National Consumer Disputes Redressal
R.P. Unniyal vs S.V. Nurshing Home & Ors. on 23 February, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVIEW APPLICATION NO. 194 OF 2014 IN OP/422/2002 1. R.P. UNNIYAL ...........Appellants(s) Versus 1. S.V. NURSHING HOME & ORS. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR, MEMBER For the Appellant : For the Review Petitioner : Mr. Amit Gupta, Advocate and /OPs Mr. Anant A. Pavgi, Advocate For the Respondent : For the Complainant : Ms. Radha- Advocate Dated : 23 Feb 2015 ORDER PER HON'BLE DR. S. M. KANTIKAR The Review Petitioner/OPs raised certain objections through this petition, therefore, in the interest of justice; notices were issued to both the parties and heard the arguments from both the parties.
1. The learned counsel for petitioner, Mr. Amit Gupta, further submitted the 1st objection that, the petitioners were denied a chance to place the details of the indoor treatment of complainant's wife, as same were not made available from office of CJM, Faridabad. We are not convinced by this submission. This case is hanging fire since 2002; the OPs should have produced those treatment records at any stage of proceedings or at least during the course of arguments. OP raised this issue first time at the review stage. There no denial from the commission at any stage of proceedings. Now, along with this review application the petitioner has filed a copy of transcript of indoor file, it is marked as Annexure P-2, in the interest of justice we have taken it on record.
2. The further objections raised are against our observations regarding Medical Negligence, Medical Board's opinion, prolonged hospitalisation of the patient. Again, we have perused and compared the medical records on the original file with the new transcripts (Annexure P-2) filed by the OPs. On careful perusal, the Annexure P-2 reveals that, on 26th January, 2002 there was bleeding P/V++, whereas, the documents filed by the complainant, along with the complaint the Annex. 'G' is the hospital's letter head with having entries for 26th and 28th January, 2002.The entry of date 27.1.2002 is missing. Nothing was mentioned, about P/V bleeding. On 28.1.2002 the patient was advised bland diet. It is also pertinent to note that, the Annex G did not spell a single word about intervention of a 'Dai', but the fresh document Annex P-2 mentions about intervention of 'Dai'. It was also stated by the OP, that the complainant refused to take back his wife on the morning of 28.1.2002, we don't find any evidence as such. The counsel submitted that, the Annex G is OPD slip while Annexure P-2 is indoor document, but it is surprise that, how the clinical findings differ? Why specific entries were missing in Annexure G? Therefore, in the entirety we don't accept the Annexure P-2.
3. According to OP, due to Republic Day, it was a holiday on 26.01.2002, USG was not available, hence the patient was untreated or no procedure was carried out on 26.1.2002. Thus, the main controversy swirls around that, on 26.01.2002, whether, there was any emergency or need for hospitalization of the patient? The OPs would have sent the patient back to home and advised to come on next day. In contrast, as per the Complainant's evidence, the OP performed MTP on 26.01.2002 in the afternoon and thereafter kept the patient in the hospital, till the evening of 28.01.2002. Even if, we rely upon the evidence of OP, that D and C was not performed on 26th but, it was performed on 27.01.2002, then the question remains unanswered that, after D & C, why the patient was kept under observation/hospitalized, till evening of 28.01.2001?
The OP's explanation is reproduced as hereunder:
"On 28/01/2002, since morning there was no attendant with the deceased and the complainant himself was attending his duties in the company and he came to nursing home at about 5 pm on that day. The OPs advised the complainant that the patient was normal and in stable condition and the second attempt of MTP would be attempted after some duration under Ultrasound guidance. On which complainant got the deceased discharged from the nursing home and taken at about 6 pm on 28/01/2002".
4. The document lacks the details pertaining to the discharge advice. It is surprising to note that, routinely, the MTP is a short duration procedure, patient rarely need hospitalization for maximum 4-8 hours. In most of the cases, the patient alone can give consent, undergo the D & C procedure safely, and there is no need of any attendant. Patient can go home after rest for 2-3 hours. Therefore, prolonged hospitalization after D & C creates suspicion that whether, there was any serious pre-existing disease or any suspected complications like uterine perforation/injury? In this case, on careful perusal of sequence of events, it is clear that, on 27.1.2002, the attempt for MTP failed. The OPs abandoned the procedure because of no products of conception obtained and decided for the second attempt of MTP after some duration under Ultrasound guidance. There is nothing on record as to why the products were not obtained. It was about 8 week's pregnancy, at that point of time, OPs would have conducted immediate USG study to know, whether, the products remained in uterus or displaced somewhere? It was negligence and breach in duty of care by the OPs.
5. Even, thereafter, on 27.1.2002 after MTP, OP would have sent the patient back to home on the same day. It is pertinent to note that, the patient was kept under observation, till 28.1.2002 at about 6 PM and she was treated by higher antibiotics like Garamycin inj. 80 mg I/M BD, Tab Ceftum 500 mg BD, Tab. Flexon 1TDS . Thus, we are of considered view that the OP failed to explain the reasons for prolonged hospital stay of the patient for more than 30 hours.
6. The objection pertaining to D & C and Suction machine, we agree both are part of same procedure. Also we accept that, the hospital was authorized to perform MTP as per the certificate issued by District Health Authority under MTP Act 1971, and the OP 3 is authorized to conduct MTP. No doubt, the D & C is a blind procedure, but it is pertinent to note that, the by USG OP confirmed the patient's uterus was retroverted, with 8 weeks' pregnancy. Hence, OP should have been more careful while performing D & C/Suction to avoid the possible risk of perforation of soft gravid retroverted uterus and injury to the small intestine, which further may remain undiagnosed for a day or two. Therefore, we are of the considered view that, performing D & C (MTP) in the retroverted gravid uterus, is a domain of experienced and qualified gynecologist only. In this case, neither OP-2 nor OP 3 was a gynecologist. None of them was expert to venture or maneuver with retroverted uterus, hence it was negligence in the duty of care, i.e. the act of commission. It was a misadventure committed by Dr. Veena Gupta (OP-3), which was not supposed to do in such case. (Bolam's Test, [1957]1 WLR 582).
7. The opinion of Medical Board The counsel submitted that this Commission completely ignored the findings of medical Board by merely stating the following in para 17 of the judgment, which is reproduced, as under:
"The opinion of Medical Board is also not supportive to the OPs. It is just a narration of clinical findings; it is devoid of treatment and procedural details adopted by OP-2 and 3."
It is true and factual that the said medical board report; does not clarify basic issues like the cause of perforation and duty of care by the OP-3 while doing MTP on retroverted gravid uterus. Bare reading of the expert opinion appears to be a biased one. It is conspicuously silent about the clinical noting in Annx- G. The board finally opined as:-
"the patient had died as a combined effect of uterine perforation and the subsequent complications of surgeries done on 28.01.2002 and 05.02.2002 at Apollo Hospital. As per records the patient was stable when she was discharged from S. V. Nursing Home on 28.01.2002. So it cannot be commented upon as per records that whatever the perforation occurred on 27.01.2002 or on 28.01.2002 after discharge from S. V. Nursing Home".
Nothing is forthcoming from the medical board report. The evidence of OP- 4 Apollo Hospital, throws ample light on the triage and serious condition of patient at the time of admission on 29.1.2002. Patient was already in septicemic shock due to uterine and intestinal perforation. Therefore, how could it be possible that, the patient was stable on 28/1/2002 i.e. at the time of discharge. The death was occurred at Apollo Hospital, but we are of considered view that there was no negligence by the Apollo Hospital. Therefore, we reject the opinion of medical board.
8. Putting reliance upon the Bolam's test and catena of judgments of Hon'ble Apex court and this commission, we are of considered view that the OPs failed in their duty of care, it was not a standard of practice. At the first instance, the OP tried to shift burden on local 'Dai', stating that, before 26/1/2002 the patient underwent MTP from local dai. Again the OP, tried to convince us that the patient might have undergone MTP during intervening night of 28.1.2002 and 29.1.2002 from local dai again. It is just a vain attempt by the OPs, because there are many shortcomings, discrepancies in the medical documents on the file, unnecessary hospitalization, which remained unexplained. USG done by OP-3 on 29.01.2002 reveled perforation of uterus, and subsequently the patient was shifted to Apollo Hospital in serious condition. On admission to Apollo Hospital, CT Abdomen and Pelvis was performed, (the report - Annexure H) clearly revealed signs of perforation i.e. moderately large amount of fluid and air in peritoneal cavity. Further, the operative findings and histopathology study confirmed the uterine and intestinal perforation. Thus, the things speak for themselves- it was the case of "Res Ipsa Loquitor". To cover up their own mistakes the OPs kept the patient hospitalized, for 30 hours', after D & C, gave conservative treatment. After failed attempt of MTP, it was the duty of OP to ascertain the chance of any perforation of uterus by doing USG immediately and to refer the patient to higher center. It is quite possible that, the complications can occur in best hands, but the doctor cannot take absolute defense on the basis of known complications. The complication in this case occurred due to wrong clinical and procedural acumen. Very often, in a claim for compensation arising out of medical negligence, a plea is taken that it is a case of bona fide mistake, which, under certain circumstances, may be excusable, but a mistake which would tantamount to negligence, cannot be pardoned.
Therefore, on the basis of forgoing discussion, there is no merit in this review petition, accordingly it is dismissed with costs of Rs.10,000/- which is to be deposited in the Consumer Legal Aid Account of this Commission, within 8 weeks', from the date of receipt of this order, otherwise, it will carry interest @ 12% p.a., till it's compliance.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER