State Consumer Disputes Redressal Commission
Surinder Kumar vs Dr. Mrs. K.L. Sethi on 16 December, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision:16.12.2008 Complaint No.C-256/2000 Mr. Surinder Kumar Complainant. S/o Shri Barkat Ram Nayyar, R/o B-13, Sawan Park, Delhi -110052. Versus 1. Dr. Mrs. K.L. Sethi Opposite Parties Prop. Sethi Nursing Home, A-12, Gujranwala Town, Part-I, Delhi-110033 2. State Government, National Capital Territory of Delhi. CORAM: Mr. Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. Case of the complainant in brief is that wife of the complainant Smt. Shashi Nayyar conceived and was in an advanced stage of pregnancy and was under the observation of the OP No.1 from time to time and was hale and hearty. She felt some trouble/uneasiness on 11.7.2000. The complainant took his wife to the Nursing Home of the OP No.1 on 11.7.2000 at 11.00 a.m., who advised the complainant to get her admitted and sent the complainant to bring certain medicines. After handing over the medicines to the OP No.1, the complainant went away to his house leaving his sister-in-law in the service of his wife.
Next day, the complainant came in the nursing home at about 6.00 a.m. The doctor informed the complainant that his wife had delivered a dead male child at 4.30 a.m.
2. That one of the employees of the OP No.1 serving in the nursing home, informed the gathering, on the condition not to disclose his/her name, that his (complainants) son was alive and weeping in that room. Hearing this, the complainant with his friend Manoj and two relatives entered in the room told by that employee and found his son alive and then, contacted the OP No.1 and requested her to place the child either in the incubator or in the Nursery. The OP No.1 told the complainant that neither the incubator nor the nursery were available in her nursing home and advised him to bring a taxi or car to carry the baby to Jaipur Golden Hospital. He brought/hired car and again requested the OP No.1 to hand over the child to him, but the OP No.1 refused to hand over the baby to the complainant for taking him to Jaipur Golden Hospital. The OP No.1 said that the baby was recovering and heat was being given to him by putting a 200 Wt. bulb over his head. The OP No.1 acted very negligently knowing fully well and deliberately that it was not the correct way to give heat to the baby. The baby died due to the criminal negligence and inexperience of the OP No.1.
3. On 12.7.2000 at about 11.25 a.m. the OP No.1 informed the complainant that his son had died. On 13.7.2000, the complainant gave in writing a complaint in the police station of P.S. Model Town, Delhi against the OP No.1, but the police refused to lodge a regular FIR. Complainant sent a notice to the I.O./SHO of P.S. Model Town to face the consequences for not registering the FIR. Complainant issued a legal notice on OP No.1 to pay Rs.5,00,000/- (Rs. Five lacs only) and other expenses which the complainant had spent on his wife in the nursing home.
The complainant had incurred Rs.21,772.60 on medicines and legal matters and thus prayed that be directed the OP No.1 to pay Rs.21,772.60 plus compensation amount of Rs.5,00,000/- totaling Rs.5,21,772.60.
4. It was also alleged by the complainant that since OP No.1s nursing home, Sethi Nursing Home, had been recognized by the N.C.T of Delhi so the State Govt. was also liable to pay the above mentioned amount.
5. In its defence the OP N.1 averred that Mrs. Shashi Nayyar was in second stage of pregnancy (second trimester) through is was denied that she was under OPs regular observation from time to time. She (Mrs. Shashi Nayyar) came to the OP on 30.6.2000 for the first time. She was feeling some trouble/uneasiness. On 11.7.2000 she complained of pain in abdomen since 3 p.m., leaking per vagina since 15 days with pregnancy of 24 weeks. She was quite weak and not in good health.
6. The OP denied that the complainant came to OP with Shashi Nayyar (patient) on 11.7.2000 at 10 p.m. instead of 11 a.m. as alleged. There is a difference (gap) of 11 hours the patient came to OP No.1, eleven hours later than as mentioned in the complaint. The OP advised the complainant to get the patient Mrs. Shashi Nayyar admitted in some nursing home or the hospital as she was weak and had lost good amount of liquid. OP also told the patient and complainant that the growth of the foetus with infection which she had developed because of leaking from long time and also told that the growth of the foetus was also affected, the growth of foetus in this case may not be in usual way the patient brought her ultrasound report done on 29.6.2000 from outside when she came to OP on 30.6.2000 (first time).
7. That OP told the patient and the complainant that because of infection and gross inadequate liquid and IUGR (Intra uterine Growth Retardation) it was very difficult to continue the pregnancy and survival of foetus/neonate after birth was bleak. There was a great possibility of spontaneous abortion any time and no possibility of survival of the neonate/baby after birth.
Mrs. Shashi Nayyar came to OP on 11.7.2000 at 10 p.m. with pregnancy of 24/25 weeks. Whereas in the complaint the complainant has mentioned that the patient, Mrs. Shashi Nayyar was in advance stage of pregnancy which is also wrong and denied. The patient was brought to OP in second trimester of pregnancy. She was admitted on 30.6.2000 and discharged on 3.7.2000 after giving conservative treatment on request. The patient had to look after school going girl child at home and with many other excuses and especially financial problem.
8. That Mrs. Shashi Nayyar was advised ultra sound abdomen for pregnancy and foetus growth on first admission, after that patient brought the ultrasound done on 29.6.2000 as advised by her previous Doctor. She was not in good health and not prepared to get further test done.
After admission on 11.7.2000 on request, the OP advised some medicines which were brought by the complainant from outside.
9. The OP started treatment immediately without any delay in the presence of attendant and the complainant. The complainant left the patient Shashi Nayyar after that, leaving behind one attendant (female) whom he told that she was his sister -in law. The complainant had given the affidavit of Smt. Shanti Devi, his mother-in-law, w/o Shri Kashmiri Lal whom the complainant left with the patient Shashi Nayyar for her help. The complainant all through had been telling lies to the OP and concealing the facts such as of (USG) and gave wrong affidavit of his mother-in-law instead of his sister in law whom he left as attendant as there was no change of attendant at night from the beginning till the end. The patient at about 5 a.m in the morning suddenly/spontaneously aborted a cyanosed male neonate/baby of about 24/25 weeks pregnancy weighing about 650 gms (with cotton wrapping) the neonate/baby aborted/born with a very weak respiration and feable heart beats. OP tried to revive the neonate with all available means but could not revive. OP declared the neonate/baby dead at 6.30 a.m..
10. The complainant came with his friend Manoj and two relatives as he has stated in the complaint. But in the affidavit attached with the complaint he stated that he came with Ashok S/o Shri Muna Lal, R/o 24, Harijan Colony, Sawan Park, Delhi. He also attached an affidavit of Shri Rajesh S/o Shri Kashmiri Lal Khurana. The complainant took the dead neonate/baby at about 1 p.m. on 12.7.2000 with no altercation and he also told the OP that the complainant would send the money from home which he has not cleared till now after OPs repeated requests and demand.
11. That OP never advised the complainant to take the Dead Baby/Neonate to Jaipur Golden Hospital. OP informed the complainant on 30.6.2000 on her first visit to the OP Nursing Home that the facilities of Nursery and incubator were not available in Sethi Nursing Home. The OP never acted negligently knowing fully and deliberately. The OP started reviving the baby/neonate with all the facilities available in nursing home.
There was no delay and negligence.
The OP is well qualified MBBS DGO with an experience of about 35 years.
12. That on 13.7.2000 OP was called in the Model Town Police Station, Delhi by the SHO. The OP told them the whole story, as there was no negligence and delay on the part of the OP. The police after verifying all the facts did not register FIR. The OP received a legal notice to which OP replied. Neonate less than 1000 grams weight and less than 28 weeks of pregnancy has no chance of survival after birth. In these circumstances with the best efforts of OP No.1 to revive the premature under weight neonate was not possible.
22. In its reply OP No.2 averred that Preliminary inquiry was conducted by a duly constituted committee of technical experts working under Directorate of Health services to find out the facts of the complaint and alleged medical negligence, if any. The preliminary inquiry was based on the repeated inspection of the said Sethi Nursing Home, collection of statement of various staff on duty on the day of the incident, the comments of Dr. Sethi and Dr. Ritu Sabharwal, were taken and after study of the case sheets of the patients and other relevant documents and as per preliminary inquiry, Smt. Shashi Nayar delivered a pre-term baby on 12.07.2000 at 5 a.m. delivery occurred on bed and the delivery was attended by the nurse on duty and the patient (along with the newly born baby) was shifted to the operation theatre, where Dr. K.L. Sethi managed the newly born and the mother. This was a pre-term (Gestational age about 25 weeks) very low birth weight new born, and it was a live birth. Baby weighed 600 gms. Resuscitation of the newborn was tried but the baby could not be resuscitated with available resources of the Nursing Home and baby was declared dead at 6.30 a.m by Dr. K.L. Sethi. This was a pre-term and very low birth weight baby. Such small neonates are very unlikely to have survival or survival without severe morbidity. Such babies are likely to develop Retinopathy of prematurity (which may cause blindness) Hyaline Membrane disease (which may lead to chronic lung disease) and birth Asphyxia etc. The patient and her husband were made aware of the risks of delivery at the time of first consultation on 30.6.2000. It is communicated that knowing the facts Shri Surender Nayar had preferred to get his wife admitted in such a small nursing home for the management of pregnancy with high risk or poor prognosis. Sethi Nursing Home does not have Ambulance or Nursery, which have been noted while registering the Nursing Home with Directorate of Health Services.
13. The Committee on preliminary inquiry could not prove the alleged medical negligence barring the fact that the delivery of the newborn took place on the indoor bed. Considering all the facts and situation in which the delivery took place the baby was very unlikely to have survival or survival without severe morbidity, despite the best possible care with available resources.
14. It is pertinent to mention here that there was no facility of incubator and Nursery in the said Nursing Home, which had already been noted while registering the Nursing Home with Directorate of Health Services.
15. The complainant in its rejoinder to reply of OP No.1 stated that the OP was issued a temporary recognisation certificate upto 31.3.2000, vide registration No./Corporation Health Services/N. Home/99-2000/376 dated 06.5.1999 and after the date herein mentioned there is nothing on record to show that the nursing home had received recognisation either from the MCD/or Delhi Govt. meaning thereby that the OP was running her nursing home, illegally unlawfully and in violation of the provisions of Health Services Act. In this way the OP is guilty of cheating the complainant and other public by displaying Board of a nursing home approved by the Govt. of Delhi.
26. It was further denied that she was weak and not in good health. The complainant along with his wife went to the said nursing home of the OP on 11.7.2000 at 11 p.m (night). The OP admitted that the patient on the request of the complainant in Sethi nursing home at night time and after admission the patient was advised for ultra sound test of abdomen for pregnancy, then the patient brought ultrasound done on 29.6.2000 as advised by her previous doctor. The patient was not suffering from any leakage of liquid of any kind. She was not weak. She was hale and hearty. She was got admitted on the advise of the OP, who treated her medically and assured that there was every arrangement in her nursing home to meet any emergency, corresponding para of the complaint is reiterated as correct.
27. The complainant was advised to be out side the female ward. He left the sister of his wife in the service of the patient (his sister-in-law). Then he left for buying medicines which the OP had prescribed. During his absence his sister-in-law sent for her mother Smt. Shanti Devi on phone, being alone in the nursing home. The complainant handed over the medicines to the OP and sought permission to go home, if he was no more needed there.
28. It is admitted that prior to 11.7.2000 the patient was admitted on 30.6.2000 and discharged on 3.7.2000. But it is wrong and false that the patient was discharged on 3.7.2000 on the request of the complainant on the excuse of looking after the school going girls at home and specially financial problem.
29. As is apparent from the aforesaid rival contentions and claims of the parties particularly report of Delhi Medical Council that there was no other kind of medical negligence barring the fact that the delivery of the newborn took place on the indoor bed and also that there was no facility of incubator and nursery in the OP Nursing Home.
30. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner.
In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
34. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
35. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
36. In our view whenever any hospital or nursing home or medical centre undertakes to provide treatment to a patient it is supposed to anticipate all the future complications and make arrangement for meeting subsequent complications. The case in hand is delivery of a child which was a 28 months pregnancy and weighing only 600 gms but in the instant case no such arrangement was available with the OP. Neither pediatrician was available nor incubator or nursery was available.
37. Many such pre-term babies have been saved through service of nursery and incubators who were delivered after 28 weeks of pregnancy though the survival rate is very low. Merely because survival rate is low does not mean that the baby had no chance of survival. The very connotation that the survival rate is very low means that there is some or other percentage of survival and not 100% rate of non-survival.
38. In our view OP No.1 is deficient in service in not providing attendants to the woman who delivered the child on indoor bed and secondly for not having made arrangements of incubator and nursery in the Nursing Home and having undertaken to attend and to treat the patient knowing well that she was going to deliver pre-mature child and was having only 28 weeks pregnancy. Merely because Nursing Home was granted licence by the authorities does not mean that the Nursing Home can be absolved from the charge of deficiency in service for not having incubator or nursery or proper attendants to the woman who had delivered child on indoor bed.
39. May be that there was no medical negligence so far as act of delivery was concerned but the aforesaid deficiency in service in not attending to the future complications the child may suffer, makes out a case of deficiency in service. At least the Nursing Home which is accepting the patient for delivery should have the service of pediatrician but in this case the plea of the OP that there was very little time to call the pediatrician is not available to it.
40. Acting upon the report of medical council and the fact that there was no incubator or nursery as well as having allowed the delivery of the child on indoor bed, we deem that lump sum compensation of Rs.50,000/- would meet the end of justice.
41. With this order we also give direction to Directorate of Health Services, not to register any Nursing Home who accepts delivery case without having any arrangement of incubator, nursing as well as pediatrician on their roll.
42. The order shall be complied with within one month from the date of receipt of this order. Copy of this order be sent to Directorate of Health Services, Govt. of NCT of Delhi.
43. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
44. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 16th day of December 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri