IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA.
Dated this the 28th day of May, 2012.
Present:- Smt. C. Lathika Bhai (Member)
Sri. N. Premkumar (Member)
K.P. Padmasree (Member)
C.C.No.152/2010 (Filed on 09.11.2010)
Between:
1. O. Ambika,
W/o. Vinayan, K.N.,
Kanyakonil House,
Changamkari.P.O.,
Quilon Dist.
2. K.N. Vinayan, -do. –do.
(By Adv. C.R. Suresh Kumar) ….. Complainants
And:
1. The Managing Director,
Holy Cross Hospital,
Adoor.P.O.,
Pathanamthitta – 691 523.
2. Dr. Sheeba Baby, M.D. D.G.O.,
Reg.No.23319, Gynaecologist,
-do. –do.
(By Adv. P.K. Mathew & Thomas. T. Mathew
For opp. Parties 1 & 2)
3. The Managing Director,
Life Line Hospital,
P.B.No.46, 14th Mile, Adoor,
Pathanamthitta.
(By Adv. P.K. Mathew & V.O. Robinson) ….. Opposite parties
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The case of the complainant in brief is as follows: The complainants are wife and husband. The 1st complainant at her early 30’s got conceived for the first time and was consulting a gynecologist at Lourd Matha Hospital, Pacha, Edathua. She had antenatal check ups there till 10th January 2010. Thereafter, the petitioner was under the treatment and observation of the 2nd opposite party since the 1st visit onwards.
3. During the period of pregnancy neither the child nor the pregnant mother had developed any uneventuality or any other complaints other than mild urinary tract infection which is common during pregnancy. The growth of the uterine, child and the development were periodically recorded through ultra sound scanning and mother’s health conditions were assured through lab investigation and other routine check ups. The entire period of pregnancy was uneventful except that the umbilical cord of the fetus was found around neck in an ultra sound scanning on 19.05.2010.
4. On 26.05.2010 the complainant was admitted at the direction of the 2nd opposite party, when the pregnancy was in full term. On that day at around 10.30 p.m the 2nd opposite party attended the petitioner and has administered some drugs. The complainant had developed complaints and had reported the matter repeatedly to the nurses on duty and they replied that they have contacted the doctor and had instructions from her that the patient have to wait or can walk around in the ward during night. Overnight the petitioner was suffering from pain and discomfort. But the doctor concerned or any other doctor had attended the patient. On 27.05.2010 at around 7 a.m due to the compulsion of relatives of the patient she was transferred to labour room. After 9.30 a.m 2nd opposite party reached labour room. Soon after another gynecologist Dr. Sarada also was called and all the team in the labour room went into a serious discussion and total confusion was felt in the attitude and the behaviour of the labour room staff. At about 10.30 a.m the 2nd opposite party called the husnand of the complainant and informed that the child has passed macanium hence an emergency surgery is required. She had demanded a willingness certificate from the husband. After some time a person came out of operation theatre and informed that the 1st petitioner’s condition is stable but the child is not breathing well. He also suggested that the child is required to be transferred to Life Line Hospital. The child was transferred by ambulance accompanied by Dr. Manju and a nurse and the 2nd petitioner and her sister. Dr. Manju was giving artificial resuscitation to the child in the ambulance starting towards till reaching hospital. When the child was brought to the 3rd opposite party hospital Dr. Sajeed Hasheem informed that the child is put on ventilation and nothing can be said at this worst stage . After one hour bystanders were informed that the child is dead. Since from 06.02.2010 onwards, pregnant lady had regular antenatal check up in the hospital of the 1st opposite party till delivery. Scanning reports are also normal. Even after admission at the hospital i.e. prior day of caesarian fetal heart rate and maternal vital sign were normal. The reports and the discharge summary is a cooked up story that all of a sudden patient collapsed at 10.15 a.m and went into hypertension. Summary also states that the FHR was irregular. A pregnant lady was left in distress for more than 14 hours and the tolerance of a pregnant lady had not been considered when she was left unattended by the doctor which brings serious deficiency in service. Discharge summary also shows that there was a ‘J’ shaped bend in the body of the uterus as the same was not reported in any of the scanning reports. A legal notice was served and the same was replied by the 1st and 2nd opposite party by denying all the allegations. Hence this complaint for the realization of `10,00,000 as compensation along with `10,000 towards cost of this proceedings from opposite parties.
5. Opposite parties entered appearance and 1st and 2nd opposite parties filed common version and 3rd opposite party filed a separate version.
6. 1st and 2nd opposite party admitted that the patient came to 1st opposite party hospital and consulted the 2nd opposite party on 06.02.2010 onwards. Her antenatal period was uneventful. On 26.05.2010 the 1st complainant was admitted in the hospital for safe confinement, but she didn’t have labour pain. The second opposite party informed the complainants and their relative about the need for cervical ripening with zitotec per vaginally. After getting written informed consent cervical ripening was done at 11 p.m on 26.05.2010 with 25 microgram misoprostol per vaginally as part of the standard procedure for inducing labour. Foetal heart rate and maternal vital signs were checked and closely monitored throughout. The foetal heart rate and other vital parameters remained normal. In response to cervical ripening the patient developed mild contractions. On 27.05.2010 at 7.30 a.m syntocinon drip started and 9.30 a.m onwards the patient was getting regular uterine contractions and foetal heart rate was normal. At 9.45 a.m slight variation in foetal heart rate was noted and hence syntocinon drip was stopped and started intravenous fluids 5% dextrose and ringer lactate. The patient was put on left lateral position and oxygen inhalation given. In response to timely measures foetal heart rate picked up. The 2nd opposite party conducted per vaginal examination and cervix was found favourable and labour was progressing normally. Since labour was satisfactorily progressing following labour induction the 2nd opposite party decided to proceed by closely monitoring foetal heart rate and maternal vital parameters. At 10.15 a.m the patient suddenly collapsed and went into hypotension and foetal heart rate becoming irregular. Immediately the patient was taken for emergency caesarean operation. The relatives of the patient was informed about the situation caused by the sudden and unexpected collapse of the patient and foetal heart rate variation showing signs of impending foetal distress. Fully conversant with the need for emergency, the complainants gave written informed consent for the same. 2nd opposite party conducted emergency caesarean with due diligence and care under general anesthesia with the help of Gynecologist Dr. Sarada. At 10.40 a.m she delivered a severally asphyxiated male baby weighing 2.6 kg. and the baby was immediately handed over to the paediatricians Dr. Manju. There was ‘J’ shaped bend in the body of the uterus anteriorily and extending to the lower uterine segment on the left side. The post operative period was uneventful and sutures were removed on the 7th post operative day and discharged on the same day. The patient developed spontaneous rupture of uterus in the course of a satisfactorily progressing labour and by the timely management of the second opposite party and other doctors attached to the hospital life of the patient could be saved and conserved the uterus. The 2nd opposite party had exercised due diligence and care in the management of delivery of the patient and she had acted as per the accepted medical practice. There was no negligence or deficiency in service on the part of the opposite parties at any point of time in the management of the patient as well as the baby and hence the opposite parties are not liable to compensate the complainant.
7. The opposite parties tried all possible measures to save the baby and death was due to asphyxia caused due to unexpected and spontaneous rupture of uterus. The death of the baby was not caused due to any negligence or carelessness on the part of the opposite parties. Hence the complainants are not entitled to get any amount as compensation on account of death of the baby. The allegation that patient was unattended by doctors and duty nurse assuring that complaints are normal, is utter false. During the night on 26.05.2010 the patient was kept under observation after cervical ripening procedure. The allegation that gross negligence, delay and carelessness has caused deficiency in service which resulted in death of new born is highly ill motivated and hence denied. Hence the opposite parties pays for the dismissal of the complaint with their cost.
8. 3rd opposite party filed separate version with following contentions: The complainants are not consumers to this opposite party and therefore the issue herein is not a consumer dispute as far as this opposite party is concerned. 3rd opposite party received the baby in NICU at 11.15 a.m, i.e. 35 minutes after delivery in cardio respiratory arrest with de-compensated shock, severe cyanosis and occasional heart sound. 3rd opposite party tried the resuscitative measures again and the baby was put on ventilator. Even after intensive resuscitative measures baby expired after 2 hours. Thus baby was declared dead at 1.45 p.m. 3rd opposite party made all possible efforts and attempts to save the baby. Body released to the relatives under their request. At that time, they neither made any complaint against the hospital nor preferred any postmortem. Therefore the allegation against 3rd opposite party is baseless and 3rd opposite party has not committed any deficiency in service. With the above contention, 3rd opposite party also prays for the dismissal of the complaint with their cost.
9. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
10. The evidence of this complaint consists of the oral testimony of PW1, PW2, PW3 and DW1, DW2 and Ext.A1 to A10 and B1 and B2. After closure of evidence, both sides filed argument note and they were heard.
11. The Point:- The allegation of the complainants is that the 1st complainant conceived for the first time in her early 30’s undergone treatment for her delivery at the 1st opposite party hospital from the 2nd opposite party who is a Gynecologist who is expected to maintain reasonable level of knowledge and service to save the life of two persons i.e. the mother and child, who failed to act accordingly to the knowledge accrued from the field as well as from their responsibilities. But due to their negligence of the opposite parties baby’s life could not saved.
12. In order to prove the case of the complainant, 1st complainant filed a proof affidavit in lieu of her chief examination along with 10 documents. On the basis of the proof affidavit 1st complainant was examined as PW1 and out of the 10 documents. 9 documents were marked as Ext.A1 to A9 through PW1. Two witnesses were also examined as PW2 and PW3 and Ext.A10 is marked through PW3 who is a doctor. Ext.A1 is the discharge summary of the complainant issued from Holy Cross Hospital. Ext.A2 is the treatment summary of the deceased baby issued from department of Neonatology & Paediatrics of Life Line Hospital. Ext.A3 is the Death Certificate issued from Pallickal Grama Panchayat in respect of the deceased baby. Ext.A4 is the Ultra Sound Scan Report of the complainant dated 10.05.2010. Ext.A5 is the Ultra Sound Scan Report of the complainant dated 18.03.2010. Ext.A6 is the discharge record issued from Holy Cross Hospital in respect of the treatment of the complainant. Ext.A7 is the copy of legal notice issued by the complainant in the name of opposite parties. Ext.A8 is reply to Ext.A7 issued by 1st opposite party dated 16.08.2010. Ext.A9 is the reply notice send by 2nd opposite party. Ext.A10 is the KFOG Obstetric Management Protocols published by the Kerala Federation of Obstetrics and Gynecology.
13. On the other hand, the contention of the opposite parties is that the complainant was admitted on 26.05.2010 for safe confinement and after getting written informed consent cervical ripening was done at 11 p.m. on 26.05.2010 as part of the standard procedure for inducing labour. Thereafter on 27.05.2010 at 7.30 a.m, Syntocinon drip started and 9.30 a.m onwards the patient was getting regular uterine contractions and the foetal heart rate was normal. At 9.45 a.m slight variation in foetal heart rate was noted and hence the drip was stopped and started in the intravenous fluids 5% dextrose and ringer lactate. Since labour was satisfactorily progressing following labour induction and the complainant was under close monitoring. But at 10.15 a.m, the complainant was suddenly collapsed and went into hypertension and foetal heart variation showed signs of impending foetal distress. So after obtaining informed consent for caesarean, the 2nd opposite party conducted emergency caesarean with due diligence and care under general anesthesia with the help of other doctors. Intra operatively the baby was found on partially out of uterine cavity and at 10.40 a.m the complainant delivered a severally asphyxiated male baby and the baby was immediately handed over to the paediatrician. There was a ‘J’ shaped bend in the body of the uterus and uterine rent sutured. Post operative period was uneventful and the complainant was discharged on the 7th day. The complainant developed spontaneous rupture of uterus in the counse of a satisfactorily progressing labour and by the timely management of the 2nd opposite party and other doctors attached to the 1st opposite party’s hospital the life of the patient was saved and conserved the uterus. Spontaneous uterine rupture is a medically accepted known complication. The 2nd opposite party exercised due diligence and care in the management of the delivery of the complainant as well as the baby and the 2nd opposite party is an employ of the 1st opposite party and even if any negligence is found against 2nd opposite party the 1st opposite party vicariously liable.
14. In order to prove the case of the opposite parties, 2nd opposite party filed a proof affidavit in lieu of her chief examination and produced the treatment records in respect of the complainant’s treatment.
15. On the basis of the proof affidavit, 2nd opposite party was examined as DW1 and the documents produced were marked as Exts.B1 and B2. Ext.B1 is the treatment records in respect of the treatment of the complainant and Ext.B2 is the treatment record in respect of the deceased baby of the complainant. Apart from 2nd opposite party one doctor was also examined as DW2 for the opposite parties. Opposite parties 1 and 3 has not adduced any separate oral or documentary evidence other than the evidence referred above.
16. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the complainant was admitted at the 1st opposite party hospital under the treatment of the 2nd opposite party for the complainant’s delivery and on 27.05.2010 the complainant was subjected for caesarean and the complainant delivered a male baby and due to the complications found in the new born baby, the baby was taken to 3rd opposite party hospital and the said baby died at the 3rd opposite party hospital. The allegation of the complainant is that she was not given proper care and attention by the 2nd opposite party and consequent to that some complications developed including rupture in uterus to the complainant resulted in an emergency caesarean and due to the negligence of the opposite parties the child was died and the complainant sustained mental agony and other discomforts.
17. According to the complainant, all the said problems were due to the negligent treatment of the 2nd opposite party and due to the unattendance of the complainant by the 2nd opposite at relevant time. If the 2nd opposite party had attended the complainant personally during the night of 26.05.2010, no such problems would have been occurred. But on a perusal of the medical records and the oral evidence of the expert witnesses based on the medical records, we find no negligence in the treatment and procedures adopted by the 2nd opposite party in this case. But the allegation of unattendance of the 2nd opposite party at the relevant time still remains unanswered. On a perusal of Ext.B1 patient record i.e. sheet No.16, shows that the 2nd opposite party had not visited or examined the complainant in between 11 p.m on 26.05.2010 and 9.30 a.m on 27.05.2010 except a visit at 6.15 a.m on 27.05.2010. These facts are also supported by the nurses record attached in Ext.B1.
18. The complainants’ main allegation is that she was not properly attended by 2nd opposite party. This allegation read together with the entries recorded in Ext.B1, about the visit and presence of 2nd opposite party, for observing the conditions of the complainant/patient clearly proves that the 2nd opposite party had committed a gross negligence in attending and observing the developments in the patient at relevant time. If the patient was properly and directly attended by the 2nd opposite party and observed the developments timely, the caesarean might not have been delayed. If the caesarean was done much earlier the complications occurred in this case might not have been occurred. During the cross examination of 2nd opposite party/DW1, she herself had answered to question put by the counsel for the complainant that there was chances for saving the child if the surgery was done 3 hours earlier. The relevant portion is as follows:- “Cu kÀPdn 3 aWn-¡q-dn\p ap³]v \S-¯n-bn-cp-¶p-sh-¦n Ip«n c£-s]-Sp-am-bn-cp¶p F¶p ]d-bp¶p? km²y-X- Dm-bn-cp-¶p, F¶m t\cs¯ kÀPdn sN¿m-\pÅ indications Dm-bn-cp¶nÔ. From the above answer of the 2nd opposite party, it is clear that all the complications are occurred due to the delay in conducting the surgery. The explanation of the 2nd opposite party that there was no indications so as to conduct an early surgery is not supported with any evidence. In the circumstances, we find that the 2nd opposite party had committed gross negligence in attending the complainant properly and timely which caused the delay in surgery. No doubt, the delayed surgery is the root cause of the further complications including the ‘J’ shaped rent in the body of uterus and the death of the baby. The 2nd opposite party ought to have given much care and attendance particularly when the complainant was there for her 1st delivery. Therefore, we find that 2nd opposite party has committed a clear deficiency in service and she is liable to the complainant. However, the 2nd opposite party is an employ of the 1st opposite party, the 1st opposite party is vicariously liable and responsible to the complainant for the negligence of the 2nd opposite party.
19. Then comes to the question of the deficiency in service alleged to have been committed by the 3rd opposite party. In this case, the complainants’ arrayed the 3rd opposite party as a party to this case alleging medical negligence against them. But there is no specific reading or there is no evidence adduced against them. So we find that the arrayal of the 3rd opposite party in the party array is an unnecessary and is a misjoinder. The unnecessary impleading of the 3rd opposite party by the complainants put the 3rd opposite party to unnecessary harassment and the complainants’ cannot be justified for the same. Further the complainant also failed to adduce proper evidence to substantiate the quantum of the claim prayed for in the complaint.
20. In the result, the complaint is allowed as follows:-
(1) The 1st opposite party is directed to pay an amount of `1,00,000 (Rupees One Lakh only) for the mental agony and sufferings sustained by the complainant and ` 1,00,000 (Rupees One Lakh only) for the mental agony and sufferings on account of the death of the child along with cost of ` 5,000 (Rupees Five Thousand only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amounts with 10% interest from today till the realization of the whole amount.
(2) The complainants are directed to pay an amount of ` 5,000 (Rupees Five Thousand only) as cost to the 3rd opposite party for the unnecessary impleadment within 30 days from the date of receipt of this order, failing which the 3rd opposite party is allowed to realise the said amount from the complainants with 10% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 28th day of May, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : O. Ambika
PW2 : Geetha
PW3 : Dr. Pradeep V. Koshy
Exhibits marked on the side of the complainant:
A1 : Discharge summary of the complainant issued by Holy
Cross Hospital, Adoor.
A2 : Treatment summary of the deceased baby issued by
department of Neonatology & Paediatrics of Life Line
Hospital, Adoor.
A3 : Death Certificate dated 02.11.2010 issued from Pallickal
Grama Panchayat in respect of the deceased baby.
A4 : Ultra Sound Scan Report of the complainant dated
10.05.2010.
A5 : Ultra Sound Scan Report of the complainant dated
18.03.2010.
A6 : Discharge record issued by Holy Cross Hospital, Adoor in
respect of the treatment of the complainant.
A7 : Copy of legal notice dated 05.08.2010 issued by the
complainant to the opposite parties.
A8 : Reply notice to Ext.A7 legal notice issued by 1st opposite
party dated 16.08.2010.
A9 : Reply notice to Ext.A7 legal notice issued by 2nd opposite
party.
A10 : KFOG Obstetric Management Protocols published by the
Kerala Federation of Obstetrics and Gynecology.
Witness examined on the side of the opposite parties:
DW1 : Dr. Sheeba Baby
DW2 : Dr. T.V. Saravana Kumar
Exhibits marked on the side of the opposite parties:
B1 : Treatment records in respect of the treatment of the
complainant.
B2 : Treatment record in respect of the deceased baby of the
complainant.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) O. Ambika, Kanyakonil House,Changamkari.P.O.,
Quilon Dist.
(2)The Managing Director, Holy Cross Hospital,
Adoor.P.O., Pathanamthitta – 691 523.
(3)Dr. Sheeba Baby, M.D. D.G.O.,
Reg.No.23319, Gynaecologist, -do. –do.
(4) The Managing Director, Life Line Hospital,
P.B.No.46, 14th Mile, Adoor, Pathanamthitta.
(5) The Stock File.
