KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
C.C No. 04/2010
JUDGMENT DATED: 24.01.2020
PRESENT :
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SRI. RANJIT. R : MEMBER
SMT. BEENA KUMARY. A : MEMBER
COMPLAINANTS:
- P.R. Girish, Pulikkal Parambil House, Maradu P.O., Thripunithura, Ernakulam and employed as Proprietor, Electro Tech Industries, Maradu P.O, Kochi.
- M.K. Shaji, retired Pvt. Secretary to Judge, High Court of Kerala, Ernakulam and residing at Pallikavu Vadakke Madom, Vaduthala P.O, Kochi.
- Vijaya Shaji, Pallikavu Vadakke Madom, Vaduthala P.O, Kochi.
(By Adv. M. Nizamudeen)
Vs.
OPPOSITE PARTIES:
- Sree Sudheendra Medical Mission Hospital, Kacheripady, Ernakulam-682 016 represented by its Director.
- Dr. Remani Philip, Gynaecologist, Sree Sudheendra Medical Mission Hospital, Kacheripady, Ernakulam-682 016.
- Dr. Ramesh Bhat, Physician, Sree Sudheendra Medical Mission Hospital, Kacheripady, Ernakulam-682 016.
(By Advs. George Cherian Karippaparambil & S. Reghukumar)
JUDGMENT
SRI. T.S.P. MOOSATH : JUDICIAL MEMBER
Complaint filed under Sec. 12 of the Consumer Protection Act.
2. The averments contained in the complaint are, in brief, as follows: Mrs. Bhagyasree the wife of the 1st complainant and daughter of the complainants 2 & 3 was pregnant and she was under the treatment of the 2nd opposite party at the 1st opposite party hospital from the initial stage of pregnancy. She had undergone usual checkups and medication as advised by the 2nd opposite party. Whileso on 27.08.2009 Bhagyasree was taken to the 1st opposite party hospital since she was suffering from severe fever and cough and she was admitted in the 1st opposite party hospital and treatment was given by the 2nd opposite party and the 3rd opposite party who was a physician attached to the 1st opposite party. Even though Bhagyasree was suffering from severe cold, no laboratory or other tests were conducted by the opposite parties to diagnose the reason for the cough in spite of repeated requests by the complainants. The complainants had noticed that a portion of the eyes of Bhagyasree turned yellow. When contacted by the complainants the 2nd opposite party stated that these symptoms would be present during the advanced stage of pregnancy. Repeated requests of the complainants to render proper and adequate treatment made to the opposite parties including permission to take Bhagyasree to another hospital for proper treatment was not attended by the opposite parties. The medicines prescribed by the opposite parties 2 & 3 were only for asthmatic complaints. On 30.08.2009 the complainants and other relatives noticed that the cough and yellow colour in the eyes of Bhagyasree still persisted. On repeated requests the 3rd opposite party referred for laboratory tests. In the first test no reference was made for testing jaundice. A second test was conducted in the evening which revealed the existence of jaundice to Bhagyasree. It was noticed that the presence of bilirubin had exceeded very much than the normal limit. During the night of 30.08.2009 Bhagyasree had breathing problems and on intimation the doctors in the 1st opposite party hospital gave oxygen to Bhagyasree. On 31.08.2009 the complainants and relatives requested the 2nd opposite party to refer Bhagyasree to a better hospital for proper medical care and treatment and at last on compulsion the 2nd opposite party agreed to refer Bhagyasree to a better hospital at 8.45 am on 31.08.2009. Even then all formalities including the reference letter were completed only at 11.30 am. Immediately the complainant took Bhagyasree to Medical Trust Hospital, Ernakulam with the letter of reference made by the 2nd opposite party. On admission at Medical Trust Hospital they noticed acute fatty liver of pregnancy and pneumonia. After conducting proper tests the complainants were told that pneumonia and jaundice were in the advanced stage. The gynaecologist attached to the Medical Trust Hospital did immediate caesarean operation on Bhagyasree whereupon two dead female babies were taken from the womb of Bhagyasree. The doctors informed the complainants that the condition of Bhagyasree was critical and she was put on ventilator. She was on continuous medication and the doctors attached to Medical Trust Hospital, Ernakulam put their best efforts to save her life. But unfortunately at 12.50 am on 09.09.2009 the doctors informed the complainants that Bhagyasree died. Though the complainants instructed the opposite parties 2 & 3 to diagnose the disease of Bhagyasree promptly and to give her appropriate treatment opposite parties 2 & 3 did not care to do so and blood test was conducted only on 30.08.2009 for detecting the disease. No X-ray of the chest was taken out to find out the infection of the lungs. Bhagyasree was discharged from the 1st opposite party hospital on the compulsion of the complainants. The death of Bhagyasree and two children in her womb was caused due to the gross negligence and deficiency in service in the wrong diagnosis made by the opposite parties 2 & 3, wrong and inadequate medication given to her and their negligence in not prescribing and carrying out the requisite laboratory tests and not giving proper and adequate treatment to her. The non-diagnosis of pneumonia and jaundice by the opposite parties 2 & 3 resulted in loss of three valuable lives. Opposite parties 2 & 3 are working under the 1st opposite party hospital and they are liable for the acts of negligence and deficiency in service committed by the opposite parties 2 & 3. The complainants were put to severe mental agony, pain and suffering, loss and damage due to the negligence and deficiency in service committed by the opposite parties for which they are legally liable to compensate the complainants. So the opposite parties may be directed to pay a sum of Rs. 49,00,000/- as compensation together with interest @ 18% per annum and cost of litigation to the complainants.
3. The opposite parties filed version raising the following contentions. It is true that Mrs. Bhagyasree consulted the 3rd opposite party on 27.08.2009 with history of fever, cough and breathlessness of three days duration. On clinical examination the patient was diagnosed as Bronchial Asthma. The patient was a known asthmatic case and had consulted the 3rd opposite party on three occasions for cough. To prevent infection, even pneumonia, sufficient medicines were prescribed and given to the patient. Since Bhagyasree had been attending the ante-natal clinic of the 2nd opposite party, she was also informed about the admission of Bhagyasree and the 2nd opposite party had examined the patient daily. On 30.08.2009 at 10 pm the duty RMO Dr. Santha Mohandas attended a call to see Bhagyasree who was having breathing difficulty. She suspected jaundice as there was mild yellowish discolouration of the eyes. She immediately ordered liver function test inclusive of Serum Bilirubin, and other tests in order to confirm the presence of jaundice. The results were awaited. Dr. Santha Mohandas informed the condition of the patient to the 2nd opposite party and she was advised to contact the Chief Consultant Physician Dr. T.L.P. Prabhu and Dr. Roshan Paulose. She also suggested that the patient should be referred to a higher centre in anticipation of any further complications. After contacting the other doctors Dr. Santha Mohandas ordered blood tests of Bhagyasree. On 31.08.2009 at 6.30 am the 2nd opposite party telephonically ordered repeat blood routine test, liver function test and ultra sound scan of abdomen. But the bystanders refused the tests ordered by the 2nd opposite party. Since the relatives of the patient refused any further tests and they refused to wait to be seen by other doctors the 2nd opposite party telephonically contacted Dr. Sunil Mathai, Medical Trust Hospital Ernakulam and wrote a referral letter and transferred the patient to Medical Trust Hospital Ernakulam. The twin foetal heart recordings were good at that time and Bhagyasree had no gynaec complaints and abdominal pain at that time. On 27.08.2009 Bhagyasree did not come to the 2nd opposite party for consultation and she went directly to the 3rd opposite party. She was admitted with medical complaints of fever and cough. Blood tests for diagnosing infection, fasting blood sugar etc. were ordered immediately. The allegation that in spite of repeated requests no proper blood tests or other tests were conducted by the opposite parties is not correct. The medicines prescribed by the 3rd opposite party were not for asthmatic complaints alone and the medicine prescribed by him is the first drug of choice for respiratory tract infections including pneumonia which was started at the time of admission itself. On admission at Medical Trust Hospital at about 10.30 am on 31.08.2009 ultra sound scan was done which showed the twin foetals were alive and well. The caesarean operation was done at 2.50 pm under general anaesthesia and both twins were born dead. They were premature. The acute fatty liver of pregnancy is a very serious disease with sudden onset and rapid deterioration resulting in multi organ failure often leading to death. No X-ray of the chest of Bhagyasree was taken since it was not necessary at that time. Further X-ray is generally contra indicated in pregnancy. Adequate and appropriate treatment was given to Bhagyasree by the 3rd opposite party followed by supportive treatment by the 2nd opposite party. The 2nd opposite party is a senior gynaecologist having 34 years of experience and 3rd opposite party is a senior physician having 22 years of experience. There is no negligence or deficiency in service on the part of the opposite parties. The opposite parties are not liable to pay any amount as compensation to the complainants. Hence the complaint is to be dismissed.
4. The points that arise for consideration are:-
- Whether there was deficiency in service on the part of the opposite parties?
- Whether the complainants are entitled to get compensation from the opposite parties? If so, what is the quantum?
5. PWs 1 & 2 were examined and Exts. A1 to A17 were marked on the side of the complainant. DWs 1 to 5 were examined on the side of the opposite parties. The medical records relating to the treatment of the deceased Bhagyasree in Sree Sudheendra Medical Mission Hospital was marked as Ext. C1 and the medical records of her treatment in the Medical Trust Hospital, Ernakulam was marked as Ext. C2.
6. Points (i) & (ii):- For convenience these points are considered together. Mrs. Bhagyasree, wife of the 1st complainant and daughter of the complainants 2 & 3 was pregnant and she was under the treatment of the 2nd opposite party at the 1st opposite party hospital, from the initial stage of pregnancy. She had undergone usual checkups and medication as advised by the 2nd opposite party. Whileso on 27.08.2009 Bhagyasree was taken to the 1st opposite party hospital since she was suffering from severe fever and cough and she was admitted in the hospital. During the night on 30.08.2009 Bhagyasree had breathing problems and duty doctor Santha Mohandas attended her and she noticed mild yellow discolouration of the eyes of Bhagyasree and she ordered liver function test and other tests for diagnosing jaundice and the results confirmed jaundice to Bhagyasree. Further tests diagnosing the cause for jaundice was ordered. But the bystanders of Bhagyasree insisted for taking Bhagyasree to some other hospital. On 31.08.2009 she was referred to Medical Trust Hospital, Ernakulam and on admission of Bhagyasree at the Medical Trust Hospital, Ernakulam they conducted several tests and X-ray was taken and they noticed acute fatty liver of pregnancy and pneumonia. On the same day Bhagyasree had undergone caesarean operation and two dead female babies were taken out. Bhagyasree was taken to post operative ICU and there was bleeding through her abdominal drain continuously after 12 hours of surgery. Doctors of the Medical Trust Hospital put their best efforts to save the life of Bhagyasree. But on 09.09.2009 at about 12.50 am Bhagyasree died. There is not much dispute between the parties to these facts and further those are brought out from the records. In Ext. A2, the death summary issued from the Medical Trust Hospital, Ernakulam it is stated that death of Bhagyasree was as a result of the complications that arose out of the acute fatty liver of pregnancy and pneumonia.
7. The allegation of the complainant is that even though Bhagyasree was suffering from severe cough no laboratory tests were conducted by the opposite parties to diagnose the reason for the cough. No X-ray was taken. According to the complainants they have noticed that a portion of the eyes of Bhagyasree turned yellow and when they stated that fact to the 2nd opposite party she stated that those symptoms would be present during the advanced stage of pregnancy. It is alleged by the complainant that the non-diagnosis of pneumonia and jaundice by the opposite parties 2 & 3 resulted in loss of three valuable lives. The allegations made by the complainants were denied by the opposite parties and they contended that there was no negligence or deficiency in service on their part in diagnosing and giving proper treatment to Bhagyasree. It is stated by the opposite parties that opposite parties 2 & 3 have taken utmost care in the treatment of Bhagyasree and that the treatment given to Bhagyasree is the standard treatment. The 2nd opposite party is a senior gynaecologist having 34 years of experience with her MBBS with post graduation from Calcutta University and the 3rd opposite party is a senior physician having 22 years of experience with MBBS and MD in General Medicine. From the allegations made by the complainants it can be seen that their case is that on 27.08.2009 when Bhagyasree was admitted in the 1st opposite party hospital she had symptoms of jaundice and pneumonia and if the opposite parties had conducted proper tests they would have diagnosed the same and they would have given proper treatment for that which would have prevented further complications which resulted in the loss of three lives. According to the complainants the opposite parties conducted proper tests only in the night of 30.08.2009. By that time pneumonia and jaundice were in advanced stage. It is the case of the opposite parties that though Bhagyasree was undergoing treatment during pregnancy on the advice of the 2nd opposite party, on 27.08.2009 she came to the 1st opposite party hospital not because of any gynaec problem but because of fever and cough and it is admitted by the complainants also. Ext. C1 shows that on 27.08.2009 Bhagyasree consulted the 3rd opposite party and she was diagnosed as bronchial asthma. Since Bhagyasree had been attending the ante natal clinic of the 2nd opposite party in the 1st opposite party hospital the 2nd opposite party was also informed and she had examined Bhagyasree every day to ensure that she had no gynaec complaint and that her foetal heart recordings were done regularly. Ext. C1 shows that till 30.08.2009 night Bhagyasree had no symptoms of jaundice or pneumonia and on 30.08.2009 in the night at about 10 pm Dr. Santha Mohandas who attended a call stating that Bhagyasree had breathlessness had a doubt regarding jaundice and she ordered blood tests and the test results confirmed jaundice and after consultation with other doctors she ordered further tests to diagnose the cause of jaundice and the type of jaundice. Since the complainants insisted for taking Bhagyasree to another hospital those tests were not conducted and on 31.08.2009 in the morning she was referred to Medical Trust Hospital, Ernakulam. Pages 32 & 33 of Ext. C1 shows that the allegation of the complainant that no blood test was conducted on 27.08.2009 when Bhagyasree was admitted in the hospital is not correct. The result of the blood test conducted on 27.08.2009 is in page 33 of Ext. C1. As per the test result her WBC was 8960, Hgb % 9.5 gm. Platelets 2.35 lakhs. Those would clearly show that Bhagyasree was not having any infection and confirms the provisional diagnosis of bronchial asthma. DW2 who treated Bhagyasree deposed that Bhagyasree had consulted him on 27.08.2009 at medical OPD of the 1st opposite party hospital with history of fever, cough and breathlessness of 3 days duration. On clinical examination the patient was diagnosed as bronchial asthma. The patient was a known asthmatic case and had consulted him on three occasions in August 2009 in the OPD for cough. He had directed blood test and the test results do not indicate pneumonia. He had prescribed medicines for asthma to prevent/treat infection even pneumonia. Since Bhagyasree had been attending the ante natal clinic of the 2nd opposite party she was also informed about the admission of Bhagyasree and the 2nd opposite party examined the patient daily to ensure that she had no gynaec problem and that her foetal heart recordings were done regularly. DW2 deposed that on 28.08.2009 the patient improved remarkably, her temperature was normal and chest was clear. But in the night of 28.08.2009 she developed breathing difficulty again. On 29.08.2009 morning he had examined Bhagyasree and no jaundice was present at that time and her chest was clear. ECG was also ordered which was normal except for Sinus Tachycardia, probably due to fever. A second antibiotic, Azee was added. DW2 deposed that the medicines prescribed by him were not for asthmatic complaints alone. IV Ceftriaxone is the first drug of choice for respiratory tract infections including pneumonia which was started at the time of admission itself. Further another antibiotic was started on 27.08.2009 which was safe in pregnancy. X-ray chest is generally contra indicated in pregnancy and any way she was improving up to 30.08.2009 with his treatment and hence X-ray chest was not necessary at that time. The purpose of X-ray examination is for diagnosing pneumonia whereas the patient was already on IV Ceftriaxone which is the first drug of choice for respiratory tract infections including pneumonia which was started at the time of admission itself. Further another antibiotic was started on 29.08.2009 which is safe in pregnancy. DW1 also deposed that she did not recommend any X-ray chest as X-ray chest is generally contra indicated in pregnancy and since Bhagyasree was improving up to 30.08.2009 with the treatment of the 3rd opposite party and hence X-ray chest was not necessary at that time. DW2 deposed that since he was going on leave he stated that the patient should be referred to Dr. T.L.P. Prabhu who is the Chief Medical Superintendent of the 1st opposite party hospital. Immediately Dr. Sunil Mathai, the Assistant of Dr. T.L.P. Prabhu examined Bhagyasree at 10.30 a.m on 29.08.2009 and on 30.08.2009 Dr. Madhav Chandran, the assistant of Dr. T.L.P Prabhu examined Bhagyasree. DW1 also deposed those facts. In page 39 of Ext. C1, DW2 recorded his clinical examination finding of Bhagyasree on 27.08.2009. He has noted as ‘bronchial asthma’. He has also noted as anicteric (no jaundice). Page 33 of Ext. C1 contain the blood test result which shows that Bhagyasree has no infection at that time. DW3 deposed that on 29.08.2009 he had examined Bhagyasree and he has noted the history of the patient and condition of the patient in page 8 of Ext. C1 which was marked as Ext. C1(a). In Ext. C1(a) DW3 has noted as chest clear, no pallor, no jaundice, no oedema, pulse 120. He had directed to repeat the same medicines and from the next day onwards the injection has to be reduced to two times per day instead of thrice a day. DW4 deposed that on 30.08.2009 in the morning he had examined Bhagyasree and he had recorded his clinical findings in page 8 of Ext. C1 which is marked as Ext. C1(b). He had recorded as ‘no breathing difficulty, temperature normal, B.P 120/60, chest clear’. He advised to continue the same treatment. The clinical examination findings noted in Ext. C1, the blood test result (in page 33 of Ext. C1), the result of ECG, coupled with the depositions of DW1 to DW4 will show that the allegation of the complainant that Bhagyasree was suffering from jaundice and pneumonia on 27.08.2009, at the time of her admission in the 1st opposite party hospital and the opposite parties failed to diagnose the same since they have not directed to undergo proper tests is without any basis and it is not correct. Further it would show that till 30.08.2009 Bhagyasree was not suffering from jaundice or pneumonia. In Ext. A7 report of the enquiry committee it is stated that Bhagyasree was admitted on 27.08.2009 in the 1st opposite party hospital under care of physician for control of respiratory infection. She was put on proper antibiotics and bronchodilators and she was recovering. Jaundice was noted by night duty doctor on 30.08.2009 and immediately blood sample was sent for test. On 31.08.2009 in the morning she was referred to the Medical Trust Hospital, Ernakulam. Acute lower respiratory tract infection was diagnosed clinically at Sree Sudheendra Medical Mission Hospital and Bhagyasree was treated by proper antibiotics on admission there. PW2 one of the members of the Enquiry Committee who had prepared Ext. A7 report stated that the treatment given to Bhagyasree at the 1st opposite party is standard treatment. There is no dispute to the fact that on 30.08.2009 in the night on the basis of the call on breathing trouble to Bhagyasree Dr. Santha Mohandas, the duty doctor examined her and on clinical examination she has noted a doubt regarding jaundice and she ordered blood test for diagnosis of jaundice and after the test jaundice was confirmed and she ordered further tests to know about the cause of jaundice, the type of jaundice etc. and those were not done since the complainants and relatives insisted to take Bhagyasree to another hospital and on 31.08.2009 in the morning Bhagyasree was taken to Medical Trust Hospital, Ernakulam with the reference letter of the 2nd opposite party. PW2 deposed that the diagnosis of acute fatty liver of pregnancy was made only by Dr. Sunil Mathai, Gastro Enterologist of Medical Trust Hospital on the basis of the laboratory reports on 31.08.2009. In Ext. A7 it is stated that Acute Fatty Liver of Pregnancy is an extremely rare but fatal condition which can develop at any time during pregnancy. DW5, Gastro Enterologist who was working in the Medical Trust Hospital, Ernakulam also deposed that Acute fatty liver of pregnancy is a very rare serious disease with sudden onset and rapid deterioration resulting in multi organ failure. In these circumstances because of the fact that on 31.08.2009 after conducting tests in the Medical Trust Hospital, Ernakulam doctors of that hospital diagnosed that Bhagyasree had pneumonia and Acute fatty liver of pregnancy it cannot be found that on 27.08.2009 when Bhagyasree was admitted in the 1st opposite party hospital she had symptoms of jaundice and pneumonia and opposite parties 2 & 3 failed to diagnose the same since they have not conducted proper tests. The reason for not taking X-ray and for not conducting liver function test is sufficiently explained by DW1 and DW2 and those are supported by the entries in Ext. C1. The evidence on record would show that there is no basis for the allegation of the complainant that there was deficiency in service on the part of opposite parties 2 & 3 in not prescribing and carrying out proper tests and not giving proper and adequate treatment to Bhagyasree. Further the evidence on record would show that the allegation of the complainants that there was non-diagnosis of pneumonia and jaundice by the opposite parties 2 & 3 is without basis.
8. From page 9 of Ext. C1 it can be seen that the suspicion of jaundice was first made by Dr. Santha Mohandas the duty medical officer at 10 p.m on 30.08.2009 when she was asked to attend the complaint of breathing difficulty of Bhagyasree. In page 9 of Ext. C1 the clinical examination findings of Dr. Santha Mohandas and the tests ordered by her were also recorded. It is also recorded that she had ordered those tests after consultation with senior doctors. The results of the tests were also recorded in that page. The clinical findings recorded by Dr. Santha Mohandas in page 9 of Ext. C1 would show that on 30.08.2009 at 10 pm for the first time a doubt of jaundice was noted. The notings would also show that all standard blood tests for diagnosing jaundice was ordered by Dr. Santha Mohandas in consultation with senior doctors and she informed the matter to the 2nd opposite party also. The results were awaited since all these test results required a few hours. After midnight when the result of the blood test confirmed jaundice, further tests were ordered for diagnosing the type of jaundice, the cause of jaundice, the impact of jaundice on the patient in order to decide the further course of treatment. It is the case of the opposite parties that the complainants and their relatives were not ready to conduct further tests and they were not willing to await to see Dr. T.L.P. Prabhu or other doctors and they demanded to take Bhagyasree to another hospital. So she was referred to Medical Trust Hospital Ernakulam. DW2 deposed that every single case of jaundice does not have to be referred to a higher centre as emergency. Every single case of jaundice does not require immediate caesarean section. Whether or not the patient should be referred to a higher centre depends on the type and cause of jaundice. DW1 deposed that on admission of Bhagyasree at Medical Trust Hospital at around 10.30 am on 31.08.2009 among other tests an ultra sound scan was done which showed the twin foetuses were alive and well. The caesarean operation was done at 2.50 pm under general anesthesia, both twins were born dead and they were more than 1½ months premature. She deposed that acute fatty liver of pregnancy is a very serious disease with sudden onsite and rapid deterioration resulted in multi organ failure often leading to death. DW5 deposed that once jaundice was confirmed by tests further tests are to be conducted for diagnosing the type of jaundice, cause of jaundice etc. for further course of treatment. DW5, after perusing Ext. C1, deposed that on confirmation of jaundice further tests were ordered by the doctors of the 1st opposite party hospital and it requires 2-8 hours to get the result. DW5 deposed that the doctors of the 1st opposite party hospital was not able to diagnose Acute fatty liver of pregnancy since further tests ordered were not done and the transfer of a patient arriving at a diagnosis would have need more time. DW5 deposed that he could not say that there was any negligence on the part of the doctors of the 1st opposite party hospital since results of the tests were awaited. Page 258 of Ext. C2 contain the reference letter given by the 2nd opposite party to the doctor of the Medical Trust Hospital. From that it is clear that at the time when Bhagyasree was referred to Medical Trust Hospital the doctors of the 1st opposite party hospital had not yet had the time to arrive at a diagnosis of acute fatty liver of pregnancy. DW5 deposed that as per the records Bhagyasree was brought to the Medical Trust Hospital at 10.30 am on 31.08.2009. When a question was asked why was termination of pregnancy was delayed till 2.50 pm at Medical Trust Hospital, DW5 stated that the patient had to be stabilised, patient had breathlessness and respiratory discomfort. Pre-operative work up had to be done before a surgery can be done on the patient. That much of time is needed for the pre-operative work up.
9. It is alleged by the complainants that after repeated demands of the complainants the 2nd opposite party agreed to refer Bhagyasree to a better hospital at 8.45 am on 31.08.2009. Even then all formalities including the reference letter were completed only at 11.30 am. Immediately on obtaining the said reference letter complainant took Bhagyasree to Medical Trust Hospital, Ernakulam. The said allegations were denied by the opposite parties. According to them they have referred Bhagyasree at 8.30 am on 31.08.2009 and at about 10.30 am on the said day the doctors of Medical Trust Hospital examined her. Page 10 of Ext. C1 would show that with Ext. A1 reference letter Bhagyasree was referred to Medical Trust Hospital, Ernakulam at 8.30 am. Page 269 of Ext. C2 contain the result of the examination of Bhagyasree by the consultant in Medical Trust Hospital on 31.08.2009 at 10.30 am. Page 210 of Ext. C2 contain the recording made at the pre-operative ward of Medical Trust Hospital at 11.30 am on 31.08.2009 for preparing the patient for emergency caesarean section. There, it is recorded as ‘New admission came from Casualty to pre-operative ward at 11.30 am’. All these show that the allegation of the complainant that all the formalities including the reference letter were completed only at 11.30 am on 31.08.2009 at the 1st opposite party hospital is false.
10. Ext. A2 death summary dated 09.09.2009 states about the Acute fatty liver of pregnancy. From the records it can be seen that the diagnosis of Acute fatty liver of pregnancy is made only by Dr. Sunil Mathai, Gastro Enterologist of Medical Trust Hospital on the basis of the tests conducted in that hospital. DW1 deposed that acute fatty liver of pregnancy is a very serious disease with sudden onset and rapid deterioration resulting in multi organ failure, often leading to death. It is very rare only one in 1300 to 1800 pregnancies and the mortality rate is extremely high. Most doctors have never seen a single case of acute fatty liver of pregnancy in their entire career. DW1 deposed that during her service of 37 years as a gynaecologist she never come across a case of acute fatty liver of pregnancy. PW2 who was working as gynaecologist, General Hospital Ernakulam who is one of the members of the Enquiry Committee who prepared Ext. A7 report deposed that acute fatty liver of pregnancy is an extremely rare but fatal condition which can develop at any time during pregnancy and it is stated in Ext. A7 report. PW2 deposed that in such cases the mortality rate is around 80%. PW2 deposed that during her practice as a gynaecologist she never come across a case of acute fatty liver of pregnancy. The deposition of DW1 and PW2 indicate that acute fatty liver of pregnancy is a very rare disease/ailment. DW5 the Gastro Enterologist Medical Trust Hospital who treated Bhagyasree deposed that he had been practising as a Gastro Enterologist for more than 20 years. He deposed that acute fatty liver of pregnancy is a rare but serious case which may occur one in 20000 pregnancies. He deposed that in the past he had attended two cases of acute fatty liver of pregnancy, one in Devamatha Hospital, Koothattukulam and the other in Medical College Hospital, Kozhikkode and he managed the patients but in both cases the mother and the child died. DW5 deposed that the standard text books states that the mortality rate in case of acute fatty liver of pregnancy is very high and it may vary from 40% to 90%. He deposed that acute fatty liver of pregnancy is a high risk condition to operate and it carries a high rate of mortality and if operated her the outcome would be that she may not have survived. When a question was put to DW5 whether in his esteemed expert opinion did Bhagyasree died because of high mortality rate of acute fatty liver of pregnancy, he answered that he believed that she died of acute fatty liver of pregnancy. In Schiff’s Diseases of the Liver, 12th edition in chapter 17 in page No. 411 under the heading ‘Acute Liver Failure’ it is stated that Acute Liver Failure (ALF) is a potentially devastating clinical syndrome characterised by sudden and severe liver injury which develops in individuals without pre-existing liver disease. Mortality rates in ALF vary from 30% to 100%. In page No. 417 of the book it is stated that Acute fatty liver of pregnancy and the HELLP syndrome are believed to represent a spectrum of similar disease processes related to near-term pregnancy. Acute fatty liver of pregnancy generally presents during the third trimester, but may also develop postpartum. The incidence of AFLP ranges from one case per 7000 to 20000 deliveries with no ethnic or geographic variation. In Sherlock’s Disease of the Liver and Biliary System, 13th Edition in chapter 30 it is stated that Acute fatty liver of pregnancy is a rare but serious complication of pregnancy affecting 1 in 20000 pregnancies. It is a medical and obstetric emergency and can be fatal for both the mother and baby without early recognition and appropriate management. In the Text Book of Obstetrics by Sheela Balakrishnan, in Chapter 29, Liver Disease in Pregnancy, under the heading ‘Acute Fatty Liver of Pregnancy’ it is stated that acute fatty liver of pregnancy is a rare condition occurring in late pregnancy, which is often fatal for both the mother and the foetus. In ‘Obstetrics Medicine, Management of Medical Disorders in Pregnancy’, 6th Edition in Chapter 15, Liver Disease by Rebecca W. Van Dyke MD in Page No. 322 it is stated that Acute fatty liver of pregnancy, although uncommon remains the most feared liver disease of pregnancy because it has the potential for rapid progression to fulminant liver failure and can result in both maternal and foetal demise. With development of progressive liver failure, evidence of DIC may appear, with thrombocytopenia and worsening of clotting tests. In page 325 it is stated that due to the coagulopathy of liver failure, delivery of the foetus is often complicated by significant haemorrhage. From the above test books it is evident that maternal and foetal mortality rates in AFLP is very high. It also further reveals that with the development of progressive liver failure the clotting mechanism in the blood fails leading to significant haemorrhage from all sides. It is to be noted that in Ext. A2 death summary in page No. 2 it is stated that she started bleeding through abdominal drain continuously after 12 hours of surgery. Post operative day 2: Drain 2000 ml. Post Operative Day 3 Drain 3000 ml. Intercostal drainage done. 5 pint cryo, 5 pint whole blood and 5 pint platelets were transfused. It shows that because of AFLP Bhagyasree was continuously bleeding due to the failure of coagulation factors in her body leading to renal shut down, multi organ failure and death on 09.09.2009 due to acute cardiac failure. All these show that the death of Bhagyasree and her foetus was due to the complications arising from AFLP and the expert committee in Ext. A7 stated that acute fatty liver of pregnancy is an extremely rare but fatal condition which can develop at any time during pregnancy.
11. In the case of medical practitioners over and above the general principles applicable to determine negligence an additional perspective is added through a test known as Bolam Test. In the case of Bolam Vs. Friern Hospital Management Committee (1957) 1 WLR 582 (1957) 2 AII ER 118 it has been held that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible medical men skilled in that particular art. The Apex Court in “Jacob Mathew Vs. State of Punjab AIR 2005 SC 3180” has held that a professional may be held liable for negligence when (a) he was not possessed of requisite skill which he professed to have possessed, and/or (b) he did not exercise with reasonable competence in the given case, the skill, which he did possess. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. In “Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others (2009) 9 Supreme Court Cases 221” it was held that negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent and reasonable man would not do. It is not an absolute term but is a relative one, it is rather a comparative term. In determining whether negligence exists in a particular case all the attending and surrounding facts and circumstances have to be taken into account.
12. In the light of the dictums laid down in the above mentioned decisions and considering the evidence, facts and circumstances brought out in evidence it can be found that there was no negligence on the part of the opposite parties in diagnosing the disease of the deceased Bhagyasree promptly and giving proper treatment to her.
13. In Ext. A7 report it is stated by the enquiry committee that only a few hours lapse was noted on the part of the 1st opposite party hospital from where Bhagyasree was referred to the Medical Trust Hospital. In the complaint it is alleged by the complainants that even though doctors of the 1st opposite party hospital agreed to refer Bhagyasree to some other hospital they delayed the discharge and formalities including the preparation of reference letter and the formalities were completed only at 11.30 am on 31.08.2009. As already stated, in page 10 of Ext. C1 it is stated that Bhagyasree was referred to the Medical Trust Hospital, Ernakulam with Ext. A1 reference letter at 8.30 am on 31.08.2009 and page 269 of Ext. C2 shows that the doctors of the Medical Trust Hospital examined Bhagyasree at 10.30 am on the same day. Admittedly the distance between the 1st opposite party hospital and the Medical Trust Hospital, Ernakulam is only about 2-3 kms. DW5 deposed that the distance between the two hospitals is approximate 3 km. So it can be seen that even though in page 10 of Ext. C1 it is written as 8.30 am it took some time to carry out the formalities in the 1st opposite party hospital to refer Bhagyasree to Medical Trust Hospital, Ernakulam. The counsel for the opposite parties submitted that the observations in Ext. A7 that a few hours lapse was noted on the part of the 1st opposite party hospital from where Bhagyasree was referred to Medical Trust Hospital, Ernakulam is without basis since it has come out in evidence that at the time of referring Bhagyasree to Medical Trust Hospital, Ernakulam the doctors of the 1st opposite party hospital had not the time to arrive at a diagnosis of acute fatty liver of pregnancy and it was detected for the first time by Dr. Sunil Mathai in Medical Trust Hospital, Ernakulam for conducting certain tests. DW5 deposed that doctors of the 1st opposite party hospital could not arrive at a diagnosis of acute fatty liver of pregnancy since further tests directed were not conducted in that hospital. But it has come out in evidence that in the early morning of 31.08.2009 the doctors of the 1st opposite party hospital were aware of the serious condition of the deceased Bhagyasree. But even though the relatives of the deceased Bhagyasree requested the doctors of the 1st opposite party hospital to shift her to some other hospital/higher centre, it took some time on the part of the doctors of the 1st opposite party hospital to complete the formalities. It is true that when a hypothetical question was put to DW5 by the counsel for the opposite parties as to whether the patient would have survived if she had been sent to him 2 hours or 4 hours earlier he answered that the time when he saw the patient she had jaundice and acute fatty liver of pregnancy combined with bacterial infections, probably with both these situations with deranged liver function test and respiratory tract bacterial infection she would have been a high risk candidate even if referred 2 hours or 4 hours earlier. The outcome of the surgery would be expect to a high risk of mortality. Similarly when a question was put to DW5 by the counsel for the opposite parties as to ‘would the said patient have survived if operated at 10.30 am’, he answered that ‘acute fatty liver of pregnancy is a high risk condition to operate. It carries a high rate of maternal and foetal mortality. Operating her, the outcome would, she may not have survived’. But it is to be noted that DW5 had no definite case that even if the deceased Bhagyasree was brought to him 2 hours or 4 hours earlier she would not have survived. It is to be noted that Bhagyasree died only on 09.09.2009. So from the evidence, facts and circumstances it has to be considered that there was lapse of a few hours on the part of the 1st opposite party hospital in referring the deceased Bhagyasree to Medical Trust Hospital Ernakulam and if they had referred her earlier to the Medical Trust Hospital she might have survived. Considering all these facts we consider that there is deficiency in service on the part of the opposite parties and the opposite parties are liable to compensate the complainants, by paying at least the treatment expense and allied expenses incurred by the complainants. The total amount covered by Ext. A8 series and A9 series bills is about Rs. 3,27,250/-. We find it just and reasonable to direct the opposite parties to pay Rs. 5,00,000/- as compensation to the complainants. It has come out in evidence that opposite parties 2 & 3 and some other doctors who are not made as parties to the complaint had examined and treated the deceased Bhagyasree, so opposite parties 2 & 3 are liable. Since the opposite parties 2 & 3 and other doctors were working in the 1st opposite party hospital, the 1st opposite party hospital is vicariously liable for the acts of the opposite parties 2 & 3. So the opposite parties 1 to 3 are jointly and severally liable to pay compensation to the complainants.
In the result, the complaint is partly allowed. Opposite parties 1 to 3 are directed to pay Rs. 5,00,000/- (Rupees Five Lakhs only) with interest @ 9% per annum for the said amount from the date of complaint (01.02.2010) till realization as compensation together with costs of Rs. 10,000/- (Rupees Ten Thousand only) to the complainants. The 1st complainant is entitled to get Rs. 3,00,000/- with interest and Rs. 5,000/- out of the costs ordered and the complainants 2 & 3 are entitled to get Rs. 1,00,000/- each with interest and Rs. 5,000/- from the costs ordered.
T.S.P. MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
BEENA KUMARY.A : MEMBER
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C.C. No. 04/2010
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - P.R. Girish
PW2 - Dr. V. Girija
II COMPLAINANT’S EXHIBITS:
A1 - Copy of discharge letter dated 31.08.2009
A2 - Copy of death summary dated 11.09.2009
A3 - Copy of medical laboratory test reports ( 2 Nos.)
A4 - Copy of advocate notice
A5 - Reply notice dated 04.11.2009
A6 - Copy of petition submitted before the Hon’ble Minister for Health
A7 - Copy of enquiry report
A8 - Bills issued by opposite parties (9 Nos.)
A9 - Bills issued by Medical Trust Hospital
A10 - Malayala Manorama daily dated 10.09.2009
A11 - Kerala Kaumudi daily dated 10.09.2009
A12 - Desabhimani daily dated 10.09.2009
A13 - Madhyamam daily dated 10.09.2009
A14 - Kerala Kaumudi Metro dated 09.09.2009
A15 - Kerala Kaumudi Flash dated 09.09.2009
A16 - Copy of petition submitted before City Police Commissioner and
its acknowledgement
A17 - Copy of petition submitted before Sub Inspector Central station and
its acknowledgement
III OPPOSITE PARTY’S WITNESS:
DW1 - Dr. Ramani Philip
DW2 - Dr. Ramesh Bhat
DW3 - Dr. Sunny Mathai
DW4 - Dr. Madhav Chandran
DW5 - Dr. Sunil K. Mathai
IV OPPOSITE PARTY’S EXHIBITS:
NIL
V COURT EXHIBIT
C1 - Medical records relating to treatment of Bhagyasree at Sree
Sudheendra Medical Mission Hospital
C2 - Medical records relating to treatment of Bhagyasree at Medical Trust
Hospital, Ernakulam.
T.S.P. MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
BEENA KUMARY.A : MEMBER
jb
