State Consumer Disputes Redressal Commission
Laisa Beevi. L, vs Dr. G.M.M. Kumar, on 5 February, 2011
Daily Order
Complaint Case No. CC/07/8 Laisa Beevi.L Vs. Dr.G.M.M.Kumar and Others BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: Dated : 05 Feb 2011 ORDER Disposed as DISMISSED.
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
CC No. 08/2007
JUDGMENT DATED: 05-02-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
COMPLAINANT
Laisa Beevi. L,
Residing at Kunnilveedu, Korani,
Edakkodu Village, Attingal, Thiruvananthapuram.
(Rep. by Adv. Sri. Mudakkal G.S. Satheesan Nair)
Vs
OPPOSITE PARTIES
1. Dr. G.M.M. Kumar,
Pediatrician, V.V. Clinic,
Near Govt. College, Attingal, Thiruvananthapuram.
2. Dr. V. Mohandas,
Managing Director and Chief Medical Officer,
V.V. Clinic, V.V. Clinic Road, Near Govt. College Attingal,
Attingal, Thiruvananthapuram.
3. V.V. Clinic, Attingal,
Represented by its Managing Director and Chief Medical Officer,
V. Mohandas, V.V. Clinic, Near Govt. College Attingal,
Attingal, Thiruvananthapuram.
4. Mujeeb. A,
Kunnilveedu, Korani,
Edakkodu Village, Attingal, Thiruvananthapuram.
(R1 to R3 rep by Adv. Sri. K. Murlidharan Nair & others )
JUDGMENT
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT The complaint is filed alleging negligence on the part of the first opposite party Paediatrician that resulted in the death of the child of the complainant.
2. The case of the complainant is that she is the mother of the deceased female child who died at the age of 1½ years on 01-04-2006. The complainant's daughter was taken to the 3rd opposite party hospital with a complaint of severe fever on 24-03-2006. The 1st opposite party being the Paediatrician of the hospital attended her. The deceased had been treated by the opposite party even earlier. On that particular day, the 1st opposite party did not ask anything about the complaint of the patient, but simply weighed her. Thereafter he put his hand on the forehead of the complainant's daughter and noted that she had fever. The weight was recorded as 10 kg and the temperature as 1010 Fahrenheit. When the complainant tried to explain the complaint of the child; the 1st opposite party in a callous, negligent and belittling manner told her that he knew what the problems were and asked the complainant to give the medicines he was about to prescribe. Considering the fact that the doctor was a Paediatrician with foreign degrees and the fact that he had treated the child many times before, the complainant placed genuine faith and trust in the 1st opposite party's judgment and overlooked his belittling and negligent attitude. The child was given medicines for five days and asked to come for review after the said period. On 27-03-2006, the complainant's daughter developed an unusual cough and pain on the chest and immediately the complainant took her to the 1st opposite party for consultation. He was not happy on the complainant consulting him, when he had specifically asked her to come for review only after 5 days since 24-03-2006. He carelessly informed the complainant that when a course of medicine is prescribed, it will take effect only after the prescribed period and the problems would subside only by then. When the complainant insisted for examining the child - he reluctantly examined and informed the complainant that her daughter has chest infection, which was common. And he also advised the complainant, to do some tests including a long list of laboratory tests like X-ray, Echo, blood test etc. and asked her to do the same through Dr. Girija's Diagnosis Lab, Attingal; though facility for the same were available at the 3rd opposite party hospital itself. Immediately the complainant rushed to the said Dr. Girija's Laboratory and conducted the tests and again came back to the 1st opposite party with the result on the same day. The 1st opposite party was not happy to see the complainant, and was irritated. In a shoddy haphazard manner, without going through the results, he hurriedly examined the chest of the complainant's baby and jotted down something and left the room. The complainant was asked to come the next day. On the next day the serious coughing persisted and the fever did not subside. The baby was getting weak, day by day, and so the complainant asked the doctor what the problem was. He again informed the complainant that the problems will be over as soon as the course of medicines was over. On 31-03-2006 the condition of the child was even more worse, and it deteriorated. The complainant once again rushed to the 3rd opposite party hospital and she was informed by the duty doctor that the 1st opposite party has not come. So the complainant immediately went to the house of the 1st opposite party and again medicines were prescribed for two more days. Later that evening at around 7.30 pm, the child coughed and vomited blood. The complainant once again went to the 1st opposite party's house, but he was not there and so she went to the nearest hospital by name Attingal Multi Specialty Hospital with the lab test results and X-ray. The doctors over there diagnosed that the child had internal bleeding and immediately advised the complainant to go the SUT Hospital, Trivandrum. The complainant reached the SUT Hospital at 10.35 pm on 31-03-2006 and consulted the doctor with all records and X-ray. With one glance at the X-ray, that was taken on 27-03-2006, the doctor exclaimed that there was an open safety pin in the thoracic region of the child and expressed severe shock on how the 1st opposite party had overlooked such a very clear and noticeable detail in the X-ray and recommended immediate surgery. Another X-ray was taken to correctly identify the present position of the pin. However, when the child was being taken for emergency surgery, she vomited several bouts of blood and died at 12.05 am on 01-04-2008. It is submitted that the 1st opposite party was treating the complainant's child since 24-03-2006 and on his advice the X-ray was taken on 27-03-2006. The open pin is clearly seen in the X-ray taken on 27-03-2006 itself, but the 1st opposite party due to his carelessness, callousness and negligence omitted to see it. There is wanton negligence on the part of the opposite parties. Opposite parties even failed to exercise a reasonable degree of care and skill, which resulted in the death of the complainant's child, aged 1 ½ years. The 1st opposite party was working in the 3rd opposite party hospital of which the 2nd opposite party is the Managing Director and Chief Medical Officer, Thus, the 2nd and 3rd opposite parties are vicariously liable for the negligence on the part of the 1st opposite party. Thus, opposite parties 1 to 3 are jointly and severally liable for the negligence caused resulting in the death of the complainant's child. The complainant had caused to issue a legal notice, calling upon the opposite parties to pay compensation, but they have replied stating absolutely false and frivolous statements. The complaint is filed for getting rupees twenty five lakhs as compensation for medical negligence and deficiency of service from the opposite parties 1 to 3.
3. The contentions of the written version of the opposite parties 1 to 3 in brief are:
The complaint is not maintainable either on law or on facts and is liable to be dismissed. It is frivolous, vexatious and devoid of truth and bonafides. There is no negligence or deficiency of service as alleged by the complainant and that the complainant is not entitled to get any reliefs as prayed for in the complaint. All averments in the complaint are denied. The 3rd opposite party is a well-known hospital. The actual facts relating to the treatment of child is as follows: The 1st opposite party is a consultant Paediatrician of the 3rd opposite party hospital. The complainant with her child Muhimina aged 1½ years came to the out-patient department of the 3rd opposite party hospital on 24-03-2006 complaining of fever since 3 days. The child was examined by the 1st opposite party. On examination, the temperature was recorded as 1010 Fahrenheit and her throat was congested. She was treated as a case of upper respiratory tract infection and requisite medicines were prescribed for 5 days. However, the complainant brought the child for review again on 27-03-2008. According to her, the fever had subsided but the child was coughing and vomiting the medicines only and not the food. On examination, the temperature was normal and chest was clinically clear. However, since the child was coughing, the 1st opposite party advised routine blood investigations, along with peripheral smear and total platelet count and a chest X-ray. The blood investigations revealed that the child was having mild hypochromic mycrocytic anaemia. The chest X-ray showed some hilar infiltration on the right side, which is usually seen in respiratory tract infection. Keeping in mind that the child was only 1½ years old and that she was vomiting the medicines, the 1st opposite party advised the complainant that the child should be hospitalized, to assess the progress of the disease, by repeated examination and if necessary further investigations. Moreover, since the child was vomiting, the mother was informed that it is best that the medicines be administered parentarally. However, the complainant refused to admit the child, despite the 1st opposite party repeatedly informing the need for hospitalization. The 1st opposite party informed the complainant that she should bring her daughter for review immediately, if there was any deterioration in the condition. Despite giving all the advice and instructions, the complainant did not hospitalize the child till her death in SUT Hospital, Pattom. The allegations that when the complainant brought the child to the 2nd opposite party hospital on 24-03-2006, the opposite party did not take history, nor did he examine the child, but only weighed the child and put his hands on the forehead is false and hence denied. A detailed history of the child was taken and she was examined thoroughly. The patient's temperature was recorded using a thermometer and throat showed congestion. A provisional diagnosis of upper respiratory tract infection was made. The patient was weighed because the medicines prescribed is according to weight. It is not possible to measure temperature as 101 degree Fahrenheit merely by putting a hand on the forehead. These averments are made with an ulterior motive. The 1st opposite party has been treating the child ever since she was 4 - 5 months old. This clearly indicates that the complainant had confidence in the 1st opposite party. The averment that the patient developed cough and chest pain on 27-03-2006 is only partially true and hence not admitted. She was brought to the 3rd opposite party hospital with cough and vomiting of medicines only and not the food. The averment that on 27-03-2006, the 1st opposite party was not happy to see the complainant and that he had asked her to wait 5 days after taking medicines, is false and hence denied. The 1st opposite party has made no such statement. The temperature was reduced and the chest was clear. Since the patient was coughing, blood examination and chest X-ray was advised. According to the complainant the patient was vomiting only medicines and not the food. The blood investigations revealed that the child was having mild hypochromic mycrocytic anaemia. The chest X-ray showed some hilar infiltration on the right side, which is usually seen in respiratory tract infection. As mentioned above, the fever had come down but since the patient was having cough the 1st opposite party certain blood tests and X-ray. The complainant refused hospitalization of the child. The allegation that the 1st opposite party advised to do investigations and X-ray form a private lab, though the facility for the same was available in the 3rd opposite party hospital itself is false and misleading. The 1st opposite party had suggested Dr. Girija's Diagnostic Lab, since there is a pathologist therein. Peripheral smear examination requires the services of a pathologist. There was no facility for conducting blood platelet count test in the 3rd opposite party hospital and hence the patient was referred to Girija's Diagnostic Laboratory for investigation. The allegation that the 1st opposite party was irritated to see the complainant again and that he had not gone through the results and merely jotted down something in the paper and left the room are false and denied. The 1st opposite party had gone through the results thoroughly and recommended hospitalization and administration of the drugs parentarally which the complainant refused. The allegation that when the complainant went to the 1st opposite party's house on 31-03-2006 after examining the child, the 1st opposite party prescribed medicines for another two days is only partially true and hence not admitted. Though the complainant brought the baby to the 1st opposite party's house on 31-03-2006, the patient was continuing to cough. The 1st opposite party after examining the patient enquired the X-ray taken on 27-03-2006 and also advised hospitalization so that he could reassess the condition properly. The complainant informed that she had forgotten the X-ray and was not willing for hospitalization. Hence the 1st opposite party prescribed medicines for two more days and advised that she should definitely hospitalize the patient, if there is any deterioration in the condition of the child. The opposite parties are not aware of any consultation in the Attingal Multi Specialty Hospital or of any diagnosis allegedly made therein. The complainant does not claim that the doctors at Attingal Multi Specialty Hospital have noted any pin being visible in the X-ray film. The statements in the complaint concerning what transpired in SUT Hospital are denied. The allegation that the safety pin was clearly visible in the X-ray taken on 27-03-2006 and that failure to detect the same is gross negligence is denied. The exposure of the X-ray was not adequate, resulting the foreign body not being clearly visualized - since the foreign body was lying overlapped over the vertebra. The quality of the X-ray is not in the hands of the treating doctor. Moreover, the complainant had not given a history of a foreign body being swallowed, so as to enable the 1st opposite party to suspect or look specifically for a foreign body. The patient was advised hospitalization; to assess the progress of the disease by repeated examination and further investigations. The opposite party had also advised administration of medicines parentarlly since she was vomiting. Thus, the averment regarding overlooking of the foreign body is denied. Reasonable degree of care and skill has been exercised in the matter of diagnosis and treatment. There is no duty to exercise the highest possible degree of skill and care. There was no negligence on the part of the opposite parties. The unfortunate lapses on the part of those who were responsible for the care of the baby at home, are sought to be covered up and the blame is attempted to be transferred to the opposite parties without any justifiable reason. There was no negligence on the part of the opposite parties to award compensation. This is a vexatious complaint which deserves dismissal with costs of Rs. 10,000/- as under Section 26 of the Consumer Protection Act.
4. The evidence adduced consisted of Exts.P1 to P11 marked on the side of the complainant. There is no documentary evidence on the side of the opposite parties 1 to 3. Oral evidence consists of PW1 to PW3 on the side of the complainant and DW1(the 1st opposite party) on the side of the opposite parties 1 to 3. The X-ray and other investigations Register maintained by PW2 has been produced as Ext.X1. The relevant page which shows that the deceased baby's X-ray was taken on 27-03-2006 has been marked as Ext.X1(a). The treatment records of SUT Hospital are produced as Ext.X2.
5. PW1 the mother of the deceased child has filed proof affidavit and was cross examined by the Counsel for opposite, parties 1 to 3. It was brought out that she is a graduate and that she had the delivery at the opposite party hospital. She has stated that the child used to be taken to the hospital for whatever ailments that the child was having. She has denied that the doctor had advised admission of the child at the hospital. When confronted with the entry in Ext.P1 treatment record advising admission she has not answered directly. According to her the doctor had advised admission for anemia after the treatment for infection of the lungs. But she has stated that the X-ray was not taken along with and that when the child was taken to Attingal Multi Specialty Hospital on the 31st. It was also brought out that she came to know the child swallowed the pin only at SUT Hospital, Thiruvananthapuram. It was also brought out that when handing over the X-ray the technician did not mention anything.
6. PW2 is Dr. Girija the proprietor of Dr. Girija's Diagnostic Center wherefrom the X-ray was taken. She is an MD in Pathology. In the chief examination she has stated that Ext.X1 X-ray is the one taken at the laboratory owned by her. She has identified the same after verifying Ext.X1 register kept at the laboratory. The particular entry is X1(a). Ofcourse, in the cross examination she has stated that she cannot conclusively say that Ext.P2 X-ray is that of the particular child. She has identified the X-ray film only on the basis of the number noted therein as 623A.
7. PW3 is Dr. Johnny Thomas, Paediatrician of SUT Hospital, Thiruvananthapuram. He has proved A2 case sheet of the child at SUT Hospital. He has stated that the child was vomiting blood continuously. She died after 1½ hours on account of massive bleeding. He could not identify the X-ray film of SUT Hospital but has admitted that he can see an open-ended safety pin in the X-ray film. The death was due to massive internal bleeding due to swallowing of the safety pin. It was also brought out that the junior doctor who admitted the child has not made any observations to the effect that the child has swallowed the safety pin. There is nothing to show that the particular doctor suspected the above. He has also stated that in the reference letter from Attingal Multi Specialty Hospital also there is no reference as to the swallowing of the safety pin. He has further stated that what has been noted is "cause unknown" on arrival. He has stated that although surgery was suggested the Surgeon was not available. He has further stated that the child was unfit for surgery also.
8. DW1 the 1st opposite party doctor has stated that apart from MBBS he is having fellowship in Neonatology from University College of Austria. He has reiterated the case that the child was brought on 24-03-2006 complaining of fever since three days. The fever was recorded as 1010 F and the throat was congested. Medicines were prescribed for upper respiratory tract infection. The medicines were prescribed for 5 days. On 27-03-2006 the child was again brought and the fever had subsided but the child was coughing and vomiting the medicines. The chest was clear since the child was coughing. He advised routine blood investigations along with peripheral smear and total platelet count and chest X-ray. The blood investigations revealed that the child was having mild hypochronic mycrocytic anaemia. The chest X-ray showed some hilar infiltration on the right side which is usually seen in respiratory tract infection. Keeping in mind that the child was only 1½ years old and that she was vomiting medicines, he advised the complainant that the child should be hospitalized to assess progress of the disease by repeated examination if necessary and further investigations and that it is better that the medicines are administered parentarally. But the complainant refused to admit the child. Inspite of repeated advice of the requirement of hospitalization she was also advised to bring the child for review immediately if there was any deterioration in the condition. He has also stated that the exposure of X-ray taken was not adequate resulting in the foreign body not being clearly visualized since the foreign body was lying overlapped over the vertebra. The quality of the X-ray is not in the hands of the treating doctor. Further, the complainant had not given any history of the foreign body being swallowed. The complainant was directed to Girija's Diagnostic Laboratory as a Pathologist was available at the above laboratory.
It is stressed by the Counsel for the opposite parties that only at the X-ray taken at SUT hospital in the night of 31-03-2006 that the safety pin could be visualized. It is pointed out that even at Attingal Multi Specialty Hospital wherein the child was taken in the night of the 31st immediately there from the child was taken to SUT Hospital. The safety pin could not be visualized in Ext.P2 X-ray. It is pointed out that in the cross examination of PW1 she has stated that Ext.P2 X-ray was not brought when the child was taken to Attingal Multi Specialty Hospital. In para 5 of the complaint it is specifically mentioned that she took the child to the nearest hospital by name Attingal Multi Specialty Hospital with lab tests results and X-ray. We find that in the complaint also the complainant has no case that the doctors at Attingal Multi Specialty Hospital located the safety pin in the X-ray. In the complaint at Para 6 it is mentioned that the doctor concerned at the SUT Hospital glanced at the X-ray of the child and exclaimed that there was an open safety pin in the thoracic region of the child. PW3 the doctor of SUT Hospital who has proved Ext.X2 case sheet of SUT Hospital has contradicted the above case of the complainant. PW3 has specially stated that there was no observation in Ext.X2 that would show that on arrival that the existence of the pin is seen in the X-ray. There was no such reference in Ext.X2 notings also. PW3 has also stated that it is only after taking another X-ray at SUT Hospital that the safety pin could be seen as noted in Ext.X2. The existence of safety pin in the region of midzone pointing down is noted at 11 pm. The fact that the doctors at Attingal Multi Specialty Hospital and the doctor who admitted the child at SUT Hospital could not visualize the safety pin in Ext.P2 X-ray is a factor that support the case of the opposite parties. Further, Ext.P2 X-ray kept in safe custody on examined against light did not show the image of the safety pin. Although the photocopy produced shows the rear portion of the safety pin. The location appears as overlapped by the vertebra when X-ray film and photocopy is examined together as contended by the opposite parties. Further as pointed out by the Counsel for the opposite parties neither PW3 nor RW1 the doctors examined were confronted with Ext.P2 X-ray. There is no case for the complainant that the X-ray was defective on account of the defective equipment of the laboratory. The owners of the laboratory or the technicians were not impleaded also. There is no allegations against the particular laboratory. It is pertinent to note that neither the technician at the laboratory nor the first opposite party doctor and also the doctors at Attingal Multi Specialty Hospital and at SUT Hospital could locate the pin in Ext.P2 X-ray film. It is evident from Ext.P1 treatment records of the opposite party hospital produced by the complainant that the doctor had advised hospitalization. In the circumstances, we find that the complainant could not prove the deficiency alleged on the part of the opposite parties.
In the result, the OP is dismissed.
JUSTICE K.R. UDAYABHANU: PRESIDENT
APPENDIX
Witness for the Complainant
PW1 Laisa Beevi . L
PW2 Dr. Girija
PW3 Dr. Johnny Thomas
Exts. for Complainant
P1 Treatment records and prescription issued by the 1st opposite party
P2 X-ray from Dr. Girija's Diagnostic Laboratory & Trivandrum Diagnostic Laboratory
P3 Report from Dr. Girija's Laboratory dated 27-03-2006
P4 Copy of the prescription issued by the 1st opposite party dated 31-03-2006
P5 Copy of the prescription issued by the Attingal Multi Speciality Hospital dated 31-03-2006
P6 X-ray taken at S.U.T. Hospital, Trivandrum.
P6(a) Computer printout of the X-ray of SUT Hospital
P7 Death Certificate
P8 Copy of lawyer's notice issued to 1st opposite party dated 11-05-2006
P8(a) Acknowledgement card
P8(b) Postal receipt
P9 Copy of lawyer's notice issued to the 3rd opposite party dated 11-05-2006
P10 Prescription dated 27-03-2006
P11 Lab prescription page
A6
Witness for the Opposite Party
DW1 Dr. G. Madanamohana Kumar
Court Documents
X1 X-ray and Other Investigations Register of Trivandrum Diagnostic Laboratory
X1(a) Page No. 169 of Ext.X1
X2 Treatment records of Baby Muhmina bearing No. 0603-04049 of SUT Hospital, Pattom, Trivandrum.
JUSTICE K.R. UDAYABHANU : PRESIDENT
Sr.
[HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT