State Consumer Disputes Redressal Commission
Dr. Selvambal Rajkumar Niharika ... vs S. Selvam S/O. Sundaram Perunanoor ... on 30 December, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,B.L., JUDICIAL MEMBER
Tmt. VASUGI RAMANAN MEMBER II F.A.NO.369/2010 (Against order in C.C.NO.8/2009 on the file of the DCDRF, Salem) DATED THIS THE 30th DAY OF DECEMBER 2011 Dr. Selvambal Rajkumar Niharika Hospital Pattaikoil Near, Salem Cuddalore Main Road Union Opposite, Valapadi Salem District Appellant/Opposite party Vs. S. Selvam S/o. Sundaram Perunanoor Kattuvalivu Sukkampatti via Salem District Respondent/ Complainant The Respondent as Complainant filed a complaint before the District Forum against the opposite parties, praying for a direction to pay compensation of Rs.15 lakhs and Rs.4 lakhs towards mental agony alongwith cost of Rs.5000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.31.03.2010 in COP No.8/2009.
This petition coming before us for hearing finally on 05.12.2011. Upon hearing the arguments of the counsel on both sides, perusing the material papers on record, lower court records, as well as the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/Opposite party: M/s. Anand, Abdul & Vinod Counsel for the Respondent/ Complainant: Mr. K. Ganesan M. THANIKACHALAM J, PRESIDENT
1. This appeal aims to upset the order of the District Forum, Salem, in CC.No.8/2009 dt.31.3.2010, wherein a direction has been issued, against the opposite party, to pay a sum of Rs.5 lakhs as compensation, in addition to another sum of Rs.25000/- towards mental agony, with cost.
2. The complainant/ respondents wife was taking treatment with one Nalini Sridhar, and thereafter in ANRS Clinic with Dr.Dhanalakshmi. On 31.8.2007, when the complainant took his wife to Dr.Dhanalakshmi, since his wife had delivery pain, the doctor advised the complainant to take his wife to the opposite party hospital, since she requires immediate attention, despite the request of the complainant that they can go to Dr. Nalini Sridhar, where they have already taken treatment.
3. The opposite party demanded Rs.2000/- at the initial stage, when the complainant admitted his wife at about 2.00 a.m, then further demanding a sum of Rs.10000/-, in order to perform operation, for which the complainant had given undertaking.
At about 4.30 a.m, the complainant was informed that his wife gave birth to a dead male baby. At about 6.30 a.m, the complainants wife was normal, and she had also taken tea. Complainant requesting her relative to be present by the side of the wife, took the dead baby for burial, and on return he came to know that his wife died at about 5.30 am, which should be incorrect, since he has given tea to his wife at about 6.30 am. Because of the negligence and deficiency in service on the part of the opposite party, in not attending the patient properly, and not taking any serious steps, the complainants wife died, causing mental agony and other losses to the complainant, which should be compensated by the opposite parties, and the same is quantified in all at Rs.19 lakhs. Hence the complaint.
4. The opposite party, admitting that the complainant brought his wife to the hospital for delivery, who had undergone 6 pregnancy, on which only one child is alive, resisted the case contending, that on examination it was noticed that there was no fetal heart movement for the child, which was informed to the complainant, that the dead child was delivered within 10 minutes by performing episiotomy, that since there was bleeding after delivery, preventive injections were given, informing further the relatives to keep the blood ready as the patient had the history of bleeding after delivery, but none bothered to bring the blood, that despite all necessary steps had been taken to stop the bleeding, as well as advising the relatives to take the patient to Government Hospital, she died unfortunately for which the complainant and her relatives were threatening the opposite party, and that as such there was no negligence on the part of the opposite parties, and this being the position, question of paying Rs.19 lakhs or cost, does not arise for consideration, praying for the dismissal of the complaint.
5. On the basis of the above pleadings, supported by two documents, strengthened by proof affidavits, the District Forum took up the matter for evaluation, which revealed that there was clear negligence, and deficiency in service, on the pat of the opposite party. Thus concluding, as said above, a direction was issued to pay a sum of Rs.5,25,000/-, which is impugned.
6. The learned counsel for the appellant would contend, that within 45 minutes of the admission, everything had come to an end, and in that period, though sincere and serious attempts were made as a prudent doctor, to stop the blood, due to non-availability of the blood, because of the known complication of PPH, the patient died, for which the doctor cannot be held responsible, which was not properly assessed by the District Forum.
7. Per contra, it is the submission of the learned counsel for the respondent/ complainant, that at no point of time, the doctor had taken any effective steps to control the PPH or she has not taken even any precaution before attending the delivery, in anticipation of the problem, and infact as an alternative method, no substitute was given in the absence of blood also, which are all should be construed as deficiency in service, considered by the District Forum properly, not to be disturbed.
8. It is the case of the complainant, that he admitted his wife in the opposite party hospital at about 2.00 am on 31.8.2007, whereas it is the case of the opposite party that the patient came to her hospital after others refused to give treatment, or sent her out, only at 5.00 am. Whatever may be the time of admission, as pleaded in the written version, which is not very much under challenge, the patient was having severe pain, examination revealed no fetal heart, and the head of the child was upside down, pressing the perineum. Therefore by performing episiotomy, the dead baby was delivered. As far as these factual aspects are concerned, we find no much dispute, and for the death of the child, the opposite party cannot be held responsible. Admittedly, the complainant had taken treatment for his wife prenatal in two hospitals. The complainant had also accused one Dr.Dhanalakshmi, even giving a criminal case against her also, alongwith opposite party, resulting registration of a case under Sec.304 part I CPC. Thus it is seen, all of a sudden, the patient was brought to the hospital of the opposite party, who is a qualified gynecologist, not in dispute. Therefore we have to see, as a prudent doctor, expected by any person, whether the opposite party had performed her duty or atleast attempted to perform her duty, though there was constrain of time. If these things are available, considering the short span of time, the patient was treated by the opposite party, we may think of relieving the doctor, as the she has not committed any deficiency, which is absent in this case.
9. Any doctor, who attends the pregnant lady for delivery, is expected to maintain a record, called case sheet, which is also prescribed by the Medical Council of India, though it may not be possible to prepare case record, then and there considering the emergency situation, and nothing will prevent the doctor from making enquiry, then understanding the complicity, attending the patient, then recording the same in the case sheet, which is also not positively available.
Ex.A1 is the case sheet, said to be maintained by the opposite party. This record would reveal, what had happened from 5.0 am to 5.45 am, the time of death. As admitted by the opposite party, examination revealed death of fetus, alerting complication. Therefore, a prudent doctor is expected to go for blood test, make preparation for securing the blood, through the relatives or from nearby blood bank, etc., for which there should be corresponding entries in the case record. The opposite party has not even ascertained the blood group, and she has not even made any entries about the steps, if any taken to secure blood. The nearest town Salem, will have the blood bank, and therefore the opposite party should have advised the complainant or his relatives to secure blood, giving the group, that could be possible, if the blood group is ascertained. Thus it is seen, in the initial stage itself, the opposite party failed to ascertain the blood group and anticipating postpartum hemorrhage, since it is a known complication, more or less in pregnancy, she should have taken all steps, that too while running a clinic, being a qualified doctor.
10. It is also an admitted fact, that after delivery of the dead baby, the complainant went to burial ground, to bury the baby. Immediately, after delivery, it seems there was no complication, even as seen from the case record. The doctor has also noticed, that the patient was anemic. All the more, knowing that the patient was anemic, the opposite party should have taken positive steps, to secure blood, which she failed, and severe PPH was noticed at 5.35 am, and within 10 minutes or so, BP was not recordable, thereby showing the end of life. Even in the absence of blood, it is medically accepted case, even as held by this commission in F.A.16/2001 dt.7.1.2010, a substitute for blood viz.
Haemocel, is to be given as an interim measure, till the blood is secured and this kind of known procedure, which the opposite party should be aware of, was not followed. The fact, Syntocyn medicine was given may not be sufficient as urged by the learned counsel for the appellant, though it may help, but not effectively. Even without Haemocelin, without procuring blood, and even without ascertaining the blood group, episiotomy was performed, and since proper attention was not given, or sincere attempt has not been taken, since not recorded so, we are inclined to say, that there was some kind of deficiency on the part of the opposite party, though she had attended the patient, taking the risk, for which others were not willing, as reported. Be it as it may. As pointed out by us supra, since the opposite party has not proved, that she had made necessary steps to prevent PPH, and on happening she had also taken all medically required steps, the District Forum considering these fact, has come to the conclusion, that there was some deficiency, which finding, we are inclined to accept, that too considering the case record, which is in a way supported by the proof affidavit of the complainant, not seriously challenged by the opposite party, regarding demand of money, and the careless act of the opposite party.
11. Then, coming to the question of quantum of compensation, though a life is lost, we feel, having regard to the facts and circumstances of the case, and the period of time attended by the opposite party, when others reluctant, the quantum awarded is on the higher side, which we are inclined to reduce, at the same time, not affecting the complainant also very much, in view of the further fact, within 40 minutes, in the hospital of the opposite party, the complainants wife died due to known complication, for which, there was no facility in the hospital to control. Hence we are inclined to reduce the compensation from Rs.5 lakhs to Rs.4 lakhs.
12. In the result, the appeal is allowed in part, modifying the order of the District Forum in CC.8/2009 dt.31.3.2010, reducing the compensation alone from Rs.5 lakhs to Rs.4 lakhs, otherwise confirming the order of the District Forum. No cost in the appeal.
VASUGIRAMANAN J. JAYARAM M. THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Medical