State Consumer Disputes Redressal Commission
T.Bhaskar & Anr vs Dr. Sarita Dubey & Ors on 22 December, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/14/08
Instituted on : 17.04.2014
1. T. Bhasker, Aged about 38 years,
S/o Late Shri T. Thangavelu.
2. Smt. B. Shanthi, Aged about 35 years,
W/o Shri T. Bhasker.
Permanent Address of both :
Muthu Salai Street,
Tailors Road, Kilpauk, Chennai - 10 (TN.)
Present Address :
ESW-819, Housing Board Colony,
Tatibandh, Raipur (C.G.).
3. B. Bharat, aged about 4 Years Minor,
Through : Next Friend Mother Smt. B. Shanthi. ... Complainants.
Represented by P.O.A. Holder :
Shri T. Sampathkumar, S/o Late Shri T. Thangavelu,
Muthu Salai Street, Tailors Road, Kilpauk,
Chennai - 10 (TN)
Vs.
1. Dr. Sarita Dubey,
Senior Obstetrician - Gynecologist,
Suprita Hospital, Phaphadih Chowk,
Raipur (C.G.)
2. Smt. Pratima Rathod,
Obstetrician - Gynecologist,
Suprita Hospital, Phaphadih Chowk,
Raipur (C.G.)
3. Suprita Hospital,
Through : The Director, Suprita Hospital,
Phaphadih Chowk,
Raipur (C.G.) ... Opposite Parties
// 2 //
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Harish Sahu, for the complainants
Shri Bhupendra Jain for O.P.No.1.
Shri Shiv Nayak, for O.P.No.2 & O.P.No.3.
ORDER
Dated : 22/12/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainants filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking reliefs as under :-
(a) Compensation to Bharat for permanent loss of Eye Rs.25,00,000/-.
(b) Compensation to the complainants for physical and mental harassment and torture Rs.5,00,000/-.
(iii)Expenses of treatment of Bharat at Chennai and future expenses Rs.10,00,000/-.
(iv) Expenses of towards journey to Chennai Rs.1,00,000/-.
(v) Advocate fees Rs.25,000/-.
(vi) Cost Rs.25,000/-.
2. Brief facts of the complaint are that : complainant No.1 T. Bhasker, is a transporter of iron goods and the complainant No.2 B. // 3 // Shanthi, is wife of the complainant No.1 and complainant No.3 B. Bharat is minor child of the complainant Nos.1 and 2. The complainant No.2 Smt. B. Shanthi, was pregnant in the year 2011 and during pregnancy she was attending Suprita Hospital, (O.P.No.3) as an ante- natal case and was under the treatment and care of Dr. Pratima Rathod, (O.P.No.2). The O.P.No.2 had advised her certain investigations viz. blood test, urine test, blood group and gave her necessary treatment. On 31.10.2011, when the complainant No.2 developed labour pains, she went to the O.P.No.3 hospital where she was admitted by the O.P.No.2 for delivery. That a few hours after admission, the O.P.No.2 informed the complainant Nos.1 and 2 that as the duration of labour was getting prolonged and signs of fetal distress had started appearing, it was necessary that the baby (complainant No.3) should be delivered without further delay with the application of obstetrical forceps. The O.P.No.1 and O.P.No.2 explained that the baby's (complainant No.3) head would be very carefully grasped with the forceps and the baby would be extracted by manual force and assured no injury whatsoever would be caused to the baby (complainant No.3) and the mother (complainant No.2). On the assurance given by the O.P.No.1 and O.P.No.2, the complainant No.1 and 2 gave their consent for forceps delivery and the O.P.No.2 proceeded with application of forceps in the presence of O.P.No.1 and delivered the baby at about 8.27 P.M. on 31.10.2011. That after a few // 4 // hours the baby (complainant No.3) was shown to the complainant Nos.1 and 2. Both the complainants noticed that the baby (complainant No.3) was continuously crying very lustily and was quite restless. They also noticed that there was redness and swelling in and around the baby's (complainant No.3) left eye and there was a whitish patch seen in the cornea of that eye. Complainant Nos.1 and 2 immediately informed the O.P.No.2, who admitted that there was a serious injury to the eye due to application of the forceps but she did nothing to treat the eye and even she did not call Eye Specialist. Thereafter the complainant No.1 took the new born baby in clinic of Dr. Pradeep Jain, who is an Ophthalmologist. Dr. Pradeep Jain examined the eye of the new born baby and informed the complainant No.1 that the baby (complainant No.3) had sustained a serious injury to the left eye which could not be caused by anything else than the forceps delivery and he found that the injury was occurred because the O.P.No.1 and O.P.No.2 negligently and carelessly adopted forceps procedure. Dr. Pradeep Jain advised that since there was every possibility of deeper injury to the eye-ball which could not be managed well at Raipur, the baby (complainant No.3) must be shifted to Sankara Nethralaya, Chennai, the most reputed eye hospital of the country. The baby (complainant No.3) and the mother (complainant No.2) were discharged from hospital (O.P.No.3) on 02.11.2011. The complainant No.1 and 2 reached Sankara Nethralaya, Chennai along with // 5 // complainant No.3 on 04.11.2011, where the experts of Shankara Nethralaya performed an operation and carried out repair of the corneal wound on the same day. It was advised that vitreo retinal surgery of the eye of the baby (complainant) is required, which was to be carried out on 22.11.2011. In the meantime the baby (complainant No.3) was admitted in Kanchi Kamakoti Childs Trust Hospital, Chennai on 04.11.2011 for neo-natal care i.e. care of the new-born. Detailed blood and other investigations were done, necessary treatment was carried out and the baby (complainant No.3) was discharged on 07.11.2011. Thereafter the complainant Nos.1 & 2 went to Chennai along with baby (complainant No.3) where vitreo retinal surgery was performed on 22.11.201 at Sankara Nethralaya. After carrying out the surgery, the surgeons explained the complainant Nos.1 & 2 that eye was very badly and extensively damaged, the retina was also extensively torn and that it could not be repaired and the baby (complainant No.3) is permanently blind with that eye. In the case summary dated 02.01.2012 it has been mentioned that there was a history of forceps delivery following which the parents noticed corneal opacity in the left eye.... The left eye showed gross conjunctival congestion with corneal haze and vertical linear perforation in the centre of cornea.... Baby (complainant No.3) underwent corneal would repair in the left eye on the same day. Subsequently, baby was taken up for vitreo-retinal surgery on 22.11.2011. Intraoperatively, thee was // 6 // total retinal detachment with closed funnel configuration and giant retinal tear. The retina was found to be inoperable. The poor prognosis was explained to the parents. The above problem was occurred because the forceps procedure was negligently and carelessly adopted by the O.P.No.1 and O.P.No.2. As a result of this shock the complainant No.1 fell seriously ill in January, 2012 and developed acute renal Kidney failure and needed kidney transplantation. The OPs committed medical negligence and due to negligence committed by the OPs, the complainant No.3 lost vision of his left eye, therefore, the complainants are entitled to get compensation from the OPs, as mentioned in the prayer clause of the complaint.
3. The O.P.No.1 filed her written statement separately and the O.P.No.2 & O.P.No.3 have filed their written statement jointly, but the defences taken by them, were common in both the written statement. They averred that on 31.10.2011, the complainant No.2 developed labour pains and was admitted for delivery by O.P.No.2 in O.No.3 hospital at 10 A.M. and immediately steps have been taken by the OPs as required from them and best care had been provided to the complainant No.2. The complainant No.2 stated that it was her second delivery in O.P.No.3 Hospital. The first one was in the year when she had forceps delivery at that time also. The O.P.No.1 & O.P.No.2 had never assured to the complainant No.1 & 2 that no injury whatsoever would be caused to the baby and the mother under forceps delivery. In // 7 // fact no Gynecologist can assure her patient about the safety of the baby and the mother in forceps assisted delivery as it involves certain degree of risk and complications in the procedure. When the complainant No.2 first reported in the O.P.No.3 Hospital at about 10.00 A.M. on 31.10.2011, on examination it was found that the head of the baby was floating which meant that a labour would take some time. The complainant No.2 was thereafter repeatedly examined at 12.30 P.M., 3 P.M., 4.30 P.M., 6 P.M., 7.30 P.M. and 8 P.M. At 8 P.M. it was found that uterine membrane of the complainant No.2 was ruptured and the Amniotic Fluid was coming out and the baby's head was at the brim which indicated that the duration of labour was getting prolonged and because of prolonged labour the mother was exhausted and was not bearing down but as the head of the baby was visible at perineum, it was necessary for O.P.No.1 to go for forceps assisted delivery without further delay to save the child and mother. The O.P.No.1 explained the complainant No.1 & 2 about the emergency situation and necessity to use the forceps for the delivery and the risk involved in the procedure; and obtained their written consent for the forceps assisted delivery. The complainant No.2 in presence of complainant No.1 voluntarily and willingly gave her written consent to OPs to go ahead with the forceps assisted delivery. The procedure of forceps assisted delivery involves certain degree of complications and risk of injury to the baby as it is not a normal delivery. Under these circumstances the forceps assisted // 8 // delivery was done at 8:27 P.M. on 31.10.2011 The injury to the left eye of the baby did not occur due to negligent application of forceps by the OPs. After the forceps assisted delivery there was mild postpartum haemorrhage to the complainant No.2, which was a dangerous situation which required O.P.No.1 & O.P.No.2's immediate attention, therefore, the O.P.No.2 & 3 along with O.P.No.1 attended the complainant No.2 immediately to stop the bleeding. In the meantime, during the delivery, Paediatrician Dr. Anju Parakh, was present in the operation theater and was attending the new born baby and had immediately consulted Ophthalmologist Dr. Pradeep Jain and did the dressing as per his advice. When Dr. Anju Parakh noticed the bleeding from the baby's left eye, and at once contacted Ophthalmologist Dr. Pradeep Jain on phone and sought his advice. Dr. Pradeep Jain immediately advised Dr. Anju Parakh for the dressing and to bring the baby to his hospital. Therefore, the complainant No.1 & 2 were immediately asked to go to Dr. Pradeep Jain for the check up, but they themselves decided not to take the baby to Dr. Pradeep Jain's hospital immediately and they went to Dr. Praddep Jain's Hospital on the next day morning. The OPs did not commit any negligence while performing forceps assisted delivery procedure. The above forceps assisted delivery is a complicated procedure even for highly expert Gynecologist, there is always possibility of some injury to the baby, which in the present case was not grievous. However, from the // 9 // perusal of the records submitted by the complainants, it appears that the surgery probably had failed as Intraoperatively there was retinal detachment, which had no nexus with forceps assisted delivery. The case summary of Sankara Nethralaya only suggests that the baby first underwent corneal wound repair surgery on 04.11.2011 and then the baby was taken up for vitreo-retinal surgery on 22.11.2011 and Intraoperatively there was retinal detachment, which indicates that the second surgery had failed, and possibility of negligence from Doctors of Sankara Nethralaya, could not be ruled out. The complainants are not entitled to get any compensation from the OPs and the complaint is liable to be dismissed. The O.P.No.2 & 3 have further averred that the claim, by the newly added complainant No.3 namely child Bharat, through his next friend, is hopelessly barred by limitation , hence the present complaint deserves to be dismissed on this ground alone.
4. The complainants have filed documents. Document A-1 is email sent by Dr. Pradeep Jain to Sankara Nethralaya, Chennai on 01.11.2011 for fixing appointment, A-2 is Discharge Ticket of Suprita Hospital, A-3 is Discharge Summary of Kanchi Kamakoti Childs Trust Hospital, Chennai, A-4 is Case Summary issued by Sankara Nethralaya, Discharge Summary etc. A-5 is registered notice dated 18.01.2012 sent by Shri Sharadendu Pandya, Advocate to Dr. Smt. Pratima Rathod, Obstetrician - Gynecologist, Suprita Hospital, Raipur (C.G.), A-6 are medical bill of Lochan Medical, A-7 is receipt issued by // 10 // Suprita Hospital, Raipur (C.G.), A-8 is Discharge Summary of Sankara Nethralaya, receipt dated 04.11.2011, consolidated bill - break-up- details, inpatient discharge bill, Patient Advance Receipt issued by Sankara Nethralaya, Consolidated Bill - Break-Up Details, Patient Flow Chart, Drug Bill, Receipts issued by Sankara Nethralaya, Surgery Schedule, Inpatient Discharge Bill issued by Sankara Nethralaya, Patient Advance Receipt, Consolidated Bill - Break - Up Details, Drug Bill, Immunization / Vaccination Report, A-9 are IP Receipt - Deposit issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, Out Patient Receipt, issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, railway tickets, Haematology Report, Micro Biology Report, Bio Chemistry Report, Railway Tickets, Bio Chemistry Report, IP Receipt - Final issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, letter dated 07.11.2011 sent by Dr. Rahul Yadav, Consultant Neonatologist,, Kanchi Kamakoti Childs Trust Hospital, Chennai to Dr. Balakrishnan, Department of ENT, KKCTH, Inpatient Bill dated 07.11.2011 issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, Micro Biology Reports dated 09.11.2011 of Kanchi Kamakoti Childs Trust Hospital, Chennai, Clinical Microbiology Requisition Form issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, Haematology & Clinical Pathology Requisition Forum, issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, Out Patient Receipt issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, IP Receipt // 11 //
- Final issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, IP Payment - Refund issued by Kanchi Kamakoti Child Trust Hospital, Chennai, In Patient Bill dated 23.11.2011 issued by Kanchi Kamakoti Childs Trust Hospital, Chennai, General Power of Attorney, documents relating to treatment of the complainant No.2 & 3.
5. The O.P.No.2 & O.P.No.3 have also filed documents. The documents are Medical Note, Annexure OP-2-2 is Consent Letter dated 31.10.2011, OP-2-3 is literature on Complications of Assisted Vaginal Delivery, OP-2-4 is Case Summary issued by Sankara Nethralaya, Chennai.
6. On the basis of averments of the parties, the points for determination are :-
1. Whether the OPs committed medical negligence ?
2. Whether the complainant is entitled to get compensation for negligence committed by the OPs, if yes then to what extent ?
Discussions and its conclusion:
Question No.1 & 2.
7. Shri Harish Sahu, learned counsel appearing for the complainants has argued that at the time of forceps delivery, the complications were not explained by the O.P.No.1 & O.P.No.2 to the complainant Nos.1 & 2 and they assured both the complainants that it is a very safe procedure and is carried out routinely in such cases of // 12 // prolonged labour. The OPs have admitted that when the new born baby was delivered by forceps, he was bleeding from his left eye, which was detected by a child specialist. It was the duty of the OPs to make immediate arrangements to consult the Ophthalmologist, but they remained unconcerned and did not care to shift the baby. Even in the morning they did not take any step to send the baby to Ophthalmologist, therefore, the complainant No.1 alone took the new born baby in his lap to Hospital of Dr. Pradeep Jain, who is an Ophthalmologist. Shri Harish Sahu further argued that the OPs have put up an excuse that the mother was having mild post-partum haemorrhage after delivery and they were busy with her. It was not a serious bleeding. The OPs have not filed any medical record to show that the mother was bleeding and both the doctors became so busy attending on complainant No.2 that they had no time to look at the new born baby. Dr. Pradeep Jain referred the new born baby straight to the famous Super Specialty hospital at Chennai and not to a nearby hospital because he had rightly diagnosed that the eye was seriously damaged. From bare perusal of the case summary given by Dr. Pramod Bhende of Sankara Nethralaya, Chennai, it is established that there was a vertical linear perforation of the cornea which was repaired in the hospital on the same day. Perforation of cornea indicates that the blow to the eye was very severe. There was total retinal detachment with closed funnel configuration and giant retinal tear. The retina was // 13 // found to be inoperable and the eye was crushed. The Ultrasonography Report of the eye of the new born baby was carried out in the Hospital on 19.11.2011 i.e. two days before surgery was to be done. In this report it is mentioned that ".... Total closed Funnel Retinal Detachment noted......choroidal thickening noted ...... Shallow serous Choroidal Detachment noted in the supranasal quadrant......." It appears that the O.P.No.1 & O.P.No.2 negligently and carelessly applied forceps procedure and it is a clear case of Res Ipsa loquitur therefore, the OPs are liable to pay compensation to the complainant, which is mentioned in the prayer clause of the complaint. He placed reliance on Poonam Verma vs. Ashwin Patel & Ors., II (1996) CPJ 1 (SC).
8. Shri Bhupendra Jain, learned counsel appearing for the O.P.No.1 and Shri Shiv Nayak, learned counsel appearing for the O.P.No.2 & 3 have argued that O.P.No.1 & O.P. No.2 have never assured to the complainant Nos.1 & 2 that no injury whatsoever would be caused to the baby and the mother under forceps delivery. In fact no Gynecologist can assured her patient about the safety of the baby and the mother in forceps assisted delivery as it involves certain degree of risk and complications in the procedure. The complainant No.2 came to O.P.No.3 Hospital at 10 A.M. on 31.10.2011. On examination it was found that the head of the baby was floating which indicates that labour would take some time, therefore, the complainant No.2 Smt. B. Shanthi was admitted in the O.P.No.3 Hospital and she was repeatedly // 14 // examined by the O.P.No.1 & O.P.No.2. There was prolonged labour pain and mother was exhausted and was not bearing down , but as the head of the baby was visible at perineum, therefore, it was necessary for the O.P.No.1 to go for forceps assisted delivery without further delay to save the child and mother, which was duly explained to the complainant No.1 & 2 and they gave their consent freely and voluntarily, then forceps delivery was carried out. After the forceps assisted delivery, there was mild postpartum haemorrhage to the complainant No.2, which was a dangerous situation, which required immediate attention, therefore, steps have been taken by the O.P.No.1 & 2 to stop the bleeding. During the delivery, Paediatrician Dr. Anju Parakh was present in the operation theatre and when she found that some injury was present in the left eye of the new born baby, she immediately contacted Dr. Pradeep Jain, Ophthalmologist, who advised for dressing and following his advice, dressing was carried out immediately. The O.P.No.1 & 2 advised the complainant No.1 & 2 to take the new born baby to Dr. Pradeep Jain, Ophthalmologist , but they did not immediately contacted Dr. Pradeep Jain and they contacted Dr. Pradeep Jain on next day morning. The complainant No.1 & 2 themselves caused delay. Learned counsel for the OPs further argued that The case summary of Sankara Nethralaya only suggests that the baby first underwent corneal wound repair surgery on 04.11.2011 and then the baby was taken up for vitreo-retinal surgery on 22.11.2011 and // 15 // Intraoperatively there was retinal detachment, which indicates that the second surgery had failed, and possibility of negligence from Doctors of Sankara Nethralaya, could not be ruled out. The OPs have not committed any negligence, therefore, the complaint is liable to be dismissed. They placed reliance on Malay Kumar Ganguly vs. Sukumar Mukherjee (Dr.) & Ors., III (2009) CPJ 17 (SC); Kusum Sharma & Ors. vs. Batra Hospital & Medical Research Centre & Ors., I (2010) CPJ 29 (SC); Harsh Amit Kumar Sheth (Minor) & Ors. vs. Sheth Hospital And Maternity Home & Ors., IV (2012) CPJ 350 (NC); Yasmin Sultana & Anr. vs. Dr. Rupaben D. Patel & Anr. II (1998) CPJ 40 (NC).
9. We have heard learned counsels appearing for the parties and have also perused the documents filed by the parties in the complaint case.
10. In P.B. Desai (Dr.) vs. State of Maharashtra & Anr. IV (2013) CPJ 63 (SC), Hon'ble Supreme Court has held that:
"31. However, a failure to act, by itself does nothing to screen out mere fantasies. It is the actor's failure to act in the light of his capacity to do so that suggests the actor's willingness to go beyond mere fantasizing and to have the harm or evil of the offence occur. Even then however, the screening effect seems weak; "letting something happen" simply does not carry the same implication of resolute intention that is shown in causing something to happen by affirmative action. While an actor's failure to perform a legal duty provides some evidentiary support for the existence of an intention to have the harm or evil occur, the force of the implication is similarly week. Inaction often carries no implication of intention unless it is // 16 // shown that the actor knows of his or her duty to act and the opportunity to do so.
32. Liability for an omission requires a legal duty to act; a moral duty to act is not sufficient. The duty may arise either from the offence definition itself or from some other provision of criminal or civil law. A duty arises from the former when an offence is defined in terms of omission. This is the situation where the Legislature has made it an offence. A legal duty to act may also be created by a provision of either criminal or civil separate from the offence charged. For example, a duty under the Maharashtra Medical Council's Code of Ethics and Maharashtra Medical Council Act, 1965.
39. It is not necessary for us to divulge this theoretical approach to the doctor-patient relationship, as that may be based on model foundation. Fact remains that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to teat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief :
(a) to continue to treat, except under certain circumstances when doctor can abandon his patient;
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing."
(d) Not to undertake any procedure beyond his control:
This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating complicated case.
(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/ // 17 // knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.
Conclusion: The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent right and duties, forming the basis of liability of a medical practitioner, due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor-patient relationship from the foundation of legal obligations between the doctor and the patient.
In the present case, as already held above, doctor-patient relationship stood established, contractually, between the patient and the appellant.
(2) Duty of Care which a doctor owes towards his patient.
40. Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal 'duty to treat' may arise in a contractual relationship or Governmental hospital or hospital located in a public sector undertaking. Ethical 'duty to treat' on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of his Code deals with 'Obligation to the Sick' and Clause 13 cast obligation on the part of the doctors with the captioned "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before relevant Disciplinary Committee constituted by the concerned Stated Medical Council.
11. In Malay Kumar Ganguly vs. Dr. Sukumar Mukharjee and others (Supra), Hon'ble Supreme Court has observed thus :-
"The standard of duty to care in medical services may also be inferred after factoring in the position and stature of doctors concerned as also // 18 // the hospital : premium stature of services available to patient certainly raises a legitimate expectation. The Court is not oblivious that source of the said doctrine is in administrative law. A little expansion of the said doctrine having regard to an implied nature of service which is to be rendered, would not be quite out of place. AMRI makes a representation that it is one of the best hospitals in Kolkata and provides very good medical care to its patients. Senior Counsel appearing for the respondents, when confronted with the question in regard to maintenance of the nurses' register, urged that it is not expected that in AMRI regular daily medical check-up would not have been conducted. The Court thought so, but the records suggest otherwise. The deficiency in service emanates therefrom. Even in the matter of determining deficiency in medical services, if representation is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in services would be presumed".
"Patients, by and large are ignorant about disease or side of adverse effect of a medicine. Ordinarily patients are to be informed about admitted risk, if any. If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout. It was not done in the instant case. Law on medical negligence also has to keep up with advances in medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatment especially when line of treatment is a contested one, and hazards are involved. Standard of care in such cases will involve duty to disclose to patients about risk of serious side effects or about alternative treatments. In the times to come, litigation may be based on theory of lack of informed consent. A significant number of jurisdictions determine existence and scope of doctor's duty to inform based on information a reasonable patient would find material in deciding whether or not to undergo proposed therapy. In this respect, the only reasonable guarantee of a patient's right of bodily integrity and self- determination is for the courts to apply a stringent standard of // 19 // disclosure in conjunction with a presumption of proximate cause. At the same time, a reasonable measure of autonomy for doctor is also pertinent to be safeguarded from unnecessary interference".
12. In M/s Singhal Maternity and Medical Centre & Anr. vs. Master Nishant Verma & Ors., 2014 (2) CPR 464 (NC), Hon'ble National Commission has observed thus :-
"11. What constitutes medical negligence based on the touchstone of the Bolam's test [Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582], is well settled through a number of judgments of the Hon'ble Supreme Court, including in Jacob Mathew Vs. State of Punjab & Anr. (supra) and Indian Medical Association vs. V.P. Shantha and Ors. [(1995) 6 SCC 651]. Gleaned from these judgments, the issues pertaining to what constitutes medical negligence, inter alia are (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice of clinical observation diagnosis - including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. In this connection, the Hon'ble Supreme Court in Jacob Mathew (supra) elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of England (4th Edn., Vol. 30, para 35, as follows :-
"35. 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 competent, 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 // 20 // would have prescribed different treatment or operation in a different way,.."
13. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is 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 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 // 21 // 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.
(3) 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.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised 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.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring 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.
// 22 // IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can // 23 // perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
14. In Dr. Laxman Balkrishna Joshi v. Dr. Trimnsk Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed that "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose, such a person when consulted by a patient owes him certain duties, viz.. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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 // 24 // in the light of the particular circumstances of each case is what the law requires".
15. In Poonam Verma vs. Ashwin Patel and others, (Supra), Hon'ble Supreme Court has observed that :-
"42. We cannot ignore the usual practice of almost all the Doctors that when they want pathological tests to be done, they advice in writing in a prescription setting out all the tests which are required to be done. Admittedly, respondent No.1 had not done it in writing. He says that he had advised it orally. This cannot be believed as this statement is contrary to usual code of conduct of medical practitioners".
16. In Prabhashankar vs. Neel Mani Rai, 2010 (1) CPJ 62 (NC), Hon'ble National Commission has observed thus :-
"9. Onus to prove negligence is on the party who alleges medical negligence.
10. A medical practitioner was not liable to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to other".
17. In Senthi Scan Centre vs. Shanthi Sridharan & Anr. III (2011) CPJ 54 S.C., Hon'ble Supreme Court has observed thus :-
"Negligence in diagnosing - Forum below allowed complaint - Hence special leave to appeal - contention negligence not proved - Accepted - No expert evidence to controvert case of centre that doctor who conducted ultrasound was highly qualified".
// 25 //
18. In Md. Abrar Vs. Dr. Ashok Desai MANU/CF/0104/2011 (NC), Hon'ble National Commission has observed thus :-
"There is no dispute about the fact that the Respondent No.1 - Dr. Ashok Desai is an experienced Orthopedic Surgeon. There is no substantial reason to dislodge his version regarding the medical care taken by him while conducting the operations and giving of the treatment to the appellant. As against this the appellant has no knowledge of medical science and is totally dependent on affidavit filed by Shakir Ali......................
Or Furthermore Dr. Shakir Ali is not an expert witness. He is only MBBS and is a general practitioner. He does not claim to have any specialized knowledge in the field."
19. In Paramjit Singh Garewal vs. Charanji Singh Chawla 1 (2007) CPJ 125 (NC), Hon'ble National Commission has observed thus :-
"Doctors write correct notes in the operation record and discharge summary".
20. In Ajit Kumar Ray Vs. Amitabh Mishra, IV (2012) CPJ 84 (NC), Hon'ble National Commission has observed thus :-
"Medical negligence - Expert Evidence - Blood clotted in brain - Memory loss and breathing problem suffered - patient went into coma
- death of patient - No expert was examined by complainant to prove that treatment given by doctors was negligent and proper diagnosis not administered no evidence that medicine administered to patient in excess - except the ipse dixit of complainant there is no material on record to support his assertion - Demand of huge bills must have annoyed the complainant he countered his attack by filing instant"
// 26 //
21. In Harsh Amit Kumar Sheth (Minor) & Ors. vs. Sheth Hospital And Maternity Home & Ors., (Supra), Hon'ble National Commission has observed that "Medical Negligence. Forceps delivery of child. Marks of injury found on baby. No movement in right side of infant. Alleged deficiency in service. State Commission dismissed complaint. Hence appeal. Child was detected with Brachial Palcy which was linked to shoulder dystocia. Forceps delivery was necessary for delivery. This was the only option available otherwise Infant could have suffered from hypoxia which is a severe mental retardation. Allegation that injury occurred because child was dropped while handing him over to nurse does not inspire confidence. Adequate pre-natal care was taken and various tests including physical and chemical examination, blood tests, etc. were done. Negligence on part of doctor not proved."
22. It is not disputed that the complainant No.2 Smt. B. Shanthi, was admitted in the O.P.No.3 Hospital on 31.10.2011 and forceps delivery was carried out. It is also not disputed that the injury was found in the left of the new born baby (complainant No.3).
23. The complainants have filed Discharge Ticket of Suprita Hospital (O.P.No.3) marked as A-2, in which date of admission of complainant No.2 is mentioned 31.10.2011, date of discharge is mentioned 02.11.2011 and against the column of delivery it is mentioned Forceps Labour with EM. In the above discharge ticket, it is also mentioned that "Baby had injury in left eye". It appears that // 27 // forceps delivery was carried out and due to forceps delivery, the baby (complainant No.3) sustained injury in his left eye.] 24 In the literature of "Forceps delivery and complication", it is mentioned thus :-
"Forceps delivery and complications :
The review article by Patel and Murphy gives a concise and clear overview of the current state of play regarding the use of forceps in modern obstetric practice. The article addressees the issue of third degree tears, but does not discuss the occult sphincter injury that may lead to symptoms later in life. The incidence of endosonographic sphincter damage following forceps delivery has been reported in 83% of forceps deliveries when studied prospectively, and this was supported by manometric abnormalities in these patients (1). Faecal incontinence which develops in women in later life (age 60-70 years) has been associated with previous obstetric sphincter injury in 70% of patients, in whom a sphincter defect can be demonstrated unltrasonographically (2).
Forceps Delivery Errors The use of forceps to assist in a difficult delivery has been common practice for a long time. In general, forceps are meant to grasp the baby around the head when the doctor has a difficult time reaching it, and help to gently slide the baby out of the mother's womb. Unfortunately, this does not always occur.
The decision to use forceps to assist in a delivery must be carefully considered by the doctor who is delivering the baby. The mother must be in the second stage of labor before an assisted delivery can even be contemplated. Failure to do so can result in permanent injury to the baby as well as to the mother.
Forceps Forceps are smooth metal instruments that look like large spoons or tongs. They are curved to fit around the baby's head. The forceps are carefully positioned around your baby's head and joined together at the // 28 // handles. With a contraction and your pushing, an obstetrician gently pulls to help deliver you baby.
There are many different types of forceps. Some forceps are specifically designed to turn the baby to the right position to be born, such as if your baby is lying facing upward (occipito-posterior position) or to one side (occipito-lateral position).
Forceps are more successful than ventouse in delivering the baby, but a ventouse is less likely to cause vaginal tearing. What are the risks of a ventouse or forceps birth ? Ventouse and forceps are safe ways to deliver a baby, but there are some risks that should be discussed with you. Your obstetrician or midwife should also discuss the reasons for having an assisted birth, the choice of instrument (forceps or ventous), and the procedure for carrying out an assisted birth. The risks are listed here.
Vaginal tearing or episiotomy :
This will be repaired with dissolvable stitches.
Eye injuries :-
Minor injuries such as periorbital oedema, subconjunctival haemorrhages and retinal haemorrhages can occur after spontaneous and assisted vaginal delivery. These are usually trivial and of no long- term significance. Retinal haemorrhage is more common with vacuum assisted delivery compared with spontaneous and forceps delivery".
25. In the Discharge Ticket (Document A-2) of Suprita Hospital (O.P.No.3) it is mentioned that the "baby had injury in left eye and Ophthalmologist consulted, diagnosed as corneal injury", but the name of the Ophthalmologist, who was consulted, has not been // 29 // mentioned and even the date was not mention when the baby was sent to the Ophthalmologist. On the contrary, the complainants specifically pleaded that the O.P. No.1 & O.P.No.2 did not care regarding injury of the baby, therefore, the complainant No.1 alone took the new born baby in his lap to Hospital of Dr. Pradeep Jain, who is an eye specialist. Document A-1 is email / letter sent by Dr. Pradeep Jain, to Sankara Nethralaya, Chennail on 01.01.2011. In Annexure A-1 it is mentioned that "Please fix appointment for a two day old child of mother MRS. B. SHANTI in trauma trauma unit or pediatric ophthalmology unit on 04..11.2011. Please confirm by return call".
26. The above email / letter was sent by Dr. Pradeep Jain to Sankara Nethralaya, Chennai on 01.11.2011. The forceps delivery was carried out on 31.10.2011. The baby was taken to Hospital of Dr. Pradeep Jain on 01.11.2011. If the O.P.No.1 & O.P.No.2 would have contacted Dr. Pradeep Jain and sought instructions from Dr. Pradeep Jain, then definitely they would have mentioned regarding the advice given by Dr. Pradeep Jain and Dr. Pradeep Jain, would have also mentioned in his letter regarding the advice obtained by the O.P.No.1 & 2. It appears that the O.P.No.1 & O.P.No.2 did not take care immediately regarding the injury sustained by the new born baby (complainant No.3) and proper care was not taken by the O.P.No.1 & 2.
// 30 //
27. The document A-3 is Discharge Summary dated 07.11.2011, issued by Kanchi Kamakoti Childs Trust Hospital. In the said document, it is mentioned thus :-
"DELIVERY HISTORY :
Infant was delivered by normal vaginal delivery using forceps...."
SUMMARY :
Baby was notice to have left corneal tear requiring repair at Sankara Nethralaya...."
28. In Discharge Summary dated 23.11.2011 issued by Kanchi Kamakoti Child Trusts Hospital, Chennai, it is mentioned thus :-
"DELIVERY HISTORY :
Infant was delivered by normal vaginal delivery using forceps...."
SUMMARY :
Baby was noticed to have left corneal tear requiring repair at Sankara Nethralaya. 21 old baby with LRFT CORNEAL TEAR, underwent Vitreoretinal surgery at Sankara Nethralaya on 22.11.11. Baby was transported here for post operative care....".
29. The document A-4 is Case Summary dated 02.01.2012 issued by Sankara Nethralaya, Chennai. In the said document, it is mentioned thus :-
"CASE SUMMARY "Baby of Shanthi (OUR MRD NO. 2537219) a 04 day old baby reported to us on 04.11.2011. There was a history of forceps delivery // 31 // following which the parents noticed corneal opacity in the left eye. The baby was referred to us for further management.
On examination, the vision could not be assessed. Anterior segment examination of the right eye revealed subconjunctival hemorrhage at 3 O'clock limbus, cornea was clear. Anterior chamber well formed and lens was clear. The left eye showed gross conjunctival congestion with corneal haze and vertical linear perforation in the center of the cornea. Rest of the details could not be commented upon. Finger tension was within normal limits in both eyes. Fundus examination of the right eye revealed normal disc, attached retina and pre retinal hemorrhages inferior to the macula.
Baby underwent corneal wound repair in the left eye on the same day".
Subsequently baby was taken-up for vitreoretinal surgery on 22.11.2011. Intraoperatively there was total retinal detachment with closed funnel configuration and giant retinal tear. The retina was found to be inoperable. The poor prognosis was explained to the parents."
30. The OPs pleaded that after forceps assisted delivery, there was mild postpartum haemorrhage to the complainant No.2, which was a dangerous situation, which required immediate attention, therefore, the O.P.No.2 & O.P.No.3 along with O.P.No.1 attended the complainant No.2 immediately to stop the bleeding. The above contention of the OPs is not supported by medical documents. In Discharge Ticket (Document A-2) of Suprita Hospital (O.P.No.3) it is simply mention "Forceps labour with EM". In the said Discharge Ticket, it is not mentioned that the complainant No.2 was having mild postpartum haemorrhage. According to the literature on // 32 // Complications of Assisted Vaginal Delivery the minor injuries such as periorbital oedema, subconjunctival haemorrhages and retinal haemorrhages can occur after spontaneous and assisted vaginal delivery which are usually trivial and of no long term significances. But in the instance case, the injury sustained by the baby (complainant No.3) in his left eye is serious in nature. According to the Report of Sankara Nethralaya, Chennai (document A-4), "Intraoperatively, there was total retinal detachment with closed funnel configuration and giant retinal tear The retina was found to be inoperable. The poor prognosis was explained to the parents."
31. From perusal of the Reports of Sanakara Nethralaya, Chennai and Kanchi Kamakoti Childs Trust Hospital, Chennai, it appears that the injury sustained by the baby (complainant No.3) in her left eye, is serious in nature, which indicate that forceps procedure was applied by the O.P.No.1 & 2 negligently and carelessly and due to the negligent act of the O.P.No.1 & O.P.No.2, the baby (complainant No.3) sustained injury in her left eye and he lost vision of left eye completely.
32. The O.P.No.2 & O.P.No.3 have raised objection that the claim by the newly added complainant No.3 namely child Bharat, through his next friend, is hopelessly barred by limitation. The above contention of the O.P.No.2 & 3 is not acceptable.
// 33 //
33. The complainant No.3 is minor. When he was made as a party, at that time his age was only 4 years. The instant complaint has been filed by the patents on behalf of the minor, who is near about 4-5 years and is still minor, therefore the complainant No.3 is under legal disability and the limitation for filing complaint, will be started when he will attain majority, hence, the complaint is not barred by time for complainant No.3.
34. From the above discussions, we are satisfied to hold that the complainants prima facie established that the O.P.No.1 & O.P.No.2 carried out forceps delivery negligently and carelessly resulting which the complainant No.3 lost vision of his left eye. The O.P.No.1 & O.P.No.2 did not properly take care the baby (complainant No.3) after delivery . Dr. Anju Parakh, Paediatrician found that new born baby sustained injury in his left eye, but the O.P.No.1 & O.P.No.2 did not bother to take care the injury of the baby (complainant No.3), which indicates that the O.P.No.1 & O.P.No.2 did not take due precaution and care which comes within definition of medical negligence. The complainants have been able to prove that the OPs have committed medical negligence and the OPs are liable to compensate the complainants for their negligent act. The complainants are entitled to get compensation from the OPs.
35. Now we shall examined the quantum of compensation to be awarded in favour of the complainants ?
// 34 //
36. In the instant case, the complainants sought compensation as mentioned in para 21 of the complaint, which is very exaggerated and excessive. It is established that the complainants visited Sankara Nethralaya, Chennai twice and operation was conducted there and the complainant No.3 was admitted in Kanchi Kamakoti Childs Trust Hospital, Chennai firstly for the period from 04.11.2011 to 07.11.2011 and subsequently from 22.11.2011 to 23.11.2011 and they spent money in the operation and treatment, therefore, it is just and proper to award lump-sum amount of Rs.10,00,000/- (Rupees Ten Lakhs Only) to the complainants as compensation.
37. In view of above discussions, we partly allow the complaint filed by the complainants and direct the OPs to jointly and severally pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) to the complainants as compensation within two months from the date of this order and will also pay simple interest @ 9% p.a. on the above amount from the date of this order till realisation of the above amount. The OPs will also pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) to the complainants towards cost of the litigation. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /12/2015 /12/2015 /12/2015 /12/2015