State Consumer Disputes Redressal Commission
Dr. Neeva Juneja vs Raj Kaur And Others on 11 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.235 of 2014
Date of institution : 10.03.2014
Reserved on : 27.03.2017
Date of decision : 11.04.2017
Dr. Neeva Juneja alias Christina Nivruti Mehta wife of Dr. Manav
Juneja, resident of Birla Road, Malout, District Sri Muktsar Sahib
(impleded in the complaint case as Dr. Neeva Juneja, Juneja
Hospital, Malout, Tehsil Malout, District Sri Muktsar Sahib).
.......Appellant-Opposite Party No.2
Versus
1. Raj Kaur @ Raj Rani wife of Jaspal Singh, resident of Village
Jandwala Charat Singh, Tehsil Malout, District Sri Muktsar
Sahib.
......Respondent No.1/Complainant
2. Dr. Rajnish Juneja, Juneja Hospital, Loha Bazar, Near Punjab
National Bank, Malout, Tehsil Malout, District Sri Muktsar
Sahib.
........Performa Respondent-Opposite Party No.1
First Appeal against the order dated
27.1.2014 of the District Consumer
Disputes Redressal Forum, Sri Muktsar
Sahib.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Shri R.K. Girdhar, Advocate. For respondent No.1: Shri Hitesh Sood, Advocate. For respondent No.2: Ex parte.First Appeal No. 235 of 2014 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
This appeal arises from a consumer complaint where a prospective mother approached the Hospital of opposite party No.2 for delivery but it resulted into complications. In giving life (birth) women face deadly risks and the process is inherently risky process, yet prospective parents take the risks because of the anticipated reward of having a child for outweighs the risk. This Appeal has been preferred by Dr. Neeva Juneja, appellant/opposite party No.2, against the order dated 27.1.2014 passed by District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (in short, "District Forum"), vide which the complaint filed by Raj Kaur, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act") has been partly allowed and the appellant- opposite party has been directed to pay Rs. Three Lakhs to the complainant within two months from the date of receipt of certified copy of order failing which the complainant will be entitled to recover interest at the rate of 7.5% per annum from the date of order till actual realization. However, the complaint against opposite party No.1-Dr.Rajnish Juneja has been dismissed. Both the Members agreed with the whole of the judgment of the President of the District Forum except that opposite party No.2 was not competent to carry on surgery, vide their separate order dated 27.1.2014.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred as have been arrayed before the District Forum.
First Appeal No. 235 of 2014 3
3. Shorn of unnecessary details the relevant facts for the disposal of the present appeal are that complainant was pregnant and was admitted in the Hospital of opposite parties on 6.12.2012 at 6.00 A.M. A Lower Segment Caesarean Section (in short, "L.S.C.S.") was conducted on that day by the opposite parties and a female child was born. The opposite parties charged Rs.5,000/-. The opposite parties could not conduct the caesarean section carefully due to which the condition of the complainant became serious and opposite parties shifted the complainant to Adesh Hospital, Sri Muktsar Sahib at about 2.30 P.M. on the same day i.e. on 6.12.2012. On 8.12.2012 the complainant was further referred by the Adesh Hospital, Muktsar to Dayanand Medical College and Hospital, Ludhiana. The complainant was on the brink of death. It is alleged that the L.S.C.S. was conducted by Dr. Neeva Juneja and Dr. Rajnish Juneja and their Compounder Raja Singh without any reason just being greedy. Opposite parties were not competent to conduct the L.S.C.S. and the same was conducted without any need. Opposite parties further got deposited Rs.5,000/- but no receipt was given to the complainant. Due to the said L.S.C.S. one side of the complainant stopped working and she became weak. In fact there was no Surgeon in the said Hospital to conduct the L.S.C.S.. The complainant and her family members had to spend Rs.4,00,000/- on the treatment and the care of the complainant to save her life. Till today the condition of the complainant has not turned to normal and was in fear that she may become pregnant in future or not. The complainant and her family had given an First Appeal No. 235 of 2014 4 application to the higher authorities as well as to the police. Illegal act of opposite parties has caused mental tension, harassment and deficiency in service.
4. Upon notice opposite party No.1 pleaded in his reply that the complaint was not maintainable in the present form; the complainant has not impleaded Adesh Hospital and Dayanand Medical College and Hospital, Ludhiana as party in the complaint, so the complaint is bad for non-joinder and misjoinder of necessary parties. Opposite Party No.1 and Raja Singh had no concern with Juneja Ladies and Maternity Hospital, Malout. Opposite party No.1 has been intentionally arrayed being father-in-law of opposite party No.2. Opposite party No.2 is running separate hospital under the name and style of Juneja Ladies and Maternity Hospital, Malout. Opposite party No.1 had no concern with the alleged L.S.C.S. No person in the name of Raja Singh ever worked in Juneja Hospital.
5. Opposite party No.2 also filed separate reply contending that the complainant had not impleded Adesh Hospital and DMC Hospital as party in the complaint, so the complaint was bad for non- joinder/mis-joinder of necessary parties. The complainant suffered from disease since the pre-natal stage and there was no link whatsoever with the caesarean section. There was no complication at the time of post-natal stage. Caesarean section was done to save the life of the baby and the complainant. Juneja Hospital, Loha Bazar, Malout-opposite party No.1 and Raja Singh had no concern with Juneja Ladies and Maternity Hospital, Malout. The complainant was not a 'consumer' of opposite party No.2 as per the amended First Appeal No. 235 of 2014 5 provisions of the C.P. Act. However, it was admitted that on 6.12.2012 at 6.00 a.m. the complainant was admitted with the history of labour pains one day and night prior to the admission i.e. 5.12.2012. Prior to this she was handled by a Dai of Village Jandwala; namely, Gurmeet Kaur @ Ram Rakhi. The complainant was not examined ante natal by any doctor, who could diagnose her problem early. On examination the complainant was found in full labour with breech presentation pre-eclampsia, anemia and in severe pain. She had blood pressure of 180/100 mmhg and was increasing progressively. On internal examination her cervix was 3 f dilated or 5-6 c.m. dilated and the footling of the baby had protruded out of the cervix and lying in the vagina and the fetal heart rate was present. The condition of the complainant and the baby had been put in danger by the Dai, who was trying to deliver the baby at her home. Under the emergency situation the complainant was given medicine to help lower the blood pressure and emergency caesarean section was advised for the safety of the mother and the baby. All necessary pre-operative tests were done and the complainant was prepared for surgery with the consent and necessary intimation to the close relatives accompanying her. As per hospital rules, advance of Rs.2,500/- was taken and receipt was issued to the relatives of the complainant. The complainant was shifted to operation theatre at 9.30 A.M. and underwent L.S.C.S. under spinal anesthesia and a live female baby was delivered at 10:00 a.m. The baby cried immediately after the birth. Spinal anesthesia is preferred on high B.P. patients. The complainant was First Appeal No. 235 of 2014 6 shifted to the recovery room from the operation theatre and was monitored. She continued to have high blood pressure. She was given medicine to lower the blood pressure. At 12:30 p.m. she had one episode of generalize tonic colonic convulsion. She was treated for that but she had another episode of generalized tonic colonic convulsion. The relatives wanted to take her to higher centre and as such, she was shifted to Adesh Hospital, Muktsar. After two days the complainant was shifted to DMC, Ludhiana. No surgical complication ever occurred during the operation or afterwards. Since none of the two hospitals mentioned any surgical complication to the complainant, therefore, convulsions were due to pre-existing disease and were not related to surgery. The caesarean section was conducted by opposite party No.2 as per need of the hour to save the life of the complainant and the life of unborn baby, who would have died if timely caesarean section would not have been done. Opposite party No.2 is a qualified Obstetrics/Gynecologist and was authorized to do L.S.C.S. Operation theatre was fully equipped for surgeries like Lower Segment Caesarean Section (LSCS). There is no literature which says that lady will not become pregnant after LSCS. The complainant and her relatives had harassed opposite party No.2 by taking out processions and the allegations have been made just to blackmail and grab money in the shape of compensation.
6. The District Forum afforded opportunities to the parties to lead their respective evidence and after appreciating the evidence on First Appeal No. 235 of 2014 7 record, allowed the complaint, vide impugned order. Hence this appeal.
7. We have heard the learned counsel for both the sides and perused the record of District Forum as well as the appeal. We have also gone through the written arguments filed by the appellant- opposite party.
8. Learned counsel for the appellant-opposite party has vehemently contended that the complainant was in full labour pain with breech presentation pre-eclampsia, anemia and in severe pain. Her blood pressure was 180/100 mmhg and was increasing progressively. On internal examination her cervix was 3 f dilated or 5-6 c.m. dilated and the footling of the baby had protruded out of the cervix and was lying in vagina and the fetal heart rate was present. He argued almost on the same lines as are mentioned in the reply referred to above. We are not repeating the same for the sake of brevity. It was contended that medicines were given to lower the blood pressure and to carry out the emergency caesarean section. Caesarean section was necessary as has been said by Mr. Fernando Arias, DD, PHD, FACOG in the Book at relevant pages 251-253 of the paperbook under the heading "Abnormal Fetal"
presentation placed on record. It is further contended that pre- operative tests were done on the patient and patient was prepared for surgery and the consent was obtained. Necessary intimation was given to the close relatives accompanying her. Spinal anesthesia was given by Dr. Jatinder Sharma, Anesthetist, who was called before caesarean section. Caesarean section was successful. First Appeal No. 235 of 2014 8 Blood pressure of the complainant was still high. Even after the surgery the patient was shifted from the operation theatre to labour room. She continued to have high blood pressure. She had two episodes of generalized tonic colonic convulsion. The relatives of the complainant shifted her to Adesh Hospital, Muktsar at about 2.30 p.m. After that the complainant was shifted to Dayanand Medical College and Hospital, Ludhiana. No surgical complications had ever occurred during the operation or after that. There is no reference in this regard in the record of Adesh Hospital, Muktsar as well as the Dayanand Medical College and Hospital, Ludhiana. Reference to books has been made wherein it is stated that convulsions occurred due to post partum i.e. after delivery. Such complication was due to pre-existing disease in the patient. The operation was carried out by opposite party No.2 as per the need of the hour with a purpose to save the life of the patient as well as the unborn baby, who would have died if the timely caesarean section would not have been done. It is sheer luck that the patient and the baby are alive. Pre- eclampsia is a multi-system disorder of unknown etiology characterized by development of hypertension to the extent of 140/90 mm Hg or more with protein urea after 20 weeks of pregnancy in a previously normal patient. Pre-Eclampsia when complicated with convulsion or coma is called eclampsia. Incidence in India is 1 in 500 to 1 in 30 deliveries. There is no medical negligence on the part of opposite party No.2. Dr. Gurjit Singh of Adesh Hospital appeared as a witness and has deposed that the patient was diagnosed with eclampsia with HELLP syndrome with First Appeal No. 235 of 2014 9 sepsis and infarction in brain. It is further submitted that she is a qualified person to carry out surgery since she has diploma in Gynecology and Obstetrics and has relied upon various judgments. Ld. Counsel for the appellant opposite party No. 2 vehemently contended that no expert evidence has been led by the complainant and the case has not been a proved in accordance with law. The Ld. Counsel for the opposite party No. 2 vehemently contended that without examination of an expert in the medical field medical negligence could not be proved.
The Ld. Counsel referred to the judgment of Hon'ble Supreme Court reported in 2005(1) RCR 836 (SC) (Dr. Jacob Mathew v. State of Punjab), judgment of the Hon'ble National Commission passed in FA No.309 of 2011 decided on 31.3.2016 (Dr. S.C. Pandhi and another versus Karan Kaushik and another), judgment of U.P. State Commission reported in 2002(1) CPC 599 (Dr. Piyush Verma vs Jabar Singh) and judgment of this Commission reported in 2000(1) CPC 80 (Vishal Poly Clinic v. Satnam Singh) to substantiate his contention.
9. Per contra learned counsel for the complainant has vehemently contended that the complainant was pregnant and was admitted in opposite parties No.1 and 2-Hospital and they have charged Rs.5,000/-. On the same day caesarean section was conducted by opposite parties No.1 and 2. It was not done carefully. Resultantly the complainant developed serious problem. One side of the complainant stopped working. The complainant was taken to Adesh Hospital, Muktsar on 8.12.2012. The complainant was further First Appeal No. 235 of 2014 10 referred to Dayanand Medical College and Hospital, Ludhiana. The caesarean section was done by opposite parties No.1 and 2 and one Compounder Raja Singh without any reason for greed of money. The opposite parties were responsible for the complication which arose after the caesarean section. No receipt of Rs.5,000/- was given. If the Doctor was aware that the case of the complainant was a complicated one, then she should have immediately referred the complainant to some other Hospital where such operation can be carried out by the competent surgeons. The complainant and her family members had spent more than Rs.4,00,000/- on the treatment and care of the complainant to save her life. The amount was collected by borrowing from the relatives and friends. Till date the condition of the complainant has not improved much. Still there are certain difficulties. Opposite parties No.1 and 2 were not competent to carry out the caesarean section. In fact they have indulged in unfair trade practice and there is deficiency in service as no competent person was called, although it is said in the written arguments that Dr. Jatinder Sharma was the Anesthetist but there is no reference of Dr. Jatinder Sharma in the written version and now just to avoid the liability and negligence, the name of Dr. Jatinder Sharma has been mentioned as Anesthetist. The complainant has rightly been awarded compensation by the District Forum. She was merely M.B.B.S. and the alleged Diploma is from a Society and as such, she cannot perform such caesarean section, which is a serious surgery even if the averments of the opposite parties are accepted. First Appeal No. 235 of 2014 11 He further contended that there is no flaw in the impugned order and the same is liable to be upheld.
10. We have given thoughtful consideration to the contentions raised before us.
11. In the light of the argument raised by the Ld. Counsel for the appellant-opposite party No.2, it is to be seen, whether examination of expert is necessary in this case? This issue is no more res integra. The Hon'ble Supreme Court in the case of V. Kishan Rao versus Nikhil Super Specialty Hospital and another 2010(2)RCR (Civil) 929 (SC) has elaborately examined this issue. The relevant paragraphs read as under:
"13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the Members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.
xxxx xxxx xxxxx xxxxx First Appeal No. 235 of 2014 12
15. We do not think that in this case, expert evidence was necessary to prove medical negligence. xxxx xxxxx
37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required, the direction in paragraph 106, quoted above in D'souza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is contrary to the principles laid down by larger Bench of this Court on this point. In D'souza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed.
38. Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in D'souza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute.
xxxx xxxxx xxxxx
54. This Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the Members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of First Appeal No. 235 of 2014 13 the case. The discretion in this matter is left to the Members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other. First Appeal No. 235 of 2014 14
55. For the reasons discussed above, this Court holds that it is not bound by the general direction given in paragraph 106 in D'souza (supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. This Court is constrained to set aside the orders passed by the State Commission and the National Commission and restores the order passed by the District Forum. The respondent no.1 is directed to pay the appellant the amount granted in his favour by the District Forum within ten weeks from date."
In view of the law laid down in the case of V. Kishan Rao' case (supra) and settled proposition of law, it is not necessary to examine medical expert in every case of medical negligence. We do not think that in this case, expert evidence was necessary to prove medical negligence. The present complaint can be decided on the basis of evidence available on record of the District Forum.
12. Now, coming to the medical negligence. The doctors and the medical nursing staff of opposite party No.2 owed a duty of care to ensure that the complainant was provided with proper and skilled medical treatment including other health services and care in accordance with the generally accepted standards. The question arises, whether appellant- opposite party No.2 was competent to First Appeal No. 235 of 2014 15 conduct the surgery in question and proper and reasonable skill has been exercised by the doctor and the other medical staff while conducting surgery on the complainant? It is true that the general rule is that he/she, who asserts, must prove. In the present case initially it was the duty of the complainant to prove that the damage to her has been caused due to the negligence of opposite party. There is failure on the part of doctor and others supporting staff to adhere to the ordinary level of skill and diligence possessed and exercised at the same time by them. It is true that medical professionals are not expected to be of highest possible degree of professional skills, but they are bound to employ reasonable skill and care. The categorical case of the complainant is that at the time of surgery there were only 3 persons; namely, Dr. Rajneesh Juneja, opposite party No.1, Dr. Neeva Juneja, appellant-opposite party No.2 and one Raja Singh, Compounder. Opposite party No.1 in his reply has denied his presence on the ground that he has separate hospital and has no relationship with the hospital of Dr. Neeva Juneja and relationship with Raja Singh, Compounder has also been denied. Meaning thereby only Dr. Neeva Juneja, opposite party No.2, remained at the time of surgery. Dr. Neeva Juneja-opposite party No.2 in her reply has not stated about the number of persons present when the surgery was conducted on the person of the complainant. Neither in the reply nor in the affidavit tendered in evidence opposite party No.2 has stated that at the time of surgery any Anaesthetist was present. The complainant was admitted at 6.00 AM on 06.12.2012 in Juneja Ladies Hospital & Operation Centre. First Appeal No. 235 of 2014 16 The Bed Head Ticket of the complainant is proved on record by opposite party No.2 as Ex.OP-6 and as per the same, the medical condition of the complainant at that point of time was ut 28-30 weeks, breach presentation, FUS+, C x 3 F dilated, Breech at 10 and footling in vagina. Investigations were also got conducted upon the complainant and the investigations reports were Hb 8.0 gm, Blood Group AB +ve, HIV, HCV, F1B3AG were negative. The pulse, blood pressure and temperature of the complainant were recorded at different times, which are tabulated as under:-
Date Pulse BP Temp
6/12/2012 80/min 160/180 98F
06.30AM
6/12/2012 82/min 200/150 98F
07.00AM
6/12/2012 90/min 200/160 99F
08.00AM
6/12/2012 90/min 180/160 99F
09.00AM
Pt shifted to OT
Post OP
6/12/2012 98/min 170/140 98F
11.00AM
At 12.30 p.m. the complainant had tonic clonic convulsions i/v Diazepam, Stat Oxygen. Inj. Mg SO4 (2 amp in drip) 1Amp 1/m stat was given. The Pulse of the complainant was 100 per minute and the BP was 190/150 mmHg. On 6/12/2012 at 2.30 p.m. the pulse of the complainant was 110/min, BP was 180/140 and temperature was 99 F. The complainant had postpartum convulsions uncontrolled with MgSO4 and Daizepam and was referred to Adesh Hospital, Muktsar for further management.
First Appeal No. 235 of 2014 17
13. The story of calling Dr. Jatinder Sharma, Anaesthist, is an afterthought as his name does not figure in the reply as well as the affidavit of opposite party No. 2. In the additional affidavit, name of the Anesthetist Dr. Jatinder Sharma appears. In the medical record notes of the patient, Anesthetist has not put his notes as to how much anesthesia was given and was of what nature, which are required to be mentioned. It clearly shows that necessary Anesthetist and adequate medical supporting staff were not available with the hospital/Doctor as a result of which complications arose and hospital staff shifted the complainant to the Adesh Hospital. It appears that hospital was not well equipped to deal in case of complicated L.S.C.S. as a result of which, left side of the complainant was affected and ultimately she was taken to Adesh Hospital Muktsar by opposite party No.2 herself. Firstly Dr. Neva i.e. opposite party No.2 is not a Master in Surgery in Gynaecology and Obstetrics and secondly, the surgery was a complicated surgery, which an ordinary doctor cannot perform. Admittedly the surgery was performed after about 3½ hours after the admission of the complainant at 10.00 A.M. Doctors having MBBS degree cannot undertake complicated surgery. He/she can do only those surgeries, which he/she has been taught/trained in his/her course. Therefore, it has rightly been held by the President of the District Forum in the impugned order that opposite party No.2 was not competent to carry on surgery in question. Opposite party No.2 and the assisting medical staff conducted the surgery on the person of the complainant negligently and in breach of accepted standards of duty of care. First Appeal No. 235 of 2014 18
14. The perusal of Ex.C-16 (record of Adesh Hospital) reveals that when the complainant was admitted in Adesh Hospital, Muktsar, on 6/7.12.2012 she was in serious condition. On evaluation at Adesh Hospital, Muktsar the complainant was found to be having:
a) Sepsis.
b) Mutli thrombi in brain
c) Decreasing platelet count.
d) Elevated Liver Enzymes.
e) Deranged Renal function
f) Postpartum HELLP Syndrome, Seizure disorder.
The above complications are faced by the women who are about to or have just given birth. These are blood pressure and related problems (hypertensive disorders). Pregnant women who develop pre-eclampsia have high blood pressure, fluid retention (oedema or swelling) and protein in the urine. If pre-eclampsia is not treated, it can lead to serious complications. While mild pre- eclampsia can be monitored with blood pressure and urine tests at regular antenatal appointments or by the general physicians. More serious cases need to be monitored in well-equipped hospital. Treatment focuses on lowering blood pressure, but the only way to cure pre-eclampsia, if it is severe is to deliver the baby, which can be dangerous for the baby if it is premature.
15. The doctor at Adesh Hospital, Muktsar diagnosed the complainant having postpartum HELLP Syndrome and Seizure Disorder. All this was following intra operation, increased blood pressure and two episodes of GTCC (Generalize Tonic Colonic First Appeal No. 235 of 2014 19 Convulsions) and history of decreased movement of left side of the body. Before we deal with this, it would be appropriate to understand, what is HELLP? It is a rare condition called HELLP syndrome. HELLP syndrome is a combined blood clotting and liver disorder that can affect pregnant women. The letters in the name, HELLP, stand for each part of the condition 'Haemolysis (red blood cells in the blood break down), EL (elevated or raised liver enzymes) and LP (low number of platelets in the blood, which affects the blood's ability to clot). The only way to treat the condition is to deliver the baby. The main danger to the baby is if it is premature or if the mother becomes extremely ill. Acute fatty liver during pregnancy is another rare condition related to high blood pressure. Sepsis is an infection that can develop before or after the baby has been delivered. Infections can be more severe in pregnancy, and after delivery women may be at particular risk of infection of the womb or birth canal (genital tract infections). It is known as puerperal sepsis, or childbed fever, and was a leading cause of maternal deaths. Septicemia is where the infection spreads into the blood stream. These infections can develop very quickly, or take several days or weeks to build up. Women need to be treated with antibiotics and, in some cases, may need to be admitted to an intensive care unit. Blood Clots (Pulmonary embolism, PE or Deep Vein Thrombosis, DVT) in the legs or lungs (also known as thromboembolic conditions) are a leading cause of illness associated with pregnancy and birth and can be life-threatening. Blood clots form in one of the blood vessels, usually the legs (deep vein First Appeal No. 235 of 2014 20 thrombosis or DVT) and can break away, causing a blockage elsewhere, for example in the lungs (pulmonary embolism or PE-a blood clot in the main artery of the lung). Moreover, during anti-natal period no episode of G.T.C.C. was there.
16. The Adesh Hospital, Sri Muktsar Sahib, also referred the complainant to Dayanand Medical College and Hospital, Ludhiana where she had undergone the treatment. The details of the same are mentioned in Ex.C-17. From the record of the DMC, Ludhiana, it is revealed that the complainant was not having any episode of G.T.C.C. seizures during anti-natal period. The platelet count was very low as per the record. The hospital of the opposite party was not in a position to handle the complicated problem of the complainant and the same is clear from the facts narrated above.
17. Admittedly opposite party No.2 has not stated in her affidavit or the reply as to whether the Hospital was well equipped to deal any type of emergency specifically complicated surgery as was the present case. The signs of pre-eclampsia and footling of the fetus in the vagina were clear indicative of complicated surgery. Such a situation cannot be dealt by a Doctor, who is not Master of Surgery in Gynecology and Obstetrics. Furthermore, opposite party No.2 had not come with clean hands and had denied the presence of opposite party No.1 and Raja Singh, Compounder. A perusal of the photograph of banner of Juneja Hospital at page 201 of the record of the District Forum and the OPD Cards, Mark C-3 and Mark C-4 clearly reveals that the names of Dr. Rajneesh Juneja, Dr. Manav Juneja and Dr. Neeva Juneja appear. Since the complainant has First Appeal No. 235 of 2014 21 even specifically pleaded about this but the same has been denied by the opposite parties. Not only this, even the record of the pre- operative tests carried out by opposite party No.2 has not been placed on record. Opposite party No.2 has withheld the material documents and an adverse inference is required to be drawn against opposite party No.2. This act of opposite party No.2 is contrary to the medical ethics as well. The above facts clearly show deficiency and unfair trade practice on the part of opposite party No.2.
18. It appears that even valid consent was not taken by opposite party No.2 from the complainant or her close relatives specifically the husband. The Form which has been placed on record is a blank form and the same is on the back of Bed Head Ticket Ex.OP-6. There is only thumb impression of one Angrej Kaur, who is written as mother-in-law in the brackets. A perusal of the Bed Head Ticket Ex.OP-6 would reveal that the notes written at 12.30 p.m. are with different ink and to the naked eye it does not appear to be of the same person, who had written the earlier part of the Bed Head Ticket, which is stated to be done by opposite party No.2. At 2.30 p.m. also the pulse, B.P. and temperature of the complainant were recorded by someone else with different ink and pen, whereas the writing referring the complainant to Adesh Hospital, Muktsar has been written by some other person with different ink and pen. Therefore, Bed Head Ticket appears to have been fabricated by opposite party No.2 to save herself. This is not a valid consent as the Authorization for Treatment was blank. There is no mention of what procedure was to be done upon the person of the complainant First Appeal No. 235 of 2014 22 nor post-operative complications were mentioned. Since no informed consent is there, therefore, this action of opposite party No.2 is in violation of judgment of Hon'ble Supreme Court reported in (2008) 2 SCC 1 (Samira Kohli v. Dr. Prabha Manchanda) in which it has been held that consent in the context of a Doctor Patient relationship means the grant of permission by the Patient for an act to be carried out by the Doctor such as a Diagnostic, Surgical or Therapeutic procedure. What is relevant and of importance is the inviolable nature of the Patient's right in regard to his body and his right to decide whether he should undergo particular treatment or surgery or not. The nature of information is required to be furnished by a Doctor to secure a valid or real consent. In the present case no such information has been furnished in the Authorization For Treatment form. Rather the same is blank. There is only thumb- impression of one Angrej Kaur, who is stated to be her mother-in- law. Hence it is held that there is no informed consent in this case before conducting the surgery on the person of the complainant. This act of opposite party No.2 also amounts to deficiency in service and medical negligence.
19. A further perusal of Bed Head Ticket Ex.OP-6 reveals that there were no notes with regard to the Anaesthetist. No tests of proteins were conducted nor any pre-operative tests or scans were carried out to find out the nature of complexity, which is a must before proceeding for surgery. It is, therefore, held that no proper line of treatment has been adopted by opposite party No.2 in conducting surgery upon the complainant.
First Appeal No. 235 of 2014 23
20. In "DH Kumari and others versus Nizam Institute of Medical Sciences" I (2013) CPJ 520 (NC) it is held that the doctor was guilty of medical negligence, where the doctor did not follow the standard diagnostic protocol in conducting the surgery. Similarly, in "Deep Nursing Home versus Manmeet Singh Mattewal and others" III (2012) CPJ 154(NC) where standard diagnostic protocol was not followed, it was held to be a case of gross medical negligence in management of patient by the treating doctor.
21. The Hon'ble Supreme Court in the case of "Nizam Institute of Medical Sciences versus Prashant S. Dhanauka and others"
II(2009) CPJ 61(SC) has held that in case of medical negligence, once an initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on the hospital or to the attending doctors and it is further hospital to satisfy the court that there was no lack of care or diligence.
22. Before parting with this judgment, we may observe here that this Commission and the District Forums are flooded with medical negligence complaints and the claims rejected by the Insurance Companies invariably on the ground of pre-existing disease and for other medical reasons. The Fora are not well equipped many a times to deal with such medical issues. For this purpose, Medical Benches headed by medically trained Judges and assisted by Medical experts is a necessity. The State Government or the Central Government should make an endeavour to constitute a Medical Expert Committee, which may sit with the Members of the First Appeal No. 235 of 2014 24 various Foras for deciding the cases involving medical mal-practice and insurance claims in which medical issues arise. It would ensure that judgments are passed on sound medical opinion and principles rather than apparent credibility of expert witnesses.
23. In view of our above discussion, we do not find any infirmity or illegality in the impugned order passed by the District Forum. There is no merit in the present appeal and the same is hereby dismissed with no order as to costs.
24. The appellant had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
25. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April 11, 2017 Bansal