State Consumer Disputes Redressal Commission
Mis Heena Joshi, vs Dhingra Maternity And Family Welfare on 3 October, 2006
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 : 03-10-2006 Complaint Case No. C-261/95 1. Mis Heena Joshi, Complainants 2. Ms. Bhavna Joshi, 3. Master Karan All children of Sh. Sham Sunder Joshi, Shri Shyam Sunder Joshi, S/o Shri K.C. Joshi, All R/o E-49/50, West Patel Nagar, New Delhi. Versus 1. Dhingra Maternity & Family Welfare Clinic Opposite Party No.1 T-182, Baljit Nagar, Through New Delhi. Mr. Avinash Kumar, Advocate. 2. Dr. (Mrs.) K. Dhingra, Opposite Party No.2 (Registered No. 4339) T-182, Baljit Nagar, 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, PRESIDENT (ORAL) This is a case of utter medical negligence. Case of delivery was handled by a Nurse/Midwife who claimed to have experience of 30 years. In the process, child survived but mother died allegedly due to excessive bleeding. Complainants are legal heirs of the deceased Smt. Prem Lata. They have claimed compensation of Rs. 10 lacs from the OPs on the allegations that the OPs administered high dose of medicine instead of administering gradually and slowly and as a result of excess dose of the medicine the uterus of the deceased was ruptured and due to excessive bleeding she collapsed in the Maternity Centre itself.
2. Smt. Prem Lata, as per version of the complainants, was got admitted in the clinic of the OP No.1 on 17-09-1995 at about 1.00 P.M. She had no labour pain at the time of admission but she was administered medicine known as Sintocin by the OPs who are non-professional in high dose at one time which resulted in the birth of complainant No.3 child of the deceased at about 2.20 P.M. but the deceased died in the Maternity Centre due to excessive bleeding and because of the rupture of the uterus. It is alleged that the said Maternity Centre was not equipped with life saving drugs which were necessary/essential in such like eventualities and therefore they were most casual and unprofessional in attending the patient.
3. Though it is mentioned that OPs prescribed Haemocasualy-IL which is Life Saving Drug but it could not be administered as the same was not available in the Clinic. Had the drug been made available in the clinic the deceased would have survived.
4. However, on the same day i.e. 17-09-1995 the deceased was asked to be shifted to Kapoor Hospital and though the OPs claimed that she was asked to shift on 17-09-1995 the shifting slip is dated 19-09-1995 as she died on 17-09-1995 and cremated on 18-09-1995.
5. OP No.2 has claimed herself as a highly qualified nurse/midwife with over 30 years of experience. She has four daughters who are doctors having MBBS degree. He has produced a certificate issued under the Punjab Nurses Registration Act entitling her to practice as Registered nurse. According to her she opened her own clinic at T-182, Baljit Nagar, in the year 1981 and handled over 1500 cases of normal delivery as she handles only cases of normal delivery.
6. She has admitted that on 17-09-1995 the patient was brought to the clinic in an overdue condition of pregnancy and was accompanied by her mother only. The patient herself mentioned to the OP No.2 that she was long overdue but she was yet to experience the labour pains, and therefore wanted her to check up by OP.
She was found to be in her fourth gravida (pregnancy) i.e. multifarious. She was at the material point of time, bearing the third child of her second husband Shri Shyam Sunder Joshi. The previous two children were girls. Besides these, the patient also had one child from her first husband.
That before 17th of September, 1995 the said Smt. Prem Lata had never come or was never brought to the OP No.2 for any prenatal checkup with regard to her fourth pregnancy. No papers relating to any prenatal check up that she may have had from any other doctor were brought. OP No.2 and Dr. Sandhya Dhingra had placed the patient on the examination table, and during the course of the examination, the patient screamed and went into what is known in medical terminology as precipitate labour which means-
Labour is said to be precipitate when it terminates in a disproportionately shorter time than that taken on an average either by a primipara or a multipara gravida and is due to abnormally strong uterine contractions
7. The precipitate labour was followed by acute hemorrhage as is usual in such cases. Moreover, such a situation was never envisaged by her as there was no sign of an impending precipitate labour and patient did not bring any relevant paper of any test or diagnosis. She proceeded to examine her on the basis of the oral representation of the patient of her overdue state, when the labour took place. She further stated that she was merely examining the patient and not administering any treatment nor preparing the patient for delivery. When the patient suddenly went into precipitate labour, a male child was born.
Immediately thereafter she and Dr. Sandhya Dhingra ascertained the cause for the postpartum (after delivery) hemorrhage as Atonic (caused due to a distended uterus which does not contract after delivery resulting in hemorrhage) and proceeded to massage the uterus externally on the abdomen of the patient in an attempt to stop the hemorrhage, and that OP No.2 administered the drug methergin 0.2 mg intravenously. She also administered dextrose drip. On an examination of the uterus after the first stage of the treatment, and on finding the same was still in an atonic (relaxed) stage, she put the patient on a drip of Pitocin, a drug containing oxytocin.
8. OPs have, in their defence, mainly relied upon the medical literature as to the cause of Precipitate Labour. According to this the cause of precipitate labour is as under:-
It occurs more frequently in multiparae (a woman who has had two or more pregnancies) than in primigravidae (a soman who has had one pregnancy) and is probably due to the fact that the soft parts are relaxed and the passages, including the patulous (spread widely apart, distended) external cervical os (any body orfice, opening), are in a way prepared by previous deliveries. Precipitate labour may occur in women with cardiac lesions and in those with severe anemia. It is not possible to anticipate this course of events except in those rare cases where a previous history suggests the possibility of precipitate labour occurring again (Emphasis supplied)
9. Similarly she has also justified the administration of drip of Pitocin drug containing oxytocin on the basis of Dorlands Pocket Medical Dictionary the characteristic of this drug is as under:-
Hypothalamic hormone stored in the posterior pituitary which has uterine contracting and milk releasing actions; it may also be prepared synthetically or obtained from the posterior pituitary of domestic animals; used to induce active labour, increase the fource of contractions in labour, contract uterine muscile after delivery of the placenta, control postparitum haemorrhage and stimulate milk ejection.
10. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
11. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
12. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) 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, which 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.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
13. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
14. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
15. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(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?
16. On examining the defence of OPs on the anvil of aforesaid criteria we find that this is a case of utter and grossest kind of negligence. Firstly the OP No.2 was not at all a qualified person to undertake the delivery. She was only a Midwife. Any person who does not possess the requisite skill or qualification is not entitled to take up the case even if he or she has a wide experience of dealing with delivery cases. Firstly she should not have taken the case and secondly she was not competent to confront with the complications arising from precipitate labour as the deceased was brought in overdue condition of pregnancy. The precipitate labour is known to be followed by acute hemorrhage and this situation could not have been anticipated by the OPs who were not well qualified and skilled for the treatment given by them.
17. Secondly the OPs administered labour inducing drug Pitocin containing the dangerous drug Oxytocin in high dose. This drug is always administered gradually because it has Oxytocin. So it was again medical negligence in administering drug which had such a risk that its high dose can cause excessive bleeding. Though the child was delivered after one hour of the arrival of the deceased at the clinic but this drug was induced within five minutes and as a result the deceased suffered excessive bleeding which ultimately resulted in her death in the clinic of the OP itself.
18. When a woman with overdue pregnancy goes into precipitate labour it takes some time for delivery to take place and therefore to say that everything became complicated and unanticipated within five minutes i.e. taking the deceased to the examination room, putting her on the examination table and then examining her and her going into precipitate labour is not correct. The deceased did not go into precipitate labour all of a sudden. She went into precipitate labour after administering the labour inducing drug Oxytocin in a high dose that also in one go. Such a treatment is highly unprofessional and negligent.
19. The death from a post partum hemorrhage ordinarily leads to the inference of wrong medication and wrong way of administering the drug for inducing labour pain. The diagnosis of precipitated labour is always made when it terminates in a disproportionately shorter time than taken on an average either by a primipara or a multipara gravida and is due to abnormally strong uterine contractions.
20. Aforesaid facts lead us to the inescapable conclusion that OPs were not only not competent to attend to and treat the deceased but highly negligent in administering such a drug in such a high dose that resulted in the incessant bleeding and hemorrhage resulting in death. They were not competent enough to control the situation for stopping the blood. In our view lump sum compensation of Rs. 1 lac for the limited deficiency of expecting a quick result of precipitate labour by administering medicine of high dose without having proper arrangement for the treatment or the doctors for assisting the loss of blood would meet the ends of justice.
21. Complaint is disposed of in aforesaid terms.
22. A copy of the as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record room.
23. Announced on 3rd October, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj