KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
OP.84/98
JUDGMENT DATED:15..11..2011
PRESENT
SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA : MEMBER
1. Minor Rahul Jose, S/o Jose : COMPLAINANTS
Aged 9 months, akkappilly House,
Athani, Ernakulam District,
Rep.by next friend and his father
A.A.Jose.
2. A.A.Jose, S/o Augustine, aged 40,
-do-do-
3. Jancy Jose W/o A.A.Jose aged 31
-do-do-
(By Adv.M.J.Kuruvilla)
Vs.
1. P.V.S.Memorial Hospital Ltdd., : OPPOSITE PARTIES
Kaloor, Kochi-17, rep.by
Its Managing Director.
2. Dr.P.K.Rajeev, Pediatrician,
P.V.S.Memorial Hospital Ltd.,
Kaloor, Kochi – 17.
(By Adv.K.P.Dandapani)
JUDGMENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
The complaint filed under Section 17 of Consumer Protection Act.
2. The facts of the case are as follows:- 1st complainant is a minor and he is represented by his father as next friend. Complainants 2 and 3 are the father and mother of 1st complainant. 1st complainant was born on 24..12..97 at 9.30AM in govt. Hospital, Paravoor, Ernakulam district. 1st complainant had strider at birth (noisy breathing). Throat suction was done under direct vision by anesthesiologist at Govt.Hospital, Paravoor. There was no meconium plug or laryngeal oedema. There was no respiratory distress or cyanosis. Dr.T.O.Francis and other doctors of Govt. Hospital, Paravoor diagnosed that the 1st complainant is having congenital laryngeal strider. The child was treated with IVF at wrist and with antibiotics for 2 days. Dr.T.O.Francis advised that congenital laryngeal strider does not require therapy and it usually persists for 6 to 18 months only. Since there is no separate ward for new born children in Govt.Hospital, Paravoor and the new born children treated at the labour room, the parents of the 1st complainant requested for discharge. 1st complainant was discharged with reference letter of Dr.T.O.Francis. He was discharged on 25.12.97 at 7PM. He was admitted in Lisie Hospital, Ernakulam on the same day at about 10PM. Since doctors were on leave due to X’mas, there was only duty doctor to attend the 1st complainant. Hence on 26.12.97 at about 8AM 1st complainant was admitted at 1st opposite party hospital. The child was treated at NICU of 1st opposite party hospital. On 3.1.98 duty doctor Tony and the Surgeon Dr. Mohan Abraham told complainants 2 and 3 that left foot of the child is to be operated as the left foot is not having blood circulation. The tips of the toes of the left leg turned blue. Since there was no other go, 2nd complainant gave consent for a minor surgery. On 3.1.98, fasciotami was done. Thereafter the edge of the toes in left foot has become black. The doctors of the 1st opposite party hospital informed complainants that the left foot is getting all right. On 15.1.98 CT scan of the 1st complainant was taken. There after, 2nd opposite party diagnosed the illness of 1st complainant as congenital strider. 2nd opposite party informed the complainants that congenital strider does not require therapy. On 4.2.98, the surgery doctor showed the left foot of 1st complainant. The left foot was infected with full of pus and the bones could be seen out and the affected part developed gangrene. 2nd opposite party informed the complainants that the left foot of the 1st complainant has to be amputated to save the left leg. There was no other way for the complainants and thereby the 2nd complainant signed the papers for surgery. On 5.2.98, left foot of the 1st complainant was amputated. The skin from the thigh of the 1st complainant was grafted on amputated foot. From the hospital records, it is clear that an arterial line was put in the anterior tibial artery of the left leg. This resulted in changes including thrombosis causing blockage of the arterial supply and this has caused ischaemia, gangrene of the left forefoot and resultant amputation. The procedure and treatment adopted by the opposite parties were not the standard and proper procedure . The treatment was carried out with negligence. 1st complainant suffered disabilities and complainants suffered mental agony and pain. There was deficiency in service on the part of the opposite parties. Thus, the complainants claimed compensation of Rs.18 lakhs under various heads as stated in the complaint.
3. The opposite parties entered appearance and filed joint written version contending as follows:- The complaint is not maintainable. The complainants are not consumers as defined under section 2(1)(d)(ii) of the Consumer Protection Act. The total treatment expenses of the 1st complainant would come to Rs.72571.20. Out of the said amount, the complainants have remitted only an amount of Rs.13000/-. An amount of Rs.59571.20 is due from the complainants. Complainants have not paid the balance amount nor promised to pay the same. So, the complainants cannot be treated as consumers coming within the ambit of the Consumer Protection Act. The 1st complainant, child was treated in 1st opposite party hospital by a team of well qualified doctors including 2nd opposite party. 1st complainant was admitted in NICU(neonates intensive care unit). The NICU was having trained and well qualified nurses. 1st complainant was attended by experienced nurses viz, Miss.Elsy James, Miss Moly Paul, Miss.Jainamma and Miss Annakutty. 2nd opposite party had taken second opinion of another Pediatric Surgeon Dr.P.S.Binu and Plastic Surgeon Dr.Jayakumar of M/s Specilaist Hospital, Ernakulam. 1st complainant was brought to 1st opposite party hospital on 26.12.97 with the reference letter issued from Lisie Hospital. The child was gasping acutely. Immediately without any delay, the child was ventilated at 8AM. Treatment started forthwith .Dr.Thanoj.K.G was the duty doctor on 26.12.97 and started treatment. Inorder to subside the distress, Endotracheal tube was inserted into the lungs for artificial respiration. The test of arterial blood gas (ABG) shows PH 7.188. PH of less than 7.25 in a baby indicates severe respiratory distress and impending respiratory failure. Hence the baby was intubated. CO2 level of 60.11 mmHg indicated the child had severe problem with his breathing. The arterial line was placed after conducting allens test to estimate adequacy of collateral circulation in the posterior tibial artery of the left leg. Frequent sampling of blood gas was required to know child’s improvement. The child was ventilated as he continued to have strider. The child was taken out of ventilation on 28.12.97. Since the strider increased and there was severe respiratory retractions child was connected back to the ventilator on 1.1.98. Arterial line was not removed for a period of 2 days. On 30.12.97 arterial line was removed. No IV lines were placed on the left leg. On 1.1.98 bluish discolouration of the toes was noted and immediately steps were taken. Pepeverine was instilled by the side of the posterial tibial artery. Since there was no further change a fascitomy with the full consent of second complainant was done by Dr.Mohan Abrahm, the pediatric surgeon. Prior to the surgery the complications and prognosis were explained in detail to the parents of the child. Even after faciotomy, since the condition did not improve the child was given a spinal block with injection Bupivacaine. That was done for increasing of the blood flow to the legs. Inspite of the treatment there was slight discolouration on the edge of the toes.The child was also given injection pentoxyfyline and injection Tlasnues. On 3.1.98, the toes of the left foot were turning black , because of the development of dry gangrene. On 9.1.98, child was given a trial of extubation with nasal CPAP, but it was found that the child still was having respiratory distress on and off. In fact the 2nd complainant had even expressed his desire to discontinue the treatment as there was no improvement of the respiratory distress. The doctors of the 1st opposite party hospital tried their level best to save the child. On 15.1.98 CT scan was taken to rule out any cause of anatomical obstruction. 2nd opposite party never told the complainants that congenital laryngeal strider does not require therapy. The amputation of a portion of forefoot was done to save the left leg of the child. There was no sort of negligence or deficiency in service on the part of the doctors and hospital staff of the 1st opposite party in treating the 1st complainant. The present complaint is filed to avoid payment of the balance bill amount due to the 1st opposite party hospital. The 1st complainant was discharged on 14.3.98. The complainant left the hospital without remitting the bill amount. On 16.3.98, 1st opposite party hospital sent a registered letter affixing the bill and requesting for payment of balance amount. It is only thereafter, the present complaint is filed against the opposite parties. Thus, the opposite parties prayed for dismissal of the complaint.
4. After the institution of the complaint in OP.84/98, the complainants filed IA 979/99 for amendment of para 4 of the original complaint and thereby para 4 of the original complaint was deleted and amended para 4 was incorporated to the complaint. In para 4 of the original complaint it was alleged that intravenous fluids were administered through left foot vein and that the intravenous fluids administered through the left foot vein leaked and entered into fascial compartment which caused edema of the foot and compression of arteries whereby blood supply to the left foot was obstructed and that the left foot became gangrene ultimately resulted in amputation of the left foot of the 1st complainant. By the amended para 4 of the complaint it was alleged that arterial line was put in the anterior tibial artery of the left leg and it resulted in changes including thrombosis causing blockage of the arterial supply and it caused ischaenia, gangrene of the left forefoot and resultant amputation. It was also alleged therein that the method of treatment and procedure adopted by the opposite parties were not proper and there was negligence in treating the 1st complainant at 1st opposite party hospital.
5. The opposite parties had filed a preliminary objection to the complaint OP.84/98 disputing the maintainability of the complaint. It was contended that the complainants are not consumers as defined under section 2(1)(d)(ii) of the Consumer Protection Act. So, this State Commission was pleased to hear the maintainability of the complaint as a preliminary issue. After hearing both parties, this State Commission passed the order on the said preliminary objection regarding maintainability vide its order dated 27.1.99. It was held that the aforesaid issue regarding maintainability of the complaint can only be considered after adducing evidence by the parties to the said complaint. Thus, the said issue regarding maintainability of the complaint in OP.84/98 was left open for consideration at the time of final disposal of the complaint in OP.84/98.
6. The points that arise for consideration in this complaint are as follows:-
1) Whether the complainants herein can be treated as consumers as defined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986?
2) Whether the complaint as framed in OP 84/98 is maintainable under the provisions of the Consumer Protection Act, 1986?
3) Whether there was any medical negligence or deficiency in service on the part of opposite parties 1 and 2 and the hospital staff of 1st opposite party hospital in treating the 1st complainant at 1st opposite party hospital?
4) What order as to reliefs and the costs?
7. The evidence in this case consists of the oral testimony of PWs 1 to 3 and Exts.A1 to A6 on the side of the complainants and RWs 1 to 3 and Exts.B1 to B9 on the sides of opposite parties. Ext.X1 disability certificate dated 22.7.2000 issued from the Medical College Hospital, Kottayam was also marked.
8. Both parties filed proof affidavits in support of their respective pleadings in this case. The counsel for the complainants and opposite parties were also heard in detail.
9. Points 1 and 2:-
The opposite parties would contend that the complainants are not consumers as defined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986. It is contended that the complainants failed to pay the entire consideration for the treatment. The 1st complainant had undergone treatment at the 1st opposite party hospital. It is further contended that the complainants have also failed to promise the payment of the balance consideration due to the 1st opposite party in connection with the treatment of the 1st complainant in 1st opposite party hospital. There is no dispute that the 1st complainant was admitted in 1st opposite party, PVS Memorial Hospital on 26.12.97 at about 8AM and he was discharged from that hospital on 14.3.98. Admittedly the 2nd complainant is the father and 3rd complainant is the mother of the minor 1st complainant . It is to be noted that the 1st complainant was aged 9 months at the time of institution of the complainant in OP.84/98. The 1st complainant is represented by his father, the 2nd complainant.
10. 2nd complainant was examined in this case as PW1. He admitted the fact that a total of Rs. 13000/- was paid towards part payment by way of treatment expenses. He also admitted that his child was discharged from 1st opposite party hospital on 14.3.98 . He has no case that he paid any amount towards the balance treatment expenses. It is his case that no bill was issued to him at the time of discharge on 14.3.98.
11. It is also admitted by PW1 that on getting the said letter dated 16.3.98 he did not issue any reply to the said letter. Ext.A6 is copy of the letter dated 16.3.98. Ext.B7 is the said bill and B8 is copy of the said letter. Ext.B9 is the acknowledgment card. It would show that A6 letter (B8 )was served on the 2nd complainant.
12. Section 2(1)(d)(ii) of the Consumer Protection Act., 1986 defines consumer who hires or avails of any services for a consideration. It is as follows: 2(1)(d)(ii) consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
[Explanation.- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment];
The aforesaid definition would make it clear in order to fall under the ambit of consumer, there must be availing or hiring of service for consideration whether the consideration has been paid or promised or partly paid and partly promised. There can be no doubt about the fact that the complainants availed the services of the 1st opposite party hospital and the doctors and hospital staff attached to the 1st opposite party hospital in connection with the treatment of the 1st complainant in that hospital. It is also come out in evidence that a total of Rs.13000/- had been paid towards the consideration for availing the said services. It is true that the said payment of Rs.13000/- was towards part of the consideration. It is come out in evidence that the initial payments of Rs. 8000/- was effected on 2.1.98 and Rs.5000/- on 7.1.98. It is also to be noted that the treatment of 1st complainant continued thereafter upto 14.3.98. The aforesaid treatment was continued with an implied promise from the side of he complainants to pay balance consideration towards the treatment expenses. It can be seen that the opposite parties rendered medical services to the 1st complainant in connection with the treatment of the 1st complainant at 1st opposite party hospital with a definite expectation that the complainants will be making payment of the balance consideration towards the treatment expenses. The payment of Rs.13000/- by way of partial consideration would also give an indication that the complainants had given an implied promise to make payment of the balance consideration towards the treatment expenses. So, it can be concluded that the opposite parties rendered medical services to the complainants on the basis of the implied promise that the consideration for the services will be paid by the complainants. Thus, it can very safely be concluded that at the time of availing services the complainants were consumers coming under the purview of the Consumer Protection Act. The promise to make payment towards treatment expenses was implied and it was made at the very inception of the transaction viz, at the time of hospitalization of 1st complainant on 26.12.97.
13. It is true that subsequently the complainants failed to comply with the said promise to make payment towards balance of the treatment expenses. If there was breach of the said promise, it is for the 1st opposite party to proceed against the complainants for realization of the balance consideration. But the fact that the opposite parties rendered medical services to the complainants for consideration remains unchallenged. So, as far as the complaint in OP.84/98 is concerned, the complainants are consumers and the opposite parties 1 and 2 are the service providers.
14. The complainants have got a case that the 2nd opposite party had given assurance that the complainants need not pay balance of the treatment expenses; that the aforesaid assurance was given on the basis of the negligence on the part of 2nd opposite party in treating the 1st complainant. But, there is no acceptable evidence to support the case of the complainants that the 2nd opposite party Dr.P.K.Rajeev had given any such assurance regarding payment of balance of the treatment expenses. There is also nothing on record to suggest that the 2nd opposite party admitted his negligence in treating the 1st complainant at the 1st opposite party hospital. The 2nd complainant (PW1) has given evidence that there was such an assurance and that there was such an admission of negligence by the 2nd opposite party.
15. But the said case of PW1 has been categorically denied by RW2, the billing officer of the 1st opposite party hospital. RW2 has categorically deposed that a sum of Rs.59571.20/- is due to 1st opposite party hospital. He also deposed about B8 letter and B7 bill issued by 1st opposite party hospital. It is further to be noted that 2nd opposite party Dr.P.K.Rajeev was the pediatrician attached to 1st opposite party hospital. The 2nd opposite party had no authority to give any such concession in making payment of the bill amount. 2nd opposite party was not authorized to give any such assurance to the complainants. So, the case of complainants that they were absolved from the liability to pay balance consideration cannot be accepted as such. Issuance of A6 letter dated 16.3.98 would negative the said case of the complainants that there was such an assurance given by 2nd opposite party. At any rate, the aforesaid assurance given by 2nd opposite party will not bind the 1st opposite party because of the fact that 2nd opposite party was not authorized to make any such concession or assurance regarding the payment of the hospital charges and treatment expenses. It can only be inferred that the complainants committed breach of promise to pay the balance treatment expenses. The mere fact that the complainants committed breach of the promise cannot be taken as a ground to hold that the complainants are not consumers as defined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Hence, this State Commission have no hesitation to hold that the complainants are consumers coming within the ambit of the consumer Protection Act, 1986 and the dispute involved in this case is a consumer dispute. If that be so, the complaint as framed is maintainable under the provisions of the consumer Protection Act., 1986. These points are answered accordingly.
16. Point No.3:-
The case of the complainants is that the 2nd opposite party Dr.P.K.Rajeev was medically negligent in treating 1st complainant at 1st opposite party, PVS Memorial Hospital, Kochi, It is also alleged that the procedures adopted by 1st opposite party in treating 1st complainant were not proper and that 2nd opposite party failed to follow the standard procedures in treating a new born baby like 1st complainant. The opposite parties totally denied the alleged medical negligence and deficiency in service in treating the 1st complainant at 1st opposite party hospital.
17. The complainants in their original written complaint at paragraph 4 of the complaint have stated that the complication to the left foot of the 1st complainant happened due to the negligent administration of intravenous fluids through the vein of left foot. It was alleged that the intravenous fluids administered through left foot vein leaked and entered into the fascial compartment which caused oedema of the foot and compression of arteries whereby blood supply to the left foot was obstructed and thereby gangrene was developed and ultimately the left foot were amputated. But, the said allegations as the cause of complication to the left foot were given a go by. By the amendment a new para 4 was incorporated. In the amended para 4, the complainants alleged negligence in putting arterial line on the anterior tibial artery of the left leg. It is also alleged that the said arterial line caused thrombosis resulting in blockage of the arterial supply.
18. The complainants have also alleged negligence in preferring tibial artery for establishing arterial line. It is also stated that femoral artery would be the standard procedure to be followed in establishing arterial line. It is further alleged that the doctors of the 1st opposite party hospital including 2nd opposite party failed to give right treatment to the 1st complainant and that they also failed to ascertain adequate supply of blood to the posterior end of the left leg. It is also the case of the complainants that the doctors of the 1st opposite party hospital neglected to conduct allens test to make it sure that proper and adequate blood supply is provided to the posterior part of the left leg. The aforesaid allegations in para 4 of the original written complaint and the subsequent amendment by incorporation of a new para 4 to the said written complaint would suggest that the complainants were not sure or certain about the method or procedure adopted by the doctors of 1st opposite party hospital in treating the 1st complainant minor Rahul Jose.
19. The complainants 2 and 3 have got a case that the 1st complainant was having only mild congenital strider and the said ailment was detected by the Pediatrician attached to Govt. Hospital, Paravoor, Ernakulam and that the 1st complainant who was born on 24.12.97 was admitted in Lisy Hospital,on 25.12.97 as there was no separate ward for new born children. The aforesaid case of the complainants that the 1st complainant had no serious ailment or problem and the baby was shifted to Lisy Hospital, Ernakulam only because of non availability of separate ward for new born babies cannot be believed or accepted.
20. PW2 Dr.T.O.Francis was the then Pediatrician attached to Govt.Hospital, Paravoor; at the relevant time. Ext.A1 is the discharge letter issued by PW2 with respect to the treatment of 1st complainant at Government Hospital, Paravoor. Ext.A1 discharge letter would show that 1st complainant, (the baby of Jancy, the 3rd complainant) was born on 24/12/97 at 9.35AM, the baby was having congenital laryngeal strider. It is further stated that the baby presented strider at birth; throat suction done by Anestheologist. It is also stated that there was no muconium plug or laryngeal oedema. The baby was treated with IVF, antibiotics the 1st 2 days. No respiratory distractions, no cyanosis. It is also stated there is feeding difficulty. The baby was discharged at the request of the parents. It is to be noted that A1 is not having the date of issue. It would not show on what date A1 discharge letter was issued by PW2. Anyhow there is no dispute regarding the genuineness and correctness of A1 discharge letter issued by PW2.
21. The testimony of PW2 would show that the 1st complainant was in need of further treatment for the aforesaid congenital laryngeal strider. PW2 has categorically deposed that he informed the parents about the requirements of further treatment for the 1st complainant. PW2 could not give the reason or cause for the aforesaid congenital strider. PW2 has categorically deposed that there are so many reasons for the said congenital laryngeal strider. He stated that it may be due to laryngeal cyst, haemangiono(mal formation of blood vessals) laryngeal edema, thyroid swelling, vascular rings, lymphatic cyst, laringeomalascia, tracheomalascia. He is not in a position to say whether the child had any other problems. It is also come out in evidence of PW2 that throat suction under direct vision was done by the Anestheologist and he was not present at the time of throat suction done by the Anestheologist. It is also admitted by PW2 that Ext.A1 is only discharge letter. This situation would show that there was well maintained case sheet at govt. Hospital, Paravoor, with respect to the treatment given to the 1st complainant. But the complainants have not taken any steps to get the original case sheet produced from Government Hospital, Paravoor.
22. POINT NO.3:-
The first complainant was discharged from Govt. Hospital, Paravoor on the night of 25.12.97, and he was admitted in Lisie Hospital, Ernakulam at 10 p.m on the same day. Admittedly, complainants belong to Christian community and in the ordinary course unless there is such emergency the first complainant would not have been admitted in Lisie Hospital during the night hours of 25.12.97. It would indicate that the first complainant/baby was in a serious ill condition. The 25th December being the X’mas day no Christian will prefer to get his child admitted in a hospital. It is to be noted that the child was admitted at 10 p.m on 25.12.97. Again, the first complainant/baby was referred to the first opposite party hospital for expert management. Ext.B2 is the reference letter dated 26.12.97 issued by Dr.C.C.Kurian of Lisie Hospital, Ernakulam. There is no dispute regarding the genuineness and correctness of B2 reference letter dated 26.12.97.
23. Ext.B2 reference letter would show that the first complainant/baby was referred to PVS Hospital, Kochi for an expert management. The reference letters is addressed to the Neo Natologist, PVS Hospital, Kochi. It is also stated in B2 that the baby had a respiratory sound (congenital strider). it would also show that the injection vitamin K Injection, Tamix injection, Betnazol Injection, Deriphyllin Pulmoaid etc; were administered. The baby was given throat suction and Oxygen therapy. B2 reference letter would show that the first complainant/baby was in need of expert management by a neonatologist. This circumstance would negative the case of complainants that the child was shifted from Government Hospital, Paravoor to Lisie Hospital because of the non-availability of separate ward for new born babies. The further case of the complainants that doctors were not available at Lisie Hospital because of the fact that it was X’ mas day cannot be accepted. On the other hand, B2 reference letter would show that the first complainant was referred to the neonatology Department of PVS Hospital for expert management.
24. There can be no dispute that the first opposite party/hospital was having the facility for neonates care and there was intensive care unit for neonates. It is only because of the availability of the aforesaid facilities in first opposite party Hospital, the first complainant/baby was referred from Lisie Hospital to the first opposite party Hospital. All these circumstances would make it clear that the first complainant was seriously ill and he was in emergent need of expert management by neonatologist.
25. The complainants have got a case that there was no need for providing ventilator support to the first complainant. On a perusal of Ext.B3 case sheet maintained in PVS Memorial Hospital, Kochi would show that the condition of first complainant was serious and he was in dire need of ventilator support. In the first page of B3 case sheet, it is recorded that 3 day old baby was gasping due to respiratory distress. It is to be noted that at the very first instance, the baby was given bag and mouth ventilation and later it was found that the baby is gasping and then the patient was put on ventilatory support. It is too much to say that the first complainant/baby was not in need of ventilator support. It is not just or fair on the part of the complainants 2 and 3 to allege that the baby was put on ventilation un-necessarily.
26. RW1, Dr.Tony Mampally attached to the first opposite party hospital has deposed about the emergent need for ventilatory support for the first complainant. RW1 is a specialist in pediatrics. He had occasion to examined the first complainant at first opposite party hospital. RW1 is attached to the neonatology unit of the 1st opposite party hospital. RW1 has also filed proof affidavit in this case. Ext.B2 reference letter was proved through RW1. There can be no doubt about the fact that RW1 is well qualified and experienced in treating neonates. The mere fact that RW1 is attached to the first opposite party/hospital cannot be taken as a ground to doubt the oral testimony of RW1. He categorically deposed that 1st complainant/baby was having acute respiratory failure and the baby was in need of ventilatory support.
27. The second opposite party Dr.P.K.Rajeev was examined as RW3. He has also deposed about the ventilatory support given to the 1st complainant. The evidence of RW3 would also show that the medication alone was not sufficient to get recovery of the 1st complainant from respiratory distress and that the baby was in need of ventilatory therapy.
28. PW2 is the Doctor who treated the 1st complainant/baby at Govt. Hospital, Paravoor. He also admitted that the baby was in need of further management. It is to be noted that PW2 had no occasion to note the condition of the baby on 26.12.97 at 8 a.m. He also admitted the fact that the baby had congenital strider. He could not detect the reason for the aforesaid congenital laryngeal strider. He also admitted that there are ever so many reasons or causes for the said congenital laryngeal strider. He admitted the fact that the baby was subjected for laryngeal scopy, immediately after birth. But the result of the laryngeal scopy is not available for perusal. PW2 admitted the fact that laryngeal scopy was done by anesthesiologist attached to the Government Hospital and that he was not present at the time when laryngeal scopy was done by the anesthetist. PW2 has also admitted the fact that 2 day old baby was in need of antibiotics.
29. PW3 is Dr.Mathew Thomas and he is experienced in the filed of Anesthesiology. He admitted the fact that first complainant/baby having gasping respiration was in need of ventilatory support. PW3 was asked about the need for ventilatory support by referring to 1st page of the B3 case sheet. The answer to the said question was an emphatic affirmation. Thus, PW3 who was examined on the side of the complainant as an expert doctor has also admitted the need for ventilatory support to the first complainant/baby who was having gasping respiration. “The 1st page of case sheet (2nd paragraph) read over to the witness”. Can you say ventilation at that stage was appropriate? An:- Yes. (Page 59 & 60 of PW3). PW3 was also asked the question that “if the child is gasping would you not ventilate the child”? An:- I would. (Page 42 of PW3). So, the analysis of the testimony of PW3 would also support the case of opposite parties that 1st complainant/baby was in emergent need of ventilatory support. The case of the complainants that the opposite parties put the first complainant on ventilation un-necessarily cannot be believed or accepted.
30. The other allegation of the complainants is that there was negligence on the part of the doctors attached to 1st opposite party hospital including the 2nd opposite party in selecting the Tibial artery for providing arterial line to take blood gas sampling. According to the complainants the femoral artery is preferred than the Tibial artery. RWs 1 & 3 have deposed about the advantages in selecting Tibial artery to put the arterial line for taking blood gas sampling. They have also stated that femoral artery being the main artery if any blockage happened it will adversely affect the entire part of the leg. RW1 has also relied on the medical authority in support of his case that posterior tibial artery is preferred than the main artery like femoral. Thus, the evidence of RWs 1 & 3 would show that there was no negligence in preferring posterior tibial artery to put the artery line on the 1st complainant.
31. PW3 has given an opinion that femoral artery is preferred than the tibial artery in getting arterial line opened. But, PW3 could not give any specific reason for selecting femoral artery. According to PW3, he prefers femoral artery for his convenience and that it is his practice in selecting femoral artery than the tibial artery. It is to be noted that PW3 had no experience of putting arterial line in neonates (new born baby). He categorically admitted that he had no occasion to work in a hospital where neonatology unit was functioning. He categorically admitted the fact that he is not an expert in the field of neonatology and he had no occasion to put arterial line for a new born baby. So, the evidence of PW3 regarding the selection of femoral artery for providing arterial line cannot be accepted as such. PW3 has also admitted the fact that he had no occasion to go through the text book “Atlas of procedure in neonatology” written by Mary Flecher. At the same time, PW3 admitted in his cross examination that for arterial puncture (cannulation) peripheral artery like radial, ulna, posterial tibial or dosalis paedis or umbilical artery are preferred than central artery. Thus, an overall analysis of the testimonies of RWs 1, 3 and PW3 with reference to the various text books in the filed would suggest that there was nothing wrong in preferring posterior tibial artery to open the arterial line on 1st complainant.
32. Complainants have alleged failure on the part of second opposite party and other doctors of 1st opposite party/hospital in performing Allen’s test on 1st complainant/baby in order to ascertain the circulation to the left foot. On the other hand, the opposite parties would contend that they performed Allen’s test in order to ascertain the circulation of blood to the left foot of the 1st complainant. It is true that B3 case sheet maintained by 1st opposite party/hospital with respect to the treatment of 1st complainant is silent about Allen’s test performed on 1st complainant. RW3, the 2nd opposite party has admitted in his cross examination that there is no mention in Ext.B3 case sheet about Allen’s test. RW3 has also given an explanation for the omission to mention the Allen’s test in B3 case sheet. It is deposed by RW3 that it is the standard protocol ofperforming Allen’s test to ascertain the efficiency of blood circulation. It is categorically deposed that in the neonatology unit they have adopted the practice of doing Allen’s test to ascertain the sufficiency of blood supply. It is deposed by RW3 “usually we do not record it”. There is no specific reason to state in the case sheet because it is a standard procedure. It is further admitted by RW3 that there is nothing on record to show that such a procedure was adopted. In this circumstance, it is also to be noted that in the case sheet there is no mention about the name of artery, which was preferred to put arterial line. RW3 has also deposed that in the case sheet the exact artery cannulated is not mentioned. The mere omission to mention a standard procedure in the case sheet cannot be taken as a ground to hold that such a procedure was not adopted or followed.
33. In the version, it is sated that arterial line was placed after conducting Allen’s test. In the proof affidavit filed by the 2nd opposite party, it is specified that they conducted modified Allen’s test for the purpose of ascertaining the sufficiency of circulation to the left foot. The fact that in the version, it is stated as Allen’s test cannot be treated as an in-consistency or contradiction. The testimony of PW3 in his cross examination would also make it clear that the procedure of Allen’s test is being carried out to ascertain the sufficiency of blood circulation to hand and that modified Allen’s test. Being performed in the case of ascertaining sufficiency of blood circulation to the leg or foot. There is no reason or ground to doubt the case of the opposite parties regarding the performance of Allen’s test.
34. RW1, Dr. Tony Mampally attached to 1st opposite party hospital has also deposed about the Allen’s test conducted on 1st complainant. He deposed that the Allen’s test was done to ascertain the adequacy of collateral circulation to the left foot. RW1 has also deposed that Allen’s test is a standard procedure being done whenever peripheral artery is cannulated and the said standard procedure is being followed in the neonatal unit of 1st opposite party/hospital. RW1 has also filed affidavit to that effect. Even though, RW1 was cross examined at length, nothing could be brought out to dis-credit his testimony. Thus, the case of the complainants that the opposite parties failed to perform Allen’s test on 1st complainant cannot be believed or accepted.
35. It is to be noted at this juncture that at the first instance, the complainants had no such case regarding the alleged failure on the part of the opposite parties in performing Allen’s test. On the other hand, the case of the complainants at the first instance in the original written complaint was entirely different. It was the case of the complainants that the intra venous fluid administered through left foot vain happened to be leaked and the said fluids entered fatial compartment which caused oedema and gangrene and ultimately resulted in amputation of the left foot. Thus, the present case of the complainants can be treated as an afterthought to suit their claim for compensation.
36. The complainants have got a case that there was no need to put an arterial line for analyzing blood gas. On the other hand, the case of the opposite parties is that arterial line was placed for the purpose of frequent sampling of blood gas. It is to be noted that 1st complainant was two days old baby, when he was admitted in 1st opposite party hospital on 26.12.97. He was born on 24.12.97. There can be no doubt about the fact that taking of arterial blood from a new born baby would be more difficult. It is also to be noted that taking of arterial blood from such a baby will be more painful to the nurse as well as to the baby.
37. Even, according to the complainants blood samplings were taken on 5 times in 4 days. By putting an arterial line frequent penetration of artery of a new born baby can be avoided. PW3, the expert anesthesiologist on the side of the complainants has also deposed that getting arterial access in a new born baby will be difficult, though it is not impossible. RWs 1 & 3 have deposed about the necessity of getting an arterial access for avoiding frequent penetration of the artery in a new born baby like the first complainant. There is nothing on record to show that the aforesaid procedure followed by the doctors of 1st opposite party hospital was wrong or improper. No expert evidence is available on record to substantiate the said case of the complainants. On the other hand, PW3 in his cross examination has admitted the need for getting the blood gas analyzed. Ext.B3 case sheet would show the blood gas analysis done by 1st opposite party hospital. It can also been seen that the 1st complainant/baby was in a critical stage and the PH value was abnormal. PW3 has categorically admitted the fact that PH value can be determined only by doing blood gas analysis. So, the case of the complainants that the doctors of 1st opposite party hospital performed so many procedures which were un-warranted cannot be accepted for a moment.
38. There can be no doubt about the fact that the burden of proving the alleged medical negligence is on the complainants who have alleged medical negligence against the doctors of the 1st opposite party hospital. But, the evidence available on record would not support the case of the complainants regarding medical negligence. The expert doctors examined on the side of the complainants are PWs 2 and 3. PW2 could depose only about the condition of the 1st complainant baby on 24th and 25th December 1997. He is not in a position to say about the condition of the 1st complainant baby when the baby was admitted in 1st opposite party hospital. PW2 had no occasion to verify the entries in B3 case sheets or about the treatment and procedures followed by the doctors of the 1st opposite party hospital in treating the 1st complainant. PW2 is sure and certain that the 1st complainant baby was in need of further treatment and management. He also admitted that there are ever so many reasons for having congenital laryngeal strider. He had no occasion to conduct the laryngeal scopy on the 1st complainant. The aforesaid laryngeal scopy was done by the anesthesiologist attached to the Government Hospital, Paravoor. But, the aforesaid anesthesiologist was not examined in this case. The report of anesthesiologist who performed laryngeal scopy on the 1st complainant is not available on record. The case sheet of the 1st complainant for his treatment in Government hospital, Paravoor is also not available on record. The complainants have not taken any steps to get the said case sheet produced from the Govt. Hospital, Paravoor. Thus, the evidence of PW2 is not at all sufficient to support the case of the complainants regarding medical negligence on the part of the doctors attached to 1st opposite party hospital.
39. Other witness examined on the side of the complainants is PW3, Dr.P.Mathew Thomas. The evidence of PW3 would show that he is only an expert in anesthesiology and he had no experience as an anesthesiologist in treating babies in a neonatology unit. A careful study of the oral version of PW3 would show that he is not an expert in the field of neonatology. He had no occasion to treat a baby in a neonatology unit. It is admitted by PW3 that he had no occasion to work in a neonatology unit. PW3 in his cross examination categorically admitted the fact that he is not competent to speak about the adequacy or inadequacy of the treatment given by the doctors of 1st opposite party hospital (Page 64 of PW3). DW3 has also deposed that he is not in a position to say about the consequence of the insertion of arterial line in the tibial artery of the 1st complainant. He has also deposed that he had only come across vasospasm during insertion of cannula and so he is not aware whether it can happen after a couple of days. (Page 49 of PW3). Thus, it can very safely be concluded that PW3 is not an expert in the field of neonatology and he is not competent to depose about the alleged negligence or lapse on the part of the doctors including the second opposite party in treating the 1st complainant.
40. An analysis of the testimony of PW3 in its entirety would only support the case of opposite parties. The evidence tendered by PW3 would show that the 1st complainant who was gasping at the time of his admission in 1st opposite party hospital was in dire need of ventilatory support and he was also in need of getting the blood gas analyzed frequently and for that purpose arterial line was opened by following the prescribed and standard procedures. The doctors of 1st opposite party hospital had also taken the precautionary measures to avoid inadequacy of blood supply to the left foot where arterial cannulation was done. But, even after taking such precautionary measures there occurred oedema causing dry gangrene. The doctors tried their level best to get the dry gangrene removed. But, the said attempt ended in failure. Ext.B3 case sheet would also show that the 1st opposite party hospital had also taken the expert opinion of Dr.Binu and Vascular Surgeon Dr.Jayakumar attached to specialized hospital, Ernakulam. Even after taking all those steps, the opposite parties and other doctors of the first opposite party hospital could not save the left foot of the first complainant. In order to save the left leg the left foot of the 1st complainant was amputated.
41. Ext.X1 certificate issued by the Medical Board of Medical College Hospital, Kottayam would show that the 1st complainant is having permanent disability at 45 % and that the 1st complainant is suffering from so many difficulties and abnormalities. But, evidence on record would show that the dry gangrene was developed not due to the negligence or lapse on the part of the opposite parties. But it so happened as a complication due to lack of adequate blood supply to the left foot. It is true that the aforesaid complication occurred as a result of opening of arterial line on left tibial artery. But the arterial line was opened as part of the treatment. There was no negligence in getting such an arterial line, for the purpose of doing blood analysis.
42. Ext.B3 case sheet and the oral testimony of RW1 and RW3 would show that the 1st complainant was brought to the neonatology unit of the 1st opposite party hospital for expert management and at that time, the 1st complainant was critically ill. PW2 himself has deposed that the 1st complainant was nearing to death and child was in need of ventilatory support. PW3 has also deposed in such a situation blood gas analysis had to be done frequently. The evidence on record would speak volumes about the sincere and earnest attempt on the part of the doctors of the 1st opposite party hospital in saving the life of the 1st complainant. The case of the complainants that no further treatment was required for laryngeal strider cannot be accepted for a moment. If that was the situation of the 1st complainant baby, there was no need for the complainants 2 & 3 to bring their baby to the 1st opposite party hospital. Ext. B2 reference letter issued by the pediatrician of Lisie Hospital, Ernakulam itself would show that the 1st complainant baby was in urgent need of expert management and treatment by a neonatologist. The materials on record would also show that the 1st opposite party hospital was well equipped with a neonatology unit including neonates intensive care unit. The approach and attitude of the second complainant would show that the complainants are only interested in getting compensation from the opposite parties and the said claim is made without any basis.
43. The fact that second complainant, the father of 1st complainant failed to pay the balance of the bill amount would show that the intention of the complainants was to escape from the liability to pay the said amount due to 1st opposite party/hospital. The issuance of letter dated 16.3.98 would also make it clear that 1st opposite party was very much interested in recovering balance amount of Rs.59571/- from second complainant. The complaint in OP.84/98 is liable to be dismissed, as there was no medical negligence or deficiency in service on the part of opposite parties 1 & 2. This point is answered accordingly.
44. The forgoing discussions and findings thereon would show that the complaint in OP.84/98 is liable to be dismissed. Hence we do so.
In the result, the complaint is dismissed. Considering the pathetic condition of first complainant, the parties are directed to suffer their respective costs.
SHRI.M.V.VISWANANTHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
SL
APPENDIX
COMPLAINANTS WITNEESS
PW1 : A.A.Jose
PW2 : Dr.T.O.Francis
PW3 : Dr.P.Mathew Thomas
COMPLAINANTS EXHIBITS
Exts.A1 : Discharge summary for Paravoor Hospital
Exts.A2 : Card from PVS Hospital
Exts.A3 : Receipt No.32510 of PVS Memorial Hospital,
Kochi.
Exts.A4 : Receipt No.32682 of PVS Memorial Hospital,
Kochi.
Exts.A5 ; Scanning charges receipt dated 15.1.1998
Exts.A6 : Settlement of Hospital bill
OPPOSITE PARTIES WITNESS
RW1 : Dr.Tonny Mampilly
RW2 ; K.J.Raphy
RW3 : Dr.P.K.Rajiv
OPPOSITE PARTIES EXHIBITS
Exts.B1 : Photocopy of the Discharge summary for
Paravoor Hospital
Exts.B2 : Photocopy of the reference letter for Lisie Hospital
Exts.B3 : Case sheet records
Exts.B4 to B6 : Reference to standard Text
Exts.B7 : Bills from the PVS Hospital, Kochi.
Exts.B8 : Settlement of Hospital bill
Exts.B9 : Acknowledgment card.
Ext.X1: Disability certificate.
SHRI.M.V.VISWANANTHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
SL
