DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 3rd day of May, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 28/09/2021
CC/158/2021
Remya,
W/o. Rakesh,
Puthenthodi veedu,
Choolannur, Peringottukurissi,
Palakkad – 678 574. - Complainant
(By Adv. M/s. N. Rajesh & Sheeba K Gopinath)
Vs
- The Chairman,
Rajiv Gandhi Co-Operative Hospital,
Palakkad.
- Dr. Mini,
Rajiv Gandhi Co-Operative Hospital,
Palakkad - Opposite parties
(O.P.1 by Adv. S.M. Unnikrishnan
O.P.2 by V.K. Venugopalan)
O R D E R
By Sri. Vinay Menon V., President
- Essential pleadings, requisite for judicial appreciation of the dispute, are that the complainant was consulting the 2nd OP gynecologist who was working in the 1st OP hospital. On 24/12/2019, complainant started labour pain and delivered a baby. At the time of delivery, the baby suffered a fall due to the negligence on the part of nursing assistants in the 1st OP hospital and the 2nd OP while the complainant was made to walk from her cot to the labour cot. The baby suffered intercranial haemorrhage and various complication due to the fall.
- OPs filed separate versions in similar vein. They explained the various procedures and medications underwent by the complainant. Since the labour pain developed speedily the duty staff nurses shifted the patient to labour cot that was 10 feet away from her bed. Within this distance, the patient had an urge to strain on reaching the labour cot and before she could lie down, the bag of membrane ruptured with spontaneous delivery of baby. The attending staff nurse received the baby and clamped the cord. The baby did not suffer from any adverse impacts whatsoever. Thereafter the baby developed complications. Intracranial haemorrhage was detected which may be attributable to sudden change in pressure on the foetal head during rapid expulsion during precipitous labour and was referred to a centre of higher treatment. There is no deficiency in service on the part of the O.P.s.
- The following issues were framed for consideration:
- Whether the condition suffered by the infant occurred due to fall or due to precipitous labour and delivery?
- Whether there is deficiency in service on the part of OPs 1 & 2?
- Whether the complainant is entitled to the reliefs sought for?
- Any other reliefs?
4. (i) Evidence of complainant comprised of proof affidavit and Exhibits A1 to A5. There was no objection whatsoever in marking the exhibits.
(ii) Complainant was examined as PW1. Expert witnesses were examined as PW2 and
PW3.
PW2, though examined as an expert, was an expert in forensic medicine. Therefore, his opinion with regard to gynaecological matters is not being relied on. PW2’s evidence is given a go-bye.
(iii) O.P. filed proof affidavit and marked Ext. B1.
(iv) Even though the O.P. filed some medical literature along with argument notes to disprove the contents in PW3’s deposition, we are not inclined to accept these documents as evidence as they were not marked at the time of evidence or through the O.P.s. Said documents are not documents to which we can apply judicial notice.
Issue No.1
5. Inorder to appreciate this Issue the following questions need to be answered:
1. Whether the baby suffered a fall?
2. Whether the fall caused the conditions suffered by the infant?
3. If at all there was a fall, whether the fall occurred due to the negligence on the part of the staff of OP1?
What is relevant is whether there occurred a fall and if yes, whether such a fall occurred as a result of any negligence on the part of the O.P.s. Complainant’s evidence adduced should be to prove these two elements. Au contraire, evidence of the O.P.s should be to prove that the intracranial haemorrhage is attributable to sudden change in pressure on the foetal head during rapid expulsion during precipitous labour.
6. It is the case of the complainant that the labour pain started immediately and she was taken from her cot to the labour cot. During shifting, she delivered the baby and the baby suffered a fall. Contention of the complainant is vehemently objected by the OPs. They state that the baby did not suffer a fall but was caught by the attending nursing staff. Therefore, complainant’s contention that the baby suffered a fall is false. Baby suffered intracranial haemorrhage which may be attributable to sudden change in pressure on the foetal head during rapid expulsion during precipitous labour.
7. Precipitous labour is one where delivery occurs within 3 hours after initiation of labour pain and is considered to be fast delivery. O.P.s had not adduced any evidence to prove that intracranial haemorrhage can occur as a result of pressure variance during precipitous labour. As already stated supra, O.P.s had produced texts on gynaecology at the time of hearing. But these documents were not marked in evidence or no expert evidence was adduced to controvert the evidence adduced by the complainant.
8. Complainant produced an expert in the field of Gynaecology. PW3 was the expert who was examined by the complainant to prove her case. PW3 is a Professor and HoD of Gynaecology, P.K. Das Institute of Medical Sciences. He is practicing in the field of Gynaecology since 1990, ie. for 34 years.
Two major relevant statements, insofar as the facts and circumstances of the case is concerned, are reproduced below:
Final 3 lines in page 4 of the deposition, “Here the accident could have happened by a fall since injuries are not common in precipitated labour”
Eventhough counsel for O.P.s tried to disprove this statement, witness stuck to his guns and this statement could not be contradicted or disproved. PW3 further reiterates in cross examination as follows:
Final 2 lines in page 7 of the deposition: “Fracture can’t happen in precipitated labour”.
9. Ext.B1 is the case sheet pertaining to the complainant maintained by O.P.1 hospital, marked as evidence on the part of the O.P.s.
(1) Doctor’s note in page 1 of Ext. B1 shows that on 3/12/2009 (Date is shown as 3/12/2019. May be a clerical mistake) at 7.05 am, a baby was delivered and it was a precipitate labour. The complainant strained and expelled the baby as she was being shifted to the labour cot. It is also stated that the staff nurse caught the baby and clamped the cord.
Sheets 9 to 11 in Ext. B1 seems to be a report written by O.P.2. Though not seen signed, the first paragraph in page 9 shows that the author of the said document has used First person (my) while referring to the treatment/consultation provided to the complainant. So, we presume the same to be written by the 2nd O.P. In page 9, line 4 the following statement is written: “A call was sent for me…….”. The available conclusion is that the doctor was not present at the time of delivery and hence Doctor’s notes in page 1 of Ext. B1 cannot be taken to be a 1st hand knowledge of the 2nd O.P., but only a reproduction of what was informed to her by the attending nurses.
(2) In sheet 10 of Ext. B1, ie. page 2 of the handwritten report of O.P.2, in lines 1 to 7 it is seen that “At 7 am patient had severe pain and on examination PV examination showed cervix fully effaced 6 – 7 cm with bag of membrane bulging. A call was sent for me and duty sister shifted the patient from bed to the labour cot which is not more than 10 feet distance.”
As already stated, we do not know the nature of this report. But one would wonder why the 2nd O.P. had to highlight the distance between the cot and labour cot to be 10 feet, if it was a document prepared in the normal course of business in a routine manner. Had the report been for routine official purpose, we do not think distance between one cot to another need be referred.
(3) As already stated in sub-para 3 of this paragraph, the cervix was fully effaced with bag of membrane bulging. It is not stated anywhere either in pleadings or in Ext.B1 what necessitated transfer of the complainant from the cot upon which the complainant was already lying. We do admit that a labour cot has contraptions that would assist physical/bodily placement that would ease labour. But considering the absence of pleadings and the facts that the cervix was fully effaced upto 6 – 7 cm with bag of membrane bulging, we find that the opposite parties has failed to explain the necessity to transfer the complainant from her cot to the labour cot.
In a case where crux of the dispute revolves around the fall of the foetus, we are of the opinion that an explanation as to why the complainant required shifting was vital. Failure can only point towards inexplicability of the conduct.
10. Both complainant and OP admits that the complainant developed labour pain and was taken from her cot to the labour cot. While walking, the complainant strained and delivered the baby. When an expectant mother develops labour pain, the nursing assistants ought to take extra care. No amount of experience can predict with accuracy the time when the baby will be delivered. In the facts and circumstances of the case, along with the observations in sub-paras 2 and 3 of paragraph 9, we are of the opinion that there was negligence on the part of the nursing assistants in not taking ample care while making the complainant walk from her cot to the labour cot. It may be true that the distance between two cots were only ten feet. But here, even that distance proved to be crucial. The nursing assistants had failed to appreciate the then condition of the complainant and the on-set of labour pain in proper light and weight.
11. Resultantly, contention of the O.P.s that the baby was caught by the attending nurse, does not seem plausible, if not rendered weak, by the evidence adduced by the O.P.s or the absence thereof. As stated by the Expert, precipitous labour will not cause such an injury. Therefore, the sole conclusion that streams out is that the injury occurred as a result of the fall.
12. Therefore, we are inclined to hold that the injury suffered by the baby was due to the fall that occasioned owing to negligence on the part of the staff of OP1.
Issue No. 2
13. Banking on the discussions above, we hold that there is negligence on the part of nursing assistants of OP1 hospital.
14. OP2 is the treating doctor. Even though the complainant had raised complaints against the 2nd OP in the pleadings, while being cross examined complainant had stated that she has no complaint with regard to the treatment rendered to her by the 2nd O.P.(Page 2, line 2 of PW1’s deposition).
A further case of the complainant is that the 2nd OP did not turn up at the time of delivery. And this conduct tantamount to negligence and deficiency in service. We are unable to appreciate this contention. A doctor cannot be expected to come to a delivery whenever one of her patients undergo labour for the sole reason that she is a human being and that she has every right to go off-duty. She can’t be expected to be on call 24x7.
15. Therefore, we are not inclined to cast any liability on the 2nd OP.
Issue No. 3
16. On going through the pleadings, the complainant has claimed for Rs.25 lakhs for the negligence on the part of OPs, on account of the injury suffered by the baby and on account of the future treatment that is to be rendered to the baby. But this amount is excessive.
17. No evidence whatsoever is forthcoming to prove that the child still suffers from the impact of the fall suffered by him. We are not inclined to grant any compensation for future treatment in the absence of any cogent evidence proving that the child still suffers from the after effects of the fall.
Issue No. 4
18. In the result, based on the findings as noted supra, we hold as below:
1. There is negligence on the part of the nursing assistants employed by OP1, who attended the complainant. Consequently, OP1 is vicariously liable.
2. The O.P.1 is directed to pay an amount of Rs.2,00,000/- as compensation for negligence in service on the part of their nursing staff.
3. Complainant is entitled to a cost of Rs. 50,000/- payable by the 1st O.P.
4. The above directives shall be complied within a period of 45 days from the date of receipt of a copy of this order, failing which the 1st O.P. shall pay an amount of Rs.1,000/ per month or part thereof from the date of this Order till the date of compliance of the directives herein as solatium.
5. OP2 is absolved of any liability.
19. Accordingly, this complaint is disposed off.
Pronounced in open court on this the 3rd day of May, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of lawyer’s notice dated 30/1/2020
Ext.A2 – Came as Ext.A1
Ext.A3 - Original reply notice dated 19/2/2020
Ext.A4 - Copy of discharge summary dated 4/1/2020
Ext.A5 – Copy of CT scan brain report
Exhibits marked on the side of the opposite party:
Ext.B1 - Copy of hospital records pertaining to the complainant
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – Remya (Complainant)
PW2 – Dr.Rajaram
PW3 – Dr.Valsan
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
