IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: THIRU.K. BASKARAN, PRESIDING JUDICIAL MEMBER
TMT.DR.S.M.LATHA MAHESWARI MEMBER
C.C.No.76/2011
MONDAY, THE 5th DAY OF AUGUST 2019.
Date of complaint : 04.08.2009.
Date of orders : 05.08.2019.
Mrs.Thagam Beevi,
W/o.Mr.Mohammed Meeran,
Villambur Village and Post,
Cheyyur Taulk,
Kancheepuram District. :: Complainant
Vs.
- The Manager Incharge,
Melmaruvathur Adhiparasakthi Institute of Medical
Sciences and Research Centre,
Melmaruvathur – 603 319.
- The Dean,
Melmaruvathur Adhiparasakthi Institute of Medical
Sciences and Research Centre,
Melmaruvathur – 603 319.::Opposite Parties.
Counsel for the complainant : M/s.N.Varadharajan.
Counsel for the 1st opposite party : Ex-Parte.
Counsel for the 2nd opposite part : M/s.A.S.Balaji.
This complaint having come up for final hearing before us on 17.07.2019 and on hearing the arguments of both and upon perusing the material records, this Commission made the following;-
ORDER
THIRU.K. BASKARAN, PRESIDING JUDICIAL MEMBER.
This complaint had been filed by the complainant under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 praying this Commission to direct the opposite parties to pay i) Rs.53,500/- being the medical and other incidental expenses incurred by the complainant ii) Rs.11,615/- being the interest iii) Rs.20,00,000/- as compensation for mental agony and torture continuing illness due to the negligence and deficiency in service on the part of the opposite parties iv) Rs.25,000/- towards the cost of this complaint.
1. The gist of the complaint allegations is as follows;-
That the complainant was admitted in the hospital of the opposite parties on 09.08.2007 for her 2nd delivery; that the scan report taken prior to that would reveal that expected date of delivery of the complainant was on 26.08.2007 but the opposite parties had advised the complainant to get her admitted in the hospital on 09.08.2007 itself and accordingly the complainant got herself admitted; that the complainant was taken to the operation theatre on 10.08.2007 at about 9.00 a.m. and she delivered a baby girl at about 10.55 a.m. but the complainant was taken out of the operation theatre after 5.30 p.m. only meaning thereby the surgery on the complainant was performed for 8 ½ hours and that tubectomy was also done on her; that on 11.08.2007 the opposite party had instructed the complainant’s husband to procure 4 units O+ve blood and he bad obliged; the doctors in the opposite parties’ hospital informed the complainant’s mother and husband that she was suffering from suffocation and breathlessness and her condition was very bad and that none of the family members of the complainant was permitted to see her during the two days of post operative period and that the complainant’s husband was permitted to see her only at 4.00 p.m. on 12/08/2007 and when the complainant’s husband enquired one Dr.Vanajakshi of the opposite parties’ hospital she had informed him that the complainant’s health condition was very bad and the transfusion of blood did not yield the desired result due to some unknown mistakes and the same could be rectified only by opening the abdomen once again and the life of the complainant could be saved only if she was taken to Government Maternity Hospital, Egmore; that immediately thereafter the complainant’s husband discharged her from the opposite parties’ hospital and took her to the Government Maternity Hospital, Egmore on 12.08.2007 and was admitted in the incentive care unit at about 6.30 p.m. on the same day and the doctors of the said Government Hospital informed the complainant’s husband that she was suffering from very severe anaemia and hence the complainant was treated in incentive care unit for 4 days and the scan taken on her revealed that there was a blood clot in her stomach which was the cause for the stomach pain and the doctor therein opined that the blood clot was due to the bleeding of blood from the blood vessels which were damaged during the surgery done on the complainant on 10.08.2007 by the doctors of the opposite parties’ hospital; that after treatment the complainant was discharged from Egmore Hospital on 18.08.2007; that thereafter as the complainant had developed severe stomach pain she was once again admitted in the Government Maternity Hospital, Egmore on 28.08.2007 and CT scan was taken on her in the Government General Hospital, Chennai which revealed and confirmed the very same diagnosis made by the doctors in Egmore hospital previously; that because of the same the complainant had to undergo a further surgery at Egmore Maternity Hospital, Chennai -8 and she was discharged on 11.09.2007; that the complainant and her husband had incurred expenditure of more than Rs.40,000/- for their stay and transport and that the complainant had to undergo the ordeal of 2nd surgery and all these hardships were meted out to the complainant only because of the medical negligence exhibited by the doctors in the opposite parties’ hospital; hence the complaint for directing the opposite parties to pay Rs.53,500/- representing the medical expenditure and other incidental expenditure incurred by the complainant while taking treatment in the opposite parties’ hospital and a sum of Rs.20 lakhs as compensation for mental agony suffered by the complainant with interest besides litigation expense for a sum of Rs.25,000/-;
2. The 1st opposite party remained absent and was set Ex-parte and the 2nd opposite party alone contested claim;
3. The defence of the 2nd opposite party in nutshell:-
That the complainant had come to the opposite parties’ hospital for delivery and according to her the last menstrual period was on 12.10.2006 and based on that the expected date of delivery was arrived as 19.07.2007; but the scan taken on her would show that the correct expected date of delivery was on 26.08.2007; that the doctors in the opposite parties’ hospital found that there was infection to do caesarean section has it was a case of LSCS with transverse lie and hence after discussions with the complainant and her husband and with their consent repeat LSCS was fixed on 10.08.2007 and she was admitted on 09.08.2007; that the complainant was taken to operation theatre on 10.08.2007 at about 09.08 a.m. for LSCS and the complainant had delivered a baby at about 10.55 a.m. and there was blood loss of about 1 litre which is usual during such surgery; that during the said surgery it was noticed that there was dense adhesion in the rectus sheath which might be due to previous LSCS done on the patient; that after surgery the complainant was shifted to post operative observation room in the operation theatre at 12.25 p.m. blood transfusion was started at 12.30 p.m. and thereafter the patient was transferred to ICU at 3.05 p.m. for observation and shifted to the ward at about 8.30 p.m.; hence the duration of surgery was from 9.50 a.m. to 10.55 a.m. only; that usually it was the practice in a hospital not to allow any person to see the patient during the stay in the observation room due to the some medical reasons; that due to dense adhesion due to previous surgery there was mild bleeding which was arrested before closing the abdomen;
That the doctor at the opposite parties’ hospital explained the complainant’s husband the reason for persistent anaemia that it could be due to the formation of blood clot which might have occurred due to release of dense adhesion found due to first ceasarean operation done in some other hospital and there might be small collection of blood below the muscle and rectus sheath; that as blood clot was suspected in the rectus sheath which could not be normally seen in x-ray the complainant was advised to go in for CT abdomen elsewhere as the equipment in their hospital was not working; that the small blood clot that might be due to early DIC (Desaminated intravascular clotting) which required only observation and administration of FFP which was not originally available in their hospital and hence the complainant was advised to go to a higher centre in Egmore, Chennai and accordingly the complainant was taken to the maternity hospital, Egmore, Chennai at about 6.30 p.m. on 12.08.2007 where she was admitted and observed, treated and subsequently she was discharged on 18.08.2007; that thereafter the complainant was readmitted in the maternity hospital, Egmore, Chennai on 27.08.2007 and 2nd surgery was done on her; that the LSCS was conducted by the doctors of the opposite parties’ hospital with utmost care and diligence and hence there was neither surgical mistake nor any medical negligence on the part of the opposite parties’ hospital; that after the 2nd surgery at the Government Maternity Hospital, Egmore, Chennai; the complainant became normal and alright; hence there was no medical negligence on the part of the opposite party hospital and hence the complaint deserves dismissal;.
4. The points for consideration are ;-
(1) Whether there was any medical negligence, giving rise to deficiency in service, on the part of the opposite parties?
(2) What relief the complainant is entitled to?
5. On the side of the complainant proof affidavit and additional proof affidavit were filed and documents Ex.A1 to Ex.A13 were marked and on the side of the 2nd opposite party proof affidavit was filed and no document was marked.
6. Point No.1 :- The simple grievance of the complainant is that she had prenatal consultation with the doctors in the opposite party’s hospital for her 2nd delivery and as per their advice a scan was taken on 22.06.2007 and ultra sonogram was taken on 27.07.2007 which revealed that the expected date of delivery was on 26.08.2007. But the doctors in the opposite party’s hospital advised her to get admitted for delivery on 09.08.2007 itself i.e., much prior to the expected date of delivery and accordingly she was admitted and repeat LSCS was done on her on 10.08.2007 by one Dr.Indra and though she was taken to the Operation Theatre at about 9.00 a.m. on that day and she delivered a child at about 10.55 a.m. still the complainant was shifted from the operation theatre only at 5.30 p.m. meaning thereby the repeat LSCS procedure went on for 8 ½ hrs. But the doctors did not inform the complainant or her husband the reason for such inordinate delay and that her relatives were not permitted to see the complainant for a long time and that the doctors of the hospital did the LSCS negligently as a result of which blood bleeding occurred resulting in rectus sheath haematoma and the same was suppressed by the doctors of the opposite parties’ hospital and which necessitated the 2nd surgery at the Maternity Hospital in Egmore, Chennai which in turn resulted in mental agony, hardship apart from unnecessary expenditure;
7. The defence of the opposite parties is total denial and that the doctors at the opposite parties’ hospital took every care and caution and performed the repeat LSCS on the complainant correctly and at the correct time and blood clotting could not be due to any negligence attributable to them.
8. Regarding the allegation that the repeat LSCS was done prematurely on the complainant we are of the view that there was no mistake committed by the doctors in the opposite party’s hospital. The medical records pertaining to the complainant would show that she had irregular menstrual period and that as per her statement the last menstrual period for her was on 12.10.2006 and based on that the doctors had arrived at the estimated date of delivery as 19.07.2007. But the scan and other ultra sonogram taken on her would show a different picture and as per the scientific report that EDD was corrected as 26.08.2007. It could be seen from the last ultra sonogram report under Ex.A3 dated 31.07.2007 prior to the delivery. A perusal of medical literature would show that it will be safe for elective repeat LSCS to be done earlier than the estimated date of delivery. Further Ex.A3 would show that the presenting of the fetus was in Transvers lie. Hence the doctors of the opposite party’s hospital had decided to do repeat LSCS on the complainant in advance to avoid complications. Hence, we do not find any impropriety in advancing repeat LSCS from the EDD.
8. The next grievance of the complainant is that, the doctor in the opposite parties’ hospital namely Dr.Indra had done the LSCS so negligently that she had caused damage to the blood vessels resulting in bleeding and clotting which in turn resulted in severe abdomen pain to her necessitating her to be shifted to higher institution namely Government Maternity Hospital in Egmore, Chennai, where she had had treatment as in-patient for two spells and in the last a 2nd exploratory surgery had to be done to remove the blood clot namely Rectus Sheath Hematoma which caused her much pain, physical discomfort, mental agony besides unnecessary expenditure.
9. In support of this the complainant would contend that though she was taken to the operation theatre at about 9.00 a.m. on 10.08.2007 for LSCS and though she had
delivered a baby at about 10.55 a.m. she was kept in the observation room of the operation theatre for about 8 ½ hrs which would mean that some complications developed at the time of LSCS and that was suppressed by the doctors in the opposite parties’ hospital. Further the complainant would submit that the doctor who performed repeat LSCS never disclosed to her that there was bleeding during LSCS due to which a
condition called rectus sheath hematoma, in short RSH, developed and that could be confirmed by taking CT scan and that could be treated effectively in a higher institution. On the other hand, the complainant’s husband on his own got the complainant discharged on coming to know that her condition became very bad. She would further submit that she was taken to the Maternity Hospital, Egmore, Chennai and the scan taken on her revealed that there was RSH and the doctors at the Maternity Hospital, Egmore, informed her that the RSH was due to negligence exhibited by the doctor who did the LSCS on 10.08.2007.
10. There is no dispute that the complainant was admitted in the opposite party’s hospital on 09.08.2007 for repeat LSCS and the procedure was done on 10.08.2007 and she gave birth to a baby at about 10.55 a.m. on 10.08.2007 and that during the post operative period she had complained of severe abdominal pain. She would submit in fine that had the doctors in the opposite parties’ hospital been diligent in conducting the LSCS the damage to the blood vessels could have been avoided and the condition of RSH would not have developed and that even assuming that the damage to the blood vessels during the LSCS is a known complication, still the doctors should have done the procedure more carefully, if at all there was likelihood of damage to blood vessels due to the alleged adhesion owing to the previous LSCS. Further the doctors should have taken extra caution in removing the blood clot and they should have informed the complainant and her relatives regarding the bleeding and the RSH. But they had done nothing which forced the complainant’s husband to take her to a higher institution in Chennai for corrective surgery and which necessitated two spells of in-patient treatment at the Maternity Hospital in Egmore and her 2nd exploratory surgery for removing the RSH.
11. Hence the complainant in clear, categorical and unequivocal words alleged that during the repeat LSCS done by one Dr.Indra at the opposite parties’ hospital on 10.08.2007 the said doctor had not taken the requisite care and caution and instead did the procedure negligently and hence the blood vessels in the said region were cut as resulting in development of RSH and that was the reason it took nearly 8 ½ hours to shift the complainant from the operation theatre to the ward. But the simple defence of the 2nd opposite party is that no such vessel was damaged during the LSCS performed by Dr.Indra and on the other hand, Dr.Indra who did the LSCS did the procedure properly and that due to dense adhesion owing to previous LSCS there was some mild bleeding when the doctor released that adhesion and even such bleeding was arrested before closing the abdomen.
12. Hence, the defence of the 2nd opposite party is that there was mild bleeding due to dense adhesion due to the previous surgery at the time of releasing the adhesion and even this bleeding was arrested by Dr.Indra before closing the abdomen. Hence the factum of presence of dense adhesion in the abdomen area of the complainant which was due to previous LSCS done on the complainant and that during the present LSCS while releasing that adhesion some mild bleeding occurred and that too was arrested before closing the abdomen is within the exclusive knowledge of Dr.Indra who Dr.Indra at the opposite parties’ hospital who did the LSCS on 10.08.2007 on the complainant. Unfortunately, the said Doctor had not been examined as a witness nor the proof affidavit of the said Dr.Indra was filed by the 2nd opposite party in this case. Hence what all transpired within the 4 walls of the operation theatre of the opposite parties’ hospital on 10.08.2007 when the repeat LSCS was done on the complainant have not been established by any of the modes known to law in this case by the 2nd opposite party.
13. It is surprising to note how the 2nd opposite party and the counsel of the said opposite party withheld the important evidence namely deposition of Dr.Indra in this case. The mere pleadings in the written version and the statement made in the proof affidavit of the 2nd opposite party who is the dean of the hospital where the surgery was done cannot be a substitute for the evidence of Dr.Indra as she only knew what happened on the fateful day of 10.08.2007 when the complainant was subjected to LSCS. Admittedly the Dean of the opposite parties’ hospital Dr.Mohanasudaram was not the surgeon who did the LSCS on the complainant on 10.08.2007 nor was he part of the team which did the said procedure on the complainant. Hence what are all pleaded and deposed by the said Dean would be in the nature of hearsay evidence which is not admissible except under certain circumstances and no such circumstances have been made out in this case.
14. If so, it emerges that what are all pleaded and deposed by the complainant in her complaint and in her proof affidavit went un-rebutted by the opposite parties as a result of which this Commission is left with no other option except to accept the version of the complainant regarding the reason and cause for RSH. Hence it follows that the complainant has, through lawful evidence, proved that one Dr.Indra at the opposite parties’ hospital had negligently conducted the repeat LSCS on the complainant on 10.08.2007 at the opposite parties’ hospital causing damage to the blood vessels resulting in bleeding and clotting and development of RSH which caused sever pain and hardships to the complainant and that she had to be shifted to a higher medical institution namely Maternity Hospital, Egmore, Chennai where she was admitted on 12.08.2007 and discharged on 18.08.2007 and that she was readmitted on 28.08.2007 and 2nd surgery was done on her to remove the RSH and thereafter she was discharged on 11.09.2007. Hence there was deficiency in service arising out of medical negligence on the part of the doctor at the opposite parties’ hospital who treated the complainant and the opposite parties being the hospital are also guilty of medical negligence. Our above conclusion draws strength from the observation of the Hon’ble Supreme Court in Savitha Garg Vs. National Heart Institute – (2004) 8 SCC 56 which is as follows:
“It is the hospital which engages the treating doctor, thereafter, it is their responsibility. The burden is greater on the institution / hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence.”….. “Even otherwise also given that, as held above, the burden to absolve itself shifts on to the hospital / doctor, the Institute has to produce the treating physician concerned and has to produce evidence that all care and caution was taken by it or its staff or justify that there was no negligence involved in the mater.”
15. In the light of the discussions held above we hold that there was deficiency in service arising out of medical negligence on the part of the opposite parties and this point is answered in the affirmative.
16. Point No.2:- The complainant had prayed for Rs.53,500/- being the medical and other incidental expenditure incurred by her during the period of treatment and a sum of Rs.20 lakhs as compensation for mental agony and other hardships suffered by her due to the deficiency in service besides Rs.25,000/- as litigation costs. There is no dispute that the complainant was aged 26 years at the time of alleged medical negligence. It cannot be denied that due to medical negligence exhibited by the doctors at the opposite parties’ hospital, the complainant had to suffer excruciating abdominal pain and had to stay in two different hospitals for three different spells and ultimately the 2nd exploratory surgery had to be performed on her and she was discharged on 11.09.2007 whereas ordinarily a woman undergoing LSCS would be discharged from the hospital in 5 to 7 days. Hence due to the negligence on the part of the Doctors of the opposite parties’ hospital the complainant had to spend nearly a month in two different hospitals and her abdomen opened twice to remove the RSH. Hence we are of the view that the complainant is entitled to a just and reasonable compensation for mental agony, physical pain and sufferings and for the medical expenditure incurred by her. Hence we are of the view that, the complainant is entitled to get Rs.53,500/- spent towards medical expenditure. But the claim of Rs.20 lakhs towards compensation for mental agony etc. in our considered view, is highly disproportionate. Considering the pain and sufferings meted out to the complainant and duration of in-patient treatment undergone by the complainant, we are of the view that quantifying the compensation which the complainant is entitled to at Rs.2 lakhs would be just and reasonable and would meet the ends of justice. As we are proposing to award a lumpsum compensation of Rs.2 lakhs for mental agony, other hardship and monetary loss, we hold that the complainant is not entitled to get any interest on the amount spent towards medical expenditure from the date of incurring . Hence, we hold that the complainant is entitled to get Rs.53,500/- being the amount towards medical expenditure and Rs.2 lakhs as compensation for mental agony, other hardship and monetary loss suffered by her besides Rs.15,000/- as cost of litigation and this point is answered accordingly.
In the result, the complaint is partly allowed, directing the opposite parties to pay the complainant
(a) Rs.53,500/- (Rupees Fifty Three Thousand Five Hundred only) towards medical expenditure incurred by her;
(b) Rs.2,00,000/- (Rupees Two Lakhs only) as compensation for mental agony, other hardships and monetary loss;
(c) Rs.15,000/- (Rupees Fifteen Thousand only) towards the cost of litigation;
(d) the above amounts shall be paid within four weeks from the date of receipt of copy of this order failing which, the amounts except the cost of litigation, shall carry interest @ 12% p.a. from the date of complaint till realization.
S.M.LATHA MAHESWARI K. BASKARAN
MEMBER PRESIDING JUDICIAL MEMBER
Complainant(s) Document(s):-
1. Ex.A1 : Samhita Ultrasonography dt.22.02.2007.
2. Ex.A2 : Scan report of Thamarai scan centre dt.22.06.2007.
3. Ex.A3 : Samhita Ultrasonography report dt.12.07.2007.
4. Ex.A4 : Opposite Parties Sonogram report dt.27.07.2007.
5. Ex.A5 : Opposite parties Medical bill (series).
6. Ex.A6 : Medical Report dt.31.07.2007.
7. Ex.A7 : Egmore Maternity Hospital Note Book.
8. Ex.A8 : Sri Krishna Scans & Cardiac Diagnostic Centre Report dt.27.08.2007.
9. Ex.A9 : M.R. Scan Report dt.27.09.2007.
10. Ex.A10 : Barnard Institute of Radiology dt.31.08.2007.
11. Ex.A11 : Complainant’s Advocate notice dt.24.11.2008.
12. Ex.A12 : Opposite parties reply Advocate notice dt.06.12.2008.
13. Ex.A13 : Complainant’s rejoinder notice with Ack Due dt.31.07.2009.
Opposite party(s) Document(s):-
S.M.LATHA MAHESWARI K. BASKARAN,
MEMBER PRESIDING JUDICIAL MEMBER.
INDEX; - YES/No
Bsd/e/JM/Orders
