State Consumer Disputes Redressal Commission
Tmt. J. Menaka W/O. Jeganathan No.11-C, ... vs M/S. Psg Hospital Rep. By Its Medical ... on 17 June, 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 A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II F.A.NO.539/2008 (Against order in CC.NO.12/2005 on the file of the DCDRF, Coimbatore) DATED THIS THE 17th DAY OF JUNE 2011 Tmt. J. Menaka W/o. Jeganathan No.11-C, Nethaji Nagar, 3rd Street Karumarampalayam, Mannarai Post Tirupur Appellants/ Complainant Vs. 1.
M/s. PSG Hospital Rep. by its Medical Director Peelamedu, Coimbatore-641 004
2. Dr. Lath Maheswari M/s. PSG Hospitals Peelamedu, Coimbatore-641 004 Respondent/ Opposite parties The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.4 lakhs towards loss with 24% interest, alongwith compensation of Rs.1 lakh and 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.23.1.2008 in CC.No.12/2005.
This petition coming before us for hearing finally on 02.06.2011. Upon hearing the arguments of the counsel 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 Appellants/ Complainant: M/s.S. Pandima Counsel for the Respondent/Opposite parties : M/s. D. Rajendran M. THANIKACHALAM J, PRESIDENT
1. The complainant having failed before the District Forum to have redressal, which was addressed on the basis of medical negligence, has come before this commission, as appellant, seeking redressal.
2. Brief facts relating to the case:
The complainant, had medical checkup with the 2nd opposite party, due to the pregnancy of the 2nd child, and she followed strictly the instructions given by the 2nd opposite party, who was working in the hospital-1st opposite party.
3. On 23.8.2004 at 3.00 p.m, the complainant suffered delivery pain, and immediately contacting the doctor, admitted in the 1st opposite party hospital at 4.00 p.m, where she made to wait upto 6.00 p.m, and after 6 p.m alone, the 2nd opposite party visited the complainant, who informed that the complainant should undergo an operation, for safe delivery.
Accordingly, at 6.35 p.m., the complainant delivered a female baby, after surgery, and the complainant was informed that the child has to be kept in emergency ward, since it had drunk /swallowed solid waste.
4. After the operation, and suture, sometime later, the 2nd opposite party informed, that the complainant should undergo family planning operation, as per the wishes of the husband, and despite refusal, considering the condition of the child, without permission, family planning operation was performed, thereby preventing the complainant from conceiving at later point of time.
5. On 24.8.2004, at 3.55 a.m., the complainant was informed that the newly born child, kept in the emergency ward, expired thereby the complainant was disappointed, causing mental agony and torture, which cannot be described by words.
Because of the negligence of doctor, who had attended the delivery, the complainant lost the life of her child, though she had spent more than Rs.25000/-, for medical expenses.
Considering the serious condition of the child, the 2nd opposite party should have postponed the family planning operation, which she failed, and she also failed to explain the position, thereby the opposite parties have committed deficiency in service. The complainant complaining deficiency in service, issued notice claiming compensation, for which there was only reply, thereby compelling the complainant to file the case, claiming totally a sum of Rs.5 lakhs as compensation, not only towards loss occurred, but also for the deficiency in service.
Hence the complaint.
6. The opposite parties, denying the negligence or deficiency of service alleged by the complainant, admitting that the 2nd opposite party, attended the delivery, resisted the case, contending interalia, that immediately after the complainant was brought to the hospital, considering the breech presentation, she was advised caesarian, that as the complainant expressed her readiness, and willingness to undergo sterilization on her own, consent was obtained for both, that the child specialist was also present at the time of delivery, that an alive female baby, weighing 3.2 Kgs. was delivered at 6.35 p.m., which cried, having good APGAR score of 8/10, that there was staining of meconium in the liquor, which can be seen in the cases of breech presentation, for which baby was treated by the child specialist, died unfortunately at 3.55 a.m., on 24.8.2004, that after the delivery, as agreed, only after sterilization, wound was sutured, not as falsely alleged by the complainant, reopening and performing family planning operation, that there was no deficiency of service, carelessness, negligence on the part of the opposite parties, and this being the position, there is no question of no care, and deficiency of service, and therefore the complaint is devoid of merits, liable to be dismissed.
7. In the additional counter, it is said since the complainant had not attributed any medical negligence, the complaint itself is not maintainable, praying the maintainability, as preliminary issue.
8. In support of the averments in the complaint, proof affidavit by the complainant was filed, seeking aid from Ex.A1 to A9. To repel/rebut the above evidence, the 2nd opposite party examining herself as RW-1, had sought the aid of Ex.B1 to B7.
9. The District Forum, scanning the above materials, mostly relying upon the evidence given by RW1, in addition to the consent given by the complainant, or her husband, as the case may be, came to the conclusion, that the opposite parties, have not committed any negligence or deficiency of service, and there is no question of compensation to the complainant. In this view, the complaint was dismissed.
10. The main accusations, against the opposite parties are that (1) the opposite parties have not attended the complainant forthwith on her coming to the hospital at 4.00 p.m., whereas the 2nd opposite party attended only on 6.00 p.m, causing delay, followed by problem, (2) that without explaining the condition of the child, and without obtaining consent from her, family planning operation was performed and (3) and that the child was not properly treated, resulting its death. Thus accusing the loss of child was due to negligent act of the opposite parties, a claim of Rs.4 lakhs was made, in addition to compensation for deficiency in service at Rs.1 lakh.
11. The District Forum, though had given a finding, that the complainant was attended forthwith, and the consent form was signed, not only by the complainant, but also by her husband and mother, for sterilization, has not given any specific finding, to our best reading of the order, that despite best treatment, which ought to have been given to the new born baby, it died and therefore there was no negligence on the part of the opposite parties, causing the death of the child. Infact, we would say, no finding has been given, how death was caused to the baby, what is the role played by the opposite parties, whether they have given any treatment or not, etc. Therefore, the learned counsel for the appellant urged before us, that the opposite parties have failed to give the expected treatment, from a prudent doctor, to the child, knowing the complication and condition of the child which alone caused the death, that should be construed as deficiency in service, proceeded by negligent act, which submission we feel, cannot ignored so easily, though opposed.
12. A submission was made on behalf of the appellant, it is the duty of the doctor, to explain the condition of the child, before performing sterilization, as a prudent doctor, the 2nd opposite party failed, that also should be construed, as deficiency in service, which submission also, we feel cannot be ignored so easily.
13. Per contra, the learned counsel for the respondent / opposite parties would contend, that as expected from a prudent doctor, treatments were given not only to the complainant but also to the child, by child specialist, and despite the treatment given, due to Meconium aspiration, the child expired, for which the opposite parties cannot be held responsible, thereby he supported the findings of the District Forum.
14. Admittedly, the complainant reached the 1st opposite party hospital, even as per the case record prepared by the opposite parties, 4.30 p.m 23.8.2004, and it appears one Dr. Bhanumathy, originally attended. Thereafter, only at 5.30 p.m alone, as revealed by the case record, the 2nd opposite party attended or checked the patient viz.
complainant, and on seeing the breech presentation, she decided for LSCS, for which we find an entry in the case sheet also. After LSCS, under spinal anesthesia, admittedly a female baby was delivered, at 6.30 p.m, weighing 3.2 Kg. which appears to be cried, as per the record. As far as the above facts are concerned, we find no dispute.
15. In the written version, as well as in the proof affidavit of the 2nd opposite party itself, it is admitted that the baby was kept in Neonatal care unit for 4 hours, and all of a sudden, and unexpectedly, condition deteriorated, and the baby had respiratory distress, due to meconium aspiration, for which treatment was given, and despite it expired at 3.55 a.m on 24.3.2004. Thus it is an admitted fact, while the baby of the complainant was in the care and custody of the 1st opposite party hospital, it expired, and it is the duty of the opposite parties, whether it is 1st opposite party or 2nd opposite party, or both, to explain what kind of treatment they have given, who had attended on the baby, and what is the nature of treatment adopted to save the baby, and how despite their best effort, it expired. If they failed to prove, then applying the doctrine of res ipsa loquitar, we should conclude that the death might have taken place, due to the improper treatment or the carelessness on the part of the opposite party, causing deficiency of service.
16. As admitted in the written version, the baby was kept in neonatal care unit. In the written version itself, it is admitted there was staining of meconium in the liquor, which is only seen in case of breech presentation, This might have happened, due to delayed attending of the patient, and when this was noticed by the 2nd opposite party, she should have taken precautions to treat the baby, from the consequences.
Therefore, it is said, in the written version itself, as a routine, the child specialist (Neonatalist) was present at the time of delivery. It is not the case of premature baby, or underweight baby, or the baby has not cried.
Even as per the written version, at the time of delivery, there was no serious condition to the baby.
Therefore, when the baby was taken to Neonatal Care Unit, they should have maintained, a case record, that too when they had suspected or seen staining of meconium, anticipating as a prudent gynecologist, the child should have swallowed the meconium, which may cause serious problem, admittedly.
17. As seen from the medical literature, in some cases, the baby passes stools (meconium) while still inside the uterus, this usually happened, when babies are under stress, because they are not getting enough blood and oxygen. Once meconium has passed into the surrounding amniotic fluid, the baby breath meconium into the lungs, this may happened, while the baby is still in the uterus, or still covered by amniotic fluid, after birth. This condition, which is called meconium aspiration, certainly will cause breathing difficulties, in the babys lungs after birth, which should have been anticipated by the prudent gynecologist, and she should have addressed and advised the child specialist also, to take care of the child. Though in the written version, it is said child specialist was present, not named in the operation notes or, in the case record also, no name was given, who attended the child, as specialist or otherwise. For 7 hours or so, the baby was under the care and protection of the child specialist, even as per the case of the opposite party.
Therefore, the child specialist, if had exercised the expected care, certainly would have attempted to drain the meconium, by inserting tube, or according to the medical procedure known to them, for that we have practically nil evidence.
18. In Ex.A2, i.e., Obstetric Discharge summary, there is a column under the heading investigation, pertaining to baby details, wherein also, we do not find any details, such as the treatment given to the baby, except making entry baby died after 9 hours, due to ARDS/? Pulmonary hypoplasia. As we have already indicated, the complication to the baby was expected, and we would say so in a case of moconium aspiration syndrome, the infant may need help with breathing, of heart beat immediately after birth, and therefore, they have a low abgarscore, which was also low, as indicated above. In this kind of baby, the health care team, ought to have attended the baby, recording breathing sounds, and in order to suck the meconium, the delivering obstetrician or midwife or the child specialist, should suck the new borns mouth, as soon as the head emerges, during delivery, and after delivery a tube is also to be placed in the infants trachea and suction is applied as the endotracheal tube is withdrawn, and this procedure has to be repeated until meconium is no longer as seen in the suction contents. In addition, the baby may require antibiotic to treat infection, breathing machine viz. ventilator, oxygen to keep blood vessel normal, as well as maintaining the temperature. These are all the standard procedure, ought to have been followed, either by the doctor, who attended the delivery, or the child specialist, as the case may be, after delivery, and that is why the 2nd opposite party also has pleaded in the written version, that as usual a child specialist had attended, and we are yet to hear him. The so called child specialist also has not filed any affidavit, informing the forum, what kind of treatment given by him/her, after delivery, when the child was in the custody of the 1st opposite party hospital. The non-production of the records, non-filing of the affidavit of the child specialist, would go to show, that the opposite parties have failed to exercise proper care, in protecting the child, having known that there was straining of meconium in the liquor, which alone should have caused meconium aspiration, that is the cause of death, as seen from Ex.B4, which says meconium aspiration syndrome. Except death certificate of Menakas baby, no document has been filed to prove that the opposite parties have adopted the standard procedure in preserving the baby, and in this view, considering the death in their custody, applying doctrine of res ipsa loquitur, even ignoring the absence of evidence, on the part of the complainant, to prove the medical negligence, we are constrained to hold, that the baby expired only due to the deficiency in service, on the part of the opposite parties, which is a great loss to the mother, for which the opposite parties should be ordered, to compensate, which was not at all considered by the District Forum.
19. The complainant had undergone family planning operation, on the same day of delivery, not in dispute. In paragraph 6 of the complaint, a wild allegation was made against the 2nd opposite party, as if after LSCS sutured, then removed and family planning operation was performed, for which we do not have any materials, and no prudent doctor, will follow this procedure, since even before the delivery, the planning was done for family planning. But in this case, though consent was obtained from the complainant, for family planning, we feel there is some deficiency or some carelessness, on the part of the 2nd opposite party, considering the admitted conditions of the baby, as narrated by us supra. In order to observe the conditions of the baby, even as admitted by the opposite parties, the baby was taken to Neonatal care unit, and the condition of the lady all sudden, and unexpectedly deteriorated, due to meconium aspiration, which was noticed earlier. Therefore, as a prudent doctor, they ought to have seen the condition of the baby or before performing family planning operation, the doctor should have informed the mother, the condition of the new born baby, so that the mother may have second thought, whether go for family planning, because of the deteriorating health condition of the new baby, which was not in our considered opinion, properly informed to the complainant, thereby we conclude, the 2nd opposite party had committed deficiency in service, which can be seen from the documents relied on by the opposite parties also.
20. Ex.B1 is the special consent, said to have been given by the complainant, and her husband. In the written version also, it is said sterlisation was performed, preceded with written consent of the complainant, and her mother, and the consent of Mr. Jagannathan, the husband of the complainant.
In Ex.B1, we find the signature of the complainant alone, though this consent said to have been given by the husband, since the first line reads, that his wife had delivered second baby, and therefore, they have decided to go for family planning. But the signature of the husband was not obtained, as seen from the documents. This would go to show that they have taken it as an empty formalities, not as a duty to be performed, informing the parties, the effect and the consequences. Therefore, we cannot take Ex.B1 as the special consent, given by the complainant, as pleaded in the written version, which can be brought under the category of deficiency. Ex.B2, is the form, prescribed by the Family Planning Department, adopted by the private hospital also. In this application, there is a column, where the person who explained the family planning, about the consequences should also sign, which is absent. We are aware of the fact, this column is applicable when the complainant herself is unable to read and write. It is not known, whether the signatures were obtained before surgery or after surgery.
Therefore, somebody should explain, atleast about the condition of the baby, which is not seen in Ex.B2. Another consent is for operation i.e., LSCS, which we are not very much concerned in this case. Thus it is seen, before performing family planning operation, the opposite parties especially the 2nd opposite party or the person, authorized by her, has not informed the mother, about the condition of the baby, to rethink whether she has to undergo family planning operation or postpone the same.
If the baby was quite alright, and had not taken to neonatal care, for the problem then the thing would be viewed differently. In view of the admitted fact, baby had meconium aspiration syndrome, we feel it is the duty of the doctor, to inform the mother, before family planning, which she failed, thereby not only depriving the privilege of conceiving once again, as well causing death of the baby also by the negligent act, which are to be answered by way of compensation atleast, by the opposite parties.
21. After the complainant entrusted herself, in the hands of the opposite parties, everything was known to the 2nd opposite party alone, and generally the relative had no direct access, except the information given by the doctor or the nurse, as the case may be. Therefore, the 2nd opposite party must be the competent person to speak how she handled the situation, and how the child was treated. In the complaint, though it is said, due to the negligent act, she lost the baby, for that the opposite party is liable to pay a sum of RS.4 lakhs, we find no proper repudiation either in the written version, or in the evidence given by RW1 also. At the risk of repetition, though it is said in the written version, the baby was treated with IV fluid, and checked the weight etc., who did all those is a mystery, since the 2nd opposite party had not spoken anything in detail, either in the affidavit or at the time of cross examination. In the proof affidavit filed by the 2nd opposite party, though the written version allegations are repeated, there also not explained, who has given the treatment to the baby. In the cross examination of RW1 also, she has not whispered any word, about the treatment said to have been given to the baby, except ascertaining that there are specialist to attend the children, not naming the person, or producing the records, indicating who attended prudently, and how their best effort ended in vain.
Therefore, for the on-disclosure of the name of the child specialist, as well as for the non-production of the treatment record, said to have been given to the child, and considering the fact that RW1 has also not given any detail, we are constrained to draw an adverse inference, that they have suppressed the documents, or they have not given properly treatment to the baby, that alone caused irreparable loss to the mother, that too when the same was not disclosed to her, before family planning operation.
23. The District Forum, in our considered opinion, unfortunately has not considered all these facts, whereas taking the evidence of RW1 alone, when it is not supported by their own case record, has come to the conclusion, that only after getting expert opinion from the child specialist, sterlisation was performed, which cannot be faulted, forgetting the claim of the complainant, regarding the compensation for the death of the child, that too not giving any finding.
For the above said reasons, we conclude the opposite parties have committed deficiency of service, in not properly attending the delivery, causing meconium aspiration syndrome to the baby by delay, and not treating the same as expected from a hospital like the opposite party, thereby caused mental agony, and other losses to the complainant, for which she is entitled to compensation.
24. A mothers feeling, after the death of the baby, and inability to conceive once again, having only one child, cannot be described in words, and it should be felt/ realized, that cannot be counted in terms of money alone. However, for the deficiency and suffering including medical expenses, by way of compensation, amount should be awarded.
Taking overall picture in this case, and the casual manner, the opposite parties have acted and considering the status of the complainant also, to some extent, we fix the quantum of compensation, for the loss of child and mental agony and other sufferings, sustained by the complainant at RS.2,50,000/-. To this extent, the appeal is meritorious, accepted.
25. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.12/2005 dt.23.1.2008, and the complaint is allowed in part, directing the opposite parties, jointly and severally, to pay a sum of Rs.2,50,000/-, as compensation, for negligence and deficiency of service committed by them, with cost of Rs.5000/-, ordering no cost in this appeal. This amount, shall be paid within 3 months from this date, failing which, it shall carry 9% interest p.a., from the default, till realization.
VASUGI RAMANAN A.K.ANNAMALAI M.THANIKACHALAM MEMBERII JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Medical