SMT. RAVI SUSHA  : PRESIDENT

         Complainant filed this complaint  U/S 12 of Consumer Protection Act 1986  seeks to get an order directing opposite parties to pay Rs.15,00,000/- to the complainant  towards damages together with cost of the complaint.

       The facts of the case, in brief, are that during the first pregnancy of the complainant she consulted 2^nd OP the gynecologist of 1^st OP hospital gave  expected delivery date on 30/3/2017.  On that  date, 2^nd OP conducted caesarean operation  on the complainant and took the child.  Complainant is not an  asthmatic patient but the 2^nd OP  recorded in the case sheet that the complainant is an asthmatic patient to find out a  reason to conduct cesarean operation  on the expected delivery date itself.  Complainant further submits that when she was removed to the ward she felt severe pain on her back of both legs.  And  when enquired she  asked about the same to 2^nd OP , was informed that pain was caused due to burn injury caused by electrocautery  machine f which will be common  in all delivery case and same  will be recovered soon.  Complainant was discharged on 3/4/2017, at the time of discharge even though 2^nd OP gave an ointment to apply at the blister, 2^nd OP purposely did not note the blister on the back of the leg  in the discharge summary.  After discharge the pain and injury of the complainant aggravated and when the complainant contacted  the 2^nd OP, she only said that the blister will heal soon.  It is also submits that as the complainant could not tolerate the pain and  she became  disabled to walk, she went to 1^st OP hospital ,consulted the plastic surgeon Dr.M.B.Sambath Kumar and she  continued  treatment on 17/5/2017,28/5/17,19/5/17,20/5/17,23/5/17,25/5/17,3/6/17 and 10/6/17.  But the wound did not heal.  On 17/6/2017 as the wound was not healing, as per the advice of Dr.Sambath kumar the complainant went to A.J.Hospital Mangalore on 20/6/17 and she continued the treatment up to 21/7/2017, on which she was discharged with an advice to  take  bed rest.  The complainant could not move from her bed without the help of others. Even now the complainant  could  move outside the bed only with the  help of a  walker and  a helper.  Complainant also submits that it was due to the rash and negligent act of 2^nd OP , the complainant sustained electro cautery burns  on her both ankles.  The electro cautery burn was caused to the complainant while she was  unconscious due to anesthesia.  It is the duty of  the 2^nd OP as well as the staff of the 1^st OP to see that such a wound shall not be caused to the complainant when she was unconscious.  Complainant further alleged that she was admitted in  A.J.Hospital,Mangalore for 30 days, from their she and her baby was  having chicken pox  and as herself and baby was very weak .  So the injury caused due to the negligent act of 2^nd OP , is a grievous injury.  Further submitted that the complainant is entitled for compensation for mental agony and damages for Rs.15,00,000/- from the OPs.  Hence the complaint.    

    After receiving notices, opposite parties 1&2 entered appearance through counsel and filed separate version.

   1^st OP stated that the complainant was  an elderly primigravida who was admitted to 1^st OP  hospital for safe confinement on  28/3/2017.  On 30/3/2017 she was posted for lower segment caesarean section for the indication of cervical dystocia and failed induction, the need for caesarean section, the procedure and risk factors were explained to the complainant and her bystanders after taking written consent the 2^nd OP had conducted caesarean section  under spinal anesthesia with  all aseptic care and precautions.  The surgery was  uneventful and  a female baby weighing 3.3kg was extracted. The post operatively cautery burns were noticed on both  heels of the complainant and the same was managed with proper antibiotics and analgesics and  the burn area was inspected daily and it appeared healing well without any signs of infection.  On 3/4/2017 the complainant was discharged with  prophylactic antibiotics and advised review .  But the complainant did not  turn up for review as advised.  Further submitted that  it is  seen from the records that about one and a half month  later the complainant consulted Dr.Sambath  at 1^st OP hospital and continued treatment as per  his advice.  By the time the complainant developed secondary infection and the same was managed with VAC assisted  dressings done and with the said modality of treatment wound  was granulating well, later she was referred to higher centre for further management. The 2^nd OP had exercised  reasonable  care and caution in the treatment of complainant.  The cautery burns caused to the complainant was an accidental burn injury which was not caused due to any act or omission amounting to negligence on the part of OPs. The 1^st Op hospital  is having NABH Accreditation and has fully automated modern laboratory, imaging services, well equipped coronary care unit, medical pediatric and surgical ICU’s, Emergency Medicare services, modern and well equipped operation  theatre, labour rooms, a level 3 NICU and step down ICU with highly trained staff and modern renal dialysis.  There is no negligence or deficiency in service on the part of  1^st OP and the complainant is not entitled to get any relief , hence  prayed that the complaint  is to be dismissed.

    2^nd OP contended that there is no negligence or deficiency in service on the part of  1^st OP and the complainant is not entitled to get any relief prayed in the complaint .It stated that the complainant was  an elderly primigravida who was admitted to 1^st OP  hospital for safe confinement on  28/3/2017.  On 30/3/2017 she was posted for lower segment caesarean section for the indication of cervical dystocia and failed induction, the need for caesarean section, the procedure and risk factors were explained to the complainant and her bystanders after taking written consent the 2^nd OP had conducted caesarean section  under spinal anesthesia with  all aseptic care and precautions.  The surgery was  uneventful and  a female baby weighing 3.3kg was extracted. The post operatively cautery burns were noticed on both  heels of the complainant and the same was managed with proper antibiotics and analgesics and  the burn area was inspected daily and it appeared healing well without any signs of infection.  On 3/4/2017 the complainant was discharged with  prophylactic antibiotics and advised review .  But the complainant did not  turn up for review as advised.  Further submitted that  it is  seen from the records that about one and a half month  later the complainant consulted Dr.Sambath  at 1^st OP hospital and continued treatment as per  his advice.  By the time the complainant developed secondary infection and the same was managed with VAC assisted  dressings done and with the said modality of treatment wound  was granulating well, later she was referred to higher centre for further management. The 2^nd OP had exercised  reasonable  care and caution in the treatment of complainant and caesarean was the timely decision taken on the basis of clear indications and the baby was uneventfully extracted.  Electrocautery also known as thermal cautery refers to a process in which a direct or alternating current is passed through a resistant mental wire electrode, generating heat.  The heated electronode is applied to living tissue which is an accepted and safe method used to achieve hemostasis in various surgical  procedures nevertheless it very rarely causes burn injury as well.   The cautery burns caused to the complainant was an accidental burn injury which was not caused due to any act or omission amounting to negligence on the part of 2^nd OP. With any procedure especially surgical procedure there are potential risks to the patient and mere accident is not proof of negligence.  2^nd OP had also treated the burn injury as per standard and accepted protocol and on discharge there was no sign of infection.  In the light of the above stated facts the 2^nd OP is not liable to compensate the complainant.  2^nd OP had decided caesarean  section because of clear contra indication  for trial vaginal delivery.  It is submitted that the complainant developed secondary infection after discharge and thereby necessitated further management under treatment of plastic surgeon. There was no deficiency in service or dereliction of duty on the part of the 2^nd OP.  The complainant’s case that she was treated in AJ Hospital for chicken pox and infected to  baby is not pertaining to the knowledge of the 2^nd OP and in any case it has no nexus with cautery burn.  The amount quantified as compensation is highly exorbitant, exaggerated and without any substance, merit or rationale behind it and hence denied.  It is submitted  in the light of the above mentioned facts the 2^nd OP is not liable to compensate the complainant  and  prayed for dismissal of  complaint. 

      Complainant has filed her chief affidavit and documents.  She was examined as PW1and marked documents as  Exts.A1 to A11.  PW1 was subjected to cross examination for the OPs.  On the side of OPs , OPs1&2 filed chief affidavit and were examined as DWs 1&2 respectively.  Both OPs were cross examined for complainant.

    After that the learned counsel of complainant filed  argument note and learned counsel for the OPs made oral submission and  also submitted  judgments of Apex court.

   The undisputed facts are that the complainant was under treatment of 2^nd OP Gynecologist, at 1^st OP hospital and she was admitted in the hospital for delivery as IP NO.192665.  Further on 30/3/2017 caesarian was conducted by 2^nd OP and extracted a female baby weighing 3.3kg.  During caesarian , electrocautery  machine was used by 2^nd OP and post operatively cautery burn injury was notice on both heels of the complainant.  Further on 3//4/2017, she was discharged from 1^st OP hospital.  It is also an admitted fact that on 15/5/2017 complainant visited Dr.M.B.Sambath Kumar Plastic surgeon  working at 1^st OP hospital and was under his treatment  till 17/6/2017 and on 17/6/2017 Dr.Sambath issued a reference letter to the complainant and she was admitted at A.J. Hospita,Mangalore on 20/6/2017 for higher management.

   Complainant’s first allegation is that there is no reason to conduct caesarean operation and if waited one or two days more, normal delivery was possible, then there is no reason to use electro cautery machine.  Further for conducting caesarean operation.  2^nd OP recorded  in the medical records that complainant is an asthmatic patient ,fully knowing that the complainant was never had an asthmatic problem.

   2^nd OP has contended that for cervical dystocia with failed induction, lower segment caesarean was conducted for the safety of the mother and the child, after taking written consent of the complainant and her bystanders after explaining the need for caesarean section, the procedure and risk factors.  2^nd OP has further contended that post operatively cautery burns were noticed on both  heels of the complainant and the same was managed with proper antibiotics and analgesics and  the burn area was inspected daily and it appeared healing well without any signs of infection.  On 3/4/2017 the complainant was discharged with  prophylactic antibiotics and advised review .  But the complainant did not  turn up for review as advised.  According to 2^nd OP , she had exercised  reasonable  care and caution in the treatment and the cautery burns caused to the complainant was an accidental burn injury which was not caused due to any act or omission amounting to negligence on the part of the 2^nd OP.  Further  with any procedure especially surgical  procedure, there are potential risks to the patient and mere accident is not proof of negligence.  The learned counsel of OPs submitted  judgments of Hon’ble Supreme Court Jacob Mathew vs. State of Punjab for substantiating the above said contention, Kusum Sharma and others Vs. Batra Hospital & Medical Research centre and others.

   With regard to 1^st allegation of the complainant, in the discharge summary, 2^nd OP has recorded as ‘Asthmatic’.  During evidence  time DW1(2^nd OP) deposed that in page No.2 ‘ Asthma   പോലെയുള്ള patient  ആണെങ്കിൽ നിങ്ങൾ   after date of delivery യ്ക്ക് കാത്തു നില്ക്കാറില്ലേ?  ആർക്കും കാത്ത് നില്ക്കാറില്ല .  ഈ കേസ്സിലെ പരാതിക്കാരിക്ക് Asthma  ഉണ്ട് എന്ന് എന്നോട് പറഞ്ഞിട്ടില്ല .  അങ്ങനെ ഒരു രോഗം ഉള്ളതായി നിങ്ങൾക്ക് മനസ്സിലായോ?  Hospital records ലെ ഒരു Physician പറഞ്ഞിട്ടുണ്ട്.  ഏത്  physician  ആണെന്ന് എനിക്ക് ഓർമ്മയില്ല.   നിങ്ങളുടെ hospital ലെ  record   പരിശോധിച്ചാൽ ഏതെങ്കിലും രേഖയിൽ ഈ കേസ്സിലെ പരാതിക്കാരിക്ക് Asthma  ഉണ്ടോ എന്ന്   record   ചെയ്തതായി കാണുമോ?  എനിക്ക് ഓർമ്മയില്ല ’ .    Here OPs had not produced the previous  record of the same hospital  to establish the said deposition.  Since complainant stated that she is not an asthmatic patient, it is for the  hospital  or  the doctor concerned to discharge the burden of proving  by producing  the previous medical records of the complainant.  In the absence of production of records, it is not possible for us to accept statement given by the Gynecologist (2^nd OP)    and to draw an adverse inference against the OPs.

   OPs submitted that the complainant was posted for caesarean operation because  the indication of  cervical dystocia and failed induction .  Further submitted that the need for caesarean section , the procedure  and risk factors  were well explained to the complainant and her  bystanders and after taking their written consent, 2^nd  OP had conducted surgery under spinal anesthesia with all asceptic care and precautions.

  During cross-examination ,PW1 deposed that  in page No.6  എല്ലാ operation  ലും  risk factor പറഞ്ഞ് മലസ്സിലാക്കിയാണ് consent ഒപ്പിട്ടത്  എന്നു പറയുന്നു ?(Ans) consent ഒപ്പിട്ടു, risk  പറഞ്ഞ് മലസ്സിലാക്കിയിട്ടില്ല.  Here also OPs failed to produce before the commission , the written consent obtained from the complainant and her bystander after informing the need for caesarian section, the procedure and risk factors.  The omission in producing the written consent  letter, we are of the opinion that no valid or informed consent was obtained from the patient after informing  the risk  factor to be involved.  PW1 deposed that she had given consent only to conduct caesarian .  Hence the non production  previous and present  treatment records of the complainant amounting to deficiency of service on the part of OPs.

     On analyzing the deposition of DW1, she admitted  that cautery burn  was happened to both  heel of the patient and the burn was happened from  electro cautery  machine fit during the caesarian time and also the burn was present at the time of discharge of the patient.  Further  admitted that the  happening of  cautery  burn is not written in the discharge summary and no separate medicine prescribed by her for the burn injury at the discharge time except antibiotic on 3/4/2017.  Then it is to be noted in such a situation while the patient was under her treatment  from 30/3/2017 to 3/4/2017, as a responsible doctor she should have refer the patient or make arrangement to give treatment of a surgeon  or plastic surgeon.  That itself shows  gross medical negligence on the part of  2^nd OP.  Further DW1 admitted that the complainant with baby came to her  after 4 days from discharge with complaint of pain at the burn site.  Then also without referring the patient either to surgeon or plastic surgeon , she gave  antibiotic.  Further DW1  admitted that the complainant approached plastic surgeon of the same hospital in the month of May and at that time the burn injury was infected seriously and though the plastic surgeon  tried to heal the injury  it did not became heal and thus referred to higher centre for further management and  at that hospital, complainant as well as baby caught chicken pox.  Even though DW1 admitted the above said facts she tried to shift the responsibility of the happening of burn injury from the cautery machine to  the biomedical  engineering department under the management of 1^st OP  who fit the machine.  But neither 1^st OP nor  2^nd OP submitted any record to show that the cautery machine was defective at the incidental time.  More over DW1 admitted in her experience as a Gynecologist at  1^st OP hospital  2 other patients also got  cautery burn.  She further admitted that the said machine being  used as per their instruction and at the operation time  rob of the machine for  heating , being used by the Gynecologist.  In such  a situation the attempt of 2^nd OP Gynecologist to pass on the blame to the bio engineering department under 1^st OP is not acceptable(no document to show that machine was defective).  It is the doctor who herself was using the rob of the machine for heating purpose in the process of conducting surgery and if the burn injury was happened from cautery machine, it would have happened from her own hands.  In any case it was for her  to have made sure that no over dose of current passing into the blood vessel and no burn injury  happen.  DW2 had explained  the way of  causing of burn injury during the process of electro    cautery  machine during  his evidence.  Here both OPs also failed to establish the burn injury to the complainant  was caused due to the mechanical defect of the cautery machine.

   In the present case, it was the responsibility for the operating surgeon 1^st OP  to have been extra ordinary careful  to ensure that no burn injury or other complications happened during surgery.  Here as early  discussed above, it is for the hospital or the doctor concerned to discharge  the burden of proving that no negligence was committed.  The non-production  of medical record of the patient and consent letter informing the risk factor in the surgery and inspection report of the courtery machine shows opposite parties  failed to discharge their burden.  As such both OPs are liable for negligence amounting to deficiency of service.

   In the complaint, the following amounts  were demanded for compensation:

The amount spent for treatment for  injury Rs.1,80,000/-

For pain and sufferings                              Rs.3,00,000/-

For paying bystander at .J.Hospital             Rs.50,000/-

For further treatment                                Rs. 3,00,000/-

Loss of income                                         Rs.11,00,000/-   

                                         TOTAL            Rs.15,00,000/-   

   From the aforesaid claim 2^nd opposite party admitted that complainant was working  in I.T department and  due to the injury, complainant  had to  stay in home.  Further at the hospital complainant need help of bystander and if the burn injury is serious  in nature it looks ugly.

   We are of the view that , Ext.A8 the final bill of A.J.Hospital amounts Rs.1,28,778.81/- .  For paying bystander for one month at hospital amounts to Rs.10,000/-.  For further treatment and monthly income, no evidence submitted.

       In view of the aforesaid consideration, complaint is allowed in part.  Opposite parties 1&2 are directed to pay Rs.1,28,779+Rs.10,000+Rs.1,20,000/-(loss of income for one year)  ie, Rs.2,58,779/- to the complainant within one month from the date of receipt of this order.  Opposite parties 1&2 are further directed to pay Rs.10,000/- as cost  to the proceedings of the complaint.  Opposite parties 1&2 are jointly and severally liable to pay the  awarded amount. Failing in payment, the amount of Rs.2,58,779/- carries interest @9% per annum from the date of  order till realization.  Complainant is at liberty to file execution application against opposite parties 1&2 for realization of the ordered amount as per provision in Consumer Protection Act 2019.    

Exts:

A1-Discharge summary of 1^st OP dt.3/4/17

A2-Discharge summary of A.J.Hospital Mangalore dt.21/7/17

A3-Prescription of Koyili Hospital td.12/5/17

A4 to A7-Prescription of Dr.Sambath  Kumar td.15/5/17,20/5/17,27/5/17,17/6/17

A8&A9- Bill of A.J.Hospital dtd.21/7/17

A10- Lawyer notice

A11-reply notice

PW1-Gana.C.M-complainant

DW1-Dr.Bindu Mary Koshi-2^nd OP

DW2-Pramod.M- witness of OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR