupled with the post mortem findings the committee opined that there was reasonable lack of skill and care in the conduct of delivery and thereafter during the postpartum period.  The DMO was examined as PW2.  Apart from the negligent act on the part of PW1 in not removing the entire placenta from the uterus there is an added agony faced by the deceased in not getting proper medical advice by the second opposite party at the time of discharge.  The case record prepared by the doctor was seized by the police and hence one cannot expect production of the same.  But copy of the said record does find a place in the exhibits filed by the opposite party.  Page numbers 13 to 15 of Ext. B1 are the crucial documents which show that on 08.08.2008 at 8 pm the membrane was ruptured, but antibiotic was prescribed at 9.45 pm on that day which was repeated on 09.08.2008.  Thereafter on 10.08.2008 no antibiotic was seen prescribed.  No antibiotic was advised by the doctor in the discharge note.  If the doctor had intended to provide antibiotics it could have been added in the prescription with the two medicines advised at the time of discharge.  Admittedly the case records were seized by the police during investigation and if that be so the nursing record also ought to have been seized by the police.  So it is evident that the nursing record is a subsequently created document and no credence could be placed on the said document.  If the second opposite party had prescribed antibiotic at the time of discharge the infection, if any, arising on the retention of placental bits ought not to have aggravated.  So the absence of the second opposite party at the time of delivery does not exonerate her from her negligence in not prescribing antibiotic drugs at the time of discharging the patient.  The first and second opposite parties had given evidence as RWs 1&2.  They gave evidence by refuting the allegations of medical negligence.

17.  Two aspects of negligence were revealed in the investigation conducted by the police.  The first act of negligence is that the doctor who attended the delivery was so negligent that the entire placenta was not removed from the uterus of the deceased.  The police surgeon, as a part of her official duty to find out the cause of death, had conducted autopsy.  She had noticed placental bits in the uterus in an infected stage.  After receiving the pathological report the police surgeon came to definite conclusion that the death was caused due to the negligence of the doctors in not removing the entire placenta and also in not prescribing antibiotics to the deceased.

18.  The testimonies of the first and second opposite parties don't sound as convincing.  Ext. B1 includes the copy of the case sheet.  Second opposite party had given evidence that she had prepared the discharge summary at the time of discharge of the deceased.  Ext. B1 is proved through RW2.  Page number 13 to 15 of Ext. B1 would prove that the second opposite party had prescribed antibiotic capsule by name “Ampiclox 500” TDS on 8^th and 9^th of August 2008.  The prescription at the time of discharge does find a place in page number 15 of Ext. B1.  A syrup, one drops and Betadine ointment alone were prescribed by the second opposite party at the time of discharge.  The antibiotic was administered to the deceased as per the specific entries in the case sheet.6 Ampiclox capsules alone are seen prescribed to the deceased.  So, the negligence on the part of the second opposite party in not prescribing antibiotic capsules at the time of discharge might be a reason for aggravating the complication arose on account of the retention of placental bits in the uterus of the deceased.

19.  So we do not find any reason to doubt the correctness of the opinion by the police surgeon regarding the cause of death.  The testimonies of RWs 3 to 6 do not improve the situation.  Their evidence is based on assumption that retention of small quantity of placenta may not result in any complication.  When there is convincing evidence available through the Post mortem report based on the Pathology report it would stand on a better pedestal than that of the assumptions and presumptions proposed by RWs 4&5.

20.  The learned counsel for the appellants placed reliance on medical journals to the effect that Ampiclox is an apt medicine against bacterial infection.  But Ext. B1 shows that antibiotics were not prescribed to the deceased at the time of discharge. Administering antibiotic without completing the requisite dosage also might have resulted in the death of the deceased.  The learned counsel had argued that the second opposite party is not liable for the complication, if any, in respect of the retention of placental bits as she was not present in the hospital on the date of delivery.

21.  We have already discussed about the negligence in not prescribing antibiotics at the time of discharge.  So, we are not impressed by the arguments advanced by the second opposite party’s lawyer.  The counsel had placed reliance upon two precedents 11(2019) CPJ (SC) in S.K. Jhunjhunwala Vs Dhanwanthikumar & another, 2016(2) CPR 671(NC) in Deepak kumar Satsangi & Another Vs Sanjeevan Medical Research Centre (P) Ltd & others” and 2019(2)CPR 758(NC) in Arzoo Yusuf Bagwan Vs Dr. Prasanth Pol” and canvassed a proposition that sometimes despite efforts being taken, the patient may die which alone cannot be taken as a proof for negligence.  The precedents cited by the learned counsel are not applicable to this case since here convincing evidence is available which would lead to an irresistible conclusion regarding the negligence and lack of care on the part of the opposite parties which resulted in the death of a poor lady by leaving two minor children and her husband.  An independent investigating agency, after conducting investigation based on scientific and other item of evidence had reached at a definite conclusion that the deceased died due to the negligence and lack of skill on the part of RWs 1 & 2.  The evidence in a medical negligence case could be dealt with by adopting the theory of preponderance of probability.  All the possible evidences have been brought before court which would lead to a finding that both the first and second opposite parties were negligent in not providing proper treatment and care when the deceased was admitted in the hospital.  The third opposite party being the administrator of the hospital is also vicariously liable for the negligence of the employees who dealt with the deceased while availing treatment in the hospital.

22.  The District Commission had appreciated the evidence in its correct perspective and reached a correct finding.  It had also awarded adequate compensation by taking into account of the misery caused to the bereaved family and two minor children who lost their mother.  The third complainant had lost the opportunity to experience the care and attention of his mother.

23.  After posting the case for judgment the learned counsel for the 1^st appellant in Appeal No. 728/2016 reported that the 1^st appellant had passed away.  So the matter was reopened and posted for further steps.  But no steps are seen taken to bring the legal representatives of the deceased 1^st appellant.  Later the learned counsel for the appellant had caused production of the copy of the death certificate issued by the Registrar of Births and Deaths, Thiruvananthapuram that the 1^st appellant in A 728/2016 died on 21.10.2021.  So it is vivid that the legal representatives of the deceased 1^st appellant in Appeal No. 728/2016 have no intention to pursue the appeal further.  So the Appeal No. 728/2016 in respect of the 1^st appellant is only to be dismissed as abated.

24.  The District Commission had evaluated the evidence in its correct perspective and reached a logical conclusion.  We find no reason to interfere with the order passed by the District Commission. 

In the result, the appeal in respect of the 1^st appellant in Appeal No. 728/2016 is dismissed as abated.  Appeal in respect of the 2^nd appellant in Appeal No. 728/2016 and Appeal No. 721/2016 are dismissed.  Parties shall bear their respective costs. 

The complainants are permitted to receive the statutory deposit and the amount deposited before the District Commission at the time of granting stay on proper acknowledgement.

         AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

jb