IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA

Dated this the 15^th day of March, 2011.

Present : Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

O.P.No. 59/04  (Filed on 19.03.2004)

Between:

1.     Vinodkumar,

Thundil Puthen Veedu,

Vayalinum Padinjaru Muri,

Pandalam Thekkekara Village,

Adoor Taluk.

2.     Parvathy,    -do.  –do.

(By Adv. K.G. Muraleedharan Unnithan) &

       C.R. Bijukumar)                                                        .....     Complainants.

And:

1.     The Medical Superintendent,

      NSS Medical Mission Hospital,

      Pandalam.

(By Adv. P.N. Narendranathan Nair &

  K. Jyothikumar)

2.     Dr. Shanti Sarojam, Gynecologist,

Archana Hospital, Pandalam.

3.     Dr. Ramalingam, Anesthetist,

   -do.  –do. (Present Address –

Dr. Ramalingam, Anesthetist,

Archana Hospital, Pandalam).

Addl.4. The Branch Manager,

            Oriental Insurance Co. Ltd.,

            Changanassery Branch.

Addl.5. The Divisional Manager,

     Oriental Insurance Company Ltd.,

     Marthoma Buildings,

     T.K. Road, Thiruvalla.                                 ..... Opposite parties.

ORDER

Smt. C. Lathika Bhai (Member):

                   The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.

                   2. The facts of the complaint is as follows:  The complainant’s wife late Ambily Vinod was under the treatment of the opposite parties while she conceived the second complainant.  On 21.03.2002 she was admitted as inpatient in the first opposite party hospital at the advanced stage of pregnancy.  She was removed to the operation theatre by 6 p.m. on 22.03.2002 as the third opposite party opined that caesarian (LSCS) was necessary.  The second complainant was born under caesarean operation after anesthesia.  Even after the midnight on the fatal day Ambily was not brought back from the operation theatre and the first complainant and relatives were anxiously waiting to see her and the child. 

                   3. On repeated enquiry, it was confided to the first complainant that there developed some complication and Ambily had not recovered.  There were no facilities attached to the first opposite party hospital to manage the situation.  The first complainant came to know that Ambily’s condition was critical due to anesthetic complications caused by the opposite parties 2 and 3 and on request, Ambily was taken to the Century Hospital, Chengannur wherein she was admitted as inpatient during the early hours on 23.03.2002.  But she was discharged from the hospital in the unconscious state in which she was removed from the first opposite party hospital.  Thereafter, she was taken to Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram where she underwent treatment as inpatient from 25.03.2002 08.04.2002, which did not give any result.  Further she underwent treatment in Maria Hospital, Adoor from 10.04.2002 to 02.05.2002 and in Indo-American Hospital for Brain and Spine, Vaikom from 02.05.2002 to 06.07.2002 and she continued in unconscious state.  Thus she was ultimately taken to the first complainant’s home where she breathed her last on 19.03.2003. 

                   4. The first complainant’s wife Ambily suffered a lot and died as the direct consequence of the negligence and deficiency in service on the part of the opposite parties.  It is gathered that immediately after caesarean, the second and third opposite parties have left the premises of the hospital.  It is mandatory on the part of the said doctors to remain with the patient till normalcy is regained.  But in the instant case, both of them were negligent in this respect, which delayed the management of the situation.  Another important flaw on the part of the opposite parties is that there are no facilities in the hospital to meet with a situation as in the present case.  They should not have ventured to go for surgery in a hospital, which lacks the required facilities.  It is also gathered that the third opposite party is not a qualified Anesthetist.  His role in the matter is dubious as evidenced from his absence immediately after the incident.  It is important to note that late Ambily had no pre-existing medical illness. She had a healthy condition.  Any of the warranting situations for a surgery was not present in the instant case.  Obviously the opposite parties ventured the surgery for pecuniary benefits.  The anesthetic complication arose out of the direct result of the negligence on the part of the opposite parties 1 and 2.  They failed to foresee the anesthetic complications.  It is also important that the third opposite party might have acted under the behest of the second opposite party.

                   5. The first complainant had incurred an amount of ` 3 lakhs by way of treatment expenditure of Ambily, which is also a direct consequence of the negligent acts on the part of the opposite parties.  The second complainant who is a minor is deprived of the tender care and affection of her mother throughout her life.  She is destined to live in solitude.  The loss sustained to the second complainant cannot be calculated by any stretch of imagination.  The death of Ambily had spoiled the marital life of the first complainant.

                   6. After the death of the first complainant’s wife, the management of the first opposite party hospital paid a paltry sum of ` 1,15,000 to the first complainant.  They had obtained some blank papers signed from the first complainant presumably with a view to defeat the legitimate claim of the complainants by concocting documents.  Such documents are not binding on the complainants, as the same is the result of fraud.

                   7. The opposite parties are bound to compensate the loss sustained by the complainants.  They are accountable to the negligence on their part.  Hence the complainants filed this complaint for getting an order for directing the opposite parties to pay ` 10 lakhs as compensation with interest along with cost.  The complainants pray for granting the reliefs.

                   8. The first opposite party has filed a version raising the following contentions:  The Forum has no pecuniary jurisdiction to entertain this complaint and it has to be dismissed inlimine on that sole ground.  The averment of the complainant that the complainant’s wife was under the treatment of the opposite parties while she conceived the second complainant is not fully correct.  She was under the treatment of second opposite party during that time.  It is true that on 22.03.2002 at 6 p.m. she was taken to the operation theatre for caesarean and operation was done under anesthesia.  It was given by the Anesthetist, the third opposite party.  She was shifted to the postoperative room from the theatre in time after operation.

                   9. The statement in para 2 of the complaint that there was no facility attached to the first opposite party’s hospital to manage the situation is false and is denied.  There was adequate facility in the hospital to conduct caesarean and all treatments required connected with that.  There was no lack of care and diligence on the part of the third opposite party in giving anesthesia to Ambily as alleged.  So the statement that Ambily’s condition was critical due to anesthetic complications is also false and is denied.  Anesthesia was given and operation conducted as such a course was absolutely necessary at that time to save the mother and child.  Ambily’s consciousness was not lost due to lack of care or diligence on the part of either of the opposite parties 2 and 3.  Ambily regained consciousness after operation well within time as expected in such operations.  But there developed local convulsions on the left side at 10-30 p.m. for the patient.  The duty doctor Jayakumar had immediately attended the patient and started treating her.  Emergency care was given to her.  Dr. Santhi Raj, Senior Anesthetist and Dr. Jacob John also were there to attend and treat the patient.  From the onset of convulsions she became unconscious.  This convulsion and subsequent loss of consciousness were not due to any fault of the doctors who treated the patient in the hospital.  The second and third opposite parties have also reached the post operation room immediately and had given all treatment possible to the patient.  As her condition had not improved it was ultimately decided to shift her to a hospital where scan facilities are available.  Accordingly, she was taken to Century Hospital, Chengannur under the supervision of a medical team sent from the Pandalam Medical Mission.  It is not correct to state that it was on the request of others that Ambily was removed to Century Hospital.  This opposite party is unaware as to the other treatments said to be given to Ambily from the various other hospitals mentioned in the complaint.  As the patient was treated in various other hospitals also there is heavy burden on the complainants to prove that the death occurred not due to any of the fault in the treatment given in such hospitals.  In any case, there is no lack of care or negligence on the part of any of the doctors of Pandalam Medical Mission in treating the patient Ambily in the hospital.

                   10. There was no negligence on the part of the opposite parties in providing treatment for the patient.  The statements that immediately after caesarean, second and third opposite parties have left the premises of the hospital also is false and denied by this opposite party.  Ambily regained the consciousness within time.  Thereafter the opposite parties left the place.  The hospital was fully equipped with all facilities required to meet such situation.  The statement that any of the warranting situation for a surgery was not present in the instant case and that the opposite parties venture the surgery for pecuniary benefit etc. are all made without any bonafides are denied by this opposite party.  There was no negligence or lack of case in giving anesthesia to the patient.

                   11. The complainants are not entitled to get the amounts as prayed for in the complaint as there is no negligence or deficiency in treating late Ambily in the hospital of first opposite party.  This opposite party has admitted that they have paid on amount of ` 1,15,000 to the first complainant.  It was only on compassionate ground to help him out of his financial crisis.  But not because of the fact that there was negligence in treating the patient.  A document has been obtained from the complainant evidencing payment of that amount.  The complainants are not entitled to get any amount from the opposite parties.  In any case, if it is found that the complainant are entitled to compensation there is a valid insurance cover for the first opposite party with Oriental Insurance Company during the period when late Ambily was treated.  And the insurance company is liable to pay the compensation.  In the circumstances, the first opposite party prayed for the dismissal of the complaint with their cost.

                   12. The second and third opposite parties have filed a common version raising the following contentions:  The first complainant’s wife, Smt. Ambily Vinod was seen at the O.P. department of the first opposite party hospital on 27.02.2002 in respect of her Primi Gravida.  The date of confinement calculated as per the last menstruation was 21.03.2002.  She was admitted in the first opposite party hospital on 21.03.2002 at about 10-30 a.m.  The delivery did not take place on 21.03.2002.  She was admitted in the labour room for delivery on 21.03.2002 morning itself.  Injection Pitocin was started on 21.03.2002 itself and since labour could not be induced, it was discontinued.  Labour induction was further attempted with injection Pitocin on 22.03.2002 morning at 6 a.m.  Inspite of the above there was no progress.  Leaking started at 9-20 a.m. on 22.03.2002 and it was noticed that normal vaginal delivery is not possible.   On evaluating the circumstances and conditions of Smt. Ambily, LSCS was adviced.  Smt. Ambily was taken up for LSCS at 6-10 p.m. under Spinal Anaesthesia and injection 5% Zylocaine 1.5ml (75mg) was given.  Spinal anaesethesia is particularly useful for caesarean section, since it produces more rapid onset and more profound anesthesia.  It also avoids inherent dangers of general anaesthesia, in a woman with a potentially full stomach.  It is also useful for post operative pain relief.  Apart from the above, the effects of drug are limited to the part of body to be operated and the patient will be very conscious throughout the intra and post operative periods.  The LSCS was started at 6-15 p.m. under spinal anaesthesia and Smt. Ambily delivered a full term normal, live female baby at about 6-31 p.m. with very good Apgar Score.  As per the normal custom and practice at the first opposite party hospital; the baby was handed over to Smt. Bindu, who is a close relative of Smt. Ambily and also a staff nurse in the first opposite party hospital.  Since every thing was normal, Smt. Ambily was brought out of the operation theatre at about 6-55 p.m. and was shifted to post operative ICU, which is a part of the operation theatre complex.  At about 7 p.m. Smt. Ambily was received by Miss. Seema, who was the staff nurse incharge of post operative ICU.  Smt. Ambily was very conscious, normal and was communicative to her husband and other close relatives.  The allegations in pra 1 of the complaint to the contrary are false and baseless.  Thus the opposite parties deny the allegations that even after midnight Smt. Ambily was not brought back from the operation theatre and the complainant and relatives were anxiously waiting to see Smt. Ambily and the child is absolutely false and hence denied.

                   13. The allegation that on repeated enquiry it was confided to the first complainant that there developed some complication and Ambily had not recovered, is absolutely false.  Smt. Ambily was received to the post operative ICI at about 7 p.m. and the baby was breast-fed by 7-45 p.m.  At that time also Smt. Ambily was absolutely all right.  The allegation that some complication develops in the operation theatre and there was no facilities attached to the first opposite party hospital to manage the situation is false.  The operation was absolutely successful and the mother and child were safe in all respects.  In the operation threatre no complication developed.  Smt. Ambily was brought out of the operation theatre at about 6-55 p.m. and she talked to her husband and other relatives.  The allegations of the complainant that Ambily’s condition was critical due to anaesthetic complications caused by the opposite parties 2 and 3 is absolutely false.  In the post operative ICU she breast-fed the child at about 7-45 p.m. and she was very communicative and normal.  In spinal anaesthesia the patient will not become unconscious.  Smt. Ambily remained conscious with normal vital signs throughout the intra operative period and postoperative period.  Spinal anaesthesia is the safest and advantageous anaesthestic technique available especially to ceasarean sections.  Spinal anaesthetic technique allows the patient to be in conscious stage throughout the intra operative period and postoperative period and the said technique causes only local anaesthetic effects in the desired area, but not the whole body.  The patient will be conscious throughout the intra operative period and post operative period.  As the patient never becomes unconscious, there is no question of the patient regaining conscience.

                   14. Smt. Ambily was quite normal in the post operative ICI also.  The staff nurse on duty, Miss. Seema was there.  At about 10-30 p.m. the staff nurse on duty Miss. Seema noticed that the patient is having jerking movements in the left lower limbs.  She immediately informed the matter to the Chief Anaesthetist Dr. Shanti Raju and the Duty Medical Officer Dr. Jayakumar and the patient was administered with all possible treatment for seizure and the patient was intubated and ventilated with 100% oxygen.  Inspite of all the efforts, the patient was not responsive.

                   15. The 2^nd and 3^rd respondents were in the hospital till 8.30 p.m.  Till that time there was no distress call and every thing was normal with Smt. Ambili.  The 2^nd and 3^rd respondents left for their Quarters very near to the hospital at 8.30 p.m.  During the night 2^nd and 3^rd respondents received a call from the hospital and the 2^nd and 3^rd respondents immediately reached near the patient about 10.50 p.m.  The 2^nd respondent examined the patient and ruled out any abnormal bleeding from the surgical site and noted Per Vaginum bleeding with in normal limits.  The 3^rd respondent also examined the patient and administered the necessary treatment.  The patient was also attended by the Duty Physician Dr. Jacob John, the Senior Resident Physician Dr. Navas, the surgeon Dr. K.E. Moorthy and the Opthalmologist Dr. Jayalakshmy and necessary treatment was administered.  Hence, it is understood that the diagnosis made by Sree Chitra Institute of Medical Sciences, Thiruvananthapuram that, Smt. Ambili had an episode of generalized tonic-clonic seizures following which she developed Status Epilepticus (? Cause).  In spite of their efforts, nothing could be done.  The 1^st complainant Mr. Vinod kumar was not available in the hospital since he had gone home and his mother and Mrs. Ambili’s parents who were available in the pay ward room with the baby, were immediately informed about the gravity of the situation.

                   16. The 1^st complainant Mr. Vinod kumar was called back from his house to decide about shifting the patient to the Century Hospital for CT Scan and Neurophysical examination; because of the continuous non-responsiveness of the patient.  Thereafter the patient was shifted to Century Hospital at about 1 a.m. on 23.2.2002 accompanied by Dr. Shanti Raju, Dr. K.E. Moorthy, Dr. Jacob John and the 3^rd respondent and the staff nurse Miss Smitha.  At Century Hospital Dr. Sagar, the Neuro-Physician and Dr. Alexander Koshy, Senior Physician attended the patient and their diagnosis was that Smt. Ambili has got “Generalized Tonic Clonic Seizures” (? Cause), “Hypoxic Encephalopathy”.  The allegation in the complaint that the patient was taken to Century Hospital on request; is absolutely false.  It was subsequently learned that the complainant and other relatives of the patient obtained discharge from the said hospital and the patient was taken to Sree Chitra Thirunal Institute of Medical Sciences, Thiruvananthapuram, where she underwent treatment and it was further learned that the patient underwent treatment at various other hospitals and finally was brought back to home and she died on 19.03.2003.

                   17. The allegation that Mrs. Ambily suffered a lot and died as a direct consequence of the negligence and deficiency of service of the opposite parties is false and denied by this opposite parties.  This opposite parties did the surgery in the most careful manner.  Though this opposite parties left the hospital premises at 8.30 p.m the other competent doctors Dr. Santhi Raju, Chief Anaesthetist and Dr. Jayalakshmi Gynecologist were available in the operation theatre.  Besides that Dr. Jacob John and Dr. Kyakumar were also available in the hospital.  The patient received proper medical attention from all the doctors available and immediately on receiving call opposite parties arrived at the hospital.  The 3^rd opposite party is a qualified anesthetist.  The amount alleged as incurred by the complainant is exaggerative. This opposite parties not knows whether the 1^st opposite party had paid ` 1,15,000 to the 1^st complainant.  The death of Smt. Ambily has occurred unexpectedly and it is not due to any deficiency of service or negligence of the opposite parties.  This opposite parties administered the best possible care and treatment to Smt. Ambily.     After 3 ½ hours since the surgery she unexpectedly developed seizures.  The complainants’ are not entitled to get any reliefs as prayed for in the complaint.  Hence this opposite parties prayed for the dismissal of the complaint.

                   18. The 4^th and 5^th opposite parties have filed a version stating the following contentions:  The complaint is not maintainable either in law or on facts.  The complainants’ are not entitled to claim any compensation, as the death of Ambili was not due to any reason directly attributable to the negligence of the opposite parties 1 to 3.

                   19. It is learned that Ambili was admitted in the 1^st opposite party’s hospital on 21.3.2002 for delivery and admitted in the Labour room.  The 1^st opposite party administrated medicines to induce labour.  Since labour could not be induced, such medication was discontinued.  On 22.3.2002 at 9.20 a.m. the doctor noticed discharge per vaginum and it was understood that normal delivery is not possible.  After due evaluation of the condition of the patient, L.S.C.S (caesarian)  was advised.

                   20. Then Ambili was taken up for LS.C.S and Spinal Anesthesia was administrated by the 3^rd opposite party, who is qualified and competent to administer Anesthesia.  Spinal anesthesia is particularly useful for caesarian section, since it produces more rapid onset and more profound anesthesia.  It also avoids inherent dangers of general anesthesia, and it is useful for post operation pain relief.  Apart from all the above aspects, the effects of the drugs are limited to the part of the body to be operated and the patient will be fully conscious throughout the intra and post operative periods.

                   21. Ambili was brought to the post operation ICU at 7 p.m. and she breast-fed the baby at 7.45 p.m.  The allegations that some complication developed in the operation theatre and there was no facility in the 1st opposite party’s hospital to manage the situation etc. are false.  She had talked to her husband and relatives while she was in the post operation ICU.  Absolutely no anesthetic complication was caused.  It is very pertinent to note that in spinal anesthesia the patient will not became unconscious.  Ambili remained conscious through the interoperative and post operative period.  Spinal Anesthesia is the safest and advantageous anesthetic techniques available, especially in caesarian operation.  Spinal anesthesia causes only local anesthesia effects in the desired area, but not the whole body, as in the general anesthesia.  Since Ambili did not become unconscious, there is no question of her regaining conscience. 

                   22. Ambili’s death cannot be attributable to the negligence of the opposite parties 1 to 3.  It is learnt that opposite parties 2 and 3 were present in the hospital till 8.30 p.m. on 22.3.2002, the date of caesarian operation.  At about 10.30 p.m. on that day the duty nurse noticed some jerking movements in the left lower limbs of Ambili.  Duty doctor immediately attended the patient and administrated with all possible treatment for seizure.  In spite of all the efforts the patient was responsive.  The 2^nd and 3^rd opposite parties also examined the patient and noted no bleeding at the surgical site and only normal bleeding per vaginum. The patient was attended by all the doctors of the 1^st opposite party and necessary treatment was administrated.  At that time the 1^st complainant was not present in the hospital.  After seeing Ambili’s normal condition and after talking with her, he left to his house, leaving his mother and Ambili’s parents in the hospital.

                   23. Immediately, the 1^st complainant was called to the hospital to decide about shifting the patient to Century hospital for C.T. Scan and neurophysical examination, because of the continuous non-responsiveness of the patient.  Thus Ambily was shifted to Century Hospital at 1 a.m. on 23.3.2002 accompanied by Dr. Shanthi Raju, Dr. K.E. Moorthy, Dr. Jacob John and the 3^rd respondent.  The diagnosis at Century hospital was that Ambili has got ‘Generalized Tonic Clomic Seizure’.  This was confirmed in the Sree Chitrra Institute of Medical Science, Trivandrum, where Ambili had got later treatment.

                   24. It cannot be said that Ambili died as the direct consequence of the negligence and deficiency in services on the part of the opposite parties 1 to 3.  As pointed out above, no anesthetic complication occurred, and no complication had arisen due to the caesarian operation.

                   25. The complainants’ are not entitled to claim any amount from the opposite parties.  The 1^st opposite party had paid an amount of ` 1,15,000 to the complainant.  The payment was made solely on compassionate grounds to help the complainant.  Ift in any event the Forum finds any amount to be paid to the complainant then the amount paid to the complainants may be ordered to be deducted from that amount.  Subsequent to the death of Ambili, a public agitation was spurred and they pressurised opposite parties 2 and 3 demanding huge amount.  At that time, these opposite parties were working at Archana Hospital, Pandalam.  The hospital authorities had paid 3 lakhs to the 1^st complainant.  It is also learnt that the 1^st complainant is remarried after six months of the death of Ambili.  The amount may also be deducted from the total compensation if at all allowed by this Forum.

                   26. The existence of an Error and Omission insurance policy in the name of 1^st opposite party is admitted this opposite parties.  But the 4^th and 5^th opposite party does not admit the liability to indemnify the 1^st opposite party due to violation of policy condition.  The 1^st opposite party shall give written notice to the insurer as is reasonably practicable of any claim made against the insured.  The 1^st opposite party did not comply with the conditions of policy, which is violation of policy conditions.  So also the contract of indemnity of this opposite parties is limited to ` 2,50,000 for any one accident.  Hence this opposite parties prayed for the dismissal of the complaint with their cost.

                   27. From the above pleadings, following points were raised for consideration:

(1)   Whether the complaint is maintainable before this Forum?

(2)   Whether the reliefs sought for in the complaint are allowable?

(3)   Reliefs & Costs?

          28. The evidence in this case consists of the oral evidence of PW1 to PW4 and Ext.A1 to A21 marked from the side of the complainant.  For the opposite parties, 3^rd opposite party has adduced oral evidence as DW1 on the basis of the proof affidavit filed by him.  There is no documentary evidence from the part of opposite parties.  After closure of the evidence, both sides heard.

          29. Points 1 to 3:- The complainants have filed this complaint for getting compensation from the opposite parties by the death of 1^st complainant’s wife due to the deficiency and negligent treatment given by the 2^nd and 3^rd opposite party at 1^st opposite party hospital.  The complainant’s wife was admitted in the 1^st opposite party’s hospital at the advanced stage of pregnancy.  The 3^rd opposite party opined caesarean and the 2^nd complainant was born under caesarean operation.  After caesarean the 1^st complainant’s wife developed some complications and he was not brought back from the operation theatre.  By knowing the fact that the 1^st opposite party hospital had no facility to manage the critical condition of his wife the complainant Ambily was taken to Centuary Hospital, Chengannoor.  But she was discharged from the hospital in the unconscious state in which she was removed from the 1^st opposite party hospital.  Thereafter, she was taken to Sree Chithira Thirunal Institute of Medical Science from 25.3.02 to 8.4.02 and further she underwent treatment in Maria Hospital, Adoor from 10.4.2002 to 2.5.2002 and Indo American Hospital for Brain and Spine, Vaikom from 2.5.02 to 6.7.02.  These are not given any result.  She continued in unconscious state.  After that she was taken to complainant’s house where she died on 19.3.02.  According to the complainant his wife Ambili died due to the anesthetic complication caused by the negligence and deficiency in service of the opposite parties.  For treating Ambili he had incurred more financial expenses and their daughter deprived of the tender care and affection of her mother throughout her life and had spoiled his marital life.  Hence he filed this complaint for getting the reliefs as sought for in the complaint.

          30. In order to prove the complainant’s case, the 1^st complainant adduced oral evidence as PW1 and Ext.A1 to A20 marked.  Ext.A1 is the certified copy of the FIR No.195/02 and FIS of Pandalam Police Station.  Ext.A2 is the copy of CMP filed by Vinod in Adoor Judl. 1^st Class Magistrate Court No.1.  Ext.A3 is the postmortem certificate dated 19.3.03 of Ambili.  Ext.A4 is the discharge certificate for police cases dated 25.3.03.  Ext.A5 is the final report from JFMC No.1, Adoor.  Ext.A6 is the mahazar dated 25.3.03.  Ext.A7 is the scene mahazar dated 5.6.02.  Ext.A8 is the discharge summary from Century Hospital dated 25.3.02.  Ext.A9 is the C.T. of Brain issued by the Dept. of Imaging Sciences of Century Hospital dated 23.3.02.  Ext.A10 is the case summary and discharge record dated 8.4.02 from Sree Chithira Tirunal Institute of Medical Science.  Ext.A11 is the case summary and discharge record from Indo American Hospital Brain and Spine Centre dated 27.5.02.  Ext.A12 is the discharge card from Medical College Hospital, Kottayam.  Ext.A13 is the notice-dated 3.10.03 and Ext.A14 is the acknowledgment card and Ext.A15 is the postal receipt of Ext.A13.  Ext.A16 is the reply notice from Dr. Ramalingom dated 13.10.03.  Ext.A17 is the reply notice from Dr. Santhi Sarojam dated 13.10.03.  Ext.A18 is the reply notice sent by Adv. Alex George on behalf of Dr. Santhi Sarojam and Dr. Ramalingam dated 13.10.03.  Ext.A19 is the reply sent by the NSS MCH Hospital dated 16.1.04.  Ext.A20 series are the medical bills for the treatment of Ambili. 

          31. The opposite parties counsels cross-examined PW1.

          32. For supporting the complainant’s case, 3 witnesses for the complainant have been examined as PW2 to PW4.  Ext.A21 is marked through PW3.  Ext.A21 is the copy of treatment records from first opposite party hospital.  All the witnesses have been cross-examined by the complainant’s counsel.

          33. The opposite parties 1 to 3 contended that there is no negligence or deficiency in treatment from the part of them.  They have admitted that the first complainant’s wife Ambily Vinod was an inpatient in the first opposite party hospital.  On 21.03.2002, she was admitted as an inpatient in first opposite party hospital at the advanced stage of pregnancy.  On evaluating the circumstances and conditions of Smt. Ambily, delivery is not possible and advised LSCS.  Smt. Ambily was taken for LSCS at 6-10 p.m. on 22.03.2002 under spinal anaesthesia and after proper test dose, injection 5% Zylocaine was given.  The operation was successful and the mother and child were safe in all respects.  Ambily was brought out the theatre at about 6-55 p.m. and she talked her husband and other relatives.  The baby was breast-fed by 7-45 p.m.  At that time, Ambily was normal.  She was quite normal, conscious and maintaining normal vital sign in the post operative ICU.  At about 10-30 p.m., the staff nurse noticed that the patient is having jerking movements in the left lower limb.  She immediately informed the matter to the Chief Anaesthetist Dr. Shanti Raju and the Duty Medical Officer Dr. Jayakumar.  Both of them attended the patient immediately and patient was intubated and ventilated with 100% oxygen and further administered with all possible treatment for seizure.  Inspite of all the efforts, the patient was not responsive.

          34. At about 10-50 p.m., second and third opposite parties reached near to Smt. Ambily and examined the patient.  It was noted that vaginum bleeding is in normal limits and urine output is normal.  The patient was attended the duty Physician Dr. Jacob John, Physician in Cardiology, Surgeon, Opthalmologist and necessary treatment was administered.  Inspite of their effort, nothing could be done.  The first complainant reached the hospital after midnight.  The situation was clearly explained to the complainant and she was shifted to Century Hospital at about 01 a.m. on 23.03.2002 with a team of doctors.  At Century Hospital, Neuro Physician and Senior Physicians attended the patient and their diagnosis was “generalised tonic clonic seizures”, Hypoxic Encephalopathy”.  Subsequently, the patient was discharged and taken to Sree Chitra Tirunal Insitute of Medical Sciences and Technology and further underwent treatment at various other hospitals and finally brought back to home and she died on 19.03.2003.

          35. The diagnosis in respect of Ambily was “generalised tonic clonic seizures” following which she developed status Epilepticus (? cause)  “Hypoxic Encephalopathy”.  The treatments given by the first and second opposite parties were absolutely perfect and subsequent developments are not due to any deficiency of service or negligence of the opposite parties.  What happened to Smt. Abily is still mysterious.  The complainants are not entitled to any of the relief claimed in the complaint.  The complaint is frivolous and vexatious and made with ulterior motives.

          36. In order to prove the contentions of opposite parties, third opposite party adduced oral evidence as DW1.  There is no documentary evidence from the part of opposite parties.

          37. The 4^th and 5^th opposite parties admitted the Error and Omission Insurance Policy issued by the 4^th opposite party in the name of the first opposite party.  The first opposite party shall given written notice to the insurer as is reasonably practicable of any claim made against the insured.  But the first opposite party did not comply with this policy condition, which is a violation of policy condition.  The contract of indemnity of the 4^th and 5^th opposite parties is limited to ` 2,50,000 for any one accident (AOA).

          38. There is no oral or documentary evidence from the part of the opposite parties.  The complainant has filed this complaint by alleging medical negligence against the opposite parties and claiming compensation.  We have perused all the records produced by the complainants.  On going through the records, we can see that the complainant’s wife Smt. Ambily Vinod was admitted in the first opposite party hospital on 21.03.2002 for delivery and on 22.03.2002 at 6-10 p.m. caesarean was done under spinal anaesthesia.  After the operation, some complications developed to Ambily and she had not recovered from it and died on 19.03.2003.  According to the complainants, the complications developed due to the negligence of the opposite parties 2 and 3 and there was no facility in the first opposite party hospital to manage such a situation.  The opposite parties contended that the operation was successful and the mother and child were safe in all respects.  After surgery about 3 ½  hrs. it was noticed that the patient is having jerking movements in the lower limb and developed complications.  The opposite parties had given all treatment possible to the patient.  As her condition had not improved shift her to Century Hospital and the Senior Physicians at Century Hospital diagnosed that Smt. Ambily has got “generalised tonic clonic seizures, Hypoxic Encephalopathy”.  The opposite parties are in no way responsible for the same.  There was no deficiency of service or negligence from the part of them.

          39. The main question to tbe considered in this case is whether there is any negligence from the part of second and third opposite parties in treating Smt. Ambily with first opposite party hospital?.  As per records, the complications developed after 3 ½ hours of the surgery.  According to the opposite parties, after surgery at about 6-55 p.m., the patient was brought out of the theatre and she talked to her husband and relatives.  She was shifted to the post operative ICU at about 7 p.m. and the baby was breast-fed by 7-45 p.m.  At that time also, the patient was absolutely normal.  But it was denied by PW1 at the time of deposition.    On a perusal of Ext.A21, treatment records does not show any entry regarding this statement.  But in Ext.A10 case summary and discharge record issued from Sree Chitra Tirunal Institute of Medical Sciences and Technology Neurology Department explained as follows:  “24 years old prim, asymptomatic before 22.03.2002 underwent an elective LSCS on 22.03.2002 around 6 p.m. for delayed labour.   Two hours later she was brought out of theatre and she was then communicating with the relatives.  Another 2 hours later, the relatives noticed tonic clonic movements of the upper limbs following which she became unresponsive.  She developed multiple such episodes without regaining consciousness in between.  She had to be intubated later and due to lack of ventilator she was shifted to another hospital for ventilating assistance.  According to the relatives, the seizures continued to occur.  The patient was in that hospital for almost 3 days but her condition did not improve and she was shifted to this hospital”.  At the time of cross examination of PW4, the doctor who treated the patient at Sree Chitra Tirunal Institute of Medical Science & Technology, Thiruvananthapuram deposed that “previous history relatives ]dªpX¶Xmbn«mWv Ext.A10 þ  tcJs¸Sp¯nbn«pÅXv.  22.3.2002þ Hm¸tdj\ptijw 2 aWn¡qÀ Ignªv Xntbädn \n¶pw patient-s\ ]pd¯psIm­ph¶t¸mÄ relatives ambn kwkmcn¨ncp¶Xmbn previous history bn record sNbvXn«p­v. “.  The previous history stated in Ext.A10 and the deposition of PW4 reveals that the patient was communicated to her husband and relatives after caesarian.  After 2 hours complications developed.

                   40. The main allegation of the complainant is that Mrs. Amibily died due to anaesthetic complications and it is the direct result of the negligence on the part of the opposite parties.  As per Ext.A3 postmortem report, the cause of death (Ext.A3(a) due to amoxic softening of brain tissues and pneumonia.  At the time of deposition of PW2, the doctor who conducted the postmortem stated as follows: “Amoxic softening of brain tissues ]e ImcW§Ä sIm­v D­mImw.  Cu tIknse victim acn¨Xv A\kvtXjym \ÂInbXnse ]nghpaqeamsW¶p ]dbp¶p?  Ext.A3(a) {]Imcw A\kvtXjymaqeamtWm F¶p ]dbm³ IgnbnÓ.  As per Ext.A8 discharge certificate from Century Hospital, diagnosis stated as generalised tonic clonic seizures (? cause) “Hypoxic Encephalopathy”.  As per Ext.A10 case summary and discharge card from Sree Chitra Tirunal Institute of Medical Science & Technology, diagnosis stated as “ Status Epilepticus (? cause) Hypoxic Encephalopathy”.  Ext.A11 case summary and discharge record from Brain and Spine Centre, Vaikom, diagnosis the same disease.  The cause of this conditions (disease) was stated in any of the discharge summaries.  The cause stated as ‘?’.

                   41. The complainant has not produced any expert evidence to prove that the complications “Status Epilepticus Hypoxic Encephalopathy” “Amoxic softening of brain tissues” developed to Smt. Ambily after the caesarean operation due to the negligence in conducting the caesarean by second opposite party or the negligence, deficiency in administering anesthesia by the third opposite party.  The complainant failed to prove that Smt. Ambily died due to anesthetic complication and it is the direct result of the negligence on the part of the opposite parties.  The burden to prove the negligence is on the part of the complainant.  Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.  In this case, the evidence does not show any omission from the part of opposite parties.  After developing complications for better management of the patient, patient was shifted to Century Hospital under the supervision of a Medical Team from first opposite party hospital.  The complainant failed to prove the medical negligence on the part of opposite parties.  The complainant has not produced any expert to prove the medical negligence on the part of opposite parties.  Burden to prove the negligence is on the complainant, which they failed to discharge.  For the reasons stated above, we could not find any deficiency or negligence from the part of opposite parties.  In the circumstances, the complaint is liable to be dismissed.

                   42. In the result, this complaint is dismissed.  No cost.

                   Declared in the Open Forum on this the 15^th day of March, 2011.

                                                                                                        (Sd/-)

                                                                                                C. Lathika Bhai,

                                                                                                      (Member)  

Sri. Jacob Stephen (President)        :         (Sd/-)

Sri. N. Premkumar (Member)       :         (Sd/-)

Appendix:

Witness examined on the side of the complainants:

PW1  :         Vinodkumar.

PW2  :         Dr. Abraham Daniel.

PW3  :         Dr. Jacob John.

PW4  :         Dr. Ashalatha. R.

Exhibits marked on the side of the complainants:

A1     :         Photocopy of the FIR and F.I. Statement of Pandalam Police

                    Station dated 04.06.2002.

A2     :         Photocopy of the CMP filed by the complainant before the

                     Judicial First Class Magistrate Court, Adoor.

A3     :         Photocopy of the Postmortem certificate dated 19.03.2003

                     issued by Medical College Hospital, Kottayam.

A3(a)          :         The relevant portion of Ext.A3.

A4     :         Photocopy of the discharge certificate for police cases dated

                     25.03.2003.

A5     :         Copy of Final Report from Judicial First Class Magistrate Court,

                    Adoor.

A6     :         Photocopy of the mahazar dated 05.06.2002 prepared by Rex

                    Bobby Aravin, S.I. of Police, Pandalam.

A7     :         Photocopy of the scene mahazar prepared by S.I. of Police,

                    Pandalam

A8     :         Photocopy of the discharge summary dated 25.03.2002 from

                    Century Hospital, Mulakkuzha, Chengannur.

A9     :         C.T. of brain issued by Department of Imaging Sciences,

                    Century Hospital dated 23.03.2002.

A10   :         Case summary and discharge record dated 08.04.2002 from Sree

                     Chitra Tirunal Institute for Medical Sciences,

                     Thiruvananthapuram.

A11   :         Case summary and discharge record from Brain and Spine

                     Centre, Indo American Hospital, Vaikom dated 27.05.2002.

A12   :         Discharge card dated 06.07.2002 from Medical College

                     Hospital, Kottayam.

A13   :         Photocopy of the legal notice dated 03.10.2003 issued by the

                     complainant to the opposite parties.

A14, A14(a) & A14(b) :  Acknowledgment cards of Ext. A13 (3 in number).

A15 & A15(b)             :   Postal receipts of Ext.A13. (2 in number).

A16   :         Reply notice from Dr. Ramalingam dated 13.10.2003.

A17   :         Reply notice dated 13.10.2003 from Dr. Santhi Sarojam,

                    Gynaecologist, Pandalam.

A18   :         Reply notice sent by Adv. Alex George on behalf of Dr. Shanti

                    Sarojam and Dr. Ramalingam dated 20.11.2003.

A19   :         Reply notice sent by NSS Medical Mission Hospital, Pandalam

                    dated 16.01.2004.

A20 (series)         :         Medical bills.

A21   :         Photocopy of the inpatient register & treatment records from

                    NSS Medical Mission Hospital, Pandalam.

Witness examined on the side of the opposite parties:

DW1 :         Dr. A. Ramalingam.

Exhibits marked on the side of the parties: Nil.

                                                                                                (By Order)

                                                                                   Senior Superintendent.

Copy to:- (1) Vinodkumar, Thundil Puthen Veedu, Vayalinum Padinjaru 

                        Muri, Pandalam Thekkekara Village, Adoor Taluk.

(2)  The Medical Superintendent, NSS Medical Mission Hospital,

                   Pandalam.

(3)   Dr. Shanti Sarojam, Gynecologist, Archana Hospital,   

       Pandalam.

       (4)  Dr. Ramalingam, Anesthetist, Archana Hospital, Pandalam.

                 (5)  The Branch Manager, Oriental Insurance Co. Ltd.,

                       Changanassery Branch.

                  (6) The Divisional Manager, Oriental Insurance Company Ltd.,

              Marthoma Buildings, T.K. Road, Thiruvalla.     

        (7)  The Stock File.