State Consumer Disputes Redressal Commission
Dr. P.R. Venugopal, vs Raju K.S., on 16 June, 2011
Daily Order
First Appeal No. 575/2005 (Arisen out of Order Dated null in Case No. of District ) P.R.Venugopal Vs. Raju K S BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: Dated : 16 Jun 2011 ORDER Disposed as Allowed in Part
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 575/2005
JUDGMENT DATED: 16-06-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANTS
1. Dr. P.R. Venugopal,
Josgiri Hospital, Thalassery.
2. The Administrator,
Josgiri Hospital, Thalassery.
(Rep. by Adv. Sri. M.C. Suresh)
Vs
RESPONDENT
Raju K.S.,
Koovantavida House,
P.O Paral, Thalassery.
(Rep. by Adv. Sri. Ramkumar Nambiar)
JUDGMENT
JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellants are the opposite parties/Gynecologist and the Administrator of the hospital respectively. The appellants are under orders to pay a sum of Rs. 1,50,000/- as compensation and costs of Rs. 2,000/-.
2. It is the case of the complainant that his wife Sujaya was admitted at the opposite party hospital on 24-03-2008 as she started having labour pains. She was visiting the first opposite party doctor ever since she was pregnant. The first opposite party after examining her referred her to the labour room and advised to wait for normal delivery despite the fact that the first delivery was by caesarean. On the same day, the duty nurse asked her to occupy the room allotted to her. On the next day the doctor examined and directed to wait for pain. On 26-03-1998 she was not feeling the movement of the child. When informed the duty nurse examined her with a machine and said that the heartbeat of the child was normal. Although the matter was informed to the first opposite party doctor he did not attend her. On 27-03-2008 the first opposite party examined her and directed the duty nurse to give drip to induce pain and referred to the labour room. The relatives were asked to collect O+ve blood without testing the blood group. On the same day, caesarean was conducted and the child was taken out. The condition of the mother and child was critical. The respiratory system of the child was found in disorder. The child was suffering from suffocation. The Paediatrician of the hospital attended the child and administered oxygen. On 29-03-2008 the condition of the child and the mother deteriorated. The complainant and other relatives requested the doctor to refer the patient to some other well equipped hospital. The opposite parties declined to provide a nurse to give oxygen to the child during transit. After some hours the child died. At the time of delivery the child was having normal weight. In the report of Ultra Sound Scanning done on 17-12-1997 everything was found normal. No further scanning was done. The doctor ignored the fact that the first delivery was by caesarean operation. If caesarean was done little earlier the child would not have died. They refused to provide a duty nurse to accompany the patient in transit amounted to deficiency. The complainant has claimed a sum of Rs. 2,00,000/- as compensation.
3. The first opposite party doctor have filed version denying the allegations altogether. He has submitted that Mrs. Sujaya had reported at the hospital. It was her second pregnancy, the first being a caesarean section, reportedly for foetal distress done about 5 years prior to the second conception. Her last menstrual period (LMP) was on 24-06-1997 and the expected date of delivery was on 01-04-1998. She has also underwent treatment for Chronic Pelvic Inflamatory disease prior to conception. As per records produced the antenatal period was uneventful. Further, she was insisting for a vaginal delivery as she wanted to avoid another caesarean operation. As the first caesarean section was conducted for foetal distress without any cephalo-pelvic disproportion and as the first caesarean need not end in a caesarean during the second delivery, she was promised a trial vaginal delivery, if the condition was satisfied. She was also told that she should be prepared for an emergency caesarean section at any time during the trial labour. She was happy to hear that contrary to her belief that the first caesarean is always a caesarean for subsequent deliveries. She was advised to get admitted one week prior to her expected date of delivery. She got admitted on 24-03-1998. She was told that she would be observed for two other days before she was subjected to a trial vaginal delivery and caesarean section would be done only if the trial fails. On examination she was found to be an ideal case for a trial vaginal delivery, as the position, lie of the baby, progress, her BP, general condition etc. were satisfactory. After admission she was closely observed for the first three days, constantly monitoring the state of the foetus and also the mother. The first opposite party regularly examined her and it was found that she did not develop labour pain and the baby was alright. It is not correct that she informed that she was not feeling the movements of the foetus on 26-03-1998 and that it was conveyed to the opposite party and that he did not attend her. The duty nurse was regularly examining and monitoring the baby. On 25th and 26th she was not having any complaints. On 27-03-1998 the opposite party examined her in her room and found that she was fit for conducting a trial vaginal delivery. The same was explained to her and that she would be given a drip to induce labour pain. It was also informed that if the baby develops any sign to lead to its distress she would be subjected to emergency caesarean section. She was shifted to the labour room for induction of pain. Before induction she was again examined in the labour room and found that her cervix was conducive for a vaginal delivery and that the foetus was alright. She was given enema and started drip of 5% Dextrose with one unit of Syntocinon at about 10 am. On every 15 minutes the foetal heart rate, maternal pulse and other parameters were assessed and recorded. She was shown satisfactory progress till 3.50 pm. When the foetal heart rate suddenly dropped to 100/minute from the normal rate of 140/minute the same was immediately reported to the first opposite party and on examination she was found to be in active labour with uterus acting periodically. The head of the baby was engaged showing satisfactory progress. Notwithstanding the foetal heart rate was slow (Rate 100/120/minute). She was showing satisfactory progress with cervix fully effaced admitting four fingers. Inorder to hasten the process of labour, Artificial Rupture of Membrane (ARM) was done and clear liquor amnil escaped. Syntocinon drip was changed to plain drip. She was prepared for an emergency caesarean. The relatives were asked to make ready one donor with A+ve group of blood. It is incorrect that O+ve blood was asked to be arranged. Call was sent to the Anaesthetist and the Paediatrician to be ready in the operation theatre. Consent was obtained in writing. She was shifted to the operation theatre. An emergency caesarean section was done at 4.10 pm and a live but asphyxiated baby weighing 3.3 kg was delivered. The baby was immediately handed over to the Paediatrician who was ready in the operation theatre for resuscitation. Due to thick adhesions, surgery was difficult and one bottle of A+ group of blood was transfused. It is not correct that the condition of the mother was critical. The baby was shifted to the Intensive Neonatal Paediatric Unit where the Paediatrician and the staff continued the resuscitative measures. Oxygen was administered and antibiotics and other emergency drugs were administered. Inspite of the best efforts baby expired on 29-03-1998 at 10.55 am, after two days of delivery. The allegations in the complaint are denied. A baby normal throughout the period of pregnancy may show signs of distress at any time during labour and an Obstetrician cannot exactly predict the outcome of labour because complications can occur at any time. Even if ultrasonography was done, the condition of the foetus would appear normal. She was not subjected to scanning at that time because it was not found necessary. It is not correct that as she had the first delivery by caesarean the subsequent deliveries also should be by caesarean section. Unless there is a definite indication it is not justified to subject a woman to a major surgery which carries risks both to the baby as well as to the mother. Moreover, the patient and her relatives opted for vaginal delivery. Even during surgery much difficulties were experienced due to thick adhesions between omentum and the urinary bladder and the same were separated with much difficulty. During separation considerable amount of blood was lost and the same was timely replaced by transfusing one bottle of X-matched A+ blood. When there are two genuinely responsible schools of thought in the management of clinical situation it is not proper to place the hall mark of legality upon one form of treatment. It is denied that the hospital refused to sent a duty nurse to accompany the patient during transit to another hospital. If the complainant wanted to shift the baby to a higher centre the opposite parties would have provided all the facilities. It is denied that there was any negligence or deficiency on the part of the opposite party.
4. The second opposite party the Administrator of the hospital has also filed version supporting the contentions of the first opposite party. It is pointed out that the first opposite party is a qualified and experienced Gynaecologist holding a post graduate degree of MD and DGO in Obstetrics and Gynaecology.
5. Evidence adduced consisted of the testimony of PWs 1 and 2, the complainant and his wife respectively and DWs 1 and 2 the first opposite party and the Paediatrician respectively and Exts. A1 to A11 and B1 case sheet.
6. The Forum has relied on the version of PW2 the complainant that she was having intermittent labour pain and that inspite of the fact that she insisted for the caesarean operation since her first delivery was caesarean the doctor waited for a normal delivery. It is also her case that on 26-03-1998 she told the nurse that there is no movement of baby. The same was not taken seriously. On 27-03-1998 in the morning when the doctor examined her she told him that during the night the baby had no movement. She had some bleeding at 10.30 am and vomiting also. At 1.30 pm pain was so intense that she insisted for calling the doctor but the nurse refused. It is on seeing her critical condition the doctor was called and the doctor was angry towards the duty doctor and the nurse and told them that there may not be a chance for saving the mother and child. She was having intermittent pain since 24-03-1998. The version of PWs 1 and 2 that they wanted to take the child to a higher centre and that they requested for a nurse to accompany for giving oxygen to the baby and that the opposite parties were not willing to provide a nurse and the equipment was also taken into consideration. The Forum has also observed that if proper monitoring and USG were done the child would have been saved. The baby died after 56 hours. It was also noted that there is no record to show that the opposite parties monitored the heart beat of the foetus at half an hour interval everyday. The same itself established that the opposite parties were negligent in attending the patient. It was noted that DW1 has admitted that when a patient is admitted in the hospital for labour pain normally they will wait for 10 hours for taking a decision whether a caesarean section is to be done in case there is no normal delivery. It was noted that the patient was admitted on 24-03-1998 and even after knowing fully well that her first delivery was a caesarean operation, the opposite parties waited till 27-03-1998. It was also doubted whether the operation was conducted at 4.10 pm as noted in the case sheets. Reducing of heart beat of the foetus was noted at 3.50 pm and within a short period blood was arranged. Anaesthetist examined and caesarean section done at 4.10 pm. It was also noted that it appeared that the opposite parties were well aware that the baby is not alive. The Forum on the above findings held that the opposite parties were negligent and ordered to pay a compensation of Rs. 1,50,000/-.
7. The Counsel for the appellant has asserted relying on the statistics quoted in Williams Obstetrics (21st edition) that there is an increase in VBAC (vaginal birth after prior cesarean) rate after a prior cesarean. The figures are quoted for the period from 1989 to 1996 from the hospitals at USA. It is seen from the above Text Book at Section VI that the indications for a caesarean delivery over 85% cases are: 1. prior caesareans 2. labour dystocia, 3. foetal distress and 4. breech presentation. Once a caesarean always a caesarean is not the whole truth. The same is now seemingly excessive pronouncement. It is also noted therein that a study reported from the University of Texas has found that a subsequent vaginal delivery was safely attempted in 83% of the patients with prior caesarean deliveries. Use of VBAC increased very significantly in the United States such that there was a 14-fold increase to 28% of woman with prior caesareans delivering normally in 1996. Recommendations of the American College of Obstetricians and Gynecologists for selection of candidates of VBAC mentions the selection criteria as : one or two prior low-transverse caesarean deliveries, clinically adequate pelvis, no other uterine scars or previous rupture, Physician immediately available throughout active labour capable of monitoring labour and performing an emergency caesarean delivery, availability of anaesthesia and personnel for emergency caesarean delivery.
8. In the instant case we find that the case of the complainant that she was having labour pain on 24-03-1998 and she was taken to the labour room stands not denied. It s also pertinent to note that no USG has been done thereafter. Prior classical caesarean is a contraindication for a trial of labour as pointed out by the Counsel for the respondent relying on Chapter 26 of Williams Obstetrics vide the Recommendations of the American Academy of Obstetrics and the American College of Obstetrics and Gynaecoloy (2002).
9. It is also pertinent to note that Ext.B1 case sheet is a case sheet not properly maintained as is consisted of loose sheets. Foetal heart monitoring is seen done only on 27-03-1998 although she was admitted on 24-03-1998. The overwriting in the case sheet also. At 3.50 pm on 27-03-1998 the foetal heart beat is noted as 100 and at 3.55 pm as 96. At 10.30 am it was 135. At 11 am it was 138. Again at 12 noon it was 138. At 1.15 pm it was 138 and thereafter till 2.30 pm it was 136 and 138 in between. At 3 pm also it was 138. It has also to be noted that DW1 the first opposite party has admitted that after one caesarean the possibilities of complication are more in the second delivery. As noted by the Forum what has been noted in Ext.B1 that caesarean was done at 4.10 pm appears to be too a short period after noticing decrease in the foetal heart beat at 3.50 pm and also after arranging for A+ve group of blood. Further the case in the version of first opposite party doctor that the patient was constantly monitored as to the state of the foetus after her admission on 24-03-1998 also stands not substantiated as there is no record of monitoring the foetal heart beat in Ext.B1 for the above period. The fact that the opposite parties have not denied that the complainant was having pain on 24-03-2008 and that she was taken to the labour room is significant as noted by the Forum. There is no reason to wait for a normal delivery up to 4.10 pm on 27-03-1198. Dystocia is the most common current indication for caesarean delivery vide Williams Obstetrics as pointed out by the Counsel for the respondent. Facilities for giving obstetrical care with the capability of initiating a caesarean delivery within 30 minutes of the decision to operate is a recommendation of the American College of Obstetricians and Gynaecologists (2002). In cases of diagnosis of foetal distress vide Williams (op.cit). It is also to be noted that at the time of admission it is mentioned as provisional diagnosis as 50% effaced and admit two fingers ie, on 24-03-1998 at 11.am. It is pointed out by the Counsel for the complainant that the extent of two fingers meant an expansion of 4 cm. The cervical dilation of 3 to 5 cm or more, in the presence of uterine contractions can be taken to reliably represented the threshold for active labour C Williams at P142 Section 4 Labour and Delivery. We find that just on the basis of the observations noted in Ext.B1 case sheet it is not possible to conclude that the complaint's wife was having the onset of labour uterine contractions that bring about demonstarable effacement and dilation of cervix which is the required condition. The same does not easily aid the clinician in determining when labour has actually begun because this diagnosis is confirmed only retrospectively (see Williams op.cit at page 420). Another criteria noted in the above Text Book is painful uterine contractions accompanied by one of the following:
1. ruptured membranes
2. bloody 'show'
3. complete cervical effacement (ibid at P.420)).
All the same we find that the fact that foetal heart beat was monitored only on 27-03-1998 would indicate that the statement of PW2 the lady that there was no movements of the baby in the night of 26-03-1998 is true. On the basis of the evidence produced it is not possible to conclude that the first opposite party as such neglected the woman and did not conduct the caesarean surgery in time.
10. All the same, we find that the treatment records have not been maintained properly at the second opposite party hospital. The first opposite party has also not taken care to see that the treatment records are maintained properly. As already noted above, Ext.P3 case sheet consists of a few loose pages. There is no reason as to why the foetal heart beat was not monitored despite the fact that it is noted as 50% effaced and admits two fingers on 24-03-1998 and 60% effaced and admits two fingers on 26-03-1998. It has to be noted that especially as the lady had a previous caesarean section the opposite parties ought to have monitored all parameters. A failure to monitor foetal heart beat from the date of admission amounts to negligence.
11. The contention of the Counsel for the appellants that in the absence of expert evidence the appeal is liable to be allowed, we find has no merits. The Supreme Court in V. Krishnan Rao Vs Nikhil Super Specialty Hospital and Anr. 111(2010)CPJ 1 (SC) has positively held that expert evidence is not required in every case. The facts and circumstance of the case would indicate whether expert evidence is necessary or not. In the instant case, the failure to bestow adequate attention is evident from the fact that foetal heart beat monitoring was not done after the date of admission when the woman was admitted with pain and effaceme nt although the evidence is not sufficient to hold that the baby died due to the negligence of the opposite parties. In the circumstances, we find that the order of the Forum directing to pay Rs. 1.5 lakhs as compensation is liable to be modified. The order of the Forum is modified as follows:
The appellants would be liable to pay a sum of Rs. 1,00,000/- as compensation to the wife of the complainant Mrs. Sujaya. The complainant will be entitled for interest at 7% per annum from 28-03-2000, the date of complaint. The order as to costs is sustained. The opposite parties will make the payment within three months from the date of receipt of copy of this order, failing which the complainant will be entitled for interest at 12% from 16-06-2011, the date of this order.
In the result, the appeal is allowed in part as above.
The office will forward the LCR to the Forum along with a copy of this order urgently.
JUSTICE K.R. UDAYABHANU: PRESIDENT
M.K. ABDULLA SONA : MEMBER
Sr.
[HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT