KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEALNO. 434/2005
JUDGMENT DATED 27.01.2011
PRESENT:-
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
M.K. ABDULLA SONA : MEMBER
APPELLANT
Sissy Johny Vadakkekara,
W/o Johny Thomas,
Vadakkekara House,
P.O., Thondiyil,
Kannur.
(Rep. by Adv. Sri. P.P. Ramachandran)
Vs
RESPONDENTS
1. Dr. V. Ramachandran,
Chief Medical Officer,
Resmi Hospital,
Paravoor.
2. Dr. Rathna Ramachandran,
W/o Dr. V. Ramachandran,
Gynecologist,
Reshmi Hospital,
Paravoor.
(Rep. by Adv. Sri. M.C. Suresh)
JUDGMENT
JUSTICE SHRI.K.R.UDAYA BHANU : PRESIDENT
Appellant is the complainant in O.P. 428/1998 in the file of CDRF, Kannur . The complaint stands dismissed.
It is the case of the complainant , a lady aged 27 years and teacher by profession that she was put to severe hardships and difficulties and had to undergo hysterectomy to save her life and also lost the chance of having a male child on account of the carelessness and negligence on the part of the opposite parties, husband and wife who are running a private hospital. A sum of Rs. 3,25,000/- is claimed as compensation etc.
It is the case of the complainant that for her second pregnancy she had first consulted Dr.Tessy Jose, the Gynecologist of Christuraja Hospital, Kuthuparambu who at the 9th month of pregnancy after examination told her that the foetal growth is normal and that she can have normal delivery. On 28.6.1998 at about 12 P.M. she started developing signs of labor and so brought to the hospital of the opposite parties. The second opposite party, gynecologist after examining her, advised her that it is the first stage of labor and asked her to get admitted when pain increased. The opposite party’s hospital was preferred as it was as situated very near to her house. On 29.6.98 at about 5.30 A.M. she was admitted at the above hospital by the first opposite party. At the time she was having labor pain. The petitioner and her relatives requested the first opposite party to call the gynecologist. The second opposite party told them that the complainant is not having true labor pain and that he will call the gynecologist when it is required. At 10.30 AM the pain increased and again the request to call the gynecologist was not complied with. It is the first opposite party who attended the delivery and he papplied much force to take out the baby. At last on 11.20 A.M. the baby was taken out and it was told that there is no problems. Immediately thereafter there was profuse bleeding. Even then the gynecologist was not called. In spite of repeated requests, only on 12.30 hours that the second opposite party/gynecologist came and expressed astonishment on seeing the condition of the complainant. By the time the complainant was completely exhausted by bleeding. The request to refer to a higher center was also refused. Finally by 2.10 P.M. the first opposite party agreed to shift the complainant to Nirmala Hospital, Iritty in his own ambulance. At Nirmala Hospital, she was subjected to an emergency hysterectomy. She had to be administered 9 bottles of blood. She was discharged after 12 days. She is having only 2 daughters and in fact she wanted a boy. She is entitled to have another child. It is also alleged that from 22.6.2001, she was found to have Hepatitis B which was caused due to the blood transfusion done at the opposite party hospital without proper testing. She has alleged gross negligence on the part of opposite parties.
The opposite parties had filed a joint version contenting as follows;
It is admitted that the complainant consulted at the opposite party’s hospital on 28.6.1998 and that the expected date of delivery was 4.7.1998. She also wanted to undergo Post Partum Sterilization (PPS) after the present delivery. She was advised to report when pain starts. When the complainant enquired as to the availability of second opposite party, Gynecologist, through out she was told that any one of the opposite parties would be conducting delivery as the first opposite party is also well experienced and also told that the P.P.S. would be conducted by the second opposite party. In 29.6.1999 in the morning the complainant reported at the hospital with early labor pains. On that day the second opposite party was laid up with fever and was not in a condition to attend the routine hospital work. The fact was conveyed to the complainant and her husband and was told that the delivery would be conducted by the first opposite party and only in a case of dire emergency the second opposite party would be called. The option to go elsewhere was also provided. The complainant was shifted to the labor room by 10.45 A.M. At 11.15 A.M, the cervix was fully a diluted. A healthy female baby weighing 3.50 kg was born by normal delivery with episiotomy. Plasanta and membrane were expelled as a whole. Injection to contract the uterus was given. Bleeding was within the normal limits. Episiotomy was sutured in layers. The uterus was wholly contracted and retracted. At 12.30 hours there was only minimal oozing from the uterus. A packing was given to compress the uterus. At 12.50 hours the packing was removed and it was found that the oozing persisted. The medication to control the bleeding was given and it was advised to arrange donors for blood transfusion. Second opposite party inspite of her illness came and examined the complainant. At 1.05 P.M. the bleeding was controlled. But at 1.30 P.M. the uterus became flabby and bleeding was excessive. As there was excessive bleeding and a slight fall in the B.P., the relatives were advised to shift the complainant to a major hospital as she might required hysterectomy. The first opposite party contacted the doctor of Nirmal Hospital, Iritti and the complainant was shifted to that hospital. The blood was cross matched at the opposite party hospital so that transfusion could be done without delay. Hysterectomy was conducted at Nirmal Hospital. The first opposite party remained with the complainant all through the procedure. The complaint and her husband had expressed gratitude for this to the first opposite party. Subsequently the complainant came with the Panchayat President and wanted Rs. 20,000/- as compensation as they had to spent that much amount at Nirmala Hospital. The same was refused as there was no negligence. The allegations made in the complaint are totally denied. The second opposite party who was residing in the hospital compound was not available due to illness. Atonic P.P.H. (Post Partum Haemerage) is a known complication of delivery. In one out of 20 deliveries this can happen and if the bleeding can not be controlled by conservative measures like medication hysterectomy has to be resorted in order to save the life of the patient. In fact the life of the complainant was saved because of the prompt action taken by the opposite parties.
The evidence adduced consisted of the testimony of Pws 1 to 8 Dw1, Dw2, Exts. A1 to A11, B1 .
The Forum has found that there is no evidence to establish that there was negligence on the part of the opposite parties. It is observed that the first opposite party who is MBBS, MD is competent to attend delivery and that in the earlier days when there was no hospital facilities experienced ladies who were unqualified were attending deliveries. It was also noted that Atonic P P H after delivery cannot be predicted. It was also pointed out that the opposite parties have made arrangements to shift the complainant to Nirmala Hospital for getting better treatment and made arrangements for the same.
It is contented by the counsel for the appellant that the Forum has not considered the evidence adduced in the matter at all and that the observations of the forum that in old times experienced ladies used to attend a delivery etc. is absurd. It is pointed out that the opposite parties have not even kept a case sheet and only bits of paper were produced as case sheet. It is contented that the complainant approached the first opposite party hospital only to see that the delivery is attended by an expert gynecologist and not by her husband. It is pointed out that the uterus became flabby by 12.30 P.M. as seen from the statement in the version and in the papers produced by the opposite party but steps to control bleeding was not initiated till 1.30 P.M.
Pw1 is the complainant, Pw2 the husband of the complainant, Pw3 father of the complainant; Pw4 Dr. Sr. Tessy Jose who attended the first delivery and had done the antenatal check up of the complainant for second delivery; Pw5 is the pathologist who had conducted the hysterectomy. Pw6 is the manager of Nirmala Hospital summoned to produce the case sheet which was not available. Pw7 is the lab technician of the laboratory where the blood test of the complainant was done on 22.6.2001. Pw8 is the Doctor at Indira Gandhi Memorial Hospital who issued the requisition for the blood test which was found positive for Hepatitis B and stated that the above illness can be contacted on blood transfusion also. Dws 1 and 2 are opposite parties 1 and 2 respectively.
We find that the complaint was amended subsequently to incorporate the allegation with Hepatitis B was also contacted due to the blood transfusion done at the opposite party hospital. The above contention is not seen considered by the Forum. All the same we find that the blood test was done on 22.6.2001 whereas the delivery at the opposite party hospital was on 29.6.98. There is no proximity to the above blood test and the time of delivery. It is unlikely that after that much of expiry of time Hepatitis B, could have manifested. It is also evident that she had the surgery at Niramala Hospital. Hepatitis B can be contacted through other sources also. Further there is no evidence as to the alleged blood transfusion at the hospital of the opposite parties. Hence we find the above allegation stands not established. Pw1 the complainant, Pw2, her husband and Pw3 the father has testified as per the averments in the complaint. It is the case of the above witnesses that from the very beginning they wanted the complaint to be attended by the gynecologist and not by the first opposite party. It is also denied that they have not admitted the complainant at the opposite party hospital to get P.P.S. done mainly. It is stated that prevention of pregnancy offended their religious sentiments and that the husband of the complainant is conducting catechism classes. It is the case of the complaint that it was as advised by Dr. Tessy Jose whom she was consulting during the antenatal period that she consulted the second opposite party.
She approached the second opposite party as the second opposite party is a gynecologist and the hospital is situated near her house. According to Pws, 1, 2, and 3, they had requested for the presence of the second opposite party after she was admitted at the hospital. But the second opposite party assured that the gynecologist will be called when it is required. She has stated that she was not told by the second opposite party that the gynecologist was laid up with fever. We find that there is no suggestion to Pw1 that at the time of admission itself, she was told that the second opposite party would not be available and that she has got the option to go to any other hospital as contented in the version filed. On the other hand she has stated that she was aware that the second opposite party is living adjacent to the hospital. She has also stated that at the time when she was admitted at the hospital the second opposite party doctor was in the hospital. It is admitted that she was shifted to the Nirmala Hospital in the ambulance of the first opposite party and that the first opposite party also accompanied them in the ambulance.
Pw2 the husband of Pw1 has also stated that when the complainant was admitted at the hospital, the first opposite party told them that the second opposite party has just got up from sleep and that she would come after some time. According to him he repeatedly sought for the presence of the second opposite party. He has stated that when it was felt that his wife is having complications as she was not brought from the labor room, he and the relatives went to the second opposite party but she declined at first saying that she was not informed of the admission of the complainant. Thereafter she went inside the labor room and closed the door. Pw2 has further stated that loud altercation was heard from inside the labor room. He has also stated that the nurse told him that on the previous night the husband and wife had quarreled and that she is helpless. Pw1 has also stated that inside the labor room the second opposite party blamed the first opposite party. We find the above statements in the deposition are not seen mentioned in the complainant. We find that there is no suggestion to Pw2 also that at the time of admission itself it was told that the second opposite party would not be available and that they are given the option to take the complainant to some other hospital. Pw3 the father of the complainant has reached the hospital at 12 hours on 29.6.1998. His evidence is not helpful to support the case of the complainant as such.
Pw4 Dr. Tessy Jose has testified that she attended the first delivery of the complainant and also conducted antenatal checkup during the second pregnancy of the complainant. She has testified that as to the difference between atonic P.P.H. and secondary P.P.H . she has stated that atonic PPH takes place after the delivery and need not be necessarily after the expulsion of placanta. But secondary PPH occurs 24 hours after the delivery. She has denied that it is on account of the mismanagement of delivery that atonic PPH occurs. She has stated that in atonic PPH external bleeding will be slight and internally the uterus will be filled with blood and clots, and that the pulse rate will increase and B.P. will fall etc. She has asserted that atonic uterus will not occur due to the negligence of the doctor.
We find that Pw4 has not stated that there was negligence on the part of the doctor who attended the complainant. We find that the evidence of Pw5 the pathologist, Pw6, the manager of Nirmala Hospital and Pw7 the lab technician and Pw8 doctor who issued the requisition for blood testing is not helpful to support the case of the complainant etc. Dw1 the first opposite party doctor who is the husband of the second opposite party has testified in proof of the averments contained in the version He has stated that at the time of admission the complainant told him that she came to see the lady doctor and after he examined her she asked him whether the lady doctor would not came to examine her and he told her that the lady doctor is having fever and that she will not come and only if her presence is required the lady doctor will be called. According to him she did not object to his examining her. He has stated that the child was delivered at 11.20 after episiotomy and after delivery the injection for contraction of uterus was administered. Thereafter entrusting the patient to nurses he went to the out patient section. Thereafter at 12.30 hours there was slight oozing of blood and as usual he applied packing. After half an hour the packing was removed and it was found that the oozing persisted. He instructed to arrange for donors for blood transfusion and the second opposite party doctor/Gynecologist was called and she examined the complainant. As the bleeding was not stopped arrangements were made to take the complainant to a higher center. He has stated that after the second opposite party came bimanual compression of the uterus and massage was also done. Even then, bleeding did not stop. According to him he contacted Dr. Thomas Panoose , of Nirmal Hospital and arranged for the shifting of the patient. The blood of the donors were cross matched. At 2.10 P.M. the patient was taken to Nirmal Hospital, Iritty in the ambulance of the opposite party. According to him he has done whatever possible. During the 30 years of experience he has conducted 14,000 deliveries. He has stated that no blood transfusion was administered at his hospital.
Dw2 is the second opposite party/Gynecologist, the wife of the first opposite party. According to Dw2, the complainant came to her for consultation, particularly for getting PPS done. According to her the hospital where she was having prenatal consultations would not conducted PPS. According to her when the complainant at the time when she came for the first time enquired as to the presence of doctor every time she told her that generally if the delivery is a normal one any one of the doctors will attend. According to her the complainant wanted PPS done even if the child is a female one. According to her on the particular day she was laid up with fever. According to her she was informed of the developments with respect to the case of the complainant. On 12.45 hours she was informed of the bleeding after the patient was administered injection for stopping the bleeding. According to her all precautions were taken and it was to avoid further complication that the patient was shifted . According to her, on the particular day she has not attended any other patient. The uterus was detected as flabby at 1.30 P.M. and she found that it is the sign of atonic postpartum haemorrhage.
We find that the treatment records of Nirmal Hospital, Iritty was not procured although summoned. Pw6 , the manager of the above hospital has stated that the case sheet is not available in the hospital. She has stated that the case sheet was kept by Dr. Thomas Punoose who conducted the hysterectomy and that he is no more. We find that the Forum ought to have taken coercive steps against the authorities of Nirmal Hospital, Iritty. It appears that the case sheet was not produced deliberately.
The contention of the opposite parties that the complainant wanted to be admitted at the hospital of the opposite parties, as she wanted PPS done stands not established. It is the case of the opposite parties that it is not for seeking consultation with the Gynecologist that the complainant was brought to the opposite party’s hospital but mainly for getting PPS done. Pw1 has denied the same and stated that there is religious taboo in doing PPS and that her husband is teaching catechism. We find the Pw4, Dr. Tessy Jose, the Gynecologist of Christuraja Hospital, Koothuparambu where the complainant underwent her first delivery has not stated that the complainant wanted PPS to be done. There was no such suggestion to her also in the cross examination. What has been stated is that the hospital of the opposite parties is situated near to the house of the complainant.
Further as pointed out by the counsel for the appellants, the opposite parties have not kept a proper case sheet with respect to the consultation and treatment provided to the complainant. Ext. B1 is a collection of bits of paper wherein treatment particulars are seen written without continuity. There are overwritings also. The opposite parties have evidently not maintained a proper case sheet and hence the same amounts to dereliction of duty cast on them to kept a proper case sheet.
It was pointed out that Dw1 has noted in Ext. A7 the certificate issued by him with respect to the complication as atonic secondary PPH. It was pointed out from the evidence of Pw4 the Gynecologist and Dw2 that secondary PPH is the one occurring after 24 hours of delivery. Admittedly Dw1 is a general physician. It is the contention of the complainant that the child was taken out applying force and pressure and that opposite parties 1 and 2 quarreled in the labor room with respect to handling of the case by Dw1. It is pointed out by the counsel of the appellant that Dw1 has stated in the cross examination that he noticed at 12.30 hours that there was oozing of blood and the uterus was flabby. Thereafter he has stated that after removing the packing at 12.40 hours the uterus was not flabby. It is alleged that from 12.30 hours till 1.30 P.M. no steps were taken to control bleeding. No details of the treatment administered and the medicines given are mentioned in the version. It is only in the testimony of Dw1 he has mentioned that bimanual compression of the uterus was done. Dw2 has not stated anything in this regard also. Evidently a complicated case required the attention of an experienced gynecologist (See Williams of Obstetrics page 825 , 22nd edition) It is mentioned in the above text book that in instances in which fundas has not been of adequately monitored after delivery the blood may not escape vaginally but instead may collect within the uterus. The uterine cavity may thus become distended by 1000 ml. or more of blood while an attendant fails to identify the large uterus or having done so, erroneously massages a roll of abdominal fat. The case of post partum uterus, therefore must not be left to an inexperienced person(at page 825, ibid) . It is also mentioned therein that in many woman uterine atony can atleast be suspected well in advance of delivery. For example the over distended uterus is prone to be hypotonic after delivery (at page 826, ibid). In the instant case there is no evidence of such suspicion as Pw4 the gynecologist who did the prenatal consultations has not stated any thing about the same. No question was asked to her in this regard. It is mentioned in the above text book that mismanagement of the 3rd stage of labor can also result in complications and postpartum haemorrhage . Of course in the absence of the case sheet of the hospital wherein she underwent hysterectomy the inability to adduce direct evidence in this regard is evident , especially as Dr. Thomas Punoose, who did the hysterectomy is no more. All the same we find that the testimony of Pws 1 and 2 , that the complainant was informed earlier as well as at the time of admission for delivery that the gynecologist may not attend her is not at all convincing. There is no case that there is no other hospital in the area with a gynecologist. Dw1, the first opposite party should have told the complainant and the bystanders at the time of admission itself that the gynecologist would not be available and the option should have been given to the complainant to go to some other hospital. In this regard we find that there is deficiency in service on the part of the opposite parties. Hence the order of the Forum is set aside.
In the circumstances and in view of the fact that the matter is of the year 1998 and also as the evidence as to the mismanagement
of delivery by the first opposite party could not be pin pointed a sum of Rs. 30,000/- is ordered to be given as compensation to the complainant with interest @ 8% per annum from 17.11.1998, the date of filing of the complaint. The opposite parties will make the payment within 3 months from the date of receipt of this order, failing which the complainant would be entitled for interest @ 15% from 27.1.2011, the date of this order.
In the result, the appeal is allowed in part as the above. The office will forward the LCR along with the copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU : PRESIDENT
M.K. ABDULLA SONA : MEMBER
