PALLATTU GEORGE vs THANKAM PUNNOOSE

THIS petition is filed under Section 12 of the Consumer Protection Act, attributing medical negligence on the part of the opposite parties and claiming compensation of Rs. 2,50,000/-.

SHORTLY stated, the allegations in the complaint are as follows: The complainant''s wife Alice was admitted to Archana Hospital for third delivery on 18.5.1992. After two days she was taken to Nirmala Hospital, Iritty, and was admitted there on 20.5.1992. At 8 p.m., she was taken to the theatre, an operation was conducted and a male child was taken up. Bill for amount of Rs. 3901/- was given and it was paid and the patient and baby were discharged on 30.5.1992. On 4.6.1992 they went to the hospital as Alice was suffering from discharge of urine. She was admitted at 10 a.m. and Dr. Sreenivasa Gupta''s wife a Lady Doctor, examined her and told her husband some injury was caused to the urine bag at the time of operation and that was the reason for the discharge of urine. On that day itself they inserted a tube and got urine. This continued for 5 days. She was asked to take rest for 5 days with a tube. She went home. She felt excruciating pain and she was taken to Urology Centre, Kannur, and met Dr. Thomas and she was admitted in the Rasheed Hospital. The patient was examined and tube was removed and the discharge became normal and X-ray was taken which revealed that there was injury to the tube through the kidney and urine bag. The patient was advised to go to Manipal Hospital. He again contacted the Urology Centre and they advised that treatment at Manipal Hospital is necessary to get complete cure. The complainant was told that a referal letter would be given to Dr. Venugopal. He and his wife went home. Her condition is not suitable for undertaking journey to Manipal which is situated 300 kms. away. As a result of the side effect of the operation patient''s left leg was weak and at the side of operation and near above she had excruciating pain and she was not able to do any household work. In the circumstances the complainant prayed for an order against those who are responsible for this to pay compensation of Rs. 2,50,000/-. A version was filed denying the allegations. It is averred that from copies served on the opposite party the name of Dr. Thankamma Panose of Nirmala Hospital, Iritty, who was shown as 1st opposite party was deleted from the party array as her name is seen struck off. Dr. Thankamma Panose is a necessary party in this proceedings as she was the employer of the opposite party at the relevant time. The allegations of the grievance has no basis and it is totally illfounded and baseless. It is true that Smt. Alice George, second complainant, was brought to Nirmala Nursing Home, Iritty, on 20.5.1992 at about 8.30 p.m. by Dr. Celin of Archana Hospital, Perumpunna, with history of 9 months Amenorrhoea, previous caesarean section and labour pain for the past 48 hours. The husband of the patient, the first complainant accompanied her. The patient was brought to the hospital after trial of vaginal delivery had failed at the Archana Hospital. On examination it was noted: "BP 110/80, Pulse 110/min. P.A. Uterus term, tense, suprapubic tenderness + + Vertex presentation, FHS 160/ min. P.V.: Cervix fully effaced, fully dilated Head at + 1 station. Membranes absent, Caput ++, Occiput in transverse position R.S. and C.V.S.-NAD. A provisional diagnosis of threatened rupture of the previous caesarean scar, foetal distress and deep transverse arrest was made."

A serious condition of the patient arose due to prolonged trial of vaginal delivery and it was explained to the patient and her husband. The complications that might arise following an immediate caesarean section, were fully explained to the patient and her husband. And they were made aware of the consequences that might occur if they had to reach Cannanore about 40 kms from Iritty like rupture uterus leading to caesarean hysterectomy which is life threatening surgery requiring many bottles of blood immediately. She might also have severe post partum haemorrhage, foetal death and possible maternal death. The opposite party advised that if patient may be taken to Cannanore. They expressed, their inability to shift the patient anywhere and requested the opposite party to do caesarean operation immediately accepting all the possible complications that may occur. The risk involved in the operation was also explained to them and written consent was obtained in this regard. In good faith, professional obligation and on humanitarian grounds the opposite party took up the case. After preliminary investigations emergency caesarean section was done. On opening the abdomen lot of dense adhensions were found. Lower segment was stretched and thin rod out head of the baby was deeply engaged. They faced difficulty in extraction of the head with led to extension of the tear on the left side with severe bleeding. With great care bleeding was controlled and tear sutured and uterus (sic.) in two layers. Location of the position of uterus was difficult due to dense previous adhensions. Clear urine was draining through the indwelling catheter and urinary output was good. Sterilization was done by (Sic. eral) fimbriectomy. Abdomen was cleaned and closed in layers. Uterus was found to be firm and well contracted, normal bleeding P.V. post operative B.P. was 100/70 and pulse 86/min. Patient was closely observed for 2 hours before transferring her to post operative ward. Antibiotics and other supportive measures were given to prevent infection. The opposite party examined her daily morning and evening. The indwelling catheter was retained for 2 days. Throughout the period urine was clear and output was good. After removing the catheter on 2nd day the patient passed urine normally. The post operative period was uneventful and afebrile. Sutures were removed on 29.5.1992 and patient was discharged on 30.5.1992 with an advice to report for follow-up after two weeks. The second complainant reported on 4.6.1992 with complaints of incontinence of urine. She was examined thoroughly and urinary fistula was suspected. An indwelling Foley''s catheter was put in. Urinary antibiotics were started. There was no dribbling of urine. The opposite party informed the patient and her husband that the indwelling catheter should be kept for 6 weeks, for healing of urinary fistula this being the first line of treatment. If this does not heal in 6 weeks, then she may need further urological investigations. She was advised hospitalisation for 6 weeks. On the 5th day she got discharged at request. At the time of discharge she was asked to report if any untoward symptoms occurred. She never reported back to the opposite party. It is revealed from the complaint that she went to Cannanore for further treatment where also she is seen to have been given the same indwelling catheter treatment for 9 days. It is also seen that on 9th day catheter was removed as dribbling of urine had stopped and she was passing urine normally as is seen stated in the complaint. The patient never had incontinence of urine during the hospital stay. She developed the urinary fistula 2 weeks later after surgery. If it was due to surgery and accidental cut of the ureter or bladder, incontinence and distension of abdomen would have occurred immediately during post operative period. The opposite party had taken utmost care in treating the patient. There was no negligence on the part of the opposite party. The complications that occurred were due to serious condition of the patient before the start of the surgery. This was explained to the patient and her husband. Had she reported to the opposite party at the time when she developed pain she would not have undergo all the difficulties suffered. The opposite party had in fact saved the life of the patient and the child taking great risk. The 48 hours lost at the Archana Hospital, Perumpunna, where trial vaginal delivery was attempted was very crucial. Added to this was the previous caesarean section that the patient had undergone in her earlier deliveries. In fact as is seen admitted in the complaint itself, this was the third delivery of the second complainant. The allegations in the complaint that when the patient was brought to the Archana Hospital on 4.5.1992 with complaint of incontinence of urine, she was examined by the wife of the 2nd opposite party and on such examination she told the 2nd opposite party that this complication had developed due to some surgical injury to the internal organ is false. The patient was examined by the 2nd opposite party on 4.6.1992 and it cannot be believed that the second opposite party''s wife would have ventured to examine the patient and made such a statement loudly for the benefit of the patient to hear the same. The allegations in para 2 would show that the conservative mode of treatment which was started by the 2nd opposite party for incontinence of urine was continued in Kannur also. The allegations that this complication was as a result of injury caused to the urinary tract in the course of the operation is absolutely baseless and incorrect. The further allegations in para 3, the patient is Still suffering from pain at the site of operation as well as on the left leg, general weakness and dyspareunia etc., are not related to the surgery. Operation carried very high risk because of the previous caesarean as well as late stage of labour. However, the second opposite party had treated her on an emergency basis with sincerity and devotion. Utmost care and caution was taken at every stage of the operation and during the postoperative period. The mother and baby were discharged absolutely free from any complaint as admitted by the complainant. The compensation claimed also is highly expensive, arbitrary and untenable. The opposite party had taken out an insurance policy from the Oriental Insurance Company, South Basar, Kannur, under professional indemnity scheme during the relevant period and therefore any liability that may arise will have to be discharged by the said Insurance Company. For the above reasons the complaint is liable to be dismissed.

The following point arise for consideration: (i) Whether the complaint is bad for nonjoinder of parties ?. (ii) Whether there is any deficiency on the part of the opposite parties ? (iii) If so, what is the relief to which complainant is entitled ? (iv) What is the order as to the costs ?

POINT No. (i)-After filing of the complaint a petition was filed by the complainant seeking to implead Dr. Thankamma Panose and accordingly notice was issued to the person to be impleaded. Further no relief is claimed by the complainant against Thankamma Panose and therefore in our view the complaint is not bad for non-joinder of parties. Point No. (ii)-The complainant has not filed any affidavit nor has he adduced any evidence to show that there is any negligence on the part of the opposite parties. On the other hand the opposite party No. 2 has been examined as RW 1 and she denied that there is any deficiency in service. However the complainant has marked Exts. PI and P2. The second opposite party has filed an affidavit stating that the hospital belonged to Dr. Thankamma Panose, the first opposite party and he was working on a monthly salary in the said institution. In his affidavit he has stated that every procedure was adopted by him and there was absolutely negligence and no lack of proper care and performance to the best of his ability and skill. It was also stated that the patient was brought to the hospital in a very serious condition and he saved her life with the best possible medical care that the patient was given at the hospital and the complaint was mala fide. The allegation that on 4.6.1992 when the second complainant was brought to the hospital with urinary complaint she was examined by his wife and on such examination cervical injury is found is absolutely false. He denied the allegation that his wife had examined the patient and it was also averred that it was improbable even assuming she had done so that she had stated loudly that due to the injury during the surgery for the benefit of the patient and against hospital. All other allegations are also denied. Though the complainant was cross-examined we find nothing had been elicited which will support the plaintiff''s case. Further the complainant had not gone to the witness box and not cross-examined by the opposite parties.

POINT Nos. (iii) and (iv)-The foregoing discussion would show that the complainant has failed to establish that there is medical negligence on the part of the opposite parties. It follows the complaint is liable to be dismissed. We accordingly do so. Complaint dismissed.