National Consumer Disputes Redressal
Dr. Saud Abbasi vs Gargi Hospital & Ors. on 17 June, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 185 OF 2011 1. DR. SAUD ABBASI S.D. 511, Shastri Nagar, Ghaziabad U.P. ...........Complainant(s) Versus 1. GARGI HOSPITAL & ORS. R-9/182, Raj Nagar,
(Near ALT Centre) Ghaziabad U.P. 2. Dr. Rahul Garg C/o. Gargi Hospital, R-9/182, Raj Nagar, (Near ALT Centre) Ghaziabad U.P. 3. Dr. Kiran Garg C/o. Gargi Hospital, R-9/182, Raj Nagar (Near ALT Centre) Ghaziabad, U.P. 4. Dr. Reshi Arya C/o. City Central Hospital, 5, Jangni Gunj, Ghantaghar, Opp. Sahid Bhagat Singh Samarak Main G.T. Road Ghaziabad ...........Opp.Party(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Complainant : For the Opp.Party :
Dated : 17 Jun 2020 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For Complainant
:
Mr. Udayan Jain, Advocate
Mr. Sonal Jain, Advocate
Mr. Kamal Sharma, Advocate
Mr. Manoranjan Padhi, Advocate
with Complainant in person
For OPs No. - 1 to 3
:
Mr. Joy Basu, Senior Advocate with
Dr. M.C. Gupta, Advocate
Mr. Kanak Bose, Advocate
Mr. Abhinav, Advocate with
OP-3 in person
For OP No. - 4
:
Mr. R. K. Sharma, Advocate
PRONOUNCED ON: 17th June 2020
ORDER
PER DR. S. M. KANTIKAR, PRESIDING MEMBER In the recent days Cerebral Palsy (CP) is one which justifiably haunts modern obstetric practice which is apparently the fear of medico-legal litigation. However, with the advancement in medical science, the fact that fetal hypoxia is not the causative factor in the great majority of Cerebral Palsy cases.
Complaint:
1. The complainant Dr. Saud Abbasi, is a practicing BUMS doctor. His wife Smt. Shirin during her pregnancy was under treatment of Dr. Kiran Garg (OP-3) at Gargi Hospital (OP-1). On 01.06.2009 the OP-3 examined her and advised for regular follow-up till her delivery. The patient attended her regular check-ups on 16.07.2009, 30.09.2009, 27.10.2009, 14.12.2009 and 06.01.2010. On each occasion OP-3 examined her and issued hand-written prescriptions. Also, certain blood tests and USG were conducted for assessment of maternal health and the fetal growth. All the results were within the normal parameters. On 19.01.2010 for the first time, the patient started having slight labour pain and on the advice of OP-3, she was remained in her house and she was asked to come to hospital (OP-1) when the labour pain increases. On 21.01.2010, at about 4.00 pm, the patient started getting severe labour pain and immediately her husband/complainant contacted OP-3 over the phone, who advised to bring the patient immediately in the hospital. It was alleged that on reaching the hospital, it came to notice that OP-3 was not available and on inquiry, the hospital staff assured the complainant that OP-3 is rushing back to the hospital soon and she would personally conduct the patient's delivery. Same assurance was given by the CEO of the hospital Dr. Rahul Garg (OP-2). The patient got admitted in a private deluxe room.
2. It was alleged that though the patient was crying and suffering from severe labour pain, the OP-2 kept assuring that the Dr. Kiran Garg (OP-3) is on her way and will be reaching the hospital soon. The time was progressing with the labour pain and on repeated inquiry with the hospital staff, the complainant learnt that the OP-2 called one Dr. Rishi Arya (OP-4), a consultant gynecologist to visit and see the patient. Three hours after admission were elapsed, but the OP-3 was not available; therefore the complainant asked OP-2 to shift his wife to another hospital, but OP-2 again assured of no reason to panic, the OP-3 will be reaching shortly at around 7.30 pm. Thereafter, the patient was shifted to labour room on the instruction of OP-2, though gynecologist / obstetrician was not available in the hospital. The OP-2 who was a pediatrician, he was instructing the nurses in labour room to give injections and apply more fundal pressure in order to induce delivery. In the meantime at about 9.30 pm, Dr. Rishi Arya (OP-4) came to the hospital and examined the patient. She informed the OP-2 that the head of child was visible but, it stuck in the mother's pelvic bones. It was further alleged that, at about 10.15 pm, the complainant discussed with the OP-4 about possible remedy in such situation and told the OP-4 to perform delivery by the lower segment caesarian section (LSCS) to avoid complications to the mother and child. However, the OP-4 telephonically discussed with Dr. Kiran Garg (OP-3), but OP-3 instructed to wait for her arrival because it was her patient. Therefore, OP-4 did not perform LSCS. The complainant became helpless and waited till the arrival of OP-3. The necessary formalities of signing the consent form etc. were done. Till 11 PM, there was no correct information about the arrival of OP-3 , finally the complainant lost his patience and he told the OP-2 that he cannot wait further for OP-3 and LSCS should be done immediately in the interest of child and mother. Therefore, a call was sent to the Anesthetist Dr. Naresh Batra, and till his arrival the labour room staff was giving fundal pressure repeatedly in order to hasten the delivery.
3. At about 11.45 pm, Dr. Kiran Garg, OP-3 arrived and for the first time she disclosed that she had gone to Chandigarh for her daughter's P.G. medical entrance exam and returned late due to train journey. On knowing the truth, the complainant got angry and told the OP-3 that if he would have been informed earlier that she was in Chandigarh, then he would not have waited in the OP-1 hospital for delivery. Since, the OP-3 arrived; complainant requested OP-3 to perform LSCS expeditiously. Then, the OP- 4 Dr. Rishi Arya told that after arrival of OP-3 now it was not her headache anymore and Dr. Rishi Arya left the hospital. The OP-2 and 3 went inside the operation theatre (OT) and told the nurses to apply extra fundal pressure and gave injections to increase the labour pain. It was alleged that, both the doctors were not attentive to the patient, they were talking about the P.G. entrance test. The Anesthetist was still not available. The Anesthetist arrived at about 1 am, and finally the LSCS was performed after long waiting for five hours after admission of patient. At 1.45 AM one attendant came out from the OT and in a mere dismal manner informed that a male child was born. The complainant was shocked and rushed to nursery to see the new born child but, to his surprise, he noticed the OP-2 and nursing staff were giving oxygen to the new born baby with the help of ambu-bag. The display panel showed reading 74. The mother (patient) was shifted to the ICU. The complainant requested the OP-2 to shift the new born immediately to the ventilator support as child was showing abnormal O2 saturation level. The pediatrician (OP-2) told the complainant that the hospital (OP-1) does not have facility for ventilator support and the new born baby suffered some insult during the delivery process; need to shift at higher center having Neonatal Intensive Care Unit (NICU). After signing the consent form, the new born was shifted at 2.20 AM (22.01.2010) to the NICU in Yashoda Super Specialty Hospital. The OP-2 accompanied while shifting to Yashoda Hospital. Dr.Arun Kumar examined the new born, done re-intubation and baby was put on ventilator support. The baby suffered few seizures and its condition was deteriorating. Therefore, Dr. Arun Kumar advised the complainant to take the child to Apollo Hospital for further management.
4. On the same day, the new born baby was shifted to Apollo Hospital. The baby remained there under treatment of Dr. Vidhya Gupta, Dr. Abha Gupta and Dr. Sharmila Gupta and discharged after 13 days on 05.02.2010. In the meantime on 26.01.2010 the patient (mother) was discharged from the OP-1 hospital. Thereafter,the baby was under regular follow-up at Apollo Hospital till 17.03.2010. The Neurodevelopment assessment was done by Dr. Veenit B. Gupta, the Pediatric Neurologist. The baby's head circumference was 37.2 cm, it was normal to the age, therefore "microcephaly" was ruled out. The MRI brain revealed multiple cystic encephalomalacia. The baby was called for review after three months.
On 07.02.2010, complainant took the baby to AIIMS whereby it diagnosed as "Spastic QP" (Quadruplagia) i.e. cerebral palsy with moderate mental retardation. Dr. Shefali Gulati, the well-known Neuro-Pediatric consultant at AIIMS examined the MRI and EEG, opined the case as "Bilateral Fronto-Central Epileptiform Abnormality with cystic encephalomalacea". According to Prof. Dr. Veena Kalra it was due to prolonged labour and birth asphyxia. In AIIMS the child was given physiotherapy, treatment for hearing and visual impairment, but there was no satisfactory improvement. The child was taken to Institute of Child Development on 30.06.2010.
5. Thereafter, the complainant was constrained to take his child for Stem Cell therapy at Nutech Medi World, New Delhi. The child was investigated for the Spect Scan, EEG, Diligence Quel, Head Circumference, TORCH Test and Chromosomal Analysis. All the investigations were normal. On 21.01.2011 the child was shown to Dr. Major R.K. Sabrawal, the specialist in Pediatric Neurology & Epilepsy at Sir Gangaram Hospital who told that the child would not be able to regain brain development and would be dependent for the whole of life.
6. The complainant alleged that due to the negligence of OP-2, the caesarian operation was delayed and the baby with severe brain damage was born. It was greed and unprofessional behavior of OPs - 2, 3 and 4 caused irreparable loss to the life of mother and the child. The complainant spent huge sum for the treatment. The child needs continuous medical treatment throughout its survival. Being aggrieved the complainant filed a complaint before this commission against the OPs-1 to 4 for committing gross medical negligence and deficiency in their services and sought compensation of Rs. 4,86,82,015/- jointly and severally from the opposite parties.
DEFENCE:
7. The OPs-1, 2 & 3 have filed their joint written version and the OP-4 filed her written versions. All the OPs have denied the allegations. They raised preliminary objections like the Commission lacks pecuniary jurisdiction and the claim of the complainant was unrealistic to bring the jurisdiction of National Commission. The complaint is non-joinder of proper parties i.e. insurance co.
Written version of OPs -1,2 & 3:
8. The complainant is a practicing doctor and had close professional and personal relationships with the OPs 1, 2 & 3. He used to refer and admit his patients to OP-1. On his clinic's letter-head, it was clearly printed that for emergency, his patients are treated at Gargi Hospital (OP-1). The complainant was fully conversant with the working of the hospital and the facilities available therein. In past his family members got free of cost treatment at OP hospital. In the year 2007, entire treatment his wife's previous pregnancy including delivery was done free at OP hospital. Therefore, he was expecting free services for the present 2nd delivery, and therefore he withheld the consent for LSCS to OP-4. He had apprehension that the charges to be paid to the OP-4, if she operates.
9. The OP-2 & 3 stated that the complainant and his wife (patient) themselves were negligent, did not follow the advice of OP-3 for regular antenatal check-up (ANC) during the pregnancy. Thus it was a case of contributory negligence. The OP-3 advised the complainant to get his wife admitted immediately in hospital on 19.01.2010, because of the leaking PV and her feverish condition. It was suggestive of serious infection which may adversely affect the outcome of pregnancy and the health of child. However, the complainant ignored the advice and never brought his wife to the OP-1 hospital for next two days. The same was mentioned in the discharge summary of Apollo Hospital. The OP-3 told him about her non-availability on 21.01.2010 as she had gone to Chandigarh for the counseling of his daughter's PG medical course and she would not be back till midnight. OP-3 advised the complainant to take patient any other hospital of his choice; however, he brought the patient to OP-1 hospital. Thus, the complainant knowingly that the OP-3 was out of station on 21.01.2010, got forcibly admitted his wife in the OP-1 hospital. Further, the complainant was personally present by the side of his wife and kept on instructing the nursing staff and he did not allow the other gynecologists on the panel of the hospital to examine his wife. As a matter of fact, his attitude was very rigid and adamant for the need of any gynecologist to examine his wife.
10. The OP-2 & 3 denied that they told the nurses to put whatever extra fundal pressure that was required to push the baby out. The OPs further submitted that at 9.30 PM the OP-4 examined the patient and found difficulty in delivery because of descent of head of the baby in the pelvis and suggested the complainant for patient's urgent caesarian section operation. The complainant did not follow the advice of Dr. Rishi Arya (OP-4) and at 10.15 PM he refused to give consent for LSCS. The complainant consented for operation only when OP-3 Dr. Kiran Garg arrived from Chandigarh at 12 midnight. The emergency caesarian section was performed and full term male baby was born at 1.21 AM. The pediatrician, OP-2 noted that baby had poor muscle tone and poor respiratory effort, therefore needs neonatal ICU and ventilatory support and accordingly advised the complainant to shift the baby to Yashoda Hospital. The OP hospital had no ventilator facility. Initially the baby was admitted in Yashoda hospital and then shifted to Apollo hospital; therefore there was no negligence in the delivery and post-delivery management on the part of any OPs.
11. The OPs further submitted that, the complainant failed to produce complete medical record of the Apollo Hospital. He filed false, forged and fabricated documents (page no. 145 and 146). The fabricated two blood reports which purportedly showed no evidence of TORCH infection. Such infection can cause microcephaly and brain damage to the child in the utero (womb). According to diagnosis of Maj. Dr. Sabrawal it clearly suggests the microcephaly of the child caused during the development of nervous system in the pregnancy. The child perhaps had exposure to intra-uterine Herpes infection. The OPs further submitted that the conduct of complainant was fraudulent and filed a false affidavit. In view of the fraud played by the complainant, the OPs were forced to lodge the police complaint and the case has been registered as crime case no. 571/2012 under section 420, 467 & 468 IPC.
Written statement of OP-4
12. The OP-4 Dr. Rishi Arya submitted that the complaint is not maintainable against her. She is running her own clinic at City Centre Hospital. Therefore, she was neither a visiting doctor nor a consultant on the panel of Gargi Hospital. Her name is not registered in the Gargi Hospital. It was the professional jealousy of OP-1, 2 and 3 with OP-4; therefore, the complainant filed this complaint in collusion with OP 2 and 3 ad her name was dragged with ulterior motives. The OP-4 denied that at the time of alleged incident, and stated that on 21.01.2010 at about 9.30 PM, she was in her own clinic and attended three patients namely Ms. Arti, Mrs. Anamika Prasad and Ms. Anjana Kansal at 7.50 pm, 9.40 pm and 10.25 pm respectively, therefore, there was no question of coming over to Gargi Hospital (OP-1) to conduct delivery of the patient. The OP-1 to 3 has failed to show any proof of payment made for her alleged visit on 21.01.2010 to see the patient in OP-1 hospital. The OP-4 didi not put any treatment orders or signatures in the medical record.
Arguments:
13. Heard the arguments from the both sides, perused the material on record. Learned counsel on both the sides reiterated their respective affidavits of evidence.
Findings and Reasons:
14. We have perused the medical record of OP-1 hospital. During the ANC period the patient did not follow the advice of OP-3 strictly. On 06.07.2009 the patient was instructed to come after 15 days, but she turned up after 75 days. Similarly on 06.01.2010, she was called after 7 days for repeat check-up but thereafter she stopped coming for check-up. She did not get her investigations done as advised. We note it is evident from the affidavit of OP-3 that on 19.01.2010, the complainant telephonically contacted the OP-3 and told that his wife had a leaking per vagina and she was feverish. It was an indication of any serious infection which may cause complications to the foetus and the outcome of pregnancy. OP-3 advised the complainant to get the patient admitted immediately in OP-1 hospital for proper check-up and for safe delivery, but he ignored the advice of OP-3 and after 2 days, on 21.01.2010, the complainant took his wife to the OP-1 hospital at 4.30 PM and forced the hospital staff to admit his wife. The patient was allotted best private room in the hospital because of the close friendship of complainant with OPs-2 & 3. The complainant was aware that OP-3 was out of station, gone to Chandigarh for the counseling of her daughter's PG medical course and was to return in midnight, but he intentionally admitted his wife instead of getting admitted in any hospital.
15. The medical record revealed after admission, the patient was examined by the staff nurse, found weak labour pain and fetal heart rate 156/min. The cervix was long; one finger dilated and leaking per vagina noted. During the evening hospital rounds at 5.30 pm the OP-2 advised the complainant to show his wife to another gynecologist in the hospital, but he refused and preferred to wait for OP-3 to come back from Chandigarh and conduct the delivery. In our view the attitude of the complainant was very rigid who was interfering in the patient's treatment aspects. We note from the medical record and the nursing note of sister Deepa that one gynecologist-the specialist Dr. Shalini Aggarwal was available in the hospital on 21.01.2010 around 6.00 PM to 8.00 PM, she conducted one delivery, but the complainant did not choose to show his wife (patient) to her. At 9.30 PM Dr. Rishi Arya (OP-4) arrived at OP-1 hospital, and examined the patient. She told the complainant that there was some difficulty in descent of foetal head and suggested for LSCS delivery as a better option. She telephonically appraised the condition of the patient to the OP-3 at Chandigarh. However, the complainant refused to consent OP-4 for carrying the LSCS operation. At about 12 midnight the OP-3 returned from Chandigarh and proceeded straight to the hospital. She discussed with OP-4 about the condition of the patient and after examination of the patient, the OP-3 advised for LSCS without delay, then only at about 12.20 AM the complainant gave consent in his own hand writing authorizing OP-3 to perform LSCS of his wife. Thus, it is evident that the consent was given only to Dr. Kiran Garg (OP-3) and not to Dr. Rishi Arya(OP-4). The call was already sent to the Anesthetist Dr. Kapoor and Dr. K.V. Batra. Due to extreme cold and fog in January both the doctors managed to reach the hospital at 1am and LSCS was performed a full term male baby was born at 1.21am. The baby did not cry immediately after birth. The pediatrician Dr. Rahul Garg (OP-2) examined the baby, the APGAR score was 1 and 4 at 1 and 5 minutes respectively. There was poor respiration and poor muscle tone. Gentle oro-phyrengial suction and stimulation was given. The baby was intubated and given intermittent positive pressure ventilation (IPPV) with the ambubag. The heart rate of baby was 100 per minute and the baby was immediately shifted to the nursery right opposite the operation theatre and put under the warmer. The condition baby was stabilized between 1.30 AM to 1.50 AM, it showed improvement in the oxygen saturation, heart rate and colour but it did not start spontaneous respiration. The complainant was informed about the critical condition of baby. Till 2 AM no further improvement seen, therefore advised to shift the baby to Yashoda Hospital for further NICU management with ventilatory support.
16. Accordingly, the baby was shifted to NICU of Yashoda Hospital with endotracheal tube (ETT), ambubag and oxygen. One nurse and OP-2 himself accompanied while shifting. The baby was kept over under the supervision of the on duty Pediatrician Dr. Arun Kumar. The baby got first seizure, therefore conducted ultrasound of the skull and brain and the reports in any manner were not suggestive of damage to skull or brain. Thereafter on the same day afternoon the baby was shifted to Apollo Hospital and treated by the neurologists. The baby discharged from the Apollo Hospital on 05.02.2010. At the time of discharge baby was awake, active feeding- spoon feeds and mild hypotonia. The pupils were reacting to light. The reflexes were present. Thus, it was clear that the baby was not in vegetative state. Thereafter almost two months later i.e. on 17.03.2010, MRI brain of baby was performed at Indraprastha Apollo hospital and it was suggestive of Cystic Encephalomalacia, the possibility of congenital Herpes was specifically mentioned. The EEG done on 14.01.2011 was reported as normal. As per the Nelson's Book of Pediatrics, the antenatal infection is strongly associated with Cerebral Palsy. In the instant case the complainant failed to adhere to the follow-up instructions during pregnancy may be the cause of antenatal infection and other problems. It is evident from the discharge summary of Apollo Hospital about the date and timings of PV leakage to the patient. Thus, the main allegation of the complainant was that there was a perinatal hypoxia which caused damage to the brain of child is not sustainable, but the possibility of congenital Herpes persists.
17. We also note that the hospital (OP-1) did not collect any charges from the complainant towards the treatment of his wife and hospitalization. The patient (mother) was discharged from the OP-1 hospital on 26.01.2010.
Conclusion:
18. The complainant is practicing unani system of medicine- a doctor and he had good relations with OPs. His letter head also bears the name of Gargi Hospital as a referral unit. Admittedly OP-3 conducted his wife's previous delivery at OP-1 at free of costs. During the instant pregnancy the patient was under ANC care of OP-3, but it is evident from the medical record that at various times the complainant did not follow the treatment advice given by OP-3. Thus, it also amounts to contributory negligence.
The main allegation of the complainant was that the child suffered perinatal hypoxia which caused damaged to the child's brain. The Text book of Pediatrics by Nelson stated that less than 10% of children of cerebral palsy show evidence of intra-partum asphyxia. The standard medical books and literatures, also the expert opinions of Dr. Ashish Prakash, the Pediatrician and Dr. Vijay Kadam, Gynecologist clearly support the contention of the OP 2 and 3 that CP was not due to hypoxia and the negligence of the OP-2 & 3 is not visible. Thus the CP was unrelated to birth events, but it was definitely a result of pre-natal problems. Thus collectively, based on the evidence of OPs [para 94, 95 and 96], opinion of experts and the supporting medical literature on record, in our considered view the CP in the child was not a result of medical negligence. It caused at complainant's own peril. We note that;
Firstly, the patient ignored the medical (ANC) advice given by OP-3, regarding urgent hospitalization of the patient and did not get certain tests done (urine analysis, culture & sensitivity and CBC). The patient was feverish with leakage from vagina for 48 hours before the delivery; it was suggestive of exposure to serious intrauterine infection which is known to endanger the brain of an infant. It is evident from the discharge summary of Apollo Hospital.
Secondly, the complainant got his wife forcibly admitted in the OP-1 hospital, though knowingly the OP-3 was out of station. Moreover, on 21.01.2010 during telephonic discussion, the OP-3 told him that she was in Chandigarh for the counseling of his daughter's medical course and would not be back till midnight. She also advised to take the patient to any other hospital of his choice; however, he brought the patient to OP-1 hospital.
Thirdly, the complainant after he got his wife admitted, he was personally present by the side of his wife and kept on instructing the nursing staff. The complainant did not allow the other gynecologists who were on the panel of the hospital to examine his wife though the treatment was necessary. He preferred to wait for OP-3 to come back from Chandigarh and may be expected to treat his wife free of cost, while other gynecologist would have charged fees. Thus, it appears, his attitude was very rigid and adamant. It is clear from the affidavit of Mrs. Babita that he did not opt for treatment by Dr. Shalini Aggarwal, the gynecologist who was present in the hospital between 6 to 8 pm on 21.01.2010. He further refused to consent for caesarian delivery by OP-4 who visited hospital around 9.30 pm and noted some difficulty in delivery because of descent of head of the baby and expressed the necessity to carry out caesarian section. Thus it caused further delay. On return of OP-3 at 12 midnight, emergency caesarian section was performed and full term male baby was born.
Fourthly that, after delivery the pediatrician, OP-2 noted that baby had poor muscle done and poor respiratory effort. Therefore, baby was referred to Yashodha Hospital- higher center for NICU facility. Thereafter baby was transferred to Apollo hospital. It was diagnosed as "term AGA (appropriate for Gestational Age) Perinatal Depression, Neonatal Seizures".
19. It is evident from the medical record the child suffered intra uterine exposure to maternal infection-
mother was leaking PV for 48 hours prior to delivery, the liquor was dirty looking as per the OT notes, the patient had fever, the chances of positive TORCH infection, but the positive report was concealed and an FIR has already been lodged.
One research article titled "Maternal infection and cerebral palsy in infants of normal birth weight" in its conclusion observed as;
"CONCLUSION - intrauterine exposure to maternal infection was associated with marked increase in risk of CP in infants of normal birth weight. Maternal infection was also linked with low Apgar scores, other evidence of hypertension and need to resuscitation, and neonatal seizures - signs commonly attributed to birth asphyxia".
Thus, in the instant case there was no evidence of intrapartum hypoxia to the child.
20. We have took reference from few standard medical books viz. Text book of Pediatrics by Nelson, William's Obstetrics, Berek & Novak's Gynecology- by Jonathan S. Berek and several medical literatures ( published research, review articles on Cerebral Palsy, Birth Asphyxia etc.) We collectively found that the term "hypoxic ischemic encephalopathy" has been replaced by the term "neonatal encephalopathy" as the large majority of newborn infants showing signs of encephalopathy does not have objective proof of acute hypoxia or ischemia at birth, but have other causes of perinatal compromise such as infectious or genetic. In one study showed only 13% of term babies who exhibit neonatal encephalopathy are later diagnosed with CP. The nonspecific signs of fetal compromise at birth such as meconium-stained amniotic fluid, non-reassuring fetal heart rate patterns, low Apgar scores, and neonatal encephalopathy could all be associated with either acute intrapartum timing or chronic long-standing timing of the pathologies. (i.e. beginning before labor and during pregnancy). Such signs may be occur not only due hypoxia and/or ischemia, but also by other factors such as infection, placental and umbilical vessel thrombosis, or an altered fetal inflammatory response. Several recent studies suggest that many cases of Cerebral palsy are associated with genetic alterations (mutations) which are not detectable antenatally or preventable as yet. Many times the prevalence of congenital anomalies in children with Cerebral Palsy is much higher. They are schizencephaly and hydrocephaly (cerebral) and such as cardiac, musculoskeletal, and urinary anomalies (non cerebral).
The risk Cerebral palsy includes damage due to perinatal infection (ie, maternal fever or infection that affects the fetus and its brain during pregnancy and/or labor or in the neonatal period). Viral or bacterial infections may be relatively silent during pregnancy and not recognized clinically at the time. Evidence of intrauterine infection, evidenced by histological chorioamnionitis in the placenta and membranes or intra-partum pyrexia.
21. We further relied upon the precedents from the Hon'ble Supreme Court. In Dr. Laxman Balkrishna Joshi Vs Dr. Triimbak Bapu Godbole & Anr AIR 1969 SC 128 , made it clear about the duties which a doctor owes to his patient as :
"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 in the light of the particular circumstances of each case is what the law require: (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17)".
In the instant case the treating doctors were qualified; they have performed their duty with care.
22. As discussed in preceding paragraphs it is clear that the patient did not follow the instructions of treating doctor (OP-3) for immediate hospitalization on 19.01.2010 as the signs of PV leaking appeared. She was admitted after two days i.e on 21.01.2010 when the OP-3 (Dr.Kiran Garg) was out of station. The complainant was aware about absence of OP-3.He did not allow the other gynecologist to examine and treat the patient. He did not give consent for LSCS operation, but preferred to wait for OP-3 till the midnight to arrive from Chandigarh.
23. We have perused the OT record written by OP-3 in her hand writing (Page No. 232, Part - I, Vol-III) which clearly mentioned that she returned from Chandigarh and came straight from hospital at midnight. The patient was admitted in her absence. The husband was explained the risk involved and the LSCS was performed by OP-3 as per WHO protocol and a male baby was delivered at 1.21 am. The liquor was dirty looking.
24. In our considered view, the possibility of intrauterine infection cannot be ruled out for the cause of CP to the baby in the instant case. As per the medical literature, it was possible that even if surgery could have been done earlier, the result would have been the same. The child would still have been born with cerebral defect (CP) as the mother had already been suffering from the infection. In addition, the pleadings of complainant are fraudulent and an FIR was already registered on 20.06.2012. Such fraud vitiates all judicial proceedings. This view was taken by Hon'ble Supreme Court in Meghmala & Ors. Vs. G. Narsimha Reddy, (2010) 8 SCC 383. .
25. We have perused the two expert opinions on record - one from Dr. Ashish Prakash and second from Dr. Vijay Kumar Kadam.
We note Dr.Ashish Prakash is apediatrician and neonatologist. He reviewed the summaries of the baby of Shireen (the patient) issued by Yashoda Hospital and Apollo Hospital. He also reviewed the consultation slips pertaining to neuro-developmental assessment. According to him, the baby did not encounter hyphoxia during labour. He stated it on the basis of guidelines set forth by the "Task Force on Neonatal Encephalopathy and Cerebral palsy", convened jointly by American College of Obstetrics and Gynecology (ACOG) and American Academy of Pediatrics (AAP) in 2003. The task force listed 4 essential criteria which must all be present at the same time before an intrapartum hypoxic event can be considered as a cause of cerebral palsy. These criteria (quoted in Williams Obstetrics 23rd edition, pp. 612) are as follows:
1) Evidence of metabolic acidosis in fetal umbilical cord arterial blood obtained at delivery (pH<7 and base deficit of > 12mmol/L).
2) Early onset of severe or moderate neonatal encephalopathy in infants born at 34 or more wks.
3) Cerebral palsy of quadriplegic or dyskinetic type 4) Exclusion of other possible etiologies such as trauma, coagulation disorders, infections, or genetic disorders In the instant case, Criteria 1 and 4 were missing as explained below:
Criterion no. 1 - There is no evidence of metabolic acidosis. Acidosis means that pH should be less than 7. In this case the pH was 7.19.
Criterion no. 2 - Infection cannot be ruled out as a possible etiology because the mother had leaking per vagina for 48 hours prior to delivery, which is a risk factor for infection. The depressed state of the newborn at times is actually the result of this.
All the four criteria were not present together in this case on hand, thus Dr. Ashish Prakash in his conclusion stated that the baby could not have suffered from an intrapartum hypoxic event and the neuro developmental (spasticity) was not due to perenatal anoxia.
According to Dr. Vijay Kumar Kadam from Delhi (who is a senior specialist in OBG - Gynae) the baby had delayed milestones and neurological abnormalities. He reviewed the entire medical record from Gargi Hospital, Yashoda Hospital and Apollo Hospital. As there was evidence that the mother had antenatal intrauterine infection and he expressed that the baby might have congenital herpes, which was also suggested in MRI report. The para 4 and 5 of his opinion are more relevant, as reproduced below:
4. There is no doubt that the child has cerebral palsy. However, it is unlikely that the CP had anything to do with the delivery of the child. The management of labour was, on the whole, within the parameters defined by the WHO. It is true that there was delay in performing LSCS surgery but the treating doctors were helpless in the absence of consent for surgery.
5. It is clear that the cerebral palsy in this child was a result of one or more of the following pre-existing ante-natal events: Presence of microcephaly: and possibly, Congenital herpes, any other associated congenital disease. It is well known now that the birthasphyxia is not the only cause of Cerebral Palsy. A large number of research studies and epidemiological cohort surveys have shown that 90% cases of CP have no associated perinatal insult and even in the 10% remaining cases where there is some insult, the cause and effect relation between asphyxia and Cerebral Palsy is doubtful.
26. The principles of medical negligence laid down by Hon'ble Supreme Court in the Jacob Mathew's case 2005 (6) SCC 1 directly apply to the present case. It was held that The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan Merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event \026 a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine.
In another case, Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 the Hon'ble Supreme Court held as:
"the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. 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. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'
27. To determine negligence, a three-stage test must be satisfied. (i) A person is owed a duty of care. (ii) A breach if that duty of care is established. (iii) As a direct result of that breach, legally recognized harm has been caused. The procedure therefore relies on establishing fault on the part of the doctor, hospital, etc. The person making the claim (the complainant) must establish on the balance of probabilities that negligence has occurred by the hospital or doctor (the OP/ defendant).
28. In the instant case that we do not find neither failure of duty of care, nor deficiency in service of the hospital (OP-1) and the treating doctors (OP-2 & 3). The baby did not encounter hypoxia during labour, but it was unfortunate that the baby suffered CP, however the complainant utterly failed to prove the intrapartum hypoxia was the cause of CP. The expert opinions ruled out hypoxic etiology of CP. No medical literature or expert opinion filed in support of his case.
29. Based on the foregoing discussion, in the given facts and the entire evidence adduced before us, it is not feasible to attribute negligence / deficiency on the OP-1 hospital and OP-2 & 3 doctors, it is difficult to conclusively establish medical negligence / deficiency on the said OP-1 hospital and the OP-2 & 3 doctors.
30. In respect of OP - 4 doctor, Dr. Reshi Arya, the averment of the complainant, the averment of the OP-1 hospital and the OP- 2 & 3 treating doctors and the averment of the staff nurse on duty in the OP - 1 hospital clearly establish that on 21.01.2010 the OP-4 doctor Dr. Reshi Arya visited and examined the patient at around 9.30 PM in the OP - 1 hospital, and also that she was telephonically consulted. However, her deposition on affidavit before this Commission is a bland denial of the afore. She was present before this Commission on 13.12.2018, when she made her submissions in the context of her affidavit placed on the record of this Commission. She stood by her affidavit, by her bland denial of telephonic discussion, and by her bland denial of visit and examination. It is difficult to negate the fact that both, the complainant as well as the OP - 1 hospital and OP - 2 & 3 doctors, contesting on opposing sides, as also the staff nurse on duty in the OP - 1 hospital, categorically averred in their evidence before this Commission that the OP - 4 doctor was telephonically consulted and that she made a visit and conducted examination. A bland denial on affidavit, and bland submissions of denial in person before this Commission, contrary to the conclusive evidence on record before this Commission, is not viewed favourably.
The OP - 4 doctor, Dr. Reshi Arya, is put to stern advice of caution through imposition of costs of Rs. 1 lakh to be deposited in the Consumer Legal Aid Account of this Commission within six weeks of the pronouncement of this Order.
We are refraining from entering into the criminal domain of false affidavit / evidence, or into the professional regulatory domain of the medical council (though both are open), we feel that the cost imposed and the stricture implicit therewith would suffice as far as this Commission is concerned.
31. The complaint is dismissed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER