State Consumer Disputes Redressal Commission
Dr.Annapareddy Lakshmi W/O ... vs J.Suneetha W/O Raja Ankal Reddy And ... on 3 January, 2012
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No.2 OF 2009 AGAINST C.C.NO.19 OF 2008 DISTRICT CONSUMER FORUM KADAPA Between Dr.Annapareddy Lakshmi W/o Dr.Devireddy Sreedhar Reddy aged 42 yrs, Occ: Doctor-regd.No.19442, Swetha Nursing Home, Super Bazaar Road, Opp. SBI ADB Proddatur Appellant/opposite party no.1 A N D 1. J.Suneetha W/o Raja Ankal Reddy aged 30 years, R/o Parlapadu Village, Rajupalem Mandal, Kadapa District Respondent/complainant 2. M.Narayana Swamy aged 35 years, Senior Laboratory Technician 5/11, Gandhi Road, Proddatur, Vijayalakshmi Pathalogidical Laboratory Proddatur Respondent/opposite party no.2 Counsel for the Appellants Sri S.Subramanya Reddy Counsel for the Respondent No.1 Sri J.Seshagiri Rao Counsel for the Respondent No.2 Sri Manne Hari Babu QUORUM: SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER
& SRI THOTA ASHOK KUMAR, HONBLE MEMBER TUESDAY THE THIRD DAY OF JANUARY TWO THOUSAND TWELVE Oral Order ( As per R.Lakshminarsimha Rao, Member) ***
1. The first opposite party in the complaint has filed the appeal. The first respondent has filed complaint seeking damages of `2,70,000/- and compensation to the extent of `2,30,000/-against the appellant and the second respondent alleging medical negligence.
2. The facts of the case as per the version of the first respondent are that after undergoing periodical check up by the appellant, she was admitted on 2-08-2007 to the appellants nursing home for delivery. A female child was born at 3.45 p.m. on the same day. The appellant informed the first respondent that conducting cesarean section upon her is necessary as she had delivered her first child through cesarean section. The appellant assured the first respondent that every thing will be fine. The second respondent confirmed the blood group of the first respondent as O-ve After undergoing the operation, the first respondent developed abdominal pain and abdominal distension for three weeks and she was discharged from the appellants hospital on 5-08-2007 at midnight in serious condition. She was admitted to Apollo Hospital, Hyderabad and was discharged on 20-02-2007. The discharge summary evidences that the first respondent was diagnosed with paralytic ileus and subacute obstruction with septicemia. The appellant did not exercise reasonable care and there was contributory negligence on her part. There was plenty of fluid in the abdomen and also blood stained fluid with gross bowel distension. She was kept on Ryles tube aspiration. The respondent no.1 had seizure during postoperative stage due to hypogycuma. She incurred expenditure of `2,70,000/- for the treatment.
3. The appellant did not issue discharge summary . The Apollo Hospital issued report stating that the first respondents blood group is A and the second respondent issued report with the patients blood group as O. On account of ceaserean operation, the first respondent had no scope of children in future. The first respondent got issued notice dated 3-12-2007 to the appellant to pay Rs.5,00,000/- for which the appellant gave reply on 17-12-2007.
4. The appellant resisted the claim on the premise that the earlier delivery of the first respondent was by cesarean section and she had to undergo caesarean section for her next delivery. The appellant is a post graduate in gynecology and she has been practicing at Proddutur for the past 15 years. Twenty four hours after cesarean operation , the patient would be allowed to take water on the advice of the doctor. On the first post operative day, the first respondent was advised to strictly follow the prescribed treatment. On the second day of operation, the appellant was informed that the first respondent consumed coconut water against the advice of the appellant. The appellant advised the first respondent not to consume any other liquid as it would result in complications. On the third day of the operation, the first respondent complained of abdominal pain and immediately the required treatment was administered. Dr.Mahesh, M.S. was summoned and he advised to continue the same medicine and the same line of treatment.
5. The appellant monitored the progress of the patient for every 30 minutes. On the midnight of 4-08-2007, the first respondents husband against the medical advice, forcibly took away the first respondent from the appellants hospital. The appellant warned the first respondent and her husband not to move the patient and her movements must be restricted as also any disturbance will add to further complications of the patient. The first respondent abruptly left the hospital inspite of repeated requests made by the appellant. The first respondent did not request for production of discharge summary at any time. On account of weakening of site of the uterus where operation was conducted, every medical practitioner suggests the patient should not conceive after two deliveries. In all major surgeries the abdominal distention is a common complication. Prior to surgery due to application of anesthesia the bowels become silent i.e, the movement of the bowels will be stopped for some time. In few cases, the movement of the bowels is delayed after the surgery which is not a serious complication.
6. The scan dated 4-08-2007 did not show any abnormality except the bowel distention. It is a clear condition that there was no fluid in the abdomen. the first respondent travelled for 400 kms from Proddutur to Hyderabad under precareuous condition. There may be some bleeding as the patient underwent bodily movements during her travel. The first respondents husband along with his followers threatened the appellant on 30-08-2007 demanding an amount of `5,00,000/-. The appellant lodged complaint against him with the police, Proddutur. The first respondent has not paid the amount of `6,000/- to the appellant.
7. The second respondent has resisted the claim contending that he is running the pathological laboratory at Proddutur for the past 21 years. It is stated that the report dated 5.6.2003 was issued by the second respondent and not the report dated 2.8.2007. The complaint based on the report dated 5.6.2003 is not filed within the period of limitation and the cause of action is totally different. The first respondent has not filed blood group report issued by the second respondent. The second respondent has not treated the first respondent nor there was any blood transfusion to the first respondent basing on the report of the second respondent. Hence, prayed for dismissal of the complaint against him.
8. On behalf of the complainant PWs1 and 2 are examined and marked Exs.A1 to A15. On behalf of the opposite parties RW1 to RW4 are examined and they got marked Exs.B1 and B2.
9. The District Forum allowed the complaint directing the opposite party no.1 to pay `2 lakh towards compensation and `25,000/- towards mental agony.
The complaint against the opposite party no.2 is dismissed.
10. Aggrieved by the order of the District Forum, the opposite party no.1 filed the appeal contending that the complainant was discharged against the medical advice on the midnight of 4.8.2007 and that the Dr.Radhika Nayak of Apollo Hospital who treated the first respondent and examined as PW2 stated that the complications of the nature suffered by the first respondent would occur subsequent to the operation. It is contended that there was no leakage into the abdomen from the site of second surgery of uterus and that the leakage from the uterus was caused due to the removal of adhesion at the Apollo Hospital which was formed after the first respondent underwent her first surgery and it has nothing to do with the second surgery.
11. The counsel for the appellant has filed written arguments.
12. The points for consideration are:
1) Whether there was medical negligence on the part of the opposite party no.1 during the complainants stay in her hospital?
2) To what relief?
13. POINT NO.1 The first respondent was admitted to the hospital of the appellant at 2 p.m. on 2.8.2007. By that time she was pregnant of full term for second time. The first respondents earlier delivery was through caesarean section.
The appellants state that as the earlier delivery of the first respondent was by means of caesarean section, she has come to the conclusion that her second delivery would not be a normal delivery. It is not disputed that the first respondent used to come to the appellant for antenatal check up during her pregnancy for second time. The appellant has fixed for her caesarean section on 2.8.2007. It is not disputed that it is the precautionary measure for any medical practitioner to adopt the caesarean section for a patient who had her earlier delivery by the caesarean operation.
14. The first respondent gave birth to a female child on 2.8.2007.
Till the time the first respondent has undergone caesarean section there is no dispute or quarrel in regard to the standard of skill, degree of care exercised by the appellant. The first respondent states that after she had undergone caesarean operation she developed severe abdominal pain and abdominal distension and she holds the appellant responsible for the complications during the post operative stage. The appellant contends that for 24 hours after the caesarean operation the patient will not be allowed to consume water and after the period of 24 hours only on the advice of the doctor the patient would be permitted to consumer water. As against the medical advice, on the second day of caesarean operation the first respondent consumed coconut water. During the period the first respondent was kept IV fluids and on coming to know about the first respondent consuming coconut water, the appellant asked her not to consume any other liquid as it would result in complications.
15. The first respondent consuming coconut water on the second day of caesarean operation would establish negligence on both the appellant and the first respondent. The first respondent ought not to have consumed the coconut water against the advice of the appellant. Equally the appellant or her staff should not have permitted the first respondent to consume coconut water during the first respondents stay at the hospital of the appellant. Thus, insofar as the consumption of the coconut water by the first respondent is concerned, negligence is exhibited by the first respondent as also the appellant.
16. On the third post operative day at about 5 a.m. the first respondent complained of abdominal pain. The appellant states that she has rendered required treatment and summoned doctor GVG Mahesh MS a renowned surgeon in Proddutur who on his clinical examination of the first respondent advised to continue the same medicine as was prescribed by the appellant. The surgeon advised for continuation of the same line of management and informed the first respondent and the appellant that the pain will subside on its own and that it was a natural complication. The appellant contends that the husband of the first respondent at midnight on 2.8.2007 forcibly took his wife from her hospital and as such the first respondent was discharged against the medical advice whereas the first respondent contends that the appellant had been negligent in administering treatment during the post operative stage and she refused to issue discharge summary on the premise that it would expose her negligence in treating the patient and she had issued a certificate to the effect that the first respondent delivered a female child in her hospital. Except the case sheet there is no evidence on record that the first respondent was discharged against the medical advice. Admittedly the appellant had not issued discharge summary to the first respondent. It is pertinent to note that the appellant has issued a certificate at the time of the discharge of the first respondent from her hospital and she has not issued the discharge summary. Therefore, it cannot be said that the first respondent was discharged against the medical advice.
17. Dr.G.Sundara Rami Reddy has deposed that on 2.8.2007 he was summoned by the appellant for giving anesthesia to the first respondent and he administered the anesthesia. LSCS to the first respondent was successful after the surgery she was shifted to the ward and subsequently he came to know that the first respondent complained of abdominal pain. He had examined the first respondent and found that the bowels were silent which was common complication because of administration of anesthesia. In his cross examination RW2 has admitted that he is neither a surgeon nor gynecologist and his role is confined to administering anesthesia and he has admitted that he did not mention that he advised to the appellant that tube may be inserted to nose into abdomen for discharging unwanted contents in the body of the first respondent. The evidence of RW2 is not of any use to the case of both parties.
18. Dr.Radhika Naik of the Apollo Hospital has stated that she treated the first respondent during her stay in the Apollo Hospital. She deposed that they drained three liters of peritoneal fluid and they did exploratory laparotomy and separated the adhesions and they found the bowel was stuck to the uterus. In those circumstances, RW2 stated that the surgery for the second time was mandatory.
She has opined that septicemia was due to infection and can be cured by antibiotic drugs and that she cannot say whether the appellant had taken the precaution such as giving antibiotics.
By the statement of RW2 that the circumstances do not lead her to the conclusion that the appellant has taken precautionary measures to administer antibiotics for controlling septicemia, the onus lying upon the first respondent has shifted to the appellant.
19. In Savita Garg Vs National Heart Institute 2004 (8) SCC 56 the Honble Supreme Court held that once the onus of proof initially lying upon the complainant is discharged, the opposite party doctor has the obligation to establish that he had taken every possible measure to rule out the negligence in administering his treatment to the complainant. The Apex Court held Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital. Therefore, in any case, the hospital which is in better position to disclose that 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 hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities. The ratio laid down in this case is applicable to the facts of the case on hand.
20. The District Forum has come to the conclusion that the case sheet was prepared by the appellant for the purpose of defending the claim of the first respondent. The appellant has denied preparation of the case sheet afresh. Except the case sheet, there is no other evidence to show that the appellant has administered antibiotics to the first respondent during the post operative stage particularly when the first respondent was suffering from constant abdominal pain. The appellant has not stated in her affidavit as to what treatment she has administered when the first respondent had complained of abdominal pain on the third post operative day except stating that ryles tube aspiration was done and IV fluids continued to be administered. A perusal of the case sheet would show that no antibiotics were administered to the patient except Tortum and Mojhd. PW2 has stated that in case the operation is successful there would not be any complications.
21. It is the contention of the appellant that the first respondent underwent a traumatic journey of 400 kms by road to Hyderabad and due to the journey the first respondent experienced bleeding on account of severe bodily movements.
The statement of the appellant is not supported by Dr.Radhika Nayak who subsequently treated the first respondent and it was not even suggested to her that the bleeding in the abdomen of the first respondent was the result of traumatic journey taken by the first respondent.
22. The appellant has referred to the Atlas of Anatomy by Trevor Weston to contend that the small intestine plays an important role in the matter of digestion as also excretion. The author opined that the front of the uterus in a woman sits on the bladder and the back lies near the rectum. The uterus is supported by the pelvic floor muscles. According to the author, during pregnancy the uterus enlarges and after delivery it can regain its normal size.
23. The first appellant was diagnosed with post opileus - subacute obstruction with plenty of free fluid in the abdomen. She had seizure during post operative period and according to the doctors of the Apollo Hospital, due to hyperglycemia. It was opined that the first respondent suffered pyrexia with low blood pressure due to sepsis and she was treated with antibiotics whereby her condition improved. The contents of the discharge summary coupled with the evidence of Dr.Radhika Nayak and the complications particularly sepsis developed during the postoperative stage would conclusively prove that the appellant was negligent and she had not exercised due care and ordinary skill to the first respondent during the post operative period.
24. The District Forum has awarded an amount of `2,25,000/- in favour of the first respondent. While awarding compensation several factors such as the degree of negligence on the part of the doctor and the negligence of the patient if any, the patients constitution etc.
25. The Honble Supreme Court State of Gujarath vs Shantilal Mangaldas AIR 1969 SC 634. Held the compensation to mean..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression paid would have been more appropriate.
26. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In Charan Singh vs Healing Touch Hospital and others 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.
27. The first respondent was equally responsible for development of complications during the post operative stage. In the complaint it has been specifically mentioned that the negligence on the part of the appellant is a contributory negligence. The first respondent had consumed coconut water on the second day of caesarean section and she had traveled for a distance of 400 kms by subjecting herself to bodily violent movements on account of traumatic journey. Thus looking from any view of the matter, the award of `2,25,000/- is not justified. Taking into consideration of the facts and circumstances of the case, we are of the opinion that a sum of `1,00,000/- on all counts if awarded as compensation, would meet the ends of justice.
28. In the result the appeal is allowed by modifying the order of the district Forum, the opposite partyno.1 is directed to pay an amount of `1,00,000/- to the complainant. The complaint against the opposite partyno.2 is dismissed. There shall be no order as to costs.
MEMBER MEMBER Dt.03.01.2012 KMK*