State Consumer Disputes Redressal Commission
Bathimamary,Sivagangai Dt., vs Dr. Jim Divakar, Ent Specialty ... on 2 February, 2024
1
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.S. KARUPPIAH, PRESIDING JUDICIAL MEMBER
C.C.No.05/2019
FRIDAY, THE 02nd DAY OF FEBRUARY - 2024
Date of complaint filed on: - 04.02.2019
Date of order pronounced on: 02.02.2024
Bathimamary, W/o. Packiam,
Mangampatti Village, Idayamelur, PO.,
Sivagangai Taluk, Sivagangai District. Complainant
Vs
1. Dr. Jim Divakar,
J. Divakar ENT Speciality Clinic.,
D. No.9, Bose Road,
Sivagangai - 630 561.
2. The Administrator,
R.R. Hospital, Madurai.
D.No. 345, 80-Feet Road,
Anna Nagar, Madurai - 625 020. Opposite Parties
Counsel for the complainant : M/s. K. Murali Shankar, Advocate.
Counsel for the opposite parties 1 & 2: M/s. M. Panneer Selvam, Advocate.
This complaint is coming before me for final hearing on 01.09.2023 and on
hearing the arguments of both sides and upon perusing the material records, this
Commission made the following;-
ORDER
(Dictated and pronounced in the Open Court) THIRU.S. KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. This complaint is filed under section 17 of the Consumer Protection Act, 1986 (Replaced with section 47(1) (a) of the Consumer Protection Act, 2019) by the 2 complainant against the opposite parties 1 and 2 alleging medical negligence and deficiency in service.
2. The gist of the complaint averments is as follows';- The complainant's daughter, one Mariapricilla since died was suffering from breathlessness and she underwent Tracheotomy at the age of 2 years old in the Government Rajaji Hospital, Madurai. Subsequently she took treatment at M/S. KKR ENT Hospital in Chennai. The said hospital advised Mariapricilla to undergo Laser Surgical intervention to correct her breathing problem and to get second opinion she approached the 1 st opposite party for her ailment. The 1st opposite party also advised her to undergo laser surgery. As per the above advice, the complainant's daughter, Mariapricilla was admitted in the 2 nd opposite party hospital on 03.05.2018 and on the date itself a surgery was performed around 8.30 p.m. After the surgery, on 04.05.2018, the very next day complainant's daughter was discharged from the hospital. But the next day itself i.e., on 05.05.2018 the complainant's daughter experienced difficulty in breathing and hence the complainant contacted the 1st opposite party over phone but the `1st opposite party failed to attend the phone call and switched off his phone. Hence, the complainant brought her daughter to the Government Hospital, Sivagangai where she was declared dead. The death of the complainant's daughter was due to carelessness and negligence of the 1st opposite party by hurriedly discharging the patient and therefore the complainant has approached this Commission with this complaint claiming compensation of Rs.25,00,000/- for loss of life, Rs.7573/- towards medical bills paid by 3 her and Rs.65,000/- being the treatment charges collected by the opposite parties, besides cost of Rs.10,000/-.
3. The 1st opposite party filed his written version by contending inter alia that he is a qualified ENT surgeon having sufficient experience. He was approached by the complainant and her daughter on 18.05.2016 and again on 01.05.2018 and on 03.05.2018. It is true that he also advised to undergo surgery and as per the advice, the complainant admitted her daughter in the 2nd opposite party hospital for treatment. Pre-operative tests were carried out and having found the complainant's daughter was fit for surgery, the 1st opposite party performed the surgery at 8.30 p.m. on 03.05.2018. In the surgery process, the old tracheotomy tube was exchanged and Laser Assisted Posterior Cordectomy under general anesthesia with the assistance of anesthetists under aseptic hemodynamic precautions and complete haemostasis done. In the surgery, earlier metal tube which had already been fixed with the patient was removed and Portex Cuffed Tracheostomy tube size 7.5 mm was inserted. The surgery went uneventful and the patient was discharged on the next day itself. It is not correct to allege that the patient was hurriedly sent out of the hospital. The treatment involves only one day observation and hence with specific direction the patient was discharged. Since the patient already got experienced in having metallic tube no further instructions were needed to be given by the opposite parties. Moreover, the surgical particulars were clearly explained and informed consent was obtained. As there is no deviation from the established medical protocol and treatment procedures, the 1st opposite party did not commit any deficiency in service 4 much less he did not commit any medical negligence either doing the surgery or treating the patient. Hence, the complaint is to be dismissed as against the 1 st opposite party.
4. The 2nd opposite party also filed a separate written version relying upon the contents made in the written version filed by the 1st opposite party wherein they further stated that they did not commit any medical negligence and hence the complaint is to be dismissed against the 2nd opposite party.
5. Both sides filed their respective proof affidavits and P.W.1 was cross-examined and Exhibits A1 to A23 were marked on the side of the complainant. Exhibit B1 was marked on the side of the opposite parties.
6. The point for consideration are;-
1) Whether the opposite parities have committed any deficiency in service followed by medical negligence?
2) Whether the complainant is entitled for the relief as prayed for in the complaint?
7. Points 1 & 2:- It is an admitted fact that the complainant's daughter one, Mariapricilla underwent Tracheostomy surgery when she was at the age of 2½ years old child and also consulted with the 1st opposite party doctor as she had experienced pain while breathing. The 1st opposite party doctor suggested to undergo Cordectomy, Laser Assisted Posterior Surgery which was also advised by M/s. KKR ENT Hospital and Research Institute in Chennai as per the version of the complainant. Obviously, the patient was admitted in the 2nd opposite party hospital as per the advice of the 1st 5 opposite party and the surgery was performed on 03.05.2018 around 8.30 p.m. and the patient was discharged on the very next day i.e., on 04.05.2018. On the 2nd post operative day i.e. on 05.05.2018, the complainant's daughter was dead.
From the above pleadings and available evidences, the main allegation of the complainant is that the 1st opposite party doctor did not give proper post-operative care and the patient was hurriedly discharged on the very next day of the surgery from the hospital. Further, she alleged that necessary documents related to the treatment given to the patient were not furnished and when she called on the 1st opposite party on 05.05.2018, he did not respond. From the above averments, I find that the 2nd opposite party did not commit any breach of duty as the hospital management has acted upon the advice of the 1st opposite party and the hospital was not the employer of the 1st opposite party. So, the 2nd opposite party is absolved from any liability in this case.
8. At the same time, this Commission perused the records and found whether the allegation of medical negligence has been proved by the complainant as against the 1st opposite party. This Commission is very well aware of the judgment of Hon'ble Supreme Court of India rendered in the case of "Kusum Sharma & Ors. - Vs - Batra Hospital & Medical Research Centre & Ors. [(2010) 3 SCC 480]" wherein the Hon'ble Apex Court has held as follows:-
I) Negligence is the breach of a duty exercised 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.6
II).......
III) The medical professional is expected to bring 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 case is what the law requires.
9. Keeping those facts in mind, this Commission approaches this complaint. This Commission perused all the materials in this case. The complainant did not make any allegation with regard to the performance of surgery or with regard to obtaining informed consent and other things. Moreover, Ex B1 clearly proves that before the surgery full particulars of surgery were informed and necessary consent was also obtained. The operation notes are very clear and proved that the surgery was uneventful. However, as per the operation notes, the opposite party performed Laser Assisted Posterior Cordectomy Surgery. The earlier metallic tube, so far inserted and accustomed to the patient was removed and in its place Portex Cuffed Tracheostomy tube size 7.5 mm was inserted. Size of the tube has been mentioned as 7.5 mm. The doctor did not scale the size of the earlier metallic tube. As the surgery was uneventful, it is the case of the opposite parties that after surgery the patient was stable and hence she was discharged on the next day itself. So, within 20 hours from the time of surgery, the patient was discharged from the hospital. As per the discharge summary, even though the patient was seems to be stable and normal is it not the duty of the 1st opposite party to ask the patient for staying in the hospital and monitor her health condition? After a new foreign particle was inserted into the body of the patient and if it is a new tube which was not accustomed to the patient it is 7 expected from the Doctor to keep the patient under medical care for furthermore time. Why the Doctor without ascertaining whether the size of the tube is perfectly fitting or not without proper observation, hurriedly sent the patient is the question which is unexplained in this case.
10. Whatever it may be, the patient was declared dead on the very next day of discharge and the death was not due to any other unrelated cause but which is directly related to the surgery and the treatment given by the doctor. To be more specific, the patient was died because of breathlessness as alleged by the complainant. The 1st opposite party did not deny this fact and it is not his case that the patient was died of some other consequences which are not related to his treatment. Moreover, the complainant approached the doctor immediately after the patient had experienced difficulties. The doctor, 1st opposite party also admitted that he contacted the patient's mother and advised her to consult a doctor nearby. It is not his case he enquired about the actual problem of the patient. Having received phone call about unconsciousness because of the surgery, is it not the duty of the doctor immediately to make arrangement to bring the patient under his observation. After all, as per the case of the opposite party at the time he is working as a doctor in Government Hospital at Thiruppathur. Since the patient's residential place is in Sivagangai, the patient can be easily brought to the hospital at Thiruppathur from Sivagangai within 30 minutes. Instead the patient was taken to the hospital at Sivagangai ofcourse declared dead already.
8
11. As a doctor, the 1st opposite party is very well aware of the patient's health condition and so he ought to have advised the complainant to bring the patient for his observation but he miserably failed to do so. This act of the 1 st opposite party itself amounts to deficiency in service. Every doctor owes certain duties to the patients who are in critical stage. The first opposite party informed the complainant to get advice from some other doctors. Apart from that, as already stated, death is not due to any unforeseen or any other connected disease. Death was caused due to the earlier ailment directly related to the treatment given by the 1st opposite party. As per the post-mortem report marked as Ex A17, the following facts are noticed.
1) Moderately built and nourished and
2) Tracheotomy wound present with tube in situ.
Death could have been due to Sudden Respiratory failure as a result of obstruction of Tracheotomy air passage by thick mucus completely blacking the air passage.
So, it is due to formation of mucus and the mucus blocks the air-passage. Apart from that blood was found in the lungs with puss which means blood was crept into the lungs via thorax. So, pus and mucus are formed because of the surgery. Moreover, as already found, the complainant was asked to get discharged immediately on the next day itself. The doctor also time and again tried to impress this Commission by stating that the patient was asked to come for review on the very next day itself and the importance of such review. When review is that much necessary why the doctor asked the patient to leave the hospital on the very next day of the surgery. Further, why he 9 did not keep the patient at least for three days in his custody for observation? All these things cumulatively pointed out that the doctor did not take adequate care post operatively which amounts to negligence on his part. If the doctor was keeping the patient at least for three days under his observation in the hospital, the above complications would not have arisen and the death of 12 years old girl child could have been averted.
12. From the above discussion, this Commission categorically comes to the conclusion that the 1st opposite party was negligent in giving treatment postoperatively and the complaint is partly allowed. Considering the age of the deceased girl at 12 years and other social circumstances this Commission fixed at Rs.10,00,000/- as compensation which will meet the ends of justice with costs of Rs.10,000/-. The 1st opposite party is directed to pay the above compensation and the costs to the complainant. The complaint is dismissed as against the 2 nd opposite party as they are not employer of the 1st opposite party and they have not committed any deficiency in service.
13. In the result, the complaint is partly allowed only as against the 1st opposite party. Accordingly, the 1st opposite party is directed to pay the complainant a sum of
1) Rs.10,00,000/- (Rupees ten lakhs only) as compensation for loss of life of the complainant's daughter and medical expenses incurred for 10 treatment due to medical negligence and deficiency in service committed by 1st opposite party.
2) Rs.10,000/- as costs of the proceedings.
3) The complaint as against the 2nd opposite party is dismissed without costs.
Time for compliance :- one month from the date of receipt of copy of this order, failing which the amount of Rs.10,00,000/- mentioned in column No.1, shall carry interest at the rate of 9% per annum from the date of order till its realization.
S. KARUPPIAH, PRESIDING JUDICIAL MEMBER.
LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT Ex A1 05.12.2012 Birth Certificate of complainant's daughter, Mariapricilla. Ex A2 12.01.2004 Treatment notes book for having taken treatment in GRH, Madurai.
Ex A3 19.07.2004 Lab report of the complainant's daughter, Mariapricilla. Ex A4 20.07.2004 Video - Laryngoscopy Report of Mariapricilla. Ex A5 03.10.2013 Video - Laryngoscopy Report of Mariapricilla.
Ex A6 25.05.2016 SSLC Mark Statement of Maria Pricilla
Ex A7 25.05.2016 School Transfer Certificate of Mariapricilla
Ex A8 16.05.2018 Higher Secondary Course Certificate of Mariapricilla.
Ex A9 19.04.2018 Prescription chit written by the 1st opposite party
11
Ex A10 01.05.2018 Referral letter written by the 1st opposite party Ex A11 02.05.2018 Test-Report of Mariapricilla Ex A12 03.05.2018 Prescription written by the 2nd opposite party hospital Ex A13 03.05.2018 Bill for purchasing medicines for Rs.375/- Ex A14 04.05.2018 Discharge summary of Mariapricilla by the 2nd opposite party Ex A15 28.06.2018 Death Certificate of Mariapricilla Ex A16 05.05.2018 First Information Report registered by Sivagangai Police. Ex A17 06.05.2018 Post-Mortem Certificate of Mariapricilla Ex A18 06.05.2018 Final opinion given by Department of Forensic Medicine, Government Medical College, Sivagangai.
Ex A19 02.08.2018 Legal Notice issued by the complainant to the Opposite Parties Ex A20 06.08.2018 Reply notice issued by the opposite parties to the complainant Ex A21 25.09.2018 Application under RTI, Act given by the complainant to Tahsildar. Sivagangai claiming to furnish enquiry report Ex A22 24.12.2018 Letter written by the complainant to the 2nd opposite party Ex A23 08.12.2018 Series are the medical bills LIST OF DOCUMENT MARKED ON THE SIDE OF THE OPPOSITE PARTIES Ex B1 Series Case Sheet and other medical records with regard to the treatment given to Maria Pricilla in their hospital.
Sd/-xxxxxxx S. KARUPPIAH, PRESIDING JUDICIAL MEMBER.
12Index: Yes/No TCM/SCDRC/Madurai Bench /Orders/Feb-2024