Paulson P.V vs The State Of Kerala
2021 Latest Caselaw 17628 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
                   WP(C) NO. 6798 OF 2020
PETITIONERS:

    1    PAULSON P.V.,
         AGED 59 YEARS
         S/O.P.K.VARUTHUNNY, PALIAKKARA HOUSE, CHIYYARAM
         P.O., THRISSUR - 680 026.
    2    MARY PAULSON,
         W/O.PAULSOON P.V., PALIAKKARA HOUSE, CHIYYARAM
         P.O., THRISSUR - 680026.
         BY ADVS.
         R.S.KALKURA
         SRI.M.S.KALESH
         SRI.HARISH GOPINATH
         SMT.P.ANJANA
         SMT.NEENU PAVITHRAN

RESPONDENTS:


    1    THE STATE OF KERALA,
         REPRESENTED BY ITS SECRETARY, HEALTH DEPARTMENT,
         GOVERNMENT OF KERALA, SECRETARIAT,
         THIRUVANANTHAPURAM - 695 001.
    2    DIRECTOR OF HEALTH SERVICES,
         OFFICE OF THE DIRECTOR OF HEALTH SERVICES,
         THIRUVANANTHAPURAM - 695 011.
    3    DIRECTOR GENERAL OF PROSECUTION,
         HIGH COURT OF KERALA, ERNAKULAM - 682 031.
    4    DIRECTOR OF MEDICAL EDUCATION,
         OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION,
         THIRUVANANTHAPURAM - 695 011.
    5    ADDITIONAL DIRECTOR OF HEALTH SERVICES
         (VIGILANCE),
         OFFICE OF THE DIRECTOR OF HEALTH SERVICES,
         THIRUVANANTHAPURAM - 695 011.
    6    ELITE MISSION HOSPITAL,
         A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING
         PARTNER (MANAGING DIRECTOR) DR.K.K.MOHNDAS,
         P.O.KOORKANCHERRY, THRISSUR - 680007.
 W.P.(C).No.6798/2020

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    7      DR.SATHISH CHANDRAN,
           S/O.RAMACHANDRAN, PAEDIATRICIAN, ELITE MISSION
           HOSPITAL, P.O.KOORKANCHERRY, THRISSUR - 680007,
           RESIDING AT VILLA NO.9, IRIS GARDENS, AVENUE
           ROAD, THRISSUR.
    8      DR.BOBBY,
           S/O.DEVASSY, ELITE MISSION HOSPITAL,
           P.O.KOORKANCHERRY, THRISSUR - 680 007, RESIDING
           AT AT KAVALAKATT HOUSE, NEHRU NAGAR,
           KURIACHIRA, THRISSUR- 680 006.
           BY ADVS.
           SRI.SHYAM PADMAN
           SRI.C.M.ANDREWS
           SMT.BOBY M.SEKHAR
           SMT.IRENE PARAMEL
           SMT.DEEPA NARAYANAN, SR.GP


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.6798/2020

                                  3


                  P.V.KUNHIKRISHNAN, J.
                    -------------------------------
                   W.P.(C).No.6798 of 2020
            ----------------------------------------------
          Dated this the 27th day of August, 2021


                           JUDGMENT

The 1st petitioner is the husband of the 2nd petitioner.

There were two children to them, namely Nivin and Nimisha

Paulson. The second child of the petitioners, namely Nimisha

Paulson, aged 1 year one month, was suffered fits and was

taken to the 6th respondent hospital. According to the

petitioners, there was medical negligence from the 6 th

respondent hospital and consequently the child died. A

criminal case is said to be pending before the jurisdictional

magistrate court. A complaint is also pending before the

Kerala State Consumer Disputes Redressal Commission for

compensation. Ext.P6 is the expert medical panel report of

Miss. Nimisha, D/o.Paulson. The same is extracted hereunder:

"The patient Nimisha, 1 year was admitted with fever and convulsion at Elite Mission Hospital on 02.10.2010. Patient was on anti convulsants, antibiotics and bronchodialators. It is reported that the patient was apparently normal on the next day and till 04.10.2010, 6.45 AM, as reported by the FIR.

W.P.(C).No.6798/2020

On 04.10.2010 morning, the child had an episode of possible convulsions and breathlessness, which was again managed with Inj. Deriphilline (½ ampule IV). It is not the appropriate treatment for seizure, and the dose administered is apparently high. High dose of deriphilline can again induce seizure. Later the child was shifted to ICU, put on ventillator. Resuscitative measures were done. However the patient could not be revived.

Death can be attributed to the event which occurred actually at 6.45 AM. There was a possibility of misdiagnosing (seizure vs. breathlessness) and probably inappropriate treatment. Board Members:-

1. Dr.T.D.Muraleedharan, Paediatrics

2. Dr.M.A.Raveendran, General Medicine

3. Dr.Shaji Abraham, Neurology

4. Dr.K.K.Mubarak, Anesthesiology

5. Dr.Saji Sebastian K., Gastro Enterology

6. Dr.P.S.Sanjay, Forensic Medicine

7. Dr.C.V.Chandrika, O & G

8. Dr.R.V.Prasad, General Surgeon

9. Sri.Pious Mathew, District Government Pleader"

2. Challenging Ext.P6, the hospital authorities filed

appeal before the Appellate Medical Board. Ext.P8 is the

appeal memorandum. The appellate authority considered the

matter and pass Ext.P11 order. It will be better to extract the W.P.(C).No.6798/2020

contents in Ext.P11:

"Facts of the case Nimisha, 1 year old child was admitted on 02.10.2010 at Elite Mission Hospital with fever and convulsion. Then the patient was on anti convulsants, antibiotics and bronchodialators. On next day the patient was apparently normal and till 04.10.2010, 6.45 AM. Then convulsions and breathlessness occurred which was again managed with Inj. Deriphilline (½ ampule IV). Then high dose of deriphilline given for seizure. Later the child was shifted to ICU and put on ventilator. The patient could not be reived and expired on 04.10.2010 at 10.15 am.

Nedupuzha Police Station, Thrissur has registered Crime No.541/10 u/s.304(A) of IPC. The DMO(H) Thrissur convened expert Medical Panel Meeting on 19.03.2012. The District Level Expert Committee come to a unanimous conclusion, that there is negligence from the part of doctors of Elite Mission Hospital. Later the doctors filed appeal against the report of District Level Expert Panel. Hence the case was referred to State Level Apex Body. Documents perused The State Level Apex Body examined the following documents.

1. case sheet

2. Postmortem report W.P.(C).No.6798/2020

3. Report of district level expert panel

4. Expert opinion from the Dept. of Paediatrics, SAT Thiruvananthapuram Medical Analysis On perusal of the records available before the Apex Body, we are of the opinion that there is no medical negligence on the part of the treating Doctors in giving treatment to Nimisha at Elite Mission Hospital, Thrissur."

Aggrieved by Ext.P11, this writ petition is filed.

3. Heard the counsel for the petitioners, the

Government Pleader and the counsel appearing for

respondents 6 to 8.

4. The counsel for the petitioners reiterated the

contentions in the writ petition. The counsel also submitted

that Ext.P11 is not a speaking order. When Ext.P6 expert

medical panel report clearly says that there is negligence on

the part of the hospital authorities, the State Level Apex Body,

even without discussing the same, allowed the appeal. There

is no application of mind in Ext.P11 order. The counsel

submitted that Ext.P11 order is unsustainable.

5. The Government Pleader submitted that the State

Level Apex Body considered the case sheet, postmortem W.P.(C).No.6798/2020

report, report of district level expert panel and the expert

opinion from the Department of Paediatrics, SAT

Thiruvananthapuram and only thereafter Ext.P11 order was

passed and there is nothing to interfere.

6. The counsel appearing for respondents 6 to 8 also

supported Ext.P11 order. The counsel submitted that the Apex

Body, after giving opportunity to the petitioners and other

affected parties, passed Ext.P11 order and the Apex Body

considered all the relevant inputs available and only

thereafter passed Ext.P11 order and there is nothing to

interfere in Ext.P11.

7. I perused Ext.P11 order passed by the Apex Body.

There is no discussion in Ext.P11 order. It is simply stated in

it that "on perusal of the records available before the Apex

Body, we are of the opinion that there is no medical

negligence on the part of the treating Doctors in giving

treatment to Nimisha at Elite Mission Hospital, Thrissur." I

perused Ext.P6 expert medical panel report issued by a

Medical Board, which consists of 9 doctors including the

District Medical Officer of Health, Thrissur. In the report it is

clearly stated that death can be attributed to the event which W.P.(C).No.6798/2020

occurred actually at 6.45 am. It is also stated that there was a

possibility of misdiagnosing (seizure vs. breathlessness) and

probably inappropriate treatment. There is no discussion in

Ext.P11 about the findings in Ext.P6. I don't want to make any

observation about the merit of the case. Ext.P11 is not a

speaking order. The contentions of the petitioners were not

considered by the Apex Body. It is to be inferred that, there is

no application of mind. According to me Ext.P11 is to be set

aside and the matter is to be sent back to the 2nd respondent to

reconsider again, after giving an opportunity to the petitioners

and the hospital authorities.

Therefore, this writ petition is allowed in the following

manner:

1. Ext.P11 order is set aside.

2. The 2nd respondent will convene the State

Level Apex Body and reconsider the appeal

submitted by respondents 6 to 8, after giving

an opportunity of hearing to the petitioners

and respondents 6 to 8.

3. The authority concerned will pass appropriate

orders, as expeditiously as possible, at any W.P.(C).No.6798/2020

rate, within three months from the date of

receipt of a copy of this judgment.

4. The State Level Apex Body is free to pass

appropriate orders in the appeal,

untrammelled by any observation in this

judgment.

sd/-

                                          P.V.KUNHIKRISHNAN
JV                                               JUDGE
 W.P.(C).No.6798/2020





                 APPENDIX OF WP(C) 6798/2020

PETITIONER EXHIBITS
EXHIBIT P1        TRUE COPY OF THE TREATMENT CASE SHEET

PERTAINING TO NIMISHA PAULSON AT THE SIXTY RESPONDENT HOSPITAL.

EXHIBIT P2 THE TRUE COPY OF THE FIRST INFORMATION REPORT SUBMITTED BY THE PETITIONERS BEFORE THE NEDUPUZHA POLICE STATION AS F.I.R.541 OF 2010 DATED 5/10/2010. EXHIBIT P3 THE TRUE COPY OF THE FINAL REPORT IN F.I.R.541 OF 2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- II, THRISSUR DATED NIL.

EXHIBIT P4 TRUE COPY OF THE POSTMORTEM REPORT OF NIMISHA DAUGHTER OF PETITIONERS DATED 5/10/2010.

EXHIBIT P5 TRUE COPY OF THE REPORT OF THE REGIONAL CHEMICAL EXAMINER DATED 20/6/2012.

EXHIBIT P6 TRUE COPY OF THE EXPERT MEDIAL PANEL REPORT OF MISS. NIMISHA, D/O.PAULSON DATED 19/3/2012.

EXHIBIT P7 TRUE COPY OF THE COMPLAINT IN C.C.NO.39 OF 2013 ON THE FILE OF KERALA STATE CONSUMER DISPUTE REDRESSAL COMMISSION DATED 31/5/2013. EXHIBIT P8 TRUE COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY RESPONDENTS 7 & 8 BEFORE THE APPELLATE MEDICAL BOARD THIRUVANANTHAPURAM DATED NIL.

EXHIBIT P9 TRUE COPY OF THE REPORT DATED 6/6/2017 SUBMITTED BY THE DEPARTMENT OF PAEDIATRICS, SAT HOSPITAL MEDICAL COLLEGE THIRUVANANTHAPURAM.

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 5/12/2019 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER.

EXHIBIT P11 TRUE COPY OF THE REPORT DATED 30/11/2018 OF THE STATE LEVEL APEX BODY WITH REGARD TO THE DEATH OF NIMISHA THE PETITIONER'S CHILD.