State Consumer Disputes Redressal Commission
Dr.S.Mangayaarkarasi vs 1. M. Vijayakumar, And Others on 7 January, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.16/2001 (Against order in C.C.No.159/99 on the file of the DCDRF, Erode) DATED THIS THE 7th DAY OF JANUARY 2010 Dr.S.Mangayaarkarasi, | Saravana Medical Centre, | Palayakottai Road, | Appellant/Opposite Party Kangeyam. | Vs. 1.
M. Vijayakumar, |
2. Minor Rosalyn Beulah, |
3. Maryling Hannah, | Respondents/Complainants 61-G, Tinkle Dale, | Golf Links Road, | Pinker Post, | Ooty. | The respondents as complainants filed a complaint before the District Forum against the appellant/opposite party praying for the direction to the opposite party to pay a sum of Rs.4,99,999/- towards compensation with interest 12% per annum and to pay the cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.27.09.2000 in CC No.159/99.
This appeal petition coming before us for hearing finally on 24.12.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:
Counsel for the Appellant/Opposite party :
M/s.Sudha Ramalingam, Dr.V.Suresh D.Nagasaila, R.Venkatesh. Advocates Counsel for the Respdts/Complainants : M/s.N.Moharan & T.R.Sundaram, Advocates.
M. THANIKACHALAM J, PRESIDENT
1. The opposite party in O.P.159/99 on the file of the District Consumer Disputes Redressal Forum, Erode, is the appellant.
2. The respondents, as complainants have filed a case before the District Forum, claiming a sum of Rs.4,99,999/- as compensation against the opposite party attributing medical negligence on the following grounds (in brief).
3. The first complainant is the husband of Mrs.Jayanthi whose children are second and third opposite parties. The first complainant admitted his wife Jayanthi in the opposite partys hospital on 2.2.99 for third delivery, where she was taken to the labour room round 12.45 p.m., the first complainant was informed that his wife delivered a alive female baby (3rd complainant) at 2.57 pm.
4. At about 4.30 p.m., opposite party informed the complainant that his wife was bleeding profusely, which could not be arrested and therefore, he has to shift her to Sudha Maternity Hospital at Erode for that he was directed to bring a Taxi. The request of the first complainant, sensing the seriousness even to offer blood for transfusion, not accepted. In addition to, the request of the first complainant, that the patient be referred to other gynecologists for better facilities at Kangayam, was not accepted, insisting that the patient be removed from the hospital at once to Sudha Maternity Nursing Home, Erode.
5. The first complainant having no option, took the patient in a Car, to Erode with I.V. Fluids, leaving just born baby, at the respondents hospital itself. Within five minutes of departure, blood shot up into the I.V. Fluids bottle, compelling the first complainant to bring the patient back, to the respondent where I.V. Fluid was removed, though the patient was bleeding profusely. Thereafter, the patient was rushed and reached the hospital at 5.50 p.m. at Erode where she was declared dead.
6. The first complainant came to know, from the Discharge Summary that his wife had atonic Post Partum Hemorrhage, which is a serious condition.
The respondent, who is conducting 100 deliveries in a month, ought to have prepared to meet any emergency situation, which she failed to follow, should be construed as negligence. She sent the patient in the critical condition, that too, in a Taxi, without any medical aid or assistance which shows the utter callousness, negligence of duty ignoring the value of the life. Because of the negligent, improper and unethical treatment of the opposite party, the first complainant, lost his wife and other complainant lost the mother, thereby, causing mental agony, hardship which cannot be compensated in terms of money. Considering the hardship and mental agony undergone, a notice was issued, claiming the compensation of Rs.10 lakhs, for which, there was no detailed reply immediately. Thus the opposite party had committed medical negligence, deficiency in service and therefore, she should compensate the complainants, by paying the compensation, which is restricted as above.
7. The case of the opposite party in brief as follows:-
The service rendered to a patient, by diagnosis and treatment would not come within the meaning of service as contemplated under the Consumer Protection Act and therefore, the complaint before the Forum is not maintainable.
8. The first complainants wife Mrs.Jayanthi was taken to labour room where she delivered a alive female baby, by labour natural with episiotomy.
Placenta was removed with entire membranes, injection Methergin was given and there was no undue bleeding per vagina till 3.30 pm. Thereafter, there was a steady trickling of blood, per vagina and uterus was found to be flabby. By examining M/s.Jayanthi, further medicines were given, Haemocel started and still Mrs.Jayanthi continued to have steady trickling of blood from uterus. The condition of Mrs.Jayanthi was informed to the attenders, further informing the necessity of shifting Jayanthi, to Erode since she required blood transfusion and if bleeding continuous, either internal iliac artery ligation or hysterectomy, in view of the fact, non availability of blood and anesthetist to perform other surgical measures at Kangayam.
9. The opposite party did not have any medical assistance medical officers and therefore, she could not deploy any doctor with Mrs.Jayanthi. She is also unable to accompany the patient, because she had three more mothers in labour pains on the same day, one of them delivered normally at 6.50 pm and two more patients underwent elective Caesarian operations to deliver on the same evening.
10. At Kangayam, there were only two Ambulance, one is a private one and another is in the Government Hospital, which were not available on that day. Therefore, the first complainant was requested to bring a Taxi, in which, the patient was sent immediately, considering the urgency, in which, there cannot be any deficiency or negligence.
This opposite party never strayed away from any of the internationally accepted and tested management method in controlling post partum Hemorrhage, which is the inherent risk available in the case of delivery. There was no Blood Bank at Kangayam and therefore, the opposite party could not arrange for blood transfusion, which cannot be treated as negligence. The opposite party did not avail the help of local doctors since the patient essentially required either blood transfusion or hysterectomy and therefore, in spite of wasting the time, in getting the second opinion, this opposite party referred Mrs.Jayanthi to Erode, making preparation at Erode also through telephone, informing the doctors concerned. The opposite party never performed improper and negligent delivery, and the same cannot be cause for the death of Jayanthi also. There is no breach of duty and care, which a doctor is expected to bestow upon the patient. She exercised all reasonable care and skill while treating Mrs.Jayanthi and at any stage, she had not violated any protocol. Hence, she is not bound to pay any compensation that too, exorbitant claim made in the complaint with ulterior motive, thereby, praying for the dismissal of the complaint.
11. The District Forum as mandated under law, receiving affidavits, marking 13 documents on the side of the complainants, exhibiting 3 documents on the side of the opposite party, evaluated the same, applied the law available on the point of medical negligence, which brought to surface that the opposite party had not acted as a prudent doctor, that she failed in her duty in the sense not making arrangement to transfuse blood when required, that when the patient was in the critical condition, instead of sending the patient in a safe mode of transport namely Ambulance, sent in a Taxi, that too, without any medical assistance, that though the opposite party had the chance to go for surgery, consulting other doctors at Kangayam, inviting anesthetist, failed to do the same and these acts would constitute negligence, carelessness etc., Thus concluding, considering the status of the complainants, as well as the qualification of the deceased, fixed the quantum of compensation at Rs.2 lakhs, which were directed to be paid by the opposite party. On the point of jurisdiction, the District Forum held, placing reliance upon certain decisions, that it had jurisdiction to decide the case.
Thus, an adverse orders against the opposite party, came to be passed on 27.09.2000, which is challenged, in this appeal by the opposite party, on various grounds.
12. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
13. On 2.2.99, the first complainant admitted his wife Jayanthi in the Maternity Hospital run by the opposite party/appellant for third delivery with labour pain and immediately she was rushed to labour room, where she gave a birth to a alive female baby, by labour natural, with episiotomy. The birth of female child was informed to the first complainant and the relatives, but the mother was not brought to the normal ward, whereas, it appears, she was in the labour room itself, in view of the fact, there was bleeding per vagina even as admitted by the opposite party in the written version. Though there was no undue bleeding per vagina till 3.30 p.m., at last, thereafter there was a steady trickling of blood, per vagina and uterus was found to be flabby. The opposite party, unable to control the bleeding, taking necessary management, either due to want of infrastructure or otherwise requested the first complainant to take his wife, to Erode since she required blood transfusion and if bleeding continued further treatment including the best control available namely performing hysterectomy. Though, there were two Ambulance available at Kangayam, where the above said incident had taken place, shifting of the patient was not arranged, smoothly in the Ambulance, whereas the first complainant was compelled to take his wife, in a Taxi, that too, without any medical assistance to Erode, covering a distance of more than 40 kms. As insisted by the opposite party, though it is said for the interest of the patient, the first complainant took his wife to Erode Sudha Maternity Hospital, on arrival, the doctors therein, on examination, found that Mrs.Jayanthi already expired. Thus, the first complainant, lost his young wife and the second and third opposite parties at their tender age, had lost the affection of the mother.
14. The first complainant accusing the opposite party as if she is the cause for the death of his wife, since committed negligence as well as deficiency in service, approaching some consumer organization, issued a notice, seeking explanation, for which, a reply was given, without substance, denying generally the allegations, seeking 30 days, to issue detailed reply, as seen from Ex.A4. The patient was admitted in the hospital on 2.2.99, at about 12.45 p.m. and removed from the said hospital at about 4.45 p.m. that means she was at hospital for 4 hours. In the above said time, delivery had taken place with episiotomy and the opposite party felt, the patient requires more effective treatment, which was not available in her Nursing Home. In the ordinary course, it is expected from a doctor, to prepare the Case Sheet which should include Inpatient Record, Labour Ward Record, Nursing Care etc., In this view, when the first complainant requested the documents or issued notice, alleging negligence, nothing would have prevented the opposite party to issue a suitable reply, immediately or within the reasonable time, giving particulars, but unfortunately, she failed to do so, whereas, the opposite party sought 30 days to issue a detailed reply, which created some doubt, to infer, that after consultation or otherwise, she should have prepared the Case Sheet, now produced in this case, which cannot be taken as the Notes prepared then and there while giving treatment as a dutiful doctor. Thus, documents relied on by the opposite party also appears to be clouded with suspicion. As far as admission of the first complainants wife in the hospital of the opposite party, delivery of baby, sending the patient to the Erode Hospital and her death are not in dispute.
15. The complainants attributing negligence on the part of the respondent, have filed the case and therefore it is their prime duty at the initial stage to prove the medical negligence either by adducing expert evidence or otherwise. In cases, where, we find the medical records are maintained properly, giving details regarding treatment given, the management adopted under the circumstances warranted, which are in accordance with the standard treatment prescribed under the Text, the expert opinion is necessary to fix the negligence. On the other hand, the conduct of the opposite party, or the documents relied on by them or the admitted facts prove prima facie negligence act, then for the non examination of the expert, to prove the negligence alleged in the complaint, may not be fatal and this case comes under this category in our view. Therefore, for the non examination of the expert evidence, for the reasons which we are going to record, we cannot say that the complaint should be thrown out.
16. As seen from Ex.A1-Discharge Summary, dated 17.2.99, after delivery, the patient had atonic Post Partum Hemorrhage leading to other complications, which terminated her life, on the same day, that too, on the way to Erode from Kangayam, in a Taxi. In order to appreciate the facts in issue, and to find out whether the opposite party had performed her duty as a diligent doctor, we have to understand, what is Post Partum Hemorrhage and other related complications, how they occur, in case of Post Partum Hemorrhage, what are the treatment to be given, how there should be effective management etc. In addition to, fix the culpability, we have to see what the Supreme Court has said in the case of medical negligence, under what circumstances, a doctor could be roped in as if he had committed medical negligence etc.,
17. My learned predecessor, probably after hearing the case to some extent, in order to understand more about the PPH, summoned Dr.Saraswathi, Director in-charge, Institute of Obstetrics and Gynecology, Government Women and Children Hospital Egmore, and she was examined before this Commission on 5.4.2007. Being an expert, not in dispute, she has given evidence regarding PPH, APH, how it happens, when happens, what are the drugs to be administered, surgical method to be followed, etc., not only by her experience, but also with reference to text books. For better appreciation, we feel the evidence given by her has to extracted as such:
Post-partum hemorrhage is a hemorrhage that occurs during the 3rd stage of labour and after delivery. When the hemorrhage occurs during the 3rd stage of labour, it is called 3rd stage hemorrhage. 3rd stage means stage of placental separation and expulsion. There is one entity called secondary PPH which occurs after 24 hours of delivery.
During normal delivery the expected amount of blood loss will be somewhere around 115 to 230 ML. If it goes beyond 500 ML, it is called PPH.
But according to our standard of women, even 300 ML loss is considered to be PPH in order to take prompt action.
The complications depend upon mainly on the pre-natal health condition of the individual. And even though it is said to be associated with certain pre-disposing factors, sometimes it occurs unexpectedly. So it is a real problem to the Obstetrician. 60% could be anticipated. The pre-disposing factors are anemia in the ante-natal period, over distressed uterus like twins, hydramnios, tumours like Fibroid complicating pregnancy etc. and APH, any anesthetic effect, certain anesthetic drugs, prolonged labour, mismanagement of third stage of labour, certain drugs. These are all causes of atonic PPH where the uterus is not contracting well after the delivery of the baby. There is another category called traumatic PPH, which may be due to any truma in the general tract. Another cause is due to some coagulopathy. These are 3 categories.
3rd stage of labour consists of (1) plancental separation (2) placental expulsion. Only after the signs of placental separation are established, we have to help her for placental expulsion. Some times, the attending person whether he may be a doctor or anybody, over enthusiastically they may try to deliver the placenta even before it separates, which may cause problem.
Unnecessary bleeding of the uterus before the placenta is separated will lead on to hemorrhage.
Active management of 3rd stage of labour will definitely bring down the amount of blood loss following delivery which are being followed now-a-days.
How does it happen?
If the pregnant women goes for labour to the same person with whom she was having her ante-natal check-up, the identification of the high risk factors would have been done by them and after categorizing the patient as a high risk and low risk, she or he would have decided the place of delivery. If she thinks it is beyond her capacity, it is also possible that sometimes the hospital also may not be capable, the patient would have been referred in time which will prevent the PPH.
Methods of arresting it:
Mechanical method we use to compress the uterus by massaging. Mechanical means manual also. In mechanical methods, tampons would be inserted.
(2) Drugs:
Oxytocics like Methyl Ergometrin, Oxytocin, Prostoglandin F2 Alpha, PGE1 tablet.
(3) Surgical method: If it is not controlled with all these drugs, we go in for surgical method in a step-wise manner.
First we put brace sutures-B Lunch suture, Uterine artery ligation, with Ovarian artery ligation, we then go in for internal iliac ligation, and at last if she is not going to respond to all these, if she is a multi i.e., mother of many children, we also sometimes go in for hysterectomy i.e., removal of uterus in order to save the mother (Highlighted) First thing is that we have to give blood in time, some times we may have to give blood products also. We have to take all measures to maintain her general condition.
If blood is not readily available?
In case blood is not able to be obtained, what should be done?
If the blood is not available, if they have the facility of giving Haemocele, it can be given only for time gaining and the patient has to be referred to higher institution where blood is available.
What text books say is that you should anticipate PPH in 100% of cases. In my view, practically it is not possible to anticipate all case of PPH.
Now a days, it is being instructed to give Oxytocics at the time of delivery of the anterior shoulder of the baby to prevent the blood loss to a minimum. Especially in cases where you anticipate PPH (over distended uterus, anemia without failure) we definitely follow this i.e., giving of Oxytocics at the time of delivery of the anterior shoulder of the baby.
Does every maternity centre have to be equipped with blood facility and man power?
It is always better to have it.
Keeping this in mind, recently our Govt. has come with the concept of setting CEmONC Centres i.e., Comprehensive Emergency Obstetric and Neonatal Care throughout our State which will have 24 hour facility for delivery. Caesarian and neonatal care.
It is not in normal practice to do BT, CT for all (bleeding time and clotting time). But now a days it is being done by most of the doctors. It is always advisable to conduct BT, CT values may not be always the same. Sometimes, it can change at a later stage in certain conditions like excessive bleeding.
18. Clinical Obstetrics by Mudaliar and Menons, gives us bird view regarding Antepartum hemorrhage, Postpartum hemorrhage, Causes of Maternal Mortality, Complications of the 3rd stage of labour, where Postpartum Hemorrhage generally occur, and under what circumstances Hysterectomy is the definite treatment of persistent uterine atony. According to this book Antepartum Hemorrhage is defined as from the genital tract after then 28th week of pregnancy and before delivery.
Causes: A pregnant woman may bleed due to causes associated with pregnancy or occasionally due to coincidental factors unrelated to pregnancy.
. Premature separation of placenta or abruption placentae . Placenta previa or bleeding from an abnormally situated placenta . Circumvallate placenta . Rupture of the marginal sinus of the placenta . Vasa previa which we are not very much concerned, in this case, and it is quoted for better understanding. The PPH, coupled with Coagulopathy may be fatal, which is an established one and as submitted, it is a night mare even today, for the doctors.
19. In the same book at page 277, under the chapter complications of the 3rd labour, we find the following:
The complications encountered in the third stage of labour are:
1.
Postpartum hemorrhage
2. Retained placenta
3. Uterine inversion POSTPARTUM HEMORRHAGE Definition Hemorrhage occurring after the delivery of the baby is termed postpartum hemorrhage (PPH).
Hemorrhage occurring within 24 hours of delivery is termed Primary Postpartum hemorrhage and that occurring any time after 24 hours of delivery is called secondary postpartum hemorrhage.
PRIMARY POSTPARTUM HEMORHAGE Primary postpartum hemorrhage is defined as loss of 500 ml o more of blood occurring within 24 hours of delivery of the baby. Its incidence is about 5% of deliveries. This definition, while satisfactory from the point of view of obtaining comparative statistics, is not wholly acceptable from the clinical point of view.
The main causes of primary postpartum hemorrhage are . Uterine atony . Genital tract trauma . Retained placental fragments . Coagulatin disorders There are two varieties of primary postpartum hemorrhage
1. Atonic:
Atonic hemorrhage is from the placental site and is due to the failure of the uterus to adequately conract and retract.
20. Effective management, Curative Treatment are contemplated, as under
object of treatment is to replace the blood lost and to stop the bleeding Repacement of lost blood: At least two large bore intravenous cannulas preferably 14 gayge, should be inserted.
Blood should be drawn from crossmatching, estimation of hemoglobin, packed cell volume, coagulation tests, baseline urea and electrolytes. Fluid replacement should be commenced immediately. Blood transfusion should be started as soon as possible.
If the hemorrhage is still found to persist (in a small minority), traumatic factors must be considered. If tears of the cervix of vagina are found, they must be sutured. In their absence, with persistent bleeding, the management of these presents a problem.
Intrauterine packing has been advocated by some. Coagulation failure may be a factor in some cases.
When bleeding continues in spite of all these, the obstetrician has to consider hysterectomy. Hysterectomy is the definitive treatment of persistent uterine atony.
21. The Apex Court of the land, in the celebrated case Jacob Mathew Vs. State of Punjab & Another, reported in (2005) 6 SCC 1, has held that it should be shown that the doctor against whom a medical negligence is attributed, did something or failed to do something, which in the given facts and circumstances, no medical professional in his ordinary sense, and prudence would have done or failed to do, and that the death should be the direct result of negligent act of the doctor, and the act alleged must be the proximate and efficient cause without the intervention of any other negligence, and in this kind of cases alone a doctor could be held responsible, warranting tortious liability, which is also reiterated in Nizam Institute of Mdical Sciences Vs. Prsanth S.Dhananka & Others, reported in 2009-4-LW Part 1, and followed in Martin F.D.Souza Vs. Mohd. Ishfaq reported in AIR 2009 Supreme Court 2049, wherein it is said A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct feel below that of the standards of a reasonably competent practitioner in his field. . It is further observed that an error of judgement may or may not be negligent.
It depends on the nature of the error , further concluding The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
22. It is also the dictum of the Apex Court that Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
23. In Postgraduate Institute of Medical Educational and Research, Chandigarh Vs. Jaspal Singh and Others, the Apex Court reiterated the settled position regarding, the professional negligence which reads It is now well settled that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case the skill which he did possess. It is equally well settled that the standard to be applied for judging whether the person charged has been negligent or not; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. Then coming to the burden of proof, it is the dictum of the Apex Court that In the medical negligence actions, the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioners breach of duty. On the basis of the above settled proposition of law, the evidence in the present case has to be evaluated, when it is specifically alleged by the complainant, that the opposite party has committed lack of care and cautions and the neglect on the part of attending doctor.
24. Having the above principles in mind, we have to scan this case, meticulously to find out whether the opposite party had committed any negligence or she was careless in treating and attending the patient, when she was under her care and treatment.
25. The learned counsel for the appellant, arguing elaborately about the Post Partum Hemorrhage and inviting our attention to the place, where the incident had taken place, urged that the lower forum failed to appreciate the travails and difficulties encountered by rural medical practitioner, who seek to provide more easily accessible health care facility and that because of the non availability of facilities such as Blood Bank, Ambulance, there was constrain to shift the patient from Kangayam to Erode in a Taxi, which cannot be termed as negligent or deficiency in service.
It is the further submission of the learned counsel that the opposite party had provided standard care and gave proper treatment also till the patient was with her and the said treatments are only in accordance with standard Text, which also cannot be termed as improper treatment, warranting to conclude as negligent act. Elaborating the above points, drawing our attention to various medical Text, a submission was made to relieve the opposite party, from the burden caused by the direction issued by the District Forum, thereby, removing the scar of negligence also.
26. Per contra, it is the submission of the learned counsel for the complainants/respondents, that the Discharge Summary itself would prove the negligence act of the opposite party, in addition to, other attending circumstances, such as not making arrangement to secure blood, not taking the advise from other doctors available at Kangayam itself in case of emergency which happened in this case, that not providing Ambulance or making arrangement to take the patient in Ambulance, that too, with the assistance of medical attender, and that not making any sincere attempt by the opposite party to control the bleeding, which she should have anticipated as a Gynecologist, whereas, her attempt was only to shift the patient, without any facilities to Erode and these acts by itself would prove not only the negligence, but also the deficiency in service.
27. By going through the pleadings, scanning the documents, studying the medical literature and applying the principles of law and giving our anxious thought, we are unable to say No to the submissions made by the complainant, accepting the submission of Dr.Suresh, who is defending the appellant, as if the opposite party did everything according to the standard specification, not committed any lapses and the reasons are hereunder.
28. As seen from the Written Version, even immediately after delivery, bleeding started, say atleast from 3.30 pm. As per the management available for this kind of problem, in anticipation, a diligent doctor should have taken steps to preserve blood, if not available, should have taken steps or attempted to take steps to secure blood, either from the relatives of the patient or from nearby Blood Bank, which may be available even at Thirupur or Erode as the case may be, though it is not available at Kangayam. It is not the case of the opposite party, that she made a sincere attempt to transfuse the blood by securing some where or other. It is the specific case of the complainants, that they offered to donate blood, which was not even attempted, as seen from the affidavit of the first complainant, which is not effectively negatived. Thus, even at the initial stage, we should say, that the opposite party failed in her duty to make preparation, to secure blood by making some arrangements, and it should be construed as negligence. In case, where the blood is not available, the substitute for blood namely Haemocel is to be given, as an interim measure, till the blood is secured. In this case, an attempt was made by the opposite party, to say that Haemocel started and simultaneously foot end elevated after compression of uterus. To this effect, we find some reference also, in the Discharge Summary (Ex.A1). But we find no reference regarding any effort taken to procure blood, for transfusion since in the case of Post Partum Hemorrhage, transfusion of the blood is a must.
29. The doctor who has undertaken to serve the patient, that too, by performing caesarian and other related operation, should take steps to secure blood, should have ascertained the blood group of the patient and should have alerted the relatives of the patient, regarding the need of the blood in case of urgency, which are not at all attended by the opposite party, since we are unable to find any indication, about the group of the blood in the Case Sheet-Ex.B1. Therefore, we dare to say, that the opposite party has committed gross negligence, while attending the delivery in a casual manner, forgetting the precious life of the woman, though she claims that she used to attend 100 deliveries per month, which should not be recognized, as the proper way of treating the patient, namely, pregnant women.
30. Admittedly, the best and final way of controlling the Post Partum Hemorrhage in the case of continuous bleeding is hysterectomy.
The opposite party anticipating, since she had noticed of bleeding per vagina, should have summoned the Surgeons, anesthetist, which she has not done in this case. She candidly admit, that she has not employed any assistance in the profession which itself would indicate, that she treated patients so casually and this conduct should be termed as negligent.
31. It is the case of the opposite party that no anesthetist was available and therefore she was unable to arrange for surgery, which is shown as patent falsehood, even by pleadings available in the Written Version. According to the opposite party, on the same day, there were 4 deliveries, out of which, two patients underwent elective Caesarian operations, to deliver on the same evening, for which, anesthetist is must.
Therefore, the contention that the non availability of anesthetist, to perform other surgical measures at Kangayam must be false, to the knowledge of the complainant. Similarly, while performing Caesarian, though it may not be essential to preserve blood, blood may require in certain cases and for that, the opposite party should have taken steps, since on the same day that is 2.2.99 according to the opposite party, there were four deliveries. The very fact, as admitted by the opposite party that she has not taken any steps to secure blood or taken any effective steps to secure blood elsewhere making arrangements nearby, would suggest that she was continuing the medical negligence, during the relevant period and because of this reason alone, she was unable to transfuse the blood, to the first complainants wife thought it is an absolute necessity, as known to the opposite party herself. If this cannot be termed as negligence, there cannot be any other act, to come under the meaning of negligence, in a case of delivery, since Post Partum Hemorrhage is an inherent risk, to be anticipated.
32. In the Written Version, though the opposite party had stated, what are the standard procedure should be followed based upon the medical text, as seen from Ex.A1 and Ex.B1, that was not all practiced by her, since she has not specifically stated, in the Written Version, what are the positive steps taken by her to prevent the bleeding. As seen from the Written Version, as well as Affidavit, her aim was to shift the patient from her Nursing Home to Erode. The opposite party having taken steps, if failed in her attempt to secure the necessary facility, including medical advise, Ambulance etc. then we cannot find fault in her anxiety, to shift the patient from Kangayam to Erode.
Nowhere, in the Written Submission, positively, the opposite party stated, what are the steps taken by her to prevent or arrest the Post Partum Hemorrhage and how she failed, thereby, compelling to take a decision to shift the patient. Though we find in the Written Version, the measures taken by the opposite party in Mrs.Jayanthi are standard procedure, no procedure was started and the procedure said to have been adopted after 3.30 pm in Ex.B1, appears to have been written leisurely, probably to cover up the mistake. There is no material to prove that an attempt was taken, either by her or through the complainants, to secure Ambulance, which were available at Kangayam as admitted by her. She has not even sought the advise of the other Gynecologist available at Kangayam, for which, an explanation is given, as if no useful purpose would be served by getting second opinion, since further management was required, which were available only at Erode. In the absence of proof, for securing blood or securing other medical advise and the advise of the other doctors, the conduct of the opposite party, should be construed as medical negligence, that too, considering the fact, the patient was sent in a precarious condition, without any help to Erode.
33. The complainant has specifically averred in the complaint that as there was no other go, he took the patient at 4.45 pm., in a Car to Erode with I.V. Fluids and within 5 minutes of departure, blood shot up into I.V. Fluid bottle, necessitating to bring back the patient to the opposite party, where she removed the I.V. Fluid bottle, and sent them even without I.V. Fluid for management. It is also the further case, that the patient was bleeding profusely, which is supported by the Affidavit filed by the Taxi Driver though he reiterated later, for the reasons best known to him. Under the said circumstances, a prudent doctor should have sent, at least a trained Nurse who was available in the Nursing Home, since the opposite party claims that she is attending so many deliveries on the single day. Providing some management to the patient, who was in a critical stage, is a must which she failed to do so. The explanation offered by the opposite party is not acceptable to us, since every life is a precious one and that too when a patient was in a critical condition, preference should be given to that patient, making alternative arrangement for the remaining patient, who are safe, which the opposite party failed and this should be construed, as medical negligence.
34. The delivery note would indicate, even assuming, it is true, that there was no abnormal bleeding per vagina, thereby, indicating some bleeding which elevated at 3.45 p.m. since patient has a bout of bleeding. Though, Note would say, patient needs blood transfusion internal iliac artery ligation or hysterectomy if bleeding continuous, there is nothing to indicate, that any positive steps had been taken, to control the same, whether in that attempt the opposite party was successful or not. Had she taken steps, and failed in that attempt, we would say that there was no fault on her part, considering the attending circumstance also. But in this case, admittedly, expect compelling the first complainant, to take the patient to Erode nothing had been done by the opposite party either prior to delivery or subsequent to the delivery, either in anticipation or after knowing the continuous bleeding. If this kind of conduct of a doctor, is not construed as against the norms of a qualified doctor, then there cannot be any negligence in the medical field. For the above reasons, we conclude, that by the act of the opposite party and by her conduct, the complainants have proved the medical negligence as well as the deficiency in service, for which, she is answerable.
35. The District Forum considering all these facts as well as scrutinizing the Affidavits, has come to the conclusion, that because of the opposite partys careless and negligent act, the death had occurred to the patient, thereby, making her liable for the loss caused to the complainants, in which, we are unable to find any infirmity. Further, considering the age of the deceased, her qualification and the mental suffering by the first complainant and the non availability of mothers care for the tender children, the lower forum has fixed the quantum of compensation at Rs.2 lakhs, though the complainants have claimed Rs.5 lakhs less Re.1/- in which also we are unable to see any unreasonableness, which is based on justifiable grounds. Thus, analyzing the case, supported by the medical literature as above, on the touch tone of the established dictum of law, the irresistible conclusion, available in this case is, that there was negligence on the part of the opposite party, as recorded by the District Forum, which cannot be erased.
Thus, the appeal fails and liable to be dismissed.
36. In the result, the appeal is dismissed with cost, confirming the order of the District Forum in O.P.159/99, dated 27.09.2000. The Appellant/Opposite Party is directed to pay a sum of Rs.2,500/- as cost to the Respondents/Complainants in this appeal.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Ns/d/mtj/Medical