State Consumer Disputes Redressal Commission
Sushma Sharma vs Kathuria Nursing Home on 23 March, 2009
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986.) Date of Decision: 23.03.2009 COMPLAINT NO. C-41/2000 Ms. Sushma Sharma Complainant W/o Shri Sunil Sharma, Through R/o F-428, Vikas Puri, Mr. Prasanta Varma, New Delhi-110018. Advocate Versus 1. Kathuria Nursing Home Opposite Party-1 F-13, Main Market, Through Rajouri Garden, Mr. G.K. Srivastava, New Delhi. Advocate (Through Shri Anil Kathuria) 2. Dr.(Mrs.) K. Kathuria Opposite Party-2 W/o Shri Anil Kathuria, R/o F-131, Main Market, Rajouri Garden, New Delhi. CORAM Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the Judgment.
2. To be referred to the Reporter or not.
Justice J.D. Kapoor (Oral)
1. Complainant is aged approximately 39 years of age. Opposite party no. 2 runs the Kathuria Nursing Home. The complainant at the time of her first pregnancy regularly went to the opposite party no. 2 for her prenatal care and treatment as also for her delivery and post-natal care and treatment.
2. OP-2 informed the complainant that since the position of the child in the womb was not conducive to normal delivery, she would have to undergo a Caesarean operation.. The OP-2 performed a Caesarean operation on the complainant on 3.9.1989 as a result of which a male child was born.
3. Right from December, 1993 onwards when the OP-2 had an Ultra Sound test performed at the premises of OP-1, the OP-2 informed the complainant that the complainant had a fibroid tumour in her womb.
4. In April, 1997 the complainant got pregnant, she went to her parents home at District Bijnaur where she stayed till 5th October, 1997, that is, until the completion of about 5 months of her pregnancy.
5. Having been under the care and treatment of OP-2 all through her first pregnancy and thereafter till she had gone to her parents home, and there too though she was consulting a local Gynaecologist, the line of treatment was approved and confirmed by OP-2. As was natural, the complainant again went to OP-2 at her nursing home (OP-1) for pre-natal care and treatment as well as for the purpose of having delivery when the time came and the usual post-natal care and treatment thereafter.
6. After Ultrasound was performed on 28.1.1998 by Dr. Deepak Chawla, OP-2 assured the complainant aforementioned as well as her husband that there was no need for a Casesarean operation being performed for the delivery of the complainant. The complainant lost her child and has damaged her uterus and gall blader permanently as they have been ruptured with the result the complainant can never conceive again throughout her life besides the life of the complainant was put at great risk as she was in critical condition and was about to die.
7. The specific and categorical advice of OP-2 the complainant prevailed upon to have the child birth only through normal delivery. When the complainant visited OP-2 on 18.2.1998 alongwith her husband she was advised by OP-2 to take about 2 ounces of Castor Oil in the night, in order that labour pains could be induced artificially. The complainant took the advised quantity of castor oil on the night of 18/19.2.1998 about 11.00 pm. She developed pains at about 5.00 AM on 19.2.1998.
Since the Nursing Home (OP-1) is quite near the residence of the complainant, she was removed there at that time itself by her husband. There OP-2 examined the complainant about 7.30 AM and said there was no cause to worry.
8. Complainant had started profusely bleeding and had been taken to the operation theatre of the said Nursing Home about 10.45 AM . OP-2 called the complainants husband inside the operation theatre. Complainant was lying on the table, her stomach cut up and one of the attending nurses, who was handling operating instruments was in her ordinary clothes, wearing no mask and no protective head covering. There OP-2 informed complainants husband that certain complications had arisen and that an emergency operation had to be performed on the complainant as she had started bleeding very profusely. On cutting up the abdomen of the complainant, it was found that the placenta had been ruptured and so was the bladder and the uterus of the complainant . There was a male child in the womb, it had died and that the condition of the complainant was very serious. After about five minutes, OP-2 came out leaving the complainant still cut open and exposed to the unsterilised atmosphere of the so-called operation theater and told complainant s husband that he should first sign certain papers before the stomach of complainant would be stitched up.
9. By the time serious damages had been done to the inside of the complainant as a result of which, the male child in the womb died and the complainant could barely be saved. The complainant was kept in the said Nursing Home for another 13 days and was discharged from there on 2.3.1998.
10. The complainant has been suffering since then as she develops pain in stomach of and on. She can not stand for a long period as a normal person She is also mentally disturbed as she can never conceive again and that her second child had been killed by the negligence of OP-2 and due to deficiency in services provided by the OPs.
11. Complainant is also not able to have marital relations with her husband because she has developed intense pain in the vaginal canal, which makes it impossible to perform coitus at times.
12. Complainant sent a notice to the OP-2 on 20.06.1998 for compensation. In view of above it is prayed to pass orders granting a sum of Rs. 19,65,000/- with interest we.f. February, 1998 onward till payment.
13. In reply OP-2 stated that she completed her MBBS in the year 1968 and her Post Graduation in Gynecology and Obstetrician in 1974 and is a Gold Medalist and holder of Presidents Gold Medal. It is admitted that the OP-2 is running a Nursing Home namely Kathuria Nursing Home OP-1 having 24 hours emergency services with duty doctors always present. The Nursing Home is equipped with all latest medical equipments and machines. Nursing Home is duly registered with the Govt. of Delhi. OP-2 has done over 15000 deliveries both normal archivares and Casarean section operations and is very well versed with management of obstretical problems that develop suddenly at the time of delivery.
14. When the time of delivery drew in earlier delivery, OP-2 stated that Caesarean will have to be performed due to fetal distress at the time of labour pains and not what has been alleged by the complainant.
15. It is admitted that Caesarean operation was performed and male child was born on 3.8.1989. This was the first Lower Segment Caesarean Section Operation (LSCS) done for the complainant first delivery.
16. It is admitted that complainant started coming to OPs from 7.10.1997. It is not mandated that a woman having an earlier through Casarean (LSCS) should have LSCS again at the time of second delivery. But answering OP had never assured the complainant and her husband that there was no need for (LSCS) answering respondent had in fact informed the complainant that trial for delivery by normal means may be opted if all is well as regards the reports. It is absolutely wrong and denied that the answering respondent acted with careless , wrongful conduct and prescribed wrong treatment to the complainant and acted negligently and criminally causing death of child and damage to the uterus and gall bladder. The answering respondent performed her duties with due care and sill as a professional doctor in the best interest of the complainant, and the emergent conditions that suddenly occurred in operation theater.
17. Answering respondents have never given any specific and categorical advice that the complainant delivery shall be attempted only by normal delivery. It was clearly informed by the answering respondents that the complainant should be ready for the LSCS also, keeping in view the conditions of the patient that may arise suddenly during the time of child birth. No doctor has a control over and during the conditions that my result suddenly at delivery.
18. It is admitted that complainant was asked when she arrived on 14.2.1998 to come on 16.2.1998. On 16.2.1998 and was again told to come on 18.2.1998. On 18.2.1998 the complainant visited the answering respondent and was recommended two ounces of caster oil at night in order to induce labour pain. Casteroil is prescribed when the time period of the delivery completes and the patient may not develop labour pain. When the complainant arrived about 7.30 aA.M. she was examined and the answering respondent found that the complainant had begun labour pains.
19. Complainant was kept under continuous examination and monitoring . At 10.30 A.M. when the complainant was having labour pains every 1-2 minutes duration and being monitored and it was found that the complainants vitals were normal Fetal heart was 142 to 144. Pelvic examination showed full dilatation of cervis and was expected to deliver within 1 hour. Anaesthesist and pediatricaian were present. Suddenly at about 10.50 A.M. it was noted by the answering respondent that uterine contractions were taking place and blood stained urine was seen coming out through urethra and fetal heart was doubted. Answering respondent suspected rupture of uterus and at once went to do laparotomy at 11.00 A.M. so as to save the mother and if possible the baby. Abdomen was opened, blood was found present in the abdominal cavity, rapture of the previous scare (of Ist delivery) was present and found baby coming out, and placenta was separated and tear was extended into/upto the bladder. The baby was delivered and handed to paediatrician. The baby did not cry. The bladder and uterus were repaired and sterilization was performed in the best interest of the complainant.
20. The operation theatre of the answering respondent maintain excellent, hygienic and aseptic conditions as per the medical norms. The answering respondent had acted to the best of her ability and professional skills and looked after the complainant with due care and skill. The answering respondent acted and performed the operation without wasting any time and within the standard prescribed medical procedure in such cases within 30 minutes. The answering respondent did her best but it is unfortunate that due to the sudden conditions occurring were beyond human control and whatever the answering respondent could do best acted with the best of her abilities and skill as a Gynecologist and atonce performed the laparotomy to save the mother and also the child. No doctor and medical science or technology is yet available to perform miracles.
21. The answering respondent was always there in the operation theatre and performed without any waste of time laparotomy on account of sudden condition that developed at the time of delivery at 10.50 A.M.
22. Complainants husband was informed about the sudden condition that developed and occurred and while the complainant was monitored in the operation theater. In view of complainants condition she had to be kept for full recovery in the nursing home for a period of nearly 2 weeks and was discharged on 2.3.1998.
23. It is absolutely false and wrong to allege that the complainant is not able to have marital relation with her husband as she has developed intense pain in the vaginal canal which makes her impossible to perform coitus. The answering respondent has not touched the Vagina of the complainant while performing laparotomy.
24. The procedure performed of laparotomy has also to include sterilization. This procedure under the medical sciences would over is the safest technique instead of performing hysterectomy which involves removal of the uterus which has been found to be highly and emotional upsetting and strainful for women patient.
25. The child birth is fraught with grave dangers each time the mother gives a child birth. There is simply no control over emergency conditions that might develop during the child birth.
26. Respondent had taken the right and proper decision immediately upon noticing that the complainant while in the labour. Complainant was kept under continuous examination and monitoring. Reliance is placed on Text Book Clinical Obstetrics by MUFSLIST & MENON 9th Edition page 371, Williams Obstetrics 13th Edition page 936, Danforth Obstetrics & Gynecology 7th Edition page 575.
27. On the concept of medical negligence we have culled out certain criteria from the ratio of large number of judgments starting from Bolams case followed by various judgments of the Supreme Court, some of which are as under :-
(a) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(b) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(c) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(d) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(e) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651
(f) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369 The conclusions are as under :-
(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. 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?
28. In the Instant case there is no allegation that the OP doctor was unqualified or not fully qualified or unskilled for taking up the case of delivery.
The first delivery was also taken up by the same hospital by way of caesarean operation. The complainant became pregnant second time and went to OP hospital on 14.02.98. She was advised to come on 16.02.98 and again on 18.02.98. On that day she was recommended two ounces of caster oil at night in order to induce labour pain. Caster oil is prescribed when the time period of the delivery completes and the patient may not develop labour pain. On the next day at 5 A.M. she began labour pain and was kept under examination and monitoring. It was only at 10.30 A.M. when she was having labour pain every 1-2 minutes duration and being monitored and it was found that her vitals were normal Fetal heart was 142 to 144. Pelvic examination showed full dilatation of cervic and was expected to deliver within 1 hour. Anaesthesist and pediatrician were present. Suddenly at about 10.50 A.M. it was noted that uterine contractions were taking place and blood stained urine was seen coming out through urethra and fetal heart.
29. OP-2 at once undertook laparotomy at 11.00 A.M. so as to save the mother and, if possible, the baby. Abdomen was opened, blood was found present in the abdominal cavity, rapture of the previous scar(of 1st delivery) was present and found baby coming out and placenta was separated and tear was extended into/upto the bladder. The baby was delivered but the baby did not cry. The OP claims to have repaired the bladder and uterus and performed the sterilization which was in the best interest of the complainant.
30. In view of her condition she was kept for full recovery in the nursing home for a period of two weeks and was discharged on 02.03.98. It is claimed by the OP that the procedure performed of laparotomy necessarily included the sterilization. This procedure under the medical sciences is the safest technique instead of performing hysterectomy which involves removal of the uterus which has been found to be highly and emotionally upsetting and strainful for women patient.
31. The contention of the counsel for the complainant is that prescribed procedure in the medical studies were never followed. According to the counsel whenever the procedure for cervix is prescribed, the surgical staff should be alerted, the fetal heart monitoring is to be kept at partogram, chart is required to be prepared on the basis of the diltation of cervix. In support of this procedure, the learned counsel has referred to and relied upon the following literature :-
Management of trial of caesarean scar(Ex.CW1/24) On admission to the hospital :
(i) Review case history, evaluate maternal and fetal status.
(ii) Set up an infusion line.
(iii) Blood is sent for cross matching.
(iv) Anaesthesiologist, theatre staff and labour room staff alerted.
(v) Commence cardiotocometry recording.
During labour :
(i) Monitor maternal vital signs, TPR, BP every hour.
(ii) Monitor maternal urine output, watch for haematuria.
(iii) Monitor scar tenderness.
(iv) Observe progress of labour on partograms.
(v) Oxytocin drip used with great care, and careful monitoring so as to establish optimal contraction pattern.
(vi) Observe fetal condition by cardiotocometry or intermittent auscultation of fetal heart sounds.
(vii) Delivery is either spontaneous or by low forceps. Difficult forceps extractions on instrumental deliveries are best avoided.
(viii) Discontinue the trial, if there is
-
Unsatisfactory progress of labour.
-
Fatal distress.
-
Mother complains of suprapubic scar tenderness, or haematuria is seen.
-
Unexpected maternal tachycardia.
-
Anxiety or suspicion about integrity of the scar.
32. Thus, the main allegation of the complainant against the OP is that the OP was trying for a normal delivery in spite of the patient being a case of cervix.
Secondly, the deficiency or negligence pointed out by the complainant is the induction of artificial pain through caster oil as caster oil is a laxative which cannot be used for labour pain and now-a-days oxytocin are being administered for induction of labour.
Once the patient was prescribed for the induction of labour, she should have been kept in the hospital and not sent to home with the said prescribed caster oil as such a patient has to be kept under examination and monitoring. Thirdly, the counsel has contended that the patient was having bad obstetric history which should not have been prescribed for cervix as she had first birth of caesarean and second time she aborted and third time there was a miscarriage and in the meanwhile there was some complaint of fish tumor and therefore the patient should not have been kept for cervix. The learned counsel has also referred to and relied upon the medical text on the Management of Labour which is as under :-
Management of Labour
(a) Induction of labour is carried out for the usual reasons.
(b) The use of oxytocin is not contraindicated. If one is willing to allow the uterus to contract in labour, one should be willing to stimulate it with oxytocin. The intravenous route is the only one permitted due to the accurate dose titration available. Beware of hyper-stimulation.
(c) The first stage of labour must be very closely monitored. An early baseline assessment, including a careful clinical pelvimetry is indicated. Frequent reassessment with special regard to the cervical dilation and position and descent of the head should be carried out. Partograms should be maintained.
(d) A careful watch must be kept for signs of impending scar rupture, e.g. bleeding per vaginum, haematuria, tachycardia, scar pain and tenderness. If there is any doubt it is better to section the patient than procrastinate.
(e) Adequate analgesia is required but epidural analgesia is contraindicated because it may mask the signs of scar rupture. Prolonged labour must be avoided and after 8 to 10 hours one must be very wary to allow the labour to continue.
(f) The second stage of labour is best cut short by forceps or the vacuum extractor to avoid unnecessary strain on the scar. Some authorities favour the vacuum as they claim the forceps blades may traumatize the lower uterine segment. However, this is not really valid.
(g) Care must be taken not to give enemetrine before the birth of the anterior shoulder, in case shoulder disproportion should occur.
(h) The third stage of labour. After delivery of the placenta, the scar may be exploded by two fingers per vaginum and its integrity checked. This can be done without extra analgesia.
33. In view of the aforesaid care and caution, the doctors are required to take care in such cases i.e. prolonged pregnancy unsuitable for induction, are as under :-
Individual considerations:
Though there may be an outright indication for a repeat caesarean operation in the current pregnancy, certain individual doctors may influence the obstetrician in its favour.
-
Age of patient.
-
Long time since last pregnancy.
-
Bad obstetric history.
-
Desire for tubal ligation.
-
Relative infertility.
34. Lastly the rupture of the uterus and death of a fully grown child was due to bad management as in the medical literature on rupture of the Uterus, the following observations have been made :-
To anyone acquainted, however slightly, with obstetrics the mention of rupture of the uterus at once suggests a badly managed labour. Such a view is in the main correct for, without doubt, in the majority of instances, the accident must be considered discreditable to the obstetric art and to the individual who has had charge of the parturient.
35. Thus, in view of the learned counsel for the complainant there was a minimum requirement of a surgery in the abdominal and there was a minimum condition prolonging of the labour.
36. However, while abjuring OP from the charge of deficiency in service and negligence, the counsel for the OP has referred to and relied upon certain documents that caster oil was only given as laxative and not for inducing pain. So far as the requirement of minimum surgery is concerned, the counsel for the OP has referred to the International Medical Literature advising the doctors to first wait for vaginal delivery which is a normal delivery and if it is not taking place then only they carry out for surgical procedure. In this regard the literature relied upon by the learned counsel for the OP is as under :-
Vaginal Birth After Caesarean Section:
Controversies Old and New Bruce L. Flamin, MD Kaiser Permanente Southern California Permanente, Medical Group Anaheim, California The Old Controversy: Once a Caesarean Always a Cesarean?
Craigins dictum dates back to an era when most cesareans involved a classical uterine incision, when antibiotics and transfusions were unknown and when doctors would arrive more often than not by horse and buggy for the patients home birth.
Fear of Uterine Rupture Complete or true uterine rupture involves the entire thickness of the uterine wall. It is usually sudden, explosive, and associated with pain, blood loss, and fetal and maternal morbidity. This type of rupture is most often seen in spontaneous or traumatic rupture of the unscarred uterus. It also occurs in patients with prior classic cesarean scars but would be most unusual in a patient with a prior low transverse uterine incision. Incomplete uterine rupture, often referred to in the literature as occult or silent rupture, dehiscence, or uterine window, is a partial separation of the uterine wall. Symptoms, bleeding, and fetal or maternal morbidity are minimal or absent.
37. In other words it is contended that since caesarean procedure has been over abused and therefore the dictum is that one should always wait for a normal delivery and if in the intervening period the complication takes place then the doctors are advised to carry out the laparotomy first to find out what is the problem inside and that is why hysterectomy is avoided as hysterectomy is used to remove the uterus. In both the procedures, laparatomy and hysterectomy, sterilization is the safest procedure under the medical sciences. As regards the rupture, the counsel has contended that uterus remained untouched and there is no contrary report to show that uterus rupture was removed. The circumstance of not being able to conceive is the result of sterilization.
38. We have accorded careful consideration to the contentions of the rival parties and the list of medical literature referred to and relied upon by the learned counsels of both the parties.
39. In our view, the OP can be at the most held for limited deficiency in prolonging the labour pain. No doctor with minimum medical knowledge would prescribe two ounces of caster oil at night in order to induce the labour pain. Caster oil is used only as a laxative. The patient was asked when she arrived on 14.2.98 to come on 16.2.98 and was again told to come on 18.2.98. When she came at 7.30 A.M. she was examined and the OP found that she had begun labour pain but the procedure was inordinately prolonged and keeping in view the past history of the complainant, the caesarean section should have been resorted to. But, in our view, the non-performance of the caesarean section has neither resulted in the death of the baby nor has caused uterine rupture. Even as medical literature suggests that every doctor is made to wait for the normal delivery but if inordinately long time of labour pain is also needed through one process or the other, waiting for long period, is not proper and in such an event the caesarean surgeries are advisable. Even if we accept that it was not a case of caesarean section and it should not have been resorted to immediately, still the fact remains that the lady suffered pain and agony with a view to have a normal delivery but the past history suggested that such a prolonged labour even if it is normal labour should not be allowed.
40. As regards the laparotomy , it necessarily include sterilization. Laparotomy is always suggested as a safest technique than hysterectomy because the hysterectomy involves removal of the uterus and when a woman is told about the removal of uterus she gets emotionally upset causing lot of strain.
41. In the instant case, the inability of the patient not to conceive in future was not due to removal of uterus. The very fact that hysterectomy was not performed and only laparotomy was performed shows that uterus was not removed. The non-conception was due to sterilization and the laparotomy necessarily involves sterilization.
42. Be that as it may, we find the OP guilty for the aforesaid limited deficiency which in our view does not verge on the error of judgment but was resorted to with a view to have a normal delivery but it was not such a case to wait for such a long time. For the agony and pain suffered by the complainant and other emotional sufferings, we deem that lumpsum compensation of Rs. One lac shall meet the ends of justice besides Rs. 10,000/- as cost of litigation.
43. The payment shall be made within one month from the date of receipt of this order.
44. The complaint is allowed and disposed of in foresaid terms.
45. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
46. Announced on 23rd March, 2009.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc