State Consumer Disputes Redressal Commission
K.Seeman,Sivaganga. vs Dr.K.K.Velusamy,Velan Eye Hospital, ... on 11 November, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F.A.No.141/2015
(Against the order made in C.C.No.13/2012 dated 07.11.2014 on the file of
the District Forum, Sivagagai.)
FRIDAY, THE 11th DAY OF NOVEMBER 2022
K.Seeman,
S/o Kaliappan,
Near Railway Station,
M.G.R.Nagar,
Sivagangi. Appellant/Complainant
-Vs-
1. Dr.Kavitha,
Kavitha Nursing Home,
Opposite to New Court Complex,
Karaikudi Town,Sivagangai District. 1st Respondent/1st Opposite Party
2. Dr.Ramesh,
Kavitha Nursing Home,
Opposite to New Court Complex,
Karaikudi Town,Sivagangai District. 2nd Respondent/2nd Opposite Party
3. Kavitha Nursing Home,
Represented by its Owners
Namely Dr.Kavitha and Dr.Ramesh,
Kavitha Nursing Home,
Opposite to New Court Complex,
Karaikudi Town,Sivagangai District. 3rd Respondent/3rd Opposite Party
Counsel for Appellant/Complainant : Mr.S.Rethinakumar,Advocate.
Counsel for Respondents-1to3/Opp.Parties1to3 : Mr.D.Paneerselvam, Advocate.
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This appeal coming before us for final hearing on 05.08.2022 and upon
perusing the material records, this Commission made the following:
ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. Against the dismissal order of the complaint passed by the District Consumer Disputes Redressal Forum, Sivagangai made in C.C.No.13/2012 dated 07.11.2014 the complainant preferred this appeal.
2. The facts : The complainant's wife was one Seema. They married in the year 2005. The above Seema become pregnant in the year 2009. From the fifth month of pregnancy she consulted the opposite parties. The first and second opposite parties husband and wife are doctors and their hospital is shown as third opposite party. On 15.10.2010 the above Seema suffered from fever for which she consulted the doctor and the opposite parties gave some antibiotics. The fever subsequently cured. On 20.10.2010 the blood was oozing out from the nose of the above Seema. Hence, she was brought to the hospital immediately. After testing , the opposite parties did not feel any movement of the child and the doctor advised them to take a scan immediately. From the scan report it was found that, the child in the womb was already dead. The doctors asked the complainant to come back after three days for which the complainant requested the opposite parties to admit the patient as she was tired and having pain. The doctor also admitted the patient in her hospital. In the night, heavy blood was oozing out and it was informed to the staff nurse on duty. Inspite of such emergency the doctors did not attend the patient and 3 only in the morning around 8 o'clock the patient was taken to operation theatre and immediately the doctors informed that a normal delivery was happened and the stillbirth child was taken away from mother. But, immediately the health condition of the patient becomes worst and the opposite parties advised the complainant to take out the patient for further treatment at Meenakshi Mission Hospital, Madurai. On the way to Meenakshi Mission Hospital the patient died. Only because of the careless attitude of the doctors in not attending the patient immediately on the report of blood discharge caused the pre-mature death. Moreover, the opposite parties without removing dead child by performing operation waited till for a normal delivery was happened and it also amounts to deficiency of service. Hence, he filed the complaint claiming compensation of Rs.19,00,000/- with interest 12% and also cost of the proceedings.
3. The opposite parties filed their written version stating that, there is no negligence in either treating the patient or performing the delivery in normal way. It is true that the complainant's wife regularly consulted the doctor from the fifth month of pregnancy. It is also true that on 15.10.2010 the complainant consulted the doctor for fever and at the time antibiotics was given and the complainant wife was asked to come after 15 days, if the fever was persisting. Without consultation of the doctor the patient took some natural medicines for small box. And the patient was again present on 20.10.2010 around 10.00 p.m. for her complaints. On examination the child movement was not felt and advised to take scan. The scan was also taken. And immediately necessary blood tests were carried out to rule out Malaria and Typhoid . From the blood test result it was found that, she was suffered from Mild Jaundice. Necessary medicines were given for normal delivery that is 4 simulative drugs were administered. In the morning around 8.30 a.m. normal delivery was happened and the stillbirth child removed from mother. Immediately thereafter the patient pulse rate was decreased, and she suffered breathing troubles. She was given oxygen and subsequently advised to go Meenakshi Mission Hospital for further treatment. There is no medical negligence on the part of the doctors and they are qualified and experienced in the field. Hence the complaint is to be dismissed.
4. The District Commission after considering the materials on record and evidences dismissed the complaint.
5. Aggrieved with the above order the appeal has been preferred by the complainant on the following:
Grounds : The District Forum order is erroneous against the law and facts of the case. The District Forum failed to note that, the doctor did not attend the patient throughout the night on 20.10.2010 as the patient bleeding profusely, the doctor knowing very well about the death of the child in the womb did not perform any surgery immediately to remove the child which alone caused pre-mature death. Hence, he prayed to allow the appeal and to set aside the District Forum order.
6. We heard and perused the written arguments submitted by both sides.
7. Now the points for consideration are:
1. Whether the doctors are committed any medical negligence on their part or not?
2. Whether the appeal is to be allowed or not?5
Point: On perusal of the entire materials we found there is no pleading, alleging the opposite parties/ doctors are inefficient or not qualified to treat the patient. As seen from the medical records the first opposite party doctor Kavitha, is an M.D. and as per the proof affidavit of second opposite party he is an M.S., So the efficiency of the doctor was not at stake or questioned by the complainant.
8. It is also admitted fact that, the deceased brought to the hospital on 20.10.2010 for certain complaints and inconvenience. The doctor did not feel any movement of the child, suspecting stillbirth and advised the patient to take scan. The scan report was taken just to confirm the clinical finding of the doctor. As correctly diagnosed by the doctors scan report reveals the death of the child in the womb. It is the allegations of the complainant that, the doctor on knowing the death of the child in the womb failed to perform any surgery immediately to remove the child. The opposite parties did not deny this fact. As per clinical evidence on 20.10.2010 / 21.10.2010 tests were taken to rule out Malaria and Typhoid and to ascertain the reactions in the body. The investigations reports available only at 1.00 a.m. and the medicines were administered throughout the night (Early Morning of 21.10.2010). So, the supervision was done by the hospital authorities the presence of the doctor was not at all needed as per hospital summary and around 8.30.a.m. Cervix well effaced, Membranes absent and normal delivery occurred.
9. On the side of the complainant no medical texts produce to prove that operation to be performed immediately to remove the death child from the womb and it is the only course.
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10. On the other hand, it is argued on the side of opposite parties that performing any operation while the child in the womb already dead would be more critical as it leads to septicemia. Moreover, the time and death of child was unable to be ascertained. At this juncture performing any surgery will be complicated as the patient already suffered septicemia. Reference may be had to, "Jacob Mathew .v. State of Punjab & Anr. (2005) 6 SCC 1"
The Apex Court has approved the test as laid down in Bolam .v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, popularly known as Bolam's Test, in its applicability to India. The relevant principles culled out from the case of Jacob Mathew (supra) read as under:
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) A simple lack of care, an error of judgment 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 7 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.
(3) A professional may be held liable for negligence on one of the two findings: either 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."
11. The complainants have not alleged that the lady surgeon who performed the delivery was not competent to perform the surgery and yet ventured into doing it. It is neither the case of the complainant nor has any finding been arrived at by below the district forum that the lady surgeon was negligent in performing the surgery. The present one is not a case where the doctor who performed the delivery has committed breach of any duty cast on her as a doctor. When two courses are open to the doctors and simply one course was adopted we cannot blame it as medical negligence. Hence, we concur with the finding of the District Forum that there is no 8 medical negligence committed by the opposite parties and hence the appeal is liable to be dismissed without cost and we answered the points accordingly.
12. In the result,
1. The appeal is dismissed.
2. The order passed by the Learned District Forum, Sivagangai, made in C.C.No.13/2012, dated 07.11.2014 is hereby confirmed.
3. There shall be no order as to costs in the appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 11th day of November 2022.
Sd/-xxxxxxxxxxxx Sd/-xxxxxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.
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Corrected