IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 30th day of November, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 291/2016 (filed on 27-09-2016)
Petitioner : Sunny M.M.
Maruthoormattathil House,
Rajakkad P.o.
Idukki.
(Adv. S. Rajesh)
Vs.
Opposite Parties : (1) Managing Director,
Little Lourd Hospital,
Kidangoor P.O.
Kidangoor
(2) Dr. Deepa,
Little Lourd Hospital,
Kidangoor P.O.
Kidangoor
(3) Dr. Mary Marsillas,
Little Lourd Hospital,
Kidangoor P.O.
Kidangoor
(For Op1 to 3, Adv. Preetha John)
O R D E R
Sri. Manulal V.S. President
The wife of the complainant who was aged 51 years, was admitted to the first opposite party hospital on 7-4-2014 with complaints of stomach and bleeding as advised by the second and third opposite parties for the removal of the uterus. The wife of the complainant underwent surgery on 8-4-2014. The patient was shifted to the room at 10.30 pm on the same day. Though it is made to believe that it was a laparoscopic surgery the same was taken four and a half hours. The patient was shifted to the room at 9.30 p.m. on that day itself. The deceased Regeena Sunny became too weak in the early morning to the next day and it was informed by the third opposite party that the said Regeena sunny have pulmonary embolism and shifted to Caritas hospital Kottayam by the opposite parties. The said Regeena sunny expired on 9-4-2014. It is alleged in the complaint that though the complainant demanded the treatment records the first opposite party hospital did not give the same. It is alleged in the complaint that the said Regeena sunny died due to negligence from the second and third opposite parties in performing the surgery and treatment. It is further alleged in the complaint that the second and third opposite parties have obstructed the further treatment for the complications which are occurred due to the surgery conducted by the third opposite party and the second and third opposite parties had managed the treatment of Regeena sunny. The second and third opposite parties told the internal bleeding and consequential complications as cardiac problems of Rageena Sunny and that prevented treatment of an expert surgeon to the diseased. It is alleged in the complaint that the opposite parties had committed deficiency by not allowing an expert surgeon to consult the patient and not shifting the patient when the situation became worsened. Therefore the opposite parties are liable to pay compensation for the death of Regeena Sunny which was due to negligence and deficiency in service on the part of the opposite parties. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay Rs.19,45,000/- as compensation.
Opposite parties appeared and filed version contenting as follows:
The complaint is bad for the nonjoinder of necessary parties.
The wife of the complainant named Rageena Sunny approached the first opposite party hospital and consulted the second opposite party for hypothyroidism on 13-9-2012. As her TSH was 8.5 IU/ml she was started on Thyronorm 50 mg once daily for Hypothyroidism. As her USG report dtd.15-9-2012 showed bulky uterus with intramural seedling fibroids, she was referred to third opposite party for gynecological management. The patient had given a history of menorrhagia and backache of one-year duration. She also complained of passing heavy clots during periods. Per vaginal examination was done by the third opposite party and prescribed medicines for 5 days for controlling bleeding and iron tab for one month. Thereafter the patient approached the hospital on 10-1-2013 and consulted the second opposite party. Her TSH report was found normal as it was only 2.8 IU/ml. The patient again approached the first opposite party hospital on 10-3-2014 and consulted the second opposite party with complaints of irregular and heavy menstrual bleeding for which she was referred to the third opposite party. To find out the cause of her illness second opposite party advised her to repeat the Thyroid function test, renal function test, fasting lipid profile, fasting blood sugar, and USG. As the USG dtd.10-3-2014 showed diffuse Adenomyosis and tiny intramural fibroid and as she was having a heavy bleeding third opposite party advised to have a D&C to control bleeding. As all investigations were found normal D & C was done at 4 pm on the same day by Dr. Mary P Jossy who is another gynecologist and the specimen was sent for istopathology. The post-procedure care was given with antibiotics, antacids, IV fluids, and analgesics and she was discharged on the next day.
On 1-4-2014 the patient again came to the gynecology outpatient department complaining of heavy bleeding. As her endometrial histopathology report is consistent with cystic hyperplasia endometrium and as she was having uncontrolled bleeding, she was advised hysterectomy by the third opposite party, and the surgery was fixed to 8-4-2014. The patient was admitted on 7-4-2014 and seen and attended by Dr. Mary P Jossy who advised to take thyronorm 50 mg that night. Her vitals were normal and on pre-anesthetic checkup, she was found fit for anesthesia and surgery. Laparoscopic-assisted vaginal hysterectomy followed by posterior colpoperineorrhaphy was done by the third opposite party along with a team of doctors Dr. Sushanth and Dr. Mary P Josey with utmost care and caution as the patient also had Rectocele. A drain was put in the peritoneal cavity as usual to detect any internal bleeding.
The patient was shifted to the post-operative ward for proper monitoring. Around 10 pm as her vitals were found stable the patient was shifted to her room.
The patient was comfortable till 6 AM on 9-04-2014. At 6 Am patient complained of Fatigue and dizziness. The patient was seen and examined by the gynecologist on duty Dr. Sushanth immediately. Her vitals at the time of examination at 6 am were Bp-90/60 mmHg, per 100/- mint, pallor was present, abdomen was soft, and total drainage was only 50 ml. immediate ECG was taken. Dr. Anoop another physician and the second opposite party were informed and the patient was seen by both the physicians and also by third opposite party and their findings were highly suggestive of pulmonary embolism and the patient was referred to Caritas hospital immediately. Around 6.45 am she was shifted to Caritas hospital in an ambulance with all medical facilities accompanied by the second and third opposite parties. In Caritas hospital, the pulmonary embolism was confirmed through ECHO and CT scan and wherein she died.
It is submitted in the version that the surgery was done with utmost care and caution by third opposite party with a team of doctors as the standard medical protocol on getting informed consent. The patient was attended to and monitored carefully while in the post-operative room. She was shifted to her room on the same day and was seen by the duty doctor during the night and found normal without any complications. The allegation that the opposite parties were not permitted to see the patient while in Caritas hospital is denied and what type of treatment was provided to the patient in that hospital is not pertaining to the knowledge of the opposite parties. As the relatives insisted the body to be embalmed as there was heavy bleeding in all orifices, the opposite parties did embalm the body. The opposite parties had followed accepted norms and protocol while doing surgery and subsequent treatment when complained of fatigue and dizziness to the patient. The copy of the hospital records was handed over to the complainant as and when he demanded the same and not as alleged in the complaint. The second opposite party is a physician and the third opposite party is a gynecologist having sufficient experience in their respective field and working in the first opposite party hospital for the past several years. It is submitted in the version that as there was no negligence or deficiency in service on the part of the first opposite party they are not liable to compensate and the complaint is liable to be dismissed.
Evidence of this case consists of deposition of the PW1 and Pw2 and exhibits A1 to A6, from the side of the complainant and deposition of DW1 and DW2 and exhibits B1 to B2 from the side of the opposite parties and X1 and X1(a).
On the evaluation of the complaint, version, and evidence on record we would like to consider the following points.
- Whether the complainant has succeeded to prove negligence and deficiency in service on the part of the opposite parties?
- If so what are the reliefs and costs?
Point number 1
The wife of the complainant named Regeena Sunny was a patient of the second opposite party doctor since 13-9-2012 for the complaint of Hypothyroidism. On 1-4-2014 Regeena Sunny went to the Gynaecology department for consultation with a problem of heavy bleeding. The third opposite party advised a hysterectomy and she was admitted to the hospital on 7-4-2014. On 8-4-2014 she had undergone a laparoscopic-assisted vaginal hysterectomy, followed by posterior colpoperineorrhaphy which was done by the third opposite party. The patient was shifted to the post-operative ward and thereafter at 10 pm she was shifted to room. However, on 9-4-2014 at 6 am she complained of fatigue and dizziness. When her condition worsened the patient was shifted to Caritas hospital where she passed away. Exhibit A1 proves that the cause of death of Regeena was due to cardiac respiratory arrest and on clinical diagnosis, she had pulmonary embolism.
According to the opposite parties, the post-operative period was uneventful till 10 pm and the patient was shifted to the room. It was vehemently argued by the learned counsel for the complainant that, though the second and third opposite parties suspected that the patient have pulmonary embolism, no medication was given to the patient for the same. On perusal of exhibit A4 which is a referral letter from the first opposite party hospital, it can be seen that no medication was given to the patient for pulmonary embolism. On a mere perusal of A4, we can see that the ECG results show Sinus tachycardia.
Exhibit B1 is the treatment record of the diseased Regeena Sunny at the first opposite party hospital. On perusal of exhibit B1, we cannot see the nurse’s daily record in which the vitals of the patient was recorded in exhibit B1. After the examination of Dw1 who is the second opposite party, the first opposite party produced the same with an explanation that the same was misplaced. According to Dw1 who is the second opposite party in neither in exhibit B1 nor B1(a), there was any entry showing that the doctors at the first opposite party suggested the diseased have pulmonary embolism. She further deposed that in B1(a) there was no entry to prove that the vitals of the patient had been examined between 1.00 AM to 4.45 Am on 9-4-2014. She further deposed that the condition of the patient was recorded by the monitor and usually the doctors checked the monitor to understand the condition of the patient. She admitted that the details of the monitor record of the patient is not produced before the commission.
In Exhibit B1(a) page No:7 details like temperature, pulse rate, respiratory rate, BP, and IV infusion are recorded on 8-4-2014 at 10 pm and thereafter only at 1 am. After that, there are no checking records till morning 6 am. SPO2 level after 10 pm is also not shown.
PW2 who is a doctor at Caritas hospital would depose that the X1 letter did not show any evidence for any tests, that were done to conclusively prove pulmonary embolism. Usually, antidotes are given in suspected cases of pulmonary embolism but this was not given to the patient as per the X1 referral letter. He further deposed that the patient with pulmonary embolism is treated as per the classification of the ailment. This particular patient had a massive pulmonary embolism and the treatment for it is thrombolytic therapy. On re-examination, PW2 deposes that all hospitals should have the facility for the treatment of pulmonary embolism.
DW2 deposed that in any post-operative case of hysterectomy there is a chance of internal bleeding into the abdomen. Soft abdomens means there is no chance of internal bleeding. With these symptoms on the immediate post-operative day, we have to rule out the pulmonary embolism. She further deposed
that all post-surgical cases are at risk of pulmonary embolism, especially someone more prone like the obese patient, previous history of embolism, prolonged bedridden patients, and in general smoking and some drugs like contraceptic pills.
In surgical aspect cases if the surgery is a prolonged one, again there is more chance of pulmonary embolism. On cross examination, she deposed that, in exhibit B1 she did not see the time of starting of the surgery and normally it should be recorded in the anesthesia chart. In exhibit B1, in the anesthesia chart, the time of surgery was not recorded.Dw2furhter deposed that if the patient had the symptoms of chest pain, difficulty in breathing, dizziness tachycardia then usually doctors suspect the pulmonary embolism.
DW2 deposed before the commission that it is recorded in Exhibit B1(a) that the patient showed symptoms on 9-4-2014 at 6 am. But it is not shown whether the SPO2 level was checked after the patient showed the symptoms. Also, it is written that ECG is advised, but there are no records of ECG level at that time. It is deposed by DW2 that in cases of pulmonary embolism, the medicine Thrombolytis having the commercial name of Streptokinase is advised. It is a general medicine that could be given by all hospitals. According to DW2, it is better that all hospitals conducting surgery have to facilitate the treatment of pulmonary embolism. Also, once pulmonary embolism is diagnosed, the treatment should be given by the pulmonary and cardiology departments. In Exhibit B1 it is not shown that the cardiologist in the first opposite party hospital consulted the patient after the pulmonary embolism was noted. Dw2 deposed that IV fluid to control hypertension and Rantac injection for the gastric problem was given to the patient.
PW2 deposed that the treatment for pulmonary embolism should be facilitated by all hospitals. He further deposed that, the medicine Streptokinase was given only at 9.30 am after the confirmation of pulmonary embolism. According to him in cases of the suspect of pulmonary embolism usually, Antidots are given, but in the X1 referral letter, it is not mentioned that the same was given to the patient. He stated that the lowering of BP and difficulty in breathing during the post-operative stage are commonly seen in pulmonary
embolism cases.
According to Pw2 in the first opposite party hospital, the service of the cardiologist is available, but as per the referral letter consultation with the cardiologist is not seen. DW1 deposed that the medicine Streptokinase was not given to the patient from their hospital, though this medicine is stored by all hospitals. She further deposed that normally injection Heparin is stored in their hospital and according to B1 there is no evidence to show that this medicine was given to the patient. Also, there is no record of any medicines given to the patient.
Based on the above discussed evidence we can see that the vitals of the diseased Rageena Sunny was not monitored and recorded between 1.00 AM to 4.45 Am on 9-4-2014 in the first opposite party hospital. It is pertinent to note that PW2
and DW2 who are the experts relied on by both parties respectively deposed that after suspecting the pulmonary embolism no antidots were given to the patient by the opposite party doctors from the first opposite party hospital.
Counsel for the opposite parties relied upon the decision of NCDRC in P.A.Appasamy vs Manager, Vijaya Health Centre and ors(2019(3) CPR 229(NC), Sunder Lal and ors Vs. Dr.Sanjeev Arora and ors(2016(1) CPR 403(NC), A Rajangam@Velusamy and ors vs Dr. Frederick John and anr(2019(4)CPR 73 (NC), Appolo Hospital and anr vs Bhagwan L Moorjani and ors (2018(2) CPR 146(NC), Girishchandra V Bhatt and ors vs Sterling Hospital (2018(2) CPR 296(NC), Kannaya Chettiar and anr vs Nair Service Society and ors(2018(2) CPR 653(NC) and decisions of Hon’ble Supreme court in Harish Kumar Khurana (Dr) vs Joginder Singh and Others (2021 KHC 6436) , Vinod Jain vs Santokkba Duriabhji Memorial Hospital and anr (AIR 2019 SC 1143) and decision of Kerala High court in Mohamed Tariqa K and Other vs Savera Hospitals Pvt Ltd and other (2019(5) KHC 88.
Counsel for the complainant placed reliance on Mathew George (DR) vs Rajan and others (2017 (2) KHC 897, PRS Hospital (M/s) Thiruvanthapuram and anr vs P.AnilKumar(2021 KHC 1.
Hon’ble Supreme court in Harish Kumar Khurana (Dr) vs Joginder Singh and Others (2021 KHC 6436 has held that in every case where treatment is not successful or patient dies during surgery, it can’t be automatically assumed that the medical professional was negligent. To indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered..
In Vinod Jain vs Santokkba Duriabhji Memorial Hospital and anr(AIR 2019
SC 1143), the Hon’ble supreme court held that the wrong diagnosis cannot be equated to medical negligence. Hon’ble Kerala High court in Mohamed Tariqa K and Other vs Savera Hospitals Pvt Ltd and other (2019(5) KHC 88 held that to fasten the liability on a medical practitioner, the court has to ascertain whether there was an intentional act or commission or failure on his/her side in administering treatment to one’s patient. A mere error or a mistake in identifying the disease or lack of high skill may not amount to negligence.
In the case &Jacob Mathew vs. State of Punjab & Anr.& AIR 2005 SCC 3180 it was held that the Complainant is required to prove that the doctor did something or failed to do something which is the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. Similarly in other judgments namely, Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr., AIR 1969 SC 128 and A.S. Mittal vs. State of U.P., AIR 1989 SC 1570, it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.
As discussed above after suspecting the pulmonary embolism no antidots were given to the patient by the opposite parties doctors from the first opposite party hospital. The opposite parties failed to prove any medicines given to the patient after the diagnosis of pulmonary embolism.
The Supreme Court in the case V. Kishan Rao Vs Nikhil Super Speciality Hospital & Anr. 2010(2) RCR (Civil) 929 (SC) held that the expert witness is not required to be examined in all cases of medical negligence. In Paras No.47 to 49, the Hon’ble Supreme Court observed as follows:-
“47. In a case where negligence is evident, the principle of res-ipsa- loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
48. If the general directions in paragraph 106 in D’souza’s (supra) are to be followed, then the doctrine of res-ipsa-loquitur which is applied in cases of medical negligence by this Court and also by Courts in England would be redundant.
49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D’souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case.”
We would like to rely upon the case of Achutrao Haribhau Khodwa v. State of Maharashtra , their Lordships observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in tort would be maintainable. Their Lordships further observed that if the doctor has taken proper precautions and despite that, if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor. It was held as ‘A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care’. In the instant case, the Opposite Party No. 2 & 3 are liable for the acts of omission.
In the instant case, it is very clear from the facts stated in the foregoing paragraphs that a reasonable degree of care was not taken in the treatment of the Patient. Therefore we are of the opinion that the second and third opposite parties failed to give adequate medical care to the patient with due diligence and caution. On perusal of medical records, it can be seen that the second opposite party has examined the deceased Rageena of the day of the mishap. The first opposite party the employer is vicariously liable for the negligence committed by the doctors and the staff working in the hospital.
Point number 2.
In the medical negligence cases, the quantum of Compensation is highly subjective in nature as human life is most precious. The Hon’ble Supreme Court laid down different methods to determine ‘just and adequate compensation’ However, further cautioned the tribunals, saying the amount of compensation awarded was not expected to be a windfall or bonanza, nor should it be niggardly or a pittance. It was always a mixed question of fact and law, but a mere speculative possibility of benefit was not sufficient.
In this context, we would like to rely upon the judgment of the Hon’ble Supreme Court in Sarla Verma & Ors. vs Delhi Transport Corp. & Anr. which observed:
‘Compensation awarded does not become ‘just compensation’ merely because the Tribunal considers it to be just...Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse, or source of profit...Assessment of compensation though involving certain hypothetical considerations should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency, and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions’.
In the instant case, the Complainants claimed Rs.18 lakhs on the basis that the deceased was 51 years old. The deceased left two children, who were deprived of maternal care, love and affection. The husband (Complainant) lost the consortium. Thus, we are of the considered view that for the ends of justice Rs.10 lakh (Rupees Ten Lakhs) is just and proper compensation.
On the basis of forgoing discussion the Hospital – Opposite Party No. 1 and the two treating doctors (Opposite Parties Nos. 2 and 3) are directed to pay a total sum of Rs.10 lakh to the complainant.
The Opposite Parties shall pay the awarded amount within 4 weeks from the date of receipt of this copy of Order. The delay beyond 4 weeks shall attract interest @ 9% per annum till its realization.
Pronounced in the Open Commission on this the 30th day of November, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Complainant
Pw2 - Joby K. Thomas
Witness from the side of opposite party
Dw1 – Dr.Deepa
Dw2 – Dr. Marykutty K.J.
Exhibits marked from the side of complainant
A1 – Copy of death certificate in the name of Rajeena Sunny
A2 – Copy of bill issued by opposite party
A3 – Bill dtd.09-04-14 by Caritas Hospital
A4 – Copy of Doctors order sheet (referring letter) by LLM Hospital
A5 -Copy of case sheet in the name of Rajeena Sunny by Caritas hospital
A6-Copy of nursing care plan (LLM Hospital)
Exhibits marked from the side of opposite party
B1 – Original treatment record
B1(a) Temperature chart
B2 – Copy of letter dtd.13-05-2014 by complainant to 1st opposite party
Court Exhibit
X1 – Copy of death summary of Rajeena Sunny and doctor’s order and
progress sheet by Caritas Hospital
X1(a) - Copy of Doctors order sheet (referring letter) by LLM Hospital
By Order
Sd/-
Assistant Registrar
