JOSEPH alias ANIMON vs ELIZABETH ZACHARIAH

THIS complaint is filed under Section 12 of the Consumer Protection Act attributing negligence on the part of me opposite party No. 1and claiming compensation of Rs. 15,00,000/-.

BRIEFLY stated, the allegations in the complaint are as follows: The complainant''s wife Daisy Joseph was admitted in the Benzigar Hospital, Kollam, as an in-patient on 2.5.93 for pre-natal care and treatment. She was put under the care and treatment of the first opposite party Dr. Elizabeth Zacharia, Gyanecologist attached to the aid hospital. The second opposite party is the Director of the Benzigar Hospital and the third opposite party, the Bishop of Quilon is the owner of the Benzigar Hospital. Medicines were administered to Daisy Joseph while at the Benzigar Hospital by the hospital authorities including the first opposite party, doctor, without proper diagnosis. She underwent an operation. The first opposite party without proper care conducted a Caesarian Operation on the patient and that was done improperly. However a male baby was born and the said male baby was taken out by the opposite party on 21.5.93. The anaesthetist had also been negligent. The complainant alleged that the first opposite party was negligent in administering the pre-natal medicine and conducting the caesarian operation. It was also alleged that the said doctor went beyond the region of that part of the patient''s body. The urine bladder ureters and the kidneys suffered permanent damage due to the aforesaid operation conducted by the first opposite party and also by the pre-delivery medicines wrongly administered by the hospital authorities. After the said operation Daisy Joseph was not in a fit physical condition to pass urine on that day and on the following two days. The fact that the patient could not pass urine immediately on the following days would clearly indicate that some parts of the vital organs of Daisy Joseph was permanently damaged due to the said operation and the pre-natal administration of medicine and treatment.

The condition of the patient deteriorated. She suffered mental disturbances and frequent comma immediately after the operation. The case was referred to Uthradam Thirunal Hospital, Trivandrum, for immediate treatment and dialysis by the opposite parties. The patient continued her treatment in Uthradam Thirunal Hospital, Trivandrum, for two months and she died on 21.7.93. The patient became unconscious from the time of the operation and it was only after a number of dialysis the patient had normal urination. The ill-effect of the pre-natal treatment done at the Benziger Hospital, the caesarian operation conducted by the first opposite party doctor and the scant attention given by the anaesthetist the medical attention given by the ancilliary staff as nurses and technicians of the said hospital have all resulted in the ultimate death of the complainant''s wife Daisy Joseph at her young age in early twenties. The male baby born, has lost his mother, the breast milk and care the child would have get if his mother alive and the loss suffered by the complainant cannot actually evaluated in terms of money. However the loss and damages that could be claimed by the complainant against the opposite party could reasonably be a sum of Rs. 20,00,000/-. However the complainant is limiting the claim to only Rs. 15,00,000/-. It was further averred that all the opposite parties are jointly and severally liable to pay this amount to the complainant.

AFTER filing the complaint Anaesthetist was impleaded as the 4th opposite party and the Senior Divisional Manager, United Insurance Company, was impleaded as the 5th opposite party as it was known that the Hospital is covered by valid insurance. A written version was filed by the first opposite party and it was contended that the complaint is not maintainable as the Medical Practitioners are governed by the Indian Medical Counsel Act which elaborates the provisions for the registration of medical practitioners. Code of Conduct of Medical Practitioners etc., and therefore the Consumer Protection Act is not applicable as far as Medical Practitioners are concerned. It was also stated that to determine the question involved in this case an elaborate documentary evidence and detailed scrutiny and assessment of such evidence are required and therefore it would not be possible for the Commission to undertake such elaborate enquiry. Since such enquiry cannot be undertaken, the matter has to be relegated to the Civil Court. It is also alleged that the complainant is not a consumer. The first opposite party has got a degree in M.B.B.S. Course from Kerala University and successfully completed the Post-graduate Kerala Health Services. She was on leave for taking other employment from the Government and was working in Benziger Hospital, Kollam, during 1992-1994. At present she is working as a Gynaecologist in Government Victoria Hospital, Kollam. She has put in 18 years of service in medical profession. She is a receipient of State Award as the best Medical Officer for the year 1988-1989 in the National Family Programme while working in Government Victoria Hospital, Kollam. She is qualified to manage all obstetrics and Gynaecology emergencies. Benziger Hospital, Kollam, is a modern hospital with all facilities and equipments. It has a team of well qualified doctors in all departments. The operation theatre in the Benziger Hospital is always kept ready with sterilized instruments to meet emergencies at all times. The patient was under the care and treatment of the first opposite party at Benziger Hospital for pregnancy. She was admitted to the hospital on 2.5.93. The ante-natal case records pertaining to the patient would show that complete investigation had been conducted in accordance with standard of care and duty which a Gynaecologist or the first opposite party is expected to take under medical ethics. No negligence or blemish can be attributed against the fast opposite party as alleged in the complaint. The required medicines were administered to her. On a careful consideration of the results of all the investigations and the physical condition of the patient no medicine was administered to her without proper diagnosis as alleged.

ON the date of expected date of delivery, induction and acceleration of labour was done with syntocinon 5% dextrose. In the course of events the Gynaecologist noted that normal vaginal delivery was becoming impossible due to cephalo pelvice dis-proportion and a foetal tachy cardia leading to foetal distress was noted and the Gynaecologist with her vast experience and professional skill decided to take the patient for Caesarian section. She was operated on 21.5.93 by the first opposite party under general anaesthesia and a male baby with cord around the neck was extracted at 12.31 noon. The anaesthatiologist had recorded after physical examination of the patient after the Caesarian section that the recovery was complete. The patient was shifted to post operative room at 1.15 p.m. The caesarian section was most un-eventful with absolutely no complication. There was no excess blood loss as can be seen from the post- operative records when no blood transfusion had to be given. It was not possible to injure the ureter or kidney during Casesarian section as they are not in reach of the surgeon. It is by opening the lower segment of uterus that the baby is taken out. It may be noted that urine was clear after surgery which rules out the alleged injury to the urinary bladder. It was with the urinary catheter in position that the Casearian was done and there was no injury to the urinary bladder. Extraction of the baby was at 12.31 noon and the patient had been received at the post Operative Ward at 1.15 p.m. which would indicate that the surgery was most uneventful. From 21.5.93 to 23.5.93. the patient was in the post operative room under strict observation. ON 23.5.93 morning the patient was shifted in a steel chair which indicates that the patient''s general condition was normal and all the parameters were within the normal limit. The patient was given oral fluids from the second post operative day. ON the 3rd day patient had diarrohea and was properly attended and I.V. fluids restarted. Subsequently ioterus and decreased urine out- put was noted and Dr. Mathew M. Puliyel, a competent physician was called in. All conservative management was done and all investigations done suggested a Hepate Renal failure and hence after joint consultation patient was referred to Nephrology Department to S.U.T. Hospital, a centre of their chocice. The patient was referred to Department of Nephrology as the patient might require dialysis. Patient was under treatment in Uthradam Thirunal Hospital, Thiruvananthapuram, for two months and it was understood that the patient died on 21.7.93. The fact that the patient survived for two months after surgey rules out acute surgical complications causing death. All the patients undergoing surgery are pron to all complications like infection, haemorrhage, anaesthetic complication, allergic reactions to durgs which is explained to the patient''s bystanders before surgery and consent will be obtained in the light of the said explanation. In this case explanation was given to the applicant and other by-standers and consent was obtained thereupon. The first opposite party has used her skill and knowledge to prevent all these complications. It is understood that in the post operative ward on the 1st and 2nd day patient''s condition was perfect. The urine output was monitored with cather in site and it was with normal limits. ON the 3rd day patient had diarrhoea and was properly attended to. ONce again I.V. fluids were started. The course of events subsequently showed features suggesting Hepato Renal failure and was referred to Sree Uthradam Thirunal Hospital. After reference it was later found out that the patient was treated in Benziger Hospital for acute nephritis in January, 1984. She was treated for Pyoderma in 1986 and for drug over dosage in 1991. All these facts were suppressed by the patient and her husband to the doctors. She might have had kindneys which had already been weak and the addedstress might have percipitated renal failure. There is a condition called post-partum renal failure occurring within 6 weeks post-partum. It is an acute, irreversible/ renal failure. The exact cause is still obscure. It may be due to a peripheral imminologic mechanism. The first opposite party was not negligent in administering pre-natal medicines and in conducting Caesarian operation on the patient and she had not gone beyond the region of that part of the body of the patient which was necessary for Caesarian section to extract the child. In the process of doing Caesarian section the first opposite party used utmost care and cuation. The first opposite party had not cut any vital part of the patient while conducting the Caesarian section. The first opposite party as Gynaecologist and a team of experts in anaesthetiology had seen the patient before conducting the Caesarian section and the physical condition of me patient was duly certified by such experts for undergoing Caesarean section. The anaesthetist had administered general anaesthesia on the patient and it was observed that the patient had a complete recovery after the caesarian section. The allegation that urinary bladder, ureter and kidney were badly damaged due to the operation was false and is totally denied. The urine output on the 21st and 22nd May, 1993, was adequate as per records and the clear urine after the Caesarian operation indicates normalcy. No damage was caused to any of the vital organs of the patient during Caesarian operation. The patient was not unconscious following the operation and there is no negligence on the part of doctors who attended on her at any point of time. The complainant is not entitled to get any relief. The complaint was bad for non-joinder of necessary parties. The death occurred at S.U.T. Hospital, Thiruvananthapuram, after a period of 3 months from the Caesarian operation. To a suit notice sent by the complainant the opposite party had sent a suitable reply setting out the facts. The opposite party was duly covered by a professional indemnity policy for the period from 22.7.92 to 21.7.93 issued by M/s. Oriental Insurance Company Ltd., Kollam, and the Oriental Insurance Company Ltd., is also a necessary party and there is no merit in the complaint and it is liable to be dismissed. The opposite parties 2 and 3 also filed a version alleging that utmost care and attention have been taken by the opposite party after the patient was admitted as an in-patient to the hospital. The allegations in the complaint are denied. There was no negligence on the part of the opposite parties in administering the pre- natal medicines and conducting Caesarian operations and the complaint was liable to be dismissed. Mr. George Thomas, Advocate took notice on behalf of the 4th opposite party. No version was filed on behalf of the 4th opposite party. The 5th opposite party i.e. The Divisional Manager, United India Insurance Company Ltd., filed a version stating that the complaint is not maintainable and medical service did not fall within the purview of the Consumer Protection Act and adopting the most of contentions raised by the first opposite party.

THOUGH the complainant filed a petition I.A. No. 1053/95 seeking to implead S.U.T. Hospital as additional 5th opposite party, that application is not seen pressed and we find there is also no reason to implead S.U.T. Hospital as there is no negligence attributed and no relief was also claimed against the 5th opposite party.

ON behalf of the complainant, complainant had filed an affidavit and also has offered for cross-examination and was examined as PW 1. Besides him Dr. Saroja Nair, S.U.T. Hospital was examined as PW2 and Exbts. P 1 to P 6 marked. On behalf of the opposite parties RW 1 Dr. Elizabeth Zacharia, the first opposite party and RW 2 Sr. Perpetna Mary, the Assistant Administrator of the hospital were examined and Exbts. R 1 to R 10 were marked. The first opposite party has also filed a detailed affidavit swearing to facts stated by the first opposite party in her version and also marking documents Exbts. R1 to R8.

The following points arise for consideration. (i) Whether the complaint is maintainable? (ii) Whether the opposite parties committed any negligence in the treat mentand operation of deceased Daisy Joseph, the wife of the complainant? (iii) If so what is the relief to which the complainant is entitled ? (iv) What is the order as to the cost?

POINT No. (i): It has been contended that the complainant is not maintainable as the first opposite party is governed by me provisions in me Indian Medical Council Act which deals with professional ethics and since the service which is outside the purview of the Consumer Protection Act. We are unable to accept this contention. The opposite parties have no case that the patient was treated free of charge and no fee or consideration was received from the complainant. In a recent decision the Supreme Court considered the question whether the doctors who are rendering service for consideration are amenable to the jurisdiction of the Consumer Protection Act and answered the question in the affirmative. In the circumstances there is no substance in the above contention. It is also contended that the complainant cannot maintain a complaint since it is the complainant''s wife who is alleged to have suffered by reason of medical negligence and deficiency on the part of the opposite parties 1 to 3 and this contention is also unsustainable. It has been held by the National Commission a legal heir of a deceased can well maintain a complaint under Consumer Protection Act for Medical negligence committed by doctors or hospitals in a case where their service was hired for consideration. The above points are therefore decided in favour of the complaint. Point No. (ii): PW 1 has given evidence in terms of the complaint. He further stated that when he took his wife to the S.U.T. Hospital the doctors accepted the patient with great reluctance and expressed the opinion that due to the operahon conducted at the Benzigar Hospital kidney of the patient and other organs got damaged and the condition of the patient became very bad. He further stated that it was only because PW2 intervened that the S.U.T. Hospital admitted the patient. In the cross-examination by the first opposite party the complainant stated that it was on 3rd September, 1992, the patient approached the first opposite party and the patient must have gone 10-20 times and the examination during that period was satisfactory. He further stated after Caesarian operation the patient was taken on a stretcher to the Ward and she was there for two days and the patient was not taking anything after the operation. To a question whether in Exbt. A 5 the cause of death was stated as Caesarian operation he replied what is stated in Exbt. A 5 as cause of death is renal failure and septic shock. He stated that she was subjected-to dialysis at S.U.T. Hospital and it is after 15 days there was urrination. He further stated that Exbt. R 1 is a referral letter given from the opposite parties'' hospital and it was given after Dr. Elizabeth Zacharia and others examined the patient and he had no dispute regarding what is stated in Exbt. R1. He also admitted in Exbt. R1, it is not stated that due to operation vital organs got damaged. Hedenied the suggestion that after the operation for 3 days she fed the child and it was only on the 3rd day the child died due to infection. He also stated in cross- examination that after Caesarian operation a male child was taken out and the child was keeping perfect health and that it was Dr. Mathew who gave referral letter as Dr. Elizabeth Zacharia was out of station on that day and it was 58 days after the patient was admitted at S.U.T. Hospital mat she died. He further stated that he does not know what is written in referral letter. In the course of cross-examination on behalf of the opposite party No. 5 he denied the suggestion that the opposite parties have taken all care and caution.

PW 2 is Dr. Saroja Nair of S.U.T. Hospital. She is the Head of Nefrology Department. She stated that she attended the patient. Admission was on 24.5.93 at 3 a.m. Exbt. P6 is the case sheet. The patient delivered a baby at Benziger Hospital. She was referred to S.U.T. Hospital on 24.5.93 at 3 a.m. as an emergency admission because she was in a state of shock, renal failue, respiratory failure and linea Dysfunction. Blood pressure was very low. She was semi comatose and required immediate I.C.U. treatment with several monitoring durgs for maintaining the blood pressure. The patient was given antibiotic. The case was referred to our hospital by Dr. Mathew Pulian who noted that she was in renal failure. She was also subjected to some liver function test and she was septic and she was kept alive for two months with all supportive measures. In answer to a question by Commission she answered she had not seen the case-sheet of Benzigar Hospital. Caesarian operation shows a right induction but the patient developed some life threatening infections which can cause multi-organ damage. She also stated that she was not able to say why she developed renal failure and septic shock. The complainant''s evidence is not helpful to find out whether there is any deficiency on the part of the first opposite party in the treatment and operation conducted on the patient as he is not competent to give any such evidence. The main allegation made in the complaint is that while conducting the Caesarian operation the first opposite party cut kidney and other vital organs and that led to the complications. However the evidence adduced by PW 2 Dr. Saroja Nair who treated the patient after she was referred to S.U.T. Hospital does not in any way support this case. There is absolutely no evidence to show that there was cutting of kindny or any other vital organs by the first opposite party and that 1st opposite party committed any mistake in the Caesarian operation. Rw 1 has given a detailed affidavit. She was examined and was subjected to lengthy cross-examination. In the cross-examination she admitted that Dextrose was used for injection during the post-operative period and 5 point was used to be given. The extrose was used more than 10 times in all the days when she was in the Benziger Hospital. She also stated that there was normal urination. She stated that the caesarian operation is done at urinary catheter positive and after the operation they will observe whether there is urine output. In this case also there was urine output. Exbt. R 9 is the case-sheet of the Benziger Hospital and the handwriting was that of the witness but the handwriting at page 11 is that of Dr. Neena and at page 15 is that of duty doctor. Some handwriting at page 15 is that of Dr. Mathew Pulian. There is no cylinder output. At page 15 it is written that these is no urine out- put till now. That was a remark made at the time of reference. There is noting in the case sheet before that when the patient was removed from the post-operative ward there was urine output. She denied that entry about urine output in the opposite party Chart is one which was added later. She stated anatomical damage was not possible cause. In Exbt. P 5 the cause of death is stated to be renal failure, infection and thrombosis and this happened three months after operation. She denied the suggestion that it was due to Caesarian operation. She stated Exbt. P5 is a news item published in Mathrubhoomi daily dated 23rd June, 1993. Immediately on realising, the matter was intimated to the Company and that the medicine was not used. She admitted Dextrose was administered to me complainant from 21.5.93. She denied the suggestion that it was on account of the negligence of the first opposite party that the complications which ultimately led to the death of the patient developed.

AS indicated above the main contention raised in the complaint was that on account of mistake committed by the first opposite party in the course of Caesarian operation conducted on the patient, the urine bladder, uterus and kidney suffered permanent damage. However there is no evidence whatsoever to support this case. It was also averred in the complaint medicines were wrongly administered by the hospital authorities. What are such medicines which were wrongly administered have not been explained in the complaint or in the lawyer''s notice issued by the complainant to the opposite parties. However the Counsel for the complainant vehemently relied on Exbt. P 5 which appears to have been statement by Benziger Hospital authorities pointing out that certain medicines were dam- aged and they found it out when the carton was opened and had they been administered it would have had serious consequences. The medicines so damaged includes Dextrose. Learned Counsel argued it is during the above period that the Dextrose was administered to the patient and it is quite possible that all the complications arose on account of administration of contaminated medicines. However it is the definite case of RW 1 and also RW 2, that no contaminated medicines were administered to the patient. RW 2 stated that when the first box was opened they found out that the medicines were damaged and those medicines were rejected and this news item was given from the hospital itself and no such medicine has been administered to the patient. Neither in the complaint nor in the Lawyer''s notice there is any allegation that it is out of stock of contaminated medicines, medicine was administered. AS a matter of fact the definite case of the opposite party is that when box was opened the damage was noticed and no medicine from that box was administered to any patient.

THE foregoing discussion would show that the complainant has not succeeded in establishing that there is any deficiency on the part of the opposite parties in administering the medicines or conducting treatment of Caesarian operation. Accordingly complaint is dismissed. However in the peculiar circumstances of the case we direct the parties to bear their respective costs. Complaint dismissed.