State Consumer Disputes Redressal Commission
P. Kandavel 48-A, Veerapandi Village ... vs 1. Dr. Poonkodi Sivasakthi Hospital ... on 31 January, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., MEMBER (JUDICIAL) Thiru S. SAMBANDAM MEMBER II F.A.NO.609/2007 (Against order in CC.NO.25/2003 on the file of the DCDRF, Theni) DATED THIS THE 31st DAY OF JANUARY 2011 P. Kandavel S/o. Palanimuthupillai 48-A, Veerapandi Village Theni Taluk Theni District-625 534 Appellant/ Complainant Vs. 1.
Dr. Poonkodi Sivasakthi Hospital No.9, White House Street 2nd Cross Street, Teni-625 531
2. Dr. C.S. Kasiviswanathan Sivasakthi Hospital No.9, White House Street 2nd Cross Street, Teni- 625 531
3. Sivasakthi Hospital No.9, White House Street 2nd Cross Street, Theni Respondents/ Opposite parties The appellant as complainants filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to pay Rs.15,70,000/-, as compensation alongwith cost. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.31.8.2007 in OP.No.25/2003.
This petition coming before us for hearing finally on 19.1.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/Complainant : M/s. S. Palanivelayutham Counsel for the Respondent/Opposite party: M/s. Anand, Abdul & Vinodh M. THANIKACHALAM J, PRESIDENT
1. The complainant is the appellant.
2. The complainants daughter by name Vanitha, hereinafter called patient, who was hale and healthy, after conceivement, consulted the 1st opposite party, from 23.10.2000, regularly and was strictly following the instructions given by the 1st opposite party, including taking of the medicine also, for which the 1st opposite party collected fees. In the opposite parties hospital, the patient was subjected to various tests, and at no point of time, the patient deviated from the directions of the 1st opposite party.
3. The patient consulted the 1st opposite party on 9.4.2001, for swelling in her legs, which was not properly attended by the 1st opposite party, taking care. Once again on 8.5.2001, for routine checkup, the patient complaining tiredness, as well swelling of her legs, approached the 1st opposite party, on which date ultra sonogram test was taken, and in the routine manner, not hearing the patients problem, as well as analyzing the critical symptoms, the patient was requested to come, after a month.
4. On 18.5.2001, since the patient had severe abdominal pain, believing it must be labour pain, went to the 3rd opposite party hospital and on examination, the 1st opposite party informed that the fetus had died in the womb, therefore suggesting urgent operation, informing, postponement will cause problems. Therefore, on the same date, at about 7.30 a.m., the patient was taken to the operation theatre, and when the operation was in progress, there was power failure, and the generator could not be started immediately also, resulting 15 minutes power off, thereby causing problems, resulting defective surgery. The opposite parties were running the hospital, even without basic amenities, that should be considered as deficiency in service.
5. The opposite parties have also not made preparation, to ascertain the blood group of the patient, as well as collected the required blood group, for transfusion, and taking the information given by the patient, as O+, doctors proceeded while the patient was B+, which should be construed as negligent act, since there was inordinate delay in securing the correct blood group.
6. At 10.00 p.m on 18.5.2001, the opposite parties 1 and 2, instructed the complainant to remove the patient, to Kidney Care Centre, informing there was renal failure, which should have had happened, absolutely due to deficiency of service, dereliction of duty by the opposite parties.
7. The complainant, having no other option, took the patient to Madurai Kidney Centre, where she was treated, for which the complainant had spent a sum of Rs.4 lakhs.
Kidney Care Centre, Madurai, advised the complainant for transplantation of Kidney, for which they have estimated the cost at Rs.4 lakhs, that too, at the stage when the condition of the patient was unsupportive, for immediate transplantation of kidney. The opposite party, ought to have referred the patient to the specialist, when the have detected the problem, which they failed, and at any point of time, they have not reported, any deterioration in the health of the patient. Because of the unmindful treatment, rendered by the opposite party, causing mental agony and suffering to the deceased, as well as the complainant, the opposite parties are bound to pay a total sum of Rs.15,70,000/-, with interest, as prayed in paragraph 20 of the complaint.
8. The opposite parties 1 to 3, in their written version, filed separately, admitting the treatment given to the patient, opposed the claim, contending that the patient had abortion, even prior to the incident narrated in the complaint, thereby showing inherent problem, which was suppressed, that the patient has not followed the instructions given by the opposite party, in coming to the hospital, and taking necessary test, that on 11.5.2001, though the patient was directed to come for checking, she did not come, and came only on 18.5.2001, on which date problem had already commenced, even 3 days prior to that date, that because of the fetal death, informing the same to the patients husband, as well as the complainant, in order to remove the fetus, LSCS was performed, following all the standard protocol, administering anesthesia, by a qualified doctor, that though there was a power failure for few minutes, during the surgery, it had happened after the completion of the surgery, which has nothing to do with the problems occurred to the patient, that ascertaining the correct blood group, B+ was obtained and transfused, whenever necessary, that when the opposite parties have noted the urine output, was nil, they felt there was kidney failure, and informing the same, they have advised the complainant, and the husband of the patient to take her to the kidney care centre, with referral letter, and the discharge summary issued by the Kidney Care, Transplantation and Research Institute, also does not disclose any alleged negligence, or deficiency, said to have been committed by the opposite parties, and for the mistake committed by the patient, in not following the instruction, and not coming for routine checkup, that too knowing, when the fetus movement was stopped, resulting death, doctors cannot be blamed, as if they have committed deficiency, thereby praying for the dismissal of the complaint, denying other averments in the complaint also specifically.
9. The District Forum, examining the witnesses, marking documents, receiving affidavits, while assessing the same, came to the conclusion, placing reliance upon the medical literature also, that the patient has not followed the instructions given by the opposite parties, to come within 3 days, on 11.5.2001, that after intra urine death of the fetus alone, she had approached the opposite parties on 18.5.00, and by that time, micro organism formed in the uterus, spread their toxins in the blood stream leading to renal disorder, which was suspected even at the time of admission in the hospital on 18.5.2001 itself, and the opposite parties is no way responsible, that for the delay in securing the blood, the complainant is not entitled to accuse the opposite parties, and that the complainant has miserably failed to prove the medical negligence, or deficiency, as the case may be. In this view, the complaint came to be dismissed, which is challenged in this appeal, on various grounds.
10. The daughter of the complainant, had taken treatment from the 1st opposite party, not only from 23.10.2000, as pleaded in the complaint, but also from 3.3.2000, as pleaded in the written version of the 1st opposite party, in paragraph 17. It seems, she had been to the hospital of the 1st opposite party on 3.3.00, for incomplete abortion, and treated on various dates viz. 4.3.00, 8.3.2000, 15.8.2000 and 26.8.2000. Only thereafter, on 23.10.2000, as pleaded in the complaint, the patient approached the 1st opposite party, with the complaints of amenorrhea, and upon examination, the 1st opposite party, diagnosed that she was pregnant. Till 23.10.00, there was no accusation against the opposite party.
On 23.10.2000 also, even according to the complainant, the opposite parties have not committed any negligent act.
The accusation commenced from 9.4.2001, and ends on 18.5.2001, on which date, the patient was discharged, from the 3d opposite party hospital, in order to admit her, in the Kidney Centre at Madurai, where she took treatment, and then shifted to Madurai Meenakshi Hospital, where she died on 8.12.2001, due to renal failure.
Therefore, the initial burden is upon the complainant to prove, that the opposite parties have committed medical negligence, not only based upon expert opinion, but also based upon the records maintained, during the treatment given, to the patient by the opposite party, if possible. Mere assertion, as if the opposite parties have committed deficiency or negligent act, will not serve the purpose, as repeatedly held by the National Commission, as well as the Apex Court also. The principle of res ipsa loquitor also cannot be extended in this case. As rightly urged on behalf of the opposite party, if the patient had not followed the instructions, given by the doctor, coming and checking periodically, resulting problem, then the doctor, whatever may be they expertise, cannot cure, if complicated, which had happened in this case.
10. It is the specific case of the opposite parties, as seen from paragraph 21 of the written version, it is supported by proof affidavit also, that the 1st opposite party informed the patient on 8.5.2001, to come for review, after 3 days i.e. on 11.5.2001, not only to check BP, but also fetal heart (FH).
This advise so rendered, is recorded in the case sheet also, which is exhibited as Ex.B1. As far as this case sheet is concerned, commencing from 3.3.00, not under challenge. It is not even suggested remotely, that case sheet was prepared, after the problem had commenced, or it was not prepared then and there. Therefore, we have no option, except to accept the case record, as such and we should act upon the entries, available therein, in order to fid out the alleged negligent act, or what was the procedure followed by the patient also, in attending for review. Ex.B1 discloses that, when the patient had been for checkup on 8.5.2001, everything was normal, fetal movement was noticed, and proper medicines were also prescribed, and nothing was faulted. Under the heading advise AD, it is said to come for review after 3 days to check the BP and FH, and also advised to come immediately, if she suspects any change in the fetal, thereby informing the patient that routine checkup is required, atleast within 3 days, and not only that if any extraordinary problems noticed, that she should rush to the hospital. As per the records maintained by the opposite party hospital, and even as per the case of the complainant, since it is not the case, that the patient had been to the 1st opposite party hospital on 11.5.2001, the patient has not approached the opposite party for review, in order to ascertain the position of the fetus, its movement, heart rate etc. as advised
11. Admittedly on 18.5.2001, at about 5.43 a.m., having suffered abdominal pain, the patient was taken to the opposite party hospital. The patient appears to have complained to the doctor not able to feel the fetal movement, since three days. The BP was also high. Further examination revealed FH not herd, heard mobile, fetal parts easily felt.
Not only that foul smelling discharge also noticed. On the basis of the clinical examination, the doctor has come to the conclusion, that PIH with Pre-eclamptic Toxaemia with Intra Uterine death of the fetus with septicemia. The diagnosis so done, by the 1st opposite party, was confirmed by the 2nd opposite party, who is the surgeon. Based upon the clinical diagnosis, the 1st opposite party informed the relatives of the patient, that the patient required lower segment caesarian section, to deliver the dead child, which was performed, with the help of anesthetist by name Dr.Prabakaran, by opposite parties 1 and 2, for which also, there are entries in the case sheet. We find no reason to discard the case history, as well as the case of the 1st opposite party, since the patient came to the opposite party hospital on 18.5.2001, that too, three days, after the fetal death, for which the patient alone can be faulted, not the opposite party. It is also not the case of the complainant, that the opposite parties are not qualified, or the 1st opposite party has not exercised proper care, alongwith 2nd opposite party, during LSCS, though accusation is leveled regarding the power failure, and on other grounds.
12. True, a hospital, which is attending delivery, including performance of surgery, should be equipped with basic amenities, apprehending problem, including power failure. If the basic amenities are not available, and the doctors proceeded against the established norm, then certainly the Forum should affix seal of negligence, not otherwise.
One of the negligence attributed against the opposite parties, is though there was generator, it was not started immediately, and the operation was conducted for 15 minutes, after the power failure had occurred. There was a power failure on 18.5.2001, is fairly admitted by the opposite parties, and in fact, in the operation notes itself, it is noted by the surgeon, which reads after closing the uterus, there was power failure, which was rectified within few minutes, wound closed in layers, after pouring 100 ml metrogyl, peripheral cavity. The District Forum has also taken note of this fact, and concluded, that having emergency lamp, for few minutes, when there was a power failure, procedure adopted, which had not caused, any problem. The performance of LSCS is not by itself faulted or it is not the case of the complainant, that proper sutures were not put, or they have not properly removed the dead fetus or properly cleaned, something like that. Therefore, the admitted power failure, which was rectified within few minutes, cannot be taken as negligent act, affecting the patient, for which there is no proof.
13. As seen from paragraph 9 of the complaint, another accusation or deficiency leveled against the opposite parties 1 and 2 was, that the 3rd opposite party, demanded for O+ blood, after completion of the surgery, though the patient was B+ group, that should be taken as negligent act. It is in record, that the patient reported that her blood group was O+, but that was not accepted, or taken as correct, whereas blood test was conducted, matched and only B+ blood group was summoned, transfused at later point of time, when transfusion of blood was required, which can be seen from the operation note itself. The operation was performed between 8.45 a.m and 9.30 a.m. Even before that, at 8.00 a.m. blood grouping was done, noted as B positive blood (hospital). Further at 8.30 a.m, the surgeon has made a note, to arrange five pint of B+ve blood (fresh) and verify the blood group and RH, thereby showing that they have taken all precautionary steps, to ascertain the blood group, and not acted only on the basis of the report, given by the patient, and blood group was also matched with the blood bank, as seen from the further entry, in the case sheet. Therefore, it is futile and frivolous, on the part of the complainant, to allege that there was apparent error in the identification of the blood group of the patient, or there was any delay in securing the blood.
No one has certified, because of the non-transfusion of the blood, the further complication to the patient had occurred, and if that is the case, even we can find fault with the opposite party, as if they have not collected the blood, in advance, which is not the case.
14. At the time of surgery itself, after its completion, the doctors have noticed, Urine output nil at the end of surgery, for which there is an entry in the surgeon notes itself. Case record would reveal, there was constant and continuous monitoring of the patient, taking BP, listening the complainants problem, noting the patients consciousness etc. At about 2.45 p.m, blood was also given, even thereafter the doctors have noticed at about 5.00 p.m., on the same day No urine output. Physician Dr.Karunakaran MD., contacted and requested to see the patient.
In view of this problem, the first opposite party contacted Dr.Karunakaran also attended the patient, and came to the conclusion, that there was acute renal failure. In this context, we have to see, what is the cause for renal failure.
15. The learned counsel for the opposite party, brought to our notice, a passage from the book Medical Disorders in Obstetric Practice Edited by Michael De Swiet, where in under the heading Bilateral renal cortical necrosis in pregnancy, it is said, Renal cortical necrosis is an extremely rare complication, which at one time seemed to be more common in pregnant compared to non-pregnant populations but most recently its incidence during pregnancy has decreased to below one in 80000. It is characterized by tissue death throughout the cortex with sparing of the medullary portions. Although it may develop in patients with DIC or overwhelming septicaemia, most cases preent in the third trimester or the puerperium when septic complications occur less often and when it is associated with specific obstetric complications such as placental abruption, unrecognized long-standing intra uterine death, and occasionally pre-eclampsia. Multi gravidas beyond the age of 30 are more likely to develop this condition. It has been considered the clinical counter part of the experimental Sanarelli-Schwartzman reaction, which text, is not under challenge.
16. Now once again, we have to see, the case history of the patient, 18.5.2001, itself. As indicated above, the 1st opposite party suspected septicemia, due to intra uterine death of the fetus, and this was confirmed at later period, as seen from the case records, which was also informed to the relatives of the patient, which reads Patients attenders are informed about the raised BP, IUD and possibility of septicaemia and renal failure. Also informed about the need of LSCS since the vaginal delivery is not possible.
17. In the medical text itself, it is said tissue death may cause septicaemia immediately. As we have already pointed out, fetal death had taken place on 15.5.2001, and the patient had come to the hospital on 18.5.2001, thereby retaining the dead fetus, in the womb, even emanating discharge with foul smell, through vagina, therefore after intra uterine death of the fetus, in the ordinary course, micro organism formed in the uterus, and had spread the toxins in the blood stream, leading to renal disorder, which was suspected as indicated above, which proved to be correct. Therefore, for the reneal failure, after LSCS, we cannot find fault with the opposite parties, since nothing is pointed out, how they have committed error, while discharging their duties, as a prudent, qualified doctor, adopting standard protocol.
18. In view of the fact, the opposite parties had no facilities, to meet renal failure, for expert treatment, naturally, even as expected by the complainant, they have referred the patient to Madurai Kidney Care Centre and the Transplantation Research Institute, where the patient was treated for some time, and the discharge summary is marked as Ex.A26. In this discharge summary, the previous case summary is noted, including LSCS, and nowhere it is said, that due to any deficiency or negligent act, happened at the time of LSCS, the patient has suffered renal failure. From there, she was discharged in the month of September 2001, and thereafter it appears, the patient had taken treatment at Meenakshi Mission Hospital and Research Centre, and unable to recover, died on 12.12.2001 unfortunately. For these unfortunate incident, we cannot find fault the opposite parties, and if at all the patient alone should be held responsible.
19. A reading of the unchallenged case records, coupled with admitted facts, supported by medical literature, it is crystal clear, at no point of time, the opposite parties have committed any mistake, and infact as expected, from a prudent doctor, they have given treatment, step by step, monitoring the situation, adopting all kind of necessary action, to save the patient, but it was beyond their control, and therefore, alleging negligent act, attacking the opposite party, ordering them to pay compensation, as claimed by the complainant, is beyond the jurisdiction of the consumer forum, which was correctly considered and decided by the District Forum, in which finding, we concur, dismissing the appeal.
20. In the result, the appeal is dismissed, confirming the order of the District Forum in O.P.No.25/2003, dt.31.8.2007. There will be no order as to cost in this appeal.
S.SAMBANDAM J. JAYARAM M. THANIKACHALAM MEMBER II JUDICIALMEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Medical