State Consumer Disputes Redressal Commission
Mrs.Manjeri Sinha vs Dr.Babasaheb Ambedkar Memorial ... on 19 December, 2018
RBT/CC/18/205 IN CC/01/152
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Complaint Case No. RBT/CC/18/205 IN CC/01/152
Mrs.Manjeri Sinha,
Flat No.301, Bldg.No.D-1,
Lok Udyan, Sangle Wadi,
Kalyan West, Dist. Thane. ...........Complainant(s)
Versus
1. The Medical Superintendent,
Babasaheb Ambedkar Memorial Hospital,
Central Railway, Byculla,
Mumbai 400 027.
2. Dr.A. Saxena,
Gynaecologist,
Babasaheb Ambedkar Memorial Hospital,
Central Railway, Byculla,
Mumbai 400 027. .........Opponent(s)
BEFORE:
Mr.D. R. Shirasao, Presiding Judicial Member
Dr.S.K. Kakade, Member
For the Dr.M.S. Kamath, Authorized Representative
Complainant(s):
For the Advocate Shri T.J. Pandian.
Opponent(s):
ORDER
Per Dr.S.K.Kakade, Hon'ble Member
1. This is the consumer complaint filed under section 17 of the Consumer Protection Act 1986 with the State Consumer Disputes Redressal Commission of Maharashtra, Mumbai bearing No.CC/ 01/ 152.
1RBT/CC/18/205 IN CC/01/152 This complaint was heard and decided as "ex parte" by division bench of this Commission on 30th June 2015. Aggrieved by the order, the opposite parties approached National Commission for allowing filing of written version. National Commission by order dated 9th November 2017remanded back this matter with order to the complainant to file expert opinion , for fresh hearing and hence this was heard by the division bench of this Commission and our observations and findings are as below-
2. The brief facts for deciding this case or as follows The complainant Mrs Manjeri Sinha senior clerk in Central Railway, after marriage got conceived for second time, since the elder child was only 7 months old, she decided to carry out medical termination of pregnancy (MTP) and so got admitted at the respondent Hospital on 28th July 1998. As she changed her mind after due discussions with the doctors, she decided not to carry out MTP and so got discharge very next day. The complainant followed with the respondents for treatment of pregnancy and antenatal care. Thereafter as per the doctor's advice, got admitted in the respondent Hospital on 12th March 1999. As it was informed that the growth of baby was not adequate, some treatment was given to her and then on 5th of April 1999 she started getting labour pains at 8.15 am. Caesarean section surgery was planned by the respondent no.2 doctor. The consent for the same was obtained from the complainant. Complainant was taken to the operation theatre for Caesarean Section after performing non stress test at about 7 p.m. The process of delivery started at about 7:30 p.m. with increase in the labour pains. It was informed to the complainant that the baby was moving in the womb rapidly and it was in danger. Complainant felt that there was some difficulty in baby getting out. The process of delivery was complete at around 9:30 p.m. on that day. It was informed to the complainant and her husband by respondent no.2 that the left arm of the baby had to be pulled out in order to deliver the baby. Since 2 RBT/CC/18/205 IN CC/01/152 the baby was not moving left upper extremity, was referred to Neuro physician who opined that there was brachial plexus injury during delivery and so further referred to Wadia Children Hospital and Hinduja Hospital where further tests were carried out. The baby was further taken to other hospitals including All India Institute of Medical Sciences, New Delhi for examination and operations for correcting the deformities. Hence the complainant alleged that there was deficiency in service provided by the respondent no.1 and respondent no.2 the Gynaecologist Dr. Archana Saxena, who conducted forceps delivery instead of caesarean section. The female child suffered from brachial plexus injury and deformities associated due to this. The complainant filed complaint at this Commission against respondent no.1 hospital and respondent no.2 doctor and claimed Rs. 17, 70, 000/- under various headings as compensation in the original complaint.
3. The complaint was not opposed by the opposite parties... Opposite party No.1 the hospital and opposite Party no. 2 the treating Gynaecologist, both failed to appear and file written versions in spite of notice being served upon them. This matter was placed in sine die list and again in the year 2014 was taken out from the list. Again the notices were served but both opposite parties failed to appear as well as file written versions. So the matter was heard and decided as ex parte.
4. Considering the submissions made before us, considering record and scope of the appeal, following points arise for our determination and our findings thereon are noted against them for the reasons given below:
Sr.No. Point Findings
1. Whether the complainant is Consumer? Yes
2. Whether the complainant proves that there Yes
was deficiency in service and medical
negligence by the opponents?
3
RBT/CC/18/205 IN CC/01/152
2. Whether the complainant is entitled for Yes
compensation?
3. What Order? As per the final
order
REASONS
5. As to POINT No.1 Consumer
Learned authorised representative of the complainant
Dr.M.S.Kamath submitted that it is an admitted position that the employees of the Railway Hospital are consumers of Railway hospitals. He invited our attention to the Hon'ble Supreme Court judgement in LakshmanThamappa Kotgiri vs. GM Central Railway and others 2005 (1) SC 1-3 and submitted that the medical service rendered by the railway hospital as part of terms and conditions of service would not amount to free service and thus would constitute service for the purposes of the act, Consumer Protection Act 1986. Thus the complainant is consumer. We answer POINT no.1 as AFFIRMATIVE.
6. As to POINT No.2 Deficiency in Service\ Medical Negligence Learned authorised representative of the complainant submitted that this is a matter of 2001 which was revived in 2013-14 from sine die. He further submitted that the order of this state Commission dated 30thJune 2015 ordering the opposite parties to pay compensation that was challenged in the National Consumer Disputes Redressal Commission,New Delhi by original opponents. After hearing both the parties this State Consumer Disputes Redressal Commission, Mumbai allowed the consumer complaint partly and directed the opponents to pay lump sum compensation Rs. 10 Lakh jointly and severally. Learned Authorized representative of complainant submitted that Hon'ble National Consumer Disputes Redressal Commission, New Delhi heard the appeal - RBT and without allowing the prayer of opposite parties of filing Written versions, remanded the matter back to the State Consumer Disputes 4 RBT/CC/18/205 IN CC/01/152 Redressal Commission, Maharashtra, Mumbai for fresh hearing and directed the complainant to file expert opinion.
7. Learned authorised representative of the complainant submitted that as per the hospital records (Page B4), on 12th March 1999, there was intrauterine growth retardation of the baby (IUGR) with less liquor and this was early enough indication to plan Caesarean section. The opposite party no.2 advised Lower segment caesarean section on 5th April 1999. As the labour pains started the complainant was shifted to the operation theatre at 7 p.m. but the operation theatre keys were not available. So patient was again taken back to the Labour room and baby was extracted through normal delivery. Episiotomy was given and the forceps was applied to take the baby out. Learned authorised representative Dr. Kamath invited our attention to the documents submitted in annexure 'c' discharge card and annexure 'd' referral chit which mentioned shoulder dystocia and "forceps delivery". While referring to Wadia Children hospital the referral letter mentions "no forceps applied". Further annexures 'f '- f1, F2, F3 that are test reports - Nerve Conduction test and MRI show that there was brachial plexus injury to the baby girl on left side. The referal letter which was sent to All India Institute of Medical Sciences- Neurosurgeon, mentions that there was "congenital Erb's Palsy," annexure G1. Thus while referring the baby girl to different hospitals, 3 different versions of dignosing the condition were given. The baby girl was of the age of nine months when referred to All India Institute of Medical Sciences, Delhi where it was found that she had brachial plexus palsy. The H1 and H2 are the applications for obtaining case record to the opposite party no.1 hospital. No supply of the same by the hospital, itself wasdeficiency in service, learnedauthorised representative alleged.
8. Learned authorised representative of the complainant Dr. Kamath submitted that the caesarean section was not performed as there was no 5 RBT/CC/18/205 IN CC/01/152 consent given by the husband; this was the contention of opposite parties. The consent page which is part of medical record and was not submitted by opposite partiesin the medical record. And thus this was not part of the record. Authorised representative Dr. Kamath further submitted that the same consent form was submitted at the appeal filed by opposite parties in the National Consumer Disputes Redressal Commission, New Delhi. This consent form was found to be signed by the husband of complainant. So contention of opposite parties that husband was not willing, was proved to be wrong, Dr. Kamath further submitted.
9. Learned AR submitted that as per V.Kishan Rao case, expert opinion is not needed to prove negligence of the opposite parties of this case. But as Hon'ble National Consumer Disputes Redressal Commission's order to file expert opinion, the complainant filed expert opinion of Dr. Veena Singh who is qualified Obstetrician and Gynaecologist from Jamshedpur, who is also relative of the complainant. As the opposite parties were allowed to cross examine the expert by way of sending interrogatory, the interrogatory was answered by the expert Dr. Veena Singh. Dr Veena Singh clearly stated that, "this case could have been handled in much better way as per the guidelines and standard teaching given in D.C. Dutta's textbook of Obstetrics and the tragedy of the child being born with brachial plexus damage and lifelong paralysis could have been certainly avoided in the facts and circumstance of the case".
10. Learned advocate for the opposite parties further submitted that at the time of admission itself on 12th of March 1999 the consent was obtained and the husband did sign. So it was not the consent for lower segment caesarean section. The same was recorded in the indoor case record that husband was not willing for the caesarean section on 5th April 1999.
6RBT/CC/18/205 IN CC/01/152
11. Learnedadvocate for the opposite partiesfurther submitted that there was shoulder dystocia because of which left arm could not be delivered and had to proceed with the maneuver necessary for the delivery of shoulder. As per the standard textbook Williams of Obstetrics, shoulder dystocia cannot be predicted. Also the advocate invited our attention to the expert opinion submitted by the complainant of Dr. Veena Singh, and submitted that the expert nowhere said that the doctor was negligent. Based on the interrogatory answers by the expert the learned advocate submitted that the expert Dr. Veena Singh also did not have experience of proceeding ahead with Caesarean section when the head of baby came out of vagina.
12. Learned advocate for opposite parties submitted that as guided by Hon'ble Supreme Court in the case Bijoy Sinha Roy versus Biswanath Dasand othersIV (2017) CPJ SC 1 ; test to determine medical negligence is as per the principles laid down. A professional may be held liable for negligence if it does not possess the requisite skill which he claims or if he fails to exercise reasonable competence. The guidelines by Hon'ble Supreme Court are as follows-
13. "Test to determine medical negligence
11. Negligence is breach of duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence in the context of medical profession calls for a treatment with a difference. Error of judgment or an accident is not proof of negligence. So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a better alternative course was available. A professional may be held liable for negligence if he does not 7 RBT/CC/18/205 IN CC/01/152 possess the requisite skill which he claims or if he fails to exercise reasonable competence. Every professional may not have highest skill. The test of skill expected is not of the highest skilled person. Concept of negligence differs in civil and criminal law. What may be negligence in civil law may not be so in criminal. In criminal law, element of mens rea may be required. Degree of negligence has to be much higher. Res ipsa loquitur operates in domain of civil law but has limited application on a charge of criminal negligence1.
12. These principles have been laid down by a Bench of three- Judges and continue to hold the field. This Court has also held that safeguards were necessary against initiation of criminal proceedings against medical professionals and till such safeguards are incorporated by the State, direction of this Court will operate to the effect that the 1 Jacob Mathew versus State of Punjab (2005) 6 SCC 1, Para 48 private complaint will not be entertained unless credible opinion of another competent doctor in support of the charge of rashness was produced. The Investigating Officer must obtain independent and competent medical opinion preferably from a doctor in Government service, qualified in the concerned field in the light of judgment in Jacob Mathew (supra). A medical professional may not be arrested in a routine manner.
13. In Martin F.D'Souza versus Mohd. Ishfaq3, this Court observed that uncalled for proceedings for medical negligence can have adverse impact on access to health. While action for negligence can certainly be maintained, there should be no harassment of doctors merely because their treatment was unsuccessful. This Court directed that the consumer fora must proceed with any complaint only after another competent doctor or Committee of doctors refers that there was a prima facie case. In V. Krishan Rao versus Nikhil 8 RBT/CC/18/205 IN CC/01/152 Super Speciality Hospital4, this direction was however, held to be inconsistent with the binding judgment in Jacob Mathew (supra). It was held that there were obvious jurisprudential and conceptual differences between the cases of negligence of civil and criminal matters. Protection of the medical professionals on the one hand and protection of the consumer on the other are required to be balanced.
14. In view of the legal position discussed above, we are of the view that the National Commission was justified in holding that decision to perform surgery may not by itself be held to be medical negligence."
14. We have considered all the documents on record, the order of this state Commission, the expert opinion submitted by complainant and interrogatory given by opposite parties to the expert and the answers given by the expert, also we heard both the parties again. Considering the submissions on record and evidences, we are of the opinion that there was deficiency in service by the opposite parties' no. 1 and 2 as they failed to perform caesarean section in time resulted in the permanent disability to the baby girl in the form of left side brachial plexus injury. Hence both the opposite parties are liable to pay the compensation. We grant the compensation as follows-
For Indoor Treatment Rs.4 Lakh
For Medical Treatment of Child Rs.2 Lakh
For bringing up the child, for mental agony etc. Rs.6 Lakh We feel that amount of compensation for bringing up of the child should be Rs.6 Lakh, which is reasonable and just and hence we award totally Rs.12 Lakh to the complainant.
Hence the answer to POINT No.3 is AFFIRMATIVE.
9RBT/CC/18/205 IN CC/01/152
15. As to POINT No.3 Entitlement for Compensation Since the complainant has proved the negligence by the opposite parties, she succeeds in getting compensation and hence the same is awarded to her. The opposite parties have already deposited the amount with State Consumer Disputes Redressal Commission; the complainant is entitled to withdraw the amount form the deposit.
16. As to POINT No.4As per Final Order ORDER
1. The complaint is partly allowed with costs of Rs. 25,000/- (RupeesTwenty Five Thousand only) to be paid by the opposite parties jointly and severally to complainant.
2. The opposite parties are hereby directed to pay Rs.12 Lakh jointly and severally within the period of 2 months from the date of this order, alongwith the interest @ 9% from the date of filing of this complaint, failing which the interest rate will be 12%.
3. The complainant is hereby allowed to withdraw the total deposited amount by the opposite parties with the State Commission.
4. Free certified copies of the order be furnished to the parties forthwith.
Pronounced Dated 19th December 2018 [D.R. Shirasao] Presiding Judicial Member [Dr.S.K.Kakade] Member 10