By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The complainant admitted in Baby Memorial Care hospital, Moolakkal Tanur, on 20/11/2013 for the delivery and after the delivery on the same day the complainant alone was discharged. Later the baby was shown to the doctor and treated the baby and after few days it was advised to take the baby to Calicut Baby Memorial hospital and the baby was undergone treatment at Calicut Baby Memorial hospital from 24/11/2013 to 03/12/2013 and spent an amount of Rs.37,340/-. Thereafter on 03/12/2013 the baby was taken to medical college hospital Calicut at about 8 pm and the baby expired on 03/12/2013 at about 11.30 pm.
2. When the baby was at Baby Memorial care hospital Moolakkal, many investigations were done. Since not being satisfied by the investigation results asked the complainant to take the baby-to-Baby Memorial hospital Calicut. From there also several investigations were done. When the complainant was directed to take the baby to medical college hospital Calicut, complainant demanded investigation results but the results were withheld without any reason. The doctors at medical college hospital asked for the test results but the complainant expressed her helplessness. Two sisters accompanied the complainant to medical college hospital Calicut.
3. The complainant submits that when the baby was admitted at baby memorial care hospital, Moolakkal and thereafter at Calicut it was very healthy. The baby was not having any serious ailments. But when the treatment given by the hospital in a careless and sheer negligent manner led to expiry of the child on 03/12/2013. The opposite parties did not issue test results with ulterior motives. The complainant alleges the result were not given only to make changes to exonerate themselves in anticipation of the litigation. The complainant content that the baby was very healthy and there was no serious ailment to the baby. Due to improper and negligent way of treatment caused expiry of the child. The complainant was put in mental strain and stress. The incident caused much pain and agony and the entire family became much agonized. Hence the complainant prays for a compensation of Rs.15,00,000/-.
4. The complainant issued legal notice to the opposite parties on 10/02/2014 and the first opposite party issued a reply. The first opposite party stated that the baby was having a history of hypoglycemia and Hyper bilirubinemia etc. The reply was factually incorrect and the diagnosis was incomplete and they were suspecting Galactosemia and the blood sample was sent for further investigation. It is also alleged that the sample sent for investigation was returned because of the fault of the opposite parties. The complainant also contended that the opposite party had not informed that the shifting of the baby to a higher center would increase the chance of mortality morbidity and sepsis. The complainant also contended that that Rs.500/- collected towards the investigation was not returned to the complainant. The complainant submitted that the opposite party hospital still not certain whether the baby was suffering from Galactosemia or not. Hence the complainant alleges negligence against doctors at the hospital in treating the baby and caused filing this complaint.
5. On admission of the complaint notice were issued to the opposite parties and the opposite parties entered appearance and filed version denying the entire averments and allegations in the complaint.
6. The first opposite party filed version contenting that the complaint is not maintainable either in law or facts, frivolous, vexatious and devoid of truth or bona fides, there is no negligence or deficiency in service as alleged by the complainant and so the complainant is not entitled to get any relief prayed in the complaint.
7. The opposite party submitted that as per records the baby was born by caesarean section on 21/11/2013 and later developed hypoglycemia and clinically found to be lethargic cyanosed and not sucking at mother’s breast. The baby was managed with IV fluids and supportive care and initially shown symptoms of improvement but later on 23/11/2013 at 9.35 pm the baby again developed cyanosis and became lethargic with weak cry and in view of persistence of cyanosis the baby was referred to the second opposite party hospital.
8. The baby was brought to the emergency department at the second opposite party hospital at 11.50 pm on 23/11/2013. On examination the baby was afebrile and had respiratory rate 74/mt, heart rate 125/mt and oxygen saturation was 95% but found to be lethargic, weak cry and not sucking. The baby was admitted to neonatal ICU with provisional diagnosis of hypoglycemia, hyper bilirubinemia and to rule out sepsis and seizures. The baby was stared on IV fluid, antibiotics, oxygen and other supportive care and blood and CSF was sent for investigations and X-ray chest and abdomen was taken. After commencing treatment IV fluids and antibiotics with supportive medical measures the baby had shown improvement on clinical side over 24/36 hours of admission. Investigation showed Hb 20gm%, TC, DC and platelets with normal limit, CRP was negative, CSF study showed normal Na+. Calcium normal, T Bilirubin 14.6mg/ dl and hence based on the investigation findings the baby was started on single surface phototherapy.
9. On 25/11/2013 NG feeds of dilute LBW formula milk was started at 5 ml 2nd hourly and since the baby tolerated the same NG feeds were increased and IV fluid decreased and oxygen gradually decreased. GRBS done daily showed normal findings and bilirubin repeated on 26/11/2013 showed 14.8mg /dl but on 29/11/2013 bilirubin increased to 17.5 mg /dl. In view of the increased bilirubin the baby was started on double surface phototherapy. On 29/11/2013 the baby was started on nonnutritive breast feeds but the baby was not sucking well and was weak. Direct breast feed started on 30/11/2013 but the baby was not sucking well and NG feeds were continued. On 01/12/2013 baby became lethargic and not sucking well and GRBS was low (35mg %) and IV fluids restarted and investigation repeated. Bilirubin showed increased level to 20 mg /dl. Clinically the baby became lethargic in spite of full NG feeds breast feeds and on investigation side bilirubin showed increase level and low blood sugar level suggestive of suspecting the possibility of congenital error of metabolism. Urine was sent for mini metabolic screening. The first opposite party discussed with the relatives about the condition of the baby and the possibility of an involve error of metabolism since the baby was shown short term improvements followed by deterioration and became lethargic. It was informed that the baby required continued management in NICU or IV fluids to maintain sugar level and phototherapy for correcting high value of bilirubin. The baby also required further investigations to find out the reason for high bilirubin. The opposite party submitted that at this stage the relatives disclosed their financial constraints and requested for shifting the baby to medical college for further management. The opposite party advised the complainant to continue treatment in the hospital as the baby required further investigations to confirm diagnosis. On 02/12/2013 mini metabolic screening report received as positive for reducing substance by Benedict’s test which was in favor of galactosemia which is an inherited congenital disease. The findings as per screening disease was informed to the relative and advised for a confirmatory test by sending blood sample for the test for galactosemia to metropolis lab Mumbai. Accordingly, blood sample was collected and sent to the lab Mumbai on 02/12/2013. In the mean while NG feeds of soya-based formula was started. Liver function test was also done which revealed high bilirubin level (uncoagulated) with liver enzymes being normal. On 03/12/2013 the baby did not tolerate soya-based milk formula so feed was stopped. At this juncture the relatives insisted for shifting the baby to medical college hospital due to financial reasons and they were explained the risk of high mortality, morbidity and chance of sepsis in shifting the baby in such a condition. But the relatives decided to take the baby to IMCH at their own risk against medical advice and voluntarily given written consent. In the circumstances the baby who was managed in neo natal intensive care unit in the second opposite party was transferred to IMCH Calicut along with discharge summary and all investigation report in a well-equipped ambulance accompanied by trained and experienced nursing staff.
10. The first opposite party submitted that Galactosemia is an inherited disorder marked by an inability to metabolize galactose because of a congenital absence of an enzyme which is needed to convert galactose to glucose. The first opposite party had diagnosed possibility of in born errors of metabolism and done relevant investigation and given due supportive care and medical measures. The confirmative galactosemia report is very important for management of the baby and blood was sent to metro police lab for confirmation on the basis of a positive mini metabolic screening. If the report is positive milk should be completely withdrawn and if came as negative then further investigations were required to find out the cause for hypoglycemia hyper bilirubimia and inborn errors of metabolism. All these requirements explained to the relatives and also explained the risk of shifting the baby from NICU before a confirmatory diagnosis and by discontinuing supportive care. The first opposite party attend and treated the complainant’s baby with utmost care and caution in strict regard to accepted medical practice and standard treatment protocol expected in the management of a baby having congenital metabolic disorder. In the diagnosis and treatment of the complainant’s baby the first opposite party had exercised reasonable degree of skill and care and there was no negligence, carelessness or deficiency in service on his part. The opposite party submitted that the death of baby was not caused due to any act or omission on the part of the first opposite party and he is not liable to compensate the complainant.
11. The first opposite party specifically denied the averment in the complaint that the baby was taken to medical college hospital Calicut as per the direction from the opposite parties, that the test results were withheld when the baby was shifted to the medical college hospital, that the baby died due to criminal negligence and deficiency in service of opposite parties, that the baby was not having serious ailment, that the death of the baby was caused due to the negligent act of the opposite party etc. The opposite party submitted that the complaint is filed with twisted fact with a view to extract money from the opposite party without any just or sufficient cost. It’s also submitted by the amount quantified as compensation is highly exorbitant, exaggerated, without any substance, merit or rational and so denied. The first opposite party also submitted that he is qualified MBBS, DNB pediatrics with experience of 20 years as consulted pediatrician. Hence the complaint be dismissed with cost of the opposite party.
12. The second and third opposite parties filed version in tune with the first opposite party. They also submitted that there was no negligence, carelessness or deficiency in service on the part of the opposite parties or any doctors or staff attached to the opposite party hospitals. The opposite party submitted that the complainant approached the forum with suppressed facts and set out untrue, untenable, unsustainable and misleading allegations. The complainant was examined and treated throughout by the doctors and other staff attached to the opposite parties as per the universally accepted standard medical protocol, bestowing all care, caution and attention. There was cross consultation and the complainant was seen by the best consultants in the respective fields.
13. The baby memorial hospital is a well-equipped tertiary care hospital with state of the heart machinery / equipment and is having highly qualified and experienced doctors, consultants, nurses and paramedical staff. The hospital is accredited by NABH since 2008 and is having dual ISO certification since 2003. It is also contended they have got super specialty departments like Medicine, General surgery, neurology and neurosurgery, pathology, Gynecology, pediatric and Neonatology, orthopedic, ophthalmology, urology, Nephrology, cardiology, cardiothoracic surgery, Gastroenterology, plastic surgery, maxillofacial surgery, dermatology, pulmonology, ENT, Nuclear medicine, oncology, Rheumatology, and Anesthesia. The hospital is having well qualified and well experienced para medical staff and nurses, besides laboratory, X-ray, ultrasound, echo cardio gram blood bank, CT, MRI, Cath lab etc. It is also submitted that first opposite party is a well-qualified and experienced consultant pediatrician.
14. The opposite party submitted that the complainant’s baby was born by caesarian section on 21/11/2013 at the third opposite party hospital and was having a birth weight to 2500gms and cried immediately after birth, passed urine and meconium. On the next day of birth, the baby was clinically found lethargic and not sucking mother’s breast. The baby was managed with IV fluid and supportive care and bay had shown symptoms of improvement, and breast feeding was initiated and the baby was sound sucking well and active. Hence the baby was shifted to mother’s side. On 23/11/2013 at 9.35 pm the baby developed Cyanosis and became lethargic with weak cry. Since the condition of the baby persisted, the baby was referred to the second opposite party hospital which is a higher center.
15. The baby was brought to the emergency department of second oppose party hospital at 11.50 pm on 23/11/2013 and on examination the baby was afebrile and had respiratory rate 74/mt, heart rate 125/mt, and oxygen saturation was 95%. The baby was found to be lethargic, weak cry and not sucking. The baby was admitted NICU with provisional diagnosis of hypoglycemia, hyper bilirubinemia and to rule out sepsis and seizures. The baby was treated with IV fluids and antibiotics with supportive medical measures, the baby had shown improvement clinically over 24-36 hours of admission. The investigation showed HB 20gm%, TC, DC and platelets within normal limit, CRP was negative, CSF study showed normal Na+. Calcium normal T Bilirubin 14.6mg/dl and hence based on the investigation findings the baby was started on single surface phototherapy.
16. On 25/11/2013 NG feeds of dilute LBW formula milk was started at 5 ml 2nd hourly and since the baby tolerated the same NG feeds were increased and IV fluid decreased and oxygen gradually decreased. GRBS done daily showed normal finds and bilirubin repeated on 26/11/2013 showed 14.8 mg/dl but on 29/11/2013 bilirubin increased to 17.5mg/dl. In view of increased bilirubin, the baby was started on double surface phototherapy on 29/11/2013 the baby was started on nonnutritive breast feeds but the baby was not sucking well and was weak. The direct breast feed stared on 30/11/2013 but the baby was not sucking well and NG feeds were continued. On 01/12/2013 baby became lethargic and not sucking well and GRBS was low (35mg %) and hence IV fluids re started and investigations repeated. Bilirubin showed increased level to 20mg/dl. Clinically the baby became lethargic in spite of full NG feeds, breast feeds and on investigation side bilirubin showed increase level and low blood sugar level suggestive of suspecting the possibility of congenital error of metabolism. Urine was sent for mini metabolic screening. The condition of the baby and the possibility of congenital error of metabolism since baby had shown short term improvements followed by deterioration and became lethargic was discussed with relatives. It was informed that the baby required continued management in NICU for IV fluid to maintain sugar level and phototherapy for correcting the high value of bilirubin. Then at this stage relatives disclosed their financial constraints and requested for shifting the baby to medical college hospital for further management. But they were advised to continue treatment in the hospital as the baby required further investigations to confirm diagnosis. On 28/12/2013 mini metabolic screening report came as positive or reducing substance by Benedict’s test which was in favor of Galactosemia which is an inherited congenital disease. The findings as per screening report was informed to the relatives and advised for a confirmatory test by sending blood sample for the test for Galactosemia to Metropolis Lab Mumbai. Accordingly, blood sample was collected and sent to the lab at Mumbai on 02/12/2013. In the mean while NG feeds of soya-based formula was started. LIVER function test was also done which revealed high bilirubin level with liver enzymes being normal. On 03/12/2013 the baby did not tolerate soya-based milk formula so feed was stopped. Then the relatives insisted for shifting the baby to the medical college hospital due to financial reasons and they were explained risk of high mortality, morbidity and chance of sepsis in shifting the baby in such a condition. But the relatives decided to take the baby to IMCH at their own risk against medical advice and voluntarily given written consent. Then the baby who was managed in neo natal intensive care unit in the second opposite party was transferred to IMCH Calicut along with discharge summary and all investigation reports in a well occupied ambulance accompanied by trained and experienced nursing staff. On 05/12/2013 the Metropolis lab Mumbai informed the hospital over phone that the blood test could not be done using heal prick sample of the baby collected on 02/12/2013 and requested to submit another sample for conducting the test. The lab technician of the second opposite party hospital had contacted the relatives of the baby over phone to inform the matter and collecting the blood sample of the baby for testing. Then the relatives of the baby informed that the baby is no more. An amount of Rs.500/- which was collected as lab charge for the blood test on 02/12/2013 was returned to the relatives and they had collected it.
17. The opposite parties submitted that Galactosemia is an inherited disorder marked by an inability to metabolize galactose because of a congenital absence of an enzyme which is needed to convert galactose to glucose. The first opposite party had diagnosed possibility of this inborn errors of metabolism and done relevant investigations and given due supportive care and medical measures. The confirmative Galactosemia report is very important for management of the baby and blood was sent to metropolis lab for confirmation on the basis of a positive mini metabolic screening. If the report is positive, milk should be completely withdrawn and if it came as negative then further investigations were required to find out the cause for hypoglycemia, hyper bilirubimia and in born errors of metabolism. The opposite party had explained these requirements to the relatives and also were explained the risk of shifting the baby from NICU before a confirmatory diagnosis and by discontinuing supportive care. The opposite parties had treated and attended complainants’ baby with utmost care and caution in strict regard to accepted medical practice and standard treatment protocol expect in the management of a baby having congenital metabolic disorder. The opposite parties submitted that in diagnosis and treatment of the complainant’s baby the opposite parties had exercised reasonable degree of skill and care and there was no negligence, carelessness or deficiency in service on their part, or any of the other doctors, nurse or staffs of the hospital. The death of the bay was not caused due to any act or omission on the part of the opposite parties and thy are not liable to compensate the complainant.
18. The opposite parties denied that the baby was taken to medical college hospital Calicut as per the direction from the opposite parties and the test results were withheld when the baby was shifted to medical college hospital. The opposite party submitted that on 03/12/2013 the baby’s condition was not conducive for shifting from NICU and the risk factors were explained to the relatives but they insisted for shifting the baby to the medical college hospital on their financial concerned. The test results were provided to the relatives at the time of issuing discharge summary with a good intention to get immediate management at medical college hospital in continuation of treatment given at the second opposite party hospital. The opposite party denied that the baby died due to criminal negligence and deficiency in service of the opposite parties. It is submitted that hereditary galactosemic is one among the most common carbohydrate metabolism disorders and can be life-threatening illness during the new born period. The opposite parties denied the allegations that the baby was not having serious ailment. The baby was admitted to the second opposite party hospital with provisional diagnosis of hypoglycemia, hyper bilirubimia and to rule out sepsis and later investigations and clinical symptoms were suggestive of possibility of an in born metabolic disorder and mini metabolic screening was positive giving strong evidence of galactosemia. A confirmative test was inevitable for deciding further management and these fact regarding test results, diagnosis and medical management were well explained to the relatives. The opposite parties submitted that they have a standard and well accepted protocol and procedure and in place, authenticated by competent authority, which ensures the authenticity and accuracy of its documentation and record maintenance. According to opposite party the complainant willfully suppressed the real fact and formulated a complaint with distorted and cooked up facts for undue financial gain. It is submitted that there is no merit in the case and the death of the baby was caused due to factors beyond the control of the second opposite party and the complainant is not entitled to get any compensation from the opposite parties highlighting mental strain and stress, pain and agony allegedly suffered on account of loss of the baby give way to congenital problems. It is submitted that none of the difficulties or inconvenience was caused due to any negligence or deficiency of service on the part of the opposite parties and there for the prayer is to dismiss this complaint awarding compensatory cost to the opposite parties as contemplated under section 26 of the Consumer Protection Act.
19. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A19. Documents marked on the side of opposite party as Ext. B1 and B1 (a).
20. Complainant side examined Sheeba as PW1 and Mr. Rajesh Kumar as PW2. The opposite party examined Dr. Rajesh N, the first opposite party as DW1 and Dr. Vijayakumar as DW2 (Department of pediatrics, government medical college, Manjeri ). Complainant and opposite parties filed argument notes also.
21. Heard complainant and opposite parties, perused affidavit and documents and also perused the notes of arguments. The following points arise for consideration.
1) Whether there is deficiency in service from the side of opposite parties?
2) Whether there is negligence in service from the side of opposite parties?
3) Relief and cost.
22. Points 1& 2
The case of the complainant is that she gave birth to a full-term baby from the hospital of the 3rd opposite party on 20/11/2013 and at the time of birth the baby was healthy and not having any serious ailments. But the treatment given by the hospitals and first opposite party was with utmost carelessness and sheer negligence. The baby died due to deficiency in service on the part of opposite parties. The complainant alleged that when the baby directed to shift to MCH Calicut from the second opposite party, the opposite party did not issue treatment records to complainant which was a willful act of the opposite party. The complainant also submitted that the baby was taken to the Medical College Hospital at the request of Opposite party and the complainants were not informed the fact shifting of baby to higher center would increase the chance of mortality, morbidity and sepsis. Hence the case of the complainant is that due to sheer negligence and deficiency in service caused death of the baby. The complainant examined as PW1 and her husband examined as PW2 to prove the case of the complainant. The complainant submitted that the baby was healthy at the time of delivery. It is to be noted that the delivery was through caesarean but without any complication. Treatment record from the third opposite party, it is noted that the baby was without any congenital anomalies. But, subsequently the condition of baby worsened, medication started, shifted to NICU and on 23/12/2018 the first opposite party was called and referred to the higher center for further management.
23. The discharge summary from second opposite party revealed that the baby was with repeated episodes of hypoglycemia, poor activity, refusal of feeds and cyanosis. Baby was admitted in second opposite party NICU. The investigations revealed hypoglycemia, elevated bilirubin levels and normal CSF study. Baby was kept NPO on IV fluids, antibiotics and supportive care. NG feeds of EBM initiated on day 3 and gradually increased. Baby’s condition improved, bilirubin level decreased, but once it reached full feeds baby again deteriorated. Then urine was sent for mini metabolic screening which was found to be positive for reducing substance. Blood sent for screening of galactosemic, result of which awaited. As per bystanders’ request baby discharged and transferred to Medical College for further management. The baby died from the medical college hospital on the same day i.e., on 03/12/2013.
24. The complainant alleges that the opposite party did not provide treatment records to them when the baby was taken to the Medical College Hospital. But the complainant produced treatment records of the baby obtained from the Medical College Hospital. The complainant admitted that all records obtained from the Medical College Hospital on application under Right to Information Act, which means all the treatment records of the baby was handed over to the medical college by the second opposite party. There are further allegations that the opposite party supplied certain pages of treatment records subsequently to the Medical College, but there is no basis for the allegation. So, we do not find any merit in the contention of the complainant that no documents were issued to the complainant.
25. The complainant alleged sheer negligence in the treatment of opposite party. Mere verbal vibrations alone are not sufficient to find medical negligence on the side of a medical practitioner. The complainant did not examine an expert to establish the medical negligence in the matter. The opposite party contented that the complainant had submitted a complaint before the district collector and on that basis, there was an enquiry also. The report of the enquiry did not support the allegations of the complainant. The complainants did not prefer appeal against the findings of the DMO enquiry.
26. The opposite parties submitted the treatment records of the baby and contented that the baby was lethargic, weak cry and not sucking, provisionally diagnosed hypoglycemia, hyper bilirubinemia. The baby was under gone various investigations as contented in the version. On the basis of investigation findings started single surface phototherapy, bilirubin showed increased and then started double surface photo therapy, low blood sugar level, suggestive of possibility of congenital error of metabolism and urine was sent for mini metabolic screening. The screening report came as positive for reducing substance by Benedicts test which was in favor of galactosemia which is an inherited congenital disease. Then suggested for sending to Metropolis Lab Mumbai for a confirmatory test for Galactosemia. The sample was collected and send for investigation to Mumbai on 02/12/2013. Meanwhile the relatives insisted for shifting baby to the MCH Calicut and baby was shifted to the Medical College Hospital. The baby died within three and hours from MCH, Calicut. The complainant has got a case that the baby was shifted to the MCH Calicut at the instance of opposite parties. But the documents shows that the baby was shifted to the medical college hospital at the pleasure of the complainant. There was advise not to shift baby at that condition, so the contention of complainant that the baby was shifted to MCH Calicut cannot be accepted.
27. The document Ext A3 and A5 shows that the baby was diagnosed as having sepsis, hypoglycemia, neonatal hyper bilirubinemia with aspiration of feed. Baby had gasping respiration and soon went into apnea. So what can be inferred from the record is that the baby was born without any complication but subsequently developed complications and shown complaints of hypoglycemia (deficiency of glucose in the blood stream cyanosed (bluish discoloration of the skin due to poor circulation or inadequate oxygenation of the blood) and found to be lethargic. It is also noted that the baby initially shown symptoms of improvement and so the treatment was continued at third opposite party hospital. But later on 23/11/2013 the baby again developed cyanosis and became lethargic with weak cry and so the baby was taken to the second opposite party hospital. There also initially shown improvement in the condition of the baby but later bilirubin increased and so shifted from single surface phototherapy to double surface phototherapy. Clinically the baby became lethargic in spite of full NG feeds, breast feeds and only investigation side bilirubin showed increase level and low blood sugar level suggestive of suspecting the possibility of congenital error of metabolism. The urine sent for metabolic screening and also baby was required further investigations to find out the reason for high bilirubin. On receipt of metabolic screening report as positive for reducing substance by Benedicts test which was in favor of galactosemia (liver incapable of converting galactose in to glucose) which is an inherited congenital disease. So the opposite party advised for a confirmatory test by sending blood sample for the test for galactosemia to metropolis lab Mumbai. The opposite party has stated that blood sample was collected and send to the lab at Mumbai on 02/12/2013. But on 05/12/2013 the lab from Mumbai informed the opposite party that the blood sample sent for the investigation was not sufficient to conduct the investigation and directed to re-sent the sample but meanwhile the child had expired.
28. In this complaint the complainant did not examine an expert to establish the medical negligence as laid down by the various decisions of the Apex court in medical negligence cases. But the opposite party summoned one Dr. M. Vijayakumar who is the Professor and head of the department of Government medical college Manjeri at department of pediatric. He has deposed about the ailment galactosemia that galactosemia can be diagnosed after birth or within two or three days, if proper analysis test and care is taken by the doctor was the question put by the counsel for the complainant. The answer was that “72 മണിക്കൂറിന് ശേഷമേ galactosemia test നടത്താന് പറ്റുകയൊള്ളൂ. മുലപാല് ഒഴിവാക്കേണ്ടി വരുന്ന അസുഖം ആണ് Very rare also. Definite result കിട്ടാന് കുറച്ച് late ആകും”. He also added “if galactosemia is diagnosed within a reasonable time, mortality rate is 100%.” The second complainant examined as PW2 and she deposed that “OP2 വിന്റെ നിര്ദ്ദേശ പ്രകാരമാണ് medical college ലേക്ക് മാറ്റിയതെന്ന് പറഞ്ഞിട്ടുണ്ട്. അത് ശരിയല്ല എന്റെ ആവശ്യ പ്രകാരം ആണ് മാറ്റിയത്. .
29. The first complainant was examined as PW1 and she deposed that “കുട്ടിയെ പ്രസവിച്ചത് 21/11/2013 ന് താനൂര് BMH hospital ലാണ്. ദുര്ബലമായ കരച്ചിലായിരുന്നു എന്നു പറഞ്ഞാല് അറിയില്ല. കുട്ടി Active ആയിരുന്നില്ല.. In this matter on the basis of complaint filed by the complainants before district collector the DMO had enquired in to the matter and submitted their report. The PW1 states that “DMO യുടെ report നെതിരെ ഞാന് മറ്റ് നടപടികള് സ്വീകരിച്ചിട്ടില്ല. മേപ്പടി report നെ ക്കുറിച്ച് എന്റെ പരാതിയിലും അഫിഡവിറ്റിലും ഒന്നും പറയാതിരിക്കാന് പ്രത്യേകിച്ച് കാരണങ്ങള് ഇല്ല”. Hence the absence of expert opinion in support of the case of complainant is very crucial in the matter, on the other hand the evidence tendered by the DW2 the pediatric head of Medical College hospital Manjeri support the case of the opposite party. The only fact remain is the delay caused in detecting galactosemia and attempt to breast feed had accelerated the expiry of the baby is only the issue to consider and in the absence of evidence we cannot reach a conclusion in the matter.
30. The second and third opposite party cited from the text regarding the management of galactosemia in support of the case of the opposite party. The question of reasonable degree of care and due attendance is the consideration in medical negligence cases and in this case from the records and from the evidence tendered by the witness, the commission cannot hold that there was medical negligence or absence of due care as alleged by the complainant.
31 The complainant filed affidavit and detailed argument note contenting apparent error on the records of the opposite party. It is right to hold that there are clerical mistakes in the record of the opposite party regarding the number of deliveries, number of issues and the age of baby. But there is no record to show or prove or establish that the said discrepancies or mistakes have any nexus with the complications suffered or caused death of the child. It is also not established that the mistakes crept in the records suggesting any prejudice was caused on account of the alleged mistakes and so it will not be proper to find medical negligence on the basis of clerical discrepancies.
32. The complainant contended the blood sample sent to the Mumbai lab was not properly sent and also there was no sufficient quantity for the lab test which is a defective service on the part of opposite party. But it is admitted that on 05/12/2013 the opposite party had contacted the complainant informing the communication from the lab at Mumbai to re-sent sample for lab investigation. But that communication is not certain about the inadequacy or defect of the sample already sent to them. In the absence of exact reason for not enabling lab test at Mumbai, we cannot find fault with the second opposite party.
33 It can be seen that the complainants were in misery due to the sad demise of the baby who was carried by the first complainant for 10 months and give birth without complication, though it was through caesarean. The baby expired within 12 days after birth certainly result mental agony and pain to the complainants. The counsel for the complainant effectively presented the case of the complainant. But the perusal of documents and the deposition of the parties do not support the allegations of medical negligence and deficiency in service on the part of the opposite parties. The documents as well as the depositions of DW1 and Dw2 reveals that the baby was with congenital defects which led to the sad demise of the baby. It was deposed that hereditary galactosemia is among the most common carbohydrate metabolism disorders which is life threatening disease during the new born period. It is the concept that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. It cannot be concluded that a doctor is liable for the mishap happened in a treatment when patient not favorably responded to the treatment. The opposite party mentioned that when a patient dies or suffers some mishap there is a tendency to blame the doctor for the same. Things are gone wrong and therefore somebody must be punished for it. It is submitted that a lawyer cannot win every case in his professional carrier but surly he cannot be penalized for losing a case provided he appeared it and made his submissions.
34. Hence considering the entire evidence before the Commission, documents and arguments we realize the loss and pain to the complainant. But we are not convinced to find fault with opposite parties in treating the baby of the complainant and we do not find deficiency in service or medical negligence on the part of the opposite parties and so we dismiss this complaint.
Dated this 28th day of October, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: PW1 & 2
PW1: Sheeba.M
PW2: Rajeshkumar (Husband of the complainant)
Documents marked on the side of the complainant: Ext.A1to A19
Ext.A1: Copy of Birth certificate issued dated 18/12/2013.
Ext.A2: Death certificate issued from Calicut Corporation dated 15/12/2013.
Ext A3: Copy of Certificate issued from medical college hospital Calicut dated
18/12/2013
Ext A4: Copy of certificate issued from Baby Memorial hospital Kozhikode dated
02/12/2013.
Ext A5: Treatment certificate from medical college hospital dated 18/03/2014.
Ext.A6: Photo copy of discharge summary issued from BMH care hospital, Moolakkal
26/11/2013.
Ext.A7: In patient bill dated 03/12/2013 issued baby memorial hospital, Calicut
Ext A8: Copy of lawyer notice issued by Adv. M.K. Moosakutty along with postal
receipt and acknowledgment dated 10/02/2014.
Ext A9: Lawyers notice issued by Adv. M. Ashokan dated 26/02/2014.
Ext A10: Reply notice issued by Dr. Rajesh N to Adv. Moosakutty dated 03/03/2014.
Ext.A11: Copy of Case record issued from MCH Kozhikode dated 03/12/2013.
Ext.A12: Cash Bills 2 in number dated 21/11/2013 and 22/11/2013.
Ext A13: Copy of information furnished by second opposite party to the patient and
relatives
Ext A14: Copy of complaint submitted before the district collector Malappuram
dated 09/12/2013.
Ext. A15 is the copy of statement given by the husband of the complainant before
the Tahsildhar , Tirur taluk.
Ext.A16: copy of application under RTI submitted before the district collector
Ext.A17: Copy of specimen slip issued by second opposite party to the complainant.
Ext A18: X-ray dated 03/12/2013
Ext A19: Copy of treatment certificate issued from medical college hospital Calicut
dated 18/03/2014
Witness examined on the side of the opposite party: DW1 and DW2
DW1: Dr. Rajesh.N, (Opposite party No.1)
DW2: Dr. M.Vijayakumar (Head of the department of paediatric and Govt. Medical
College Hospital, Manjeri)
Documents marked on the side of the opposite party: Ext. B1 to B
Ext.B1: O.P record issued from BMH Care hospital Moolakkal Tanur.
Ext.B1(a): photo copy of discharge summary issued from Baby Memorial hospital
Calicut.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
VPH
