State Consumer Disputes Redressal Commission
Dr.B.Leelavathi Obstetrician ... vs Malliala Saivardhini ... on 19 May, 2010
The appellant states that on the advice of the surveyor they have agreed to settle the matter and receive an amount of Rs towards full and final settlement of his claim BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA.No.538/2007 AGAINST C.D.No.136/2005 DISTRICT FORUM, KARIMNAGAR. Between: Dr.B.Leelavathi Obstetrician & Gynecologist, Leelavathi Nursing Home Near Old Moon Lodge Building Peddapalli of Karimnagar District. Appellant/ Opp.Party No.1 And 1. Malliala Saivardhini D/o.Sathaiah 2 years (Minor) through her natural Father Malliala Sathaiah R/o.Jagadevpet Village of Velgatur Mandal of Karimnagar District. 2. Malliala Sathaiah, S/o.Butchaiah Age 28 years, Occ:Nil, R/o.Jagadevpet Village of Velgatur Mandal of Karimnagar District. Respondents/ Complainants. 3. Prathima Institute of Medical Sciences, Nagnur, Karimnagar District R/by its Medical Superintendent. 4. The New India Assurance Company Limited, Pedapally Branch, Branch Office, Pragathinagar Station Road, Peddapalli (Impleaded as per order in IA /05, dt.26-9-05. ..Respondents/ Opp.parties 2 & 3 Counsel for the Appellant: M/s.G.Ramagopal Counsel for the Respondents: M/s.V.Gourisankara Rao-R2 M/s.Kota Subba Rao-R4 FA.No.650/2007 AGAINST C.D.No.136/2005 DISTRICT FORUM, KARIMNAGAR. Between: The New India Assurance Company Limited,(D.O) Pedapally Branch, Branch Office, Pragathinagar Station Road, Peddapalli. R/by its Branch Manager. (Impleaded as per order in IA /05, dt.26-9-05 Appellant/ Opp.Party No.3 And 1. Malliala Saivardhini D/o.Sathaiah 2 years (Minor) through her natural Father Malliala Sathaiah R/o.Jagadevpet Village of Velgatur Mandal of Karimnagar District. 2. Malliala Sathaiah, S/o.Butchaiah Age 28 years, Occ:Nil, R/o.Jagadevpet Village of Velgatur Mandal of Karimnagar District. Respondents/ Complainants. 3. Dr.B.Leelavathi Obstetrician & Gynecologist, Leelavathi Nursing Home Near Old Moon Lodge Building Peddapalli of Karimnagar District. 4. Prathima Institute of Medical Sciences, Nagnur, Karimnagar District R/by its Medical Superintendent. ..Respondents/ Opp.parties. QUORUM: THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT AND SMT.M.SHREESHA, MEMBER
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WEDNESDAY, THE NINETEENTH DAY OF MAY, TWO THOUSAND TEN (Typed to the dictation of Smt.M.Shreesha, Honble Member) *** Aggrieved by the order in C.D.No.136/2005 on the file of District Forum, Karimnagar, opposite party No.1 preferred F.A.No.538/2007 and opposite party No.3 preferred F.A.No.650/2007. Since both the appeals arise out of the same C.D., they are being disposed of by a common order.
The brief facts as set out in the complaint are that complainant No.1 is the daughter and complainant No.2 was the husband of late Subhadra who died on 11-6-2004 on account of negligence in treatment of opposite parties 1 and 2. The deceased Subhadra became pregnant in the month of December, 2003 and was under prenatal treatment of opposite party No.1 and taking treatment regularly as advised. During the course of the treatment, opposite party No.1 advised the deceased to undergo scanning and on undergoing the same on 30-5-2004, opposite party no.1 confirmed that she was carrying twins and informed the due date of delivery as 3-7-2004. The deceased consulted opposite party no.1 periodically and opposite party No.1 prescribed medicines and informed the complainant and parents of the deceased that every thing was normal and the deceased would have a normal delivery. The deceased used to complain severe backache and opposite party No.1 had not given attention to the said problem and ignored Edema and Blood pressure that the deceased developed during pregnancy. Opposite party No.1 failed to find out for a period of 6 months that the deceased was carrying twins and did not take proper care and was negligent in treating the deceased right from the time the deceased consulted her for the first time in the month of May, 2004. On 11-6-2004 the deceased complained of severe pain in abdomen and was immediately taken to the first opposite party who did not conduct any pathological tests and not bothered to know about the cause for the ailment and after examining referred to Dr.Mallesham of Tirumala Hospital, Peddapalli to get bleed report.
The said doctor conducted the blood test and with that report the deceased approached opposite party no.1 and opposite party No.1 after going through the reports refused to admit the deceased in her nursing home without assigning any reason and when the attendants requested her to provide the necessary life saving medical aid till she was given to some other hospital, opposite party No.1 refused to admit or provide medical aid and had not even advised any alternative. It is the case of the complainants that it is the responsibility of the doctor to inform the patients attendants about the disease and the alternative treatment to be provided for the same. The complainant No.2 and the parents of the deceased took her to second opposite party corporate hospital and they too have not admitted the patient inspite of her serious condition and have not conducted any pathological tests and by just looking at the report of Dr.Mallesham of Thirmuala hospital gave treatment without diagnosing the disease of the deceased.
The complainants submitted that opposite party no.1 had not taken proper care in treating the deceased and neglected to conduct urine test to find out protein urea particularly when she noted high blood pressure and oedema of feet of the deceased and not conducted the pathological tests while giving treatment to the deceased and had not admitted her in the nursing home on 11-6-2004 when the deceased was suffering from severe pain and her condition was critical. Opposite party No.2 was negligent in giving treatment to the deceased inspite of her serious condition and had taken the patient to ICU and there she was not closely monitored and there was no nurse and Gynaecologist in opposite party No.2 hospital to attend the patient and there were no standard resuscitative equipment to review the patient and not even conducted post mortem examination on the deceased to find out the cause of death and without any basis issued death certificate stating that the cause of death is due to Cardio respiratory arrest. Hence the complaint alleging deficiency in service against the opposite parties and seeking direction to pay compensation of Rs.12,00,000/-.
Opposite party No.1 filed counter and stated that the deceased first time consulted her on 12-1-2004 at the age of 14 weeks of gestation and there was no prenatal treatment.
She alleged that that she advised the patient to undergo scanning in the early month but the patient has come for scanning very late i.e. 30-5-2004 at the age of 8 months pregnancy. She denied that the deceased consulted her periodically and submitted that she first time consulted on 12-1-2004 and again for the second time in the month of February, 2004 and thereafter in May, 2004 she has come for consultation and scanning and between February, 2004 and may, 2004 she has not come for checkups regularly and was very irregular. She denied that she told the patient that there will be a normal delivery and on the other hand submitted that the first delivery was caesarean. She also denied that she neglected severe back ache and had not given attention to the problem and ignored Edema and blood pressure and stated that backache is a common complaint for all pregnant women that too in case of working women carrying twins and that the patient had not developed back ache, oedema and blood pressure during the two antenatal check ups on 12-1-2004 and 23-2-2004. She also denied that she failed to find out for a period of six months that the deceased was carrying twins and submitted that only in high risk pregnancy cases and in cases of bleeding only the doctors advise scan and otherwise in normal cases, doctor advise scan in the 5th month pregnancy but the patient came to her for first check up at the age of 14 weeks of gestation and undergone scanning on 30-5-2004 at 8 months although she was advised earlier in February, 2004.
She further denied that she was never negligent in treating the patient and submitted that she advised the patient to get admitted in the hospital in the month of May, 2004 itself but she refused admission and had not turned up till 11-6-2004. On 11-6-2004 she examined the patient and detected high blood pressure and oedema of feet and therefore she referred the patient to Physician, Dr.Mallesham for expert opinion in the interest of patient health and as per the advise of Physician, she referred the case to a higher center which gives special care and management and the patient and her attendants were explained the condition and denied the charge that she refused to admit her or provide medical aid. She also denied the charge that she neglected to conduct tests to find out protein urea particularly when she noted high blood pressure and oedema of feet of the deceased and submitted that on 20-3-2004, opposite party advised the patient to have blood tests and urine tests and found the reports to be normal. She further contended that after February, 2004, the patient turned up only in the month of May, 2004 and she advised the patient to take admission but the patient had not turned up and had the patient taken admission, she would have investigated the patient thoroughly for high blood pressure and oedema which includes other kidney function test, liver function test, blood coagulation profile etc. She denied that she had not given proper treatment and submitted that high blood pressure during pregnancy is a known complication and pregnant patients develop high blood pressure after 6th month of pregnancy and from 6th month the patient had not come for check ups for almost a period of three months. She further submitted that in May, 2004 she explained the patient about the risk of high blood pressure but the patient was reluctant for taking admission in the hospital and stated that she joined in a job at Karimnagar and not get leave and therefore she re-assured that she will give a Medical certificate and advised her to apply leave and gave prescription for control of blood pressure for a short period and asked the patient to take admission as soon as possible but the patient did not come till 11-6-2004 and on 11-6-2004 she came with high blood pressure of 170/120 mm Hg, with Dysnoea and she submitted that pregnancy induced hypertension is a typical condition which develops with pregnancy usually after six months and is rare before six months of pregnancy and delivery is the only treatment and in cases if PIH, it is necessary to terminate the pregnancy to save the life of the mother and it is a very grave disease and affects all internal organs due to severe vasoconstriction and therefore she referred the patient to a higher centre for better management and submitted that there was no negligence or deficiency in service in treatment the patient. She submitted that she has professional Indemnity policy with New India Assurance Company Ltd., vide policy No.610903/46/00013 valid from 19-3-2004 to 18-3-2005.
Opposite party No.2 filed a counter stating that it was not a Corporate hospital but a not profit registered charitable society registered as per rules of Andhra Pradesh (TA) public societies registration Act, 1360 Fasli. It denied that it gave treatment without diagnosing the disease of the deceased and submitted that the deceased was brought to emergency room of hospital in an un-conscious condition and she was in shock and her B.P. was not recordable and pulse was feeble and was in a critical state. The deceased was attended by the staff i.e. doctors and nurses in emergency room and its emergency room has doctors and nurses posted 24 hours and all life saving equipment and drugs. The deceased was brought in shock and unconscious condition and the emergency room physician started cardio pulmonary resuscitation on the patient to save her and blood sugar test was done on Glucometer. It denied the allegation that it was negligent in giving the treatment and also denied that there was no Gynecologist and submitted that the condition of the patient was very serious cardio pulmonary resuscitation had to be done to revive her before shifting to ICU. The patient was connected to a monitor and was being monitored by Dr.J.Srinivasa Rao and Dr.Gururaj and Dr.A.K.Gupta and as per the standard protocol she was attended and she was brought to the hospital in shock, cardio pulmonary resuscitation was done and in spite of best efforts, he could not be revived and was declared died at 9.00 p.m. It further submitted that it is not authorized to conduct post mortem and the relations also did not desire to conduct post mortem and stated that there was no negligence in treating the patient and prayed for dismissal of the complaint against it.
Opposite party No.3 remained exparte.
Based on the evidence adduced i.e. Exs.A1 to A12 and B1 and the pleadings put forward, the District Forum allowed the complaint against opposite parties 1 and 3 directing them to pay an amount of Rs.6,00,000/- in all with interest at 9% p.a. from the date of complaint i.e. 24-5-2005 till payment together with costs of Rs.1,000/-. It further directed that out of Rs.6,00,000/-, Rs.5,00,000/- shall be deposited in a nationalized bank in the name of the minor till she attains majority and the rest of the amount is payable to complainant No.2.
Aggrieved by the said order, opposite party No.1 preferred F.A.No.538/2007 and opposite party No.3 preferred F.A.No.650/2007.
The brief point that falls for consideration is whether opposite party No.1 has been negligent in treating the patient and also if the insurance company, who is the appellant in F.A.No.650/2007 is liable to pay the amounts, if any?
The brief facts are that the patient Subhadra who was under the prenatal treatment of opposite party no.1 and opposite party No.1 advised her to undergo scanning on 30-5-2004 and opposite party no1. confirmed that she was carrying twins and also informed that the due date for delivery is 03-7-2004. The patient consulted opposite party No.1 periodically and opposite party No.1 ignored oedema and blood pressure and also did not inform the patient for a period of six months that she was carrying twins and advised scanning test only on 30-5-2004. on 11-6-2004 she complained of severe pain in the abdomen and opposite party No.1 without conducting any test referred her to Dr.Mallesham of Tirumala hospital who conducted the blood test but did not admit her and then the patient was taken to opposite party No.2 hospital and this hospital did not render proper treatment inspite of her serious condition. It is the case of the complainants that the patient was in a serious condition and she was not taken to ICU and not attended by the Gynecologist and intensive nursing care was not provided. Opposite party No.2 did not even perform post mortem examination about the cause of death and issued a certificate stating that the cause of death is due to cardio respiratory arrest. It is also their case that the deceased Subhadra died in opposite party no.2 hospital only because of the negligence of both the opposite parties and that she was aged 26 years at the time of her death and was working as a Junior stenographer earning a sum of Rs.3000/- and would have been in service and more and her untimely death led to loss of mothers affection of her young daughter for which they claimed Rs.12,00,000/- and costs of Rs.5,000/-.
Appellant/opposite party No.1 filed written arguments. It is the case of the appellant/opposite party No.1 that the patient consulted her on 12-1-2004 and after examining she found that the patient was of 14 weeks gestation and thereafter on 23-2-2004 Smt.Subhadra visited opposite party no.1 for the second time and was examined by her and found to be normal. Thereafter she visited her only on 30-5-2004 when she underwent scanning and found to be carrying twins with 8 months pregnancy. Ex.A5 shows the last LMP as 25-9-2003 and by 12-1-2004 she was 14 weeks pregnant. Her B.P. shows 130/70 and in Ex.A6 dated 23-2-2004 her B.P. shows 110/80. Again on 23-2-2004. Ex.A7 is dated 23-2-2004 which is the urine and blood test reports conducted and Ex.A8 is the utrasonagraphy which shows the gestation period as 34-35 weeks.
The contention of the opposite party No.1 that the patient approached her only on 11-6-2004 with a critical condition of pre- eclempsia i.e. with High B.P., odema and protein urea. The B.P. was admittedly 170/120. It is her case that she directed the patient to consult the local physician, Dr.Mallesham who in turn advised her to go to a corporate hospital for better management. We observe from the counter filed by appellant/opposite party No.1 that the patient also visited her on 20-3-2004 when she advised the patient to have blood test and urine test. It is an admitted fact that the patient had twins and she was 36-37 weeks pregnant and also Ex.A5 issued by the appellant/opposite party that by 12-1-2004 the patient was 14 weeks pregnant. When the opposite party No.1 herself admitted in her counter that on 20-3-2004 the patient had taken treatment from her and she advised the patient to have blood test and urine test, the patient was admittedly 23 weeks pregnant as on 20-3-2004 and there is no substantial reason given by her in the counter or in her affidavit as to why a scan at this stage was not advised.
Though she stated that the blood test and urine test are normal she did not mention anything about the blood pressure recording or the advice of scan. Even a general examination of the foetal heart beat or any other clinical examination done on 20-3-2004 would have given the patient an opportunity to go in for better management at that stage when she was 23 weeks pregnant. Having examined her on 20-3-2004, we are of the considered view that keeping the other parameters in mind, the appellant/opposite party No.1 did not advise any scan or even mention in her counter or written arguments about the blood pressure being normal on 20.3.04. She only states that blood and urine tests were conducted which were normal. It is pertinent to note that in her written arguments the visit of the patient on 20-3-2004 is completely absent. The complainant in page 4 of his affidavit states that as on 20-3-2004 also they were never informed that the patient was carrying twins and it was only in the month of May 2004 in a belated stage that the appellant/opposite party No.1 observed oedema in the feet and high blood pressure and explained the risk of pre-eclempsia without giving any time for the patient to undertake any precautions.
By the time she was admitted in opposite party no.2 hospital she died within an hour which itself concludes that her condition at the time of admission was critical. We also observe from the record i.e. Exs.A5 and A6 which are the prescriptions given by opposite party No.1 that she has never stated the regular dates of review and therefore to contend that the patient did not attend her regularly is unsustainable. To substantiate we refer to her admission in the counter that the patient was examined by her on 20-3-2004 and she found the urine and blood test normal but there is no prescription card stating the next examination date or the results of the B.P. as on that date. Basic prenatal examination or the fetal heart rate were not done by the appellant/opposite party No.1. Based on the evidence on record and the depositions, we are of the view that the appellant/opposite party no.1 ought to have advised scan at an earlier stage and she ought to have advised the patient to go for ultrasound scan test even on the second visit if not on the third visit. Not diagnosing the presence of twins till such belated stage can be construed as lack of basic care in treating the patient and proper precautions were not taken.
We rely on the judgement of the apex court in In Dr.Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole and Anr. reported in (1969) I SCR 206 is another Landmark judgment on medical negligence.
In this case the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthesia to the patient. In this case the court discussed the duty of care a doctor should undertake
a) A duty of care in deciding whether to undertake the case
b) A duty of care in deciding what treatment to be given
c) A duty of care in the administration of that treatment We are of the considered view that duty of care in treating the patient as per normal standards as also defined by the apex court in Mc.Nair J. in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, 121 now widely known as the Bolam test which reads as under:
But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the Calpham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
His Lordship agreed with the counsels statement that negligence means failure to act in accordance with the standards of reasonably competent medical men at the time was a perfectly accurate statement of the law, provided that it was remembered that there may be one or more perfectly proper standards::
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
Putting it the other way round, a doctor is not negligent , if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.
Hence we hold that there is negligence on behalf of appellant/opposite party No.1.
It is the case of the appellant in F.A.No.650/2007 that the policy was issued in the name of Dr.Leelavathi and an indemnity policy and covers the risk to any one accident for a sum of Rs.2,50,000/- and is valid from 19-3-2004 and 18-3-2005 and that the patient was treated by opposite party No.1 in the month of December, 2003. This contention of the appellant is unsustainable since the risk commences only from 19-3-2004 and the treatment by appellant/opposite party No.1 is only in December, 2003 since the material on record clearly shows that the treatment began on 12-1-2004 and continued till 11-6-2004 after which the patient died.
Now we address ourselves to the quantum of compensation awarded by the District Forum. Admittedly the deceased was a stenographer on contract basis and was earning Rs.3,000/- per month. Even as per M.V. Act rules if 1/3 is deducted and the annual income is taken as 24,000/- and multiplied by the multiplier of 18, the amount would be arrived at Rs. 4,32,000/-. The insurance company is liable to indemnify to an extent of Rs.2,50,000/- per incident.
The appellant/insurance company did not choose to file the policy copy. Their liability is restricted to Rs.2,50,000/- only.
In the result F.A.No.538/2007 is allowed in part reducing the amount granted from Rs.6,00,000/- to Rs.4,32,000/- and modify the interest awarded by the District Forum reducing the same from 9% to 6% p.a. from the date of filing of the complaint till the date of realization. We also award a compensation of Rs.15,000/- towards loss of consortium and another Rs.15,000/- towards loss of estate. The costs of Rs.1,000/- awarded by the District Forum is confirmed. This amount of Rs.4,00,000/- is to be kept in an F.D. in the name of the minor till she attains majority and the balance amount of Rs.62,000/- together with costs of Rs.1,000/- is to be paid to complainant No.2. The interest of 6% p.a. accrued on Rs.4,32,000/- is also to be kept in the fixed deposit for the welfare of the minor daughter.
F.A.No.650/2007 is also allowed in part restricting the liability of the insurance company to an amount of Rs.2,50,000/-.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.19-05-2010 L.R. copy marked/not to be marked