State Consumer Disputes Redressal Commission
A.P. Vidya Vidhana Parishad And Another ... vs Smt. Kunja Kondamma Khammam on 29 September, 2008
A
BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
AT HYDERABAD.
F.A. 670/2008
against C.C. 130/2005, Dist. Forum, Khammam
Between:
1. Medical
Superintendent
A.P.
Vidya Vidhana Parishad
Area Hospital
Bhadrachalam-507
111
Khammam
Dist.
2. The
Principal Secretary to Govt.
Health,
Medical & Family Welfare Dept.
Government
of A.P.
Secretariat,
Hyderabad. *** Appellants/
Opposite
Parties.
Smt.
Kunja Kondamma
W/o.
Kondala Rao
Aswapuram
Post
Khammam
Dist.-507 116. *** Respondent/
Complainant
Counsel
for the Appellant: Mr.
S.A. Waheed Shabaz
Counsel
for the Resps: P.I.P.
QUORUM:
HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI G. BHOOPATHY REDDY, MEMBER
MONDAY, THE TWENTY NINETH DAY OF SEPTEMBER TWO THOUSAND EIGHT Oral Order: (Per Honble Justice D. Appa Rao, President) ***** This is an appeal preferred by the opposite parties against the order of the Dist. Forum, Khammam in directing them to pay Rs. 1 lakh with interest @ 9% p.a. from the date of complaint till the date of realization towards medical negligence.
The case of the complainant in brief is that she is a resident of Thallagommuru of Khammam district.
Her marriage took place on 14.2.2000. She gave birth to a caesarean female child on 21.12.2002 at Jayabharathi Maternity Hospital, Bhadrachalam. When she became pregnant for the second time in the year 2003, she got checked up with expert doctors. They informed that she and her child were safe and normal. When she got labour pains on 10.6.2004 at about 10.00 a.m. she admitted in Area Hospital, Bhadrachalam the 1st appellant by paying user charges of Rs.
400/-. Dr. Jhansi Laxmi Bai, Civil Assistant Surgeon, who is the sister of Dr. Jayarami Reddy, Medical Superintendent, advised them to go for ultra sound scan of gavis uterus from M/s. Vikrant Scanning Centre, though such facility was available in the very hospital.
The report revealed that weight of the boy was 2.838 Kgs and his age was 36.3 weeks and the last menstruation was recorded as 26.9.2003. It shows that the child was in good health. Having satisfied with the scanning report, both the doctors referred to above, informed that caesarean operation was required for which she consented. She gave birth to a male child. They advised her to undergo family planning operation as both the mother and child were safe. Accordingly, she gave consent. The family planning operation was conducted. Later they informed that the child was suffering from lung infection as a result of amiriotic fluid aspiration. They arranged oxygen till 13.6.2004.
The oxygen was removed on the ground that he recovered. On 14.6.2004 Dr. Venkateswara Rao examined the child and instructed the staff nurse to immediately arrange oxygen.
The nurses did not carry his instructions. At about 12.00 noon when she complained, the doctor instructed the nurses to administer oxygen but they in turn told him that the oxygen was exhausted. At about 12.30 p.m. the child died. When questioned, they came up with false version that the boy born was premature.
Since she convinced with the version of the doctors, that the male child was healthy and normal, she gave consent for family planning operation. She cannot conceive any more. She lost her only son. The death of her child besides making her to undergo family planning operation amounted to deficiency in service as well as negligence, and therefore claimed a compensation of Rs. 5 lakhs.
Appellant No.1/Opposite Party No. 1 filed counter adopted by Appellant No.2/Opposite Party No. 2 denying each and every allegation. They alleged that the complainant and infant baby were treated in the hospital for free of charge, and therefore the complaint was not maintainable. The duty doctors attended on the complainant treated her and her child with all due care and caution. There was never any negligence on their part. An amount of Rs. 300/- was collected for the drugs and medicines needed at the time of surgery. In view of her previous history having underwent caesarean section, Dr. Jhansi Laxmi Bai the Gynaecologist admitted her. When she complained labour pains, the doctor was of the opinion that the height of uterus is less for term. The scanning reported showed that single live foetus of age 36.3 weeks, a pre-term baby boy born before 37 weeks of gestation. Her expected date of delivery was 3.7.2004. She was having active uterine contractions and high leakage of membranes, and as such the doctor performed caesarean section, after informing her and obtaining consent. The family planning operation was done along with caesarean operation with her consent and that of her husband. She had taken incentive amount producing the income certificate. They did not pressurize her to undergo family planning operation. Appellant No.1/Opposite party No. 1 the superintendent of hospital was not aware of her admission nor the caesarean operation performed on her. Immediately, after delivery in the case sheet the Gynaecologist wrote ABGAR score. The anaesthetist also mentioned the said fact. He mentioned that the baby boy was born pre-mature with lung infection. On 8.6.2004 the oxygen was supplied, continued till the date of death of her baby. The allegation that oxygen supply was exhausted is not true. There was ample stock. In view of physiology and anatomical handicaps associated with early birth and low birth, certain disorders tend to occur more frequently in pre-term than in normal infants. In addition a pre-term is more severely affected by any disorders than the term infant. The pre-term babies are more commonly effected with respiratory problems due to 1) poor development of lung 2) weak thoracic cage 3) weak respiratory center
4) R.D.S. surfactant deficiency 5) poor or absent cough reflex. The death of the boy was occurred due to pre-term lung infection and not because of any negligence on their part. The compensation claimed was highly excessive and baseless. Therefore, they prayed for dismissal of the complaint with costs.
The complainant in proof of her case filed her affidavit evidence and Exs. A1 to A17. The Appellants/Opposite Parties filed affidavit evidence of Dr. S. Jayarami Reddy, Medical Superintendent as RW1 and Dr. S. Jhansi Lakshmi Bai, Gynaecologist as RW2 and filed Exs. B1 to B16. The Dist. Forum after considering the evidence placed on record opined that there was deficiency in rendering medical service viz., 1) conducting the tubectomy operation to the complainant having known that she delivered a pre-term baby with lung infection due to which she had lost her only male child without any scope of giving birth to another son. 2) Non-administration of oxygen, and not treating the boy in time by the Paediatrician or the staff nurse resulted in the death of the baby boy. Therefore, it awarded a compensation of Rs. 1 lakh with interest from the date of complaint till the date of realization.
Aggrieved by the said decision, the appellants/opposite parties preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. The complainant and her deceased boy were treated free of charge, and therefore the complaint does not come under the purview of the Consumer Protection Act. Since she gave birth to a pre-term baby of 36.3 weeks gestation with a weight of 2.5 Kgs a low birth weight baby the mortality being neonatal. 75% of neonatal deaths occur due to low birth weight besides from respiratory distress syndrome. The doctors attended on them were specialists in their fields, and therefore prayed that the appeal be allowed by dismissing the complaint.
It is an undisputed fact that the complainant, a tribal woman was admitted in the Government area hospital, Bhadrachalam, the 1st appellant with labour pains on 10.6.2004 at about 10.00 a.m. after collecting user charges amount of Rs. 400/- evidenced under receipts issued by the very hospital, marked as Exs. A7 to A11. When she came to the hospital she had already underwent ultra sound scanning evidenced under Ex. A4 report issued by M/s. Vikrant Scanning Center, Bhadrachalam, taken on the very same day. It discloses that average gestation age: 36.3 weeks and foetal weight : 2838 gms.
RW2 Dr. Jhansi Lakshmi Bai, Gynaecologist after perusing the above report and after examining her, found that active uterine contractions and much leakage of membranes.
She stated in her evidence then I performed caesarean section, keeping in view of the mothers risk of life if delayed without performing surgery which may lead to rupture of uterus which is very danger to the complainants life as well as the babys life by taking from her and from her husband a high risk consent. She further stated that at her request and that of her husband, after taking consent, family planning operation was performed to her successfully and the complainant had received the incentive from the Area Hospital. Immediately after giving birth on 10. 6.2004 at about 9.16 p.m. the baby was shown to the Paediatrician Dr. Venkateswara Rao, the then Civil Assistant Surgeon, who admitted the baby into the Pediatric causality and was put on oxygen and other treatment. The baby was born pre-term and the baby was expired on 14.6.2004 in spite of best efforts put in by the specialists. She further stated that no charges were collected except the user charges of Rs. 400/- for conducting operation towards the material as per the Government Order. The medicines and Oxygen were provided to the baby without any charges. Because of sudden lung infection even though the Paediatrician was attending with all care, the baby expired for the reasons beyond his control.
Ex. B8 is the Functional Manual filed by the appellant hospital under Common Neonatal Problems. There is classification of newborns based on gestational age and birth weight. It reads as follows :
Newborn: A bay from birth to 28 days is called a newborn.
Classification based on Gestational Age:
1. Pre-term baby born before 37 weeks of gestation.
2. Term baby, born between 37 and 42 weeks of gestation
3. Post-term baby, born beyond 42 weeks of gestation.
Classification based on Weight:
1. Low birth weight (LBW) baby. Less than 2500g
2. Very low birth weight (VLBW) baby, less than 1500g
3. Very very low birth weight (VVLBW) baby, less than 1000g
4. In India baby weighing less than 2000g is considered as baby requiring special care.
The appellant asserts that sine the baby boy was a pre-term baby and low birth weight, certain disorders tend to occur very frequently in pre-terms than in normal infants. It was mentioned that the corner stone of care of the newborn infants, more so for the LBW babies, is anticipation and early detection of complications. This is achieved by careful monitoring of the babies. Clinical periodic evaluation includes respiratory distress and 13 other signs. It further mentioned that a baby who shows any one or more signs/symptoms should be immediately referred for hospitalization, and prompt management of the specific complication by a specialist neonatologist..
Coming to the facts, Ex. A4 ultrasound scan report shows that the baby was born of 36.3 weeks old, and of foetal weight of 2838 gms. In other words he was four days short of average gestation period. He cannot be classified as low birth weight (LBW) baby as he was more than 2500g. Therefore the contention of the appellant that the baby was born premature but also low birth weight cannot be accepted. In ordinary parlance, if the baby can be termed as premature, he was four days pre-mature, however, when the weight is concerned, he was more than 2500g.
Obviously, having satisfied with all the required tests, caesarean operation was conducted followed by family planning operation. Had the doctors informed that the baby that was born was a preterm baby and his survival would be difficult, it is commonsense that, she would not have undergone family planning operation. Earlier, she was given birth to a baby girl, while the second birth was of baby boy. In fact RW2 admitted in her evidence that it is true that we have advised to undergo family planning operation as the child was delivered with good cry, and good activity and with body weight 2.7 Kgs. The complainant asserts that the boy was born without any complications, and the same is proved by RW2 in admitting the said fact.
Later, when the boy had lung infection, he was taken to Paediatric casualty to give oxygen besides administering medicines.
It is positive case of the appellant that immediately after delivery the baby was shown to Dr. Venkateswara Rao, a Paediatrician. He admitted the case on 10.6.2004 mentioning in the case sheet boy is pre-term with lung infection. He followed the case right from the time of delivery till the date of death i.e., 14.6.2004. The contention of the complainant is that the baby boy was not administered oxygen. The oxygen supply in the hospital was exhausted.
Curiously, when the complainant alleges deficiency in service on the part of Paediatrician , his affidavit evidence was not filed, so that all these facts could have been confronted to him. RW1 Dr. S. Jayarami Reddy, Superintendent of the hospital filed Oxygen Stock Register (Ex. B6) and Casualty Indent Register (Ex. B7).
RW1 was not present through out the treatment. It is in the evidence of RW2 that she was also not present after she conducted the family planning operation. She did not look after the child after she performed the family planning operation. Ex. B2 is the case sheet of the baby boy maintained by Dr. Venakteswara Rao. He was born on 10.6.2004 and died on 14.6.2004. The case sheet discloses that X-Ray was taken on 12.6.2004. X-Ray was not filed nor the opinion expressed thereupon. Unless, he explains by way of affidavit as to the treatment given by him to the patient, it would be difficult to state the exact treatment that was given by him. The entries in Ex. B2 are indecipherable. Had he been examined, the complainant would have confronted the entries to him, equally so, the person/employee maintaining the supply of Oxygen cylinders. The complainant alleged that the nurses did not care, when she complained about non-providing of Oxygen to the baby. It is also her contention that though Dr. Venkateswara Rao, directed the nurses to provide Oxygen they did not heed. Evidently, the boy had survived for four days. It was not the stand of on set of infection. Except introducing the word pre-term baby though he was four days less than 37 weeks gestation, and despite the boys weight was 2838 gms as against 2500g, to dub as low weight baby in order to show that they were not negligent and the boy was destined to suffer from lung infection, and in spite of best medical care the boy could not survive. This explanation is ex-facie wrong. On the other hand, the complainant could prove that the boy was born healthy.
The other contention that was taken was that the treatment was free of charge, and no amount whatsoever was taken. RW1 the Superintendent of the hospital admitted that it is true that we have collected user charges from you towards medicines and surgical consumables at the time of operation. According to him, it is not on profit basis but as per G.O. Ms. No. 90 HM&FW (M1) Department Dt. 17.4.2003 which was in force at the time of operation, thus collected the charges. When the amounts were collected for treatment, it is too late a day to contend that the treatment was given free of charge. Subsequently, the Government by issuing G.O. Ms. No. 163 HM&FW (M1) Department Dt. 14.6.2004 directed the hospital authorities not to collect user charges from the patients. Whereas the PW1 had underwent treatment on 10.6.2004 and the boy died on 14.6.2004.
The learned counsel for the appellant relying a decision in Mrs. Paulrajan and another Vs. M/s. KHM Hospital and another reported in 2007 (4) ALT 1 (NC) (CPA) contended that medical treatment, degree of skill and care required from a medical practioner is that he must bring to his task a reasonable degree of skill and must exercise the reasonable degree of care. Neither very highest nor a very low degree of care and competence judged in the light of particular circumstances of each case, is what the law requires. There is no dispute as to the proposition.
To sum up, the complainant was admitted in the government hospital on 10.6.2004 along with ultra sound scan report wherein it is revealed the weight of child is 2838g, and the age is 36.3 weeks, falling short of four days, in order to, term him as pre-term baby. No evidence, whatsoever was filed in order to prove that the boy had lung infection.
Even otherwise, there is no proof that adequate care was taken in order to contain the infection but for which RW1 would not have mentioned that the baby to be shown to a Paediatrician for normal check up. At the time of taking consent, it was not revealed that it was a pre-term baby, and there was a risk of infection, and consequently his survival. What all mentioned was that the family planning operation would be performed after giving birth to a baby. Therefore, we are of the opinion that there was deficiency in service on the part of doctors in treating the baby boy. The evidence of PW1 complainant that no treatment was administered when they found that he was suffering from lung infection, and that Oxygen was not administered as directed by the Paediatrician stands uncontradicted. We are of the view that due to lack of treatment, the boy died. The Dist. Forum after considering all these facts rightly awarded a compensation of Rs. 1 lakh with interest @ 9% p.a., from the date of complaint till the date of realization. No cross appeal was preferred by the complainant. Since PW1 complainant was deprived of having another son or child, the compensation that was awarded was just and modest. We do not see any merits in the appeal.
In the result the appeal is dismissed with costs computed at Rs. 2,000/-. Time for compliance four weeks.
PRESIDENT MALE MEMBER Dt. 29.09.2008.
*pnr CORRECTED O.K.