National Consumer Disputes Redressal
Dr. Prabha Nair & Ors. vs Sri Mohan & Ors. on 20 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4891 OF 2012 (Against order dated 29.09.2012 in First Appeal No. 666 of 2003 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram) 1. Dr. Prabha G. Nair Gyneacologists, KVM Hospital, Cherthala, Alappuzha, Kerala 2. Dr. V.V. Haridas, Medical Officer, KVM Hospital, Cherthala, Alappuzha, Kerala 3. M.P. Mathew Present Administrator KVM Hospital, Cherthala, Alappuzha,Kerala Petitioners Versus 1. Sri. Mohanan, Kunjithayyil House, Kadakkarapally Panchayat Ward-8, Thaikal P O Cherthala, Alappuzha, Kerala 2. Saish, S/o Mohanan, Kunjithayyil House, Kadakkarapally Panchayat Ward-8, Thaikal P O Cherthala, Alappuzha, Kerala 3. Anish, S/o Mohanan Kunjithayyil House, Kadakkarapally Panchayat Ward-8, Thaikal P O Cherthala, Alappuzha, Kerala Respondents BEFORE: HONBLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HONBLE DR.S.M.KANTIKAR, MEMBER For the Petitioner(s) : Mr. Sheji P. Abraham, Advocate Pronounced on 20th May, 2013 ORDER
PER DR. S.M. KANTIKAR
1. The Revision Petition is filed under section 21(b) of the Consumer Protection Act 1986 (The Act) against the final order dated 29.09.2012 passed by the Consumer Disputes Redressal Commission, Trivandrum, Kerala state (herein State Commission) in Appeal No. 666/03.
2. Facts in brief The Petitioners were opposite parties in original compliant in District Forum file No 83/1997 and the Respondents were Complainants as husband and two children of deceased Shobhana.The Petitioners/Opposite Parties (OP) No 1 is Gynecologist and the Petitioner/OP No 2 is Chief Medical Officer and Petitioner/OP No 3 is Administrator of the Hospital. The patient Sobhana wife of Respondent/Complainant undergone delivery on 04.12.1995 at night 12.45 p.m. The duty doctor informed the OP-1 that delivery by vaccum extractor has failed. By 09.00 p.m. the OP-1 conducted episiotomy followed by forceps delivery and a still born baby was delivered. The baby was died by cord compression. Immediately after the delivery the patient had profused bleeding along with expulsion of placenta and due to fatal injury to uterus. The patient Sobhana died on 8/12/1995 at 5.20 pm .The death of male baby and Sobhana was due to reckless act o f OP-1. The OPs did not inform the critical condition of Sobhana relative even after repeated enquiries. Further OPs did not allow the relatives to transfer the patient to the medical college hospital. Subsequently on 08.12.1995 due to severe low blood pressure the patient died at 05.00 p.m. Thereafter, the complainant filed a complaint No.432/95 registered in the local Police Station under Section 304 of IPC. The Complainant also filed the Consumer Complaint No. OP/83/1997 in the District Consumer Disputes Redressal Forum, Alapuzha (hereinafter referred to as the District Forum) claiming an amount of Rs.4, 75,000/- with interest and cost for having lost the affectionate and dedicated wife and children lost their mother. The opposite parties filed a joint version and contented that there are complicated questions of fact and law which need elaborate enquiry and matter is to be decided by Civil Court.
3. On the basis of evidence and the Post mortem report the District Forum held OP 1& 2 for deficiency in service as they have failed to diagnose cause of profuse bleeding earlier and their treatment fell below the standard of medical practice and not taken reasonable care during conducting delivery causing the death of the patient i.e. the wife of Complainant No.1 and mother of Complainant No.2 & 3. The District forum passed an award of Rs.1,60,000/- with 10% interest from the date of petition and cost of Rs.4,000/-.
4. The Session Court acquitted the first Petitioner for the charge of Section 304A of IPC. Against the acquittal a Criminal Appeal No. 203/08 was preferred by complainant before the Honble High Court of Kerala. The Appeal was dismissed on 08.08.2012.
5. The Petitioner preferred an appeal No.666/2003 before the Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram (hereinafter referred to as State Commission).
6. State Commission after hearing the counsel of both parties and on the basis of post mortem report ascertained the relevant important point as cause of death of Sobhana ; the relevant para reproduced as follows;
9. Postmortem examination on the body of Shobhana was conducted at the Medical College, Alappuzha on 08.12.1995 itself. Ext. P2 is the copy of the postmortem certificate. The opinion as to cause of death given is that the death of Shobhana happened due to complications following rupture of gravid uterus. Of the ante mortem injuries, the 3rd injury noted in Ext.R4 is important. It reads:- Rupture of uterus 15 X 10cms obliquely placed involving its full thickness including peritoneum on the posterior surface of the lower segment of uterus communicating at its lower part with the injury no.2, it edges were thinned out with blood clots, dark red in colour. Injuries 2 & 4 were apparently caused when episiotomy was done. So, the cause of death was complications that followed rupture of gravid uterus. The doctor who conducted postmortem examination is examined as PW2. He affirmed the cause of death.
11.According to PW2 who conducted the postmortem examination if forceps is applied by inexperienced hands, rupture can occur. The suggestion was that rupture of uterus can occur due to complications of delivery. The complication is suggested in the light of the ill health of the woman. If that was the case the 1st appellant should have been extra cautious in applying forceps. It was also suggested that rupture can occur when the size of the baby and the size of the uterus is disproportionate. But this contradicts the case of the appellant that child was suffering from IUGR and was not normal size. It is pertinent to notice that the appellants did not even note the birth weight of the still born baby.
13. The survival of patient closely depended on early detection of the rupture of uterus once that happened. PW3 is a radiologist. According to him 3rd injury noted on Ext.P4 can be diagnosed using ultra sound scanning. If there is strong bleeding also the injury can be revealed through scanning. By scanning it can be revealed whether there is fluid inside the abdomen and that fluid could be blood. The suggestion put to PW3 is that there are many possibilities for the cause of bleeding. These are rupture due to tubal pregnancy rupture of uterus, bleeding disorders etc. but the context in which bleeding occurred rules out the possibility of tubal pregnancy which was never suspected. It was a delivery after full term. Bleeding disorders were never suspected. Then the only possibility was rupture of uterus. Though the PW3 is not a Gynecologist his version that collection of fluid in the abdomen can be revealed through ultra sound scanning cannot be questioned.
7. The State Commission dismissed the appeal FA 660/1999.
8. Hence, aggrieved by the order of State Commission this present Revision Petition filed.
9. Learned counsels appearing for both the parties made oral submissions and vehemently reiterated the submissions made by the two parties before the State Commission.
10. We have carefully considered the entire materials placed on record, the contentions of both the parties and also referred several standard medical texts. OP 1 contended that, the mortality rate in babies with IUGR is about 6 times more than the normal newborns. Most of the babies die within 24 hours. Anaemia is one of the causes for maternal death. The patient Sobhana was died because of numerous complications which was mostly due to the irresponsible acts and omissions on the part of the lady and her husband who did not care for anemia. Hence, the complainants were not entitled to get any compensation and there was no negligence on the part of the opposite parties.
11. On perusal of evidence on file and the post mortem report ; question before us that whether the OP 1 is negligent? Whether the doctors at OP hospital acted reasonably in accordance of Standards of Medical Practice? Whether act of OP was a negligent act?
The hospital case sheet and notes reveals the sequence of events which led to deaths of two lives a baby and mother.
12. OP-1 was` examined as RW-1 deposed as Sobhana was 3rd para ( 3rd pregnancy) consulted OP-1 on 18/9/1995 with the history of 30 weeks pregnancy but the clinical assessment by OP-1 revealed uterus was of 26 weeks size. Patient was anemic i.e. in poor state of health. She was treated for anemia by injection Inferon ,vitamins and dietary supplements and one uint of blood transfusion was given prior to delivery. On 4/11/1995 a patient was in labour room with full monitoring ; at 9 pm duty doctor called OP-1 as vaccum delivery failed. Thereafter, OP-1 carried out outlet forceps delivery and delivered still born baby with cord tight around neck. The anesthetist tried to resuscitate baby but did not help. To stop the bleeding of Sobhana injection IV Methergin was given and injection Pitocin drip was started and cervical tear was repaired and blood transfusion also given. During cross examination OP 1 did not answer the questions specific to diagnosis of rupture of uterus and its management.
13. On perusal of Annexure A 8 , the case sheet placed on page case notes reveled the condition of patient as follows;
4/11/1995 :
9.10 pm baby delivered by outlet forceps by OP1 Placenta 9.30 pm expelled entire, bleeding within normal limit.
On examination cervical tear +,Rt fornix tear seen.
While suturing patient went in to shock.
Pulse feeble. Xxxxxxx.
5/11/1995 :
12 (00hrs): Patient still bleeding,xxxxxxx.
12.20 am Under General anesthesia, cervical tear sutured. Vaginal pack with 3 roller gauze and one sponge.
Bleeding controlled.
1245 am: xxxxxxxxxx. Patient had Tachycardia and tachypnea. Xxxxx, Ryles tube aspiration to reduce distension.
9.20 am Patient has dyspnoea, Tachycardia, tachypnea.
9.45 am Bilateral crepts+,acidosis + 4.30pm Patient dyspoenic.
On 6
-7/12/1995 the periodic entries in case paper showed that patient has dyspneoic episodes and there was Tachycardia ( Pulse rate was more than 120/ min) and tachypnoea (Respiratory rate was more than 40/min)between and there was distension of abdomen still persisted.
On 7/12/1995, at 6pm as per Dr.Bhats opinion patient was diagnosed as Extra renal uremia, septicemia. There was polymorphonuclear leukocytosis (Total count = 28,000/cmm; Granulocytes 94%). At 8.15 pm did ultra sound scan which showed bilateral pleural effusion,free fluid in peritoneal cavity.. At 9pm, USG guided pleural tapping done by Dr.Divekar which showed aspiration of 120 ml on Rt side and 80 ml on left sided serosangunous fluid aspirated.
Patient was having tachycardia and tachepnoea, distension of abdomen..
On 8/12/1995 at 12.30 am the CMO seen the patient , the patient was continuously dyspnoeic, ultimately died at 5.20am.
14. Careful analysis of events stated in para (13 supra) it is apparent that OP was negligent and liable for the death of Sobhana and her baby.
i) The patient Sobhana was in critical condition during delivery on 4/11/1995 because of tears in Cervix and Rt fonix tear with bleeding. Usually , such tears are not possible in hands of the experienced obstetrician like OP Dr. Prabha Nair. The experienced doctor will apply forceps only after full dilation of cervix. In the case on hand it appears that, the duty doctor applied the forceps due to which the cervix pulled by traction leading to extension of cervical tear up to the fundus of uterus i.e. rupture of uterus. The PM report confirms the antemortem injuries as No.1 & 2 as rupture. Further, OP has not produced any evidence to establish the qualification and experience of duty doctor. If we presume the OP has performed forceps delivery after getting call from duty doctor; it is clear that she was negligent in application of forceps which resulted in cervical tear subsequently rupture of uterus. Hence, the submission of OP that she herself conducted forceps delivery is not trustworthy
ii) After delivery, the OP should have initially assessed the cause of cervical taer and possibility of rupture of uterus. The patient had pain , distension of abdomen , tachypnoea and tachycardia for 5 days i.e till her death The blood test showed polymorphonuclear leuocytosis ( 90% ) which is the diagnostic features of peritonitis due to rupture of uterus. It indicates the OP failed to diagnose such complication in early stage. The ultrasound and X-ray findings clearly revealed the hemorrhage in abdominal cavity and also fluid in pleural cavity. Despite of all above clinical signs of perforation the OP continued to treat the patient vaguely for 5 days without arriving proper diagnosis. ; which is negligence on the part of OP-1 who failed to take reasonable care to diagnose the rupture of uterus.
15. Another important point for discussion is evidence of PW 2 (Annexure A4) the doctor Dr.P.Babu ,Assistant Professor in Forensic Medicine,Medical College,Kottayam who conducted the post mortem of deceased Sobhana and issued the PM report (Exhibit P2). Dr.Babu in his evidence stated that The cause of death-death was due to complications following rupture of gravid uterus in respect of injury no.3. Gravid uterus means in the stage of pregnancy. Ext. P4 true copy of the original signed by me. It may also happen if forceps are applied by inexperienced hands.
The PM report describes findings of injuries as follows:
B. INJURIES (ANTEMORTEM) Multiple infected superficial lacerations over an area involving the right labia minora.
1.
Sutures infected lacerated wound 4 cm long obliquely placed on the right posterior surface of the cervix.
2. Rupture of uterus 15 X 10 cm, obliquely placed involving full thickness including peritoneum on the posterior surface of the lower segment of uterus, communicating at its lower part with the injury No.2. Its edges were thinned out with ragged appearances. The ruptured area was seen covered with blood clots, dark red in colors.
3. Sutured infected surgical episiotomy wound 5 cm. on the right medial-lateral part of the vagina.
C OTHER FINDINGS Abdominal cavity contained 2.5 ltrs of fluid blood and 500 gm. of blood clots (dark red colour). Air passages pale anmd contained illegible frothy fluid. Right and left chest cavities contained 100 and 90 ml of straw coloured fluid respectively.
After going through all records, deposition of witnesses on both sides, we are in opinion that the death of Sobhana was due to not proper care and diagnosis of crucial complication. The OP -1 is Specialist as Gynecologist and also few doctors of in OP-3 hospital including CMO have seen the patient but nobody suspected commonest cause of distension of abdomen by hemoperitoneum . The early diagnosis in this case was needed and would have saved life of patient. At least OP should have taken second opinion to know the cause of distension of abdomen from any other specialist or from Medical College which was located in their own city. But , the OPs failed to diagnose rupture of uterus and treated casually for five days.
16. The death of baby is due to non prudent approach of OP-1. As the baby was of IUGR and patient was anemic why the OP-1 did not prefer elective Cesarean Section operation and allowed vaginal delivery. The fetal heart sounds (FHS) were noted till 8.30 pm and thereafter disappeared upon which the OP should have performed LSCS in such fetal distress. The vaccum failure and forceps application in this patient was a wrong decision. Several medical texts denotes that early diagnosis complication of forceps delivery and prompt management is life saving for mother and baby. The baby was not sent for Post mortem therefore, delivery of dead baby also creates suspicion of negligence by OP during forceps application.
17. The principles of what constitutes medical negligence is now well established by number of judgments of this commission as also the Honble Supreme Court of India, including Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. One of the principles is that a medical practioner is expected to bring a reasonable degree of skill and knowledge and must also exercise a reasonable degree of care and caution in treating a patient. This Court in Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when consulted by a patient owes him certain duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
18. Therefore, we are in view that there is deficiency in service by OPs leading to death of mother and baby. This is a deficiency in service resulted in medical negligence for which OP are liable for the loss of two lives ,mental agony and psychological trauma. Hence, pass the following ORDER;
The revision petition is dismissed. The petitioners herein are directed to pay Rs.1,61,000/- with interest @ 10% per annum from 11/3/1997 i.e. the date of filing complaint before District Forum and cost of Rs.4,000/- . The petitioners have wasted the precious time of District Forum, State Commission and this Commission. We therefore impose punitive cost of Rs.1,00,000 which is to be paid to the complainants within 45 days ,failing which it will carry interest @ 9% till the recovery.
....
(J.M. MALIK J.) PRESIDING MEMBER .
(S.M. KANTIKAR) MEMBER