Date of Filing:13.06.2005<br /> Date of Order:10.09.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 10TH DAY OF SEPTEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 704 OF 2005<br /> <br /> <br /> 1. L. Srinivasan,<br /> S/o Late Laxman,<br /> R/at No.20, 5th Cross, Ganesha Block,<br /> Nandini Layout,<br /> Bangalore-560 096.<br /> <br /> 2. Smt. Kiliyammal,<br /> W/o L. Srinivasan,<br /> R/at No.20, 5th Cross, Ganesha Block,<br /> Nandini Layout,<br /> Bangalore-560 096.<br /> <br /> 3. Smt. Kalaiarasi,<br /> W/o Arunagiri,<br /> R/at No.20, 5th Cross, Ganesha Block,<br /> Nandini Layout,<br /> Bangalore-560096. Complainants<br /> <br /> <br /> V/S<br /> <br /> 1. The Management,<br /> St. Theresa Hospital,<br /> Dr. Rajkumar Road,<br /> Rajajinagar, Near GKW Ltd.,<br /> Bangalore-560 010.<br /> <br /> 2. Dr. Manohar,<br /> St. Theresa Hospital,<br /> Dr. Rajkumar Road,<br /> Rajajinagar, Near GKW Ltd.,<br /> Bangalore-560 010.<br /> 3. Dr. Sheshadri,<br /> St. Theresa Hospital,<br /> Dr. Rajkumar Road,<br /> Rajajinagar, Near GKW Ltd.,<br /> Bangalore-560 010.<br /> <br /> 4. The Head Nurse,<br /> St. Theresa Hospital,<br /> Dr. Rajkumar Road,<br /> Rajajinagar, Near GKW Ltd.,<br /> Bangalore-560 010.<br /> <br /> 5. Dr. Sujatha,<br /> St. Theresa Hospital,<br /> Dr. Rajkumar Road,<br /> Rajajinagar, Near GKW Ltd.,<br /> Bangalore-560 010. . Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that, opposite party No.1 is a well-known hospital in the city. Opposite party No.1 is a charitable institution founded to render services to the public at large. Opposite party No.2 and 3 are the Doctors in the opposite party No.1 Hospital. Opposite party No.4 is Head Nurse. Complainant No.3 is married to Sri. Aruna Giri and had conceived out of the said wedlock. Complainant No.3 had taken treatment from Dr. Lingamma M.B.B.S., D.G.O., M.D. She further consulted Doctors at opposite party hospital. She got admitted on 30/11/2004. The condition of the complainant No.3 was normal and stable at the time of admission to the hospital. The complainants have paid Rs.1,000/- towards admission fees. The Doctors told that she may deliver the baby in the early hours of next day. At about 11-00 PM complainant No.3 experienced labour pains. At about 12-30 AM the pain deteriorated and cannot be tolerated anymore. Same was informed to duty Doctors and staff that resulted in no response. Complainant No.3 was made to suffer pain due to the negligent and callous attitude of the opposite parties. Complainant No.3 screamed out loudly at 3-00 AM due to severe labour pain and the process of delivery did start. The Doctors and Nurses came to the ward by that time the complainant No.3 delivered the baby boy at 3-15 AM on 1/12/2004 in the ward itself. Then she was taken to labour operation theatre. When was conscious she was taken to OT and there was no heavy bleeding. Complainants are not aware of the things which went on inside the OT. The Doctors informed that there is heavy bleeding. The condition of patient is deteriorating. The complainants advised to sign consent form to remove the uterus. It was advised that the patient would not survive unless the uterus is removed. The complainant No.1 along with husband of the patient signed the consent form. The complainants were to incur lot of unwanted expenditure. Complainants were made to suffer lot due to unforeseen fate of their daughter. The condition of the patient was not properly explained. Patient was kept in ICU for about 24 hours with ventilators. Complainants were informed to shift the patient to some other hospital having advanced technology to treat patient. Complainants were forced to take their daughter to Manipal Hospital. Complainant No.1 paid sum of Rs.3,000/- under protest to get the baby discharged on 2/12/2004. Opposite parties had given reference letter addressed to Manipal Hospital. After shifting the patient to Manipal Hospital the complainants were to spend Rs.3,35,000/- towards medical expenses. The negligent of the opposite parties resulted in kidney failure. It is the case of the complainants that the patient was made to suffer the grave consequences due to the negligence attributable to the opposite parties. Complainants have spent Rs.55,000/- towards medical expenses in the opposite party Hospital. Opposite parties are liable to reimburse the amount spent by the complainants apart from compensating the complainants for mental agony, harassment and inconveniences. Complainants have sought total amount of Rs.18,45,000/- from the opposite parties.<br /> 2. Notice was issued to opposite parties. Opposite parties appeared through counsel and submitted defense version stating that the complaint is not maintainable both in law and on facts. Complaint is based on vague presumptions, malafide intentions. Opposite party is a Hospital run by a Charitable Institution of Christian Missionaries established about 75 years ago. Complainant No.3 after admission seen by Dr. Sujatha at around 8-30 PM and complainant be under observation by Duty Doctor and Nurses in the ward and the patient was examined again around 11-30 PM. The allegation that the complainant No.3 complained of labour pain, nobody attended to her is not correct. The complainant delivered the baby boy at around 3-15 AM on 1/12/2004, she was shifted to the labour ward. It was noticed that she was having moderate amount of blood loss. Duty doctor got in touch with Dr. Sujatha. It was diagonised the cause for bleeding having Flabby and Atomic Uterus. Every effort was made to control the bleeding. Dr. Sheshadri, Physician, Dr. Manohar, General Surgeon, Dr.Ravishankar, Anesthetists, reached around 5-30 AM. Attempts put in by all of them could not control the bleeding after in-depth discussion, they decided that it is advisable to do sub-total emergency hysterectomy to save the life of the complainant No.3. Father, mother and husband of the patient were apprised developments. They requested the Doctors to save the life of the patient. Consent has been given by them after delay appraised of the consequences. After hysterectomy was done condition improved, patient was kept in ICU. During this time it was noticed that she was going in for Acute Renal failure. Doctors discussed the condition that Nephrologist who advised that patient be shifted to Manipal Hospital for dialysis. Opposite party Hospital has taken utmost care to the best of ability and there is no negligence of any nature on the part of the Doctors. It is unfair on the part of the complainants to allege that no care has been taken. The opposite parties in para-14 have pleaded as follows:- <br /> “It is relevant to point out here that the claim of the complainants arose only because of the complainant No.3 delivered in the Ward itself and not in the labour room is not correct and is an imagination. It is relevant to point out here that Delivery could take place and Deliveries takes place even in open fields and no complications would arise and this complication could happen in 2% of the population who get admitted for Delivery, which cannot be assessed or envisaged during the Ante-natal check up or during the labour or actual Delivery. The complications could not have been prevented even if Delivery had taken place in the labour room. This condition which is called ‘PPH’ i.e., Post Partum Hemorrhage, arise out of innumerable causes out of which one of them could be Atonic Uterus, (where the Uterus does not contract after Delivery) and as such, the complications cannot be attributed to any negligence on the part of the opposite party Hospital or its Doctor’s or its staff and there is no human error. Further, there is no human error involved in this case and the Doctors have done their best.” <br /> <br /> 3. Complainants No.1 to 3 have filed affidavit evidence. Opposite party No.2 Dr. Manohar has filed affidavit evidence on behalf of the Hospital. The opposite party Hospital has produced Obstetric Case Sheet, Out Patient Clinic Record, Doctors Note, Labour record, Doctors Orders, Copy of Nurses Daily report, Intake and output record. Arguments of the learned Advocate for the parties are heard. <br /> 4. The point for consideration is:- <br /> Whether the complainants have proved medical negligence on the part of the opposite parties?<br /> <br /> <br /> REASONS<br /> 5. This is a case claiming compensation for medical negligence. The important issue to be decided in this case is whether the opposite party Hospital was negligent in treating the complainant No.3. The Doctors enjoy a special status in our society. Doctors’ profession is said to be one of the noble profession. Indian Doctors are held in high esteem all over the world. There is a mutual trust and confidence between Doctors and patients. Doctors’ profession is not of trade or business, it is a service to the humanity at large. There is an element of sacrifice and devotion in the profession. Before holding Doctors responsible for their omission and commission, the complainants have to establish the allegations and comments made against the doctors. Mere pleadings or some allegations made in the complaint do not establish the medical negligence alleged against the doctors. The complainants who have come to the Fora seeking compensation have to establish the allegations made in the complaint by adducing expert evidence. In this case no expert evidence is adduced by the complainants to establish the medical negligence committed by the opposite party Hospital. Complainants admittedly are laymen, they do not know the medical aspects. They are not experts in medical field or the method of treatment or drugs etc.,. Whatever the allegations made in the complaint are only in the nature of laymen’s assessment or perception or presumption. The case of medical negligence cannot be decided on assumptions and presumptions. There must be expert opinion or evidence to come to the conclusion that in this case the Doctors acted in a very negligent manner in giving treatment to the complainant No.3. The courts are indeed slow in attributing negligence on the part of the Doctors. The professional skill differs from Doctor to Doctor. There may be more than one opinion or the course of treatment to be followed in a given case or to a particular patient. If the Doctors acted in a manner which is acceptable to the medical profession and due care and caution was taken as required to a particular patient. In that situation it would be very difficult to hold the Doctors the guilty of negligence or carelessness. The opposite party Hospital in this case had not suppressed any facts or matter. It has come with all the facts clear. The treatment given to the complainant No.3 has been recorded. The entire Case Sheet, Doctors Note, Doctors Orders, Daily Report and Intake and Output records have been placed before the Forum. The Case Sheet had been recorded day by day and all the particulars of treatment and drugs given were recorded. As per the protocol of Hospital all the basic treatment was given. Patient started bleeding from the vagina and BP started falling. Gynecologist on duty carried out the treatment. Uterus was not contradicting. Patient used to loose lot of blood. Gynecologist did all of her best to save the Uterus. The Doctors after discussion and serious thinking come to the conclusion for doing sub-total hysterectomy to save the patient. The Hospital has taken grave high risk consent of father and husband of the patient on 01/12/2004 at 8-50 AM. The consent reads as under:-<br /> <br /> “We hereby give our consent to take Mrs. Kalaiarasi W/o Arungiri diagonised to have uncontrolled autonic PPP for hysterectomy. All risks involved during the operative procedure has been explained to us in our language. Doctors and Hospital staff are not responsible for any untoward incident during and after the operation procedure. RISK CONSEQUENSES HAVE BEEN EXPLAINED”. <br /> <br /> Sd/ Sd/<br /> Father Husband<br /> 6. The Hospital took the decision, the best option was to go in for sub-total emergency hysterectomy. As any delay or avoidance of the same would result in further pleading which could even be fatal to the patient. The patient is kept in ICU for physical management and it was noticed that she was going in for acute renal failure. The Doctors after discussion and looking into the condition of the patient consulted Nephrologists and who advised that patient be shifted to Manipal Hospital for dialysis and the matter was informed to the parents and accordingly, the patient was shifted to Manipal Hospital. The learned Advocate for the complainants’ stressed upon the fact that the patient delivered the child in the ward itself and she was not taken to labour room for delivery. Therefore, there was negligence on the part of the opposite party Hospital. This is the argument canvassed by the learned Advocate for the complainant. To this argument the opposite parties explained in para-8(b) (ii) as under:-<br /> When complainant No.3 complained of pain which was normal in the circumstances, the Duty Doctor along with the staff nurse examined complainant No.3 and found that the Cervix was fully dilated and complainant No.3 was under the verge of Delivery. As, (patients off of a sudden go into severe labour pain and Deliver), (i.e., precipitation labour) the Duty Doctor having found that there was no time to shift her to the labour room, conducted the delivery in the ward itself taking all precautions and later on, shifted complainant No.3 to the labour room for the management of the third stage of labour. <br /> <br /> <br /> 7. It is the common knowledge that some time delivery do takes place in the house, field or while traveling in the bus or train it all depends upon the condition of lady. Merely because delivery had taken place in the ward and not in the labour room only on that aspect it is very difficult to hold negligence or carelessness on the part of the opposite party Hospital. The professional services are discharged by the Doctors inconformity with established medical procedure and practice, in that case no negligence can be attributed. Admittedly in this case the complainants have not adduced any expert evidence to show that the line of treatment adopted by the opposite party Hospital was not in conformity with medical practice or procedure. The complainants have to prove negligence of Doctors by producing convincing evidence with supportive medical text. It cannot be expected that every Doctor is gifted with extraordinary skills or they can perform miracles. What is expected of a Doctor is whether the procedure adopted by the Doctor is acceptable to medical profession. In this case the Doctors have taken decision to remove the uterus of the patient to save her life, before the operation and they had also taken consent of father and husband. So, under these circumstances, there is no legal and acceptable evidence to prove negligence or carelessness on the part of the opposite party Hospital. <br /> <br /> 8. Admittedly, opposite party Hospital is a well-known Hospital in Bangalore City and it is a Charitable Institution. The complainants themselves have stated that opposite party Hospital is a Charitable Institution and it is a well-known Hospital in the City and the opposite party No.1 collects nominal charges for the services rendered to the patients as a matter of public service. During the course of argument we suggested the learned Advocate for the opposite party whether there is any chance or possibility of out of court settlement by dialogue and discussion, the learned Advocate for the opposite party submitted that the management as a matter of good gesture may come forward to pay Rs.50,000/- to the complainants. The learned Advocate for the complainants did not accept the said proposal. On the facts and circumstances of the case, we have come to the conclusion that the complainants have failed to establish medical negligence on the part of the opposite party Hospital. However, to meet the ends of social justice we feel it would not be improper to direct the opposite party Hospital to pay Rs.50,000/- to the complainants as a sign of good gesture. This may to some extent help the complainants to mitigate their suffering. <br /> 9. Taking into consideration of all the facts and circumstances of the case and the records and documents and arguments of the learned Advocate for the parties, we proceed to pass the following:- <br /> ORDER<br /> <br /> 10. The complaint is dismissed. However, the opposite parties are jointly and severely directed to pay Rs.50,000/- to the complainants within 30 days from the date of this order. The parties to bear their own cost. <br /> 11. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 12. Pronounced in the Open Forum on this 10TH DAY OF SEPTEMBER 2008. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> Rhr.<br />