IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 8th day of August, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 138/2010 (Filed on 11.10.2010)
Between:
Glace Binoj Pappachen,
Ozhathil House,
Mundukottackal P.O.,
Pathanamthitta. … Complainant.
(By Adv. George Thazhathethil)
And:
1. The Managing Director,
Mar Gregorios Memorial
Muthoot Medical Centre,
Ring Road, Pathanamthitta
Pin – 689 645.
2. Dr. Alphine Caroline MBBS,MS(OBG),
Mar Gregorios Memorial
Muthoot Medical Centre,
Ring Road, Pathanamthitta
Pin – 689 645.
3. The Medical Superintendent,
Mar Gregorios Memorial
Muthoot Medical Centre,
Ring Road, Pathanamthitta
Pin – 689 645.
(By Adv. Sabu Thomas (for 1 & 3)
Addl.4. The Divisional Manager,
The Oriental Insurance Co. Ltd.,
Divisional Office, Palakkat-
Buildings, Market Junction,
Thrippunithura, Kochi – 682 301. … Opposite parties.
(By Adv. P.D. Varghese)
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 complainant’s case is that she was admitted in the opposite party hospital on 20.04.2010 for her 1st delivery. She was under the treatment of the 2nd opposite party and she was discharged after forceps delivery on 24.04.2010 from the hospital. Thereafter infection developed in the stitches in Anus and Vagina and she was again admitted in the hospital on 29.04.2010 and discharged on 01.05.2010. On 02.05.2010, severe pain developed and she was again admitted to the 1st opposite party hospital and discharged on 03.05.2010 without proper treatment. So, on 03.05.2010 itself, she was taken to Pushpagiri Medical College Hospital, Thiruvalla and was admitted there and treated till 17.05.2010. Since they were unable to rectify the extensive injuries made by the opposite parties, the complainant was taken to Lakeshore Hospital & Research Centre, Kochi for specialized treatment from 17.05.2010 to 25.07.2010. The complainant was under the treatment of Pushpagiri hospital, Thiruvalla and Lakeshore Hospital since from her discharge from the 1st opposite party hospital. She had undergone 3 major surgeries. One at Pushpagiri Medical College, Thiruvalla and two at Lakeshore Hospital, Kochi. There was a central perineal tear and there was fistulous communication between posterior vaginal wall and anal canal. She underwent diverting sigmoid colostomy. The healthy large intestine was cut and brought outside in order to block the motion through anus. The complainant’s mental health was affected due to the motion passing outside through colostomy bag. The complainant had incurred an amount of ` 1,76,615 as hospital bills and other expenses. The complainant did not get reasonable care and medical attention from the opposite parties. The complainant is a post graduate in computer application. Because of the above said complications, she is not in a position to go for a job. Natural feeding of the baby was also obstructed due to her continuous treatment. Everything occurred due to the negligence of the opposite parties and it is a grave deficiency of service. The marital life of the complainant and the pregnancy for the 2nd time is in a fearful position due to the complications. Because of the negligence and deficiency in service from the part of the opposite parties, the complainant suffered financial loss and mental agony and opposite parties are liable to the complainant. The complainant sent a notice on 30.07.2010 to the opposite parties for which the 3rd opposite party alone sent a reply with untenable contentions. Hence this complaint for the realization of ` 1,67,615 the treatment expenses along with compensation of ` 10 lakhs and cost of this proceedings.
3. Opposite parties 1 and 3 entered appearance and filed a common version. 2nd opposite party is exparte. The main contentions of opposite parties 1 and 3 are as follows: They admitted the treatment of the complainant at their hospital till 03.05.2010. The complainant was admitted in their hospital on 20.04.2010 for her delivery and she was under the treatment of the 2nd opposite party. She had given good care to the complainant. Right mediolateral Episiotomy was done to assist vaginal delivery. Later forceps was used as it was a case of prolonged labour. Wound was sutured in layers after ascertaining that there was no anal sphincter/rectal mucosal injury. Post operative period was uneventful. Bowels moved normally after delivery. The complainant was discharged on 24.04.2010 in good general condition with specific instructions as to care of the Episiotomy wound and also prescribed oral antibiotics, analgesics, local ointments for the wound along with stool softeners. At the time of discharge, specific instructions were given to the patient regarding wound care including frequent changing of sanitary pads, clean the wound with luke warm water and then dry the area. Thereafter patient was readmitted on 29.04.2010 with infection and gaping of the eposiotomy wound. The antibiotics were started and on 30.04.2010. The wound was re-sutured under local anesthesia in the operation theatre. At the end of the procedure, per rectal examination was done to confirm that there is no rectal placement of sutures and discharged on 01.05.2010 with anti-inflammatory drugs. The patient was again admitted on 02.05.2010 having discharge from the episiotomy site. On examination, infection was present at the episiotomy site. Sutures were cut open and wound cleaning and dressing was done. As the patient was not co-operative for further wound inspection, she was admitted and planned for examination under general anesthesia. She was started on IV Antibiotics IV fluids and kept nil orally. However, after admission, the patient was not willing for the planned procedure and she was discharged on 03.05.2010 as demanded by the patient. Opposite parties contention is that, what all treatments given by them up to 03.05.2010 was proper. Opposite parties are not aware of the subsequent treatments at other hospitals. All other allegations are denied by the opposite parties. At any point of time, there was no medical negligence from their part. With the above contentions opposite parties 1 and 3 prays for the dismissal of the complaint with their cost.
4. On the basis of the Order in I.A.28/2011, Addl. 4th opposite party was impleaded in the array of opposite parties and they also filed their version. They admitted that they have issued an error and omission insurance policy in the name of the 1st opposite party. But they did not admit the liability to indemnify the 1st opposite party due to the violation of policy conditions that the 1st opposite party has not given any written notice to the insurer regarding the claim of the complainant. Further contentions of the addl. 4th opposite party in their version is same as that of the other opposite parties and hence we are not repeating it. With the above contentions, addl. 4th opposite party also prays for the dismissal of the complaint with their cost.
5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
6. The evidence of this complaint consists of the oral deposition of the power of attorney holder of the complainant as PW1 and Exts.A1 to A9. Opposite parties have not adduced any oral or documentary evidence in their favour. But they have cross-examined PW1. After closure of evidence, both sides were heard.
7. The Point:- The complainant’s allegation is that she was admitted in the 1st opposite party hospital for her 1st delivery on 20.04.2010 and she was under the treatment of the 2nd opposite party. Her delivery was on 20.04.2010 and it was a forceps delivery. After the delivery, she was discharged on 24.04.2010. Thereafter infection developed in the stitches in anus and vagina and she was again admitted in the hospital on 29.04.2010 and discharged on 01.05.2010. On 02.05.2010, severe pain developed and the complainant was again admitted and she was discharged on 03.05.2010 without proper treatment. On 03.05.2010 itself the complainant was taken to Pushpagiri Medical College Hospital and she was there as an inpatient till 17.05.2010. Since the complainant was not recovered from her illness during the treatment at Pushpagiri Hospital, as her complications are beyond rectification by the doctors of Pushpagiri Hospital, she was taken to Lakeshore Hospital, Kochi for specialized treatment. She got admitted at Lakeshore Hospital on 17.05.2010 and undergone treatment there as inpatient till 24.05.2010. In continuation of her treatment, she was again admitted on Lakeshore Hospital on 12.07.2010 and discharged on 22.07.2010. According to the complainant, the treatments given by the opposite parties was negligent and the said negligent treatment caused severe complications to the complainant and for getting a complete cure from the said complications, she was compelled to undergone further treatment continuously for a long period at other hospitals. As a result of this, she had sustained mental agony, financial loss and other discomforts. Everything happened due to the negligence of the opposite parties 1 to 3 and hence opposite parties are liable to the complainant and the complainant prays for allowing the complaint.
8. In order to prove the contentions of the complainant, the complainant’s power of attorney holder filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit of the power of attorney holder, he was examined as PW1 and the documents produced were marked as Exts.A1 to A9. Ext.A1 is the power of attorney executed by the complainant in favour of PW1. Ext.A2 is the discharge summary dated 24.04.2010 issued by Muthoot Medical Centre, Pathanamthitta in the name of the complainant. Ext.A3 is the discharge summary dated 17.05.2010 issued by Pushpagiri Medical College Hospital, Thiruvalla in the name of the complainant. Ext.A4 is the discharge summary dated 24.05.2010 issued by Lakeshore Hospital, Kochi in the name of the complainant. Ext.A5 series (A5 to A5(b)) are the medical bills issued by Muthoot medical Centre, Pathanamthitta in the name of the complainant. Ext.A6 is the medical bill issued by Pushpagiri Medical College Hospital, Thiruvalla. Ext.A7 series (A7 to A7(d)) are the medical bills issued by Lakeshore Hospital, Kochi in the name of the complainant. Ext.A8 is the copy of the advocate notice dated 30.07.2010 sent by the complainant to the opposite parties 1 and 2. Ext.A9 is the expenses summary for ` 1,76,615.
9. On the other hand, the contention of the opposite parties is that they have not committed any negligence or deficiency in service in the treatment of the complainant. According to the opposite parties 1 and 3, after the discharge of the complainant, after her delivery she came to the hospital twice for complaints of infection and gaping of the episiotomy wound and discharge from episiotomy site. During those occasions she was admitted and given proper treatment. But at the 2nd occasion she was not prepared to co-operate for further examinations and treatments and she requested for discharge. Accordingly the patient was discharged on 03.05.2010. Up to 03.05.2010, opposite parties given proper medical treatment to the complainant. The subsequent treatments were not aware of them. Thus they argued that they have not committed any deficiency in service to the complainant and they prays for the dismissal of the complaint.
10. But opposite parties 1 to 3 have not adduced any oral or documentary evidence for substantiating their contentions. But they cross-examined PW1.
11. Addl. 4th opposite party’s contention is that they are not liable to indemnify the opposite parties as they have violated the terms and conditions of the policy issued by them in favour of 1st opposite party by non-intimating the claim of the complainant. They also have not adduced any oral or documentary evidence in their favour.
12. On the basis of the contentions of the parties and on the basis of the materials on record, it is found that the parties have no dispute with regard to the admission of the complainant at the 1st opposite party hospital on 20.04.2010 and her treatment there till 03.05.2010 and her further treatments at Pushpagiri Medical College Hospital, Thiruvalla and Lakeshore Hospital, Kochi till 25.07.2010 and the complainant’s expenses for the said treatments. The only dispute between the parties is with regard to the alleged medical negligence. According to the complainant, second opposite party treated her negligently which caused severe complications to her and hence she was compelled to undergone further treatments for a long period and for the said treatments, she had incurred a lot of money. But according to the opposite parties, they have not committed any negligence in the treatment of the complainant and what all treatments they have given are as per medical ethics and are warranted in the circumstances.
13. This is a case of medical negligence. So for proving or disproving the allegations, expert evidence is highly necessary. But both parties failed to adduce any expert evidence for substantiating their contentions. But complainant’s power of attorney holder filed a proof affidavit in lieu of chief examination and on the basis of the proof affidavit he was examined as PW1 and the documents produced were marked as Exts.A1 to A9. On a perusal of the above said evidences, it is seen that the complainant was admitted at the 1st opposite party hospital for her delivery on 20.04.2010 and after the delivery she was discharged on 24.04.2010 and she was again admitted there on 29.04.2010 for treating the infection developed in the stitches of the patient and that treatment continued there and other hospitals till 25.07.2010. All the connected treatment records produced and marked by the complainant also shows that the complainant was treated for the alleged complications till 25.07.2010. But the opposite parties have no case that the treatments undergone by the complainant till 25.07.2010 is not related to the alleged complications and the alleged complications are medically accepted and are known complications or the said complications are caused due to the negligence of the complainant. Moreover, opposite parties have not adduced any evidence either oral or documentary for disproving the allegations of the complainant. In the circumstances, we are constrained to uphold the allegations of the complainant even though there is no expert evidence in favour of the complainant. Therefore, we find that the complication developed in the complainant is due to the negligent treatment of the 2nd opposite party at the 1st opposite party hospital. It is a clear deficiency in service from the part of opposite parties 1 to 3 and hence opposite parties 1 to 3 are liable to the complainant for the loss and sufferings of the complainant. Therefore, this complaint is allowable against opposite parties 1 to 3. Since opposite parties 2 and 3 are the employees of the 1st opposite party, 1st opposite party is vicariously liable to the complainant.
14. At the same time addl. 4th opposite party’s contention is that they are not liable to indemnify the opposite parties as they have violated the policy conditions by not intimating the claim within the stipulated period. The intimation of a claim depends on the date of starting the cause of action for intimating the claim by the claimant. In this case, such a cause of action will arise only on getting the order of this Forum by opposite party/claimant. So the contention of the additional 4th opposite party is not sustainable and hence addl. 4th opposite party is found liable to opposite parties 1 to 3 in respect of the policy in question.
15. In the result, this complaint is allowed, thereby the additional 4th opposite party is directed to pay ` 1,62,323 (Rupees One lakh sixty two thousand three hundred and twenty three only) (i.e. ` 1,76,615 less ` 14,292, item No.1 in Ext.A9 expenses summary) along with compensation of ` 1,00,000 (Rupees One Lakh only) and a cost of ` 5,000 (Rupees Five Thousand only) to the complainant within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 8th day of August, 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 : P.A. Varghese.
Exhibits marked on the side of the complainant:
A1 : Power of attorney dated 19.10.2010 executed by the
complainant in favour of P.A. Varghese.
A2 : Discharge summary dated 24.04.2010 issued by Muthoot
Medical Centre, Pathanamthitta in the name of the
complainant.
A3 : Discharge summary dated 17.05.2010 issued by
Pushpagiri Medical College Hospital, Thiruvalla in the
name of the complainant.
A4 : Discharge summary dated 24.05.2010 issued by
Lakeshore Hospital, Kochi in the name of the
complainant.
A5 to A5(b): Medical bills issued by Muthoot medical Centre,
Pathanamthitta in the name of the complainant.
A6 : Medical bill issued by Pushpagiri Medical College Hospital,
Thiruvalla in the name of the complainant.
A7 to A7(e): Medical bills issued by Lakeshore Hospital, Kochi.
A8 : Advocate notice dated 30.07.2010 sent by the
complainant to the first and second opposite parties.
A9 : Expenses summary for ` 1,76,615.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Glace Binoj Pappachen, Ozhathil House,
Mundukottackal P.O., Pathanamthitta. (2) The Managing Director, Mar Gregorios Memorial
Muthoot Medical Centre, Ring Road, Pathanamthitta
Pin – 689 645.
(3) Dr. Alphine Caroline MBBS,MS(OBG),
Mar Gregorios Memorial Muthoot Medical Centre,
Ring Road, Pathanamthitta, Pin – 689 645.
(4) The Medical Superintendent, Mar Gregorios Memorial
Muthoot Medical Centre, Ring Road, Pathanamthitta
Pin – 689 645.
(5) The Divisional Manager, Oriental Insurance Co. Ltd.,
Divisional Office, Palakkat Buildings, Market Junction,
Thrippunithura, Kochi – 682 301.
(6) The Stock File.
