KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NOS:122/08, 172/08 & 215/09
COMMON JUDGMENT DATED:07-09-2010
PRESENT
SMT. VALSALA SARANGADHARAN : MEMBER
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
APPEAL NO:122/08
Dr.Stepheena,
Fathima Matha Mission Hospital, : APPELLANT
Kalpetta Post.
(By Adv:Sri.M.C.Suresh)
Vs.
1. M.P.Vinod.
Mundappillil House,
Nambyarkunnu Post,
Cheeral Amsom Desom.
2. Shyla, W/o Vinod,
Mundappillil House, : RESPONDENTS
Nambyarkunnu post,
Cheeral Amsom Desom.
3. The Administrator/Manager,
Fathima Matha Mission Hospital,
Kalpetta Post.
APPEAL NO:172/08
1. M.P.Vinod.
Mundappillil House,
Nambyarkunnu Post,
Cheeral Amsom Desom.
: APPELLANTS
2. Shyla, W/o Vinod,
Mundappillil House,
Nambyarkunnu post,
Cheeral Amsom Desom.
(By Adv:Sri.Abdulla Sait)
1. The Administrator/Manager,
Fathima Matha Mission Hospital,
Kalpetta Post.
(R1 by Adv:Sri.S.Reghukumar)
: RESPONDENTS
2. Dr.Stepheena,
Fathima Matha Mission Hospital,
Kalpetta Post.
APPEAL NO:215/09
The Administrator/Manager,
Fathima Matha Mission Hospital, : APPELLANT
Kalpetta Post.
(By Adv:Sri.Ranjith Narayanan)
Vs.
1. M.P.Vinod.
Mundappillil House,
Nambyarkunnu Post,
Cheeral Amsom Desom.
2. Shyla, W/o Vinod,
Mundappillil House,
Nambyarkunnu post,
Cheeral Amsom Desom.
(By Adv for R1 & R2:Sri.Abdulla Sait) : RESPONDENTS
3. Dr.Stepheena,
Fathima Matha Mission Hospital,
Kalpetta Post.
COMMON JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above 3 appeals are preferred from the order dated:30th January 2008 passed by CDRF, Wyanadu, Kalpetta in OP.52/03. The complaint therein was filed against the opposite parties 1 and 2 alleging deficiency of service due to the failure of the opposite parties to do sterilization procedure (Tubal Legation) during the 2nd delivery (LSCS) of the 2nd complainant, Shyla. The 1st complainant is the husband of the 2nd complainant. The opposite parties entered appearance and filed written version denying the alleged deficiency of service. They contended that no sterilisation operation (Tubal Legation) was requested by the complainants and no tubal legation was done during the 2nd delivery of the 2nd complainant. They also contended that there was no negligence on the part of the opposite parties in treating the 2nd complainant for her 2nd delivery on 1/4/2001. Thus the opposite parties prayed for dismissal of the complaint.
2. Before the Forum below the 1st complainant was examined as PW1 and the 2nd complainant as PW2. 2nd opposite party, Dr.Stepheena was examined as OPW1. Exts.A1, A1(a), A2 and A3 series were marked on the side of the complainants. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:30th January 2008 finding deficiency of service on the part of the opposite parties 1 and 2 and thereby the opposite parties are directed to give the complainants Rs.10,000/- towards medical expenses and a further sum of Rs.10,000/- as compensation with cost of Rs.2000/-. Aggrieved by the said order the 1st opposite party, the Administrator/Manager, Fathima Matha Mission Hospital, Kalpetta has preferred the appeal 215/09. The 2nd opposite party Dr.Stepheena, Fathima Matha Mission Hospital, Kalpetta preferred the Appeal No.122/08. The complainants are not satisfied with the quantum of compensation awarded by the Forum below. Hence the complainants preferred A.172/08 for getting the compensation enhanced.
3. We heard the learned counsel for the appellants in these 3 appeals. They submitted their arguments based on the grounds urged in the respective memorandum of the appeals. The learned counsel for the appellant/2nd opposite party relied on the admissions made by the complainants in their oral versions and argued for the position that there was no request or consent given by the complainants for doing sterilization procedure (tubal legation) during the 2nd delivery (LSCS) of the 2nd complainant Shyla and that the complainants preferred the complaint in OP.52/03 based on a mistaken entry in Ext.A1 discharge slip. He also relied on the treatment records produced from Fathima Matha Mission Hospital, Kalpetta (1st opposite party hospital). With respect to the treatment of the 2nd complainant in connection with her 3 delivery (LSCS) at the 1st opposite party hospital and argued for the position that the sterilization procedure (tubal legation) was done only during the 3rd Caesarian operation, after getting the written consent of the complainants. The learned counsel for the appellant/1st opposite party supported the arguments made by the counsel for the appellant/2nd opposite party. On the other hand, the learned counsel for the appellants/complainants in A.172/08 supported the findings of the Forum below regarding negligence and deficiency of service on the part of the opposite parties and argued for the position that the quantum of compensation awarded by the Forum below is quite inadequate. It is submitted that the complainants 1 and 2 suffered financial loss, mental agony and inconvenience on account of the negligence and deficiency of service on the part of the opposite parties 1 and 2 due to their failure in doing the sterilization procedure (tubal legation) during the 2nd delivery of the 2nd complainant Shyla. Thus, the appellants/complainants prayed for awarding compensation of Rs.4.lakhs for the deficiency of service on the part of the opposite parties 1 and 2.
4. These 3 appeals are preferred from one and the same order passed by CDRF, Wayanadu, Kalpetta in OP.52/03. The material issues in these appeals are also the same and those issues are inter related and inter connected. Hence this State Commission is pleased to disburse all these 3 appeals by a common judgment.
5. For the sake of convenience the parties to these 3 appeals will be referred to according to their rank and status before the Forum below in OP.52/03.
6. The complainants alleged medical negligence and deficiency of service on the part of the 2nd opposite party/Dr.Stepheena due to her failure in doing sterilization procedure (tubal legation) during the 2nd delivery of the 2nd complainant, Shyla. The 1st opposite party Fathima Matha Mission Hospital, Kalpetta is made vicariously liable for the negligence and deficiency in service on the part of the 2nd opposite party/Dr.Stepheena. The opposite parties 1 and 2 denied the alleged medical negligence and deficiency of service. They contended that there was no request or consent for doing sterilisation procedure (tubal legation). It is further contended that the only cesarean operation (LSCS) was done by the 2nd opposite party doctor during the 2nd delivery of the 2nd complainant. The request and consent for sterilization procedure (tubal legation) was obtained from the complainants only at the time of 3rd delivery of the 2nd complainant and thereby the sterilization procedure by tubal legation was done during the 3rd delivery (LSCS) of the 2nd complainant, Shyla. The opposite party have also got a case that the treatment and procedures were done by the 2nd opposite party, Dr.Stepheena on the 2nd complainant, Shyla at the 1st opposite party hospital with due care and caution and there was no sort of negligence or deficiency of service on the part of the opposite parties in treating the complainant and in doing the treatment procedures.
7. There is no dispute that the 2nd complainant was admitted in the 1st opposite party hospital for her 2nd delivery on 1/4/2001 and on the same day the 2nd complainant, Shyla delivered a male child. Admittedly the 2nd delivery was a cesarean operation (LSCS). It was done by the 2nd opposite party, Dr.Stepheena attached to the 1st opposite party, Fathima Matha Mission Hospital, Kalpetta. The 2nd complainant Shyla was admitted for her 2nd delivery at the 1st opposite party hospital on 1/4/2001 and after delivery and treatment she was discharged from that hospital on 9/4/2001. Ext.A1 is the discharge slip issued to the 2nd complainant for her treatment at the 1st opposite party, Fathima Matha Mission Hospital, Kalpetta in connection with her 2nd delivery. Ext.A1 discharge slip would make it abundantly clear that the 2nd complainant/Shyla, wife of 1st complainant Vinod was admitted in the 1st opposite party hospital on 1/4/2001 and discharged on 9/4/2001. There is no dispute regarding the genuineness of A1 discharge slip issued from the 1st opposite party hospital. It is also admitted that the entries in Ext.A1 discharge slip are in the handwriting of the 2nd opposite party, Dr.Stepheena. The 2nd opposite party, Dr.Stepheena as OPW1 has categorically admitted issuance of A1 discharge slip and the hand writing of the 2nd opposite party, Dr.Stepheena in A1 discharge slip. She has also admitted Ext.A1 (a) specification entry in A1 discharge slip. OPW1 has also admitted the fact that A1(a) entries would show that Post Partum Sterilization (PPS) was done on the 2nd complainant, Shyla during her 2nd delivery which was done by cesarean procedure (LSCS). Thus, A1 discharge slip would make it clear that the 2nd complainant was subjected for LSCS and tubal legation during her 2nd delivery which occurred on 1/4/2001. Ext.A1(a) entry would also make it further clear that bilateral tubectonomy was done along with cesarean on 1/4/2001. But at the same time, the 1st opposite party hospital and the 2nd opposite party Dr.Stepheena have contended in their respective written versions that tubal legation (sterilization procedure) was done on the 2nd complainant Shyla during her 3rd delivery which was done by cesarean procedure on 14-11-2002. Second opposite party Dr.Stepheena as OPW1 has also categorically deposed that no such tubal legation or sterilization procedure was done on the 2nd complainant during the cesarean done on 1/4/2001. On the other hand, the definite case of the opposite parties 1 and 2 is that the cesarean procedure was done on the 2nd complainant during the 3rd delivery on 14/11/2002. It can be seen that the entries in A1 discharge slip and the case of the opposite parties 1 and 2 are diametrically opposite. The entries in A1 discharge slip would establish the case of the complainants that there was medical negligence and lapse on the part of the 2nd opposite party by not doing the sterilisation procedure by tubal legation on the 2nd complainant during her 2nd delivery (LSCS) on 1/4/2001.
8. The opposite parties have got a case that the entries in A1 discharge slip regarding bilateral tubectonomy is a mistaken entry and in fact there was no such tubal legation done for the 2nd complainant on 1/4/2001. The only evidence available on record is the interested testimony of the 2nd opposite party Dr.Stepheena as OPW1. This witness could not give any reasonable explanation as to how such an incorrect or mistaken entry made in A1 discharge slip. OPW1 (2nd opposite party, Dr.STepheena) categorically admitted that discharge slip is being written on the basis of the entries in the case sheet. “ Case sheet \<TdU verify [/Ba88U<W \FGAT7a discharge card "KW8U patient [< (OgUdWk8a Ext.A1 document [D front page )KU/ba ?TdU[BDaDT^ "[NL handwriting #7a. Ext.A1 document "ka =LBWk8a 2-) A[f cesarean *KUia [*T3Wf card #7a& !8UO Ext.A1 (a) `=*TC^ PPS [/Ba8W "kT7a !MrAT*Wk8a& # 8VB8U 1/4/2001 #7a . Ext.A1 O diagnosis "ka *KUia "KW8UBUeWm8a "[NL handwriting O #7a !8UO TL "ka "KW8UBUeWta !8a tubal legation "kMrATdUBT7a& ” The aforesaid testimony of OPW1 at page 5 of her deposition before the Forum below would make it crystal clear that tubal legation was done for the 2nd complainant on 1/4/2001 and that the entries in A1 discharge slip were made based on entries in the case sheet maintained at the 1st opposite party hospital.
9. The case sheets of the treatment given to the 2nd complainant from the 1st opposite party, Fathima Matha Mission Hospital, Kalpetta have been produced before the Forum below and marked as Ext.B1 series (4 in numbers). But unfortunately the appendix to the impugned order is silent aboutB1 series of case sheets and the above case sheets are related to the treatment given to the 2nd complainant, Shyla for her 1st delivery during March 1996, for her 2nd delivery during April 2001 and for the 3rd delivery during November 2002 and the 4th case sheet is with respect to the treatment of the 2nd child born to the complainants during the 2nd delivery which took place on 1/4/2001. A perusal of the case sheet with respect to the treatment of the 2nd complainant for her 2nd delivery would not give any indication regarding the sterilization procedure (tubal legation) done on 1/4/2001 or at any time during the 2nd delivery or thereafter before the discharge of the patient on 9/4/2001. Thus, the relevant case sheet maintained at the 1st opposite party hospital in connection with the treatment of the 2nd complainant for her 2nd delivery is absolutely silent about any sterilization procedure including tubal legation. If that be the position, as to how such an entry was crept into A1 discharge slip especially A1(a) entry. It is the case of OPW1 that A1 discharge slip, was prepared based on the entries of concerned case sheet; but the case sheet is totally silent or absent regarding such a procedure. This circumstance would give an irresistible conclusion that A1 discharge slip was prepared or written not based on the case sheet maintained at the 1st opposite party hospital or that the present case sheet produced from the side of the opposite parties is not the original case sheet maintained in connection with the treatment of the 2nd complainant from 1/4/2001 to 9/4/2001. This situation would give a strong circumstance that the so called case sheet now produced as the case sheet for the treatment related to the period 1/4/2001 to 9/4/2001 is a concocted or fabricated case sheet which was prepared for the purpose of this case. In other words, the said case sheet is a created one to suit the contentions taken by opposite parties 1 and 2. Thus, the Forum below is perfectly justified in coming to a definite finding and conclusion that there was deficiency of service on the part of the opposite parties because of their negligence or omission to do the tubal legation. A1discharge slip would also make it appear that the opposite parties made the complainants to believe that sterilization procedure by tubal legation had been done during the 2nd cesarean procedure which was done on the 2nd complainant on 1/4/2001. If that be so, the Appeal Nos.122/08 and 215/09 preferred by the opposite parties in OP.52/03 are liable to be dismissed. Hence we do so.
10. The complainants in OP.52/03 preferred Appeal-172/08 for getting compensation awarded by the Forum below enhanced. A perusal of the impugned order passed by the Forum below would make it clear that the Forum below has considered all the relevant aspects of the case and appreciated the evidence on record in its correct perspective. A perusal of the testimony of the complainants as PWs1 and 2 would make it clear that the complainants had no intention to get the sterilization procedure done on the 2nd complainant during the 2nd delivery of the 2nd complainant and they never requested the 2nd opposite party Dr.Stepheena for doing the sterilization procedure. The evidence of the complainants would also make it clear that the 2nd opposite party, Dr.Stepheena took the initiative and advised the complainants to have the sterilization procedure done during the 2nd delivery which was effected by doing LSCS (cesarean procedure). The oral evidence of PWs 1 and 2 would also make it abundantly clear that they had no intention to stop the child birth. There is also nothing on record to show that the 3rd child was an unwanted child. The appraisal of the oral testimony of PWs 1 and 2 would give a clear indication that they were very much interested to have a female child and they expected the female child by the 3rd delivery of the 2nd complainant. The case of the complainants that they approached the 2nd opposite party, Dr.Stepheena to get the 3rd pregnancy aborted cannot be believed or accepted. The circumstances of the case would also make it clear that the complainants had the option to approach any other doctor to get the Medical Termination of Pregnancy (MTP) done at the instance of any other doctor. The very fact that the complainants approached the opposite parties for the 3rd delivery of the 2nd complainant would also make it clear that the complainants had full confidence in the 2nd opposite party, Dr.Stepheena in attending the 3rd delivery of the 2nd complainant at the 1st opposite party hospital. If the complainants had any grievance against the 2nd opposite party doctor they would not have approached the 2nd opposite party for the 3rd delivery of the 2nd complainant, Shyla. The evidence of the 1st complainant as PW1 would also make it clear that complainants expected some discount in the medical bills issued by the 1st opposite party hospital in connection with the treatment of the 2nd complainant for her 3rd delivery and because of the failure of the 1st opposite party hospital to give discount with respect to the treatment charges the complainants got annoyed and they preferred the present complaint. It would also show that if the complainants were given some deduction or discount with respect to the treatment charges for the 3rd delivery, they would not have preferred the complaint in OP.52/03. It is also deposed by the complainants that they had no grievance or complaint against the opposite parties regarding the treatment given to the 2nd complainant Shyla during her 3 deliveries at the 1st opposite party hospital. So considering all these aspects, the Forum below has awarded Rs.10,000/- towards medical expenses and another sum of Rs.10,000/- by way of compensation for the negligence and deficiency of service on the part of the opposite parties. The Forum below has also awarded cost of Rs.2000/- to the complainants. In all respects, the impugned order passed by the Forum below is liable to be confirmed. Hence we do so.
In the result the above 3 appeals are dismissed. The impugned order dated:30/1/2008 passed by CDRF, Wayanadu, Kalpetta in OP.52/03 is confirmed. The parties to these appeals are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN : MEMBER
M.K.ABDULLA SONA: MEMBER
VL.
