National Consumer Disputes Redressal
G. Balakrishna Pai And Anr. vs Sree Narayana Medical Mission General ... on 9 January, 2008
Equivalent citations: II(2008)CPJ93(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. The above named two complainants feeling aggrieved by the order of dismissal of their complaint in OP No. 103 of 1996 dated 12.3.1996, have filed this appeal claiming Rs. 4,21,000 as compensation for medical negligence in treating appellant No. 2 and her child.
2. The case of the appellant/complainant is that during the period of her second pregnancy K. Vandana the second complainant, wife of the first complainant used to consult Dr. Mrs. Soji Kurien a Gynaecologist in Sree Narayana Medical Mission General Hospital during the relevant time. As advised by Dr. Mrs. Soji Kurien, she went to the hospital in the morning of 18th July, 1993. Since Dr. Kurien was on leave, check up was done by another doctor. The attending doctor said to her that delivery was likely to take place the very same day. As no room was available, she was advised to go home and return when labour pain would start. By 7.40 p.m. on 18th July, 1993, she noticed discharge and reached hospital along with her husband and reported to the duty nurse. She was examined by the Duty Doctor M.D. Balachandran and Dr. G.S. Venkitesan, the Chief Medical Officer. As advised by them, drip was started. Thereafter, she was left in the care of nurses. Just before delivery Dr. Indira Kaimal visited the ante-room to attend an ailing infant also examined her at the request of the nurse with reluctance saying that she will send the surgeon. The complainant delivered a female baby at 10.30 p.m. in absence of any doctor. The episiotomy was conducted by a nurse.
3. The baby did not cry after the delivery. The complainant heard lapping of hands and then only the second opposite party Dr. M.D. Balachandran came to the labour room. He sent one-sweeper woman to fetch Dr. Indira Kaimal, Paediatrician. She came and directed to administer oxygen to the baby. But,since oxygen cylinder was not available, the child began to cry. The Doctor left after handing over the baby to the bystanders and cousin of Vandana. Thereafter, the child was not examined by any doctor till the next morning. When the child was taken to Dr. Indira Kaimal the next day at 9 a.m., brushing aside the request to examine the child, she did not examine the child nor gave any opinion regarding the condition of the child nor she took any precaution though the baby was showing restlessness and uneasiness. The child cried for sometime on 20th July, 1993 and suddenly fell silent after 9.30 a.m. The colour of the baby became bluish. It was immediately taken to the duty room and there the child was examined by Dr. Balachandran and Dr. Indira Kaimal. The doctors prescribed glucose orally. After some time the discolouration repeated. It was again taken to the duty room. Some medicines were prescribed but the condition of the baby did not improve.
4. Dr. H.G. Suresh of Alleppey District Hospital was contacted who after ascertaining the facts opined that the symptoms could have been caused due to lack of oxygen supply to the brain. Dr. Suresh visited the child at about 9 p.m. Dr. M.D. Balachandran and Dr. Indira Kaimal did not cooperate. Dr. Suresh came for the purpose of discussion and left after advising to take the child to the Alleppey Medical College Hospital if the condition did not improve. The condition of the child deteriorated thereafter. The child had continuous fits though attempt was made to control by medicine. At about 3 p.m. on 21st July, 1989, the child was taken to Alleppey Medical College Hospital. On examination, the child was found to be suffering from extensive brain damage. The puss formation was developed in the part of the body of the baby where needles for the intravenous injections were injected. It needed prolonged treatment. The child developed incurable abnormalities including mental retardation and affected physical and mental development of the child as well as caused deformity in right leg. The complications arose only because of callous negligence and deficiency in service caused during the confinement and at the time of delivery of the child in the respondent hospital.
5. The complainant/respondent had claimed Rs. 4,49,457.27 as compensation, (Rs. 28,457.70 ps, the amount had already been spent for treatment and upkeep of the child along with Rs. 21,000 to be spent on surgery for setting right deformity the right leg), jointly and severally from the above named respondents along with cost of Rs. 5,000.
6. The hospital contested the matter, inter alia, on the ground that the allegations did not constitute a consumer dispute. However, the admission of the second complainant in the Hospital for delivery and delivery of female baby has not been disputed. All other allegations were denied. It was denied that the complainant was not treated with proper attention and care. The patient was examined by the duty Doctor, Dr. M.D. Balachandran and by Dr. D.S. Venkatesan, respondent No. 4. Dr. M.D. Balachandran was present throughout and was attending the second complainant at the time of delivery. The delivery was normal but the child was asphyxiated. Immediately by about 10.45 p.m. Dr. Mrs. Indira Kaimal, paediatrician was summoned who reached and attended to the child within minutes by administering the necessary medicines. Even before her arrival oxygen was administered and all necessary steps were taken as found necessary and proper care and attentions bestowed on the mother and the child. Dr. Indira Kaimal attended the baby on 19th and 20th July, 1993 also. Every possible treatment was given to stabilise the condition of the child who had developed cyanosis and attacks of fits. Necessary injections were given by Dr. R. Lakshmi. Doctors and nurses were attending the baby without any fail. When abnormalities were noticed proper medicines were administered and utmost care as was available in the Hospital was given to the child. As per para 5 of the version of Dr. G.S. Venkatesan, the labour room was provided with oxygen cylinders. In para 3, it was claimed that the abnormality and deformities said to have been noticed were not caused by the deficiency in service or negligence of the opposite parties. By about noon on 21.7.1989 its condition had been stabilised. On 20.7.1989 at about 9 p.m. Dr. Suresh, a reputed paediatrician attached to the District Hospital, Alleppey visited the baby and at his direction as requested by the complainant the child was discharged to be treated at the Medical College, Alleppey. The compensation claimed is imaginary and exorbitant.
7. Dr. M.D. Balachandran, respondent No. 2 claimed that when the second complainant arrived, he was present and attended. On conducting episiotomy the child did not cry on birth. Necessary attention including administration of oxygen was immediately given. The respondent No. 3 the Paediatrician was sent for and she reached within minutes and attended to the baby. The allegation that the baby developed complaints due to prolonged labour and due to his failure to attend is denied.
8. The third respondent/opposite party Dr. Indira Kaimal claimed that the complaint was frivolous, vague, and speculative and lacked merit. She further claimed that the matter was not covered under the Consumer Protection Act. She was called to the labour room at about 11p.m. on 13.7.1989 and found that oxygen was being administered to the baby. Suction was done. Injection of soda bicarbonate along with betnasol was given to the baby by the duty doctor and the nurse. On examination of the baby it was noticed that it had already commenced gasping type of breathing and immediately resuscitation was done. She ventilated the baby till spontaneous respiration was established. Immediately the baby started crying. Thereafter immediate supportive line of treatment by administering oxygen, injection, Vitamin K, and ampicillin were administered and to keep the body temperature steady hot water bottles were placed near the baby. Instructions were given to the duty staff nurses to watch for cyanosis and fits. The mother and the child were kept under close observation after the delivery. She left the labour room only after the condition of the baby became stable. The Doctor again examined the baby on 19th morning when jitteriness was noticed. The baby was given 25% glucose through ryles tube and anticipating fits, phenobarbitone was also administered. In the evening, she examined the baby once again, Medicine was repeated. In the morning of 20th July the Doctor again examined the baby and the condition was noticed as "generally stable". But later on the child developed cyanosis and the third opposite party immediately examined the baby and oxygen was administered. Duty nurse was directed to take the baby to the sister room for close observation and monitoring the treatment. Baby became stable and another antibiotic gentamycin was also started. In the evening the child had an attack of fits and the third opposite party was called and she immediately came and attended on the baby. Calmpose and I.V. 10% glucose were given along with the medicine prescribed earlier. The fits was fully controlled and after the condition of the baby became stable, child was left in the sister's room for close monitoring.
9. It was also claimed that about 9 p.m. on 20th July, 1989, Dr. E.G. Suresh, Paediatrician, Govt. Hospital Alappuzha came to the house of the opposite party No. 3 - Dr. (Mrs.) Indira Kaimal and discussed the case. Dr. Suresh expressed satisfaction and it was denied that she did not cooperate with Dr. Suresh. Dr. Suresh requested Dr. (Mrs.) Indira Kaimal to direct the baby to the Medical College Hospital, Alappuzha if the condition of the baby would not improve. The baby had fits again in the night of 20th July, 1989 and in the morning of 21st July, 1989. The medicines were repeated and in addition. Mannitol, Decadron, Oral glycerine and Epiwal were also administered. The baby became stable and as per the ad vice of Dr. E.G. Suresh and as requested by the complainants, the child was referred to Medical College Hospital, Alappuzha at 2 p.m. on 21.7.1989.
10. Dr. G.S. Venkatesan, Chief Medical Officer -opposite party No. 4 claimed that he was not directly concerned with Gynaecology and Paediatric cases for he was concerned with general supervision of the above Departments. However, he claimed that during his rounds in the hospital on the night of 18th July, 1989, the second complainant had occasion to examine Smt. Vandana before her delivery. He was satisfied that her condition as well as that of the child to be born was normal. He gave necessary instructions to the nursing staff on duty and to the duty doctor. The delivery was normal attended by 3rd opposite party, Dr. M.D. Balachandran. The labour room had sufficient number of oxygen cylinders. Dr. Indira Kaimal, the Paediatrician immediately arrived and gave necessary treatment and medicines. Ultimately, it was stated that there was no deficiency in service on the part of either of the opposite parties.
11. From the side of the complainant only the complainant Smt. Vandana Devi was examined as a witness in addition to filing of certain documents. From the other side, Dr. Balachandran and Dr. Indira Kaimal were examined as witness in addition to filing numerous documents.
12. During the course of proceedings, an application has been moved by the complainant for deleting the name of the opposite party No. 4 from the array of the opposite parties, in absence of any specific allegation against him and the claim being mainly against Sree Narayana Medical Mission, Dr. M.D. Balachandran, opposite party No. 2, and Dr. Indira Kaimal, Paediatrician, opposite party No. 3. In view of this prayer, the appeal has been dismissed against opposite party No. 4.
13. The State Commission after considering the material on record raised the following issues:
(i) Whether the dispute comes under the Consumer Protection Act?
(ii) Whether there was any negligence or deficiency in the medical service rendered by the opposite parties?
Issue No. 1:
On the basis of material on record, the State Commission held that the complainant was a consumer for consideration was paid for service rendered by the hospital.
Issue No.2:
In so far as deficiency in rendering service by the hospital is concerned, the State Commission held that the complainant had failed to establish any deficiency in service on the part of the oppositparty/respondent and as such, the complainant was not entitled to any relief and the complaint was dismissed.
14. There is no denial of the fact that earlier the complainant was treated by Dr. Soji Kurian, Gynaecologist in the same hospital. On 18th July, 1989, the duty Dr. Lakshmi examined her as Dr. Soji Kurian was not available. She opined that delivery might take place on that day or the next day and since no room was vacant there, the complainant went home. On that day itself in the evening at about 7.30, there was minor discharge. She proceeded to the hospital in a car and reported to the general duty room. Nurse came there and took her to the Ante Labour room and made her to lie there. Later, Dr. Balachandran examined her by using stethoscope and later came out. After 10 minutes, Dr. Venkitesh came and examined her and directed the nurse to start the drip and advised the patient to sleep. Medicine was given through drip. Some pain was felt by her. Muscular injection was also given. By that time, she was experiencing severe pain. No doctor was there. However, Dr. Indira Kaimalcame there to attend a baby. Nurse requested her to examine the patient. Though it was not her duty, Dr. Indira Kaimal examined her and she directed the nurse to call the Duty Doctor as there was rapid contraction and she told the nurse for surgery and then she went out. There was severe pain and contraction to the patient. The patient was taken to the adjacent room by the nurse with the help of sweeper woman. Till then, the Duty Doctor had not reached. Hence, the nurse herself did Episiotomy. Delivery was effected. The newly born baby was not crying. The child was taken by holding on the legs with head downward. At that time, Dr. Balachandran reached there. He directed the nurse to bring oxygen. Dr. Balachandran gently patted the back portion of the child. The patient heard that sound. She also heard somebody saying that there was no oxygen in the oxygen cylinder. Dr. Balachandran directed the nurse to call the paediatrician. Dr. Indira Kaimal reached there. The oxygen cylinder was brought from the adjacent room which was in use for another new born baby and administered the baby. In the meanwhile, 10 minutes had elapsed. Thereafter, the baby began to cry. Dr. Balachandran came and after doing the stitches he went out. After half an hour the patient was taken to Ante Labour room. Afterwards, she was shifted to the ward. Her cousin sister was also there, was carrying the child. The baby was continuously crying.
15. On 19th morning, the next day, the patient was informed by the nurse that her baby was to be taken to the paediatrician. But, the baby was returned back as the baby was examined on the previous day and the baby was crying continuously. Jitteriness was noticed.
16. On 20th morning when the baby was crying, a bluish colour was noticed to the baby. Baby was taken to the duty room by the cousin sister of the complainant. The baby was treated by the doctor and after 15 minutes the baby was taken back to her mother. The bluish colour disappeared. Again on 20th itself the bluish colour was noticed on the baby while crying. The baby was again taken to the duty room by the nurse. Thereafter the baby was not given to the complainant. On that day at noon, the complainant was taken to the duty room for breast-feeding the child. The baby was in deep sleep and was not sucking properly. Later on, the complainant was informed that the disease of the baby intensified. Dr. Suresh, Paediatrician had examined the baby.
17. The next day, the baby was taken to the Medical College, Alleppey. After the baby was brought to her, she noticed a big wound on the right leg where the drip was applied and the wound was deep and pus forming stage. The left anckle portion was found "loose". As per her statement, the child was aged four years; there was no proper mental and physical growth. There was brain damage to the child due to lack of proper treatment at the time of delivery and thereafter.
18. She was put to a lengthy crossexamination. In cross-examination when a suggestion was put on behalf of Dr. Balachandran that episiotomy was done by the second opposite party i.e. Dr. Balachandran, she categorically stated that as the doctor failed to reach in time Nurse done Episiotomy. This is done for quick delivery.
19. Some another questions were put to her as under:
Q. It is put to you that Episiotomy was done by 2nd O.P. to your delivery and artificial breathing by mouth was given to your baby?
A. Doctor was not there. I do not know the details after the baby was taken from there.
Q. Whether you have any blood relation with your husband before marriage?
A. No. PW2 - Dr. G. Balakrishna Pai is the husband of the complainant No. 2.
20. He supported her wife. He also stated that after delivery Dr. Indira Kaimal along with a nursing student came out of the labour room. On inquiry, the nursing student told him that his wife had pain and she was going to call the doctor. Later on another nurse told him that Vandana had delivered and messenger had gone to call the doctor. Then, Dr. Balachandran reached and went to the labour room. Immediately a sweeper woman came out of the labour room and went to the Doctors' Quarters and came back along with Dr. Mrs. Indira Kaimal and went to the labour room. He also stated that his wife told him that there were complications during the delivery and no doctor was present at that time and the baby did not cry immediately after birth. He consoled her wife and came out of the ward.
21. On 20th morning when the baby was crying, suddenly the cry stopped and a bluish colour began all over the body of the baby. The baby was immediately taken to the duty nurse. Dr. Indira Kaimal reached there and advised to bring oral glucose, saying that it was due to hunger. After some time, the baby was kept on the bed beside the mother and advised to feed the retof the glucose to the baby orally. Again the baby developed bluish colour on the body. Baby was taken to the duty nurse. The nurse kept the baby in the duty room. Dr. Indira Kaimal reached there and administered oxygen to the baby. On inquiry of the complainant, the duty nurse informed him that oxygen was being given to the baby and baby had bluish colour on the hands and legs and on the face off and on. Even in the afternoon also he enquired again to the duty nurse. She told that the baby was still developing bluish colour. He felt that the body had some serious complications; he consulted Dr. Suresh, Paediatrician of Alleppey District Hospital over the telephone. Dr. Suresh, told the complainant that these symptoms were present in the baby when is brain did not get oxygen to the complications during the delivery and if there were any constraints in that hospital to treat the baby. He advised to take the baby to Alleppey District Hospital. He informed this matter to Dr. Indira Kaimal who told him that it was not advisable to transport the baby because it had Cynosis. He again informed Dr. Suresh the details. Dr. Suresh told him that he would be coming to the hospital and see the baby as he was to come to Cherthala (Sherthalai) in the evening. The duty nurse told that the baby had fits one or two times when Dr. Indira Kaimal came to examine the baby asked to buy Glucose, I.V. Set and Gardinal tablet.
22. Dr. Suresh reached the hospital at 9 O'clock. Since Dr. Indira Kaimal did not reach the hospital, he examined the baby with the permission of Dr. Indira Kaimal. Dr. Suresh and the complainant went to the residence of Dr. Indira Kaimal. Dr. Suresh opined that the baby had jitteriness, and baby was dehydrated. Since the baby had fits, opined to give feeds through nasal tube and to start drips. Dr-. Suresh also advised him to take the baby to the M.C.H as the baby required good care at that stage which the baby was not getting at the hospital and went. During night also the baby had continuous fits. Nothing was done materially to control the fits. Next day morning the baby had fits again. He informed the details to Dr. Suresh at 6.45 morning. He advised him to take the baby to M.C.H. The complainant told this to Dr. Indira Kaimal who advised him to take the baby after the fits were controlled. Then the medicines Zodium Valporate, IV Set, Oral Glycerine, were bought and given in the duty room, as prescribed by her. Baby had fits even after that.
23. In the afternoon at 2.15 the duty nurse gave him a referral letter and asked him to take the baby to the M.C.H. At 3 p.m. on that very day the baby was brought to M.C.H. The baby was examined by Duty M.O. In the ticket he wrote that the baby had I.C.H. (Intra Cranial Haemorrhage), Moro absent, History of asphyxia, complaints of Cyanosis, Convulsions from day before. Dr. M.L. Thomas examined the baby. He told him that if the babies develop Neuro-Genic fits, there was no purpose in their life even if they survive.
24. He also told that on the right leg at the sight where the drip was given from the Hospital at Cherthala began to form pus. This wound became a large one. They diagnosed Hypoxic Ischemic Encephalopathy. Gradually, paralysis was affected to the left leg. Right hand of the baby also found paralysed. When the baby taken for check up in the M.C.H. they were told all these occurred due to the brain damage and further complications could be seen only by follow up. Dr. P.G. Chandrasekharan Nair at M.C.H., Alleppey started Physiotherapy for the contracture developed on the right leg which was carried out up to 9.3.1990. On 20.10.1993, Dr. V. Ramananda Pai, Paediatric Surgeon, M.C.H., Alleppey carried out the operation. The baby remained in M.C.H. from 18.10.1993 to 30.10.1993. The baby was examined at the Department of Paediatric Neurology at M.C.H. It was certified the baby had mental retardation. The baby was now 5 years old. The baby had mental age of 3 years only. He further stated that no gynaecologist was present at the time of delivery. The baby did not cry after the delivery. The baby got any treatment only after the development of Cyanosis on the 20th. All this happened due to negligence of the opposite party, hospital. Baby had no congenital malformation or developmental defects. The child could not be admitted even in LKG.
25. On7.9.1990, the complainant requested for the case sheet from the hospital, but he did not get any reply. Only after notice was given through Consumer Prorection Council, photocopies of the case sheet were sent to them by the hospital. Baby is a female one and cannot survive without depending on others throughout her life. If the baby would have been given proper treatment at the time of delivery and thereafter, such situation might not have arisen.
26. From the side of the opposite party/respondent, the most crucial evidence is that of Dr. Balachandran. Of course, he supported his own version and claimed that he was present but he definitely admitted that Dr. Soji Kurian, the Gynaecologist and Dr. Lakshmi, Assistant Gynaecologist were not present at the time of delivery. There is no explanation whatsoever as to why at the time of delivery, no Gynaecologist was present.
27. There is yet another aspect, relating to genuineness of the case sheet. It would be worthwhile to re-produce the questions put to Dr. Balachandran and his answers:
Q. Details of Doctors Examination is not seen in the case sheet?
A. Used to write if there is Abnormal finding.
Q. Is it (all details) not written usually all details even if there is no abnormality?
A. The entries in the page 2 of the case sheet is in my hand writing. F.H.S. will be noted periodically. Such a practice is there in M.C.H. Here there is no such practice.
Q. There was "some delay up to Sodium bicarbonate is written" on the side margin on 19.7.1989?
A. Written on 18.7.1989 itself. Written in the Margin. B.P. also noted in the Margin. Separately noted is due to given to the Baby. The writings below 19.7.1989 is not in my handwriting. Written in the margin is my handwriting.
Medicines seen in the nurses daily records is given by my instructions. 5-2 item time recorded is not correct. 9.55 p.m. written is wrong. "Injection Methergin" is given after delivery.
Q. It is recorded in the Nurses Daily record that "Injection Methergin", Injection Bethnesol is given at 9.55?
A. That also recorded time wrongly. I have not given instruction for Bethnesol.
Methergin is to contract the uterus after delivery.
The case details of the baby is written through Mother's case sheet.
Bethnesol is given to the baby.
Injection Methergine is to be given when the Placenta expels.
He denied that according to him the baby took breath after 3-4 minutes but it was not recorded in diary. Delay in breathing was recorded. He also denied the following suggestion:
Q. It is put to you that the baby had Asphyxia due to the rapid contraction caused by the effect of the medicines administered before the delivery and also due to absence of the doctors during the delivery period to assist?
A. Not correct.
Re. The time 9.55 noted in page 9 of P17 is may be 10.55.
Interest will be taken to care the patients affairs first and recorded later.
While there may not be any dispute about the interest of the patient but the hospital was also supposed that a Gynaecologist or at least a Assistant Gynaecologist should be available at the time of delivery and the matter should not have been left to duty nurses/staff when the services of a Gynaecologist are sought.
Some specific questions were put to Dr. Indira Kaimal which are as under:
Q. In the case sheet of 18.7.1989, it was written by me "Cyanosed cold clammy limbs" at 10.45 is as per instructions of the Duty Doctor. Cold clammy means "very cold"
In the case sheet dated 18.7.1989 and 19.7.1989 of the baby, the doctors' record and nurses daily record are in my handwriting. In the signature column of nurses daily record, the writing 'pt' is not in my handwriting.
28. In order to verify whether the medicines were given according to my instruction can be seen from the nurses daily record.
Q. In this case it seems that medicines not given. Anything to say?
A. It is not seen in this case sheet. If verification is needed there is another nurses record in the hospital.
Q. It is put to you that seeing this case sheet medicines you cannot affirmatively say that medicines are given?
A. No, it is given, Q. How can affirmatively say?
A. For verification Nurses daily record is in the hospital. It can be taken.
Q. It is seen in the case sheet that many medicines prescribed by you on 20th were not given to the baby?
A. One sheet is missing from the nurses daily record of the case sheet.
Q. Can it be taken that the Asphyxiated baby became normal after it has cried?
A. The baby can be said normal when it cries, only on examination and found on examination the other vital functions are normal.
Other vital functions means Heart, Temperature, Nutrition, etc. including Respiration.
Q. There is no such record of examination of the vital functions seen in the case sheet?
A. Not used to record completely.
I also agree that the textbook of Paediatrics by Nelson is any authority. Nelson's Text Book of Paediatrician 4th Edition (1969) Page No.458, Paragraph Heading "Hypoxia and Ischemia" shown to the Doctor (RW2) and asked whether she agrees with Ethology i.e., what is said about Ethology in that particular paragraph?
A. Yes, I agree.
Q. Do you agree with the suggestion that uterine contractions result is in Postnatal Hypoxia in delivery room?
A. No. If it happens all the babies born will have Birth Asphyxia?
Q. Will rapid contraction of uterus result in peri-natal Hypoxia?
A. Need not be. It may or may not occur.
Q. Do you concur with the details given in page 458 of Nelson's book (table 9) regarding "Effects of Asphyxia"?
A. According to the textbook may be, but I have not come across any of these cases. I have seen and treated babies having severe Birth Asphyxia than this but they do not have any of the neurological or any of the complications mentioned in the text book. Even in this also I never suspected any complications.
29. There is no reason for the two complainants to falsely allege either against the hospital or the doctors in whose hands they left her body and soul unless something is wrong with the hospital or the concerned doctor(s).
30. One could be not oblivious to the fact that for our purposes question of medical negligence has to be decided in the light of preponderance probabilities and the case of the complainants could not be thrown out on the specious plea that the specific pleas were not taken or on the point of onus proof, for onus of proof loses its sharpness, when both the parties enter into evidence, and both are required to produce the best evidence available. One has to see the evidence in these matters in the light of the fact that a man on the street is pitted against an expert, he depends upon doctor's special knowledge about the medicines they administer. They are supposed to maintain accurate record of treatment as well medicines administered. However, in these cases where virtually every material information is within special knowledge of the concerned doctor, in terms of Section 106 of the Evidence Act then the concerned doctor and the hospital are supposed to prove that due care and caution was taken while giving treatment. Section 106 reads as under:
106. Burden of proving fact especially within knowledge-When any fact is specially within the knowledge of any person, the burden of proving that intention is upon him.
Illustration
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
31. In this regard it maybe appropriate to refer to the observations of the Hon'ble Supreme Court in the case of Gopal Krishnaji Ketkar v. Mahomed Haji latif and Ors. (1968) 3 S.C.R. The relevant observations are stated herein below:
Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withhold important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara, Lord Shaw observed as follows:
A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.
This passage was cited with approval by this Court in a recent decision-Biltu Ram and Ors. v. Jainandan Prasad and Ors. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desraj Ranjait Singh and Ors.:
But, it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.
But Shah, J., speaking for the Court, stated:
The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of document and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority.
32. Medical ethics for registered medical practitioners, provides that every physician was and is supposed to maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment. Besides, physician or a hospital is free to choose whom he/the hospital will serve. They should, however, respond to any request for his assistance in an emergency under Hippocratic oath. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. They are also not supposed to wilfully commit an act of negligence that may deprive his patient or patients from necessary medical care.
33. From the statement of tine complainant, it is evident that the services of Gynaecologist were not made available to the patient. Dr. Balachandran who is an ordinary MBBS and not a Gynaecologist though claimed to have delivered the child but circumstances indicate and corroborate the complainants that even he was not there at the time of delivery. Had he been there at that time then they would not have stated about his absence. The way she stated virtually giving nearly all the details about treatment, which she got, were either at the hands of Dr. Balachandran or Dr. Venkitesh, or Dr. Indira Kaimal before the delivery would indicate that there is a ring of truth in her statement.
34. It may be noted that the baby was delivered at 10.45 p.m. and according to Dr. Balachandran, injection Methergin was given after delivery but his cross-examination would indicate that injection Methergin was given at 9.55 p.m. though he claimed that the time was not correctly recorded. If the nurse would have recorded the correct time or if the injection Metherign would not have administered at 9.55 p.m., such a mistake would have never occurred. Seeing in this light, one finds it difficult to rely on the testimony of Dr. Balachandran and to reject the testimony of the two complainants indicating that he was not present at the time of delivery.
35. The nurse who had prepared that record would only indicate that the correct time of delivery and administration of injection Metherign is mentioned in the case diary. Supposing Dr. Balachandran was present at the time of operation but undisputedly Dr. Mrs. Soji Kurien or any other Gynaecologist were not present as had been admitted. If the services of any Gynaecologist or Asstt. Gynaecologist were not made available at the time of delivery, this would certainly amount to deficiency in service on the part of the hospital.
36. Similarly, the fact that injection Metherign was given prior to the delivery at 9.55 p.m. as mentioned in Nurses record while this should have been given only after the delivery by the nurse, would confirm the inference that due care was not taken. This could not have happened if Dr. Balachandran was present. As stated by the complainant, Dr. Indira Kaimal, Paediatrics had noticed that there was rapid contraction and she told that she would send the surgeon though this fact was denied by Dr. Indira Kaimal in her cross-examination for obvious reasons-would again indicate absence of Dr. Balachandran.
37. Thus, there are reasons to believe that Dr. Balachandran was not present at the time of delivery; that oxygen cylinder was not available and time of about it 10 minutes elapsed in bringing the oxygen cylinder from the adjacent room while that oxygen cylinder was being used for another newly born child. One could also not be oblivious to the fact that though Dr. Indira Kaimal directed the nurse to call the Duty Doctor as there was rapid contraction and agreed to send the surgeon. But, neither the Duty Doctor, nor the surgeon turned up in time. The patient was made to suffer severe pain and contraction, causing lack of oxygen for the child during the labour pains. The child did not cry despite patting, oxygen was required to be given but the oxygen was not readily available in the room and it had to be arranged by depriving oxygen to another child in another room would indicate that evidently there was highly improper arrangement to provide medical services of a Gynaecologist along with necessary infrastructure like oxygen, etc.
38. In the light of above discussions, following deficiencies in rendering medical service have been noticed:
1. Injection Metherign was given at 9.55 p.m. as per nurses daily record register which led to contraction and increased labour pains causing suffocation and lack of oxygen to the child before delivery.
2. At the time of delivery, no Gynaecologist was present. Even Dr. M.D. Balachandran was not present and the delivery of the child took place with the assistance of the duty nurse.
3. Even the oxygen was not provided in time. Several minutes elapsed before Dr. Balachandran reached, patted the child, sent the nurse for obtaining oxygen cylinder from the adjoining room when it was found that the oxygen cylinder in the delivery room was empty and about 10 minutes or so would have been allowed to elapse in this process. One would irresistibly infer about deficiency in rendering medical service much more evident due to improper infrastructure in the hospital.
4. The medicines prescribed by Dr. Indira Kaimal were not given for Dr. Indira Kaimal answered that "it has not seen in case sheet", and that "one sheet is missing from the nurses daily record of the case sheet".
5. Medical record had not been kept properly. Further from cross-examination of Dr. Indira Kaimal the asphyxiated baby could be said to be normal when it cried, only on examination and found on examination the other vital functions were normal. There was 110 such record of examining function of vital organs in the case sheet, for Dr. Indira Kaimal answered in this regard "Not used to record completely".
39. An expert witness Dr. E.G. Suresh was examined from the side of the complainant and Dr. G. Venkatesan from the side of the opposite party. From the statement of Dr. Suresh, Paediatrician, Superintendent, working in Distt. Hospital, Alappuzha it is evident that the child did suffer from asphyxia. According to him, hypoxic Ischemic Encephalopathy meant that the brain had suffered lack of oxygen sometime before the baby was seen and diagnosed as having HIE. He also stated that once brain damage was caused to a tender baby, it would not be possible in all cases to reverse brain damage by a doctor however efficient or experienced he or she may be (Not in all cases). However, he stated that he could not say the exact cause of asphyxia of the child of the complainant. He also stated that he was not an expert in neurological matters.
40. The above points do establish that there was medical negligence in providing medical services and facilities at various stages and in all probability, the lack of oxygen led to asphyxia in treatment.
41. In so far as the statement of Dr. Venkatesan is concerned, for he stated that he examined at a very initial stage when the complainant was brought in the hospital hours before delivery. No specific complaint was made against him. Reproduction of his statement could be taken at the best as a doctor of the hospital who is interested in saving its reputation.
42. It is apparent that the hospital administration had failed to take due care of the patient and the complainant at the time of delivery and neglected them as aforesaid at various stages and thus Shree Narayana Medical Mission General Hospital and T.B. Clinic was deficient in rendering medical services.
43. In this light, we feel it appropriate to award compensation of Rs. 3.00 lakh in favour of the parents of child i.e. two complainants for the benefit of the child and against Shree Narayana Medical Mission General Hospital and T.B. Clinic with interest @ 6% p.a. from the date of complaint and cost of Rs. 5,000.
44. They are directed to pay this amount within a period of two months from the date of receipt of this order. The appeal is allowed accordingly.