Tamil Nadu

South Chennai

163/2004

Mrs.Bharathi - Complainant(s)

Versus

Dr.Rajasekar,Managing Director,Women & Children Foundation Ltd., - Opp.Party(s)

Yurendra Kumar

26 Sep 2022

ORDER

Date of Complaint Filed : 30.06.2003

Date of Reservation      : 07.09.2022

Date of Order               : 26.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                            : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                      THIRU. S. NANDAGOPALAN., B.Sc., MBA.,     : MEMBER II

 

CONSUMER COMPLAINT No. 163/2004

MONDAY, THE 26^th DAY OF SEPTEMBER 2022

Mrs. Bharathi, 25 years,

W/o. R. Suresh,

No.1 T.A.Koil 2^nd Street,

Villivakkam, Chennai-49.                                                     ... Complainant                   

..Vs..

 

1.Dr. Rajasekar, Managing Director,

   Women & Children Foundation Ltd

 

2.Dr. Sumitha, Obstertrician & Gynaecologist,

   Women & Children Foundation Ltd,

 

3.Dr. Padma, Obstertrcian & Gynaecologist

   Women & Children Foundation Ltd,

 

All at No.4/1 & 4/2 Porur Somasundaram Street,

North Usman Road, T. Nagar, Chennai – 17.                   ... Opposite parties

 

******

Counsel for the Complainant           : M/s. V.Yurendrakumar

Counsel for the Opposite Parties      : M/s.M.Selvaraju

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties  under section 12 of the Consumer Protection Act, 1986 and prays to repay the medical expenses amounting to Rs.20,000/- with interest@ 24% p.a and to pay a sum of Rs.5,00,000/- as compensation for deficiency of service and to pay a sum ofRs.10,00,000/- for the mental agony and pain caused to the Complainant along with cost of Rs.25,000/-.

2.     The averments of Complaint in brief are as follows:-

The Complainant who was pregnant was consulting doctors the 2^nd  and 3^rd Opposite Parties, for regular medical check-ups at the branch hospital of the 1^st Opposite Party and followed their advice. The Complainant underwent various prescribed tests and consumed the medication given on prescription by these doctors. The Opposite Parties 2 and 3 advised and assured that the Complainant can undergo a painless delivery which was greatly believed by the Complainant.

On 14.05.2003 got herself admitted at the branch hospital, WCF @ Villivakkam for her delivery as per medical advice. The Complainant paid Rs.5,000/- on admission and other charges as demanded by the 1^st Opposite Party which payments made were acknowledged by receipt dated 22.01.2003, 25.04.2003 and 01.05.2003. After admission the Complainant developed labour pains on 15.05.2003 at 4.30 p.m and the duty nurse made to wait. The doctors Opposite Parties 2 & 3 who were attending on her also failed to consider and take care of the situation, effect delivery for they were only insisting normal delivery. The Complainant’s condition was becoming worse and her pleas for immediate delivery failed to evoke any action from the doctors. The doctors who failed to monitor the Complainants’ condition, did not take timely action to ensure a normal and safe delivery but only insisted painless delivery. The Opposite Parties were keen on highlighting their goal which was ”to provide holistic, comprehensive health care under one roof at an affordable cost without compromising Quality. This enables to break the socio-economic barriers of the people at Chennai. Community empowerment will be our primary focus of attention”.

 On 17.05.03 at around 4.50 p.m when the situation became grave by a tear in the uterine wall, delivery was done by surgery by the doctors who were greatly negligent in performing their role as doctors. By this negligent and delayed surgery the Complainant lost her male child and she had a miraculous recovery despite the carelessness and negligence of the doctors who failed to attend and operate to effect immediate delivery when her labour pains came on 15.05.03 at 4.30 pm itself. The Complainant was made to believe the painless delivery and was insisted upon which ended in a tragic loss of life. The opposite parties had totally failed to discharge their duty and the negligence had caused death of the male child. The doctors are quality of professional negligence which amounts to deficiency of service. The opposite parties as seen from this discharge summary failed to diagnose the necessity and immediacy of performing delivery when the labour pains came on 15.05.03 at 4.30 pm. The complaint's condition was well and delivery done at that time would have saved the mother and child as well. The surgery rushed and done at the eleventh hour only after a tear in uterine wall had endangered the fetal life which well could have been avoided. This act of the Opposite Parties amounts to deficiency of service and the mental agony and pain caused by the negligence and deficiency leading to death of the male child is to be duly compensated. The Complainant sent a legal notice on 20.06.03 to the opposite parties who having received the same had failed to reply.Hence the Complaint.

3. Written Version filed by the 1^st, 2^nd and 3^rd Opposite Parties in brief is as follows:-

The Opposite Party admits that the Complainant being pregnant was consulting the doctors for medical check-ups at the branch of the said hospital. It is false to state that the doctors of the hospital have advised and assured that the Complainant can undergo a painless delivery which was greatly believed by the Complainant as alleged in the complaint. It is normal practice that every woman inspires to have a normal delivery, and the said hospital has been formed with an aim to give normal delivery to her patient to possible extent. The Complainant was admitted in the branch of the said hospital at Villivakkam for her delivery. The payment of Rs.5,000/ was total package from routine check up from the initial stage pregnancy to delivery. It is false to state that she developed labour pain on 15.5.03 at 4.30 p.m. and the duty nurse though informed did not understand the situation and the Complainant made to wait. It is equally false that opposite parties 2 & 3 who were attending on her also failed to consider and take care of the situation, effect delivery for they were only insisting normal delivery. Actually the Complainant was admitted in the hospital on 14.5.2003 for induction of labour since labour pain was not occurred to her. The Complainant had consultancy and admitted to the hospital only with the sole aim of having normal delivery, she and her husband was insisting from the beginning for normal delivery even though the doctors explained to her and her husband the course of labour, risk involved, chances of repeat caesarean section. It is the approved practice that initially to try for normal delivery when the patient is admitted to the hospital. Accordingly she was admitted for induction of labour, two doses of prostaglandins were given to ripen the cervix. The Complainant was regularly monitored by the doctors and duty nurses and she was comfortable throughout. This is evident from the case sheets maintained by the hospital and as submitted by the Complainant along with the complaint. The allegation in para 6 of the complaint that only on 17.5.03 at around 4.50 p.m. when the situation became grave by a tear in the uterine wall, delivery was done by surgery by the doctors who were greatly negligent in performing their role as doctor are false. It is equally false that by the negligent and delayed surgery the Complainant lost her male child and she had a miraculous recovery despite the carelessness and negligence of the doctors who failed to attend and operate to effect immediate delivery when her labour pains came on 15.5.03 at 4.30 p.m  itself.It is submitted that on 16.5.03 she ruptured her membranes spontaneously at 12 a.m. It is the established medical procedure, to wait for 24 hrs of ROM for natural course of labour to take place. Therefore we have decided to wait and in the meanwhile monitoring was done and the patient was comfortable. It is evident from the cash sheet submitted before this Hon'ble Court that labour pain did not occur and oxytocin drip was started. Contraction and foetal heart was monitored continuously. Since there was no progress even after 8 hours of drip, caesarean was decided. The opposite parties followed all the medical procedures adopted as per established standards in the medical field for performing delivery and foetal heartbeat was normal till 4:00 pm on 17.5.2003 i.e., 20 minutes before the operation. It is submitted further that the medical report and the case sheet maintained in the records of the hospital would prove that the Complainant was admitted in the hospital on 14.05.2003. Since the cervix was not favourable for induction of labour, 2 doses of prostaglandins were given to ripen the cervix. On 16.5.03 she ruptured her membranes spontaneously at 12.00 noon. Since it is the protocol to wait for 24 hours of ROM for natural course of labour to take place we decided to wait. There was no progress even after 24 hours we have decided to give a short trail with oxytocin drip. Even after 8 hours of oxytocin drip there was no progress we have decided to go for caesarean on 17.5.03. From the date of admission in the hospital on 14.5.03 to date of operation on 17.5.03 the opposite parties have followed all the procedure as per the normal standards asevidenced from the case sheet submitted by the Complainant before this Hon'ble Court. The condition of the Complainant was normal until the operation. The foetal heartbeat was also normal even 20 minutes before the operation. All would prove that the opposite parties were carefully followed all normal procedure in attending to the Complainant. The Complainant recovered well and discharged from the hospital on 24.05.03. One after the surgery the complaint's husband with the help of their relatives attacked the hospital authorities, damaged the properties of the hospital and taken away all the records maintained by the hospital. The hospital authorities lodged a police complaint and the police have given them security for few days. The hospital is providing the medical service at lowest possible extent only with an aim to serve the society on non-profit basis. It is common as per the proved medical practices there is chances of 4 out of 1000 deliveries, the damages as happened to the Complainant would happen, inspite of best care taken by the doctors. Hence prayed to dismiss the complaint.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-7  were marked. Proof Affidavit of the 1^st, 2^nd and 3^rd Opposite Parties were filed. However no document was marked on the side of Opposite Parties.

 

 

Points for Consideration

1. Whether there is medical negligence and deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled?

Point No.1 :

Both parties filed their respective written arguments. Heard the Complainant.  Perused the records (viz) complaint, written version, proof affidavit and documents.    The Complainant being pregnant was consulting for medical check up with the Opposite Parties’ branch Hospital, WCF at Villivakkam and that she got admitted on 14.05.2003 at the 1^stOpposite Party branch Hospital. The contention of the Complainant was that on 15.05.2003 at 4.30 p.m she developed labour pain and when informed the duty nurse she was made to wait insisting for normal delivery. But only on 17.05.2003 at around 4.50 p.m when the situation became grave by tear in the uterine wall, delivery was done through surgery. By the negligent act of the Opposite Parties she had lost her male baby and she had miraculous recovery.

The Opposite Party contended that as a total package from the initial stage of pregnancy to delivery a sum of Rs.5000/- was paid by the Complainant. The Complainant who got admitted on 14.05.2003 insisted  for normal delivery, even though the doctors explained her and her husband the course of labour, risks involved, chances of repeat caesarean section. It is approved practice to try for normal delivery initially. She was admitted for induction of labour, two doses of prostaglandins were given to ripen the cervix. She was regularly monitored by doctors and nurses. On 16.05.03 she ruptured her membrane spontaneously on 12 a.m. It is established procedure to wait for 24 hours for normal course of labour to take place. There was no progress so decided to give a short trail with oxytocin drip. Even after 8 hours of oxytocin drip there was no progress and hence decided to go for caesarean on 17.05.2003. The condition of the Complainant and the foetal heart beat was also normal even 20 minutes before the operation. The Complainant recovered well and discharged from the hospital on 24.05.2003.

The undisputed facts are that the Complainant after been pregnant had been consulting the Opposite Parties at  the 1^stOpposite Party Hospital, Villivakkam Branch and got admitted for delivery with the 1^stOpposite Party on 14.05.2003. As per Ex.A-2 it is found that date of delivery given by the Opposite Parties is on 10.05.2003. Ex.A-2 at Pg.No6, the Duty Nurse notes would show that the Complainant had mild contraction from 1.00 a.m on 15.05.2003. The Labour Ward Admission Record at Pg.21 would reveal that there was Membrane Rupture on 15.05.2003 at 10 pm itself. The contention of the Opposite Parties that the Complainant ruptured membranes spontaneously on 16.05.2003 at 12 a.m cannot be accepted as there was Membrane Rupture on 15.05.2003 itself. If the contention of the Opposite Parties that the established medical procedure to wait for 24 hours for natural course of labour to take place is to be accepted then the surgery ought to have been done on 16.05.2003.  Even according to the Opposite Parties the Foetal heartbeat was normal 20 minutes before operation.On 17.05.2003 at 4.30 pm when the Foetal heart beat was not heard. The Opposite Parties had decided for emergency LSCS as found in Ex.A-2, Pg.9. As per the Discharge Summary, Ex.A-3 Pg.24 of the Opposite Party Hospital, the Complainant had previously undergone LSCS 2 years ago. When the Complainant had undergone previous LSCS, though there is possibility of second baby through normal delivery, there is also high risk of complications that could cause  serious problem to Mother and baby as per the medical literature.The contention of the Opposite Parties that it was the Complainant and her husband who insisted from the beginning for normal delivery even though the doctors explained to her and her husband the course of labour, risk involved, chances of repeat caesarean section could not be accepted, as the Opposite Parties, being experts in their field ought to have followed the accepted medical procedure. The Discharge Summary shows that the baby was delivered normal and healthy without heart beat. The reason given by the Opposite Party Hospital is that the baby did not cry at the time of birth and the case of stillborn following placental separation.

        Further the learned counsel for the 1^stOpposite Party contended that the Complainant has not taken any steps to prove the alleged medical negligence of the Opposite Party by way of expert evidence and cited a decision of the Hon’ble High Court, Madras reported in   (2013) 7 MLJ 227, N.Sumathi Vs State of Tamil Nadu wherein it was held that there was no evidence to show that there was negligence on the part of the doctors who conducted the operation stating that there was failure to approach Hospital to get pregnancy aborted at earliest point of time  and there were methods to find out if pregnancy after operation was due to negligence of doctors or due to natural causes. The present case at hand is different where there is glaring negligence on the part of the Opposite Parties by failing to give proper treatment at appropriate time resulting in the death of a healthy baby of the Complainant.

The 1^st Opposite Party also relied on the Judgement of the Hon’ble National Consumer Disputes Redressal Commission reported in CDJ 2001 (Cons) Case No.081 in O.P.No.136 of 1993, Kiran Bala Rout Vs Christian Medical College and Hospital and others, wherein it was held that in the absence of expert evidence in line of treatment especially the administration of Sintrom to the patient, no negligence or deficiency of service could be found against the doctors. Though in the present case no expert opinion is produced by the Complainant the medical records produced by the Complainant, would prove the lethargic attitude of the Opposite Parties in treating the Complainant, consequent to which the Complainant was made to suffer and also the loss of her baby.

The 1^st Opposite Party had not submitted himself for cross examination inspite of specific directions from this Commission for appearance of the 1^stOpposite Party for Cross Examination nearly 8 years from the year 2007 to 2015 and had deliberately withheld himself from cross examination and hence adverse inference is drawn against the 1^st Opposite Party.

The Hon’ble Supreme Court in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651  discussed Bolams case and adopted Bolams test as guidelines for the courts to adjudicate the medical negligence, followed by the judgment of Supreme Court on this aspect in Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. While dealing with the concept of medical negligence the broad principles laid down by the Supreme Court are -

(i)    That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.

(ii)     Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.

Medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

To ascertain the medical negligence, cumulative conclusions were drawn by the Apex Court from various decisions as hereunder in the form of following queries:

Decision will depend upon the answers:-

(i)     Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?

(ii)      Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?

(iii)       Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?

(iv)     Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?

(v)      Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?

(vi)     Everything being in place, what was the main cause of injury or death.

(vii)     Whether the cause was the direct result of the deficiency in the treatment and medication?

(vii)    Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?

 In answer to these questions, the main defence taken by the Opposite Parties was that the Complainant ruptured the membrane spontaneously on 16.05.2003 at 12.00 noon. They waited for 24 hours for natural course of labour and after a short trial with oxytocin drip  they went for caesarean on 17.05.2003. Further went on to contend that the Complainant and foetal heart beat was normal till 4.00 p.m on 17.05.2003 i.e., even before 20 minutes before the operation. However, the Written Version and Written Arguments of the Opposite Parties remain silent about the cause of foetal death. Admittedly the Complainant got admitted in the Opposite Party Hospital on 14.05.2003, on the 4^th day after the due date of delivery and the Complainant had underwent previous Caesarean. The Opposite Parties ought to have known the risk involved in the second normal delivery without undergoing Caesarean. When the Membrane Rupture has occurred on 15.05.2003 at 10.00 p.m as could be seen from the medical records Ex.A-2, Pg.21, the Opposite Parties were lethargic in giving treatment to the Complainant and decided to do emergency LSCS on 17.05.2003 at 4.20 p.m, when the Foetal Heartbeat was not heard, which would show  the negligence on the part of the Opposite Parties. The Opposite Parties conveniently avoided to state the reason of the foetal death in their defence. The Discharge Summary  issued by the Opposite Parties state that they had decided to plan for Caesarean section at 4.00 pm and that their junior Obstetrician Dr.Padma did not hear foetal heartbeat. When the baby was normal and healthy, the reason of the foetal death was not revealed even in the discharge summary. As per the Death Certificate of the baby there was placental separation. The reason for Placental Separation is also not known. Timely intervention by the Opposite Parties in performing caesarean would have definitely avoided foetal death.

In such circumstances, it is apparent that the principle of Res Ipsa Loquitor would be applicable to the present case, because the baby was normal and healthy even as per the discharge summary and the Opposite Parties had made the Complainant to wait for long time after the rupture of membrane and delayed in performing LSCS to deliver the baby, which had caused the foetal death. The Opposite Parties had failed to produce evidence that all care and caution was taken by them to justify that there was no negligence involved on their part.  Had the Opposite Parties taken proper care the death of baby would have been avoided. Hence the Opposite Parties are held liable for medical negligence and deficiency of service. Accordingly Point No.1 is answered in favour of the Complainant.

Point Nos.2 and 3:

As aforesaid in Point No.1, the facts and circumstances lead to the conclusion that Opposite Parties 1,2 and 3 were negligent in handling the Complainant during delivery, as a result of which the Foetal death has occurred and this Commission is of the considered view that the Opposite Parties 1 to 3 are jointly and severally liable to  pay a sum of Rs.5,00,000/- as compensation for the medical negligence and deficiency in service on the part of the Opposite Parties 1 to 3 and also for mental agony caused to the Complainant and shall pay cost of Rs.5,000/- to the Complainant. Accordingly, Point Nos. 2 and 3 are answered.

In the result the Complaint is allowed in part. The opposite parties 1 to 3 are jointly and severally  directed to pay a sum of Rs.5,00,000/- (Rupees Five Lakh Only) as compensation for the medical negligence and deficiency in service of the Opposite Parties 1 to 3 and also for the mental agony caused to the Complainant along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% p.a from the date of receipt of this order till the date of realisation.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 26^th of September 2022.

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 List of documents filed on the side of the Complainant:-

Ex.A1	01.05.2003	Receipts acknowledging payment made
Ex.A2	-	Obstetrics record
Ex.A3	24.05.2003	Discharge summary, death certificate
Ex.A4	-	Pamphlets as to painless surgery
Ex.A5	-	Medical Bills
Ex.A6	20.06.2003	Legal notice
Ex.A7	-	Proof of delivery

 

List of documents filed on the side of the Opposite Parties:-

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT