National Consumer Disputes Redressal
Master Neil Mendonsa (Minor), Through ... vs Dr. Egbert Saldanha & 2 Ors., on 18 April, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 300 OF 2013 1. MASTER NEIL MENDONSA (MINOR), THROUGH MRS. INDU MENDONSA & 2 ORS., Through Mother/Guardian, Mrs. Indu Mendonsa, 10, Jankiniwas, Adarsh Society, Opp. Dr. Jani's Clinic, Kirol Village, Vidyavihar West, MUMBAI - 400086. ...........Complainant(s) Versus 1. DR. EGBERT SALDANHA & 2 ORS., Shreeji Hospital, Neelkanth Shopping Centre, Corner Cama Lane, Ghatkopar (West), MUMBAI - 400086. 2. SHREEJI HOSPITAL, Neelkanth Shopping Centre, Corner Cama Lane, Ghatkopar (West), MUMBAI - 400086. 3. DR. LOKESH BANODKAR, Shreeji Hospital, Neelkanth Shopping Centre, Corner Cama Lane, Ghatkopar (West), MUMBAI - 400086. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT :
Dated : 18 April 2024 ORDER
1. Heard Ms. Radhika Gautam, Advocate, for the complainants and Ms. Sukruta A. Chimalkar, Advocate, for the opposite parties.
2. Neil Mendonsa (minor), Mrs. Indu Mendonsa and Noel Mendonsa have filed above complaint, for directing the opposite parties, jointly and severally to pay (i) Rs.30560000/-, as the compensation, for committing medical negligence; and (ii) any other relief which is deemed fit and proper in the facts of the case.
3. The complainants stated that Dr. Egbert Saldanha (OP-1) claimed to be a Gynaecologist, Infertility Expert and Obstetrician by profession and was running Shreeji Hospital (OP-2). Dr. Lokesh Banodkar (OP-3) was an attending paediatrician at Shreeji Hospital, at the relevant time. Mrs. Indu Mendonsa (complainant-2) conceived in February, 2011 and took regular antenatal care from OP-1 at Shreeji Hospital, which was close to her residence. OP-1 checked up complainant-2 on 18.02.2011, 14.05.2011, 28.05.2011, 11.06.2011, 23.06.2011, 06.07.2011, 23.07.2011, 08.08.2011, 22.08.2011 and 01.09.2011 and all the time told that everything was fine. As advised by OP-1, first ultrasound sonography (USG) was done on 14.05.2011, which showed normal single live intrauterine pregnancy with gestational age of 12.3 weeks. Second USG was done on 02.07.2011, which showed everything normal. OP-1 also obtained Blood and Urine test reports of complainant-2, in respect of CBC, Blood Sugar, Serum Creatinine, VDRL, HIV, HbsAg, Blood Group and Urine routine test on 04.06.2011 and 25.06.2011, in which, also everything were normal. Complainant-2 was admitted at Shreeji Hospital for delivery on 04.11.2011 at 20:45 hours. Progress in labour pain was slow, therefore, initially OP-1 tried induction of labour pain but could not succeed. Then OP-1 did caesarean delivery on 05.11.2011 at 15:00 hours. Dr. Lokesh Banodkar (OP-3) attended new born baby after delivery and after check-up, informed that condition of the baby was fine and normal. Complainant-2 was discharged from the hospital on 08.11.2011. In discharge slip of the baby (complainant-1), OP-3 noted "Icterus on Face and Chest" and advised to "Expose to early morning sunlight daily for ½ hours, for 7 days. On the next day of discharge, complainant-1 noticed that the baby was looking severely yellow and jaundiced and sensed something was wrong. Complainant-2 consulted OP-1, who called OP-3 on 10.11.2011 at 19:30 hours, who examined the baby and suspected development of jaundice. He advised complainant-2 to admit the baby to another hospital for diagnostic test and further management. Then Complainant-1 was admitted to Bakul Parekh Children's Hospital on 10.11.2011, where treating doctor obtained various test report, in which, Bilirubin was found to be 48.5 mg/dl (as against referral range of 2.5-15 mg/dl). Complainant-1 remained in Bakul Parekh Children's Hospital for treatment of jaundice for 10 days and discharged on 20.11.2011. After some time, complainants-2 and 3 noticed something unusual in the baby, then they approached OP-3, who after examination noticed that the baby was able to hold his neck partially and there was loss of hearing and prescribed some medicines. Even at this stage, OP-3 could not diagnose real disease nor informed complainants-2 and 3 about the actual damage caused to the baby. After several months, when there was no improvement and the child could not hold his neck and started showing 'delayed milestones' then complainants-2 and 3 approached Dr. Neelu Desai, a Paediatric Neurologist on 16.08.2012, who obtained report of MRI Brain and informed that irreparable damage was caused to the bairn of the baby, due to jaundice. Complainants-2 and 3 took second opinion of Dr. Alok Sharma, who also obtained report of MRI Brain on 28.09.2012 and noted that symmetric signal alteration in the globus pallidi suggestive of kernicterus, Leucomalacic changes in bilateral parieto-occipital periventricular white matter. Symmertic linear signal alteration in dorsal pons, suggestive of central tegmental tract hyper-intensity. Mild prominence of the lateral ventricles. The complainants took advice and medicines from various doctors, one after one, but of no result. As per AIIMS-NICU Protocol, 2007, any new-born discharge prior to 72 hours of life should be evaluated again in next 48 hours for adequacy of breast feeding and progression of jaundice. Clinical judgment should be used on determining follow up. Earlier or more frequent follow up should be provided for those who have risk factors for hyperbilrubinemia. The protocol provides for inter alia the following risk factors for development of severe hyperbillrubinemia i.e. (i) Pre-discharge TSB or TcB level in high risk zone; (ii) Jaundice observed in the first 24 hours; and (iii) Blood group incompatibility with positive direct antiglobulim test. The OPs committed gross negligence in discharging before 72 hours of the birth of complainant-1. During 05.11.2001 to 08.11.2011, the OPs did not test Serum Bilirubin. At the time of discharge from the hospital on 08.11.2011, OP-3, noticed "Icterus on Face and Chest" even then he did not test Serum Bilirubin. Bilirubin was found 48.5 mg/dl on 10.11.2011, which cannot reach at such a high level in a single day. Due to negligence committed by the OPs, complainant-1 suffered from kernicterus (damage of vital part of the brain). If proper diagnosis and treatment of jaundice had been done at the initial stage, the baby could have been saved from incurable disease and permanent disability. In order to take care of complainant-1, complainant-2 left her job of Senior Executive in Birla Sunlife Insurance Company, from where she was earning Rs.4.93 lacs per year. Complainant-1 had to undergo for mandatory physiotherapy due to the impairments resulting from brain damage due to kernicterus, the cost of which as on the date of the complaint was Rs.800/- per session. The complainants claimed Rs.41.60 lacs, for the cost of physiotherapy for 20 years. Rs.20/- lacs, for future medical expenditure. Rs.30/- lacs, for mental trauma, Rs. 80/- lacs, for permanent disability of complainant-1, Rs.13/- lacs for the cost of Cochlear implants, Rs.one crore for loss of income of complainant-2. The complaint was filed on 17.09.2013.
4. The opposite parties-1 and 2 filed their joint written reply and stated that Dr. Egbert Saldanha passed MBBS in 1988 and did post-graduation as M.B. MNAMS, DGO, DNB (OBGYN) during 1994 to 1999. He was attached with Joy Hospital since 2003. Shreeji Hospital belonged to one Mayur Parikh, who executed conducting agreement dated 28.05.2005, in favour of OP-1, on the basis of which, OP-1 was running the hospital and doing his profession there. Complainant-2 approached OP-1 on 16.03.2011 with history of one month amenorrhea. Her urine pregnancy test was positive. Thereafter, he regularly checked up complainant-2. At around 37 weeks of pregnancy sonography was done, which showed fluid around the baby was less (a condition called as oligohydramios). The cause of oligohydramios is mostly feto-placental insufficiency (i.e. decrease blood flow to the baby due to narrowing of blood vessels supplying blood from the placenta to the baby). Since it was a term pregnancy, decision was taken to include labour and deliver the baby in order to prevent fetal distress and jeopardy. Complainant-2 was admitted at Shreeji Hospital for delivery on 04.11.2011 at 20:45 hours. After counselling the patient and her husband, the patient was induced with cerviprime gel (an induction agent). Instillation of cerviprime gel in the cervix was done on 04.11.2011 around 22:00 hours. The progress in labour pain was monitored throughout the night as well as next morning. Since there was no progress in labour pain, decision was taken for caesarean delivery. OP-1 did lower uterine segment caesarean section delivery on 05.11.2011 at 14:58 hours. The baby cried immediately at birth and weight of the baby was 2.7 kg. Dr. Lokesh Banodkar (OP-3) checked-up new born baby after delivery and found that the vitals of the baby were normal. He injected Vitamin K (1mg). Next three days were uneventful with no complication in mother and baby. During her stay in hospital, the mother and new born baby was regularly attended by the doctors and the nursing staff. As per practice followed, complainant-2 was discharged from the hospital on 4th day, after 72 hours of delivery on 08.11.2011 at about 16:00 hours. Usually pathological jaundice used to develop within 24 hours of the birth. As there was no symptom of jaundice within 24 hours as such serum bilirubin or transcutaneous bilirubin was not required. Icterus on face and chest on 3rd or 4th day of the birth is physiological jaundice. Dr. Lokesh Banodkar examined the baby on 08.11.2011 around 15:30 hours. In discharge slip of the baby, OP-3, noted "Icterus on Face and Chest'. As symptom of jaundice was up to face and chest, conservative treatment was advised with instruction to follow up within 24 hours. Complainant-2 was informed that it was a minimal jaundice and was advised to continue breast feeding, avoid oil massage to the baby and expose the baby to sunlight in morning. Complainants-2 and 3 were told to keep a close watch on the jaundice and if it increases, contact OP-3 immediately. On 10.11.2011 around 15:00, OP-1 received a telephone call from complainant-2 that her baby was not feeding well and cry was weak. OP-1 asked her to come to the hospital immediately. The complainants reached the hospital around 19:00 hours. Then OP-1 called OP-3 to examine the baby, who examined the baby around 19:30 hours on 10.11.2011 and noticed significant jaundice. Then Dr. Lokesh Banodkar admitted complainant-1 at Bakul Parekh Hospital in NICU and did the entire required test. Dr. Lokesh Banodkar always remained in touch of the baby and got initiated appropriate therapy, exchange transfusion and phototherapy. Bilirubin level on 10.11.2011 of 48.5 mg/dl is not suggestive of that the child was suffering from jaundice since his birth. The baby was treated till 20.11.2011 at Bakul Parekh Hospital and he was informed that second opinion was also taken from Dr. Nitin Shah, consultant neonatologist and paediatrician at Hinduja Hospital. After discharge, complainants-1 and 2 visited couple of time to Shreeji Hospital for regular check up by OP-3. The complainants were advised to follow up for neuro-developmental sequeale and hearing assessment. On 06.05.2013 and 14.05.2013, OP-1 received letter of complainant-3 calling upon to supply attested true copies of the case papers and the reports of complainant-1 and 2 as maintained at the hospital, which were supplied to in third week of May, 2013. It has been denied that the child had suffered from irreparable brain damage or permanent disability. It has been denied that the OPs have committed any negligence in taking care of the new born baby. The complaint is liable to be dismissed.
5. Dr. Lokesh Banodkar (OP-3) filed written version on 29.11.2013 and stated that he passed MBBS in October, 1996 from Topiwala National Medical College (Nair) Hospital, Mumbai and did post-graduation MD (Paediatrics) from the same college in September, 2002. He was attached with Shreeji Hospital and KMJP Municipal Hospital from 2009. LSCS of complainant-2 was done on 05.11.2011 at 14:58 hours by OP-1 at Shreeji Hospital and a live male child was delivered. He was present to attend the new born baby at that time. The baby cried immediately at birth and weight of the baby was 2.7 kg. He checked-up new born baby after delivery and found that the vitals of the baby were normal. He injected Vitamin K (1mg) IM. Next three days were uneventful with no complication in the mother and the baby. During her stay in hospital, the mother and the baby were regularly attended by the doctors and the nursing staff 2-3 times daily. As per practice followed, complainant-2 was discharged from the hospital on 4th day, after 72 hours of delivery on 08.11.2011 at about 16:00 hours, after dressing of the wound. He examined the baby on 08.11.2011 around 15:30 hours and noticed minimal jaundice in baby. In discharge slip of the baby, he noted "Icterus on Face and Chest'. He counselled the mother and informed her about minimal jaundice in the baby. As symptom of jaundice was up to face and chest, conservative treatment was advised with instruction to follow up within 24 hours. Complainant-2 was advised to continue breast feeding, avoid oil massage to the baby and expose the baby to sunlight in morning. Complainants-2 and 3 were told to keep a close watch on the jaundice and if it increases, contact him immediately. Over the next 48 hours there was no communication between the complainants and the OPs. Usually pathological jaundice used to develop within 24 hours of the birth. As there was no symptom of jaundice within 24 hours as such serum bilirubin or transcutaneous bilirubin was not required. Icterus on face and chest on 3rd or 4th day of the birth is physiological jaundice. The complainants visited Shreeji Hospital on 10.11.2011 then OP-1 examined the baby around 19:00 hours and found the baby sick. OP-1 immediately called him. On examination, he found the baby deeply icteric with refusal to feed, lethargy and tonic posturing. Then he advised to shift the baby NICU immediately. Complainant-1 was shifted to NICU in Bakul Parekh Hospital in a special ambulance accompanied by the doctor, where the baby was admitted in his care. Initial management with IV Fluids, IV antibiotics, supportive treatment, Inj. Gardenal, Inj. Albumin, Double Surface Phototherapy was started. In view of Bilirubin level of 48.5 mg/dl, Double Volume Exchange Transfusion was done by him. He advised for G6PD Enzyme Test, which was done in Bakul Parekh Hospital. G6PD was normal. Due to acute haemolysis, the said deficiency was not detected at that time. In view of CRP being strongly positive and the low platelet count, the doses of the antibiotics were stepped up to Meropenam/Amikacin. A second opinion was also taken from Dr. Nitin Shah, who was a senior consultant neonatologist and paediatrician at Hinduja Hospital and currently holding the position of convener in the Indian Academy of Paediatrics Central Scientific Committee, PEDICON 2014. Dr. Nitin Shah, after going through the case papers advised to continue with the same treatment. Packed cell transfusion was administered to the baby in view of falling haemoglobin. Repeat S Bilirubin showed decreasing trend and gradually activity and general condition of the baby was improved. Breast feed was started and gradually stepped up. The baby was treated at Bakul Parekh Hospital till 20.11.2011 and discharged on full feed. On discharge, the medicines: sypcalcimax, gardenal, visyneral-Z drops were advised. He advised complainants-2 and 3 to ensure that complainant-1 undergo Neurodevelopmental assessment and monitoring EEG, Neuroimaging, Physiotherapy, BERA/Hearing/Ophthalmological assessment as also noted in Discharge Slip of Bakul Parekh Hospital. Complainants-2 and 3 brought complainant-1 to him for follow up and vaccinations for few months at Shreeji Hospital. He observed delayed milestones in the baby and counselled complainants-2 and 3 regarding likely complications/prognosis in detail. Later on he was not consulted by the complainants, after 23.03.2012. The complication in complainant-1 arose due to G6PD Deficiency induced severe neo-natal hyper bilirubinemia and kernicterus. The OPs adopted standard protocol and have not committed any negligence. It has been denied that the child had suffered from irreparable brain damage or permanent disability. Exorbitant claim has been made in the complaint without any basis. The complaint is liable to be dismissed.
6. The complainants filed Replications to the written replies of the OPs, Affidavit of Evidence of Mrs. Indu Mendonsa, Affidavit of Evidence of Noel Mendonsa, Expert Affidavit of Dr. M.S. Kamath and documentary evidence. The opposite parties-1 and 2 filed Affidavit of Evidence of Dr. Egbert Saldanha and documentary evidence. Opposite party-3 filed Affidavit of Evidence of Dr. Lokesh Banodkar and documentary evidence. The OPs filed Expert Affidavits of Dr. Manish Gandhi, Dr. Sharat Menon and Dr. Jayashree Mondkar. All the parties have filed written synopsis.
7. This Commission, vide order dated 13.07.2022 found that Dr. M.S. Kamath was MBBS and did not possess post-graduation/super specialization either in Paediatrics or Neonatology. Therefore, he cannot be treated as an expert in this case. As such, this Commission called for an expert opinion from a Board of Medical Expert at the AIIMS, New Delhi. In compliance of the order dated 13.07.2022, the Director, AIIMS, New Delhi constituted a Board of Medical Expert on the subject, who after examining the record, submitted report dated 17.10.2022, relevant portion of which is given below:-
"• Baby Neil Mendosa was born on 5th November 2011 at 3 PM by Caesarian Section at Shreeji Hospital, Mumbai.
Mother and baby were discharged on 8th November 2011. At the time of discharge, the baby had icterus up to the face and chest, which is normal physiological jaundice. As per the standard of care prevailing in the country at that point in time, the jaundice of this severity does not warrant any investigation in a term baby weighing 2.7 Kg. Unlike Western countries, India does not have the guideline of universally screening neonates for total serum bilirubin levels at discharge.
The baby was admitted to Dr. Bakul Parekh Hospital on 10th November 2011 with complaints of refusal to feed and lethargy. Upon investigation, it was found that the bilirubin level was 48.5 mg/dL. The baby was diagnosed having sepsis with neonatal hyperbilirubinemia with encephalopathy and hypocalcaemia. A G6PD test was conducted, but the result came to be negative. We agree with the assessment of the treating team that the baby suffered from acute bilirubin-induced encephalopathy. There was no blood group incompatibility. The treatment team provided appropriate management for the baby's condition.
The baby was later diagnosed with G6PD deficiency as per the test conducted on 6th August 2012when the baby was nine months old. The presence of G6PD deficiency explains the severe hyperbilirubinemia in the baby on the 5th day of life, causing brain damage and kernicterus. The baby died due to kernicterus later.
An infant with G6PD deficiency can develop a sudden and extreme increase in Total Serum Bilirubin that can cause bilirubin encephalopathythat is hard to predict or prevent at discharge (PI see the highlighted text in the recently issued American Academy of Pediatrics guidelines, the most authentic resource on the subject; page no. 4).
Currently, India does not recommend screening neonates for G6PD deficiency. During admission onthe 5th day of life, the baby was not found to have G6PD deficiency. This is known to occur: following a bout of hemolysis causing severe hyperbilirubinemia, the G6PD test can come normal. It is therefore recommended to repeat the test after 3 to 6 months, which was done in this case.
Conclusion: Unfortunately, the child had severe jaundice due to G6PD deficiency, the parents finally lost their precious child. However, we do not find any deficiency in care on the part of the teams providing care during birth hospitalization and later when the child was admitted with severe hyperbilirubinemia on 5th day. Both teams provided care as per the recommended guidelines."
The complainants filed an objection to the report dated 17.10.2022, along with fresh expert affidavit of Dr. M.S. Kamath.
8. Neil Mendonsa (complainant-1) was born at Shreeji Hospital on 05.11.2011 at 14:56 hours, by lower uterine segment caesarean section delivery, conducted by Dr. Egbert Saldanha (OP-1). Dr. Lokesh Banodkar (OP-3) attended new born baby after delivery and after check-up, informed that condition of the baby was fine and normal. The mother and baby were discharged from Shreeji hospital on 08.11.2011. In discharge slip of the baby, OP-3 noted "Icterus on Face and Chest" and advised to "Expose to early morning sunlight daily for ½ hours, for 7 days. Complainants-2 and 3 noticed significant jaundice in baby on 10.11.2011 and consulted with the OPs, then they advised to admit the baby admit the baby in NICU. When the baby was admitted at Bakul Parekh Children hospital due to significant jaundice, his blood test report dated 10.11.2011, showed Bilirubin level as 48.5 mg/dl. In the process of treatment, Neil Mendonsa (complainant-1) died on 25.07.2016 and 19:45 hours at FORTIS hospital, Mulund, Mumbai. In the Death Certificate issued by Municipal Corporation of Greater Mumbai, cause of death is noted as "cardio-respiratory arrest", other significant conditions contributing to death is noted as "Mental Retardation with cerebral palsy".
9. The complainants allege that the OPs have committed negligence in (i) discharging mother and new born baby from the hospital before 72 hours of the birth; (ii) not obtaining bilirubin test of the baby during 05.11.2011 to 08.11.2011; (iii) On 08.11.2011, OP-3 noticed "Icterus on Face and Chest" and advised to "Expose to early morning sunlight i.e. physiological care and not clinical management; (iv) due to not diagnosing jaundice at the initial stage and proper medical care even after noticing jaundice on 08.11.2011, the condition of the baby has become serious within 5 days of his birth; (v) High level bilirubin caused permanent damage in the brain of the baby. (vi) Even after, 2011.2011, OP-3 was attended the bay several times but he did not inform the damaged caused to the brain of the baby.
The OPs reply that (i) lower uterine segment caesarean section delivery was conducted by Dr. Egbert Saldanha (OP-1) to complainant-2 on 05.11.2011 at 14.58 hours. The mother and baby were discharged on 08.11.2011 at 16:00 hours, i.e. after 72 hours of the delivery; (ii) Dr. Lokesh Banodkar (OP-3) attended new born baby after delivery and after check-up, found that condition of the baby was fine and normal. The mother and the baby were attended twice daily on 06.11.2011 and 07.11.2011 and there was no symptom of jaundice within 48 of the birth of the new born of the child. (iii) On 08.11.2011, OP-3 examined the baby at 15:30 hours and found minimal jaundice on the face and chest. As per medical science as available on that day, it was a physiological jaundice and conservative treatment was advised. (iv) The complainants-2 and 3 were asked for review within 24 hours of discharge but they did not turn up for review within 24 hours and there was no communication for 48 hours. (v) Bilirubin level reached at 48.5 mg/dl. on 10.11.2011, due to "Glucose-6-Phosphate Dehydrogenase" deficiency induced severe neo-natal hyper bilirubinemia and kernicterus, which is a rare complication. The complainants did not approach the OPs after 23.03.2012.
10. We have considered the arguments of the counsel for the parties and examined the record. Allegation that the mother and new born baby were discharged before 72 hours of the birth is not proved inasmuch as birth took place on 05.11.2011 at 14.58 hours and the mother and baby were discharged from Shreeji Hospital on 08.11.2011 at 16:00 hours. There is neither any allegation nor evidence that symptom of jaundice was found within 24 hours of the birth of complainant-1. Symptom of jaundice was noticed on the face and chest of complainant-1 on 08.11.2011 at 15:30 hours. In Discharge Summary of Bakul Parekh Children Hospital, case history of complainant-1 as noticed are "Icterus Id-one day, Refusal to feed, lethargy-one day". Only on the basis of the fact that Bilirubin level was found at 48.5 mg/dl. on 10.11.2011, it cannot be presumed that complainant-1 was suffering from jaundice since birth particularly when "Glucose-6-Phosphate Dehydrogenase" deficiency was found in complainant-1, which was cause to induce severe neo-natal hyper bilirubinemia and kernicterus, which is a rare complication.
11. OP-3 examined the baby on 08.11.2011 at 15:30 hours and noticed "Icterus on Face and Chest" and advised to "Expose to early morning sunlight i.e. physiological care and not clinical management as minimal jaundice on the face and chest was found after 24 hours of the birth. The complainants-2 and 3 were asked for review within 24 hours of discharge but they did not turn up for review within 24 hours and there was no communication for 48 hours.
12. The complainants have filed AIIMS-NICU Protocol, 2007
Physiological jaundice
Jaundice attributable to physiological immaturity of neonates to handle increased bilirubin production. Visible jaundice usually appears between 24-72 hours of age. Total serum bilirubin (TSB) level usually rises in full-term infants to a peak of 6 to 8 mg/dL by 3 days of age and then falls. A rise to 12mg/dL. is in the physiologic range. In premature infants, the peak may be 10 to 12 mg/dL on the fifth day of life, possibly rising over 15 mg/dL without any specific abnormality of bilirubin metabolism. Levels under 2mg/dL may not be seen until one month of age in both full term and premature infants. Safe bilirubin levels in preterms vary according to gestational age.
Pathological Jaundice
TSB concentrations have been defined as non-physiologic if concentration exceeds 5 mg/dl on first day of life in term neonate, 10 mg/dL on second day, or 12-13 thereafter. Any TSB elevation exceeding 17 mg/dL should be presumed pathologic and warrants investigation for a cause and possible intervention, such as phototherapy. Appearance of jaundice within 24 hours, peak TSB levels above the expected normal range (Fig. 1), presence of clinical jaundice beyond 3 weeks and conjugated bilirubin (dark urine staining the clothes and light floored stool) would be categorized under pathological jaundice.
Clinical examination of jaundice
Originally described by Kramer¹¹, dermal staining of bilirubin may be used as a clinical guide to the level of jaundice. Dermal staining in newborn progresses in a cephalo-caudal direction. The newborn should be examined in good daylight. The skin should be blanched with digital pressure and the underlying color of skin and subcutaneous tissue should be noted. A rough guide for level of dermal staining with level of bilirubin is included in Table 1.
Newborns detected to have yellow discoloration of the skin beyond the legs should have an urgent laboratory confirmation for levels of TSB. Clinical assessment is not very reliable if a newborn has been receiving phototherapy and if the baby has dark skin.
Advise for physiological jaundice:
The parents should be explained about the benign nature of jaundice. The mother should be encouraged to breast-feed frequently. The newborn should be exclusively breast-fed with no top feeds, water or dextrose water. Mother should be told to bring the baby to the hospital if the baby looks too yellow or yellow discoloration of the skin beyond the legs.
Any newborn discharged prior to 72 hours of life should be evaluated again in the next 48 hours for adequacy of breast-feeding and progression of jaundice.
Clinical judgment should be used in determining follow-up. Earlier or more frequent follow-up should be provided for those who have risk factors for hyperbilirubinemia.
Management of pathological Jaundice
Any term or near-term newborn noted to have yellow staining of the skin beyond the legs/estimated clinical or TcB in the high risk zone of nomogram should have a confirmatory serum bilirubin level. The American Academy of Pediatrics (AAP)" has laid down criteria for managing babies with bilirubin in the pathological range (Figure 2). Jaundice appearing within 24 hours should be managed as hemolytic jaundice.
All infants with bilirubin levels in the phototherapy range should have the following investigations: blood type and Coombs' test, if not obtained with cord blood (if mother is Rh negative or O group); complete blood count and smear for hemolysis and red blood cell morphology; reticulocyte count and G6PD estimation. These investigations are done to exclude any hemolytic cause of jaundice. Repeat TSB in 4-24 h depending on infant's age and TSB level.
We usually do repeat TSB within 4 to 6 hrs if initial was TSB in or near the exchange transfusion range meanwhile blood is arranged for the exchange transfusion, so that exchange can be done if there is no significant fall in the TSB. In a healthy neonates without setting for hemolytic jaundice and TSB not near exchange range we repeat TSB after 12 to 24 hrs. In Rh isoimmunisation we do repeat TSB at 8 to 12 hr interval for first 48 hrs and 12 to 24 hourly afterwards when probability of unexpected rise in TSB usually decreased
We in neonatal division of AIIMS follows American Academy of Pediatrics (AAP)'s guidelines for initiating phototherapy in term and near term infants (fig 2). For preterm and VLBW infants guidelines for phototherapy are not so clear for lack of data. We follow the ranges given in table 3.
For paucity of evidence these phototherapy guidelines are given only for first week of life. We follows the same guidelines for neonates with hyperbilirubinemia post first week of life, however these babies are probably less prone for bilirubin induced brain damage with similar TSB.
13. From the material on record, it is proved that OP-3 advised for physiological treatment as the jaundice on face and chest was found after 24 hours of the birth of complainant-1, AIIMS-NICU Protocol, 2007. Medical Board of AIIMS in its report dated 17.10.2022 found that OP-3 has not committed any negligence, which appears to be correct. G6PD reports were obtained while the complainant was in Bakul Parekh Children's Hospital but due to low blood count its report was not properly shown.
14. Supreme Court in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, held that (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage". (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (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, 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. (iv) Mere deviation from normal professional practice is not necessarily evidence of negligence. (v) Mere accident is not evidence of negligence.(vi) An error of judgment on the part of a professional is not negligence per se. (vii) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. Similar view has been taken in C.P. Sreekumar (Dr.) Vs. S. Ramanujan, (2009) 7 SCC 130, Kusum Sharma Vs. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 and M.A. Biviji Vs. Sunita and other, 2023 SCC OnLine SC 1363.
ORDER
In view of the aforesaid discussions, the complaint is dismissed.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER