State Consumer Disputes Redressal Commission
A.Rajalakshmi, Trichy. vs The Trustee, Child Jesus Hospital, ... on 8 May, 2024
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
C.C.No.06/2016
Date of complaint filed : 11.03.2016
Date of orders pronounced : 08.05.2024
A.Rajalakshmi,
W/o P.Anand,
No.2/43, Gundur Burma Colony,
MIET Post,
Trichy - 620 007. Complainant
-Vs-
1. The Trustee,
Child Jesus Hospital,
Cantonment,
Trichy - 620 001.
2. The Administrator,
Child Jesus Hospital,
Cantonment,
Trichy - 620 001.
3. Dr.Amali Jaya, M.B.B.S.,DGO.,
Child Jesus Hospital,
Cantonment,
Trichy - 620 001. Opposite Parties
Counsel for Complainant : M/s.R.Saravanakumar, Advocate.
Counsel for Opposite Parties-1to3 : AAV Partners.
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This complaint came before me for final hearing on 02.05.2024 and upon
perusing the material records this Commission made the following:-
ORDER
THIRU.S.KARUPPIAH,PRESIDING JUDICIAL MEMBER (Dictated in the Open Court).
1. The complainant's case :The first opposite party is the Trustee & the second opposite party is the Administrator and third opposite party is a doctor worked in Child Jesus Hospital. The complainant become pregnant for the second time, and she took prenatal check-up initially, at Pathankot and Bangalore. Subsequently, from April 2015 she consulted the opposite parties/hospital and the pre investigations proved everything was normal. The complainant's expected delivery date was 15.09.2015, but on 30.07.2015 she felt fetus movement were minimal, and went to the opposite parties/hospital around 7.00 p.m. On that day the third opposite party/doctor who examined the complainant, advised immediate admission and at around 11.00 p.m. the caesarean surgery was performed and the complainant delivered a female baby. Subsequently the complainant experienced pain in the abdomen, vomiting and it was treated by the third opposite party/doctor by admitting her in ICU (Intensive Care Unit). But the problems were not subsisting but increased to unbearable pain. Then she referred to Kauvery Medical Hospital at Trichy for better management. Even they were unable to exactly diagnose her problem. Unable to spent money the complainant was admitted in Annal Gandhi Memorial Government Hospital Trichy. Again a CT Scan was taken at the Government hospital and the scan revealed abscess formation in the abdomen 3 region and infected with pus. The Doctor's at the Government hospital advised immediate surgery. Considering the cost, the complainant's husband took the complainant to Bangalore, Air Command Hospital. The Doctor's at the hospital opined presence of a foreign body in complainant's abdomen. The surgery was performed by Command Hospital Air Force, Bangalore, and removed the roller gauze (gossypoboma) a medical cloth used during surgery. The presence of such cloth in the complainant's abdomen itself proved that the opposite party were negligently performed the Cesarean operation on 30.07.2015 and placed the cloth inside the abdomen. Alleging medical negligence the complainant filed a consumer complaint claiming Rs.50,00,000/- towards physical suffering undergone by the complainant, as a result of the gross deficiency of service in negligently performing the caesarean surgery by the opposite parties, and Rs.35,00,000/- towards compensation for mental agony and also cost of the proceedings.
2. The opposite parties in their written version contended that they performed the surgery and took due care. Further it is their contention the scan reports did not reveal the presence of any foreign object in the abdomen and they maintained medical standard in treating the patient. As such there is no negligence on their part and requested to dismiss the complaint.
3. The complainant was examined as PW1 by filing proof affidavit and Exhibits A1 to Ex.A53 were marked. On the side of the opposite parties proof affidavit of RW1 filed and Exhibit B1 series (Page No. 1 to 107) were marked.
4. The learned counsel for the complainant during his arguments mainly alleged that a foreign particle/ a roller gauze (gossypoboma) was found in complainant's abdomen and it was removed by performing surgery. The learned counsel mainly 4 contended that the complainant underwent second delivery through caesarean in the opposite parties/hospital. Though the operation went uneventful the complainant suffered fever, vomiting, abdominal pain etc, later, and it was clearly admitted by the opposite parties. Many C.T.Scans were taken and they projected an abnormal anomaly in the abdomen. The treatment given by the opposite party did not yield any result. The complainant then referred to Kauvery Medical Hospital for better management. Their also the doctors' opined another laparoscopy surgery is necessary but the complainant was taken to Bangalore Hospital. In Bangalore Hospital C.T.Scan clearly revealed a serious situation and hence surgery performed by doctors at Command Hospital Air Force, Bangalore, the above Discharge Summary is marked as Ex.A44.
5. Further the above foreign object is a cloth normally used during surgery which was kept inside the abdomen of the complainant negligently by the opposite parties. The length of the cloth is 129 x 11 CM. The photographs Ex.53 taken at the surgery table clearly revealed the same. The above article was taken out from the abdomen and handed over to the complainant. Further this fact was also published in newspapers and produced the Newspaper cuttings as Ex.51. So the learned counsel submitted that the thing speaks itself and there was negligent on the part of the opposite parties which caused all complications. Hence he prayed to allow the complaint.
6. On the other hand the learned counsel for the opposite party would submit that the surgery was performed by qualified doctors. During the surgery and after surgery the Apparatus and pad were all clearly counted and after physical verifications alone the open wound was closed. Even thereafter periodical care was 5 taken and they give detailed treatment and medications particulars. They performed surgery as expected from them and there is no negligent on their part.
7. The learned counsel further submitted in the C.T scan reports no foreign objects were noted and the above removed roller gauze was not seen. The foreign object was not marked as M.O. in this case and no histopathology report was obtained. It is unbelievable that the roller gauze was handed over to the complainant and she preserved it. As if there is no truth in the above allegations they requested this Commission to dismiss the complaint.
8. Now the point for consideration is:
Whether the opposite parties/hospital committed Medical negligence?.
9. Discussion on the Point It is an admitted fact the complainant admitted in the opposite parties/ hospital for her second delivery. A caesarean was performed on 30.07.2015 and a female child was delivered. The above cesarean was performed by the third opposite party/doctor accompanied by Dr.Rashwath, and assisted by nurses namely Sr.Jayaseeli, Sr.Asha along with the scrub nurses Shalini. The above caesarean was performed Under spinal pfannesteil incision. Patient delivered a live girl baby who breathed and cried. Uterus was closed. Abdomen was closed after securing perfect heomostatis and verifying pad and instruments counts.
10. The above facts were elicited in the reply notice sent by the opposite parties which was marked as Ex.48. But it is also an admitted fact that subsequently the complainant developed vomiting, fever and abdominal pain. The Doctors diagnosed the same as expected complications following an abdominal surgery. For that she was meticulously treated C.T. Scans were taken and the above pain and suffering did not subsidized. So she was advised to take further management at Kauvery 6 Medical Hospital. The scan report taken after the surgery on 03.08.2015 is marked as Ex.A17. The report clearly mentioned under the heading, Impression "Distended Small Bowel Loops with Sluggish Motility in the left Flank? Ileus". So they suspect a blockage in Bowel Loops i.e., abdomen. Similarly another scan taken at Kauvery Medial Hospital revealed * Dilated Fluid Filled Edematous Bowel Loops.
● ? Hematoma Adjacent to Anterior Wall of Uterus with Minimal Pleural Effusion.
In the Scan Report issued by Tamilnadu Medical Services Corporation Limited, KAPV Govt. Medical College & Annal Gandhi Memorial Govt. Hospital Trichy which is marked as Ex.A27, dated17.08.2015, revealed Mixed dense lesion with air pockets seen intra abdominally below the umbilicus displacing the bowel loops.
Loculated fluid collection also seen in the right sub diaphragmatic space and pelvic region.
Pigtail seen insitu.
Impression:
Multiple Intra Abdominal Abscess.
And again Ultra sound abdomen was taken which is marked as Ex.A29 is also confirmed the same.
11. To understand the importance of the above findings it is necessary to understand what is bowel loops, flank, and ileus mean. Bowel Loops is a kind of obstruction in the intestines. Obstruction of the bowel may be due to: A mechanical cause, which means something is blocking the bowel. The medical term Ileus, is a 7 condition in which the bowel does not work correctly, but there is no structural problem causing it. Normally our intestines are about 28 feet long. This means the foods we eat have a long way to travel before they're fully digested and excreted. Our intestines complete this task using muscle contractions that move in a wave-like motion. Known as peristalsis, these muscle contractions move our digested food forward. However, if something such as muscle or nerve problems slows down or blocks this motion, the result can be a major traffic jam in our intestines. Ileus is the medical term for this lack of movement somewhere in the intestines that leads to a buildup and potential blockage of food material. An ileus can lead to an intestinal obstruction. This means no food material, gas, or liquids can get through. It can occur as a side effect after surgery. However, there are other causes of this condition. Similarly an edematous bowel wall that measures more than 3 mm is indicative of an obstruction or other intestinal inflammatory cause. The non compressibility of bowel and free fluid suggests obstruction. Anterograde-retrograde peristalsis is specific for obstruction.
The word hematoma means, A pool of mostly clotted blood that forms in an organ, tissue, or body space. A hematoma is usually caused by a broken blood vessel that was damaged by surgery or an injury. It can occur anywhere in the body, including the brain. Most hematomas are small and go away on their own, but some may need to be removed by surgery.
12. So even in the opposite party hospital scan report and Kavery Hospital scan report proved some obstruction, hematoma in the bowel, i.e, in the intestines of the complainant. Further the discharge summary given by the Kauvery Hospital is marked as Ex.A21. It clearly revealed Multiple Intra Abdominal Abscess and they 8 advised exploratory laprotomy & drainage. So the subsequent removal of foreign object from the complainant's abdomen clearly correlated with those findings. The presence of the foreign object is not a new development ascertained by the Doctor's at Command Air Force Hospital but those scan findings can easily lead the opposite parties also to doubt the presence of foreign object
13. The Doctor's who performed the surgery at Bangalore gave a certificate which is marked as Ex.A30 to prove "an Emergency Exploratory Laprotomy for post Caesarean Intra abdominal and Pelvic Abscess with sepsis on 19.08.2015 with intra operative finding of large roller gauze in the abdomen and the same on request of the patient's husband has been handed over to the husband". The above certificate clearly revealed removal and handing over of foreign object roller gauze. The photographs further proved the presence of foreign object inside the body and it was removed only at the surgery table. The contention of the opposite party that the photo did not depict, that the above foreign object was removed only from the complainant abdomen. But coupled with the C.T Scans , certificate issued by the Hospital, and photographs, and news paper report, it is clearly proved a foreign object was placed inside which was removed by the Command Hospital Air Force, Bangalore on 19.08.2015.
14. Now, it has to be decided whether foreign object was negligently placed by the opposite parties/hospital or not? In the reply notice they contended that the above roller gauze may be negligently kept during her first caesarean operation. So impliedly they admitted the presence of foreign object in the abdomen. If the above roller gauze as alleged by the opposite party placed during first caesarean the same complications would arise to the complainant much earlier. But only after the second 9 caesarean the complications were arose and the complainant experienced pain. So the foreign object must be only placed by the opposite party during the second, caesarean delivery, performed by the opposite parties. Though a weak objection has been raised by the opposite party that they did not use the above roller gauze it was made even without visualize the brand of foreign object and it is unsustainable. Further it is an admitted position the above foreign object was used during the surgery. So there is every possibility and probability to place this negligently in the complainant's abdomen only by the opposite parties. The complainant also alleged that, the doctor and nurses were carelessly performed the operation. But this Commission feels it is a medical negligent on theirpart. The opposite party also contended that the foreign object was not sent for any further investigation and handing over the same directly to the patient is unbelievable and against the medical procedures. For which they relied upon the Judgement of the National Consumer Disputes Redressal Commission, New Delhi, in Sushma Chawla (DR.) .Vs. Harvinder Kaur & Another but factually that case is not applicable to this case.
15. When the foreign object wrongly placed inside the abdomen during surgery is nothing but a clear proof of medical negligence. The principles of Res Ipsa Loquitur is squarely applicable. It would be appropriate to lay down the legal principles which would apply in cases of medical negligence. 'Negligence' has been defined in the Halsbury's Laws of England, 4th Edn.,Vol.26 pp.17-18 and extracted by The Apex Court in Kusum Sharma & Ors..vs.Batra Hospital & Medicl Research Centre & Ors. as under:
"22.Negligence.-Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, 10 whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient"
16. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The Apex Court in Jacob Mathew .Vs. State of 2 (1957) 1 WLR 582:: (1957) 2 All ER 118 Punjab dealt with the law of negligence in respect of professionals professing some special skills. Thus, any individual approaching such as killed person would have a reasonable expectation of a degree of care and caution, but there could be no assurance of the result. A physician, thus, would not assure a full recovery in every case, and the only assurance given, by implication, is that he possesses the requisite skills in the branch of the profession, and while under taking the performance of his task, he would exercise his skills with reasonable competence. Thus, a liability would only come, if (a) either the person (doctor) did not possess the requisite skills, which he professed to have possessed; or (b) he did not exercise, with reasonable competence in a given case, the skill which he did possess. Analyzin the facts in issue with the above quoted discussions, it is found the opposite parties did not exercise, with reasonable competence in this case, the skill which they did possess. This Commission had no doubt to declare the opposite parties have committed medical negligence.
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17. The Hon'ble Apex Court, In Savita Garg .Vs. Director,National Heart Institute(2004-4-CPJ-40(SC)),the Hon'ble Supreme Court held as under:
"Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case, the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated patient in defence to substantiate their allegation that there was no negligence. It is the hospital which engages the treating doctor, thereafter it is the irresponsibility. The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence."
The onus of proof therefore not on the complainant but on the opponents to prove that actions taken were standard and as per approved line of medical science. It can be seen from the overall view of the facts that at relevant point of time (i.e. during surgery) the opposite did not exercise proper care. 12
18. Sequal to the above discussion this Commission found the opposite parties are alone responsible for placing the above foreign object/a roller gauze inside the abdomen of the complainant and they committed medical negligent in this aspect. To determine the compensation many factors are involved, such as pain and sufferings underwent by the complainant from the date of delivery on 30.07.2015 to 19.08.2015 for more than 19 days and the consequential risks to the life of the complainant due to the above negligent act, the medical expenses incurred by the complainant etc. Considering those factors, this Commission fixed an award of Rs.20,00,000/- is just and proper compensation to the complainant. Hence the complaint is partly allowed. The opposite parties are jointly and severally to pay Rs.20,00,000/- towards compensation for mental agony and deficiency of service and also cost of Rs.10,000/- to the complainant and answered the point accordingly.
19. In the result,
1. The complaint is partly allowed.
2. The opposite parties - 1 to 3 are jointly and severally, directed to pay Rs.20,00,000/-towards compensation for mental agony and deficiency of service to the complainant.
3. The award amount is liable to be paid within a month from the date of receipt of copy of this order. Failing which the above amount shall carries interest at the rate of 9% per annum from the date of order till its realization.
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4. The opposite parties - 1 to 3 are jointly and severally directed to pay Rs.10,000/- as costs to the complainant.
Dictated and pronounced in the open court to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 08th day of May 2024.
Sd/-xxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
ANNEXURE List of documents marked on the side of the complainant Ex.A1 09.02.2014 Hospital discharge slip issued by Military Hospital.
to 15.02.2014 Ex.A2 13.11.2014 OP slip issued by Primary Heal Centre, Lakhanpur. Ex.A3 14.11.2014 Sonography report issued by Sharma, X-ray & Ultrasound scanning centre, Kathua.
Ex.A4 20.01.2015 Request for special investigation. Ex.A5 20.01.2015 OP slip issued by the Military Hospital. Ex.A6 22.01.2015 Report of HIV test of the complainant's husband issued by Military hospital.
Ex.A7 28.01.2015 Medical case sheet issued by the Military hospital. Ex.A8 20.02.2015 Medical case sheet 167 Military hospital, Bangalore. Ex.A9 06.05.2015 Antenatal card issued by Command Hospital, Airforce, Bangalore.
Ex.A10 25.05.2015 Laboratory investigation report of the complainant issued by Doctors' Diagnostic centre, Trichy.
Ex.A11 23.06.2015 Thyroid report of the complainant issued by Thyrocare Laboratory, Mumbai.
Ex.A12 30.07.2015 Blood test report of the complainant issued by Child Jesus Hospital, Trichy.
Ex.A13 30.07.2015 HIV test report issued by the Child Jesus Hospital, Trichy. 14 Ex.A14 30.07.2015 Form of request for special investigation. Ex.A15 31.07.2015 Medical bills of Child Jesus Hospital, Trichy.
to 08.08.2015 Ex.A16 02.08.2015 Bacteriological culture report issued by Child Jesus Hospital, Trichy.
Ex.A17 03.08.2015 Sonography report and abdominal scan of the complainant issued by Child Jesus Hospital, Trichy.
Ex.A18 07.08.2015 Laboratory report of Child Jesus Hospital, Trichy. Ex.A19 08.08.2015 Laboratory report of Child Jesus Hospital, Trichy. Ex.A20 08.08.2015 Abdomen scan report of Dr.Senthil Vel Murugan of Kauvery Hospital, Trichy.
Ex.A21 08.08.2015 Discharge summary of Kauvery Hospital, Trichy. Ex.A22 08.08.2015 Multislice CT-Abdomen and Pelvis report issued by Kauvery Hospital, Trichy.
Ex.A23 09.08.2015 Report of laboratory services of Kauvery Hospital, Trichy on Haematology and Biochemistry.
Ex.A24 10.08.2015 Report of laboratory services of Kauvery Hospital, Trichy on Biochemistry.
Ex.A25 12.08.2015 Report of laboratory services of Kauvery Hospital, Trichy on Microbiology.
Ex.A26 13.08.2015 Abdomen scan report of Dr.Senthil Vel Murugan of Kauvery Hospital, Trichy.
Ex.A27 17.08.2015 Report of Multislice CT scan of abdomen, issued by Tamilnadu Medical Services Corporation Limited, Trichy.
Ex.A28 08.08.2015 Medical Bills of KMC Speciality Hospital (Kauvery Hospital), to Trichy.
19.08.2015 Ex.A29 19.08.2015 Peripheral blood smear examination report of the complainant's husband, ultrasound abdomen scan report of the complainant issued by command hospital, Airforce, Bangalore.
Ex.A30 19.08.2015 Letter for handing over of foreign body to the complainant's husband.
Ex.A31 19.08.2015 Medical case sheet.
15Ex.A32 19.08.2015 Investigation form issued by Command Hospital, Airforce, Bangalore.
Ex.A33 19.08.2015 Report of Gravidogram issued by Command Hospital, Airforce, Bangalore.
Ex.A34 19.08.2015 Discharge summary issued by Command Hospital, Bangalore. Ex.A35 22.08.2015 Investigation form, ultrasound abdomen scan report and peripheral blood smear examination of the complainant, issued by Command Hospital, Airforce, Bangalore.
Ex.A36 22.08.2015 Report of B/L Lower Limb.
Ex.A37 24.08.2015 Peripheral blood smear examination of the complainant, issued by Command Hospital, Airforce, Bangalore.
Ex.A38 24.08.2015 Microbiology chart report of the complainant, issued by Command Hospital, Airforce, Bangalore.
Ex.A39 25.08.2015 Peripheral blood smear examination of the complainant, issued by Command Hospital, Airforce, Bangalore.
Ex.A40 25.08.2015 Investigation form of Command Hospital, Airforce, Bangalore. Ex.A41 29.08.2015 Peripheral blood smear examination of the complainant, issued by Command Hospital Bangalore.
Ex.A42 03.09.2015 Form of request for MRI & Ultrasound abdomen test. Ex.A43 03.09.2015 Form of request of MRI & Ultrasound abdomen report of the complainant issued by Command Hospital, Airforce, Bangalore. Ex.A44 07.09.2015 Discharge receipt of the complainant issued by Command Hospital, Airforce, Bangalore.
Ex.A45 23.09.2015 Legal notice issued by the Complainant through her lawyer. Ex.A46 25.09.2015 Peripheral blood smear examination of the complainant issued by Command Hospital, Airforce, Bangalore.
Ex.A47 26.09.2015 Copy of the interim reply issued by the opposite parties. Ex.A48 10.10.2015 Reply notice issued by the opposite parties. Ex.A49 10.10.2015 Notice issued by the District Collector to the complainant. Ex.A50 --- ECG report issued by Command Hospital, Airforce, Bangalore. Ex.A51 --- Newspaper report from Tamil & English dailies. Ex.A52 09.01.2016 Collector's report.
Ex.A53 --- Photographs
Ex.A54 --- Foreign body (gauze cloth) packed in a box.
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List of documents marked on the side of opposite parties. Ex.B1 30.07.2015 Copy of case sheet. (Page Nos.1 to 107). Series Sd/-xxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
17Corrected