Kerala High Court
K.T.Mary vs Vayalali Pavithran
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940
AS.No. 327 of 1998
AGAINST THE JUDGMENT AND DECREE DATED 20-12-1997 IN OS NO. 542/1993 of
SUB COURT,THALASSERY
APPELLANT/2ND DEFENDANT:
K.T.MARY, STAFF NURSE, PRIMARY HEALTH CENTRE,
KADAMMANITTA, PATHANAMTHITTA DISTRICT,
RESIDING AT PALAPOIKAYIL HOUSE, VAYALATHALA P.O.,
PATHANAMTHITTA DISTRICT.
BY ADV. SRI.B.S.SWATHY KUMAR
RESPONDENTS/PLAINTIFFS & 1ST DEFENDANT:
1. VAYALALI PAVITHRAN, S/O.KRISHNAN,
SANTHI NILAYAM, NARIKKUNDUM KEEZHUR
AMSOM DESOM.
2. M.SANTHA, D/O.RAIRU NAMBIAR, W/O.PAVITHRAN,
SANTHI NILAYAM, KEEZHUR AMSOM DESOM.
3. DR.C.K.RAMACHANDRAN, PRIMARY HEALTH CENTRE,
P.O.MUZHAKKUNNU, MUZHAKKUNNU.
R1 & R2 BY ADVS. SRI.GRASHIOUS KURIAKOSE (SENIOR ADVOCATE)
SRI.K.K.RAMESH
R3 BY ADV. SRI.V.RAMKUMAR NAMBIAR
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06-07-2018 ALONG WITH AS
NO.441/1998,THE COURT ON 24-07-2018 DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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A.S.Nos.327 & 441 of 1998
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Dated this the 24th day of July, 2018
COMMON JUDGMENT
These appeals are filed by defendants 1 and 2 in O.S.No.542 of 1993 before the Court of Subordinate Judge, Thalassery against a decree directing them to pay compensation to the plaintiffs/contesting respondents for their alleged medical negligence. Though defendants 3 to 5, District Collector, Kannur, District Medical Officer, Kannur and Director of Health Services, Thiruvananthapuram were arraigned, no relief was granted against them by the court below.
2. Heard the learned counsel for the appellants and the learned Senior Counsel appearing for the plaintiffs/contesting respondents. Learned Government Pleader is also heard.
3. On 19.01.1991 at about 5.00 p.m. plaintiffs' son Vibish, aged 8 years, was taken to the Primary Health Centre, Iritty (PHC) on account of excessive vomiting. The child was examined by the 1 st defendant (appellant in A.S.No.441 of 1998), who was the Medical Officer on duty in the PHC at that time. 1st defendant attended on the ailing child and prescribed medicines including one injection, viz., Phenergan. 2 nd AS Nos.327 & 441 of 1998 2 defendant was the staff nurse in the hospital on duty on that day. As per the direction given by the 1st defendant, the 2nd defendant administered the injection Phenergan in high dose to the child. It is the allegation that after the injection, the child became unconscious. 1st defendant represented that the child was sleeping and asked the plaintiffs to take him home. Although they took the child home, at about 12 O' clock in the night, the child became delirious and again became unconscious after some time. He was taken to a nearby doctor, who advised the 1 st plaintiff to take the child to a hospital. Shortly after reaching the Co-operative Hospital, Kannur the child died. It is the allegation that the 1st defendant without examining the child in detail prescribed medicines and due to the negligence on the part of the defendants, the child died. It is also alleged that over dose of injection caused the death of the child. It is further alleged that the 1st defendant did not diagnose the actual ailment of the child. 1st plaintiff filed a complaint before Iritty Police, Superintendent of Police, Kannur and other authorities. The District Medical Officer (DMO) conducted an enquiry and found the 1st defendant guilty of medical negligence. Hence the plaintiffs caused to issue lawyer notices to the defendants 1 and 2 and other defendants. Defendants 1 and 2 caused to send a false reply. Since they denied any negligence on their part, the suit is filed for compensation.
AS Nos.327 & 441 of 1998 3
4. 1st defendant opposed the suit by admitting that he was working as Assistant Surgeon in the Primary Health Centre, Iritty at that time. It is also admitted that Vibish, a child aged about 8 years, was brought to him on 19.01.1991 at about 5.00 p.m. and he examined the boy. History of illness was ascertained from the plaintiffs. 1 st defendant's diagnosis was that the child was suffering from acute gastritis. However, there was no dehydration, no fever and no convulsions. Other systems were found to be normal. The child was in the hospital barely for an hour. It is incorrect to say that as per the instruction of the 1 st defendant, heavy dose of Phenergan was given to the child. At that time, the hospital was undergoing maintenance work. There was no inpatient facility in the hospital at that time. Due to the insistence on the part of the plaintiffs, the boy was kept for observation for some time. The observation slip given by the 1st defendant would show the real facts. Phenergan was prescribed for injection on the child by the 1st defendant. The injection was not available in the hospital and Phenergan is a safe drug which cannot cause death. Since the drug was not available, a prescription was given for buying the medicine from a nearby medical shop. Plaintiffs were also advised that if vomiting continued, the child should be given IV fluid and taken to another hospital with facility. The child was taken home. He was not seen by the 1 st defendant thereafter. His subsequent developments were also not AS Nos.327 & 441 of 1998 4 informed. At the time when the 1st defendant examined the child, he did not find any other symptom of any major illness. No clinical investigation could be done at the PHC after 5.30 p.m. There was no medical negligence on the part of the 1st defendant.
5. The 2nd defendant (appellant in A.S.No.327 of 1998) filed a written statement contending that the 1st defendant had examined the child on 19.01.1991 and medicine prescribed by him was injected by the 2 nd defendant, who was working as nurse in the hospital at that time, under the directions given by the 1st defendant. She never injected heavy dose of Phenergan to the child. Contention that the child became unconscious on receiving the injection is also incorrect. She was acting only as per the directions of the 1st defendant. In fact the child was normal and he was speaking to his parents. The child was not treated as inpatient in the hospital and they left the hospital by 7.00 p.m. There was no negligence on the part of the 2nd defendant.
6. 3rd defendant District Collector filed a written statement admitting the fact that the child was taken to Primary Health Centre, Iritty and the 1st defendant had seen the child on 19.01.1991. Administration of injection Phenergan is also admitted. Fact that the child died is also admitted. After death of the child, the plaintiffs filed a complaint to the 4 th defendant to conduct an enquiry about the death. Accordingly, an enquiry AS Nos.327 & 441 of 1998 5 was conducted by the then Deputy District Medical Officer of Health (Deputy DMO) on 21.05.1991. The enquiry report was forwarded to the 5 th defendant for taking action. Action was not finalised at the time of filing the written statement. It is the contention that the 1 st defendant had examined the child on 19.01.1991 and as per his directions, the 2 nd defendant injected Phenergan to the child. 3 rd defendant would contend that at the time of giving injection, the 1 st defendant had informed the plaintiffs that if vomiting persisted, the child should be admitted to some other hospital. Since the symptoms abated, as requested by the plaintiffs the child was permitted to go home. Thereafter the child was not brought to the PHC or before the 1st defendant. According to the enquiry report of the Deputy DMO, the 1st defendant did not examine the patient seriously and thus failed to assess the condition of the child. It is also reported by the enquiry officer that the 1st defendant ought not have administered heavy dose of Phenergan to the child. Enquiry report further showed that the 1 st defendant never noted any findings of examination and age of the child in the observation slip. He has not assessed the seriousness of illness and not given a provisional diagnosis in the observation slip. A charge memo was issued against the 1st defendant on 11.05.1992 and the same was not completed at the time of filing the written statement. The department had already initiated disciplinary action against the 1st defendant. AS Nos.327 & 441 of 1998 6
7. 4th defendant filed a written statement raising the same contentions. 4th defendant also contended that disciplinary action had been taken against the 1st defendant.
8. Trial court framed the following issues for consideration:
b