State Consumer Disputes Redressal Commission
Dr.T.R.Bhavani, vs . Shijina, W/O Navas on 11 May, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/09/312 (Arisen out of Order Dated 28/01/2009 in Case No. CC 09/08 of District Idukki) 1. Dr.T.R.Bhavani Kerala ...........Appellant(s) Versus 1. Shijina Kerala ...........Respondent(s) BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIURVANANTHAPURAM
COMMON JUDGMENT IN APPEAL NOS.312/09 AND 332/09
JUDGMENT DATED:11..5..2012
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
FIRST APPEAL 312/09
Dr.T.R.Bhavani, : APPELLANT
Chief Gynaecologist,
Holy Family Hospital,
Muthalakkodam.P.O.,
Thodupuzha, Idukki District.
(By Adv.Sajeevu Mathew)
Vs.
1. Shijina, w/o Navas, : RESPONDENTS
Puramadathil House,
Vazhithala.P.O.,
Thodupuzha, Idukki District.
(By Adv.S.Subha)
2. The Director,
Holy Family Hospital,
Muthalakkodam.P.O.,
Thodupuzha, Idukki District.
FIRST APPEAL 332/09
The Director, : APPELLANT
Holy Family Hospital,
Muthalakkodam.P.O.,
Thodupuzha, Idukki District - 685 605.
(By Adv.George Thomas Mevada)
Vs.
1. Shijina, w/o Navas, : RESPONDENTS
Puramadathil House,
Vazhithala.P.O.,
Thodupuzha, Idukki District.
(By Adv.S.Subha)
2. Dr.T.R.Bhavani,
Chief Gynaecologist,
Holy Family Hospital,
Muthalakkodam.P.O.,
Thodupuzha, Idukki District.
(By Adv.Sajeevu Mathew)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellant in A.312/09 is the 2nd opposite party Gynecologist and the appellant in 332/09 is the 1st opposite party hospital in CC.9/08 in the file of CDRF, Idukki. The appellant/hospital is under orders to pay a sum of Rs.5,00,000/- to the complainant and the appellant/doctor is directed to pay Rs.2,25,000/-, within one month form the date of the order failing which with interest at 12% from the date of default and a sum of Rs.2000/- as costs.
2. The case of the complainant is that since 15.2.06 she was consulting the 2nd opposite party doctor from the initial stages of 1st pregnancy and necessary tests were done as directed by the doctor. She was told that there is no particular problems. On 3..10..06 she had a fall in the bath room . On 5.10.06 she consulted the doctor and was again told that everything is alright after an ultra sound scan. The expected date of delivery was 12.10.06. She got admitted on 11.10.06. At 8.30pm on 12.10.06 medicines were administered for inducing labour pain. By 9 pm pain started and gradually increased she was taken to the labour room at 1.45am. Suddenly the pain increased and became intolerable. She requested the nurses to inform the doctor and sought for an immediate caesarian operation. But the nurses scolded and abused her and asked her to keep quiet. The complainant was crying aloud. At about 4pm one nun-sister came and examined her. The complainant again requested the nurses and the nun-sister to call the doctor. But they discussed themselves and said "let do the other thing". According to her the nun sister climbed then upon the coat and kneeled down there and pressed strongly on the abdomen of the complainant to push the baby down. The complainant was having extreme pain and felt that the baby is coming out a little. She felt suffocation and even sound did not come out. After some time she again cried and sought for the presence of the doctor. The nurses continued the pressing and told themselves that head can be seen. She had bleeding and passed stools. Then they changed the clothes of the complainant. They could not bring out the baby. At about 5 pm the nurses told themselves that the fluid level is low and that it is difficult to have a normal delivery and shall call the doctor. At about 6am the 2nd opposite party doctor came to the labour room and decided upon to do the caesarean operation and wanted the nurses to summon the anesthetist. They told that the anesthetist has gone to the church. At about 6.45am anesthetist was found coming. Then she fell unconscious. At about 1.30 in the noon she became conscious. She was told that the baby had slight breathing problems and that the child has been placed in the children's section. After two days she was informed that the child has been taken to Kolenchery Medical College Hospital. On 16.10.06 on her insistence she was discharged. On 24.10.06 she was told that the child died on the previous day and was buried. She was aged only 23. For the entire period of pregnancy she was under the treatment of the 2nd opposite party doctor and underwent tests including scanning. It is alleged that after the medicines for inducing pain was administered in the night on 12.10.06 she was not examined by the 2nd opposite party doctor or by any other doctor. During the entire night she was subjected to unscientific handling by the nun sister and other nurses which was the reason for the death of her child. It is alleged that it is on account of the negligence on the part of the opposite parties that resulted in the death of her child. She has sought for a compensation of Rs.11,00,000/- and costs.
3. The opposite parties 1 and 2 the hospital and the doctor respectively have filed separate versions containing similar contentions. It is stated that on 15.2.06 it was found that the urine pregnancy test is positive. LMP (last menstrual period) was 5.1.06 and EDC(expected date of delivery) was 12.10.06. It is admitted that she was appearing for regular antenatal check up at the hospital and at the residence of 2nd opposite party doctor. The requisite treatment including immunization and investigations including ultra sonogram(USG) was done. No abnormality was found. She had complaint of reduced foetal movements on 6.7.06 and was admitted for observation by Dr.sherly. The USG done did not reveal any abnormality. She was admitted on 28.9.06 with complaints of pain it was found that it is false pains and was discharged on the same day. On examining on 11.10.06 she was advised hospitalisation since her EDC was on 12.10.06. On 12.10.06 she was examined by the 2nd opposite party. Everything was within normal limits. At 8.30pm since the patient did not have any labour pains tab meseprostol was administered for inducing labour pain. By 9pm the patient began having mild uterine contractions and as the pain became more severe ( ie stronger and more frequent contractions) the patient was shifted to the labour room at 1.45am on 13.10.06. The duty nurses were continuously monitoring the complainant and the foetus. The 2nd opposite party was being regularly informed regarding the parameters of the patient and foetus. There was no indication for a caesarian section. At 6.15am on 13.10.06 the patient was examined by the 2nd opposite party doctor. On per vaginal examination it was found that cervix had dilated only by 6cms. Since the patient was having severe pain and as there was no further progress it was decided to do an emergency LSCS(lower segment caesarian section). The anaesthetist was called. An emergency LSCS was done under general anesthesia by 6.45am with utmost care and caution. A male non asphyxiated baby was delivered. The baby cried immediately on delivery. There was presence of thick meconium (a dark green mucilaginous material in the intestine of the full term foetus, being the mixture of the secretions of intestinal glands and some amniotic fluid) in the uterine cavity eventhough the vernix(a greasy or oily substance composed of sebum and desquamated epithelial cells, which covers the skin of the foetus) was not stained with meconium. A few minutes after delivery the baby showed evidence of respiratory distress and the Paediatrician who attended the baby diagnosed it as meconium aspiration. Despite the sincere effort of the paediatrician the oxygen saturation continued below normal. Hence the baby was referred to Medical Mission Hospital, Kolenchery before 9am on the same day for ventilation and higher care as there is a full fledged neonatology centre at the above hospital. It is also pointed out the USG is not having 100% accuracy and that it is only having 80% accuracy. A detailed foetal anatomy may not always be visible due to technical difficulties related to foetal positions, amniotic fluid volume, foetal movements, abdominal wall thickness and technical limitations of the machine. It is not correct that the complainant was told that everything was normal and that the baby had no problems. She was only told that the doctor will try her best to have a normal delivery. She was told only that there was no contraindication to a normal delivery. It is the common sight in all labour rooms that the patient would cry out in pain and request for immediate caesarian section. Only in case abnormal presentation, reduced foetal movements vide variation in foetal heart rate, uncontrolled hyper tension, meconium stained liquor, antipartum hemorrhage, non progress of labour pain even after several hours, prolonged leakage of fluid, large babies etc caesarian section is done. It is denied that the nun sister and duty nurses abused her etc. It is specifically denied that the nurses pushed on her stomach and attempted to bring out the baby. Fundal pressure was never given to the complainant. Fundal pressure is given only at the time of delivery and when the cervix is fully dilated. In the instant case cervix had dilated only by 6cm even at 6.15am. It is denied that the Anesthetist had gone to church etc. Caesarian was done after the minimum time required for preparing the patient and preparing the theatre for surgery. The Anesthetist had come immediately. In the labour room the complainant was monitored continuously by duty nurses who had several years of experience. The duty nurses had monitored the frequency of the uterine contractions, BP, pulse rate and respiratory rate of the patient. The foetal heart rate and foetal movements were continuously monitored. The 2nd opposite party was being regularly informed about the condition of the patient and the foetus. It is impossible for a gynecologist to be physically present for 24 hours in the labour room. The child died due to aspiration of meconium. Acute or chronic hypoxia or infection can result in the passage of meconium in utero. In this setting gasping by the foetus or newly born baby can cause aspiration of amniotic fluid contaminated by meconium. Meconium aspiration before or during birth can obstruct airways, interfere with the gas exchange and cause severe respiratory distress. There was no warning to meconium aspiration in the complainant's case. Mothers at risk for uteroplacental insufficiency that can result in the passage of meconium in utero include those with preeclampsia or increased BP, chronic respiratory or cardiovascular disease, poor uterine growth, post term pregnancy and heavy smokers. In these situations there can be variation in foetal heart rate also. None of these were there for the complainant and there was no indication to suspect meconium passage as there was no meconium stained liquor before delivery. Meconium stained amniotic fluid (MSAF) complicates delivery in approximately 8-15% live births and 5% of these neonates are at increased risk of respiratory disorders and 50% of this may require mechanical ventilation. When the complication of persistent pulmonary hypertension(PPHN) occurs, mortality rate is very high. Unfortunately the complainant's baby was one among them. This can occur even in the best medical centers of the world and is beyond the control of the doctors. Inspite of the fact that the best available treatment was given the condition of the baby did not improve and hence was referred to a higher centre with better facilities. It was also contended that the claim made is exorbitant. Opposite parties has also alleged that the case is frivolous and vexatious and have sought for compensatory costs under Section 26 of the Consumer Protection Act.
4. The evidence adduced consisted of the testimony of PWS 1 and 2, DWS 1 to 3; Exts.P1 to P8, R1 and R2.
5. PW1 is the complainant herself and PW2 is the doctor of Medical Mission Hospital, Kolenchery who treated the baby. DW1 is the Director of the 1st opposite party hospital, DW2 is the 2nd opposite party, Gynecologist. DW3 is a Gynecologist at General Hospital, Palai who was examined as expert at the instances of opposite parties. The Forum has found that there is negligence and deficiency in service on the part of 2nd opposite party as it appeared that had she examined the complainant earlier than at her usual visiting time of 6am caesarian section could have been done earlier and the child could have been saved. The Forum has also found the doctor negligent as she did not arrange any other duty Gynecologist to examine the complainant at the time when the 2nd opposite party was away especially as there were two other Gynecologists in the hospital on duty. It was observed that none of the nurses who attended the complainant was experienced and no objective evidence was adduced to prove the qualification and experience of the particular nurses. The Forum has also found that there is gross deficiency in service on the part of the particular nurses. According to DW2 the Gynecologist she was never asked to come to the labour room. It was particularly noted that DW2 the Gynecologist has stated that she is having faith in experienced nurses than in the duty doctors. It is also noted that immediately on examining the complainant at 6am DW2 decided to conduct an emergency caesarian.
6. It is mentioned in the version of the 2nd opposite party/gynecologist that the complainant consulted her regularly since inception of pregnancy and that her last menstrual period was 5.1.06 and expected date of delivery was 12.10.06. The period of pregnancy was almost uneventful and that she had a fall in the bath room on 3.10.06. No abnormalities were detected on 11.10.06. She was admitted at the 1st opposite party hospital under the care of the appellant/doctor. As per the version of the doctor pain was induced at 8.30pm on 12.10.06 by administering Tab meseprostal (as per the nurses record the time of induction of pain is 8.15pm) At 9pm the pain commenced and gradually increased. At 1.45AM on 13.10.06 ie in the intervening night the pain became severe and she was shifted to the labour room. It is the case of the complainant that thereafter the pain became so intense that she was unable to tolerate the same and wanted the duty nurses to call the doctor. According to her they abused her. At about 4AM a nun sister exerted pressure to her abdomen and she felt that the baby is coming out and that she had bleeding and that she passed stools. Inspite of her incessant requests the duty nurses refused to call the doctor and at 5AM the nurses told among themselves that the liquid content is low and so the delivery would be difficult and hence the doctor may be called. At about 6am only the appellant/doctor came and an emergency caesarian was conducted.
7. It is the contention of the appellants that there was no need of the presence of the doctor in the labour room and that it will not be possible the doctor to be present in the labour room all the time. According to the opposite parties dilation of the cervix was only 6cm and atleast 10cm expansion is required for normal delivery. The caesarian section was not done on account of any emergency as such but as a complainant had a fall an earlier and had coccygial pain and as the complainant was a low threshold patient so far as pain is concerned. She was such a person who is unable to bear pain and hence the caesarian was done immediately and the same was done at 6.45am. According to the appellants the baby died on account of meconium aspiration syndrome(MAS) subsequent to delivery. It is contended that in the case of nulliparas ie the first delivery the latent phase of labour is treated as prolonged only if it is more than 8 hours. The above period has not exceeded in the instant case. It is pointed out that there is no relation between the alleged delay in conducting the surgery and the cause of meconium passage and that an earlier caesarian will not alter the incidence of MAS(William's Obstetrics page 595, 18th edition). Relying on the above text book it is pointed out that in 10% of all pregnancies there is a chance of meconium passage in the uterus and 1/200 babies aspirated meconium and lead to meconium aspiration syndrome in 1/2000 deliveries. MAS is the cause of death in such cases. The passage of meconium into the uterine cavity is only physiological in full term foetus. In the absence of contraindication the doctor need not go for caesarian. The nurses had continuously recorded the BP, temperature and fluids as well as the heart beat(FHS) of the baby. All the parameters were normal. It is only in case of contraindicators like variation in FHS that the lady to be subjected to caesarian section. It is also pointed out relying on the above text book that from the 4th month onwards the foetus is capable of the aspiration and to move amniotic fluid in and out of respiratory tract. In certain cases the same subsequently leads to respiratory distress and hypoxia. Certain babies inhale meconium at birth. Hence meconium aspiration syndrome may follow delivery in otherwise normal labour.
8. It is the contention of the appellants that a major indicator as to the distress of the baby in the womb is foetal heart rate and that in the instant case the heart beat was normal throughout except at 6.15am when it is recorded as 138. Only if the FHR is 100 or below the same is treated as dangerous. It is also contended that there was no indicator as to the leak of amniotic fluid. It is also not recorded that there was any colour change in the amniotic fluid. Only in the case of colour change the same is considered as having stained with meconium and hence there was no reason to suspect influx of excessive meconium in the amniotic fluid. It is also pointed out that at the time of birth there was no meconium on the vernix. It is also pointed out that fundal pressure will be given only when cervical dilatation is at the maximum. In the instant case it was only 6cm whereas 10cm is required for the head of the baby come out smoothly. It is pointed out that after taking out of the baby it cried and it was subsequently that it was found the child had aspirated meconium. Thereafter oxygen saturation was found below normal for the child and hence referred to a higher centre without delay. It is also pointed out that if fundal pressure was exerted as alleged the same would have affected urethra and would have resulted in urinal problems. There was no such consequences in the present matter. Hence the allegation that the nurses exerted fundal pressure is false. It is also pointed out that the latent phase is considered as prolonged only if it is more than 8 hours in the case of 1st delivery. In the instant case it was much within the time limit.
9. On the otherhand it is stressed by the counsel by the respondents/ complainants that the relevant portions of the case sheet has been manipulated. In the nurses record and obstetrics record the number of times the FHS is recorded is different. In the nurses record it has been recorded only at 9 times where as in the obstetrics recorded in Ext.R1 case sheet the same is recorded at 16 times. It is also pointed out the timings are different at certain occasions which we find is correct. It is further contended that FSH has been recorded in such a manner as to show that there is no problems in the heart rate foetus of the baby.
10. It is also pointed out that the timings as to when the nurses having informed the doctor as to the condition of the patient as recorded in Ext.R1 and as stated by DW2/Gynaecologist varies. In Ext.R1 at 2am, 2.45am and 5am it is mentioned as having informed the doctor whereas the doctor has stated that only at 1.45am and at 6am she has been informed. We find that there is discrepancy in this regard. It is also pointed out that in the reference letter seen in Ext.R2 the case sheet with respect to the baby it is mentioned that the child did not cry immediately after birth whereas in Ext.R1 at page 4 it is mentioned that the child cried immediately after birth. The above contradiction has also not been explained.
11. The attitude of DW2/Gynaecologist as stated in her cross examination at page 6 that she trusted the experienced nurses rather than the Junior doctors who has experience of 3 or 4 years was also highlighted by the counsel for the complainants. We find that it is admitted by DW1 that there are two other Gynecologists apart from her at the hospital and also duty doctors. The attitude of DW2 in not directing any of the duty doctors to observe the lady in the labour pain cannot be approved. It has to be noted that whatever be the experience of the nurses the same is not substitute for a doctor. It has to be noted that PV examination is to be done periodically to ascertain that the dilation of the cervix. In the latent phase of labour, it may be necessary to perform 2 examinations atleast 2 hours apart( and preferably done by the same examiner) in order to detect any progressive cervical change(Management of Labour 2nd Edition at page 28 edited by S.Arulkumaran and others). In the instant case after inducing pain PV examination has been done only at 6.15am and immediately before that by DW2. Only doctors are competent to do PV examination. Evidently in this regard there is lapse and negligence on the part of DW2 and the establishment of the hospital.
12. It is also pointed out that DW2 has admitted that she used to go to the hospital at 6am everyday. According to the complainants she has reached hospital only as per her regular schedule and the pain has been induced in the night so as to have the delivery in the morning without disturbance to her in the night. We find that DW2 has stated that she was always ready to come to the hospital at any time if the situation demanded. Of course DW2 has not stated that in every case it was the practice to induce pain in the night.
13. As to the allegation regarding the exerting of fundal pressure by the nun sister kneeling on the coat and the allegation that the complainant had bleeding and passed stools, the same is strongly denied by DW1. All the same we find that none of the sisters in the labour room or the nun sister was cross examined. It was alleged that the nurses are not having proper qualifications and experience which is disputed by the opposite parties. All the same no records as to qualification and experience of the nurses involved were produced. The only contra evidence is that of DW2 who was not present in the labour room. The complainant is a lady aged 23 whose 1st delivery it was. Although we are not inclined to accept the version of PW1 as such in view of the strange nature of the above allegation it appears it is unlikely that such an allegation is made without some action on the part of the nun sister who was in the labour room. It appears that atleast the duty doctor ought to have visited the labour room in the night atleast once or twice. Admittedly no duty doctor or other Gynecologists visited the labour room throughout the night.
14. It is in the above context that it is contended that the baby in distress will pass more meconium which is noted in the text book, High Risk Pregnency 3rd edition David.K.James and others at page 1464, it is contended by the counsel for the respondents. We find that in the text book it is mentioned as "it is possible that stress on the foetus can goes the release of motilin and thus passage of meconium, but this remains conjectural".
15. Another discrepancy point out that it is in Ext.R1 case sheet dilation is mentioned as 3/5 plus which would be more than 6cm at 6.15am. DW2 has asserted that dilation was only 6cm and hence the same is evidently insufficient. At page 3 of Ext.R2 at top portion it is written as patient is full dilation liquor was thick meconium stained. The above is also A discrepancy which has not been explained. In Ext.R1 at page 4 it is mentioned that after birth it was found that there was thick meconium in the uterine cavity and the baby aspirated meconium and immediately became asphyxiated and was referred to Pediatrician. At the time of birth at 6.45am it is mentioned as non asphyxiated male baby. The baby is having a weight of 3.1kg.
16. The case that the complainant was subjected to caesarian section on account of coccygial pain as noted in Ext.R1 also appears somewhat unconvincing as consequent to the fall on 3.10.06 and subsequent to the admission on 11.10.06 nowhere in the case sheet anything as to coccygial pain has been noted. Coccygial pain cannot be of more than in intensity than of labour pain. It is evident that DW2 detected something wrong and hence resorted to emergency surgery.
17. Ofcourse as per text book meconium aspiration by the baby is possible at the time of birth and meconium aspiration syndrome may in rare case lead to mortality and the same is to be treated as an accepted complication. It has also to be noted that MAS (meconium aspiration syndrome) may follow delivery in otherwise normal labour but it more often is encountered in post term pregnancy or in those complicated by foetal growth retardation (Williams Obstetrics page 595, 18th edition). In the instant case it was not a case post term pregnancy and also there was no foetal growth retardation. Hence possibility of MAS further narrows down. All the same preponderance of probabilities theory cannot be applied in cases of medical negligence in view of the complexity of the human biology and the limitations of the medical science.
18. The evidence of DW3 the Gynecologist of the Government Hospital who has been examined as expert is not much helpful as the evidence is based on Ext.R1 and R2 case sheets and the theoretical possibilities as mentioned in the text books. In the instant case the allegation is that case sheet has been manipulated. In the circumstances we find that it can not be held conclusively that the death was occasioned on account of MAS due to prolonged labour and also due to exerting fundal pressure and also in view of the accepted complication although in rare cases of the meconium aspiration by the baby at the time of birth. All the same we find that there is gross deficiency on the part of DW2, Gynecologist as she did not instruct any duty doctor to observe the patient in labour and also on the part of the establishment as the nurses did not inform the duty doctors as to the condition of the patient and also as duty doctors are not put in charge of the labour room. With respect to the entries in the case sheet there are discrepancies that gave raised to the contention that the treatment records are manipulated. The above lapse also amounts to deficiency in service. Hence although we find that the death of the baby cannot be attributed directly as such on account of the lapses on the part of the opposite parties. As held by the Supreme Court in 2000(7)SCC 668 the purpose of the statute is not only to recompense the consumer but also to make a qualitative change in the service provide. Gross negligence in managing the labour stands established and for the same the opposite parties are directed to pay a sum of Rs.2,00,000/- as compensation to the complainant with interest at 12% from 7.3.08 the date of complaint and also to pay a cost of Rs.10000/-. The amount is to be paid within three months from the date of receipt of this order failing which the complainant will be entitled for interest at 15% from the date of this order.
In the result the appeals are allowed in part as above. Office will forward the LCR along with the copy of this order to the Forum.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT ps [HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT