National Consumer Disputes Redressal
Dr. M. A. Natarajan & 2 Ors. vs Damodaran T. & 7 Ors. on 13 December, 2018
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 571 OF 2015 (Against the Order dated 30/04/2015 in Complaint No. 143/2000 of the State Commission Kerala) 1. DR. M. A. NATARAJAN & 2 ORS. OBSTERICIAN & GYNECOLOGST, VINAYAKA COLONY, THAREKKAD, PALAKKAD-678001 KERALA 2. DR. K. GOVINDAN, ANESTHETIST, BALAJI HOSPITAL, BRINDAVAN STREET, PALAKKAD-678001 KERALA 3. DR. K.K. GOVINDAN, ANESTHETIST, BALAJI HOSPITAL, BRINDAVAN STREE, PALAKKAD-678001 MUMBAI ...........Appellant(s) Versus 1. DAMODARAN T. & 7 ORS. S/O. E.K. ACHAN, R/AT SCHOOL BUNGALOW, CHULANUR P.O., PALAKKAD DISTRICT KERALA 2. M.T. VISHNU, S/O. DAMODARAN. T, REPRESENTED BY THE FATHER, R/ AT. SCHOOL BUNGALOW, CHULANUR P.O., PALAKKAD DISTRICT KERALA 3. M/S. PALAT MEMORIAL HOSPITAL WEST FORT ROAD, PALAKKAD-678001 KERALA 4. M/S. BALAJI HOSPITAL REPRESENTED BY DR. K. RAJAGOPALAN, BRINDAVAN STREET, PALAKKAD -6780001 KERALA 5. M/S. UNITED INDIA INSURANCE COMPANY, PALAKKAD BRANCH, REPRESENTED BY THE MANAGAER, PALAKKAD, KERALA 6. PREMA R. PALAT W/O. LATE DR. RAMAN PALAT, PALAT HOSPITAL, PALAKKAD-678001 KERELA 7. RATNAM PALAT D/O. LATE DR. RAMAN PALAT, PALAT HOSPITAL, PALAKKAD-678001 KERALA 8. DR. REMA PALAT, D/O. LATE DR. RAMAN PALAT, PALAT HOSPITAL, PALAKKAD-678001 KERALA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. S. Gopakumaran Nair, Sr. Advocate Ms. Priya Balakrishnan, Advocate. For the Respondent : Mr. N.P. Rakesh Panicker, Advocate & Mr. Nishad L.S., Advocate for R-1 & 2.
R-3 & 4 ex-parte vide order dated 04.02.2016.
Mr. Maibam N. Singh, Advocate for R-5.
Mr. Tom Joseph, Advocate & Mr. P.K. Pattanaik, Advocate for R-6 to 8.
Dated : 13 Dec 2018 ORDER PER HON'BLE M. SHREESHA, MEMBER
Aggrieved by the order in OP No. 143/2000 dated 30.04.2015 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, first Opposite Party Dr. M.A. Natarajan, fifth Opposite Party Dr. K. Rajagopalan and sixth Opposite Party Dr. K.K. Gokvindan preferred this Appeal under Section 19 of the Consumer Protection Act (in short "the Act"). By the impugned order, the State Commission has allowed the Complaint directing Opposite Parties No. 1 to 6 and 8 to 10 to pay a compensation of ₹15,00,000/- with interest @ 12% p.a. from the date of the filing of the Complaint till the date of realization, with a specific direction to realize the entire amount from the 7th Opposite Party namely the Insurance Company. It was also observed that the Insurance Company can claim reimbursement of the amount in excess of policy from the other Opposite Parties.
2. The facts in brief are that the wife of the first Complainant and the mother of the second Complainant namely Smt. Geetha (hereinafter referred to as "the Patient"), aged 32 years was pregnant and was taking treatment from the first Opposite Party (hereinafter referred to as "the Treating Doctor"). The expected date of delivery was given as 24.04.2000. As advised by the Treating Doctor, the Patient was admitted to the Second Opposite Party Hospital (hereinafter referred to as "Palat Hospital") on 21.04.2000. As the Patient did not have any signs of pain she was put on Pitocin Drip on 25.04.2000 without any result. On 27.04.2000 she showed some signs of mild pain and was once again given Pitocin Drip commencing at 8 a.m. It was averred that at about 12.45 p.m. the Treating Doctor left the Hospital promising to come back soon and left the Patient assuring that the delivery would take place the same evening. At about 3 p.m., the Patient developed severe pain and she was taken to Labour Room by the nurses, who tried to extract the child by vacuum extraction method by in the absence of the Treating Doctor. The First Complainant was anxiously waiting outside the labour room and thereafter was informed by the Treating Doctor and the Hospital that the Patient required an emergency surgery and since the operation theatre was currently engaged, the Patient was being discharged to be taken to the fourth Opposite party Hospital (hereinafter referred to as "Balaji Hospital.").
3. It was pleaded that the first Complaint was surprised to see the Patient's condition and as there was nobody else to help him, he requested Palat Hospital Authorities to provided an ambulance to take his wife to Balaji Hospital as the Patient was not in a condition to stand up and walk but the first Complainant was informed that the ambulance was not necessary and the Patient was sent in an auto-rickshaw, making her walk from the labour room upto the portico helped by the nurses. The first Complainant and the Patient reached Balaji Hospital and she was admitted there and the Patient was taken to the operation theatre in a wheel chair for a surgical extraction of the baby. The first Complainant was asked to arrange four bottles of A+ blood. It was averred that the blood group of the Patient was AB+ and the Complainant after informing the Hospital Authorities procured AB+ blood. It was stated that had be not mentioned the blood group to the Hospital Authorities they would have given A+ blood to the Patient. By the time the First Complainant returned with the required blood to Balaji Hospital, he was informed that the blood was already given but both the mother and the child could not be saved. It was averred that the sixth Opposite Party did not hand over the bodies to the First Complainant till the hospital charges were paid. Thereafter on payment of charges, the Hospital was in a hurry to get the dead bodies removed even without conducting the post-mortem.
4. It was pleaded that the Treating Doctor was aware even prior to the admission of the Patient that the baby's position was in an unusual transverse lying position and this was not informed to the First Complainant or the Patient. On 19.02.2000 an ultra sonography report was given by Dr. Ravikumar wherein a single live intra uterine foetus was seen lying in the transverse position. No scanning was done just before or after the admission of the Patient in the Hospital to ascertain the position of the baby. On 25.04.2000, the Treating Doctor detected that the fluid was reducing and attempted to induce delivery by giving Pitocin Drip. It was averred that the doctor was in the knowledge that insufficient fluid was likely to cause the death of the baby and it is also dangerous to the life of the mother but he did not take any action to operate the Patient either on the 25 or the 26th of April, 2000. Despite know that there was a complication involved in the delivery, the operation theatre was not kept ready for an emergency. It was pleaded that the nurses of Palat Hospital attempted to extract the child by vacuum method without proper instructions and without knowing the actual position of the baby thereby damaging the Patient's uterus and caused excessive bleeding. No anaesthetist or paediatrician were called to attend to the Patient and no emergency steps were taken to perform an operation prior to the Patient becoming critical.
5. It was also averred that the Treating Doctor knowing that the cervix of the Patient was fully dilated and that there was profuse bleeding ought not to have directed for shifting of the Patient to another Hospital without making arrangements for ambulance and ought not to have allowed the Patient to go in an auto-rickshaw. At the time of admission in Balaji Hospital the Treating Doctor and the Authorities of Balaji Hospital did not reveal the true condition of the Patient to the First Complainant thereby denying the opportunity to the First Complainant to take the Patient to a more modern Hospital with all the facilities. It was averred that the Patient was given a wrong blood group without even cross-matching it, no life saving drugs were administered to save the Patient and Sub-total hysterectomy was performed by Opposite Parties No. 5 & 6 without taking the consent of the Patient. It was averred that all the Opposite Parties suppressed the material facts and did not give proper care to the Patient which ultimately resulted in the death of the mother and child.
6. The Complainant got issued a Legal Notice to the Opposite parties on 15.07.2000 claiming compensation for the death of the Patient and the baby due to the negligent act of the Opposite Parties. The Opposite Parties replied to the said notice denying all the allegations. It was averred that the scanning was done only on 19.02.2000 which made the position of the baby clear and thereafter no further scanning was done to ascertain the position. The Complainant denied the allegations of the Opposite Parties in their reply notice that the Patient had not brought any old anti-natal check up papers except a small chit given on 29.09.1999 and it was stated that all the papers relating to the prior treatment of the Patient were given to the Treating Doctor. It was specifically stated that no consent was taken for the sub-total hysterectomy and the first Complainant or the Patient were never informed that such an operation was being performed to remove the uterus.
7. It is stated that the Opposite Parties, jointly and severally, are responsible for the death of the Patient and the child for which negligence, the Complainant prays for a direction to the Opposite Parties to pay the following amounts:-
"a) Compensation for the deficiency in service of the opposite parties resulting in the death of the wife of the 1st complainant and mother of the 2nd complainant. : ₹7,00,000/-
b) Compensation for the death of baby : ₹2,00,000/- c) Compensation for the loss of consortium : ₹3,00,000/- d) Compensation for the loss of love and affection of the mother to the 2nd complainant. : ₹2,00,000/- e) Compensation for the loss of estate : ₹1,50,000/- f) Compensation for pain and mental agony suffered by the 1st complainant : ₹1,00,000/- g) Compensation for pain and mental agony suffered by the 2nd complainant : ₹50,000/- h) Compensation for the pain and suffering of the deceased : ₹1,00,000/- Total amount : ₹18,00,000/-
8. The Treating Doctor and Opposite Parties No. 5 & 6 filed their Written Version denying the allegations of negligence made in the Complaint. It was admitted by the Treating Doctor that the Patient consulted him during the course of pregnancy and that the expected date of delivery was given as 24.04.2000; when the Treating Doctor saw the Patient her condition was good; baby was slightly on the bigger side and hence she was left alone to be reassessed during labour; that LSCS was decided upon on account of failed vacuum extraction and signs of concealed APH; that the operation theatre was occupied by an Ortho case which got over only at 6 p.m. and hence in order to save the lives of the Patient and the child, the Patient's condition was explained to the Complainant and other relatives and requested to take to nearby Balaji Hospital. On 25.04.2000, on an examination of the Patient it was found that the head was fixed, FH was good, Cervix partially taken up, Mild show +, membrane+. Hence the Patient was given one Pitocin drip of 5 units and 5% glucose, which did not have any effect on the Patient. On 26.04.2000 as the liquid was reducing instructions were once again given to start Pitocin drip. On 27.04.2000 five units of Pitocin drip was started at about 7.30 a.m. and at 11.30 a.m. uterus was FT VX LAO fixed. FH 140 mt-good. General condition of the Patient was good. Patient showed signs of satisfactory progress. At 12 noon CX was 2/5th dialted, head in the cavity, membrances absent, ischial spines prominent. Instructions were given to watch the FH and progress of labour. It was stated that the Resident Medical Officer was in attendance. At 3.55 p.m. FH was 140 mt. CX fully dilated, head just above the level of Ischial spines. Hence the vacuum extraction was attempted which slipped thrice.
9. It was stated that the head could not be brought down because of malrotation of the head. At that time the foetal heart rate was slowing down. Uterus became tense and there were no signs of external bleeding. The patient had continuous pain even without uterine contractions which led to the suspicion of concealed accidental haemorrhage. BP was 110/80 mm Hg. General condition of the patient was good. Because of failed vacuum extraction and signs of concealed APH, LSCS was decided upon. Then the operation theatre was occupied by an Ortho case which would be over only by 6 p.m. Hence in order to save the life of both mother and baby and since LSCS was urgently required, the condition of the patient was explained to the first Complainant and other relatives and requested to take the patient to Balaji Hospital. Necessary arrangement with anaesthetist and Balaji Hospital were immediately made to receive the Patient and to do LSCS urgently. Since no other vehicle was available immediately, the Patient was shifted to Balaji Hospital in an auto-rickshaw.
10. Balaji Hospital is only about 300 metres and 3 minutes drive from Palat Hospital. The Patient reached Balaji Hospital at 4.25 p.m. On admission general condition of the Patient was good, BP 112/70 mm hg., pulse 144 mt. regular. No dyspnoea. Mild Pallor - Abdomen was tense. Foetal hear was about 60 mt. After obtaining a written informed consent LSCS was started at 4.40 p.m. with utmost care and caution under General Anaesthesia administered by the sixth Opposite Party and extracted a deeply asphyxiated live baby which could not be revived in spite of all resuscitative measures. There was retro placental clots of about one kidney tray about 600 ml. Uterus was Couvellaire with multiple interstitial haemorrhages kon the front and back of the body of uterus. Uterus failed to contract and retract in spite of Injection Methergine, Injection Pitocin and Injection Prostodin. Uterus remained flabby with bleeding from the inner aspect. Hence subtotal hysterectomy was done to save the life of the mother. Oral consent of the Complainant was taken before the subtotal hysterectomy. Complete haemostasis was obtained and abdomen closed in layers. Vaginal toileting was done and there was no further bleeding from vagina. Surgery was completed by 5.30 p.m. and Foleys catheter was put in for bladder drainage. The relatives present were immediately informed of the Patient's condition and the necessity for removal of the uterus. At 5.00 p.m. the Patient's pulse was 140 mt., BP 90 mm Hg systolic, oxygen saturation 92%. Injection Efcorlin. Injection Haemacoal, Injection Mephentine was given and blood was ordered for fresh blood transfusion. A Dopamine drip was started at 5.15 p.m. The Patient was ventilated with 100% oxygen and inspite of ventilation with a 100% oxygen, the oxygen saturation was not improving. Hence Pulmonary Embolism due to Amniotic Fluid was suspected. Dr. V.C. Venugopal was called for expert advice and he saw the Patient and advised to continue the same management. At 5.20 p.m. cyanosis was noticed. At 5.30 p.m. Intraacheal aspiration was done and lung was found to be difficult to ventilate (still lung). Supportive measures like fresh transfuses Dopamine drip, IV fluids, ventilation with 100% oxygen were continued and the Patient was closely monitored. At 6.30 p.m. oozing of dark blood was noted from the injection sites and abdominal would which led to the diagnosis Disseminated Intravascular Coagulation (DIC). The Patient's Oxygen saturation and BP gradually came down in spite of the emergent measures done by a team of Doctors consisting of Gynaecologist Anaesthetist and Surgeon. At about 7.35 p.m., the pulse was not palpable. BP was not recordable and 7.40 p.m. Patient had cardio respiratory failure. Immediate resuscitative measures like Intracardiac Adrenalilne, Intratracheal Adrenaline, External Cardiac Massage, IPPV with 100% oxygen were done. IN spite of the immediate and prompt Cardio Pulmonary Resuscitative measures by a team of doctors the Patient could not be revived and Patient was declared dead at 7.55 p.m.
11. It was stated that utmost care and caution was taken in the treatment of the Patient. The death of the Patient was due to one of the accepted complications of pregnancy and delivery described in Standard Text Books of Obstetrics & Gynaecology. When the Patient developed complications, immediate and prompt measures were taken by a team of Doctors in good faith. It was denied that hectic steps were taken to remove the dead body, in fact the Opposite Parties advised the 1st Complainant and his men to have a post mortem examination to prove the cause of death.
12. It was pleaded that there was no indication for further scanning as on admission to the Hospital for delivery, the position of the baby had changed to vertex on clinical examination itself. Reduction in the fluid does not indicate any operative delivery. It is only an indication to induce labour in the manner suitable to each case individually. Dr. K.K. Govindan, who is an experienced Anaesthetist was present throughout to look after the Patient. A well-experienced Paediatrician was also present. The blood supplied to the Patient was Ab- and not A- as alleged. The Patient was given the correct blood group after cross-matching in the Hospital itself. There was no Anesthesic complications after administering Anaesthesia. The death of the Patient was due to known complications of pregnancy and delivery described in the Standard Text Books of Obstetrics and Gynaecology.
13. The second and the third Opposite Parties filed their Written Version denying all the allegations stating that the second Opposite Party namely, Palat Memorial Hospital and the third Opposite Party namely, Dr. Raman Palat are not aware whether the Patient had been under the treatment of the Treating Doctor from the inception of the pregnancy. It was pleaded that the Treating Doctor had administered Pitocin taking into consideration the labour pains of the Patient and that the nurses would never attempt a vacuum extraction in the absence of the doctor's instructions. It was stated that the position of the baby was found to be improper. A necessity was felt for performing an urgent surgery but as the operation theatre was otherwise occupied and an ambulance was not available an auto-rickshaw was arranged. The staff of the Hospital was never told about the position of the baby or the condition of the Patient. IT was pleaded that Palat Hospital is a reputed Hospital and that this Complaint was filed only to tarnish the fair name of the Hospital and that there was no negligence on their part.
14. The Fourth Opposite Party namely Balaji Hospital represented by Dr. K. Rajagopalan, filed their Written Version denying the allegations that wrong blood group was given without cross-match; that consent was not taken prior to performing of the sub-total hysterectomy; that post-mortem was not agreed upon; that the Hospital did not release the dead body till the charges were paid; that the Hospital had suppressed the condition of the Patient with the Complainant and his attendants and that necessary life-saving drugs were not given. In fact Consent was taken prior to the conduction of hysterectomy operation. The blood group was given after cross-matching and all possible steps were taken to save the life of the Patient who came in the Hospital in a risky condition. Hence no compensation can be made to be paid by the Hospital. United India Insurance Company Palakkad Branch has issued a policy to Balaji Hospital for the period from 19.01.2000 to 18.01.2001 and if any amounts are to be paid it has to be paid by the Insurance Company.
15. The Written Version filed by the seventh Opposite Party reiterates the stand taken by the Hospital and the doctors and pleads that the maximum liability of this Opposite Party is limited to ₹2.5 lakhs only, as expressly limited by the policy itself for professional negligence.
16. The State Commission, based on the evidence adduced and the pleadings put forward, allowed the Complaint observing as follows:-
"16. In the present case it is admitted by RW1 when cross examined that the accepted contra indication to Pitocin includes foetal distress and abruption placenta and that while administering Pitocin one should keep the operation theatre ready for any emergency. Admittedly Pitocin was given 3 days after admission. It is also admitted that the first opposite party RW1 left the hospital at 1 p.m. and returned only at 3 p.m. Thereafter he attempted vacuum extraction thrice which failed due to mal-rotation of the head of the foetus. As there was sign of concealed abruption placental haemorrhage he decided go for LSCS (Caesarian section) and then only he realized that operation theatre was engaged due to another surgery. He then directed relatives of the Patient to take her to the nearby hospital the 4th opposite party. He should not have left the hospital after giving Pitocin drip to the complainant, as one of the contra indication of the Pitocin is 'abruptio placenta.'
17. There is another aspect in this matter. RW1 made the Patient walk from the labour room to the front of the building which should not have allowed. Condition of the deceased Geetha was serious at this time. He also did not make arrangements for Ambulance. Explanation offered by the RW1 that no Ambulance was available at that time appears to be an excuse found out by the first and second Opposite Parties to escape from the liability. RW2 3rd opposite party would say that RW1 or any other person of the second opposite party hospital did not request for an Ambulance and that the serious condition of the patient was not brought to their notice at the time she was brought to the hospital. All these facts clearly show that there was negligence on the part of the opposite parties in treating deceased Geetha.
18. There are several other factors which shows that the first opposite party should have resorted to Caesarean operation which he did not do. PW1 admitted that baby was on a bigger size. Ext. A5 the Ultra sonography report dated February 19, 2000 showed that position of the baby was transverse. RW1 would say that he did not subsequently confirm that position of baby after admission of the Patient in the hospital. He admitted when cross examined that the above facts are clear indication for LSCS. That being so, the first opposite party should have extracted the baby by caesarean operation.
19. RW1 further admitted that the second stage of delivery was reached and at this stage there will be escape of fluid from the uterus and that entire fluid would drain out within half an hour, if it is the second child of the patient. Last examination of the patient was at 12.00 O'clock noon. By 12.30 the entire fluid would have drained out. He left the hospital at 1 p.m. and came back only at about 3.55 p.m. The act of RW1 leaving the Patient at that stage and returning only at 3.55 p.m. is gross negligence on his part.
20. The next question for consideration is whether there was any negligence on the part of 4th opposite party hospital and 5th and 6th opposite parties the doctors therein. Evidence in this case indicates that there is also negligence on the part of opposite parties 4 to 6. It is not disputed that by the time deceased Geetha and PW1 reached the 4th opposite party hospital RW1 also came there. It is quite natural that RW1 would have explained the seriousness of the condition of Geetha and the doctors therein. That being so 6th opposite party should not given anesthesia to Geetha. They have removed her uterus without the consent of PW1 or Geetha though RW1 would say that it was to save the life of Geetha he did so.
21. There is also another circumstance in this case which indicates the negligence on the part of 4th opposite party hospital authorities. The blood group of deceased Geetha was noted as A+ve in the document issued by 4th opposite party Ext. D1. But actually the blood group of deceased Geetha was Ab+ve as admitted by RW1. The above fact probabilises the version of PW1 that 4th opposite party hospital authorities told him to arrange A+ve group of blood and that when he told them that the blood group of Geetha was AB+ve they scolded him and later when he arranged AB+ve group of blood the hospital authorities told him that they gave the required blood. All these facts probabilise the allegation of PW1 that 4th opposite party hospital authorities would have administered wrong group of blood to deceased Geetha. It is clear from the above that there was also negligence on the part of opposite parties in treating deceased Geetha.
22. Opposite parties 2 and 3 contended that RW1 used to admit patients in various hospitals including second opposite party hospital that RW1 did not inform opposite party No. 3, RW2, about the serious condition of the patient and that if RW1 had informed RW2 or hospital authorities about the condition of deceased Geetha they would have arranged for an Ambulance. According to RW2, PW1 himself had taken deceased Geetha in the auto rickshaw to the 4th opposite party hospital. The above version of RW2 improbabilises the version of RW1 that no ambulance was available and hence deceased Geetha was sent in an auto rickshaw. It is also difficult to believe that RW1 did not inform the hospital authorities regarding the serious condition of deceased Geetha. It is evident from the above facts that there was clear negligence on the part of OP2 and 3 in not providing ambulance to transport deceased Geetha to OP4 hospital knowing fully about the condition of Geetha.
23. Opposite parties - 1,4, 5 and 6 contended that Geetha died due to one of the accepted complications of delivery which is not at all proved by them by examining any experts on their side. In 1993 (1) CPR 422 which is a similar case, after administration of Pitocin doctor left the hospital and there was delayed labour and therefore it was held that there was negligence on the part of opposite parties in their duty to the Patient. Pitocin which is a drip to induce labour should be administered after getting the operation theatre ready for any eventuality. Even at the time of attempting vacuum extraction RW1 did not ascertain the availability of operation theatre. RW1 when cross-examined admitted that the Patient had reached second stage of labour and the vacuum extraction or trial by forceps should be attempted to only after operation theatre made ready to proceed to caesarean section in case of failure of trial. Thus there is clear negligence on the part of RW1."
17. Learned Counsel appearing for the Appellant i.e. the Treating Doctor, OP-5 Dr. K. Rajagopalan and OP-6 Dr. K.K. Govindan, Anesthetist of Balaji Hospital vehemently argued that at the time of the Patient's admission in the Hospital the head was in the cavity as can be seen from the hospital treatment sheet dated 27.04.2000 and, therefore, the question of scanning it again does not arise. In the present circumstances when the operation theatre was not available and the Cx was dilated and the head was in the cavity, the right decision was taken to conduct vacuum extraction and when vacuum extraction failed the Treating Doctor had rightly referred the matter to a higher Hospital so that a Caesarean operation could be conducted immediately and, therefore, no negligence can be attributed to the Treating Doctor to the other Appellants. He further argued that administering of Pitocin drip on 25th and 27th was as per the standards of normal medical practices and that reasonable care was taken by the Treating Doctor and the Appellants.
18. He further contended that Balaji Hospital had rightly undertaken sub-total hysterectomy to save the lives of the Patient as the uterus failed to contract and retract in spite of Methergine Pitocin and Prostopin injections. Blood was also given after cross-matching and there is no evidence on record to establish that the wrong blood group was given. The Patient had died due to pulmonary embolism due to amniotic fluid and haemorrhagic shock leading to death which is a known complication and the doctors cannot be held to be negligent in any way. He also argued that Balaji Hospital was just 300 meters away and the ambulance was not available and so the Patient was put into an auto-rickshaw with the assistance of the nurses and the Treating Doctor also followed the Patient in a car to Balaji Hospital and, therefore, due care was taken to save the life of the Patient.
19. Learned Counsel appearing for the Complainants reiterated the facts stated in the Complaint and contended that the State Commission had rightly awarded compensation as there was negligence on the part of the Opposite Parties in delaying the caesarean; in nurses attempting vacuum extraction; in damaging the uterus; in sending the Patient in an auto-rickshaw and further Balaji Hospital was negligent in conducting the sub-total hysterectomy without taking 'Informed Consent'.
20. The facts not in dispute are that the Treating Doctor treated the Patient during the pregnancy; that the Patient was admitted in Palat Hospital at 8.45 p.a. on 21.04.2000; the expected date of delivery was 24.04.2000; that Pitocin drip was given to the Patient on 25.04.2000 and once again the same was started on 26.04.2000; that vacuum extraction was attempted at 3.55 p.m. which slipped thrice; that foetal heart rate was slowing down and uterus became tense and, therefore, a decision was taken to do LSCS; there was no ambulance to take her to Balaji Hospital and she was put in an auto-rickshaw. Admittedly, in Balaji Hospital sub-total hysterectomy was done under general anaesthesia. Blood transfusion was also done. Patient developed cardiorespiratory failure and was declared dead at 7.55 p.m.
21. The Supreme Court while discussing the 'duty of care' which a Treating Doctor should render to the Patient, observed in the case of Dr.Laxman Balakrishna Joshi v. Dr. Trimbak Babu Godbole AIR 1969 SC 128 and held as follows:-
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose, he owes a duty of care in deciding whether to undertake the case, he owes a duty of care in deciding what treatment to give and, he owes a duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient.
22. This means that when a medical professional, who possesses a certain degree of skill and knowledge, decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill, care, and knowledge. Failure to act in accordance with the medical standards in vogue and failure to exercise due care and diligence are generally deemed to constitute medical negligence.
23. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure."
24. The Hon'ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, case has preferred Bolitho test to Bolam test. The Supreme Court redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decision also says that the court should take into account patient's legitimate expectations from the hospital or the concerned specialist doctor.
25. The brief point which falls for consideration in this First Appeal is whether the Treating Doctor was negligent in extending the 'duty of care' as laid down by the Hon'ble Supreme Court in the aforenoted judgements in treating the Patient with specific allegation of the first Complainant that the Caesarean Section should have been attempted at an earlier stage as the initial scan had shown the baby to be in a traverse position and also that no further scans were taken to ascertain the position of the baby. The material on record shows that admittedly Pitocin was given three days after the admission of the Patient. It is not in dispute that no other scan was taken just prior to the preparation of the delivery of the Patient. It was contended by the Learned Counsel appearing for the Appellants that no such scan is necessary as the experienced doctor can clinically ascertain the position of the baby and the condition of the Patient. Admittedly, the scan dated 19.02.2000 shows that the foetus was lying in a traverse position. Be that as it may, the Treating Doctor admitted that after giving Pitocin drip on 27.04.2000, he had left the Hospital at 1.00 p.m. and on receiving the phone call from hospital authorities he returned at 3.55 p.m. The Treating Doctor deposed in his Affidavit that vacuum extraction was attempted thrice and failed and that there was severe bleeding and no ambulance was available and the operation theatre was engaged. In his cross-examination he deposed that the Patient died due to pulmonary amniotic fluid embolism. There are no substantial reasons given by the Treating Doctor as to why the operation theatre was not kept ready or preliminary investigations were not done which led to consequent delay in the conduction of the Caesarean section thereby leading to excessive bleeding and ultimately the Patient's death. The State Commission has relied on medical literature to explain this Abruptio Placenta which is the actual cause of death as stated by the Treating Doctor in his own cross-examination and also shown in Ex. A-16 in which Dr. Gujral, police surgeon attached to the District Hospital, Palakkad opined that the cause of death was Abruptio Placenta. The medical literature reveals that Abruptio Placenta is separation of the placenta lining from the uterus of the mother. Some of the bleeding of placental abruption usually insinuates itself between the membranes and uterus and then escapes through the cervix, causing an external haemorrhage. Placental abruption with concealed haemorrhage carries with it much greater maternal hazards, not only because the likelihood of intense consumptive coagulapathy is increased, but also because the extent of haemorrhage is not appreciated. The frequency with which Abruptio Placenta is diagnosed will vary because criteria employed for diagnosis differ. The intensity of the abruption will often vary depending on how quickly the woman seeks and receives care following the onset of symptoms. With delay, the likelihood of extensive separation causing death of the foetus is increased remarkably.
26. Medical literature shows that it is standard protocol to keep the operation theatre ready for any emergency that may arise after administration of Pitocin which includes foetal distress and Abruptio Placenta. It is not understood as to why the Treating Doctor had waited for signs of concealed abruption placental haemorrhage before he realized that the operation theatre was not available. He ought to have been available at the Hospital as one of the contra indication of Pitocin is Abruptio Placenta.
27. Now we address ourselves to whether the hospital was liable and can be construed to be deficient for not keeping available the operation theatre at the right time and also in not promptly providing the ambulance which made the patient in a high risk condition travel in an auto rickshaw. We find it relevant to rely on the following judgements which laid down the ratio regarding the liability of the Hospital.
28. In Gold Vs Essex County Council (1942)2 ALL ER 237, the court held that the hospital is liable for the negligent acts of its nurses. This judgment removes the distinction created in the Meyer's case and extends the primary liability of hospitals. In Cassidy Vs. Ministry of Health (1951) 1 ALL ER 574, the court found that a hospital employing two doctors on the contract of service vicariously liable for their negligent acts.
29. In Spring Meadows Hospital Vs Harjot Ahluwalia through K.S. Ahluwalia (1998)4 SCC39 held the hospital liable to pay compensation for the negligence of its attending doctor who had allowed an unqualified nurse to give an intravenous injection to the patient against the advice of the consultant doctor and thereby contributed to the irreparable brain damage of the minor patient.
30. Keeping in view the principle laid down by the Hon'ble Supreme court in all the aforenoted judgements we are of the considered view that the State Commission has rightly made the Hospital also liable for the negligent act of not making available the operation theatre and for not providing the ambulance and making the Patient, in that risky condition with severe bleeding, go in an auto-rickshaw. This kind treatment rendered to a high-risk Patient is extremely deprecated.
31. Now we address ourselves as to whether the second and third Appellants are also negligent. The main contention of the Learned Counsel appearing for the Complainant is that the sub-total hysterectomy performed by Balaji Hospital was without informed consent. The Hon'ble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1 has clearly laid down in a similar case dealing with similar facts that informed consent has to be taken from the Patient unless the Patient is incoherent and only then the informed consent ought to be taken from the Patient's attendants before attempting removal of any organs. It is observed from the record that 'informed consent' as laid down by the Hon'ble Apex Court in Samira Kohli (Supra) has not been taken. The Apex Court observed as follows:
"(i) A doctor has to seek and secure the consent of the patient before commencing a "treatment" (the term "treatment" includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.
(ii) The "adequate information" to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment."
32. In the instant case it is observed that sub-total hysterectomy was performed on the patient who was only 32 years old without taking proper informed consent as envisaged by the Hon'ble Apex Court in Samira Kohli (Supra).
33. The Complainants have lost the love and affection rendered to them by the patient herein, who was only 32 years old apart from the fact that the patient and the attendants had undergone such trauma we are of the considered opinion that the principle of restitution in integrum relied on by the HOnble Supreme court in Malay Kumar Ganguly Vs. Sukumar Mukherjee and Balram Prasd's, squarely applies to this case. Therefore, we are of the considered view that the State Commission was right in awarding compensation of ₹15,00,000/- to be paid by OP-1 to 6, 8 to 10. Keeping in view the submission of the Learned Counsel appearing for the Insurance Company that the provisional indemnity policy was limited to only ₹2.5 lakhs, the directions of the State Commission is modified to the extent that Insurance Company shall pay ₹2.5 lakhs with interest @ 9% p.a. from the date of the filing of the Complaint till the date of realization and the balance amount shall be jointly and severally paid by the other Opposite Parties. Keeping in view that the Complaint is of the year 2000 and compensation of ₹15,00,000/- was awarded, we are of the considered opinion that interest can be reduced from 12% p.a. to 9% p.a. While we affirm the findings of the State Commission to the extent of deficiency in service and negligence, the order of the State Commission is modified only to the extent of liability of the Insurance Company and the rate of interest being reduced from 12% p.a. to 9% p.a. while confirming the rest of the order of the State Commission.
34. In the result, this Appeal is allowed in part modifying the order of the State Commission to the extent indicated above. Time for compliance four weeks from the date of receipt of a copy of the order, failing which, the amount shall attract interest @ 12% p.a. for the same period.
35. The statutory amount deposited by the Appellants at the time of filing of the Appeal shall stand transferred to the Consumer Legal Aid Account.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER