National Consumer Disputes Redressal
Satish Kumar & 3 Ors. vs Dr. Rajendro Sangwan on 28 March, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1 OF 2013 (Against the Order dated 02/11/2012 in Complaint No. 30/2006 of the State Commission Haryana) 1. SATISH KUMAR & 3 ORS. S/O. SHRI SHIV NARAIN, R/O. 9, BISWAS, VILLAGE ISMAILA, TEHSIL & DISTRICT-ROHTAK, HARYANA 2. BHAWNA (MINOR) D/O. SATISH KUMAR, THROUGH THEIR FATHER AND NEXT FRIEND SATISH KUMAR, S/O. SHRI SHIV NARAIN, R/O. 9 BISWA, VILLGAEGE-ISMAILA, TEHSIL & DISTRICT-ROHTAK HARYANA 3. SHIWANI(MINOR) D/O. SATISH KUMAR, THROUGH THEIR FATHER AND NEXT FRIEND SATISH KUMAR, S/O. SHRI SHIV NARAIN, R/O. 9 BISWA, VILLGAEGE-ISMAILA, TEHSIL & DISTRICT-ROHTAK HARYANA 4. NEWLY BORN (MINOR) S/O. SATISH KUMAR, THROUGH THEIR FATHER AND NEXT FRIEND SATISH KUMAR, S/O. SHRI SHIV NARAIN, R/O. 9 BISWA, VILLGAEGE-ISMAILA, TEHSIL & DISTRICT-ROHTAK HARYANA ...........Appellant(s) Versus 1. DR. RAJENDRO SANGWAN SANGWAN CLINIC, JHAJJAR ROAD, SAMPLA, TEHSIL & DISTRICT-ROHTAK HARYANA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. Manish Garg & Ms. Samridhi, Advocates. For the Respondent : In person.
Dated : 28 Mar 2019 ORDER Per Mrs. M. Shreesha, Member
Aggrieved by the order dated 02.11.2012 in CC No. 30 of 2006 passed by the State Consumer Disputes Redressal Commission, Haryana (for short the "State Commission"), the Complainants preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has dismissed the Complaint on the ground that there was no negligence on the part of the Opposite Party (hereinafter referred to as the 'Treating Doctor'.)
2. The brief facts as set out in the Complaint are that the Complainants' wife namely Mamta (hereinafter referred to as "the Patient") was admitted for delivery in Sangwan Clinic, owned and managed by the Treating Doctor. It is averred that on 31.12.2005, the Treating Doctor assured the Complainant that the delivery would take place within two hours. She instructed the Patient to lay down on the bed and gave an injection and asked her attendants to bring the necessary belongings as the delivery pains had already begun. It is stated that the treatment which included giving injections continued upto 10 p.m. and when the Complainant enquired about the condition of the Patient, he was told that it was a normal delivery and that the situation was under control. Thereafter the Treating Doctor had informed the Complainant at around 1.15 a.m. that a male baby was born and both the mother and child were healthy. It is averred that the Complainant was informed that the placenta had not come out and when the Complainant insisted that he would take the Patient to PGIMS, Rohtak, the request was refused and he was once again informed that an injection was administered and the placenta would come out eventually. Thereafter, the Treating Doctor started pressing the stomach of the Patient with great force and only on account of the excessive pressure administered, that the placenta along-with uterus had come out. The Patient's condition deteriorated. Dr. Lakshmi Hooda was called to see the Patient and when the said doctor saw the condition of the Patient, she immediately advised the Complainant to take her to PGIMS, Rohtak. Then Complainant immediately took the Patient to PGIMS, Rohtak, despite the objection of the Treating Doctor, got her admitted in emergency and explained the condition to the Doctors there. It is averred that despite their best efforts, the Doctors at PGIMS could not save the life of the Patient. She expired on 03.01.2006 at 2.00 p.m.
3. The Complainant went to lodge an FIR against the Treating Doctor and police lodged DDR bearing No. 24 on 09.01.2006. On receipt of the Complaint, the Police made an Application to the superintendent of PGIMS, Rohtak to constitute a Board of Doctors for giving their opinion. The Doctors examined the case filed on 14.01.2006 and gave their opinion vide an endorsement PGIMS, Rohtak/Misc./06/173 dated 17.01.2006. After obtaining the Doctors' opinion, the Appellants moved an Application to S.P. Head Quarter, Rohtak for investigation annexing the copy of the Doctors' opinion. On 18.01.2006, it was found that it was a prima facie case under Section 304-A, IPC and an FIR was registered bearing No. 18 of 19.01.2006 against the Treating Doctor. The Treating Doctor was arrested and during investigation the statements of 16 witnesses were recorded. It is also averred that charges were framed on 04.09.2006 under Section 304-A, IPC and the case was posted for hearing. Dr. Lakshmi Hooda, during her deposition stated that the Patient's condition deteriorated as the Placenta had not come out. It is pleaded that it is only on account of negligence in the treatment rendered by the Treating Doctor that the Patient had expired. Hence the Complainant approached the State Commission seeking compensation of ₹25,00,000/- on account of the death of his wife who was also mother of three minor children who have been deprived of the love and affection of their mother.
4. The Treating Doctor filed his Written Version stating that the Patient was a case of grand multipara since 1996 till 2000; that this was her 7th pregnancy; that she had three female child deliveries and three continuous abortions; that that was first time the Patient was being brought to the Treating Doctors' clinic; that only an ultrasound was done in this clinic; that the Patient was initially treated by local dai who mishandled and mismanaged the case and thereafter the Patient had come to the Treating Doctor's clinic on 31.12.2006; she was brought in a state of emergency at 12.40 a.m. as the case of full term normal delivery in the third stage and the Treating Doctor had attended to the Patient as per the guidelines of medical ethics and a healthy male baby was delivered on 1.15 a.m., but unfortunately the placenta was retained which is a known complication in the third stage of labour; another doctor was consulted and the case was referred to further management to PGIMS, Rotak within half an hour of the delivery and, therefore, there is no negligence on their behalf. It was also averred that the Complainant instead of taking the Patient to PGIMS, Rohtak got her treated somewhere else and inversion of uterus had occurred, which is another complication and thereafter he took the Patient after a gap of one and half hours from the time of reference whereas the distance from the nursing home to PGIMS, Rohtak is 22 kms only which requires 25 to 30 minutes by Sumo at night. The watchful expectancy period for coming out of placenta is 30 minutes, however, each case needs to be individualized. In the instant case it was averred that the Treating Doctor had waited for about 20 minutes for the placenta to come out but it was still retained. Manual removal of placenta is to be done under general anesthesia. As there was no arrangement of the same at their clinic after consulting with Dr. Lakshmi Hooda the Patient was referred to PGIMS, Rohtak. That her condition was stable as her blood pressure and pulse rate were normal. It was specifically pleaded that there was no inversion of uterus and the Patient was referred to PGIMS, Rohtak. It is stated that the Complainant should have got the post-mortem done on 03.01.2006 which would have given the exact reason for the cause of death. The report and the opinion of the Board of Doctors was based on the condition of the Patient at the time of admission at 3.15 a.m., at which time, the uterus had already inverted. It is averred that this is contradictory to the condition of the Patient at the time of reference i.e. 1.40 a.m. at which time the placenta was retained and her condition was stable as witnessed by the affidavit of Dr. Lakshmi Hooda. It is only because of wastage of one precious hour that the condition of the Patient further deteriorated. The fixing of the responsibility of inversion of uterus on the Treating Doctor by the Board of Doctors of PGIMS is totally baseless and the opinion given on 17.01.2006 does not mention the name of the clinic or the name of the doctor. Retained placenta at the third stage of labour is a known complication especially in a case where there were three abortions and deliveries, wherein, the atonicity of uterus increases and, therefore, the chances of retention of placenta increases. It is denied uterus inversion is a general complication in the third stage of delivery.
5. Primpara is a woman who has delivered for the first time and multipara is a woman who has delivered more than once. It is averred that the Patient was a multipara case and that atonic uterus is one of the common pre dispoising factors of retained placenta. The original expectancy period of retention of placenta is usually 30 months and in this case the Treating Doctor had watched for 20 months and, therefore, there is no negligence in rendering any treatment on her behalf.
6. State Commission based on the evidence adduced dismissed the Complaint after observing thus:-
"On behalf of the complainant it has been argued that in this case the Medical Board was constituted who has given its report in favour of the complainant. In support of his arguments, learned counsel for the complainants has drawn our attention towards the report of Board of Doctors, the relevant part of which is reproduced herein below:-
"DEPARTMENT OF OBS. & GYNAE P.T. B.D. SHARMA PGIMS ROHTAK A Board of the following three doctors was constituted to give the opinion about the Patient Mamta W/o Satish Kumar:
Dr. Daya Sirohiwal, Assoc. Prof. Dr. Nirmal Dhuan, Reader Dr. Anjali Gupta, Lecturer The opinion, is as under:-
It is stated that the inversion of uterus is a known complication which can occur in third stage of labour. However, the attending Obstetrician/Doctor should have been able to detect and manage the complication at the same sitting by immediate reposition of the inverted uterus before referring the patient for further management.
(Dr. Daya Sirohiwal) (Dr. Nirmala Duhan) (Dr. Anjali Gupta) Assoc. Prof. Obst. Reader Obst. Lecturer Obst. & Gyane & Gyane & Gyane"
In the above said report of the Medical Board it is mentioned that the inversion of uterus is a known complication which can occur in third stage of labour. However, the attending Obstetrician/Doctor should have been able to detect and manage the complication at the same sitting by immediate reposition of the inverted uterus before referring the patient for further management.
Thus, keeping in view the report of the Medical Board, this case is not of any medical negligence or deficiency in service in view of law laid down in Kusum Sharma and others versus Batra Hospital & Medical Research Centre and Others, 2010 ACJ 1444, wherein it has been observed by the Hon'ble Supreme Court that the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. Merely, the doctor failed to cure the disease, cannot be a case of medical negligence or deficiency in service. It is also settled law that medical complications cannot always lead to inference of medical negligence. Support to this view can be taken from the judgment rendered by Hon'ble National Commission in case cited as Smt. Sajini, Major Verus Chaya Nursing Home & Ors. 2012 (1) CPR 111(NC). There is no expert evidence on the record on behalf of the complainant to prove it a case of medical negligence while treating the complainant by the opposite party No. 1"
7. Learned Counsel appearing for the Complainant vehemently contended that it was only because of the negligence of the Treating Doctor in not conducting the delivery hygienically, that the Patient has developed post-delivery infection; that placenta was not expelled out but was retained; that expulsion has to be done under general anaesthesia for which there was no arrangement in the clinic of the Treating Doctor and that the Medical Board had clearly stated that the attending doctor should have been able to detect and manage the complication at the same sitting by immediate reposition of the inverted uterus before referring the Patient for further management and the State Commission has erred in not taking this into consideration. He further contended that in the deposition before the police Dr. Lakshmi Hooda had clearly stated that the Patient was in a deteriorated condition at the time of discharge.
8. The Treating Doctor who appeared in person reiterated all the pleadings made in the Written Version and drew our attention to the opinion of the Medical Board. For better understanding of the case the same is being re-produced as hereunder:-
"DEPARTMENT OF OBS. & GYNAE P.T. B.D. SHARMA PGIMS ROHTAK A Board of the following three doctors was constituted to give the opinion about the Patient Mamta W/o Satish Kumar:
1.Dr. Daya Sirohiwal, Assoc. Prof.
2.Dr. Nirmal Dhuan, Reader
3.Dr. Anjali Gupta, Lecturer The opinion, is as under:-
It is stated that the inversion of uterus is a known complication which can occur in third stage of labour. However, the attending Obstetrician/Doctor should have been able to detect and manage the complication at the same sitting by immediate reposition of the inverted uterus before referring the patient for further management.
(Dr. Daya Sirohiwal) (Dr. Nirmala Duhan) (Dr. Anjali Gupta) Assoc. Prof. Obst. Reader Obst. Lecturer Obst. & Gyane & Gyane & Gyane" (Emphasis supplied)
9. It is not in dispute that the Patient was admitted in the Treating Doctor's clinic at 1.20 a.m. with excessive bleeding. It is also admitted that the Treating Doctor was treating the Patient for the first time. In the 'history and examination' dated 01.01.2006 it is stated that the Patient had around three deliveries and three abortions. The history is detailed as hereunder:-
"P1 10 yrs back 0/delivered at home/F&B + P2 8 ½ yrs back 0/FTVF at home/A&H + P3 6 ½ yrs back 0/FTVF at home/A&H + A1 5 yrs back /sp.aration gPUG 3 mm the f/b D&C A2 4 yrs back/sp.aration gPUG 3 mm the f/b D&C A3 3 yrs back/sp.aration gPUG 3 mm the f/b D&C." UPT PUC
10. It is the main case of the Complainant that if the Treating Doctor did not have the equipment to deal with the situation of retention of placenta, she ought to have referred the Patient immediately to a higher Management Centre and that the delay in the referral had deteriorated the condition of the Patient and led to her death. It is pertinent to note that neither in the body of the Complaint nor in the Complaint given to the police, there is a single whisper about inversion of the uterus. It is the Complainant's case that the Treating Doctor had exerted pressure on the Patients' stomach on account of which placenta along with the uterus had come out.
11. The doctor vehemently denied in the Affidavit filed by way of evidence that there are any occurrence of the inversion of uterus and that any pressure was exerted on the Patient's stomach. It is the doctor's case that only the placenta was retained and only because they did not have the facility of administration of general anaesthesia, that the Patient was referred to a higher management centre. The medical literature shows that the watchful expectancy period for coming out of placenta is half an hour. The same has also been supported by Dr. Nirmal Duhan of PGIMS, Rohtak. Therefore, we agree with the contention of the Treating Doctor that she had watched for 20 minutes for the placenta to come out but unfortunately when it was still retained, she referred the Patient to a higher management centre. As far as the waiting period is concerned, we are of the considered view that the Treating Doctor has acted as per standards of normal medical practices.
12. Now we address ourselves to whether there was any delay in the reference of the Patient to PGIMS. It is the doctor's case that the reference was made at 1.40 a.m. on 01.01.2006 and that the said Hospital was only 22 kms. from the clinic but the Patient was admitted only at 3.15 a.m. which shows that there was delay of one hour and 35 minutes and that the Complainant had negligently wasted time and has not explained as to why he took one and half hours to reach PGIMS, Rohtak for which act the Treating Doctor cannot be made liable. The Complainant was unable to explain as to why it took one hour and 35 minutes to reach PGIMS, Rohtak. Be that as it may, the question whether the inversion of uterus had taken place at the clinic of the Treating Doctor or not has to be examined. At this juncture it is significant that we place reliance on the affidavit by way of evidence filed by Dr. Lakshmi Hooda who was physically present and had seen the Patient immediately after the delivery. For better understanding of the case the relevant portion of her statement is reproduced as hereunder:-
"I went there and saw that a healthy male baby was delivered in a full time normal delivery - but placenta was not expelled out - it was retained. Mamta was quite well. Her pulse rate and blood pressure were normal. No P.P.H. As per medical Science management of retained (sic) placenta is to be done under general anesthesia - as there was no arrangement of the same either at the clinic of Dr. Rajindro Sangwan or elsewhere in Sampla - therefore after proper medication and management Mamta was referred to PGIMS, Rohtak at about 1.45 a.m. dt. 01.01.06 for further management and care within ½ hour of delivery on a reference slip with all description of case history and given treatment in my presence - as a case of retained placenta with normal condition of health of both Jacha+Bacha. I further state (sic) that there was no inversion of uterus occurred at the clinic of Dr. Rajindro Sangwan. (sic) It is further stated that retained placenta is apparently an uncomplicated complication in third stage of labour and main cause for retained placenta is grand multipara as per medical science - due to which chances of retention of placenta increases. The attending Doctor is not responsible for retained placenta.
I further state (sic) that under the circumstance of the case - treatment given to Mamta by Dr. Rajindro Sangwan was best to best, if I or any other doctor would have attended Mamta - same treatment would have been given.
I further state (sic) that Dr. Rajendro treated Mamta with practice and procedure generally acceptable under Medical Science of the day - with utmost competence of her skill with full care and caution. I further state (sic) that condition of Mamta when referred to PGIMS, Rohtak was not such that death might have occurred - as her condition was quite normal and stable - only problem was that placenta was retained. I state (sic) that Mamta belong to my village and very well known (sic) to me if her condition would have not been (sic) normal then I myself would have gone with her to PGIMS, Rohtak." (emphasis supplied.)
13. In this Affidavit it is deposed by the Doctor that 'there was no inversion of uterus occurred at the clinic of the Treating Doctor. Only problem was the retention of placenta which could not have been expelled only on account of not having the required facility of general anaesthesia. Therefore, the burden of proof has to be discharged by the Complainant to establish that the inversion of uterus had indeed taken place at the clinic of the Treating Doctor which the Complainant has failed to prove. The material on record does not anywhere evidence that the inversion of uterus had taken place at the clinic of the Treating Doctor. The Treating Doctor was also acquitted by the Additional Chief Judicial Magistrate, Rohtak in Criminal Case No. 528 of 2006/12 vide a decision dated 17.04.2013. The Medical Board has given an opinion regarding the inversion of uterus stating that it is a known complication and that the attending doctor should have been able to detect and manage the complication. The Medical Board nowhere states that the inversion of uterus had taken place at the clinic of the Treating Doctor and has not given their opinion regarding the expulsion of placenta or if there was any negligence on the part of the Treating Doctor in referring the Patient to a higher management centre when there was no facility for treating the Patient under general anaesthesia at her clinic.
14. The Hon'ble Supreme Court in Laxman Balakrishna Joshi Vs. Trimbamk Bapu Godble 1969 AIR 128 has defined the duty of care as under:-
duty of care in deciding whether to undertake the case duty of care in deciding what treatment to give duty of care in the administration of that treatment.
We are of the considered view that in the instant case the Treating Doctor has administered the 'duty of care' as defined by law adhering to the standards of normal medical practices.
15. At the cost of repetition, having regard to the Patient's history of multiple deliveries and abortions, that the Patient had gone to the clinic of the Treating Doctor for the first time in the middle of the night as an emergency, that the Treating Doctor had facilitated delivery of a healthy male baby and referred the Patient to a higher management centre only because she did not have the facility of general anaesthesia especially keeping in view that the same has been also evidenced by the medical literature filed, that the Treating Doctor had adhered to the normal standards of medical practice in waiting for a period of 20 minutes for expulsion of placenta, we are of the considered opinion that there is no negligence on the part of the Treating Doctor and we do not find any illegality or infirmity in the order of the State Commission. Hence this Appeal is dismissed. No order as to costs.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER