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Saturday, January 12, 2013

Medical Negligence = complainant had to undergo hysterectomy to save her life and also lost the chance of having a male child on account of the carelessness and negligence on the part of the petitioners/opposite parties (husband and wife) who are running a private hospital. = Admittedly Dw1 is a general physician. = Evidently a complicated case required the attention of an experienced gynecologist (See Williams of Obstetrics page 825 , 22ndedition). It is mentioned in the above text book that in instances in which fundas has not been adequately monitored after delivery the blood may not escape vaginally but instead may collect within the uterus. The uterine cavity may thus become distended by 1000 ml. or more of blood while an attendant fails to identify the large uterus or having done so, erroneously massages a roll of abdominal fat. The case of post partum uterus, therefore must not be left to an inexperienced person(at page 825, ibid) . It is also mentioned therein that in many woman uterine atony can atleast be suspected well in advance of delivery. For example the over distended uterus is prone to be hypotonic after delivery (at page 826, ibid). In the instant case there is no evidence of such suspicion as Pw4 the gynecologist who did the prenatal consultations has not stated any thing about the same. No question was asked to her in this regard. It is mentioned in the above text book that mismanagement of the 3rd stage of labor can also result in complications and postpartum haemorrhage. Of course in the absence of the case sheet of the hospital wherein she underwent hysterectomy the inability to adduce direct evidence in this regard is evident, especially as Dr. Thomas Punoose, who did the hysterectomy is no more. All the same we find that the testimony of Pws 1 and 2, that the complainant was informed earlier as well as at the time of admission for delivery that the gynecologist may not attend her is not at all convincing. There is no case that there is no other hospital in the area with a gynecologist. Dw1, the first opposite party should have told the complainant and the bystanders at the time of admission itself that the gynecologist would not be available and the option should have been given to the complainant to go to some other hospital. In this regard we find that there is deficiency in service on the part of the opposite parties. Hence the order of the Forum is set aside. 13. It is an admitted case of the parties that petitioner no. 2 who is Gynecologist, never attended respondent at the time of delivery. It is also an admitted fact that respondent developed bleeding and as such she had to be shifted to another Hospital. Though, petitioners, in their written statement have pleaded that respondent was informed that the delivery would not be conducted by petitioner no. 2. However, in case of dire emergency, petitioner no. 2 was called. Petitioners have further pleaded that inspite of illness, petitioner no. 2 came to the hospital and examined the respondent. 14. There is nothing on record to show that petitioners ever informed the respondent that the delivery would be conducted by petitioner no. 1 and not by petitioner no. 2 (Gynecologist). To prove all these material facts, petitioners ought to have placed the relevant documents, that is, case sheets and papers relating to the treatment given to the respondent. Not even a single document has been placed on record. It has been proved on record that there was bleeding at the time of delivery which was uncontrollable by petitioner no. 1 and that is why respondent was shifted to other hospital, namely, Nirmala Hospital. 15. Under these circumstances, negligence on the part of the petitioners is writ large. I do not find any ambiguity or illegality in the impugned order passed by the State Commission. There is no merits in the present revision petition and same is hereby dismissed 16. No order as to cost.


      NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

    REVISION PETITION NO.  1935  OF 2011

                                                              Alongwith
   ( I.A. No. 1  of 2011)
 (For Stay)

 (From order dated 27.01.2011  in Appeal No. 434 of 2005  of Kerala State Consumer Disputes Redresdsal  Commission, Vazhuthacaud,

Thiruvananthapuram)



1.              Dr.  V. Ramachandran,
                 Chief Medical Officer,
                 Reshmi Hospital,
                 Peravoor, Kannur Dist.
                 Kerala State

2.              Dr. Rethana Ramachandran
                 W/o Dr. V. Ramachandran
                 Gynecologist,
                 Reshmi Hospital,
                 Peravoor, Kannur Dist.
                 Kerala State
                             .                                                 …… Petitioners
         
                                                   Versus
Sissy Johny Vadakkekara
W/o John Y Thomas,
Vadakkekara House,
P. O. Thondiyil,
Kannur District,
Kerala State                                                           ….. Respondent

BEFORE:

HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

For the Petitioners                        :    Mr. Jogi Scaria,  Advocate

For the Respondents                    :    Mr. M. I. George, Advocate

 Pronounced on:     9th  January,  2013

ORDER

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

          In this petition there is challenge to order dated 27.1.2011, passed Kerala State Consumer Disputes Redressal Commission, Vazhudhacaud,  Thiruvamamthapuram   (for short, ‘State Commission’).

2.   Brief facts are that 
respondent/complainant had to undergo hysterectomy  to save her life and also lost the chance of having a male child on account of  the carelessness  and negligence on the part of the petitioners/opposite parties (husband and wife) who are running a private hospital.  
It is alleged that 
respondent for her second pregnancy first consulted Dr. Tessy Jose, the Gynecologist of Christuraja Hospital, Kuthuparambu, who at the 9th month of pregnancy after examination told her that the foetal growth is normal and she can have normal delivery. 
On 28.6.1998 at about 12 P.M, respondent started developing signs of labor and was brought to the hospital of the petitioners.  
Petitioner no. 2, gynecologist after examining her, advised that it is the first stage of labor and asked her to get admitted when pain increased. Petitioners’ hospital was preferred as it was situated very near to respondent’s house. 
On 29.6.98 at about 5.30 A.M, respondent was admitted at the above hospital by respondent no.1.  At the time, she was having labor pain. Respondent and her relatives requested petitioner no. 1 to call the gynecologist.  
Petitioner no. 1 told them that since respondent is not having true labor pain, he will call the gynecologist when it is required.  At 10.30 AM, the pain increased and again the request to call the gynecologist was not complied with.  
It is petitioner no. 1 who attended the delivery and  he applied much force to take out the baby.  
At last on 11.20 A.M, the baby was taken out and it was told that there is no problem. Immediately thereafter, there was profuse bleeding.  Even then the gynecologist was not called.  
In spite of repeated requests, only on 12.30 hours petitioner no. 2/Gynecologist came and expressed astonishment on seeing the condition of the respondent. By that time, respondent was completely exhausted by bleeding.  
The request to refer to a higher center was also refused.   Finally by 2.10 P.M, petitioner no.1 agreed to shift the respondent to Nirmala Hospital, Iritty in his own ambulance. 
At Nirmala Hospital, respondent was subjected to an emergency hysterectomy. 
She had to be administered 9 bottles of blood and was discharged after 12 days. Respondent is having only 2 daughters and in fact she wanted a boy. Thus, respondent has alleged gross negligence on the part of the petitioners and claimed Rs. 3.25 lakh as compensation and refund of medical bills etc.   
3.   Petitioners in their written version have admitted that respondent had consulted them at their hospital on 28.6.1998 and the expected date of delivery was 4.7.1998.  She also wanted to undergo Post Partum Sterilization (PPS) after the present delivery.  She was advised to report when pain starts.  When respondent enquired as to the availability of Petitioner no. 2/Gynecologist, she was told that any one of the petitioners would be conducting delivery as petitioner no.1 is also well experienced and also told that the P.P.S. would be conducted by petitioner no.2.
4.      It is further stated that on 29.06.1998 in the morning, respondent reported with early labour pains and was seen by petitioner no.1 who was on duty at that time. Unfortunately on that day petitioner no. 2 was laid down with fever and was not in a condition to attend to her routine hospital work. This fact was conveyed to the respondent and her husband and it was informed to them that the delivery would be conducted by petitioner no.1 and only in case of any dire emergency, petitioner no. 2 would be called. The option to go elsewhere was also given to the respondent as she was only having early labour pains. But respondent and her husband expressed their agreement at this arrangement. Neither respondent nor her husband insisted on the presence of petitioner no. 2 to examine her. Respondent was admitted at 6. AM. Progress of labour was checked regularly by the staff of the hospital and verified by the petitioner no.1. There was a steady progress of labour and the respondent was shifted to the labour room by 10.45 AM. Satisfied with the condition of the respondent, petitioner no.1 returned to O.T. 
At 11.15 AM the cervix was fully dilated. 
A healthy female baby weighting 3.10 Kg was born by normal delivery. 
Episiotomy, Placenta and membranes were expelled as a whole. Injections to contract the uterus were given. 
Bleeding was within normal limits. Epistomy was sutured in layers and the uterus was well contracted and retracted.  
Petitioner no. 1 returned after seeing that the respondent was okay. 
The husband and the mother of the respondent were informed about this. 
It is also stated that at 12.30 PM, petitioner no.1 went to the labour room. 
There was minimal oozing from the uterus which was contracted and the BP was normal. 
So a packing was given to compress the uterus. 
The fact about the minimal oozing was informed to the husband and mother of the respondent. 
At 12.50 PM the packing was removed and it was found that the oozing persisted. Medication to control the bleeding was given and the husband of respondent was advised to arrange donors for blood transfusion. 
Petitioner no.2 was called to see the respondent. Petitioner no.2, inspite of her illness came and examined the complainant. 
The cervix was visualized to rule out any trauma. By 1.50 PM the bleeding was controlled and the BP was stable at 110/70 mm of Hg. 
But at 1.30 PM the uterus became flabby and bleeding was excessive. 
As the husband of the respondent had gone out to arrange donors, parents of the respondent were informed about her condition. Soon husband of respondent reached with the donors and cross matching was done from the hospital’s lab as there was excessive bleeding with slight fall in BP. 
The relatives were advised to shift the respondent to a major hospital with better facilities as she might require hysterectomy. 
The husband of the respondent was quite upset and asked petitioner no.1 to make all arrangements to save the respondent. So, petitioner no.1 contacted the surgeon, Anesthetists and gynecologist of Nirmala Hospital, lrritty and respondent was shifted to that hospital. 
By the time respondent had reached hospital there was further fall in BP. Immediate blood transfusion was given as there was already cross matched donors. 
Since the uterus was flabby and bleeding continued, after getting consent from the husband of respondent, hysterectomy was done on her. 
Altogether 8-9 pints of blood were transfused.  
5.       It is further stated that petitioner no. 1 remained with respondent all through the procedures at her request. 
After recovery from the operation, respondent and her husband expressed their thanks to petitioner no. 1. 
Subsequently, respondent’s husband came with Panchayat President and wanted Rs.20,000/- as compensation as they had to spend that much amount at Nirmala Hospital. 
However, the same was refused since there was no negligence on the part of the petitioners. 
In fact the life of respondent was saved because of the prompt action taken by the petitioners.
6.  Consumer Disputes Redressal Forum, Kannur (for short, ‘District Forum’) vide order dated 30.11.2004, dismissed the complaint of the respondent.
7.          Aggrieved by order of District Forum, respondent filed an appeal before the State Commission, which partly allowed the same and passed the following directions;
    In the circumstances and in view of the fact that the matter is of the year 1998 and also as the evidence as to the mismanagement of delivery by the first opposite party could not be pin pointed a sum of Rs. 30,000/- is ordered to be given as compensation to the complainant with interest @ 8% per annum from 17.11.1998, the date  of filing of the complaint.  The opposite parties will make the payment within 3 months from the date of receipt of this order, failing which the complainant would be entitled for interest @ 15% from 27.1.2011, the date of this order. 
    In the result, the appeal is allowed in part as the above”.
8.          Hence, this revision.
9.       I have heard the learned counsel for the parties and have gone through the record.
10.    It has been contended by learned counsel for the petitioners that 
it is the specific case of the petitioners that at the time of admission, respondent was informed that petitioner no.2, the Gynecologist, shall be unable to attend her hospital duties  due to illness and option was given to respondent to go elsewhere. Furthermore, 
petitioner no. 1 took  the respondent in their own ambulance and accompanied  respondent to Nirmala Hospital and stayed there. 
Respondent was attended by the doctors of that hospital. 
There is no evidence of mis-management or any negligence on the part of the petitioners. 
11.     On the other hand, it has been argued by the learned counsel for the respondent, that 
admittedly petitioners were not keeping proper case sheets with respect to the treatment being provided to the respondent which itself amounts to dereliction to duties on the part of the petitioners. 
Thus, there was deficiency in this case.
12.     State Commission, in its impugned order has observed ;
               “  Further as pointed out by the counsel for the appellants, the opposite parties have not kept a proper case sheet with respect to the consultation and treatment provided to the complainant.  
Ext. B1 is a collection of bits of paper wherein treatment particulars are seen written without continuity. 
There are overwritings also. The opposite parties have evidently not maintained a proper case sheet and 
hence the same amounts to dereliction of duty cast  on them to keep  a proper case sheet.  
       It was pointed out that 
Dw1 has noted in Ext. A7 the certificate issued by him with respect to the complication as atonic secondary PPH.  
It was pointed out from the evidence of Pw4 the Gynecologist and Dw2 that secondary PPH is the one occurring  after 24 hours of delivery. 
Admittedly Dw1 is a general physician. 
It is the contention of the complainant that the child was taken out applying force and pressure 
and that opposite parties 1 and 2 quarreled in the labor room with respect to handling of the case by Dw1.  
It is pointed out by the counsel of the appellant 
that Dw1 has stated in the cross examination that he noticed at 12.30 hours that there was oozing of blood and the uterus was flabby.  
Thereafter he has stated that after removing the packing at 12.40 hours the uterus was not flabby.  
It is alleged that from 12.30 hours  till 1.30 P.M. no steps were taken to control bleeding. 
No details of the treatment administered and the medicines given are mentioned in the version
It is only in the testimony of Dw1 he has mentioned that bimanual compression of the uterus was done.  
Dw2 has not stated anything  in this regard  also. 
Evidently a complicated case required the attention of an experienced gynecologist (See Williams of Obstetrics  page 825 , 22ndedition).  
It is mentioned in the above text book that 
in instances in which fundas has not  been adequately monitored after delivery the blood  may not escape vaginally but instead may collect within the uterus.  
The uterine cavity may thus become distended by 1000 ml. or more of blood while an attendant fails to identify the large uterus or having done  so, erroneously  massages a roll of abdominal fat.  

The case of   post partum uterus, therefore must not be left to an inexperienced person(at page 825, ibid) .  
It is also mentioned therein that in many woman uterine atony can atleast be suspected well in advance of delivery. 
For example the over distended  uterus is prone  to be hypotonic after delivery (at page 826, ibid).  
In the instant case there is no evidence of such suspicion as Pw4 the gynecologist who did the prenatal consultations has not stated any thing about the same. 
No question was asked to her in this regard.  
It is mentioned in the above text book that mismanagement of the 3rd stage of labor can also result in complications and postpartum haemorrhage. 
Of course in the absence of the case sheet of the hospital wherein she underwent hysterectomy the inability to adduce direct evidence in this regard is evident, especially as Dr. Thomas Punoose, who did the  hysterectomy is no more. 
All the same we find that the testimony of Pws 1 and 2, that the complainant was informed earlier as well as  at the time of admission for delivery that the gynecologist may not attend her is not at all convincing. 
There is no case that there is no other hospital in the area with a gynecologist. 
Dw1, the first opposite party should have told the complainant and the bystanders at the time of admission itself that the gynecologist would not be available and the option should have been given to the complainant to go to some other hospital. 
In this regard we find that there is deficiency in service on the part of the opposite parties. Hence the order of the Forum is set aside.
13.     It is an admitted case of the parties that petitioner no. 2 who is Gynecologist, never attended respondent at the time of delivery. It is also an admitted fact that respondent developed bleeding and as such she had to be shifted to another Hospital. Though, petitioners, in their written statement have pleaded that respondent was informed that the delivery would not be conducted by petitioner no. 2. However, in case of dire emergency, petitioner no. 2 was called. Petitioners have further pleaded that inspite of illness, petitioner no. 2 came to the hospital and examined the respondent.
14.     There is nothing on record to show that 
petitioners ever informed the respondent that the delivery would be conducted by petitioner no. 1 and not by petitioner no. 2 (Gynecologist). 
To prove all these  material facts, petitioners ought to have placed the relevant documents,  that is, case sheets and papers relating to the treatment given to the respondent. Not even a single document has been placed on record.  
It has been proved on record that there was bleeding at the time of delivery which was uncontrollable by petitioner no. 1 and that is why respondent was shifted to other hospital, namely, Nirmala Hospital.      
15.     Under these circumstances, negligence on the part of the petitioners is writ large. I do not find any ambiguity or illegality in the impugned order passed by the State Commission. There is no merits in the present revision petition and same is hereby dismissed
16.     No order as to cost. 
                                                                                                                                                                           ……………………………J.
(V.B. GUPTA)
                                                                             PRESIDING MEMBER
SSB







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