State Consumer Disputes Redressal Commission
Fahim Care Hospital vs Mohammed Shafeeuddin on 20 February, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION : HYDERABAD.
FA.NO.733 OF 2021
AGAINST ORDERS IN CC.NO.381 OF 2020, DISTRICT
CONSUMER COMMISSION-II, HYDERABAD
Between:
Fahim Care Hospital
(Correct name Fehmi Care Hospital)
Represented by Dr.L.Fahmida Banu
(MD,DGO,DNBE,FR,COG,FLCOG)
Managing Director & Consultant
Minimum Invasive Surgeon,
Senior Obstetrician & Gynaecologist,
Fehmi Care Hospital, 37, Tahir Villa,
Yousufguda, Hyderabad - 500 045.
Telangana.
.....Appellant/Opposite Party
And
Mohammed Shafeeuddin,
Son of Mujeebuddin,
Aged about 38 years,
Occupation: Business,
Resident of: H.No.4-7-25/2/9,
Sangareddy, Telangana,
The Complainant is representing his
Injured minor daughter Mahavish Eclai,
D/o.Mohammed Shareefuddin,
Aged 2½ years baby, as her father
& natural guardian.
.....Respondent/Complainant
Counsel for the Appellant/Opposite Party: M/s.S.R.Mahajir
Counsel for the Respondent/Complainant: Sri Arun Prashant
QUORAM:
HON'BLE SMT.MEENA RAMANATHAN...LADY MEMBER
& HON'BLE SRI K.RANGA RAO...MEMBER-JUDICIAL MONDAY, THE TWENTIETH DAY OF FEBRUARY TWO THOUSAND TWENTY THREE ******* Order : (Per Smt.Meena Ramanathan, Hon'ble Lady Member)
1. This is the appeal filed U/s.41 of Consumer Protection Act,2019 praying this Commission to send for the records of the 2 case and after examining the legality of the proceedings, may be pleased to set aside the order of the District Consumer Disputes Redressal Forum-II, Hyderabad in Consumer Case No.381 of 2020 dated 30.09.2021 and consequently dismiss the complaint with costs through out.
2. For the sake of convenience, the parties are described as arrayed in the complaint. The Appellant is the Opposite Party and the Respondent is the Complainant in CC.No.381/2020.
3. Briefly stated, the facts are that the Complainant‟s wife Mrs.Syed Razia Sultana was pregnant and visited the Opposite Party hospital on 21.02.2019 when her pregnancy was 37 weeks. She was admitted in the hospital and advised for a scan and was discharged on 02.03.2019. Again on 07.03.2019, she visited the Opposite Party hospital with labour pains and delivered a healthy baby girl through caesarean section. The mother and daughter were in good condition.
4. On 08.03.2019, the duty doctors and nurses took the baby for bath. While giving bath, they mishandled the baby due to which the right elbow of the baby got dislocated. The hospital staff admitted their negligence and promised the Complainant to take the responsibility and rectify the elbow of the baby and subsequently summoned an Orthopedician from Apollo Hospital who advised to take an X-Ray. The X-Ray was taken on 8th, 9th and 10th of March,2019 and dislocation on the right elbow was confirmed. A plaster of Paris bandage was fixed to the elbow of the baby.
5. It is the allegation of the Complainant that Opposite Party had suppressed the said fact in the discharge summary issued on 13.03.2019 and the Complainant was advised to visit after 3 months. On 29.03.2019, the Complainant visited the Opposite Party hospital with her baby, but the hospital authorities refused to treat the child unless the heavy bills are paid. The dislocation was not adjusted despite paying the amount.
36. The Complainant took the child for a second opinion to Germentin Hospital and it was found in X-Ray that the child‟s elbow got a GUN STOCK DEFORMITY. The Complainant alleged that the negligence of the Opposite Party led to the life time deformity of the child. Hence, the complaint.
7. The Opposite Party filed their written version and stated that the Complainant‟s wife visited the hospital with 37 weeks pregnancy and was sent back with an advise to come after completion of 38 weeks. On 07.03.2019, when she visited with labour pains, the Opposite Party immediately attended by Gynaecologist and caesarean section was done with all protocol and precautions. During surgery it was found that the urinary bladder was densely adherent to the uterus and it was skilfully dissected and separated and the uterus was successfully incised and a healthy baby girl was delivered. The mother and the child were in good condition.
8. It is further stated that on 08.03.2019 in the evening hours, it was noticed by an attender of the hospital that there was a swelling on the baby‟s right elbow and informed the duty doctor. Immediately X-Ray was advised and Dr.Mohan Krishna, an Orthopedician from Apollo Hospital was consulted who evaluated the condition of baby and applied plaster of Paris to the baby‟s elbow.
9. The Opposite Party further stated that the bath was never given to the baby but only sponging was done by the trained and skilled staff of the hospital. Further, the injury caused to the baby is subluxation and not dislocation due to negligence and mishandling by the parents and relatives of the baby. It is stated that the Complainant‟s wife had previous history of caesarean wherein she gave birth to triplets out of which only one child survived. As such, this time the caesarean was successful and a healthy baby was born, there were too many relatives visiting the baby who failed to follow the norms and might have mishandled 4 the baby which resulted in the injury. Further, the Complainant had not paid the bills for the treatment done and filed the complaint with malafide intention only to extract money from the Opposite Party. With these pleadings the Opposite Party seeks dismissal of the case.
10. Before the District Forum, the Complainant filed evidence affidavit and Ex.A1 to A10 and MO1 are marked. The Opposite Party filed their evidence affidavit. Ex.B1 to B24 are marked on their behalf.
11. The District Forum after considering the material on record partly allowed the complaint directing the Opposite Party to pay a compensation of Rs.5,00,000/- for the negligent acts, thereby causing inconvenience and hardship to the Minor Child; to pay Rs.10,000/- towards costs of litigation; time for compliance is 45 days from the date of receipt of the order.
12. Aggrieved by the said order of the District Forum, the Appellant/Opposite Party filed the appeal contending that the Commission below had failed to consider the following:
The Forum below erred in not taking into consideration the entirety of Ex.B5 and relying on Ex.A7 only. The Forum below failed in not considering the fact about many relatives of the family handled the baby but blamed the hospital without ascertaining as to whose negligent acts the incident of dislocation of the right elbow of the new born baby was caused.
The issue is not whether the injury is admitted or not, but whether in the absence of ability to establish how it occurred can the Forum below arrive at a fair conclusion. The Forum below erred in holding that by not summoning the Doctor who issued Ex.A10 for CE, the Opposite Party has allowed the said exhibit to stand established.
13. The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any 5 error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief?
14. Heard both sides and perused the material on record.
15. The Respondent/Complainant is the father of the new born baby who was allegedly injured at the elbow and the allegation is that the staff at the hospital caused the injury while they were giving the baby a bath.
16. The background of the case is as follows:
The mother of the baby approached the Opposite Party hospital for her 2nd pregnancy and when she was in the 9th month. Her previous delivery - a caesarean was in a different hospital, where she was carrying triplets and during the delivery only one child survived. This was therefore, a high risk pregnancy.
Ex.A1 reveals that the mother was 36 weeks plus pregnant when she approached the Appellant/Opposite Party hospital and the record clearly shows that she was an „unbooked‟ patient and soon after on 07.03.2019 she was admitted with complaint of labour pain.
Ex.A3 - is the discharge summary dated 13.03.2019.
Patient/mother of baby was admitted on 07.03.2019 and delivered an „alive female baby‟ at 18:41 p.m. weighing 2.9 kgs. Baby cried well at birth and was seen by a Pediatrician and advised neo-natal care.
Ex.A4 to A6 are X-Ray film of the baby (of Razia Sultana). Ex.A4 is dated 08.03.2019, 09.03.2019 and 10.03.2019, Ex.A5 is dated 29.03.2019 Ex.A6 is dated 21.10.2019 Soon after birth, the baby‟s elbow was injured and in this respect we refer to Ex.A7. This is not a letter sent by the Appellant/Opposite Party/Hospital but it is recorded by the Complainant himself stating that it is an "Assurance letter sent on phone". Apparently, there was a minute dislocation of the elbow 6 and this was noticed on the second post-operative day by the doctors of the Opposite Party hospital. The baby was treated by an Orthopedician and the X-Ray films are evidence of this issue being addressed with the consent of the Respondent/Complainant/father.
The Respondent/Complainant has also lodged a FIR against the Opposite Party Hospital on 30.10.2009 vide Ex.A9. Investigation was refused and transferred to police station. The outcome of the report is pending.
17. The case of the Respondent/Complainant is that at the time of delivery his baby was hail and healthy but on the second day after she was taken for a „shower‟, due care was not taken due to which her right elbow was dislocated. The fact that her right elbow was dislocated is not in dispute but the issue that requires out attention is, how did it happen?
We have carefully perused Ex.B4- the progress sheet.
On 08.03.2019, the 2nd day post-delivery at 11 A.M. baby was active and sucking good.
On 08.03.2019, at 5:30 P.M. mild swelling at elbow (rt) was noted.
At 6:45 P.M. the baby having right elbow swelling, informed Dr.Sandeep, advised X-Ray of shoulder with elbow - paracetamol drops.
18. The new born babies in most hospitals are bathed/sponged in the mornings. In the instant case, the baby was seen by Dr.Sandeep, the Pediatrician on 08.03.2019 at 11:00 A.M. and the baby was active. The swelling was noticed later in the evening at 5:30 P.M. as evidenced by the hospital records. To allege that it happened due to the negligence of the doctors/attending staff while bathing the baby is not sufficiently substantiated vis-à-vis the records submitted.
719. The baby was referred to Dr.A.Mohan Krishna on the same day i.e., 08.03.2019 at 10 P.M. In all fairness the Appellant/Opposite Party hospital did not delay the treatment to the infant. As soon as the swelling was noticed, they have advised the family and parents. The advice provided by the Orthopedician reads as follows:
"Referral sought for painful - right elbow O/B - Right Elbow - Deformity/swelling Not able to elicit any tenderness finger movements.
X-Ray - dislocated elbow with xxx alignment adhered Advice: "They were also explained of Distal Humeral Physeal Injury".
20. This point was never discussed in depth by the Forum below. Physeal fractures of the distal humerus are rare in the neonate and can be easily missed or mis-diagnosed. Early diagnosis and treatment can be challenging. Obstetric factors such as difficult pregnancy and delivery, breech delivery or emergency caesarean can induce this injury. Sometimes congenital diseases can also be contributing factors. Since the injured life is not yet ossified in the neonate, it makes it difficult to detect the injury, however in the instant case, the diagnosis was prompt and due care given diligently.
21. The Forum below gravely erred in not considering Ex.B22, the report submitted by the Orthopedician Dr.A.Mohan Krishna. We reproduce the relevant portion to emphasis:
"This finding is related skeletally immature bone in new born and not by mishandling of hospital staff.
Highly acclaimed peer reviewed medical journals have documented that this condition usually not even diagnosed early, but in this case it was diagnosed and timely treatment was done. These conditions do not cause serious discomfort and auto heals due to remodelling of bone which happens with age. In certain cases it happens in new born and it is not even noticed and self corrects."
The report is further substantiated by another very senior and reputed Orthopedician, Dr.Jairamchander Pingle vide Ex.B23.
8"XXX She was referred to an Orthopedic Surgeon who reduced it under GA on 08.03.2019 and immobilized it after consent and counselling the patient's parents. The post-operative X-Ray shown to me shows good reduction of the dislocation.
In my opinion, the baby was treated well and adequately and there is no negligence in the management of the subluxation from the records shown to me".
22. Every patient‟s condition cannot be termed medical negligence. A Doctor can only be held liable for medical negligence as a direct or proximate result of their acts and not simply because things went wrong due to mischance or misfortune.
23. There should be sufficient evidence to accuse a medical professional of such negligence. The doctors are volunteers who take the risk of dealing with the most intricate, delicate and complex machine on earth - the human body. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event and negligence. However, there is a growing tendency to accuse the doctor of an adverse or untoward event.
24. There is a growing tendency among the public to accuse medical practitioners causing professional and emotional damage. The prosecution must prove culpable and gross negligence beyond a reasonable doubt.
25. The Forum below failed to appreciate the medical notes presented in the record and failed to understand the crux of the issue. From the foregoing discussions, we find the impugned order erred in holding the Appellant/Opposite Party hospital liable where medical negligence cannot be attributed. The impugned order is liable to be set aside.
926. In the result, the appeal is allowed and the impugned order is set aside. The Appellant/Opposite Party is permitted to withdraw the statutory deposit made to the credit of this appeal along with accrued interest thereon.
SD/- SD/-
______________________________
LADY MEMBER MEMBER-J
Dt: 20.02.2023
UC