State Consumer Disputes Redressal Commission
Smt. Anita vs Dr. (Smt.) Vandana Sethi on 12 September, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
CONSUMER COMPLAINT NO. 05 /2006
Smt. Anita W/o Sh. Umesh Kumar
Through her husband Sh. Umesh Kumar S/o Sh. Parshuram
R/o 241 Adarsh Gram, Pushkar Mandir Marg,
Rishikesh, Dehradun
..........Complainant
Versus
Dr. (Smt.) Vandana Sethi W/o Sh. A.K. Sethi
R/o Sethi Clinic, Near State Bank of Patiala, Dehradun Road
Rishikesh, District Dehradun
......Opposite Party
Mr. Taresh Sharma, Learned Counsel for the Complainant
Mr. Vaibhav Jain, Learned Counsel for the Opposite Party
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 12/09/2014
ORDER
(Per: Mrs. Veena Sharma, Member):
Smt. Anita W/o Sh. Umesh Kumar (hereinafter to be referred as "Complainant") has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, alleging medical negligence committed by opposite party-Dr. (Smt.) Vandana Sethi in her treatment and compensation of Rs. 25,00,000/- (Rupees Twenty Five Lacs).
2. Briefly stated, the facts of the case are that Smt. Anita (complainant) W/o Sh. Umesh Kumar was in serious labour pain on 27.09.2005. She went to opposite party for check-up. After examination opposite party advised complainant's husband to admit his wife to the opposite party's hospital. On doctor's advice, the complainant's husband 2 admit his wife to the opposite party's nursing home. The doctor assured him for his wife's normal delivery. After some time he was informed by the opposite party that Caesarean operation will be conducted. Due to critical condition of the complainant, the complainant's husband consented for the same. During operation the opposite party called other doctor for Anesthesia. The complainant's husband stated that the opposite party operated his wife in haste, resulting failure of operation, by which the new-born child died in half an hour after birth. Due to carelessness of the opposite party, the complainant lost her child and her condition became critical. During operation the opposite party arranged an ambulance and referred his wife to Himalayan Hospital, Jolly Grant, but the opposite party did not take any consent from him. The complainant alleged that the operation was conducted at a place where there was no life-saving equipments. Due to gross negligence of the opposite party, the complainant lost her child and bear mental and physical loss and the complainant is in apprehension to become handicap. The complainant's husband lost his service and became unemployed. It is stated that the complainant had suffered huge monetary loss and mental agony.
3. The opposite party stated in her written statement that the complaint is baseless, misconceived, false and unacceptable. Actual facts are concealed by the complainant. The complainant did not disclose that how many doctors treated her and what treatment was given to her during pregnancy. That no fee was charged from the complainant. It is only allegation that on opposite party's advice the complainant's husband admitted his wife in the opposite party's nursing home. That before 6:00 p.m. on 27.09.2005, the complainant was neither examined nor any treatment was given to her by the opposite party. In the evening of 27.09.2005 at 6:00 p.m., the complainant's husband brought his wife to opposite party's nursing home and said his wife's treatment was going on in Government Hospital, Rishikesh, but due to high risk case, his wife was referred to Doon Hospital, Dehradun, but due to critical condition the complainant was unable to travel to Dehradun. After hearing the 3 complainant's problem the opposite party agreed to fulfill her duty as a doctor and checked the patient. After check-up it was found that the patient's case was a "post-dated pregnancy with labour pain with leaking P/V c meconium staining of liqour c history of hypertension". The opposite party informed the complainant's husband that the child had excreted stool in mother's womb, which was dangerous for unborn child and it was a case of LSCS (Lower Segment Caesarean Section). The patient was admitted to Puri's Sanjivani Hospital, Rishikesh of which the opposite party is a visiting doctor. The complainant's husband was clearly explained about his wife's critical condition, which he understood clearly and signed paper of consent. A team of qualified doctors Dr. (Smt.) Vandana Sethi along with Dr. U.P. Singh (M.D. Anesthesia) and Dr. Vinita Kohli (M.D. Paediatrics) operated the patient. The opposite party has denied allegation made by the complainant that the operation was conducted in haste, resulting failure of operation. The complainant was given Anesthesia by expert in her spine, no oral medicine was given to the patient. The complainant has gave birth to a male child on 27.09.2005, who was having "Foetal distress c_ meconium present in throat & nose". The paediatrician tried to resuscitate the child, but it could not be revived and declared dead at 9:30 p.m. No negligence was done by the opposite party. It is not true that without complainant's husband's consent, the patient was referred to another hospital. After surgery, the patient went into respiratory depression and needed ventilator support, which was not available anywhere in Rishikesh. For that reason the complainant was referred to Jollygrant Hospital, Dehradun. The opposite party denied the complainant's allegation that at the place where operation was conducted, there was no life saving equipment. It is false to say that due to failure of operation, the patient suffered physical or mental disability. The opposite party stated that no fee was paid by the complainant to the opposite party, therefore, the complainant is not a consumer.
44. The complainant filed an affidavit (paper No. 5), by which she authorized her husband Sh. Umesh Kumar as her representative and also filed copy of notice dated 23.12.2005 (paper Nos. 7 to 8), Registry receipt (paper No. 9), A.D. (paper No. 10), U.P.C. (paper No. 11), Discharge Bill (paper No. 12), cash memo of medicine bills (paper Nos. 13 to 122), and discharge summary of Himalayan Hospital, Dehradun (paper No. 123). Payment receipt of Rs. 500/- of Rotary Ambulance Committee (paper No. 125) and Handicapped Certificate (paper No.
184). The complainant has also filed affidavit of Sh. Umesh Kumar in evidence (paper Nos. 142 to 145) and an affidavit of Sh. Rishi Kandwal (paper Nos. 159 to 160).
5. The opposite party has filed her two affidavits (paper Nos. 147 and 158), Puri's Sanjivani Hospital's Admission Record of Mrs. Anita- complainant with her husband's consent form (paper No. 206), Puri's Sanjivani Hospital's history sheet (paper No. 207), Treatment/operative notes (paper Nos. 208 & 209), Progress sheet (Paper Nos. 210 & 211), Nurses Medication chart (paper No. 212), Discharge summary (paper No. 214), literature of Practical Obstetric Problems (paper Nos. 215 to
219), literature of Lee's Synopsis of Anesthesia (paper Nos. 226 to 231).
6. We have heard learned counsel for the parties and also perused the record. We have also gone through the medical literature as well as the medical papers and the citations given by the learned counsel for the parties.
7. Learned counsel for the complainant argued that due to negligence of the opposite party his client's condition became critical and serious and was referred to Himalayan Hospital, Jollygrant, Dehradun, where she was admitted in ICU and treated for a long time and was diagnosed as a patient of hypertension, which occurs after operation. Learned counsel for the complainant alleged that the opposite party did not conduct any test or ultrasound before the operation/surgery and oral medicine was given for unconscious instead of Anesthesia.
58. At the time of argument, the opposite party was present in person. She argued that the complainant came to her clinic on 27.09.2005 for the first time, when she was suffering from labour pain with leaking P/V c meconium staining of liqour c history of hypertension and the doctor of the Government Hospital, Rishikesh had refused to give further treatment to the complainant, as it was a higher risk case. No oral Anesthesia was given to the patient. The expert was called for Anesthesia and the patient was given anesthesia in her spine.
9. Learned counsel for the opposite party argued that his client is a well-qualified doctor. She has lot of experience in medical field. When the complainant was operated, a team of qualified doctors: Dr. U.P. Singh (M.D. Anesthesia) and Dr. Vinita Kohli (M.D. Paediatrics) was also called. No negligence was done by the opposite party while conducting the operation. The complainant has failed to prove that the opposite party was not having requisite skills.
10. From the perusal of the affidavits filed by the learned counsel for the parties on the record, it is clear that the case of complainant was a case of high risk post-dated pregnancy with labour pain with leaking P/V c meconium staining of liqour c history of hypertension. It was a case of post maturity of nine months nine days. The opposite party is a qualified doctor, who possess a degree of M.D. (UCG) as it is evident from the document (paper No. 206), i.e., Admission Record on Puri's Sanjivani Hospital, which is signed by complainant's husband Sh. Umesh Kumar, which is a consent form for emergency LSCS. According to the opposite party's statement, Dr. (Smt.) Vandana Sethi had also called two expert doctors Dr. U.P. Singh as Anesthetist and Dr. Vinita Kohli as Paediatrician possessing degree of M.D. respectively. It is not denied by the complainant that this team of qualified three doctors conducted her operation. It is also clear that the husband of the complainant has given written consent for this operation on consent form (paper No. 206). It is also clear from the documents of Puri's Sanjivani Hospital that a male child was born after Caesarean operation at 8:10 p.m. having thick 6 meconium present in throat & nose". The paediatrician Dr. Vinita Kohli tried her best to save the child, but failed. At the same time, the complainant suffered with some cardiac respiratory problems, therefore, the opposite party arranged an ambulance to carry the patient and shifted her to Himalayan Hospital, Jollygrant, Dehradun. The complainant has not proved her contention that the opposite party along with a team of doctors have done any negligence during operation, rather the record of Puri's Sanjivani Hospital reveals that the patient was shifted to Himalayan Hospital by the efforts of opposite party and the complainant was admitted there for further medical care. This shows the bonafide of the opposite party. So far the consent of the complainant's husband is concern, as noted above this was the opposite party, who has arranged the vehicle to shift the patient to higher center.
11. Learned counsel for the complainant has placed reliance on (2013) 1 CPR (NC) 463; M. Rajavadivelu vs. Janamma Hospital & others, in which the Hon'ble National Commission has expressed its view that in a case of Hysterectomy, the patient developed complication after undergoing operation and there was no ventilator facility in hospital, medical negligence and deficiency in service is established because respondents conducted a major surgery under general anesthesia without taking due care and caution to ensure that critical life saving equipments like ventilator were not available in case of post-operative complications, which can occur following major surgery. With due respect to the Hon'ble National Commission, the present case is not a case of major surgery and the complainant was shifted immediately to the higher center by the opposite party. Therefore, this ruling does not apply in the instant case. He also placed a citation (2011) 4 CPR (NC) 484; Shakil Mohd. Vakil Khan vs. Dr. C.K. Dave, in which the Hon'ble National Commission has expressed its view that if there is no material on record to show that procedure adopted for giving anesthesia was improper, reckless or not in accordance with regular material practice expected from any reasonable anesthetist and in any case 7 liability of hospital and doctor is joint and several. With due respect of the Hon'ble National Commission, the present case is not a case of negligence by the Anesthetist. In this case, the Dr. U.P. Singh (M.D. Anesthesia) has given Anesthesia in spine of the complainant, no oral Anesthesia or any medicine was administered to the complainant before her operation. Dr. U.P. Singh is a qualified doctor. Moreover, the complainant has not alleged any negligence on the part of the Anesthetist and, therefore, the complainant has not made Dr. U.P. Singh a necessary party in this case. Therefore, this ruling also does not apply in this case. Learned counsel also placed a reliance on (2006) 3 CPR 270; S.C. Mathur & Ors. Vs. All India Institute of Medical Sciences & Ors., in which the Hon'ble Delhi State Commission has expressed its view that if in a case of heart attack, the Baloon angiography was done by a junior doctor and not putting patient on heart and lung machine immediately after cardiac arrest, the opposite party taking 30 minutes for what was to be done in 3 to 4 minutes. Blood supply to brain stopped, brain damaged, resulting in death due to dead brain. Therefore, the deficiency in service proved. So far the present consumer complaint is concerned, it is not a case of major operation like heart surgery or Baloon angiography and this operation was not done by any junior or unqualified doctor, rather the operation of complainant-Smt. Anita was a Caesarean operation, which is commonly conducted by Gynecologist. Dr. (Smt.) Vandana Sethi and her team is a qualified and professional doctors, therefore, this ruling also does not apply in this case.
12. Learned counsel for the complainant also placed reliance on (1991) 2 CPR 515; Sakil Mohammed Vakil Khan vs. Dr. Miss Perin Irani and others, in which the State Commission, Bombay has expressed its view that in case of meconium stained liquor which indicates foetal distress and fit case for caesarean, after taking consent operation was conducted and a baby was born, but at the same time during performing caesarean operation proper care and attention was not provided. Doctor did not monitor patient's brain, dead due to lack of 8 oxygen, but in the present case an ambulance was arranged immediately after seeing the serious condition of the complainant and she was shifted to the Himalayan Hospital, Jollygrant, Dehradun for further management and treatment by the opposite party. Therefore, it cannot be said that proper care and attention was not provided to her by the opposite party. In other citation (2004) 3 CPR 574; Mr. A. Xavier vs. M/s Cantonment Polyclinic & Ors., in which the State Commission, Karnataka has expressed its view that during removal of gallbladder, the patient died due to bleeding. No blood clotting test was done, whereas the patient was suffering from chronic cholecystitis and patient was not shifted to higher hospital instead of doing second operation when they did not have ICU and ventilator facility. With due respect to the State Commission the present case does not pertain to the serious operation, so there was no need of blood clotting test. So far ICU and ventilator facility is concerned, no such facility is available at Rishikesh town as per opposite party Dr. (Smt.) Vandana Sethi. So she manage to shift the complainant to higher center at Himalayan Hospital, Jollygrant. Therefore, this ruling also does not apply in the instant case. Learned counsel also placed some other citations, which show that a medical practitioner is expected to bring a reasonable degree of skill and knowledge and must also exercise a reasonable degree of care and caution in treating a patient. We are agreed with this submission that a medical practitioner must exercise a reasonable degree of care and caution in treating a patient.
13. Contrary to the rulings of complainant side, learned counsel for opposite party has placed reliance on (2012) HVD (MNC) 983; National Consumer Disputes Redressal Commission; Smt. Leela Devi vs. Dr. Shatrughan Ram & Anr., in which Hon'ble National Commission has expressed its view that skill of medical practitioners differs from doctor to doctor, the very nature of the profession is such that there may be more than one course of treatment, which may be advisable for treating a patient and negligence cannot be attributed to a 9 doctor so long as he is performing his duty to the best of his ability and with due care and caution. In citation 2012 HVD (MNC) 84; State Commission, New Delhi; Dr. Ashok Rajgopal & Others vs. Ms. Deepti Ranjan, the Hon'ble State Commission has expressed its view that a professional should be held liable for medical negligence if one of the two findings is found, i.e., either not possessing of the requisite skills which professed to have possessed, not exercised, with reasonable competence. In citation 2012 HVD (MNC) 207; H.P. State Commission, Shimla; Madan Lal & Others vs. Dr. R.K. Chaudhary & Others, the Hon'ble State Commission has expressed its view that if basic principle relating to medical negligence which is known as BOLAM Rule are not observed that heavy onus lies upon the complainants to prove medical negligence which can be discharged by cogent evidence. Mere averment in the complaint which is denied by other side, is no evidence by which complainant's case can be proved.
14. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC), cited by the learned counsel for the opposite party, has clearly observed in sub-para (3) of para 49 that, "a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence". The Hon'ble Supreme Court in the aforesaid judgment has also discussed the Halsbury's Law of 10 England the degree of skill and care required by a medical practitioner is stated as follows:
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence.
15. From the discussion above, we are of the considered opinion that the complainant has utterly failed to prove her case on the basis of facts filed on the record, as no expert evidence to show negligence of the opposite party is on the record. Contrary to it, the opposite party is a qualified doctor, who along with other two qualified doctors performed a Caesarean operation of the complainant, but unfortunately due to serious complications as mentioned above her new born child died and she developed complications for which she was referred to a higher center and opposite party sent her after arranging ambulance which shows the bonafide of opposite party. Therefore, this consumer complaint deserves dismissal.
16. In view of the above, the consumer complaint is dismissed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL)