State Consumer Disputes Redressal Commission
Dr. No. Bhama vs 1. Mrs. Baby Stephy on 18 October, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. 477/2004 (Arisen out of Order Dated null in Case No. of District ) 1. N Bhama Gynaecologist,Chandrassery Hospital,Palluruthy,Kochi BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.477/2004
JUDGMENT DATED:18-10-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
1. Dr. No. Bhama
Gynaecologist,
C/o. Chandrassery Hospital,
Palluruthy, Kochi - 6.
2. M/s. Chandrassery Hospital, : APPELLANTS
Palluruthy,
represented by its proprietors,
Dr. C.K. Sankar and Dr. N. Bhama.
(By Adv. M.K.George)
Vs
1. Mrs. Baby Stephy
Thottiyil House, Uzhavoor East P.O.,
Pala.
2. Aibymol D.A.
W/o K.S. Stephen,
Thottiyil House, Uzhavoor East P.O.,
Pala.
3. K.S. Stephen
S/o. Simon,
Thottiyil House, Uzhavoor East P.O.,
Pala.
4. D.A. Antony,
S/o. Antony
Thottiyil House, Uzhavoor East P.O.,
Pala.
(By Adv. M.P. Ramnath)
JUDGMENT
SHRI . M.V. VISWANATHAN : JUDICIAL MEMBER Appellants are the opposite parties and respondents are the complainants in OP.770/01 on the file of CDRF, Ernakulam. The complaint therein was filed alleging medical negligence and deficiency of service on the part of the 1st opposite party in treating the 2nd complainant, Aibymol.D.A from 17.5.01 till 20.5.2001 at the 2nd opposite party hospital in connection with her first delivery. It was alleged that the opposite parties were negligent in providing the necessary medical treatment and facilities to the 2nd complainant while she was admitted in the 2nd opposite party hospital for her first delivery which took place on 19.5.01 under Lower segment Caesarean Section. It was further alleged that due to the medical negligence of 1st opposite party in treating 2nd complainant at 2nd opposite party hospital the baby born to 2nd complainant had respiratory problems and that 1st complainant, the baby born to 2nd complainant was taken to Ernakulam Medical Centre for better treatment and management and that the complainants suffered mental agony, inconvenience and financial loss on account of the medical negligence and deficiency of service on the part of the opposite parties. Thus, the complainants claimed a sum of Rs.1,60,542/- as compensation with interest and cost.
2. The opposite parties entered appearance and filed joint written version denying the alleged medical negligence and deficiency in service. They contended that 1st opposite party, Dr.N.Bhama treated 2nd complainant with utmost care and caution by following the standard procedures and formalities; and that 2nd complainant was diagnosed as a case of Pregnancy Induced Hyper tension (PIH) and thereby she was closely observed by recording the blood pressure, foetal heart. It was contended that 1st complainant baby was diagnosed as chronic IUGR baby (Intra Uterine Growth Retardation) and that the IUGR was caused due to pregnancy induced hyper tension. It is also contended that due to IUGR there occurred uterine cavity contained meconium and thereby there occurred aspiration of meconium stained amniotic fluid which resulted in respiratory distress; that 1st complainant baby was revived by endo tracheal aspiration; that 1st complainant baby was seen by Pediatrician and all the treatments suggested by the Pediatrician were followed on; that subsequently 1st complainant baby was referred to Ernakulam Medical centre for better treatment and management. They also denied the case of the complainants that there occurred delay in performing the Caesarean Section and that it resulted in passing of meconium into amniotic fluid. It is contended that the complainants 3 and 4 and the relatives of the 2nd complainant were not co-operating with the opposite parties for performing Caesarean Section and that they resisted in performing Caesarean Section by arguing that 2nd complainant has got one more week left behind for her delivery. It is contended that due to the timely action of the opposite parties, the life of complainants 1 and 2 could be saved and that the complainants belong to a particular religious group whose belief did not permit blood transfusion and that fact is stated in the discharge summary issued from Ernakulam Medical Centre. Thus, the opposite parties prayed for dismissal of the complaint in OP.770/01.
3. Before the Forum below, the complainants 2, 3 and 4 were examined as PWs 1 to 3 respectively. Exts.A1 to A7 series of documents were also marked on the side of the complainants. The 1st opposite party was examined as DW1, Ext.X1 case sheet of 2nd complainant and X2 medical records produced from Ernakulam Medical Centre were also marked. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:16th February 2004 finding the opposite parties negligent and deficient in rendering service. Thereby, the opposite parties are directed to pay a sum of Rs.25,000/- as compensation with cost of Rs.1000/-. Hence the present appeal.
4. This Commission was pleased to hear the learned counsel for the appellants and the respondents. The counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there was no medical negligence or deficiency in service on the part of 1st opposite party in treating 2nd complainant and also in performing the Lower Section Caesarean Section. He also pointed out the evidence on record to show that 2nd complainant was diagnosed as a Pregnancy Induced Hyper tensive patient and that her pregnancy was a high risk one. It is further submitted that 1st complainant baby was an IUGR baby and that the said IUGR condition was due to the Pregnancy Induced Hyper tension and it resulted in passing of meconium into the amniotic fluid causing respiratory distress. He also relied on Ext.X1 case sheet of 2nd complainant maintained at 2nd opposite party hospital and Ext.X2 medical records of 1st complainant maintained at Ernakulam Medical Centre. He vehemently submitted that only due to the timely action of 1st opposite party and the members of hospital staff of 2nd opposite party the life of complainants 1 and 2 could be saved. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the counsel for the respondents/complainants supported the impugned order passed by the Forum below and submitted that there was medical negligence and deficiency in service on the part of the opposite parties in treating 2nd complainant at 2nd opposite party hospital. He also relied on the admission made by 1st opposite party as DW1 during her cross-examination in OP.770/01. Thus, the respondents prayed for dismissal of the present appeal.
5. The points that arise for consideration are:-
1. Whether the complainants could succeed in establishing their case of medical negligence and deficiency in service on the part of the opposite parties 1 and 2 in treating 2nd complainant Aibymol.D.A in connection with her first delivery at 2nd opposite party, M/s Chandrassery Hospital?
2. Is there any legally sustainable ground to interfere with the impugned order dated:16.2.2004 passed by CDRF, Ernakulam in OP.770/01.
6. For the sake of convenience, the parties to this appeal will be referred to according to their rank and status before the Forum in OP.770/01.
7. Points 1 and 2:-
There is no dispute that 2nd complainant, Aibymol.D.A was admitted at 2nd opposite party, M/s Chandrassery Hospital, Kochi on 17.5.2001 and that 2nd complainant was under the treatment of 1st opposite party doctor N.Bhama attached to 2nd opposite party hospital. It was the first delivery of 2nd complainant and she was gave birth to 1st complainant under Caesarean operation. Admittedly, the aforesaid Caesarian (LSCS) was performed by 1st opposite party Dr.N.Bhama on 19.5.2001. The aforesaid LSCS was done under spinal anesthesia and that the said operation commenced at 6.20.pm and 1st complainant was delivered at 6.35.pm. It is also an admitted fact that the foetus had passed meconium into the amniotic fluid and there occurred aspiration of the meconium stained amniotic fluid causing respiratory distress to 1st complainant baby. It is not disputed that 1st complainant baby was aspirated by doing tracheal aspiration and suction and revived the baby from respiratory distress and that the baby was subsequently referred to Ernakulam Medical Centre for better treatment and management.
8. The definite case of the complainants is that there occurred medical negligence and deficiency of service on the part of 1st opposite party in treating 2nd complainant at 2nd opposite party hospital and also in performing LSCS on 2nd complainant on 19.5.2001. It is also the definite case of the complainants that there was delay in performing LSCS on 2nd complainant and which resulted in passing of meconium into amniotic fluid causing aspiration of meconium stained amniotic fluid resulting in respiratory distress to the baby.
9. 1st opposite party was examined before the Forum below as DW1. According to DW1, the LSCS was an elective surgery and that there was no delay in performing the LSCS on 2nd complainant. Ext.X1 is the case sheet maintained at 2nd opposite party hospital with respect to the admission and treatment of 2nd complainant. Ext.X1 case sheet maintained at 2nd opposite party hospital with respect to the admission and treatment of 2nd complainant would show that the LSCS was done under spinal anesthesia on 19.5.2001 and a female baby was born at 6.35 pm with the body weight of 2.25.Kgs. It would also show that the LSCS was an elective surgery. Page 11 of Ext.X1 case sheet related to new born chart would show that LSCS was an elective one. Against the column, mode of delivery, it is written as LSCS elective. But at the same time the anesthesia chart at page 5 of X1 would show that the LSCS was done as an emergency surgery. Pre-operative diagnosis is written as "unengaged head". Thus, Ext.X1 case sheet itself would show the inconsistency regarding LSCS done on 2nd complainant. At one place it is recorded as "emergency" LSCS and in yet another place it is recorded as "elective".
10. DW1 has categorically deposed that 2nd complainant was a case of Pregnancy Induced Hyper tension (PIH). Ext.X1 case sheet would also give an indication that the said case was a case of PIH. At page 1 of case sheet it is recorded as 'PIH'. DW1 has also deposed that the pregnancy of 2nd complainant was a high risk pregnancy and that PIH patient requires food control, lying position control and bed rest etc. It is admitted by DW1 that 2nd opposite party hospital is housed in a two storied building (ground floor + 1st floor) and that 2nd complainant was admitted in a room in the 1st floor. It is also deposed by DW1 that there was no lift or ramp available in the said building. It is also admitted by DW1 in her cross-examination that 2nd complainant was asked to climb the staircase for routine check up and also for performing other routine investigations and preparations. It was incumbent upon 1st opposite party in providing room facility to 2nd complainant in the ground floor itself. 2nd complainant as PW1 has deposed about the difficulties and physical strain suffered by her by claiming the staircase. Thus, the aforesaid action of the opposite parties in not providing room facility to 2nd complainant in the ground floor of the hospital building would amount to deficiency of service. It is further to be noted that 2nd complainant was in dare need of bed rest during her stay at 2nd opposite party hospital. So, the case of the complainants that there was deficiency in service on the part of the opposite parties in not providing room facility to 2nd complainant for her stay in the ground floor of the hospital building is to be upheld.
11. The complainants have also got a definite case that there was inordinate delay on the part of 1st opposite party doctor in performing the LSCS on 2nd complainant. 1st opposite party as DW1 has categorically admitted the fact that she could realize the necessity for doing LSCS on 2nd complainant and she was sure that it was a case of Caesarean section and that fact was decided at 12.30 pm of 19.5.2001. It is further deposed by DW1 that she was aware of the fact that normal vaginal delivery is not possible because of the over size of the head of the feotus. It is also admitted by 1st opposite party that head of the feotus was not engaged. Thus, it was crystal clear to 1st opposite party at about 12.30 pm that LSCS is to be done on 2nd complainant for delivering the baby. Admittedly, the LSCS was done at 6.20pm and the baby was delivered by LSCS under spinal anesthesia at 6.35.pm. There can be no doubt about the fact that the aforesaid delay of about 6 hours would adversely affect the baby in the womb of 2nd complainant. The aforesaid delay would show the medical negligence and deficiency of service on the part of the opposite parties 1 and 2.
12. The opposite parties have got a case that the complainants were not co-operative for doing the LSCS on 2nd complainant and that the complainants were hesitating to give consent for LSCS. But a perusal of Ext.X1 case sheet maintained at 2nd opposite party hospital with respect to the treatment of 2nd complainant would show that the mother of 2nd complainant had given her consent for Caesarean Section on 17.5.2001. At page 25 of Ext.X1 would show that 2nd complainant's mother Viroli had given the consent for Caesarean Section on 17.5.2001 itself.
13. It is to be noted that X1 case sheet was produced from the side of the opposite parties at the instance of the complainants. The complainants moved the Forum below to get recovery of the case sheet from 2nd opposite party hospital and thereby the Forum below passed an order on I.A.374/01. Nithinkumar attached to CDRF, Ernakulam was deputed to seize the case sheet pertaining to 2nd complainant from 2nd opposite party hospital.
14. In the case sheet (Ext.X1) The aforesaid consent form is incorporated with the signature of 2nd complainant's mother consenting for Caesarean Section. It is true that the consent of 3rd complainant, the husband of 2nd complainant was obtained only on 19.5.2001 at 4.50 pm. The aforesaid delay in obtaining consent from 3rd complainant can be considered as a delay on the part of the opposite parties in obtaining the said consent. There is nothing in Ext.X1 case sheet to show that complainants 2 to 4 were reluctant or resisting for doing LSCS on 2nd complainant. It is pertinent to note at this juncture that if there was any such hesitation on the part of complainants 2 to 4 in giving free consent for LSCS, that would have been recorded in X1 case sheet itself. But no such entry is made in Ext.X1 case sheet. This is a strong circumstance to disbelieve the case of the opposite parties that the complainants were not ready to give free consent for LSCS. On the other hand, the documentary evidence available on record would support the case of the complainants that they were willing for LSCS. It is also to be noted that the pregnancy of 2nd complainant was a high risk pregnancy and that she was a 'PIH' patient. In such a situation it was not fair or reasonable on the part of 1st opposite party in causing delay to perform the LSCS on 2nd complainant. If that be so, the Forum below is perfectly justified in holding that there was medical negligence and deficiency of service on the part of 1st opposite party in performing LSCS on 2nd complainant.
15. A careful analysis of the facts, circumstances and evidence on record would give a clear indication that the delay in performing the LSCS on 2nd complainant was due to the non availability of the Anesthesiologist. DW1 has deposed that Anesthesiologist reached the hospital only at 6.10.pm and the operation commenced at 6.20.pm. It is also deposed by DW1, Dr.Radhakrishnan was the Anesthetist and he was available only on call. There is no case for the opposite parties that 2nd opposite party hospital had a permanent Anesthetist. So, the non-availability of the Anesthetist can also be treated as deficiency in service on the part of 2nd opposite party hospital.
16. The opposite parties in their written version have taken the stand that the complainants 2 to 4 were not amenable for doing LSCS on 2nd complainant and that they resisted the LSCS by stating that 2nd complainant has got one week's time more to have a normal delivery. But, the said case of the opposite parties has not been substantiated by cogent evidence. Had there been any such resistance or reluctancy on the part of the complainants in doing the LSCS on 2nd complainant on 19.5.2002, there would have been an entry to that effect in Ext.X1 case sheet. A perusal of X1 case sheet would not give any indication that the complainants were reluctant or they were not co-operative in performing the LSCS on 2nd complainant. So, the aforesaid contention adopted by the opposite parties cannot be accepted. The Forum below has rightly rejected the aforesaid contention of the opposite parties. The consent form signed by the mother of 2nd complainant and also the consent given by 3rd complainant, the husband of 2nd complainant would only show that they were consenting parties for LSCS.
17. The 1st opposite party is an experienced Gynecologist, she was well aware of the possible and probable complications and consequences of PIH. It is categorically admitted by 1st opposite party as DW1 that 2nd complainant was a PIH patient and that the pregnancy of 2nd complainant was high risk pregnancy. Thus, 1st opposite party was expected to be more vigilant and diligent in treating 2nd complainant. She was never expected to wait for more than 6 hours in doing the LSCS on 2nd complainant. It is also the case of 1st opposite party that the baby was an IUGR baby. She was very much aware of the possible and probable complications of IUGR baby. It is come out in evidence that there was aspiration of mecomium stained amniotic fluid and it resulted in respiratory distress to the baby.
18. Ext.X2 case sheet would show that 1st complainant baby was referred to Ernakulam Medical Centre for better treatment and management. The medical bills produced from the side of the complainants would also show that they had incurred expenses for treating 1st complainant at Ernakulam Medical Centre. The baby was treated as an inpatient in Ernakulam Medical Centre from 20.5.2001 up to 11.6.2001. The discharge summary issued from Ernakulam Medical Centre is also incorporated to X2 case sheet. It would show that the baby was in a critical stage and the baby was given ventilator support from 20.5.2001 up to 28.5.2001. It would also show that the baby had respiratory distress and history of meconium stained amniotic fluid. DW1 has also admitted the fact that foetal distress may cause due to passing of meconium into the amniotic fluid and aspiration of meconium stained amniotic fluid by the baby causing respiratory distress. It can be seen that the respiratory distress was due to the delay in performing LSCS on 2nd complainant. No other reason or ground is available in the record. Thus, it can very safely be concluded that the delay in performing the LSCS resulted in causing all the subsequent complications of foetal distress, passing of meconium into amniotic fluid, aspiration of meconium stained amniotic fluid causing respiratory distress to the baby. Thus, the Forum below is perfectly justified in finding the opposite parties medically negligent in treating 2nd complainant at 2nd opposite party hospital.
19. It is admitted by DW1, 1st opposite party that the 2nd opposite party hospital is housed in a double storied building and the 1st floor of the said building is not provided with lift facility or ramp. Running a hospital without any such facility can be treated as deficiency of service on the part of 2nd opposite party hospital. It is also come out in evidence that no ambulance facility was available to 2nd opposite party hospital. DW1 admitted the fact that no ambulance facility is available in 2nd opposite party hospital. It is further established in this case that the opposite parties failed to provide ambulance facility to the complainants for taking 1st complainant baby to Ernakulam Medical Centre for better treatment and management. The case of the opposite parties that they arranged for an ambulance and by the time 3rd complainant hired a vehicle and transferred 1st complainant baby to Ernakulam Medical Centre. This circumstance would also make the opposite parties deficient in rendering proper medical service to the complainants. In all respects it can very safely be concluded that the opposite parties were medically negligent in rendering medical services to the complainants. So, this commission have no hesitation to endorse the said findings of the Forum below.
20. The Forum below has taken very leniency in awarding compensation to the complainants. In fact, the complainants have suffered mental agony and financial loss on account of the medical negligence and deficiency of service on the part of the opposite parties. They had incurred more amounts for treating the 1st complainant at Medical Centre, Ernakulam. But, the Forum below has only awarded compensation of Rs.25,000/- to the complainants with cost of Rs.1000/-. The complainants have not preferred any appeal disputing the adequacy of the compensation awarded by the Forum below. So, the compensation awarded by the Forum below is to be upheld. We do not find any reason or ground to interfere with the impugned order passed by the Forum below. So, the present appeal deserves dismissal with cost. The points are answered accordingly.
In the result, the above appeal is dismissed. The impugned order dated:16th February 2004 passed by CDRF, Ernakulam in OP.770/01 is confirmed. The appellants are made liable to pay cost to the respondents and the cost is fixed at Rs.5000/-.
M.V. VISWANATHAN : JUDICIAL MEMBER VL.
[HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER