State Consumer Disputes Redressal Commission
Dr.Ajitha Kumari vs Sajeena Jaleel on 21 July, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NUMBERS 106/13 & 125/13 COMMON JUDGMENT DATED :21.07.2015 (Appeals filed against the order in CC.No.233/2010 on the file of CDRF, Ernakulam order dated : 26.09.2012) PRESENT SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER
SMT.SANTHAMMA THOMAS : MEMBER
APPEAL NO.106/13
APPELLANT
Dr.Ajithakumari,
Head of Department,
Obstetrics & Gynaecology,
Co-operative Medical College Hospital,
Kalamassery, Kochi - 683 503
(By Adv.Sri.George Cherian Karippaparambil)
Vs
RESPONDENTS
1. Sajeena Jaleel,
W/o.P.P.Jaleel,
Peraparambil House,
Vattakunnam, Edappally (N) P.O
Kochi - 683 503
2. Co-operative Medical College Hospital,
Rep.by its Director,
Kalamassery, Kochi - 683 503
3.Dr.Mathangi,
Resident Director,
Co-operative Medical College Hospital,
Kalamassery, Kochi - 683 503
4. Chief Executive and the Principal,
Co-operative Medical College Hospital,
Kalamassery, Kochi - 683 503
(By Adv.Sri.Santhosh.G.Prabhu )
APPEAL NO.125/13
APPELLANT
Dr.Mathangi,
Resident Director,
Co-operative Medical College Hospital,
Kalamassery, Kochi - 683 503
(By Adv.Sri.S.Reghukumar)
Vs
RESPONDENTS
1.Sajeena Jaleel,
W/o.P.P.Jaleel,
Peraparambil House,
Vattakunnam, Edappally (N) P.O
Kochi - 683 503
2. Co-operative Medical College Hospital,
Rep.by its Director,
Kalamassery, Kochi - 683 503
3.Dr.Ajithakumari,
Head of Department,
Obstetrics & Gynaecology,
Co-operative Medical College Hospital,
Kalamassery, Kochi - 683 503
4. Chief Executive and the Principal,
Co-operative Medical College Hospital,
Kalamassery, Kochi - 683 503
(By Adv.Sri.Santhosh.G.Prabhu )
COMMON JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
Appellants are respectively opposite parties 2 & 3 in CC.No.233/2010 in the CDRF, Ernakulam. The common first respondent in these appeals was the sole complainant. The complainant during her second pregnancy noticed severe bleeding on 03.10.2009. She was rushed to the first opposite party hospital. The third opposite party appellant in Appeal No.125/13, who was the resident doctor examined the patient and she told the complainant and her husband that abortion was inevitable. To the query raised by the husband of the complainant he was told that abortion was the only method to stop the profuse bleeding. The husband of the complainant was compelled to give his consent to avoid complications. The complainant was shifted to the labour room and the third opposite party attended the patient. The husband of the complainant was told that abortion was carried out by D & C method. The complainant was discharged at request on 05.10.2009. Later at home, symptoms of conception persisted and the complainant was examined by a local gynaecologist. He suggested scanning and confirmed that a healthy foetus was growing within her uterus. Subsequent tests only corroborated the findings of the local gynaecologist. The allegation in the complaint is that the complainant was very much worried whether a healthy baby would be delivered .According to the complainant carelessness and negligence on the part of the opposite parties in conducting in the so called D & C procedure claimed to have been performed by the third opposite party was the cause of the worry. The opposite parties failed to perform necessary tests before and after the procedure performed by them and that resulted in the state of affairs . So complaint is filed claiming compensation of Rs.20,0000/-.
2. Opposite parties filed seperate version. The first opposite party claimed that treatment of high standard was given to the complainant. The third opposite party who was on duty at the relevant time examined the patient and found that it was a case of inevitable abortion. In order to arrest the profuse bleeding forthwith abortion was the only option open to the doctor for which informed consent was obtained from the husband of the patient. Evacuation of the uterus was conducted under sedation and at the end of the procedure the uterus was found empty. The procedure passed uneventfully and the patient was closely monitored and shifted to the ward on 04.10.2009. She was under medication till she left the hospital on her own. It is incorrect to say that the complainant was subjected to D & C and her husband was informed accordingly. Opposite parties 2 & 3 are well experienced doctors. Uterine evacuation was conducted to save the life of the complainant and was done with due care and caution.
3. According to the second opposite party, the gynaecologist inevitable incomplete abortion was diagnosed because product of conception was protruding through the external orifice and part of the product was found expelled. Evacuation under sedation is the standard procedure that is followed to arrest bleeding in such cases. In twin pregnancies if one foetus dies the other may develop into full grown baby in due course. In this case, this was what actually happened. Subsequent examination and detailed investigation were not done because the complainant left the hospital on her own volition. In her case, no D& C was done and the procedure adopted was evacuation. The mental agony and anxiety about the child was unfounded. Each foetus remains in the amniotic fluid contained in the distinct amniotic sac. Tests like ultra sound scan was not necessary in this case because inevitable abortion was clinically obvious. There is no basis for claiming such a huge amount as compensation.
4. The third opposite party contended that the procedure adopted was only intended to relieve the patient of the complaint of bleeding. There was no compulsion in obtaining the consent. The third opposite party is not aware of the subsequent consultations and procedures undergone by the complainant. The remaining contentions of opposite parties 2 & 3 are identical to the contentions raised by the first opposite party. The fourth opposite party adopted the contentions of the first opposite party.
5. Before the consumer forum the complainant gave evidence as PW1. Exts.A1 to A16 were marked on her side. On the side of the opposite parties three witnesses including the third opposite party were examined as DWs 1 to 3. Ext.B1 is the case record kept in the first opposite party hospital . The District Consumer Forum as per the impugned order without entering into any categorical finding directed the opposite parties to pay Rs.15,000/- with interest at the rate of 9% per annum from 16.04.2010 till realization and Rs.35,000/- towards compensation for mental agony and physical pain along with cost of Rs.5000/-. The opposite parties challenge the conclusions of the consumer forum as unsustainable.
6. Admittedly, during the second pregnancy of the complainant severe bleeding was noticed on 03.10.2009 and she was rushed to the first opposite party hospital. She was attended by the third opposite party and treating her case as one of inevitable abortion evacuation was performed according to the opposite parties. But the allegation is that D& C procedure was performed. However, it was later revealed that a healthy foetus was growing inside the uterus of the complainant and she ultimately delivered a healthy baby. The sequence of events can be better understood with reference to the following documents brought in evidence.
7. Ext.A16 is the obstetric sonography report from the first opposite party hospital dated 14.09.2009. The LMP of the complainant is noted as 17.07.2009 and the impression gathered was the presence of a single live intra uterine gestation of six weeks and six days.
8. Exbt.A3 is the discharge / reference card issued to the complainant from the first opposite party hospital. It is seen that the complainant was first admitted there on 25.09.2009 with complaints of vomiting. She was discharged on 28.09.2009 with the diagnosis G2PL, 10 wks with hyperemesis gravidarum. After prescribing oral diet plenty of fluids and intake of folic acid she was discharged. The complainant was admitted again in the first opposite party hospital on 03.10.2009. Exhibit A6 is the discharge cum reference card issued to the complainant in relation to this admission. The diagnosis made is inevitable abortion. The complainant was complaining of bleeding per vagina since one day. There was no associated adominal pain. The procedure performed is written as "evacuation done under sedation" on 03.10.2009. It is further written that per vagina - uterus 6 to 8 wks size mobile, FF, bleeding +. Sedation evacuation done uterine cavity wretted and found empty". Review after one month was suggested. Ext.B1 case records also affirm the procedure mentioned in Ext.A6. The definite case of the opposite parties is that the discharge on 5 -10-2009 was at the request of the complainant. This is admitted in the complaint itself. Further according to the opposite parties the complainant never approached them again. The subsequent records reveal that this is true and the complainant has no case that she again approached the first opposite party.
9. The second part of the episode begins with Ext.A7 ultra sound scan report taken on 24.10.2009. The patient is seen referred for scanning by another doctor. The impression of the radiologist noted in Exhibit A7 is intra uterine pregnancy with viable foetus corresponding to 13 wks 3 days of gestation. Ext.A8 is ultra sound colour doppler study report dated 25.11.2009 of the gravid uterus of the complainant. The impression from the study was the presence of a single live foetus in the uterine cavity corresponding to gestational age of 18-19 weeks in cephalic presentation with normal biophysical profile, normal foetal echo cardiogram no congenital abnormality and no evidence of chromosomal anomaly. Further the impression was normal flow pattern in all the blood vessels with clinical correlation and follow up USS was suggested.
10. Ext.A10 is the antenatal ultra sound scan of the complainant dated 24.04.2010. Single intra uterine foetus of around 31 wks three days was visualised. Mild pelvicalyceal system dilatation was noted in the left foetal kidney. Further impression gathered was presentation cephalic and liquor volume adequate. EDD by scan as follow up on 02.05.2010 was suggested. Ext.A15 is the discharge summary issued from the J.N.M.Lekshmi Hospital, Udyogamandal. It is seen that the complainant was admitted in the said hospital on 25.03.2010. She had normal delivery with episiotomy on 28,.03.2010. She delivered a female baby weighing 2250 gms and she was discharged on 30.03.2010.
11. The allegations against the opposite parties are firstly that consent to perform evacuation (D& C according to the complainant) was obtained by compulsion. Secondly, that the performance of the procedure was careless and negligent and as a result the complainant was left much worried about the health of the growing child. The consumer forum itself rightly rejected the case of the complainant that consent letter found in Ext.B1 was obtained under compulsion. Ext.A10 mentions about mild pelvicalyceal system dilatation noticed in the left kidney of the foetus ( the female baby later delivered by the complainant). As rightly held by the consumer forum evidence is lacking to connect this condition with the evacuation procedure performed by the opposite parties. In the ordinary course, there can also have no connection.
12. So the sequence of events are clear. Based on the impression gathered as per Ext.A16 that there was one foetus, evacuation procedure was performed on 25.09.2009. But after that Exts.A7, A8 & A10 revealed that a healthy foetus was growing inside the uterus of the complainant. Admittedly, a healthy female baby was delivered by the complainant. It is true that in Ext.A6 it is written that the uterus was empty after evacuation which it later turned out to be erroneous. It is in this context, the opposite parties suggest the possibility of twin pregnancy. The consumer forum refers to an argument of "vanishing twins" .No such argument was repeated before us and what exactly was the argument is not clear from the order of the forum. At the most it can be said that the clinical notes in Ext.A6 suggest that abortion was almost complete when admitted in the first opposite party hospital. Hence serious evacuation procedure might not have become necessary. It is a clear case of two ovums getting fertilized two embryos developing into foetus and one getting aborted D & C would have certainly destroyed the healthy foetus. Evacuation procedure is likely to destroy the healthy foetus. But the fact that this foetus survived shows that evacuation procedure was done carefully and the facts established in evidence are totally insufficient to establish any negligence or carelessness on the part of the opposite parties in attending the complainant.
13. Regarding the alleged anxiety about the health of the growing foetus it was largely unnecessary after Exts.A7 & A8 study of the growing foetus and the subsequent investigations done. At any rate, such anxiety is part of every pregnancy with every mother. The consumer forum is seen to have embarked on certain irrelevant observations like the surroundings of the hospital, facility including transport facility available and the order is seen passed under the influence of such irrelevant thoughts. But it cannot be denied that the opposite parties adopted the accepted procedure on the admission of the patient with bleeding and incomplete abortion. At no point of time lack of expertise was shown by the opposite parties. As pointed out by the learned counsel for the appellants relying on the decision of the National Consumer Disputes Redressal Commission, New Delhi in Ramji Lal Vs.M/s.Sarvodaya Medical, II (1995) CPJ 234 ,in order to sustain the complaint the complainant has also to establish that as a consequence of the alleged negligence, there was loss or injury suffered by the complainant. In short, there is neither evidence of negligence on the part of the opposite parties or that there was loss or injury as a consequence of the acts of the opposite parties. All is well that ends well and that is what has happened in this case.
In short, since the complaint is devoid of merit, the appeals are liable to be allowed.
In the result, the appeals are allowed. The order of consumer forum, Ernakulam in CC.No.233/2010 dated 26.09.2012 is set aside. The complaint is dismissed. The parties are directed to bear their respective costs in these appeals.
K.CHANDRADAS NADAR : JUDICIAL MEMBER A.RADHA : MEMBER SANTHAMMA THOMAS : MEMBER Be/ KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NOS 106/13 & 125/13 COMMON JUDGMENT DATED :21.07.2015 BE/