Date of Filing      : 20.04.2021

                                                                                                                 Date of Disposal: 26.09.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN,M.Com.ICWA (Inter)., B.L.,                                                   ....MEMBER-II

CC. No.25/2021

THIS MONDAY, THE 26th DAY OF SEPTEMBER 2022

 

Mrs.Geetha Selvakumar,

W/o.Mr.M.Selva Kumar,

Residing at No.9/178,

47th Streeet, SIDCO Nagar,

Villivakkam, Chennai – 600 049.                                                      ……Complainant.

                                                                            //Vs//

1.WCF Hospitals,

   (Women & Children Foundation Limited),

   No.54, South Mada Street,

   Villivakkam, Chennai – 600 049.

 

2.Dr.Rajasekar,

    Managing Director, 

    WCF Hospitals,

    (Women & Children Foundation Limited),

    No.54, South Mada Street,

    Villivakkam, Chennai – 600 049.

 

3.Dr.Vaishanvi,

    WCF Hospitals,

    (Women & Children Foundation Limited),

    No.54, South Mada Street,

    Villivakkam, Chennai – 600 049.

 

4.Dr.Padmapriya, 

    WCF Hospitals,

   (Women & Children Foundation Limited),

   No.54, South Mada Street,

   Villivakkam, Chennai – 600 049.                                              …..opposite parties. 

 

Counsel for the complainant                                                  :   Mr.A.Adithya, Advocate.

Counsel for the opposite parties                                            : M/s. V.Balaji, Advocate. 

                         

This complaint is coming before us on various dates and finally on 19.09.2022 in the presence of  Mr.A.Adithya, Advocate counsel for the complainant and M/s. V.Balaji, Advocate counsel for the opposite parties and upon perusing the documents and evidences produced by both parties this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging medical negligence against the opposite party’s Hospital and Doctors along with a prayer to direct the opposite parties to pay jointly and severally a sum of Rs.5,00,000/- towards all medical expenses incurred by the complainant together with interest at the rate of 12% per annum from 02.12.2018 till the date of realization and to pay jointly and severally a sum of Rs.1Crore for negligence and deficiency in service, for keeping unprofessional doctors and staffs, for loss suffered by the complainant due to loss of her healthy full term boy baby, unwarranted removal of uterus and ovaries of the complainant without her knowledge and consent, thereby causing permanent disability of bearing child and to become a mother, for mental agony and anguish suffered both mentally and physically due to improper surgery performed along with cost of the complaint.

Sum and substance of the complaint:-

 

The present medical negligence complaint has been preferred by the complainant with regard to the delivery of the child in the opposite party’s hospital.  The complainant approached the 1st opposite party as an outpatient for her maternity health check-up and as per the advice given by the opposite parties 3 and 4, various scan and tests were taken which reveals that everything was normal and the growth of the foetus was healthy without any signs of congenital abnormalities or anomalies. After completion of the gestational period as the complainant did not get any labour pain she approached the 1st opposite party hospital on 09.09.2019.  As no duty Doctors were available, the complainant was informed by the staff of the hospital that she had to wait for normal delivery.  Around 9.30pm a midwife, who was on duty checked the complainant which resulted in severe pain and sudden bleeding to the complainant. The complainant’s husband was advised to take the complainant to Billroth Hospital for scanning as no scan facility was available in the 1st opposite party hospital.  As per the advice, with intolerable pain and continuous bleeding, the complainant went to Billroth Hospital and came back around midnight 11.30pm.  As per the advice of the opposite parties 3 and 4 immediately caesarean operation was performed and it was declared that the baby was dead due to abruption of placentae.  Further it was informed that the uterus of the complainant was also removed for which she had never given consent.  In spite of the complainant complaining about her persistent severe abdominal pain, to conceal the gross negligence, deficiency in service, recklessness, failure to give proper medical assistance, the opposite parties had discharged the complainant on urgent basis on 13.09.2019 without providing proper post operative care.  After two weeks the complainant developed severe intolerable and irresistible pain on her lower hip region (Left loin pain) radiating to back.  Immediately she had consulted the Urologist who advised CT scan of the abdomen which reveals leakage of urine in the left renal pelvis resulting in the inflammation of the left kidney. On 05.10.2019 the complainant was admitted in St.Isabel hospital and after various pre-operative preliminary tests and laboratory investigations, it was revealed that there was a “Tight Stricture of the Left Distal Ureter” caused as a result of damage in the urinary duct caused by the previous surgery done by the 1st opposite party hospital which resulted in perinephric urinoma (leakage of urine) and it was also revealed that the complainant’s ovaries were also removed without consent and without any justification.  Thus the act of the opposite parties clearly reveals that they had acted on an improper diagnosis and improper manner, without any professional skill and without carrying the life of the complainant.  On 07.10.2019 the complainant had undergone “Cystoscopy, Left Retrograde Ureterogram, Left Ureteroneocystostomy in St.Isabel Hospital spending more than Rs.2,50,000/- and got discharged on 16.10.2019.  Police complaint was also given on 14.10.2019.  It was submitted that the complainant at an early age of 32 years had lost her first baby, uterus, ovaries and also got her kidney and urinary duct damaged by improper surgery performed by the 1st opposite party.  Thus after issuance of legal notice the present complaint was filed for the reliefs as mentioned below.

a)to pay jointly and severally a sum of Rs.5,00,000/- towards all medical expenses incurred by the complainant together with interest at the rate of 12% per annum from 02.12.2018 till the date of realization;

b) to pay jointly and severally a sum of Rs.1Crore for negligence and deficiency in service, for keeping unprofessional doctors and staffs, for loss suffered by the complainant due to loss of her healthy boy full term baby, unwarranted removal of uterus and ovaries of the complainant without her knowledge and consent, thereby causing permanent disability of bearing child and become a mother, for the mental agony and anguish suffered both mentally and physically due to improper surgery performed along with cost of the complaint.

Defence of the opposite parties:

The 2nd opposite party filed version which was adopted by the other opposite parties contending inter alia that the present complaint was filed in this commission which has no territorial jurisdiction to entertain the same and also the complaint could not be entertained as the pecuniary jurisdiction was Rs.1,00,00,000/-. It is further submitted that the complainant had previous obstetric history of child birth seven years before and had history of self abortion. The LMP for the complainant was 02.12.2018 and the expected date of delivery was 09.09.2019.  The complainant’s husband and mother-in-law had the family history of diabetic mellitus.  It was admitted that the complainant had undergone ante-natal check-up with the 1st opposite party and no abnormality was found either in maternal health or foetus.  On 09.09.2019 the complainant had intense pain and fetal heart rate was absent and hence she was immediately referred to Billroth hospital for taking USG Scan which reveals that the intra uterine death and foetus was in transverse lie. The LSCS was proposed and informed consent was obtained.  It was strongly denied by the opposite party at 09.30pm a midwife checked the complainant which resulted severe pain and bleeding and LSCS was to be performed to save the life of the complainant. This fact that the foetus was dead even before the LSCS was mislead by the complainant that the baby was died only during LSCS. As the uterus was not contracted and there was bleeding sub-total hysterectomy with left side Oopherectomy was performed.  The opposite parties stated that there were so many causes for the intra uterine death and hence no negligence would be attributed to them. The 2nd opposite party had duly obtained       consent from the complainant and further she was discharged on 13.09.2019 in good conditions.  Further it is submitted that the complainant had undergone surgery for different cause at St.Isapel Hospital.  Further it is denied that any sort of finding given in the discharge summary of the St.Isapel Hospital was not binding on the opposite parties informed consent was obtained before removing the uterus and left ovaries.  There are 26 days in between the date of discharge and the date of surgery at the St.Isapel Hospital.  Thus submitting that the occurrence of IUD and PPH were not within the handoff the opposite parties they sought for the dismissal of the complaint contending that there was no negligence resulting in deficiency in service on their part.

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A20 were marked.  On the side of opposite parties proof affidavit was filed and document Ex.B1 was marked. 

 

 Points for consideration:-

1) Whether the present complaint is maintainable before this commission or hit by pecuniary and territorial jurisdiction?

2. Whether the alleged medical negligence on the part of the opposite parties resulting in their deficiency in service has been successfully proved by the complainant by admissible pleadings and evidence?

3. If so to what reliefs the complainant is entitled?

Point No.1

On the side of the complainant following documents were filed in support of his allegations; 

Immunoassay Report taken under the reference of the 1st opposite party dated 18.01.2019 was marked as Ex.A1;

Early Pregnancy scan report dated 22.02.2019 was marked as Ex.A2;

Early pregnancy scan report dated 01.03.2019 was marked as Ex.A3;

II Trimester scan report dated 07.05.2019 was marked as Ex.A4;

Lab report dated 22.05.2019 was marked as Ex.A5; 

OB-2/3 Trimester scan report dated 07.06.2019 was marked as Ex.A6;

Lab report of the complainant dated 19.07.2019 was marked as Ex.A7;

III Trimester scan report dated 23.08.2019 was marked as Ex.A8;

Lab report dated 10.09.2019 was marked as Ex.A9;

Discharge summary of 1st opposite party in the name of complainant dated 13.09.2019 was marked as Ex.A10;

Post Operative Complications follow up with 1st opposite party dated 24.09.2019 was marked as Ex.A11;

Emergency department initial assessment form – St.Isabel Hospital along with Tax Invoice dated 26.09.2019 was marked as Ex.A12;

CT Scan Report dated 01.10.2019 was marked as Ex.A13;

Letter from the 4th opposite party to 2nd opposite party dated 03.10.2019 was marked as Ex.A14;

Discharge summary – St.Isabel Hospitals dated 16.10.2019 was marked as Ex.A15;

Bill for treatment of St.Isabel Hospitals dated 16.10.2019 & 04.11.2019 was marked as Ex.A16;

Complaint and CSR copy dated 14.10.2019 was marked as Ex.A17;

Legal notice issued by the complainant to the opposite parties dated 27.12.2019 was marked as Ex.A18;

Acknowledgement card for proof of service was marked as Ex.A19;

Reply notice sent by the opposite parties to the complainant dated 14.01.2020 was marked as Ex.A20;

On the side of opposite parties the following documents were filed in support of their defence;

Case sheet of the complainant was marked as Ex.B1;

As the opposite party had taken preliminary objection with regard to the maintainability of the complaint in Territorial Jurisdiction and Pecuniary Jurisdiction this Commission deems necessary to determine the maintainability of the complaint as preliminary issue.  It is admitted that the opposite parties   place  at Villivakkam which is very well comes under Thiruvallur Distict in Block No.(14)as per section 34 of the Consumer Protection Act,2019. 

Hence the complaint filed before this Commission with regard to territorial Jurisdiction is very well maintainable. With regard to pecuniary jurisdiction it is stated as per new act only the amount paid as consideration for the services availed should be taken into consideration. Hence the contention of the opposite party that the value of the complaint is Rs.1,05,00,000/- could not be accepted as the amount spent by the complainant towards medical expenses to the opposite parties is less than 50 lakhs which has to considered as consideration paid and we hold that the present complaint is maintainable before the District Commission.

Point No.2: 

To avoid repetition of facts, we restrict ourselves to discuss only the necessary facts for determination of the issue.  The crux of the arguments advanced by the learned counsel for the complainant is that the opposite party has committed medical negligence at five scores;

Unprofessional Staffs;

Non availability of Doctors;

Unwarranted removal of uterus without consent;

Evasive reply;

Forced to undergo surgery in St.Isabal Hospital. 

The learned counsel argued that only due to the act of the midwife during testing the bleeding started with intolerable pain resulting in abruption of placentae and in the death of the foetus.  Further he argued that though the opposite parties were very well known about the foetus death even before the scan was taken they did not    reveal the same and revealed the death of baby only after the performance of LSCS.

  The main allegation put forth by the learned counsel for the complainant is that though the complainant was admitted in the hospital on 09.09.2019 at 11.00 am she was made to wait until 9.30pm by giving tablets at 11.20 am and 05.20pm without any scan or test or any measures by the opposite parties. Also only on completion of the caesarean operation after the scan the intra uterine foetus death due to abruption of placentae was revealed by the opposite parties. Further argued by the learned counsel that the payment made by the complainant was under the delivery package offered by the opposite parties for Rs.5,00,000/- which includes GYN CONS, LB TEST, D.S.TEST, SCANS, UNLIMITED CTG, AFTER DELIVERY GYN CONS FOR SIX MONTH, BABY CONS FOR ONE YEAR, NEW BORN BABY SCREENING, A/C ROOM, PEADIATRICIAN FEES DELIVERY MEDICINE. On the expected date of delivery when the complainant was admitted there was no special complaints and the Fetal Heart Beat was good from11.20am to 10pm on 09.09.2019 and there developed mild pain at around 7pm and her uterus started to contract for delivery at 10pm and therefore the version of the opposite parties that the uterus failed to contract is absolutely false.  Only when the midwife checked the complainant sudden bleedings with severe pain started for the complainant and there was no specialized Doctors especially no gynaecologist at the time of admission of the complainant.  The opposite parties were very well aware about the midwife’s action on the complainant there was an abruption in placenta which could block the oxygen supply to the baby.  Further they referred the complainant to Billroth Hospital for USG scan to escape from their liability.  Further it was argued that the uterus and ovary of the complainant were removed unwarranted and no proper consent was obtained.  The sub-total hysterectomy was done without the knowledge and consent of the complainant.  It is also seen that no due certificate was given in a hasty manner to discharge the complainant emergently. Further the complainant had not given post operative care on 24.09.2019 and had developed severe intolerable and irresistible pain on the complainant’s lower hip region for which the complainant approached the St.Isabel Hospital in emergency department on 26.09.2019 and had consulted the Urologist and after taking CT scan it was found that there was leakage of urine in the left renal pelvis resulting in the inflammation of the left kidney which requires immediate surgery.  It was argued that when the complainant issued legal notice the opposite parties had made evasive, unacceptable, illogic and irresponsive reply for all the allegations raised by the complainant and any diligent person can easily find out the negligence and deficiency in service committed by the opposite parties.  

On the other hand, the counsel for the opposite parties has stated that the present complaint will not come under territorial jurisdiction and also the complaint will not come under the pecuniary jurisdiction of District Commission.  It is argued that when the Doctor noted absence of fetal heart rate he immediately referred to Billroth hospital where intra uterine death had happened.  Only due to PPH when the blood did not stop after LSCS after taking consent from the patient’s relative sub-total hysterectomy with left side Oopherectomy was done and the patient was discharged on 13.09.2019 in good condition. It is submitted that the uterus was not contracted and there was bleeding, it is medically called postpartum hemorrhage and every four minutes one woman die due to PPH.  He also argued that the sub-total hysterectomy with left side Oopherectomy was done only to save the mother’s life.  It is further argued that once IUD happened the Doctor has to resort to LSCS as per the Medical literature referred by them.  It is submitted that the death of the foetus was well in advance and he concluded that the PPH has been managed successfully by the opposite party’s Doctors.  The learned counsel also cited the Judgement rendered by the National Commission in CC.No.85/2013 dated 18.03.2020 at paragraph No.26 and 27 in support of his contention that the PPH is the commonest form of obstetric haemorrhage, and worldwide, a woman dies due to massive PPH approximately every 4 minutes and if bleeding continues sub-total hysterectomy should be performed and also cited another decision rendered by the National Commission in CC.No.2240/2016 dated 07.01.2020 in  proof of their submission made by him. He also cited that there was 26 days in between the date of discharge and the surgery done at St.Isabel hospital and any sort of finding given in the discharge summary of the said hospital is not binding on the opposite parties and hence sought for the dismissal of the complaint.

On perusal of the pleadings and evidences and upon hearing the oral arguments of learned counsels of both parties this Commission is of the view that the opposite parties had committed medical negligence resulting in deficiency in service for which they should be held liable for the following reasons;

When the complainant alleges that from the time of her admission at 11.00am on 09.09.2019 until the midwife examined her and until the ultra scan was recommended the baby was found normal with heart beat and also the condition of the complainant does not posses any abnormalities, in such situation it is the duty of the opposite party to explain as to when the uterine death of the foetus occurred and why the foetus died as even as per the contention of the opposite party scan was not advised until 09.30pm.  When the opposite party failed to explain the same it clearly amounts to deficiency in service.

As per Ex.A14 i.e. after discharge of the complainant on 13.09.2019 when the complainant suffers with urine leakage and she had been admitted, the opposite party had given a letter issued by one Dr.Padmapriya, the consultant obstetrician and gynaecologist and staff of the opposite party to the Managing Director wherein it has been clearly mentioned that the complainant was with new complaints of lumber pain with urethra injury.  Hence it is clear that the opposite party failed to act post operatively and had washed out their liability in clearing the error committed by them which compelled the complainant to get the 2nd surgery done at St.Isabal hospital at an expense of Rs.2,50,000/-.

The opposite party failed to explain the cause for the leakage of urine in the left renal pelvis resulting in the inflammation of the left kidney which resulted as “Tight structure of the Left Distal Ureter” for the complainant when it is evident that said complication arouses only after the surgery performed to her at the opposite party’s hospital and that when no subsequent surgical procedure has been undergone by the complainant after the surgery performed by the opposite parties. 

When it is admitted by both the parties that all pre natal check-up test and scan were taken by the complainant as per the advice of the opposite party under a MBP package, the opposite party has every duty to exercise necessary skill and knowledge at all stage which they failed in the present case by not attending the complainant on the date of admission and had permitted the midwife to examine in such a way resulting in intolerable pain and bleeding. Thus they deviated from performing their part in appropriate terms.  

The consent obtained for LSCS and the consent obtained for sub-total hysterectomy were entirely different when seen apparently and hence the complainant’s allegation that they are forged consent has to be accepted.

When it is the defence by the opposite party that sub-total hysterectomy is a necessity for PPH as per the Medical Literature, the opposite party ought to have explained and proved that the complainant suffered PPH and that sub-total hysterectomy became inevitable for her

Further when the complainant had made clear allegations against the act of midwife which resulted in abruption of placentae with heavy bleeding and pain, it is the duty of the opposite party to rebut or disprove the said allegation by examining the said midwife who attended the complainant.  But no effort has been taken by the opposite party to examine the said midwife and hence the allegations of the complainant has to be accepted as such.

As per Ex.A16 it is mentioned that “33year old lady who underwent subtotal hysterectomy for abruption placenta grade III with PPH on 10.09.2019 (Caesarean hysterectomy dead term bay) Retained (R) ovary, 1 week after that she developed (L) loin pain, continuous dull aching radiating to back.

       No H/o Bowel/bladder disturbances.

     No Dysuria/Hematuria/BleedingP/V/Bleeding PR”.

It is clearly mentioned that after the Caesarean and hysterectomy one week after she developed loin pain. Hence the contention of the opposite party that there are 26 days in between both the surgeries and hence there is no connectivity between the LSCS done by the opposite party and the surgery done at St.isabal hospital has to be brushed aside.

As per Ex.B1 document admittedly the treatment for delivery to the complainant was given as a package which included GYN CONS, LB TEST, D.S.TEST, SCANS, UNLIMITED CTG, AFTER DELIVERY GYN CONS FOR SIX MONTH, BABY CONS FOR ONE YEAR, NEW BORN BABY SCREENING, A/C ROOM, PEADIATRICIAN FEES DELIVERY MEDICINE.  However it is an admitted fact that on the date of admission the complainant was sent to Billroth hospital for scanning.  When scan was included under the package no reason was put forth by the opposite parties as to why they have sent the complainant to another hospital for taking scan. Thus, when scan was included in the package the act of the opposite parties in sending the complainant at an odd time for taking scan to Billroth hospital shows that the opposite parties has no scan facilities and when there was no scan facilities including the same in the package is clearly an unfair trade practice and deficiency in service.  Thus, the hospital providing package but without any scan facility is a clear act of misleading the patient who opt for the package on the belief that the hospital has scan facility.

Hence for the above reasons we conclude that the opposite parties had committed clear medical negligence by applying the principle res ipsa loquitor resulting in deficiency in service by failing to perform their standard duty, skill and care consequently causing death of foetus and damage to the complainant.  Thus we answer the point holding that the complainant has successfully proved the deficiency in service committed by the opposite parties.

Point No.3:

As we have held above that the opposite parties had committed clear negligence and deficiency in service resulting death of a full grown baby and in removal of uterus by subtotal hysterectomy and also another surgery for Tight structure of the Left Distal Ureter we could hold that the act of opposite parties would have caused immense hardship and monetary loss to the complainant.  It is also to be seen that the complainant had availed a delivery package for Rs.5,00,000/- from the opposite parties relying upon the assurances given by the opposite parties. In such circumstances we feel it is proper to direct the opposite parties to refund the sum of Rs.5,00,000/- and also to pay a compensation of Rs.10,00,000/- for the mental agony and hardship and monetary loss caused to the complainant along with cost of Rs.10,000/- as litigation expenses to the complainant.

In the result, the complaint is partly allowed directing the opposite parties 1 to 4; 

a) to refund a sum of Rs.5,00,000/- (Rupees five lakhs only) to the complainant within six weeks from the date of receipt of copy of this order; 

b) to pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) towards compensation for mental agony caused to the complainant;

c) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

d) Amount in clause (a) & (b) to be paid within six weeks from the date of receipt of copy of this order failing which an interest of 9% will be levied on the said amount from 02.12.2018 till realization. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 26th day of September 2022.

 

 

     Sd/-                                                  Sd/-                                                    Sd/-

 MEMBER-II                                     MEMBER-I                                     PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 18.01.2019 Immunassay Report taken under the reference of the 1st oppostie party. Xerox

Ex.A2 22.02.2019 Early pregnancy scan report. Xerox

Ex.A3 01.03.2019 Early pregnancy scan report. Xerox

Ex.A4 07.05.2019 II Trimester scan report. Xerox

Ex.A5 22.05.2019 Lab Report. Xerox

Ex.A6 07.06.2019 OB-2/3 Trimester scan report. Xerox

Ex.A7 19.07.2019 Lab Report. Xerox

Ex.A8 23.08.2019 III Trimester scan report. Xerox

Ex.A9 10.09.2019 Lab Report. Xerox

Ex.A10 13.09.2019 Discharge summary of 1st opposite party. Xerox

Ex.A11 24.09.2019 Post Operative Complications follow up with 1st opposite party. Xerox

Ex.A12 26.09.2019 Emergency Department initial Assesment form – St.Isabel Hospital. Xerox

Ex.A13 01.10.2019 CT scan Report. Xerox

Ex.A14 03.10.2019 Letter from the 4th opposite party to 2nd opposite party. Xerox

Ex.A15 14.10.2019 Complaint and CSR No.693/2019. Xerox

Ex.A16 16.10.2019 Discharge Summary - St.Isabel Hospital Xerox

Ex.A17 16.10.2019 Bill for treatment at St.Isabel Hospital Xerox

Ex.A18 27.12.2019 Legal notice sent to opposite parties. Xerox

Ex.A19 30.12.2019 Acknowledgement card. Xerox

Ex.A20 14.01.2020 Reply notice sent by the opposite parties along with cover. Xerox

 

 

List of documents filed by the opposite parties:-

 

Ex.B1 ………… Case Sheet. Xerox

 

 

 

    Sd/-                                                             Sd/-                                               Sd/-

  MEMBER-II                                             MEMBER-I                                 PRESIDENT