State Consumer Disputes Redressal Commission
Dr. A. Thiruselvi, M.D (O&G;) Kugan ... vs B. Revathy W/O. K. Balasubramani Periya ... on 29 July, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II COMMON ORDER IN F.A.NO.390/2008 & 736/2008 (Against order in O.P.NO.16/2004 on the file of the DCDRF, Karur) DATED THIS THE 29th DAY OF JULY 2011 F.A.NO.390/2008 1. Dr. A. Thiruselvi, M.D (O&G) Kugan Hospital Ramanujam Nagar Covai Road, Karur- 639 002 2. Kugan Hospital Ramanujam Nagar M/s. Anand, Abdul & Vinodh Covai Road, Karur- 639 002 Counsel for Appellants / 1 & 2 Opposite parties Vs. 1. B. Revathy W/o. K. Balasubramani Periya Vadugapatti Mr. V. Balaji Vennaimalai Post Counsel for Karur- 639 006 1st Respondent/ Complainant 2. Idhayam Apollo Hospital No.15, Palaniappa Street Erode- 638 009 3. Dr. S. Dhanabagyam, M.D. (O&G) Sudha Fertility Hospital (Given up) 156, Perundurai Road, Erode Respondents /3&4 Opposite parties F.A.NO.736/2008 Dr. S. Dhanabagyam, M.D. (O&G) M/s. Anand, Abdul & Vinodh Sudha Fertility Hospital Counsel for 156, Perundurai Road, Erode Appellant / 4th Opposite party Vs. 1. B. Revathy W/o. K. Balasubramani Periya Vadugapatti Mr. V. Balaji Vennaimalai Post Counsel for Karur- 639 006 1st Respondent/ Complainant 2. Dr. A. Thiruselvi, M.D (O&G) Kugan Hospital Ramanujam Nagar Covai Road, Karur- 639 002 3. Kugan Hospital Ramanujam Nagar Covai Road, Karur- 639 002 4. Idhayam Apollo Hospital No.15, Palaniappa Street (Given up) Erode- 638 009 Repondents/1to3 opposite parties The 1st Respondent/ complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.2 lakhs as medical expenses, Rs.3 lakhs as compensation and cost. The District Forum allowed the complaints. Against the said order, these appeals are preferred by the opposite parties 1 and 2 separately in F.A.No.390/2008, and by 4th opposite party in F.A.No.736/2008 praying to set aside the orders of the District Forum dt.14.2.2008 in O.P.Nos.16/2004. These appeal coming before us for hearing finally on 30.6.2011. Upon hearing the arguments of the counsels on either side, upon perusing the written arguments, documents, and lower court records, this commission made the following order: COMMON ORDER
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties 1 and 2 and 4th opposite parties are the appellants in F.A.No.390/2008 and 736/2008, respectively.
2. The parties are referred in this order as arrayed in COP.No.16/2004, on the file of District Forum, Karur.
3. Facts behind the dispute (brief) :-
The complainant was admitted for delivery, in the 2nd opposite party hospital on 23.11.00, since she had periodical checkup, prior to that also, with the 1st opposite party. The 1st opposite party, suggested LSCS, since liquor and amniotic fluid was low. Accordingly LSCS was performed at 8.30 p.m on 24.11.00, and the complainant delivered a male alive baby.
4. The opposite parties 1 and 2 performed LSCS, around 9.30 p.m, and bleeding per vagina was noticed at 11.30 p.m, and therefore there could not have been a PPH.
At the time of the delivery, anticipating postpartum hemorrhage, Methergine should have been given intravenously, not administered, whereas it was administered at 11.00 p.m, which itself would go to show there was negligence on the part of the 1st opposite party.
5. The 1st opposite party, has not at all reserved blood, for immediate transfusion, and transfusion of blood was commenced only at 12.10 a.m., thereby causing considerable delay, which is a deficiency in service.
6. Neither the complainant, nor her husband had given consent for performing hysterectomy, whereas the opposite parties 1 and 2 have performed hysterectomy, without the consent, having performed LSCS unnecessarily. Unable to control the health condition properly, the complainant was shifted to 3rd opposite party hospital from Karur to Erode unnecessarily, where also no proper treatment was given. Since the test report revealed the presence of bacteria, leading to septicemia, the complainant was shifted to KG Hospital, who had saved the life of the complainant.
The opposite parties 1 to 4, instead of giving treatment properly, shifted the complainant to KG Hospital, where she was taking treatment for septicemia, multi system organ failure, Hepatitis and acute renal failure etc., as disclosed by discharge summary. The transfusion of blood, not taking proper care, regarding the quality of blood alone, resulted hepatitis septicemia, for which the complainant had spent Rs.2 lakhs towards medical expenses, doctors fees etc., which should be paid by the opposite parties 1 to 4. Claiming compensation, when notice was issued, false reply emanated, thereby compelling the complainant to file the case, for the recovery of a sum of Rs.5 lakhs under two heads, towards compensation, as well as medical expenses, including mental agony. Hence the complaint.
7. Defence of opposite parties 1 and 2:
The opposite parties 1 and 2, being the wife and husband, running the hospital, being a qualified gynecologist, having obtained post graduation. The complainant was admitted in their hospital, since she had antenatal checkup from 11.5.2003, for second child. Examination revealed, that the complainant had lost 2 Kg., within two weeks, showing uterus was not corresponding to the period of gestation. The liquor was very much reduced and amniotic fluid index was only2.8 cm., below the prescribed standard. Therefore, the 1st opposite party, decided to deliver the baby by LSCS, for which consent was also given, obtained, including for sterlization. On 23.11.2003, at 8.00 p.m, the complainant was posted for surgery, and before that, all necessary tests were conducted, including cross matching of blood, as well as making preparation to preserve two units of B+ cross matched fresh blood. Thereafter, following procedure, giving anesthesia, surgery began at 8.12 p.m, and a live male baby, which cried, was delivered, which was handed over to pediatrician Dr.Chinnasamy. At the time of surgery, necessary medicines were administered, uterus was firm and contracted well, there was no undue bleeding at the time of shifting to the postoperative ward.
8. At about 11 p.m, the complainant had mild bleeding, for which necessary medicines were injected, bleeding was controlled within an hour, and blood transfusion was commenced at 12.30 am. There was no delay, and the blood was obtained from licensed/authorized blood bank.
After 45 minutes, uterus again started relaxing, and bleeding, inspite of conservative medical management, disclosing uterine attorney, explaining the position to the complainants relatives, emergency surgical intervention was performed, insisting hysterectomy, as a last resort. Therefore, subtotal hysterectomy was taken, in order to save the life of the complainant , as last resort to save the patient, in which qualified doctors were deployed. The urine output was maintained till 6 p.m on 24.11.2003, and at 7.00 p.m, urine output was on lower side, and consulting nephrologist, for better treatment, the patient was shifted to 3rd opposite party hospital, where from she was shifted to KG hospital, for further better treatment. At the time of transferring the patient, the condition of the complainant was steady.
The opposite parties, have not at all committed any negligent act, either in attending the delivery, or in performing the subtotal hysterectomy, as the last measure to control the PPH, and infact ovaries, fallopian tubes and cervix were not removed, as incorrectly and falsely alleged by the complainant. Since the opposite parties 1 and 2 have not committed any deficiency, they are not liable to pay any compensation, thereby praying for the dismissal of the case, denying further averments also.
9. The opposite parties 3 and 4, pleaded as follows (in brief):
The opposite parties 3 and 4, undertaken blood test for urea creatinine and urine complete analysis test. The complainant was given heavy antibiotic injection, IVCEF TREONAM AND in METROGYL. There was no deficiency on the part of the opposite parties 3 and 4, in treating the complainant, at any point of time, during her stay in their hospital.
10. On admission in the Intensive Care Unit at 2.30 a.m, on 25.11.2003, the complainant had mild temperature, and she was under continuous bladder drainage. As suggested by the nephrologist, cardiologist, medicines were administered, and urine output was maintained, 35-40 ml. per hour. After the administration of drugs, the urine output was increased, which symptom came down to 25 ml per hour. Two units of cross matched fresh blood were given, and despite effective management SPO II suddenly decreased, and as instructed by nephrologist doctor, Lasix and Treonamn was given. Reviewing the result, final opinion reached, as multi organ failure, and for effective treatment, advised to transfer the patient to KG hospital. Therefore, there was no negligence on the part of the opposite parties 3 and 4, and in this view, they are not liable to answer the tall claim of the complainant.
11. District Forum conclusion:
The District Forum, based upon the materials produced before it, while analyzing the same, came to the conclusion, that the opposite parties 1 and 2, have obtained consent, before under taking surgery, that the 1st opposite party resorted to LSCS, to avoid danger to the child, is unacceptable, that the case records are not properly maintained, that the opposite parties 1 to 4 had committed deficiency, not only in treating the complainant, but also in transfusing blood, that due to the negligent act of the opposite party, the complainant suffered further complication.
It is the further finding of the District Forum, though there was no expert evidence on the side of the complainant, the doctrine of res ipsa loquitur is applicable, and on that basis, it has further recorded a finding, opposite parties have acted negligently, and therefore we hold that there is negligence in service, on the part of the opposite parties 1 to 4. In this view, for the negligence committed by the opposite parties 1 and 2, direction issued jointly and severally to pay a sum of Rs.1 lakh, as compensation, and another sum of Rs.2 lakhs, against opposite parties 1 to 4, jointly and severally, towards medical expenses, legal notice charges, caused by deficiency in service, as per the order dt.14.2.2008, which is under challenge.
12. Facts not very much in controversy:
The complainant had antenatal checkup, with the 1st opposite party from 11.5.2003, when she conceived for second child. On 23.11.2003, the 1st opposite party examined the complainant, and noticed reduction in liquor, and amniotic fluid index was low, viz. 2.8 cm. Ultra sonogram also revealed the clinical diagnosis correct. Therefore, in her judgement, the 1st opposite party, decided to deliver the baby by LSCS and accordingly, a live male baby was delivered by LSCS, weighing 3 Kgs. It appears, with the consent or at request of the 1st opposite party, sterlisation was also performed, meaning consent should have obtained.
But unfortunately, at 11.00 pm on 23.11.2003, the complainant had mild bleeding per vagina, which lead to PPH, unable to control, as lost resort, the 1st opposite party performed subtotal hysterectomy, adopting standard procedure, according to her, including transfusion of blood. But the problem not solved, since urea out put was very low. Therefore, the complainant was referred to 3 & 4 opposite parties, there also two pint of blood was transfused, situation was not so improved, resulting transfer of the patient to KG Hospital, where the problem was solved. The complainant incurred heavy expenses, as well sustained sufferings, bodily, and mentally, and questioning the treatment given by the opposite parties, attributing medical negligence as said above, a consumer complaint came to be filed, ended in success, impugned by the opposite parties in these appeals.
13. Main Submissions:
The learned counsel for the appellants/ opposite parties would contend, that while examining the patient, prior to LSCS, while performing LSCS, and after surgery, in the postoperative care also, they have not committed any negligent act, or deficiency in service, and everything was recorded then and there, and unfortunately the District Forum, not analyzing the records properly, found fault against them, which should be erased.
14. Per contra, the learned counsel for the respondent would contend that there was no necessity to go for LSCS, and in this view, the very process of the LSCS should be faulted as negligent act, that too, when there was no fetal distress, that at the time of delivery, necessary injection or medicines, were not administered, as per the standard practice, which should be construed as deficiency in service, that without obtaining consent or informing the complainant or her relatives, reproductive organs were removed, which should be taken as negligent act, followed by deficiency in service, that while transfusing blood also, proper care was not taken, by all opposite parties leading to other complications, as disclosed in the discharge summary, issued by the KG hospital, where final treatment was taken, for all these things, the opposite parties should be held jointly and severally responsible, as did by the District Forum, not warranting any interference by this commission.
15. Our approach and conclusion:
The learned counsel for the complainant argued, that the opposite parties 1 and 2, have performed, unnecessarily, LSCS, that itself should be construed as negligence, followed by deficiency in service, which is opposed, on the basis of certain clinical findings, by the appellants.
16. The complainant being an ordinary women, she may not know what is the procedure to be adopted or adopted, and what kind of treatment should be given etc., and therefore we cannot expect anyother details in the complaint, except accusing the opposite parties, as if committed deficiency, though the law mandates, that the initial burden is upon the complainant to prove negligence, as well as deficiency in service. Fortunately, the doctrine of res ipsa loquitor comes to the aid of the complainant, in this kind of cases. Admittedly, when the complainant was admitted for delivery in the 1st opposite party hospital she had no known complication, such as Tachycardia, hepatitis, septicemia etc., But as proved, which we will advert infra, when the complainant was discharged from the hospital of the 1st opposite party, she had these problems. Therefore, it is for the opposite party doctors to explain and satisfy the conscious of the forum, that they did their duty properly, taking utmost care, as prudent doctor, but despite something had happened, which was not within their control. When the LSCS was questioned, the 1st opposite party would contend in the written version, as well as in the affidavit, that the complainant had mild anemia and liquor was very much reduced, amniotic fluid index was only 2.8 c.m, and therefore they have decided to deliver the baby by LSCS. If the above facts are correct, disclosed by the case record also, we are not going to find fault with the opposite parties, if not we have to say, the opposite parties 1 and 2 have committed negligence, as well as deficiency in service. In this context, we have to see, the level of amniotic fluid, as per the literature.
17. As per the journal published by the American Pregnancy Association If an AFI shows a fluid level of less than 5 centimeters (or less than the 5th percentile), the absence of a fluid pocket 2-3 cm in depth, or a fluid volume of less than 500 ml. at 32-36 weeks gestation, then a diagnosis of oligohydramnios would be suspected. Further it says If a woken is past her due date by two weeks or more, she may be at risk of low amniotic fluid levels since fluids can decrease by half once she reaches 42 weeks gestation.
Oligohydramnios can cause complications in about 12% of pregnancies that go past 41 weeks. If the amniotic fluid level comes down, or its reauired level is reduced, we find in the literature, what would be the consequences, which reads The amniotic fluid is essential for the development of muscles, limbs, lungs, and the digestive system. In the second trimester, the baby begins to breathe and swallow the fluid to help their lungs grow and mature. The amniotic fluid also helps the bay develop muscles and limbs by providing plenty of room to move around. If oligohydramnios is detected in the first half of pregnancy, the complications can be more serious and include: Compression of fetal organs resulting in birth defects; increased chance of miscarriage of stillbirth . In order to avoid this kind of problems, or reduce the risk, caesarian delivery is opted, not very much disputed or not to be faulted. From the above literature, it is seen the absence of fluid pocket 2-3, depth at the gestation period of 32 to 36 weeks, then only Oligohydramnios, is suspected. She has not crossed the due date of delivery. But, even as per the statement, of the 2nd opposite party, amniotic fluid index was only 2.8 cm, and therefore it cannot be said, AFI reduced warranting LSCS, as compulsory, as rightly suggested by the learned counsel for the complainant, when the 1st opposite party was in the box as RW1.
18. If the patient was anemic, then there may be complication, leading to bleeding also, and that is why an attempt was made in the written version, to say that the complainant was mild anemic. This is proved to be false, by the document, relied on by opposite parties 1 and 2, though they are challenged, as the record prepared for the occasion. In the discharge summary (Ex.B1), it is undoubtedly mentioned patient not anemic. Further in the case sheet also, it is said patient anemic. In the anesthetist record also we find not anemic. Thus it is proved, beyond any shadow of doubt that Ex.B1 and B2, must contain incorrect particulars, because of the preparation at later stage, or the 1st opposite party is not projecting the correct picture in the written version. Therefore, the reason assigned to go for LSCS, as seen from paragraph 9 of the written version must be incorrect, that can be taken as negligence, followed by deficiency in service.
19. An attempt was made to argue on behalf of the appellant/ opposite parties 1 and 2, that because of the reduction in liquor, as well AFI reducing, they suspected or felt fetal heart distress (FHD), thereby compelling to go for LSCS, which is also proved to be false, by the evidence given by the 1st opposite party, as well as discharge summary, and case sheet. In the discharge summary, there is no mention about the fetal distress, warranting LSCS, whereas FHR is given as 140 pm regular.
In the case sheet also, there is no specific indication about the FHR level, compelling to chose LSCS. In the case sheet, FHR is given as 142 pm, and gestation period is given as 35-36 weeks. Though it is stated at one sate fetal movement not seen, not indicating any FHR, whereas the case sheet says fetal breathing mouth seen. Further the case sheet reads patient posted for emergency LSCS, after explaining about the fetal condition, and the need for emergency LSCS. The 1st opposite party, at the time of cross examination, would admit FHR from 120-160 is normal. Further she admits FHR was normal. Thus it is seen, the case spoken by RW1, that there were signs of fetal jeopardy, must be incorrect. Therefore when the pregnant women was normal, came for delivery, not anemic, when ultra sonogram disclosed no FHR, they should have normally, induced the woman, to have normal delivery, and hastly should not have chosen for LSCS, as did in this case. From the record, it is seen, the opposite parties 1 and 2 have not made any attempt to make normal delivery, whereas they were in a hurry to perform LSCS, and that is why they have invented reasons, in the written version, as well as in the proof affidavit, which are proved to be false, by their own evidence, as indicated above. Under the above said circumstances, we are constrained to hold that performance of LSCS in this case, is an unwanted one, when there was no FHR, and when there was no complication to pregnant women also, and this can be brought under the umbrella, of negligence followed by deficiency in service.
20. The opposite parties 1 and 2, having undertaken to perform LSCS, should have adopted or followed or taken much care, in performing surgery, that too, when the complainant had opted for sterlisation after delivery. It is the case of the opposite parties 1 and 2, that the complainant was posted for surgery on 23.11.2003, at 8 p.m and following the procedure, giving anesthesia, through spinal L2 L3, delivered an alive male baby and no negligence is alleged, regarding the handling of the baby, in this case. After performing LSCS, administering the drugs also, and after sterlisation, the complainant was brought to postoperative ward 9.30 p.m. It is the specific case of the complainant, that at the time of delivery, whether LSCS or otherwise, Methargin injection should have been given, for contracting the uterus, which the opposite parties 1 and 2 failed, leading to bleeding per vagina, then creating complication. By going through the records, as well as the time consumed by the opposite parties, for transfusing the blood, we are also of the opinion, that there must be some kind of deficiency or slackness, in other words in the post operative period, while handling PPH, which is an expected and should be anticipated complication. Methargin injection was given, not as required, but as recorded intravenously, which is not the correct procedure, as pointed out by the learned counsel for the complainant. At 11 p.m, bleeding per vagina commenced, and anticipating blood should have been transfused, and that is why, it is also said, blood was collected for immediate transfusion. But admittedly, fresh blood transfusion was commenced only at 12.30 am, as admitted by opposite parties 1 and 2, in paragraph 14 of the written version, and inspite of conservative medical treatment, the opposite parties 1 and 2 were unable to control the bleeding, because of uterine attonic, and their effort, having failed, they decided to go for surgical intervention i.e., hysterectomy, as last resort, life saving.
21. As rightly recorded by the District Forum, if the blood was transfused in time, and necessary drugs were given at appropriate time, which is not so, as seen from the cross-examination of RW1, they should have avoided uterine attorney, than the last resort viz. sub total hysterectomy. Having no other way, the patient was shifted to operation theater to 12.50 am, and surgery commenced at 1.05 am, and noticing profused bleeding, they have decided to go for subtotal hysterectomy, as life saving measure, which cannot be faulted per se. After sub total hysterectomy, they have transfused blood, and if the problem had stopped, there would not have been any further complication. But unfortunately, urine out put was very low, probably affecting the kidney. In this context, we have to remember the procedure for transfusion of blood, how it should be secured, and how it should be administered.
22. As per the guidelines transfusion should be started within 30 minutes of removal from refrigerator and complete transfusion within 4 hours of commencement.
If that is not adopted or contaminated or delayed transfusion had taken place, threatening reaction under category 3 are tachi-cardia, fever, body pain, hyper tension, and possible causes includes bacterial, as well bleeding. This is what had happened to the complainant, resulting kidney problem, and urine out put was very low. Therefore, admittedly the patient was shifted from Karur to Erode, instead of Coimbatore, where better facilities are available, since finally the complainant was taken only to KG Hospital, Coimbatore, from Erode. It is also admitted by RW1, that the patient had Tachycardia, and there was urine bladder leakage, and the patient was having continuous drainage. Though the 1st opposite party would contend that there was no fever, it was noticed by the 3rd opposite party at Erode hospital, as per the case record maintained by them, thereby indicating by the negligence and deficiency of service, the complainant had suffered Tachycardia, renal problem, drainage of urine, leading to septicemia also, followed by multi organ failure.
23. The challenge to the case record by the learned counsel for the complainant, cannot be altogether ignored, since not only the opposite parties 1 and 2 failed to produce the original, but also produced only some writings in an ordinary paper. The hospital of the 1st opposite party is known hospital at Karur, and they are having printed case records. Generally, case record will be written in the printed form, adding white sheet, if necessary etc. Having prepared Ex.B2, in white sheet the 1st opposite party attempted to say that, because of the change of the hospital to the new address, they have not printed the case record sheet, which is also proved to be false, since referral letter to the 3rd opposite party was given, in the printed letter pad, having the new address. The way of writing the case record also would suggest to some extent, something might have happened, in preparing the case record, and that is why case records were also not furnished to the complainant, despite the fact as pleaded, which can be further seen from the delayed reply also. If the opposite parties 1 and 2, had the case record prepared during the course of their treating the patient, as of routine, nothing would have prevented them from giving a detailed report forthwith, even attaching the case sheet, for the notice issued by the complainants lawyer. In this case, as seen from the record, all the opposite parties have sent an interim reply, denying all the allegations, informing detailed reply will follow, that would suggest, as submitted by the learned counsel for complainant, Ex.B2 should have been prepared for the occasion, and that is why we find inconsistency regarding anemic, FHR, as well as anesthetic entry viz. T4, T14, though it is insignificant. Thus we are constrained to say, by preparing the case record also, the opposite parties have committed deficiency in service, proceeded by negligent act, for that they should be held responsible, since because of the delayed transfusion, and not giving proper drugs also, complication had arisen, as demonstrated before us. Thus, in the findings recorded by the District Forum, as far as the opposite parties 1 and 2 are concerned, we are unable to differ, whereas we are constrained to concur.
24. The learned counsel for the complainant would contend that there was no proper consent, or informed consent, for performing hysterectomy, that should be also taken as negligence, followed by deficiency in service, which submission we are unable to repel. The District Forum, relying on Ex.B7 series, has given a finding that the opposite parties 1 and 2, have obtained proper consent, including informed consent, for performing sterlisation, as well as for LSCS, in which consent forms, not only the complainant had signed, but also the complainants husband also had signed.
As far as the hysterectomy is concerned, admittedly no consent was obtained from the complainant, whereas it is the case of the opposite parties 1 and 2, consent was obtained from the husband of the complainant. When the patient is in a dangerous position, and the doctors are attempting to save the life of the patient, one cannot prudently expect that the complainant should give consent, that too when there was no possibility, considering the condition of the patient, which is not the case here. As seen from the case record, at 12.40 a.m on 24.11.2003, the doctors have decided, for hysterectomy, since conservative treatment failed, deciding to go for subtotal hysterectomy. The case sheet reads, if it is genuine to shift the patient to OT, after getting consent, as early as possible, and it is not the case, patient was unconscious, unable to give consent. It is also not the casein the case sheet, that consent of the husband was obtained, because of the condition of the patient viz. the complainant. As seen from anesthesiology report, general anesthesia was given at 12.45 am, and it is not known, when the patient was ordered to be taken to operation theatre at 12.50 am., how it is possible to give anesthesia at 12.45 am, though the difference of time is very minimal. If the records had been written in the usual course, this kind of inconsistency will not occur, and because of the later preparation alone, it seems this had occurred.
Be it as it may. When the patient was conscious till 12.50 a.m, i.e., even after taking the decision to go for subtotal hysterectomy, nothing would have prevented the opposite parties 1 and 2, to obtain the consent, informing the nature of surgery, which they failed to do so, and therefore we are constrained to say, that proper consent/informed consent was not obtained, from the patient, and therefore, assault on the body of the complainant, whether it is subtotal hysterectomy or total hysterectomy, whatever may be the case, is not proper, as held by the Apex Court, and in this view also it should be conclude, that the opposite parties 1 and 2 have committed deficiency in service.
25. As seen from the complaint, there is no specific accusation, and negligence against opposite parties 3 and 4, except saying in paragraph 6 of the complaint, that the 3rd opposite party hurriedly shifted the complainant to KG Hospital, Coimbatore, for further treatment, further stating in paragraph 12, the opposite parties 1 to 3 have, with malafide intention, screened the real fact, i.e., they have committed negligent act, besides deficiency in service.
The short pleadings, are well explained, how the 3rd opposite party had committed deficiency in service, in this matter, which could be seen from the answers given by RW2, as well as the case records maintained by them and therefore pleading need not be faulted.
26. The complainant was discharged from the 1st opposite party hospital on 23.11.2003 at about 11.30 p.m or so, and the reason for discharge is for better treatment, since the output of urine was very low i.e., the patient was having oligulia. On receipt of the patient, at 2.30 a.m, in the discharge summary, the diagnosis given by the 3rd opposite party reads P2 L2 A2 Post-op sub total hysterectomy for atonic PPH, Acute Renal failure, Hepatitis, further stating that the patient was referred to have decreased urine out put, despite six units of blood B+ transfused at Karur. On examination also, the 3rd opposite party noticed, Tachycardia +, slightly elevated temperature 99.4o, indicating that would have caused, as observed by us supra, due to negligence of the opposite parties 1 and 2. They have also administered, many drugs including Lasix, Pantacid, Tramadol, Soda bi carb, as well as two units of blood transfused, out of which one brought from Karur, and another from Erode hospital.
Despite their effort, by the intervention of cardiologist and Nephrologist, the position of the complainant was not improved, requiring dialysis. Therefore, the patient was transferred to KG Hospital, Coimbatore, as per the discharge summary, not in dispute. Thus it is seen, the patient was in the hospital of the 3rd opposite party between 2.30 am on 25.11.2003 and 8.45 pm.
27. In the counter affidavit filed by the 3rd opposite party, on his behalf as well as 4th opposite party, they have reproduced the steps taken by them, informing there was no negligence on their part. The 3rd opposite party, was cross examined as RW2. He admits, that when he had received the patient, she had Tachycardia, temperature abnormal, mild abdominal tenderness, and at the time of transfer to hospital, she was having acute renal failure, hepatitis and coagulation failure. It is also seen from the answers given by RW2, as well as the test report, the complainant had bacterial infection. He has further admitted, oligulia was due to hypertension, and there was rising in urea creatinine level. It was specifically suggested to RW2, that the drugs mentioned in the paragraph 11 of the affidavit, are not broad spectrum of antibiotic, to prevent further growth of gram negative, and gram positive, for which RW2 failed to give answer directly, whereas evasive answer was given, as if separate injection was given for gram positive, and gram negative bacteria, not even mentioning the name. It is also admitted that the patient was under continuous bladder drainage. He admits that administration of Lasix will reduce the blood volume, and bleeding was the problem, the complainant had , and to compensate, even in the hospital of the 3rd opposite party, two units of blood was transfused. This being the position, as rightly argued by the learned counsel for the complainant, giving Lasix, may not be a proper treatment, and for that the doctor would say It is not strictly contra indication, we go by the need of drugs and side effect but not justified for the giving of Lasix, which will reduce blood volume. When questioned about Pantacid, the doctor would contend that the medicine is meant for gastric ulcer. Since pantacid was given, it was suggested to RW2, that this drug should not be given to lactation women, for which there was no direct answer. Similarly the 3rd opposite party, admitting Tramadol injection should not be given to lactation women, admits the administration of Tramadol.
It was further suggested, Soda bi Corb, should be given when the patient was put on ventilation, but it was given when the patient was not on ventilation. He has further stated, that the renal failure was due to prolonged bleeding, hypotension, giving chance for raising urea level. Coming to Bethatin, it is admitted by RW2, that the administration of Bethatin will affect, the central nervous system, but they have administered bethatin also on 25.11.2003 at 6.30 p.m to the complainant, on the basis of the advise given by the cardiologist, which appears to be not proper. RW2 further admits, that he had given two pint of blood, one brought from Karur. As we have already pointed out supra, blood should be transfused, within 30 minutes from the time of taking it out, from the refrigerator, warming up. It is not the case of the opposite parties, that the blood brought from Karur was refrigerated and given. Thus, it is seen one pint of blood, brought from Karur, in the ordinary way was transfused at Erode, after more than two hours, that would have caused other complications also. The evidence given by RW2 coupled with the discharge summary, given by him, as well as case records maintained by them, would lead to the conclusion, unhesitatingly that the opposite parties 3 and 4 also have committed negligence, not only in transfusing one pint of blood, brought from Karur, but also in giving drugs improperly, as said above thereby aggravating the situation, compelling the complainant, to move from Erode to Coimbatore, for further treatment.
28. Ex.A2, is the discharge summary, issued by KG hospital on12.12.2003. They have diagnosed the problem of the complainant as septicemia, multi system organ failure, hepatitis, acute renal failure, recovering. The above complication, should have happened to the patient, because of the delayed transfusion of the blood, improper transfusion of the blood, as well as the negligence administration of the drugs, as seen from the evidence given by RW2. Therefore, based upon ExA2 also we are constrained to hold Ops.3 & 4 also should have committed deficiency in service proceeded by negligence, and they also should be held responsible, for the sufferings and medical expenses, incurred by the complainant.
29. The complainant had claimed a sum of Rs.2 lakhs, as compensation for conducting hysterectomy, without consent, and that should be restricted to opposite parties 1 and 2, since they alone had performed hysterectomy.
30. The 2nd prayer reads, seeking a direction for Rs.3 lakhs, from the opposite parties, towards medical expenses, mental agony, frustration and damage.
Thus totaling a sum of Rs.5 lakhs.
31. The District Forum, properly analyzing the materials, reached just conclusion, that the opposite parties 1 to4, have committed deficiency. As seen from operative portion of the judgement, opposite parties 1 and 2 were directed to pay a sum of Rs.1 lakh, jointly and severally and opposite parties 1 to 4 were directed to pay sum of Rs.2 lakhs jointly and severally, thereby making the opposite parties 1 and 2 alone to pay total sum of Rs.3 lakhs, jointly ad severally. In order to decide the compensation, we have to remember, what was the suffering of the patient, expenses incurred, and subsequent complication, including permanent disability if any, on the basis of the medical negligence etc. In this case, we find no detailed pleadings, regarding the after effect of the treatment to the complainant, except incurring medical expenses, and deficiency in service. The complainant, who has been examined as PW1 also, has not spoken anything about the subsequent complication, after taking treatment at Coimbatore hospital. She would state, after taking treatment from the Kovai Hospital, he and his child are alive, and she has not deposed anything about the complication, and her physical inability, if any, at present or likely to occur in future. There cannot be any dispute, because of the prolonged treatment from 23.11.2003 to 12.12.2003, the complainant would have put to mental torture, physical strain and other sufferings, unable to care the new born baby, including monetary loss, and strain to the husband also. Considering all these facts, as well as the fact, the opposite parties have taken timely action, to save the complainant, though in that course they have committed some negligence, we are inclined to reduce the compensation, totally from Rs.3 lakhs to Rs.2.5 lakhs, directing the opposite parties 1 and 2 to pay a sum of Rs.1.5 lakhs, jointly and severally and directing the opposite parties 3 and 4 to pay a sum of Rs.1 lakh, jointly and severally. Though 3rd opposite party not appealed, considering their status of 3rd opposite party, being inseparable. To this extent, the appeal is to be allowed, modifying the of the District Forum.
32. In the result, both the appeals are allowed in part, modifying the order of the District Forum in OP.No.16/2004 dt.14.2.2008, (1) directing the opposite parties 1 and 2 (appellant in F.A.No.390/2008), to pay a sum of Rs.1,50,000/- alongwith cost of Rs.1000/-, jointly and severally, to the comlpainant, for the negligence committed by them, independently; and (2) directing the appellant/ 4th opposite party (in F.A.No.736/2008), as well as 3rd opposite party, to pay a sum of Rs.1,00,000/- alongwith cost of Rs.1000/-, jointly and severally, independently, for the deficiency committed by them. There will be no order as to cost, in these appeals.
S.SAMBANDAM J. JAYARAM M. THANIKACHALAM MEMBER II JUDICIALMEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Medical