PLA 2(i)

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O.P. No. 92/2013

Petitioner : Mahadevan 5 years, represented by Roshan B. Menon,

S/o Roshan B. Menon,Vellayikkal House, Chevoor P.O., Thrissur district, Pin : 680 027.

(By Adv.Smt. Maya Krishnan)

Respondents : 1. Sree Chitra Tirunal Institute for Medical Science and Technology, Thiruvananthapuram. Represented by its Medical Superintendent.

2. Dr.Jaya Kumar, Head of the Department, Cardiology wing,

Sree Chitra Tirunal Institute for Medical Science and Technology, Thiruvananthapuram.

3. Dr.Baiju S.Daran, Associate Professor, Cardiology Wing, Sree Chitra Tirunal Institute for Medical Science and Technology, Thiruvananthapuram.

4. Girija, Staff Nurse, Sree Chitra Tirunal Institute for Medical Science

and Technology, Thiruvananthapuram.

5. Manju, Staff Nurse, Sree Chitra Tirunal Institute for Medical Science


6. Resmi Chandran (CVTS), Sree Chitra Tirunal Institute for Medical Science


(Impleaded as Addl. 7. New India Assurance Company Limited, 7th respondent as Thiruvananthapuram Branch,

T.C.No.26/1436,per the order on Government Press Road, Thiruvananthapuram. I.A.1/2014 ( For R1 to R6 : Adv. Sri.T.R. Ravi)Dated 1.1.2014) For R7 : Adv.Sri.P.G.Ganappan

The O.P. having come up for hearing on 7.8.2015, the Adalat on 20.8.2015

delivered the following :A W A R D

Sri.D.Pappachan (Chairman)

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This is a petition filed under Section 22 C(1) r/w s. 22 A (b) (v) of the

Legal Services Authorities Act, 1987 for short ‘the LSA Act’.

2. Petitioner herein is a minor boy aged 5 years represented by his father

and next friend Sri.Roshan B. Menon. Medical negligence and deficiency in the

hospital service is the issue raised in this petition. Hereinafter the father of the

minor child, in respect of whose treatment the medical negligence is alleged, will be

referred to as the petitioner.

3. According to the petitioner, when the child was born on 29.7.2008, he was

not suffering from any defect or disability, but when the child was aged 3 years, he

was found suffering from heart diseases and therefore, he was admitted to the 1st

respondent hospital on 14.10.2011. It is also the case of the petitioner that the 3rd

respondent doctor, who conducted surgery on the child on 17.10.2011, told him

(petitioner) that the operation was successful. However, the child did not regain

consciousness. Petitioner stated that the C.T. scan done on the child revealed

bubbles in the brain. It is the further case of the petitioner that gangrene developed

in the index finger and at the anus of the child, upon which the index finger was

surgically removed. The petitioner would state that he was told by the doctors

concerned that during the heart operation of the child, Oxygen supply to the brain

was somehow discontinued for over a period of 3 minutes and hence the child

would never be normal. Later, the child was discharged from the hospital on

19.3.2012. Now the child is disabled in such a way that he is unable to move or

speak, apart from that its eye sight is also affected. According to the petitioner, all

these happened due to brain damage of the child and that he would never have

suffered such serious disabilities, but for the negligence and want of care of the

doctors and para medical staff of the 1st respondent hospital, who are arrayed as

respondents 2 to 6 in the original petition. In the additional statement filed by the

petitioner on 21.8.2013 he would therefore, claim a compensation of Rs.23 lakh.

3. On receipt of notice from this Authority, respondents 1 to 4 entered

appearance and filed a joint written statement wherein they would defend this

action against them by explaining the ailments, which the child was suffering from,

and the nature of treatments which he had undergone at the 1st respondent hospital.

The defence set up by the respondents cannot be better stated than extracting

paragraphs 3 to 9 of their written statement in the following manner.

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“The petitioner was brought to the Sree Chitra Tirunal

Institute for Medical Sciences and Technology (hereinafter

referred to as the Institute) on 18.8.2011, for examination in the

Out Patient Department of the Cardiology Wing. The child was

brought with Ventricular Septal Defect (VSD) and severe

pulmonary hypertension (increased pressure in lung artery). The

child has been diagnosed to have heart disease at the age of nine

months and the child had 8 episodes of pneumonia before coming

to the Institute.

The petitioner was referred for surgical closure of VSD to

the CVTS Department on 18.8.2011 and registered for the same

with No. EA (Early Admission) 290. It is submitted that due to

large number of patients waiting for surgery, the average waiting

period for a patient is about 2 to 3 years. Since the child was on the

verge of incurability, he was accommodated against cancellation in

the surgical list within two months of registration. It is submitted

that medical prudence requires that normally children with VSD

should be operated between 3 months and 1 year, so that the

pressure in the lung artery come back to normal. The delay in

closing the hole would lead to persistently high pressure in the

lung artery leading to decreased life expectancy. The child was

taken up for surgery after explaining the risk due to delayed

treatment due to elevated lung artery pressure and complications

associated with cardiopulmonary bypass, including brain damage

(cerebral injury). After obtaining the requisite consent, the child

underwent closure of VSD under cardio pulmonary bypass

(support of circulation by heart lung machine while the hole inside

the heart is being closed) on 17.10.2011. The child had an

uneventful surgery and all the post operative echocardiograms

showed good surgical result.

In the post operative ICU, the child developed high grade

fever up to 104 degree Farenheit (hyperpyrexia), not responding to

any kind of therapy, and the temperature was brought down with

artificial external cooling. It is submitted that the above situation

is a rare but well known and identified side effect of

cardiopulmonary bypass and represents exaggerated body response

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to heart lung machine, which is seen to happen in some of the

patients. Around 4 AM on 18.10.2011, the child had a sudden

increase in the lung artery pressure associated with decreased

blood oxygen saturation and decreased heart rate. This was

identified and treated promptly and the child recovered soon. It is

submitted that such episodes are seen frequently in children with

increased lung artery pressure when they come out of sedation

especially when operated late, as in the case of the petitioner.

Subsequently, the child was weaned off the ventilator by

midday on 18.10.2011, but he had to be put back on ventilator due

to drowsiness and poor breathing efforts. The child was evaluated

by the neurologist and an MRI scan of the brain was done, which

did not show any major abnormality and this ruled out an insult

during cardiopulmonary bypass. As the child showed clinical

evidence of neurological dysfunction, follow up brain scan was

done, which showed diffuse brain damage. The child was being

managed in consultation with the neurologist and paediatrician and

needed prolonged ventilation. Further attempts to remove him

from the ventilator on 27.10.2011 and 4.11.2011 failed after 1½

days and 2½ days respectively. Since the child needed prolonged

ventilator support, the same was explained to the parents and

tracheostomy was done on 8.11.2011 with proper written consent

from the parents.

Meanwhile, the child developed bluish discoloration of the

tip of his left index finger. The left hand had a cannula inserted

into its artery for continuous monitoring of blood pressure, which

is the standard procedure for any patient undergoing cardiac

surgery. As soon as discoloration was noted, the line was removed

and appropriate treatment was initiated promptly, but the condition

failed to improve. Later on, the tip of the index finger was

removed to prevent infection spreading to the rest of the body,

which would have been fatal in such a condition. This was also

done with proper consent from the parents.

The child showed signs of improvement gradually and was

weaned off the ventilator slowly and tracheostomy was removed

on 3.1.2012. The child had mild stridor (sound while breathing)

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following that, which was evaluated and treated by an ENT

Surgeon. The child was undergoing active neurorehabilitation

under the care of a specialist in the hospital. Later on the child

was discharged on 19.3.2012 on the request of the parents to

undergo neurorehabilitation at a specialised centre. The Institute

had asked the parents to come for review after one month so that

rehabilitation can be proceeded with but the child was not

thereafter brought to the hospital.

It is submitted that the entire treatment at the Institute was

provided free of cost and as a matter of fact several of the staff

members of the Institute had supported the family psychologically

and financially during their prolonged stay, out of compassion. It

is submitted that the petitioner was a sick child with a congenital

heart ailment, whose treatment was delayed due to late reporting,

but underwent prompt and successful surgical treatment, out of

turn, on humanitarian grounds. Unfortunately, he developed a

rare, but well known and identified complication of

cardiopulmonary bypass, which resulted in neurological damage. It

is submitted that the reasons attributed in the petitioner for the

neurological damage are not true. There has been no occasion of

any negligence from the part of the respondents in affording the

treatment to the petitioner. It is submitted that the Institute is

having all the facilities for ensuring and monitoring that no

mishaps as suggested in the petition occur. There can be no

situation of the oxygen supply being cut off for 3 minutes of more

as stated in the petition. All such equipments are attached to

alarms set to activate the moment the oxygen supply is cut off. It

is submitted that the original petition is presented on the basis of

mere surmises and the reasons stated in the petition for the present

condition of the child are not factually true”.

4. Although respondents 5 and 6 also appeared before this Authority through

the same counsel appearing for respondents 1 to 4, they (respondent 5 and 6) did not

file any separate written statement. It would appear that respondents 5 and 6 adopted

the contentions of respondents 1 to 4.

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5. Meanwhile the 1st respondent filed an additional written statement

pointing out the fact that the hospital is covered by a valid Insurance Policy

issued by M/s New India Assurance Company Limited. On the basis of the

additional written statement thus filed by the 1st respondent, the petitioner filed I.A.

1/2014 for the impleadment of the Insurance company as additional 7th respondent.

That application was allowed and New India Assurance Company was brought on

record as additional 7th respondent.

6. After their impleadment, additional 7th respondent filed a written statement

admitting the Professional Indemnity Insurance policy availed of by the 1st

respondent hospital, but pleading ignorance about the alleged medical negligence

on the part of respondents 1 to 6.

7. Although this petition was originally filed before this Authority by the

petitioner in person, on the request made by the petitioner, the District Legal

Services Authority Ernakulam appointed Adv.Smt. Maya Krishnan as the Legal Aid

Counsel to conduct the petitioner’s case.

8. After the filing of the written statements by all the respondents and after

the appointment of the Legal Aid Counsel for the petitioner, this Authority

conducted statutory conciliation u/s 22 C (4) of the LSA Act exploring the

possibility of an amicable settlement of the dispute. But no settlement could be

arrived at. The case was therefore taken up for decision on merit as required u/s 22

C (8) of the LSA Act.

9. In proceedings with the case u/s 22 C 8) of the LSA Act, the petitioner

was examined as PW1 and marked Exts.P1 to P17 documents. Similarly on the

side of the respondents the 3rd respondent doctor got himself examined as RW1.

The copy of the report submitted by an expert doctor to the State Human Rights

Commission on a complaint filed by the petitioner, is produced by respondents 1 to

6 and marked as Ext.R1. After closing evidence on either side as aforesaid, we have

heard the Legal Aid Counsel Adv. Smt. Maya Krishnan as also Adv. Sri. T.R. Ravi

appearing for respondents 1 to 6, in detail.

10. The points for determination are :

1. Whether any medical negligence or want of proper care on the part

of respondents 1 to 6 in the treatment given to the petitioner’s

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child at the 1st respondent hospital is proved to the satisfaction of

this Authority?

2. Whether the petitioner is entitled to claim any compensation from

the respondents and if so the quantum?

Point No.1

11. No doubt, if Ext.P17 medical certificate produced by the petitioner,

without being objected to by the respondents, is anything to go by, the petitioner’s

child is suffering from serious health problems long after his treatment at the 1st

respondent hospital. Ext.P17 certificate shows that the child is suffering from

severe permanent impairment of locomotion. As per the certificate the disability of

the child is assessed by an expert team of doctors as 75 per cent. The respondents

do not also dispute the fact that the health status of the child, whose date of birth is

29.7.2008, continues to be so even today. But the crucial question, which we are

called upon to decide, is whether the sad predicament of the child is attributable to

any medical negligence or deficiency in the hospital service of respondents 1 to 6.

12. That the child was diagnosed to have Ventricular Septal Defect

(VSD) ie., a hole inside the Heart on the wall separating the left and right

ventricules, at the age of 9 months is a fact admitted by the petitioner during his

cross examination as PW1. According to the respondents 1 to 6, children with VSD

should be operated between 3 months and one year. It is also the case of the

respondents that the heart ailment, which the child in this case was suffering from,

was congenital and that the treatment was delayed due to late reporting at the 1st

respondent hospital at the age of 3 years and such delay in the closure of VSD led to

high pressure in the lung artery, associated with decreased blood oxygen saturation

and decreased heart rate. It is the further case of the respondents that during the

surgical treatment the child developed a rare, but well known and identified

complication of cardio pulmonary bypass, which resulted in neurological damage.

The 3rd respondent doctor, when examined before this Forum as RW1, has spoken to

the case of the respondents as aforesaid. Apart from that RW1 could stand the test

of cross examination, the respondents would also find support from Ext.R1 report of

an expert doctor to the State Human Rights Commission to the effect that there was

no negligence or want of care on the part of the treating doctors and paramedical

staff of the 1st respondent hospital in the treatment given to the child.

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13. Of course, the petitioner has a case that during the progress of the heart

operation, oxygen supply was cut off for over a period of 3 minutes that accounted

for the decreased blood oxygen saturation leading to the brain damage of the child.

But the petitioner during his cross examination as PW1 would admit in so many

words that his understanding in this regard is not on the basis of any direct

knowledge, but as told by some Neuro doctors. But it is the important to note that

the petitioner was not able to examine any of those Neuro doctors to speak in

support of his case as stated above. In fact, respondents 1 to 6 would also admit the

fact that during the surgical treatment there was decreased blood oxygen saturation.

But according to the respondents it is a known complication of VSD closure,

particularly when operated late, as in this case. In their joint written statement

respondents 1 to 4 also pointed out that the moment the oxygen supply is cut off,

the alarms attached to the equipments would activate automatically and therefore,

the possibility of deficit supply of oxygen has to be ruled out. In the circumstances

of this case there is no reason whatsoever to distrust the respondents’ case in this

regard. It is more so, because the petitioner was not able to adduce any evidence in

support of his case that oxygen supply was discontinued during the surgical process.

14. Yet another case set up by the petitioner is that the gangrene developed

in the left index finger of the child resulting in its removal by surgical process,

would indicate that the treating doctors were negligent. But the circumstances

under which gangrene developed in the left index finger of the child is well

explained by RW1 doctor during his cross examination. The case spoken to by the

doctor that such instances occur very rarely in an operation like this, cannot be

discountenanced in the facts and circumstances of this case.

15. Referring to Exts.P1, P2, P6 and P7 documents and Ext.P5 photograph

of the child the petitioner has then a case that the child was normal till it was

admitted to the 1st respondent hospital on 14.10.2011 and that all the medical

complications resulting in the disability of the child as evidenced by Ext. 17

documents arose only after the heart operation was conducted at the 1st respondent

hospital. But it is to be remembered that the child was suffering from Heart ailment

of a serious nature, which was detected at the age of 9 months and therefore, the

child had undergone a major and very complicated heart operation in the 1st

respondent hospital. In any case, the evidence on record falls far short of holding

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that medical negligence or want of proper care on the part of treating doctors and

paramedical staff of the hospital contributed to the deteriorated health condition of

the child. We do not also see any acceptable evidence in this case to find that the

petitioner’s child did not receive proper treatment from the 1st respondent hospital in

accordance with the standard protocol. The point raised above is therefore,

answered in favour of respondents 1 to 6.

Point No.2

16. In view of our findings on point No.1 we hold that the petitioner is not

entitled to claim any compensation from respondents 1 to 6 or from the insurance

company, which is arrayed as 7th respondent in this case.

The point raised above is thus answered.

In the result, an Award is passed u/s 22 C(8) of the LSA Act dismissing

the petition and directing both parties to bear their respective costs.

Issue copies of the Award to both parties free of costs.

Dictated by the Chairman to the Confidential Assistant, transcribed and typed by her, corrected and pronounced by the Bench of the Permanent Lok Adalat on this the 20th day of August, 2015.

D.Pappachan, Chairman Sd/Johns Darrel, Member Sd/

APPENDIX

Witnesses for the petitioner

PW1 Roshan B. Menon

Exhibits for the petitioner

P1 Child health record

P2 Echo colour Doppler report dated 12.8.2011

P3 Surgical call letter from the Sree Chitra Tirunal Institute for Medical Science and Technology, Thiruvananthapuram dated 18.8.2011.

P4 Prescription slip dated 18.8.2011

P5 series Photo copies of Photographs

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P10 series Bills

P11 Photo copy of lab report

P12 Photo copy of MRI Scan report

P13 Photo copy of Case summary and discharge record dated 22.2.2012

P14 Photo copy of Case summary and discharge record dated 20.3.2012

P15 Medical certificate issued by the 3rd respondent dated 20.3.2012

P16 Photo copy of News paper

P17 Photo copy of Medical certificate dated : 14.8.2013

Witnesses for the respondents

RW1 Dr. Baiju S.Daran Exhibits for the Respondents

R1 Photo Copy of the enquiry report dated : 13.12.2013

Documents

PLA 2(i)