State Consumer Disputes Redressal Commission
Dr.Fedrick John & Another,Karaikodi. vs N.Chellappan & Another,Karaikodi. on 6 June, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F.A.No.178/2013
TUESDAY, THE 06th DAY OF JUNE 2023
1. Dr.Fedrickjohn,
Subramaniyapuram,
7th Street,
Karaikudi. 1 st Appellant/1st Opposite Party
2. Dr.Indira John,
Subramaniyapuram,
7th Street,
Karaikudi. 2 nd Appellant/2nd Opposite Party
-Vs-
1. N.Chellappan,
Door No.3,
M.M.Street,
Sita Na Lane,
Karaikudi Taluk,
Sivagangai District. 1st Respondent/1st Complainant
2. Minor.Muthulakshmi,
Door No.3,
M.M.Street,
Karaikudi Taluk,
Sivagangai District. 2nd Respondent/2nd Complainant
3. Minor C.Thaneermalai,
Door No.3,
M.M.Street,
Karaikudi Taluk,
Sivagangai District. 3rd Respondent/3rd Complainant
4. Dr.Mary Nancy, M.B.B.S.,
Subramaniyapuram,
7th Street,
Karaikudi. 4th Respondent/3rd Opposite Party
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Counsel for Appellants-1&2/Opp.Parties-1&2 :M/s Anand Abdul & Vinodh Associates.
Counsel for Respondents-1to3/Complainants-1to3 : M/s.R.Vijayakumar, Advocate.
Counsel for Respondent-4/Opposite Party-3 : Given-up.
This appeal coming before us for final hearing on 08.02.2023 and upon
perusing the material records, this Commission made the following:
ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. Aggrieved with the award passed by the District Consumer Disputes Redressal Commission, Sivagangai in C.C.No.17/2010 dated 26.06.2013, the opposite parties- 1&2/doctors-1&2 preferred this appeal.
2. The facts:
One Neela wife of the first complainant and mother of the second and third complainants become pregnant for third time and she took regular check-ups from the opposite parties-1&2/doctors. On 01.06.2009 an ultra scan was taken by the opposite party/doctor and Neela was informed that there was twin foetus. Subsequently, on 27.07.2009 another scan was taken in a Private Laboratory which shows single foetus. But all along the doctors informed the complainant's family that there was twin pregnancy. The complainant's wife was hale and healthy throughout her pregnancy period and she was admitted to the appellants' hospital on 27.08.2009 around 8.30 a.m. But only around 9.00 p.m. the doctors informed that there was no possibility for normal delivery and underwent Caesarean section delivery. Further the doctor also get consent for Family Planning Operation. Before performing surgery, the initial pre arrangement were not followed by the doctors. 3
And only after a very long time in the operation theatre, the doctor came out with one male baby said to be born at 9.30 p.m. There was no proper reply for the another twin baby. Subsequently, the Neela was shifted to Room No.7 instead of ICU because at the time ICU room was under repair. The above said Neela was not attended by the opposite parties and she developed breathlessness and stomach pain. It was informed to the nurse but doctors did not attend and only after 8.30 p.m. they gave treatment to the said Neela after sending all the relative attenders outside the Room No.7, and finally declared the said Neela was dead. The doctor said death was due to 'Pulmonary Embolism' but the patient was not given any proper treatment which alone caused the death and hence the complaint is filed seeking Rs.20,00,000/- towards compensation for medical negligence.
3. The first and second opposite parties filed their written version stating that there is no medical negligence on their part as alleged and proper treatment and care was given during Pre natal and post delivery and narrated effective steps taken by them to safeguard the patient. On 27.08.2009 the patient came to the 2 nd opposite party hospital for delivery with labour pain, Intravenous fluids were administered in order to stimulate the contraction of the uterus, to augment labour and to achieve normal delivery. But, there was no progress in labour even after administration of intravenous fluids with oxytocin. Hence, Caesarean section was planned to be done since rupture of amniotic membrane and the liquor was found to be meconium stained. Written (informed) consent for the same was obtained from the patient for the surgery as well as from her sister since the 1st complainant was abroad, he was also informed through phone. It is submitted that, an anesthesiologist opinion was obtained to assess and ascertain the fitness of the 4 patient to undergo the surgery under anesthesia. At 9.00 p.m. on 27.08.2009 the patient was taken to the operation theatre. Consent of the patient and her sister were obtained for sterilization procedure also as they wanted sterilization. Surgery was performed at 9.30 p.m. and a live male baby was delivered. The procedure called tubectomy was also performed-sterilization was performed along with caesarean.
It is also submitted that, post surgery the 3rd complainant was kept in the recovery room for post operative care and monitoring. The baby was shown and handed over to the relatives of the patient and later the baby was kept in the neonatal care unit. On 28.08.2009 the patient Neela complained of breathlessness and sweating immediately the 2nd opposite party and the 3rd opposite party attended the patient. Immediate treatment was rendered for her breathlessness and sweating by giving Oxygen, anticoagulants (to prevent clotting of blood), inotropes (to improve contraction of heart), Vasopressors (to maintain BP) and IV fluids to maintain the perfusion of heart, brain and kidneys. Pulse was becoming feeble, BP was dropping and was low. The oxygen saturation was also dropping. Considering the situation of the patient the 3rd opposite party called for the Anesthesiologist and the physician. Immediately they came and they diagnosed that she suffered from "Acute Massive Pulmonary Embolism". Anesthesiologist had intubated her oxygen was given and maintained. All life saving medicines required were administered to her. And all emergency the saving measures were administered as soon as acute massive pulmonary embolism was diagnosed. Unfortunately, on 28.08.2009 at 10.10.p.m. she expired due to "Acute Massive Pulmonary Embolism". Hence, there is no medical negligence on their side and the complaint is liable to be dismissed. 5
4. Before the District Commission both sides let their evidence and marked Ex.A1 to Ex.A3 and Ex.B1 to Ex.B8, finally the District Commission found the opposite parties-1&2/doctors1&2 are committed negligent and directed the opposite parties 1& 2 jointly and severally to pay Rs.5,00,000/- towards compensation for medical negligence, deficiency in service to the complainant.
5. Aggrieved with the above order, the appeal has been preferred by the opposite parties-1&2/doctors-1&2 on the following:
Grounds: That, the District Commission failed to note that, the initial ultra scan report was not a conclusive and perfect documents so that the doctor advised to take out 4D ultra sound scan from private laboratory and they never gave any wrong information that the said Neela had twin babies. Anyhow the medical care is one and the same whether it is single foetus or twin foetus. Moreover, Pulmonary Embolism is an unexpected complication that was also attended by the doctors with great care by getting expert opinion which was all not considered by the District Commission. Hence, they prayed to allow the appeal.
6. In this case both sides filed their written arguments and no oral arguments were advanced and we perused the same.
7. Now the point for consideration is:
Whether the appellants/opposite parties committed any medical negligence in treating their patient one Neela or not?
Point: From the pleadings and discussions made above. It is an admitted fact that, the first complainant's wife one Neela was pregnant for the third time and the second pregnancy was aborted one. It is also admitted fact that, she was first 6 taken a scan from the hospital itself in which twin foetus was mentioned the above scan report is marked as Ex.A1. Subsequently, on 27.07.2009 another scan was taken at Multi care scan in which single live foetus was detected. It is also an admitted fact that, the patient Neela took Pre natal care and medical guidance only from the opposite parties hospital. It is the contention of the complainant that the opposite parties are very negligent from the beginning itself and took Ex.A1 report as it is twin foetus gestation. It is his further allegation that it is a wrong diagnosis by the doctors who are not at all eligible to take such scan.
8. Similarly, it is an admitted fact that the above said Neela on 27.08.2009 admitted in the opposite parties hospital with labour pain in the morning. However, inspite of Intravenous Fluids with oxytocin were administered the labour pain was not stimulated and the conditions of the patient become critical which needs immediate Caesarean section and she was brought to the operation theatre around 8.30 p.m. and male baby was delivered at 9.30 p.m. Immediately the patient was shifted from the operation theatre to ward Room No.7. It is the contention of the complainant that the delivery was abnormally delayed for hours and no reason assigned for such delay and they were put in surprise by knowing that only one baby was delivered and the hospital authorities did not reply to them properly. It is further alleged by the complainant that before taking decision for Caesarean section delivery no consent was obtained from his family and necessary precautions arrangements were not done by the doctors. The complainant further alleged that ICU was under
repair and life saving mechanism was not available and his wife was kept in an ordinary room, no proper care was given to her which leads to her sudden death. 7
9. So, the Commission has necessarily delved into those allegations one by one.
(i) One of the allegations is wrong diagnosis by doctor as if it is twin gestation.
And (ii) the doctors are not competent to take such ultra scan report. It is clearly proved in Ex.A1 the report that there is twin gestation and the report was taken out in the hospital itself by the opposite party doctor. The opposite party doctor Tmt.Indira John M.B.B.S.,D.G.O. produced her certificate before this Commission. She did not have any special qualification to take ultra scan or gave opinion. For which it is contended on their side that as a doctor of her experience there is no necessity for them to be qualified separately. Moreover, the doctor produced her certificate as Ex.B4 but in the evidence the doctor clearly admitted, that at the time of issuing the certificate they employed one qualified Radiologist. So, by relying upon Ex.B4 we cannot conclude that the doctors are qualified to take Sonogram.
The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 was issued in exercise of the powers conferred under Section 32 of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
10. From perusing them, the qualified Doctors, are only who possess the specialized qualifications under the provisions of the Central Act and the Rules framed thereunder i.e, the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 alone is eligible to carry out diagnostic 8 procedure and Ultra Sonogram/Ultrasound techniques on pregnant women and all other Doctors, who do not possess the specialized qualification as contemplated under the Central Act and Rules are ineligible to practice and they cannot be allowed to carry out such diagnostic procedures. So, the opposite parties are not qualified to take the utrasonogram and relied upon the report. Likewise the opposite parties failed to prove employment of any Radiologist in their Hospital. Only the opposite party alone signed the report. Moreover, the report was proved as wrong since only a single male baby was delivered. So, the doctor without qualification took out an ultra sonogram and based on the report initially treated the patient so it is a negligence on their part.
11. It is the second allegation that, without prior intimation Cesarean section operation was decided by the doctors. Ofcourse, the medical history proved that the doctors waited for normal delivery and finally decided to underwent Cesarean section operation but no consent was obtained from the attenders of the patient or from the patient. The consent form which is marked as Ex.B3 is only with regard to Family Planning Operation. So the written consent or informed consent was obtained only for doing Family Planning Operation but not for the Cesarean section operation. So, without getting informed consent the surgery was done and it is further proved that sufficient time was available for the doctors to get the informed consent but no such consent was obtained and marked as a document. So, we hold that without getting informed consent the operation was performed and it amounts to dereliction on their part and ultimately it amounts to medical negligence. Though, it is not highlighted, on perusal if records, we did not find any surgical/operation note in the prescribed Format. Particularly, the doctors' name who performed the 9 operation and the presence of anesthetists were not at all found place in Ex.B2. So, this is improper maintenance of records or having bad records which proved only the bad treatment.
12. It is referred in the judgement of the National Consumer Disputes Redressal Commission in Dr.K. Vasanthi & Anr. .Vs. Chalasani Satyanarayana that, "It was the primary duty of treating doctor to maintain proper treatment record including anesthesia, Operative notes , the medication, details of recovery from anesthesia etc. It should be borne in mind that, though I & D was a minor surgical procedure, OP-1 performed it under General Anesthesia and post operatively the patient was in ICU for 6 hours. Proper documentation will help to prove the doctor's duty of care and to defend certain unavoidable and unforeseen complications. Therefore, the Petitioners (OP-1 & 2) are held liable for the deficiency in services".
"Medical records not only serve as necessary documents for apt management of a patient, they are also legal documents. These records contain useful evidence for diverse litigations including personal injury cases, criminal cases, workers' compensation, disability determinations, and medical negligence claims. It should be borne in mind that "Good Record is Good Defense" Poor Record is Poor Defense" and "No record is No Defense." Thus, accurate and complete medical documentation is vital for appropriate and efficient patient care which is lacking in this case. Here a record 10 without Doctors name who performed surgery, and the Anesthetist name with the dosages, absence of proof of getting informed consent. So, on this score also we find that the doctors are negligent in giving treatment.
13. The next allegations is patient, Neela complained of stomach pain which was not attended and she was not admitted in the ICU. The allegations that the ICU was under repair was not denied by the opposite parties in their case. They admitted that all necessary life saving equipments were shifted to Room No.7 so that she was admitted in the above ward. We feel, it is impracticable and the doctor failed to prove all life saving/ emergency equipment were installed in room number 7. Further the doctor failed to diagnosis the stomach pain which is one of the symptoms for Pulmonary Embolism. If the doctor took proper care immediately they would have diagonised the Pulmonary Embolism much earlier.
14. Moreover, the hospital did not have a physician or specialists. As per the Medical Sheet Ex.B2 one physician was called from Sivagangai and it is also admitted in the cross-examination. So, he arrived only around 8.15 p.m. and on seeing the condition of the patient the Injection Fragmin 0.6 was administered at 8.30 p.m. and the condition of the patient become worst, afterwards anesthetists was immediately called.
15. This Commission verified the side effects of Fragmin which are mentioned hereunder:
"Fragmin can cause a very serious blood clot around your spinal cord if you undergo a spinal tap or receive spinal anesthesia (epidural), especially if you have a genetic spinal defect, a history of spinal surgery or 11 repeated spinal taps, or if you are using other drugs that can affect blood clotting, including blood. In the above hospital anaesthetists was not employed which is an admitted position. Considering the patient condition the anesthetist from outside was called. This call made from the Hospital confirm our suspicion that there was something went wrong after the administration of Fragmin inj.
16. The patient admitted for delivery at the age of 35 years so she is a high risk patient. But she was classified so. Likewise necessary ventilators, necessary equipments must be in the hospital. Except giving oxygen, no other life saving machines like ventilators were available. Similarly, the patient was immediately not referred for advanced or higher Medical Aid to nearby hospitals.
17. In the delivery note the child was described as CPD. The Full form of CPD is Cephalopelvic Disproportion. CPD occurs when a baby's head or body is too large to fit through the mother's pelvis. The child being a CPD which means bigger than normal baby, So rupture of pelvic and other related complications cannot be ruled out. The medical text explained "Ovarian vein thrombosis (OVT) is an uncommon entity typically seen in the post-partum, patients with pelvic surgery, infection, or inflammation, and hypercoagulabilty. Concurrent pulmonary embolism (PE) may occur in these patients; however, is an uncommon complication. Treatment commonly involves anti-coagulation and antibiotics in the setting of pelvic inflammatory disease". But, anticipating this expected complications the doctor did nothing to protect the patient. These are all cumulatively amounted and attributed as medical negligence. 12
18. A weak attempt was also made by relying upon Ex.B7 that the patient received Rs.2,00,000/- from the Government after admitting that there is no medical negligence as declared by the above Government . The above report Ex B7 is only preliminary fact finding report. It is not conclusively proved that the doctors were not negligent. Moreover, we found the doctors are negligent, by relying upon Ex.B7 since they failed to obtain informed consent and took ultra scan without prescribed qualification. They were not at all considered and all these facts are not at all placed before the above fact finding committee. The District Commission also came to the same conclusion and there is no valid reason to interfere with the above findings. Hence, we confirm the above finding and award and we inclined to dismiss the appeal with cost of Rs.5000/- to the complainant in this appeal and answered the points accordingly.
19. In the result,
1. The appeal is dismissed.
2. The order passed by the Learned District Commission, Sivagangai, made in C.C.No.17/2010, dated 26.06.2013 is hereby confirmed.
3. The appellants-1&2/opposite parties-1&2 are directed to pay additional cost of Rs.5,000/- to the respondents-1to3/complainants-1to3.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 06th day of June 2023.
Sd/-xxxxxxxx Sd/-xxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.
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Corrected