State Consumer Disputes Redressal Commission
Sujatha Selvakumar, W/O.Selvakumar, ... vs Dr.K. Latha, Venkateswara Hospital, ... on 29 November, 2011
Date of filing : 30.05.2002
Date of order : 29.11.2011
BEFORE THE TAMILNADU
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial
Thiru.S.Sambandam,
B.Sc., Member
O.P.No.65/2002
TUESDAY THE 29th DAY OF NOVEMBER 2011.
Sujatha Selvakumar, W/o.Selvakumar, No.17/8, Sivankoil Sannadi Street, Vadapani, Chennai 600 026. Complainant Vs.
1. Dr.K. Latha, Venkateswara Hospital, 125, S.P.Koil Street, Chidambaram 608
001.
2. The Managing Director, Venkateswara Hospital, 125, S.P.Koil Street, Chidambaram 608
001. .. Opposite parties This complaint coming on before us for hearing finally on 24.10.2011, upon perusing the material documents, and upon hearing the arguments of counsel for both sides and having stood over till this day for consideration, this Commission made the following order.
Counsel for the Complainant :
M/s. M.Vijayanand, Advocate.
Counsel for the Opposite parties : M/s. Sudha Ramalingam, Advocate.
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
1. The complaint filed under Section 17 of the Consumer Protection Act- 1986 :
Complainant filed a complaint claiming compensation of Rs.6,00,000/- for the loss mental agony and sufferings due to the negligence of opposite parties regarding the delivery of the child and for the costs.
2. The complainant approached the 1st opposite party on 15.1.2001 at the clinic at Chidambaram for consultation for treatment for the expected delivery of her child after having initial examination at Chennai. The complainant used to have the consultation and treatment with the 1st opposite party after consulting on 15.1.01 regular tests were taken and having gestational diabetic case, 1st opposite party instructed to have routine check up for every 15 days. Accordingly she had the check up on 4.2.2001, 14.2.01, 6.3.01, 16.3.01 and on 20.3.2001 and during those checkups her weight was taken in all as 72 kgs, 73 kgs, 73 kgs, 72 kgs and 79 kgs respectively. But it was replied by the 1st opposite party regarding the weight of 79 kgs on 20.3.01 it was wrongly mentioned due to clerical error. Since the expected delivery day was given as 23.3.01, the complainant approached 1st opposite party on 20.3.01 for admission for the delivery. The 1st opposite party stated as there was no labour pain and asked to take scan on 24.3.01 and after taking the scan on 24.3.01 the result was not furnished to the complainant and retained purposely to conceal her negligence and on 28.3.2001 only after 8 days of delay caesarean was conducted. But because of delay the child died immediately after it was born. The complainant also had infection due to unhygienic conditions and lack of proper facilities that prevailed in the clinic of the opposite party. If the caesarean operation was performed as early as on 20.3.01, the death of the child would not have occurred and the 1st opposite party failed and neglected to give proper advise and also failed to perform the duties to the complainant by simply blaming the complainant as if she had neglected their service. Hence after giving legal notice dated 18.11.01 the complainant came forward with this consumer complaint claiming above reliefs.
3. The opposite parties denied the allegations of the complainant in their written version except to state that the complainant was admitted for delivery and the 1st opposite party exercised reasonable care and skill in diagnosing the Gynacity problem in performing the appropriate treatment in providing care and advise to the complainant. There was no deficiency on their part. The complainant was advised to admit even on 16.3.01 since he was a diabetic patient on 23.3.01 also to advise for admission. But she got admitted only on 26.3.01 and after admitting labour pain was induced to deliver the child normally and then only caesarean operation has performed on 28.3.2001. The new born child of the complainant suffered from mal formation in the head and anus which were shown to the complainant and her relatives. The diabetic mothers do have babies with congenial mal formations and the presence of those mal formations in the child of the complaint is the probable cause of death. These crucial facts were suppressed by the complainant in her complaint. Regarding the legal notice proper reply was given and mentioning of weight as 73 kgs on 23.3.01 as wrongly noted as 79 kgs within 4 days no person could gain 7 kgs of weight and thereby the complaint to be dismissed as not maintainable.
4. Both sides have filed their proof affidavits and the documents of complainant side are marked as Exhibits A1 to A13 and no documents filed for opposite parties side.
5. Point for consideration are :-
1) Whether there is any negligence or deficiency of service on the part of the opposite parties while giving treatment for the delivery of the complainant as alleged by the complaint ?
2) Whether the opposite parties are liable to pay any compensation for the alleged loss, mental agony etc., ?
3) To what relief ?
6. Point No. 1 : In this complaint enquiry, the complainant contended that she had consultation for a delivery of child and treatment from the 1st opposite party attached to 2nd opposite party and it is also admitted by the opposite parties that the complainant had consultation and treatment for her delivery and delivery was made by the 1st opposite party as a Gynecologist. The complainant had treatment consultation from 15.1.2001 to 28.3.2001 and it is the admitted case of both sides that after LSCS operation the male child was taken out alive and subsequently died for which the complainant alleged only because of the negligence of the 1st opposite party in admitting the complainant belatedly for the caesarean operation even though expected date of delivery was given as 23.3.01. But where the opposite party contended that only the complainant had got admitted belatedly on 26.3.2001 for her delivery in spite of their advise to get admission on 20.3.2001 itself since the complainant was having gestational diabetic during the course of pregnancy and the 1st opposite party contended that she had taken due care and diligence in giving the treatment and since the baby died not because of the belated caesarean operation, but because of the congenial defect due to mal formation in the head anus which was shown to the complainant and her relatives and this could be the cause of death of the child. It is the admitted case of both sides that the complainant was given her expected date of delivery was on 23.3.01 admitted with the opposite parties hospital on 26.3.01 only and after that only on 28.3.01 LSCS was performed and a male child was delivered after the caesarean and died immediately.
7. While the 1st opposite party contended in her written version and as well as in her proof affidavit that the operation was performed under special anesthesia in the presence of anesthetist and child specialist and the baby was delivered at 1.40 am on 28.3.01 which died soon after its delivery. While explaining efforts taken by the 1st opposite party in the process of delivery she has stated that after admission on 26.3.01 all the standard measures to induce the labour was initiated and since the routine conservative (non surgical methods) failed the complainant was advised to undergo caesarean operation to deliver the child and the relatives were informed and the live male child was delivered by caesarean and in spite of resuscitation efforts by a pediatrician as the child was having congeniently mal formation in the head and anus and thereby died. It is contended that on 27.3.01 at 6.00 am PGE was inserted into vagina for progression of labour and as a progress of labour was not adequate by 1.00 pm, cerviprime gel was applied to induce uterine contraction and the babys foetal heart rate was monitored as there was no good progress of labour caesarean operation was suggested and informed to the complainant and relatives and after obtaining her mothers signature for the consent which is admitted by the complainant in the complaint and thereafter on 28.3.01 at 1.40 am after the caesarean operation the baby was delivered. Against this complainant contended it is only because of belated caesarean operation even though she suggested for the same on 23.3.01 itself the opposite party not accepting the same and admitted her only on 26.3.01. But there is no evidence or proof to prove the same. In case of medical negligence it is the initial burden of the complainant to prove the same as per the ruling reported in Jacob Mathew Vs State of Punjab 2005 SCC (I) and in this case the complainants except oral pleadings no other acceptable evidence or materials are available. Since the complainant relied upon only documents Exhibits A4 and A6 regarding the routine check up prescriptions given by the 1st opposite party in which the weight of the complainant are noted as follows :- For the dates 4.2.2001, 14.2.2001 and 6.3.2001, 16.3.2001, and 20.3.2001 and thereby the weight are mentioned as 72 kgs, 73kgs, 73 kgs, 72 kgs and 79 kgs only for the date 20.3.2001. The weight was mentioned as 79 kgs which was about 7 kgs more than the weight on 16.3.2001 which is within 4 days from the last weight taken.
By this extraordinary weight mentioned alone the complainant claimed that in spite of the increasing the weight the opposite parties have not taken care to give treatment regarding as delivery of child. But the 1st opposite party contended it is not practically possible to get increase of 7 kgs weight within 4 days and inadvertently the weight on 20.3.2001 was mentioned as 79 kgs by her staff who was assisting her and since the results of the tests and the progress of the treatment were all well within the normal limits she has not suggested for any caesarean operation on 23.3.01 and waited for normal delivery till 27.3.2001 and thereafter as an alternative management to save the life of the patient and child LSCS was conducted.
This contention cannot be brushed aside simply because the complainant alleged that her weight increased 7 kgs within 4 days as per the opposite party which was not correct and this was not proved by the complainant by any other document having cross check for the increased weight through some other hospital or through some other weight machines to ascertain the correct weight of her on 20.3.2001.
8. On perusal of Exhibit A4 and A6 from the date of 22.1.01 till 16.3.2001 her weight was uniformly found between 72 and 73 kgs. As contended by the opposite parties. The weight on 20.3.01 within 4 days from 16.3.01 on that date having 72 kgs would rise to increase of 7 kgs to become 79 kgs which is not possible and this must be the wrong entry as admitted by the 1st opposite party.
As far as the treatment given for giving delivery of the child is concerned the opposite party explained the circumstances and the efforts taken for inducing labour pain to extract baby in the normal course without having any surgical process thereafter only conducted the caesarean operation with which we find that there are no chance of negligence or deficiency in the 1st opposite partys service being a qualified Gynecologist having more than 7 year experience in the field and having longer service in the medical treatment with MBBS, MD., Obstrics and Gynecology and other contention of the complainant is she was not provided the scan report taken on 24.3.01. The 1st opposite party admitted in her written version that a scan was taken on 24.3.01 and in her proof affidavit it is contended in para 23 that scan report was retained by the petitioner complainant herself with the contents of the report were entered in to hospital case sheet.
However the complainant falsely claims that 1st opposite party wantonly concealed from her. This averments were not denied by the complainant by a subsequent affidavit or any other mode of proof even though the opposite parties failed to produce the medical records relating to the treatment given by them by way of day today entries in view of the facts and circumstances of the case as the complainant herself has not come forward with full real facts and circumstances of the case with entirety and seems to have suppressed other details we cannot hold that the opposite parties are negligent in their performance. Regarding the unhygienic condition of the clinic the complainant contended that she had infections due to unhygienic condition and lack of proper facilities that provided in the clinic of the opposite parties, she has not filed any medical report to prove the same. But whereas the opposite parties through 1st opposite party contended in para 24 of the proof affidavit when the allegation is unproved and the complainant never suffered any infection at the time of her admission on 2nd opposite partys hospital and none of the patients suffered from any infections from the hospital and it is well maintained hospital with all the modern medical facilities. To contradict the same the complainant has not come forward with any acceptable proof or material. In those circumstances in view of the foregoing discussions and reasons stated we are of the view that there is no negligence or deficiency of service on the part of the opposite parties in giving treatment to the complainant regarding her delivery of the child.
9. Point No.2 : In view of the finding in point No.1, the complainant could not entitled for any relief as prayed for.
10. Point No.3 : In view of the findings as above the complainant is not entitled for any relief as sought for and the complaint deserves to be dismissed as devoid of merits.
11. In the result, the complaint is dismissed. No order as to costs.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL LIST OF DOCUMENTS Exhibits of the complainant A1 Xerox copy of Test report given by Dr.R.Vijayalakshmi dated 20.12.2000.
A2 Xerox copy of Antenatal card.
A3 Xerox copy of Ultrasonography report, dated 9.1.01 A4 Xerox copy of 1st opp. partys prescription showing weights on backside dt.15.1.01.
A5 Xerox copy of Test Report dated 4.2.01.
A6 Xerox copy of Prescription report of 1stopposite party back side showing weights dt.24.2.01.
A7 Xerox copy of Test Report dated 6.3.01.
A8 Xerox copy of Test Report dated 16.3.01.
A9 Xerox copy of Test Report dated 27.3.01.
A10 Xerox copy of Report of 1st opposite party dated 8.8.01.
A11 Xerox copy of Report of 1st opposite party dated 8.8.01.
A12 True copy of Lawyer notice of the complainant dated 18.11.01.
A13 True copy of Reply by 1st opposite party dated 27.12.01.
Exhibits of the opposite parties : - nil -
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/ Medl