National Consumer Disputes Redressal
Arvind Pandey & Anr. vs Dr. (Mrs.) Sulekha Saran & Ors. on 6 July, 2012
OP 10/1998 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 209 OF 2000 1. Arvind Pandey R/o B-40, Karbla New Delhi-110003 2. Master Ayush Pandey (Minor) S/o Mr. Arvind Pandey Through his father & natural guardian R/o B-40, Karbla New Delhi-110003 Complainants Versus 1. Dr. (Mrs.) Sulekha Saran 2. Dr. (Mrs.) Sonam Topdan 3. Dr. Chhaya Agarwal 4. Dr. Amarjeet Basur 5. Dr. Sushil Choudhary 6. Dr. Shiv Kumar 7. Dr. Virendra 8. Dr. (Ms.) Jayalakshmi All employed as Medical Officers with the Central Government Health Scheme & working at the Maternity & Gynae Hospital R.K. Puram New Delhi-110022 9. Medical Superintendent CGHS Maternity & Gynae Hospital R.K. Puram New Delhi-110022 10. Ministry of Health & Family Welfare Government of India Nirman Bhawan New Delhi-110011 Through its Secretary 11. Director General Health Services Central Government Health Scheme Nirman Bhawan New Delhi-110011 Opp. Parties BEFORE : HONBLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. S.K. NAIK, MEMBER Appearance : For the Complainants : Mr. S.K. Gupta, Advocate For the Opp. Parties : NEMO Pronounced on : 6th July, 2012 O R D E R
PER S.K. NAIK, MEMBER
1. Arvind Pandey, husband of deceased Abha Pandey, on his own behalf and on behalf of his minor son Ayush Pandey as the natural guardian, has filed this complaint under Section 21 of the Consumer Protection Act, 1986, alleging gross medical negligence on part of 8 doctors arrayed as opposite parties no. 1 to 8 as also against (i) Medical Superintendent of CGHS Maternity & Gynae Hospital, opposite party no.9; (ii) Ministry of Health & Family Welfare, Government of India, opposite party no.10; and (iii) Director General, Health Services, Central Government Health Scheme, opposite party no.11, and has claimed a compensation of Rs.25,00,000/-.
2. Succinctly put, the case set up by the complainant is that while on the family way his wife, deceased Abha Pandey, was being checked up at CGHS Maternity & Gynae Hospital, R.K. Puram, New Delhi (hereinafter referred to as the Hospital) at regular intervals from 10th of September, 1998 onwards. She had undergone as many as eight check-ups until the 10th of December, 1998, during which neither any abnormality or infirmity was either suggested or diagnosed by the attending doctors. Subsequently during the check up on 17th of December, 1998 while no abnormality was found, however, it was for the first time that the doctors informed her that she cannot have a normal delivery and that she would have to undergo a Lower Segment Caesarean Section. A week later on the 23rd of December, 1998 after a pre-surgery check-up and on confirmation that she was not having any complications, she was taken to the operation theater for a caesarean section and a healthy male child was born at 10.35 a.m. As per the complainant, at 10.55 a.m. he was asked by the doctors to arrange for two units of blood from the Blood Bank of Indian Red Cross Society, as a sudden emergency had cropped up. He, accordingly, rushed to collect the blood of required blood group from the Red Cross Society, where only one unit of the requisitioned blood group was available and when he returned to the Hospital, he found that an ambulance was being readied. To his utter surprise, he was informed that due to some serious complication the patient had to be transferred to Safdarjung Hospital for better management. He, along with a doctor and an attendant of the Hospital, rushed to the Safdarjung Hospital and reached there at about 1.30 p.m. and the doctors at the emergency on examination stated that the patient had already expired. The complainant along with his deceased wife thereafter returned to the Hospital but no post mortem was suggested.
3. Implicating all the opposite parties and holding them negligent and liable for the death of his wife, the complainant has alleged that the doctors erroneously diagnosed the case of his wife to be a case of caesarean section. According to him, (i) such a procedure was neither necessary nor called for; (ii) there was neglect on part of doctors and other authorities of the Hospital as it was ill-equipped to meet an emergency and (iii) there was total failure on part of the doctors to make provision for blood and other essential medical facilities. Besides, they have failed to ensure timely, correct and proper medical help to the deceased. Stating that the complainant has suffered indescribable mental agony and shock and that Master Ayursh Pandey, complainant no.2, has been deprived of love, affection and care of his mother, compensation of Rs.25,00,000/- has been prayed for.
4. On presentation of the complaint, this Commission vide order dated 12th of March, 2001 while admitting the complaint issued notice in the first instance only to opposite parties no. 10 and 11 i.e. Ministry of Health & Family Welfare, Government of India and Director General, Health Services, Central Government Health Scheme respectively. In their written submissions, the said opposite parties raised a preliminary objection, in particular that the complainant is not covered within the definition of consumer and service under the Consumer Protection Act, 1986 (hereinafter referred to as the Act). In support thereof, they interpreted judgment of the Honble Supreme Court in the case of Indian Medical Association v. V.P. Shantha & Ors. [III (1995) CPJ 1 (SC)] to say that the Honble Apex Court has held that service rendered at a government hospital/health center/dispensary, where no charge whatsoever is made by any person availing the service and is given free treatment, is outside the purview of expression service as defined under Section 2(1)(o) of the Act. Referring also to the judgment of this Commission in the case of Additional Director, CGHS, Pune V. Dr. R.L. Bhutani rendered in Revision Petition No. 219 of 1995 decided on 9th of February, 1995, it has been stated that a government servant under the CGHS is not a consumer as defined under Section 2(1)(d) of the Act.
Additionally, they have also raised the plea that the complaint required elaborate evidence necessitating examination of witnesses and documents and that it involved complicated questions which cannot be satisfactorily adjudicated in a time bound summary proceedings under the Act.
5. The objections raised by the opposite parties no. 10 and 11 were overruled on the basis of this Commissions earlier order passed in the case of Jagdish Kumar Bajpai v. Union of India [RP No. 570 of 2002] decided on 20th of October, 2005, in which this Commission held that the doctors who have given treatment, even under the CGHS scheme in a government hospital, free of charge, would be covered under the Act. Notice was, accordingly, issued to all the opposite parties vide order dated 3rd of July, 2006. In response thereto, while opposite party no. 8-Dr. M.S. Jayalakshmi vide her letter dated 17th of August, 2006 submitted the details of her role as a pediatrician in the whole episode, written version on behalf of opposite parties no. 9 to 11 was filed on 16th of July, 2007 and that on behalf of opposite parties no. 1 to 7 was filed on 20th of May, 2010.
6. In their submission in the written version, the opposite parties, besides raising once again the issue of maintainability, have stated that the wife of the complainant had higher risk factor and the best possible medical treatment available in the Hospital having been given to her, it cannot be said that there has been any deficiency in rendering service. It has been stated that the deceased was an elderly Primigravida with negative Rhesus factor while her husband belonged to the positive Rhesus factor. Further, Isoimunisation status was unknown as indirect Coombs tests had not been done. It has further been stated that during the course of her periodic check-ups she had been advised administration of injection Anti-D and had been cautioned about the ill-effects in case of failure to get the injection.
An averment has also been made that on the 10th of December, 1998 when the deceased was at 36 weeks 4 days pregnancy, the opposite party/doctors attempted a pelvic assessment but she was very uncooperative forbidding the obstetrician for assessing the pelvic and determining the mode of delivery. The height of the patient being short at 411 a repeat indirect Coombs test and a haemoglobine test were advised. According to the opposite parties, when she was subjected to a second pelvic assessment on the 17th of December, 1998 she was found to have contracted pelvis.
It was because of this contracted pelvis that an elective caesarean section was considered necessary and the complainant had been informed about it. On the same day, the patient escorted by her husband went for pre-anesthesia check-up, where a detailed history was elicited and the history of allergy to sulpha drugs was also unearthed. It has been categorically stated that the patient while being fit for anesthesia was advised to keep a donor of blood ready in case of any emergency.
7. In the rejoinder affidavit filed by the complainant, it has been denied that the treatment given to his wife at the CGHS hospital was free of charge because firstly he is required to compulsorily contribute to the CGHS scheme every month and secondly that the opposite parties have misinterpreted the judgment of the Honble Supreme Court in the case of V.P. Shantha & Ors. (supra), wherein the Honble Apex Court has expounded the legal proposition that where medical service was rendered as part of terms and conditions of service, the same would not amount to free service and would constitute service for the purposes of the Act. Further, relying upon the judgment of the Honble Supreme Court in the case of Laxman Thamappa Kotgiri V. G.M. Central Railway & Ors. (Civil Appeal No. 171 of 2005), it has been submitted that where treatment is provided as a part of conditions of service of an employee and the services rendered are subsidized by the employer, the case would squarely fall within the ambit of the Act.
8. On the pleadings of the opposite parties that there has been no negligence, the complainant with greater emphasis has reiterated his allegations in the complaint.
In a counter argument to the opposite parties taking shelter behind complainants wife having higher risk factor, it has been submitted that in view thereof it was all the more necessary for the opposite parties to have given more attention and medical care. The fact that the opposite parties failed to foresee the ensuing complications and arrange for the blood speaks of the casual approach. Reference to the deceased being an elderly primigravida and her short stature have been raised to cover up the medical negligence. The complainant has also denied that Rh-ve and Rh+ve had anything to do with the complications as it is found to be quite common and in any case the opposite parties should have checked for Rh antibodies during the periodical pregnancy check-ups. At no stage was the complainant informed that the delivery of his wife involved higher risk and that he was supposed to make arrangement for blood or keep the donors ready. Relying on some medical literature and WHO reports, the complainant has reiterated his allegations that the opposite parties had failed to ascertain the proper risks prior to the caesarean section and further that wrong decisions were taken at the time of surgery and neither proper diagnosis for loss of blood was done nor adequate measures such as procurement of blood before the surgery etc. were undertaken.
9. In support of their respective contentions while the complainant has filed his own affidavit, the opposite parties have relied upon their written version and correspondence exchanged between them and their advocate and the letters addressed to the Registrar of this Commission.
10. During the pendency of the complaint, the complainant filed an application to constitute a medical board and obtain their opinion as to whether there has been any medical negligence in the handling of the case of his wife. On the basis of the request, the Director, All India Institute of Medical Sciences, New Delhi was requested to constitute a panel of gynecologists to examine the treatment record and offer their opinion as to whether there was any negligence on the part of the opposite parties-doctors in dealing with the case of the deceased Smt. Abha Pandey. The Director, All India Institute of Medical Sciences constituted a medical board comprising of six medical specialists, three of whom belong to the Department of Obstetrics and Gynecology, one from the Department of Anesthesiology, one from the Department of Forensic Medicine with the sixth member from the hospital administration who acted as the Member Secretary, and subsequently submitted the report of the medical board. The report of the medical board being very relevant is reproduced below :-
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ANSARI NAGAR, NEW DELHI-110029 F.2-32/MedicalBoard/2010-Estt.(H.) Dated :
13.01.2011 Subject: Report of the Medical Board at AIIMS in compliance of orders dt. 11.10.2010 of Honble National Consumer Disputes Redressal Commission, New Delhi, vide Misc. Application No. 367 of 2010 in Original Petition No. 209 of 2000 titled Mr. Arvind Pandey & Anr. Versus Dr. (Mrs.) Sulekha Saran & Ors.
********* The medical board was constituted by the Medical Superintendent, AIIMS on subject noted above, to look into the various points faced by the Honble National Consumer Disputes Redressal Commission, New Delhi. The Board consists of the following members:
1. Dr. Sunesh Kumar -
Chairman Professor, Department of Obs. & Gynae
2. Dr. Neerja Bhatla - Member Addl.
Professor, Deptt. Of Obs. & Gynae
3. Dr. Neena Malhotra - Member Assoc.
Professor,Deptt. Of Obs.
& Gynae
4. Dr. S. Rajeshwari - Co-opt. Member Professor, Deptt.
Of Anesthesiology
5. Dr. Sanjeev Lalwani -
Co-opt. Member Assistant Professor, Deptt. Of Forensic Medicine (TC)
6. Dr. Shalini Bhalla - Member Secy.
Department of Hospital Administration The board met on 10.11.10, 24.11.10, 6.12.10, 11.12.10 and 12.01.2011. All members went into details of the document made available. Following is the opinion of the board in the case;
From the available record it appears:
a. That this patient (Late Mrs Abha Pandey) was having 5 months pregnancy as on 27th August 1998. She was booked on 27/8/98 at the ANC Clinic. She was an elderly Primigravida, of 22 weeks gestation, Rh-ve (with Rh+ve Husband) and her isoimmunization status was unknown as indirect Coomb had not been done. She had a history of spotting per vaginum on and off since 5 months. No abnormal findings were evidenced on local examination.
She had been advised to submit to indirect Coombs test at Safdar Jang Hospital and visit after 2 weeks.
b. That Anti D was advised on 10/9/98. Patient submitted for Anti D on 8/10/98. On 22/10/98 patient was advised hematological investigations. Patient underwent tests on 6/11/1998, ANC done and advised to visit after 2 weeks.
No abnormal findings on 5/11/98 and 19/11/98.
c. That on 3/12/98 on her Ante Natal Check UP, a free floating head (35 weeks and 4 days gestation) was found on examination.
On 10/12/98 there is a mention of a pelvic assessment whereby her height was measured (411) and whereby it was stated that patient was found to be uncooperative. Repeat Coombs test advised.
On 17/12/98, when patient was at 37 weeks 4 days of gestation, a second pelvic assessment was done whereby she was found to have a contracted pelvis. This was communicated to patient. A Pre Anaesthetic Checkup (PAC) done on the same day. Patient was told to keep the donor ready.
d. That patient was admitted on 22/12/98 and an elective caesarian section was done on 23/12/98. Lower Section Caesarian Section (LSCS) was done under GA with breech extraction of a healthy male baby.
e. That patient developed complications such as bronchospasm, hypotension and excessive bleeding from vagina during LSCS. She was detected for partial inversion of uterus and atony. All emergency treatment and medications were given.
f. That husband of the deceased patient was asked to arrange for the blood from International Red Cross Parliament Street.
This took him 2 hours.
g. That in the meantime patients condition deteriorated. Patient was re-induced and Subtotal hysterectomy was performed. She continued bleeding. Patient was then shifted to Safdarjung hospital where she was declared brought dead.
h. That the patient was then taken back to CGSH Hospital and death slip was given.
In view of the above board members are of the considered opinion are as under :
1. The medical records available from the concerned hospital pertaining to the case do not provide enough information to determine in detail the sequence of events and the action taken by the team of doctors on the day of mishap.
2. During antenatal period, no significant abnormality was detected. Since Patient was Rh Negative and Husband was Rh Positive, Coombs test was prescribed and anti D was administered. In the last phase of antenatal check up, deceased patient was diagnosed to be having contracted pelvis, therefore, delivery by caesarean section was planned. Pre-Anaesthetic Check Up was done and patient was asked to keep the donor ready.
3. During the surgery patient developed complications like broncho-spasm and hypotension which were managed appropriately. However, patient developed severe post partum hemorrhage for which blood transfusion was required (and blood transfusion was indicated).
There was no facility of blood bank/blood storage in the hospital, therefore, the husband of deceased patient was asked to arrange it from Red Cross Blood Bank, at Parliament Street, Delhi, but arrangement of blood got delayed. Meantime, considering the deteriorating condition of the patient subtotal hysterectomy was done as an attempt to save the life of the patient and patient was transferred to higher centre (Safdarjung Hospital) but was declared brought dead.
4. The complications of broncho-spasm, hypotension and postpartum haemorrhage (due to atonic uterus) are known to occur but are highly unpredictable in otherwise normal circumstances. The complications were detected in time and immediate measures were taken to manage them.
However, immediate blood transfusion could not be done as there was no blood bank or blood storage facility in hospital and arrangement of blood from other blood bank took time. Further, patient could not be immediately transferred as considering the deteriorating condition of the patient Subtotal Hysterectomy was carried out as a life saving measure and later on patient was shifted to SJH where she was declared brought dead.
5. The treatment given and measures taken to save the life of the patient were appropriate and as per accepted professional practice. The doctors resuscitated the patient with available methods except blood. Even hysterectomy was done in an attempt to save the life. Therefore board members are of the opinion that no medical negligence can be attributed on the part of the doctors. However:
a. In hind-sight, prior arrangement of blood would have been desirable.
b. Early judgment/decision to transfer the patient to a higher center could have been desirable.
Sd/- Sd/- Sd/-
(Dr. Sunesh Kumar) (Dr. Neerja Bhatla) (Dr.Neena Malhotra) Chairman Member Member Sd/- Sd/- Sd/-
(Dr. S. Rajeshwari) (Dr. Sanjeev Lalwani) (Dr. Shalini Bhalla) Member Member Member Secy.
11. We have carefully perused the records of the case; the report of the medical board; and have heard the learned counsel for the complainant at length but did not have the advantage of hearing the say of the opposite parties as no one appeared for them despite sufficient wait. We, therefore, proceed to decide the matter, on the basis of the records filed by the opposite parties.
12. Since the opposite parties have repeatedly raised the question as to whether a government servant availing medical treatment in a government hospital under the CGHS scheme would be consumer and the treatment provided free of charge would constitute service as defined in the Act, we consider it appropriate to first deal with this aspect. It may be stated that these very issues came up for consideration before a Larger Bench of this Commission in the case of Jagdish Kumar Bajpai (supra). To set at rest the orders passed by various Benches of this Commission upholding the decision of some of the District Forums and State Commissions that a government servant in such a situation was not a consumer within the meaning of the Act, this Commission relying on the judgment of the Honble Supreme Court in Laxman Thamppa Kotgiri (supra), in which in a similar case of a railway employees wife having lost her life while being treated free of charge in a railway hospital, the Honble Apex Court reversing the view of the State Commission as well as this Commission held that since it was not in dispute that medical treatment given in the hospital to the employees and his family members was part of the conditions of service and that the hospital was being run and subsidized by the Appellants employers, namely, the Union of India, the case would fall within the parameters laid down in para 55(12) [it should have been 56(12)] of the judgment in V.P. Shanthas case. The Court also considered the decision in State of Orissa Vs. Divisional Manager, LIC & Ors.
(1996) 8 SCC 655 and opined that V.P. Shanthas case was decided by a Larger Bench and was binding. The law laid down by Honble Apex Court V.P. Shantha (supra) in para 56(12) is as under :-
(12) Similarly, where as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service under Section 2(1)(o) of the Act.
13. Having regard to the judgment (supra) of the Honble Apex Court, in particular that of a Larger Bench of the Supreme Court in the case of V.P. Shantha and after analyzing the arguments advanced against the government servants, including the pensioners not falling under the definition of a consumer under Section 2(1)(d) of the Act or availment of service as defined under Section 2(1)(o) of the Act, this Commission in Jagdish Kumar Bajpai (supra) in unequivocal terms held as under :-
The definition of the word consumer under Section 2(1)(d) provides that a person would, inter alia, be a consumer if he hires or avails of the services for consideration paid (paid in past or agreed to be paid in future including deferred payment). In consideration of service rendered to the Government till the age of superannuation, if right is conferred upon an employee to get pension as well as other benefits including medical treatment prescribed by various rules of the schemes framed by the Government, it cannot be held that it is a free-service. Such employee would be a consumer as defined in Section 2(1)(d)(ii) of the Consumer Protection Act. Service rendered by the Government employees before retirement would be consideration for providing medical facilities to him or his family members. Hence, it cannot be said that services rendered by the hospital which is subsidized by the Government is rendering service free of charge.
14. In view of this settled position of law, we reject outright the objection of the opposite parties that the complainant is neither a consumer under Section 2(1)(d) nor has availed service under Section 2(1)(o) of the Act.
15. Coming to the facts of the case, we do not find any dispute with regard to the various dates when the complainants wife was taken for ante-natal check-ups at regular intervals and the date of her admission for delivery on the 22nd of December, 1998 and further the birth of a healthy baby after the caesarean section on the 23rd of December, 1998 at about 10.35 a.m. and that the doctors asking the complainant to procure two units of blood from the Indian Red Cross Society, Near Parliament Street, New Delhi after few minutes of the operation.
There is also no dispute with regard to the patient being referred to Safdarjung Hospital for better management and the patients death at about 2.00 p.m. What is, however, being contested by the opposite parties is that complainant and his deceased wife did not meticulously follow the advice rendered by them during some of the antenatal check-ups and further that at the time of anesthesia check-up on the 17th of December, 1998 complainant had been informed to keep a donor ready in case of any emergency as his wifes case involved higher risk factor. In the background of the fact that the deceased mother after the caesarean section giving birth to a child expired within a period of three and a half hours, the case has got two distinct features for analysis. In the first phase, it has to be examined as to whether during the antenatal check-ups, the concerned doctors had properly assessed the status of the deceased with regard to her pregnancy.
While it is the say of the complainant that the opposite party-doctors had undertaken as many as eight antenatal check-ups and had recorded that there was no abnormality or infirmity in the physical condition of his wife, it was only on 17th of December, 1998 that for the first time she was informed that she cannot have a normal delivery and that they would have to resort to Lower Segment Caesarean Section (LSCS). The complainant has further emphatically stated that at no stage either during antenatal check-ups nor after her admission for delivery on the 22nd of December, 1998 or even on the 23rd of December, 1998 when the LSCS was undertaken his wife or his family members were ever informed that the delivery was fraught with risks. It has further been alleged that no one informed him that the hospital does not have any arrangement for blood or that she was required to be prepared to arrange for the blood and donors at short notice. The only explanation offered by the opposite parties to the allegations of the complainant is that while at the time of pre-anesthetic check-up on 17th of December, 1998 the complainant who accompanied his wife had been duly informed about the possible risk factor and the requirement of blood. Unfortunately the medical record for this particular date of 17th of December, 1998 has not been produced by the opposite parties on the plea that all the medical papers were with the complainant, who has filed all the other medical records, except the record of 17th of December, 1998 just to prove his case that he had not been advised to arrange for the blood. The contention of the complainant that the wife being Rh-ve and he being Rh+ve had nothing to do with the complications cannot be accepted since the incompatibility of these two opposite Rh factors is well established in medical science. We find from the medical records at page 17 and 19 of the paper-book filed by the complainant himself that the treating doctor had clearly stated the deceased to be a primigravida of 22 weeks pregnancy with Rh-ve factor. It is, of course, not stated that since the husband belongs to the Rh+ve factor, her pregnancy was likely to have undesirable implications. The treating doctor must have informed the patient or the complainant about the likely repercussions of the incompatibility of opposite Rh factors.
However, be that as it may, a perusal of the medical records before undertaking the LSCS does not indicate that adequate information or advisory necessary to be given to a prospective mother, had been rendered.
16. Coming to 22nd of December, 1998 when the deceased patient was admitted for delivery, a perusal of the medical record at page 29 though clearly records that the doctors planned for elective LSCS on the next date and they found her BP and other parameters normal, at the bottom of this record various instructions have been given for preparing the patient for the LSCS on the 23rd of December, 1998. The relevant part thereof reads as under :-
Preop orders for 23/12/98 (1) Nil orally after 10 pm (2) Consent for LSCS informed (3) Prepare parts abdomen mid thigh (4) Proclolyses enema C/M (5) Inform S.O.S.
17. Since the opposite parties have been contending that the complainant had been advised to arrange for or keep the blood donors ready, this particular pre-operative instruction is very relevant. Had that been the case, this instruction/advisory would have found a mention with regard to the relevant blood group of the patient and the quantity that was required to be kept ready. If the hospital did not have the arrangement for the blood and considering that the elderly pregnant woman was of the Rh-ve factor, in our view, it was very necessary for the doctors to have made prior arrangement for the required blood before embarking on the LSCS. Obviously, this was not done. What, however, we find is that the opposite party/hospital is a purely maternity center undertaking delivery of children including complicated cases all-round the year. In the process, they must have encountered situations wherein even in a normal delivery blood would have been required for transfusion to anemic mothers. What is more surprising is that if the hospital did not have its own arrangement for the storage of blood, the least it ought to have was an arrangement with the Safdarjung Hospital or the All India Institute of Medical Sciences, which are located very close to it or even with the blood bank of Indian Red Cross Society, Near Parliament Street, New Delhi on S.O.S. basis, so that in case of sudden emergency blood could be arranged at the shortest possible notice. In this case, while the deceased delivered a healthy baby at 10.35 a.m., soon thereafter she developed bronchospasm, hypotension and excessive bleeding from vagina, which goes to show that it was the lack of foresight on part of the doctors resulting in such complications, for which they had not made any prior arrangement. We cannot but hold that opposite party no.1/Dr. Sulekha Saran, who was the doctor primarily concerned for the LSCS and was the team leader, has to be held negligent. No doubt, the medical board constituted by the Director, AIIMS has held that the treatment given and measures taken to save the life of the patient were appropriate as per the accepted medical practice. In our view, it does not fit into the facts and circumstances of the case.
The opinion that even hysterectomy had been undertaken in an attempt to save the life, again does not convince us as we are of the view that not only the LSCS without prior arrangement of blood should have been conducted but the doctors further compounded the negligence by undertaking the hysterectomy without prior arrangement of blood. The sub total hysterectomy performed without prior arrangement of blood aggravated the complications as the hysterectomy operation itself would have resulted in further loss of blood without any replenishment. We, therefore, cannot accept the view that the sub total hysterectomy was resorted to as a life saving measure. We find that the report of the medical board even though opines that no medical negligence can be attributed on part of the doctors, it all the same states as under
:-
(a) In hind-sight, prior arrangement of blood would have been desirable and
(b) Early judgment/decision to transfer the patient to a higher center could have been desirable.
These observations of the medical board by itself imply that the doctors and the hospital have failed to anticipate/foresee the contingency/complications that was so obvious to arise in this case, which they had diagnosed to be of high risk category.
18. The Honble Supreme Court in the case of Jacob Mathew V. State of Punjab And Anr. [(2005) 6 SCC 1], while discussing medical negligence in para-10 of the judgment have held that the concept of negligence to Indian jurisprudential thought is settled as under :-
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.
19. From the conspectus of facts and circumstances of this case, it is obvious that the concerned doctor and the hospital had failed to anticipate the problems arising out of the complications and take precautionary measures, such as arranging for the blood or keeping an ambulance ready for shifting of the patient to Safdarjung Hospital immediately noticing that the postpartum haemorrhage was not being controlled before attempting any hysterectomy. Obviously, they had failed to exercise due care on their part, which has resulted in the death of the complainants wife.
20. Having held that medical negligence resulting in the death of the complainants wife stands duly established, the question that arises is as to whether all the members arrayed as opposite parties i.e. as many as 8 doctors apart from the hospital, the Director General of Health Services and the Central Government are to be held liable.
From a perusal of the record, we find that opposite party no.1/Dr. (Mrs.) Sulekha Saran was the doctor directly concerned with the conduct of the caesarean section. It was under her direction and supervision that the pre-operative orders for preparing the patient for the caesarean section were passed. On the day of the operation i.e. on 23rd of December, 1998 it was she who undertook the caesarean operation. Of course, she was assisted by the other doctors, some of them being gynaecologists and a paediatrician, just to take care of the new born child, who had very limited role in the entire episode. The other doctors were roped in as they assisted opposite party no.1/Dr. (Mrs.) Sulekha Saran when complications arose after the delivery of the child and they could not be held liable or responsible for the development which went beyond control. The decision to undertake hysterectomy when the bleeding did not stop was also that of opposite party no.1. We are of the view that opposite party no.1 ought to have enquired and ensured that before taking the caesarean operation of a high risk patient there was arrangement for the blood and in any case if the hospital did not have such facility, she ought not to have undertaken the caesarean operation and instead ought to have advised the complainant to take his wife to a better hospital equipped with the facility of blood bank. It is here that the doctor has failed to do what was expected of her in the ordinary course and therefore she alone has to be held liable and no other doctor.
21. Insofar as the hospital is concerned, it has to share the major blame, as being a maternity hospital it has been specialising in attending to pregnant women and delivery of children and should have been fully equipped for all emergencies, including a blood bank as in a society as ours many would-be-mothers coming from the not-so-well-to-do-families may face the problem of post-delivery haemorrhage requiring blood transfusion. The hospital, therefore, would be primarily responsible for this lapse. Had there been a blood bank, the precious life of the complainants wife perhaps could have been saved.
22. The next question that now arises is what should be the compensation that should be awarded to the complainants. The complainant has sought an award as damages in the sum of Rs.25,00,000/- for the loss of love, affection and mental agony to both him and his son. No doubt, the complainant has lost his 30 years old wife and has been burdened with the care of bringing up the infant son left by her. We are, however, informed that the complainant has later re-married. While with the passage of time and re-marriage his mental agony may have been assuaged to a great extent, the son left by the deceased will forever remain without the love and affection of a mother. The determination of damages for loss of human life is an extremely difficult task as has been held by the Honble Supreme Court in the case of New India Assurance Company Ltd. V. Satender [(2006) 13 SCC 60] but all the same and considering the facts of the case, we take note of the fact that the deceased at the time of her death was only a house-wife, though she perhaps had the potential of taking up her erstwhile job of a nursery school teacher after a few years of delivering a child. Unfortunately that was not to be. On consideration of the totality of facts and circumstances, therefore, we are of the view that a lump sum compensation of Rs.5,00,000/- would be a just and proper award. Out of this amount, the complainant Arvind Pandey can retain a sum of Rs.2,00,000/- for himself and place the remaining Rs.3,00,000/- in a fixed deposit in the name of his minor son till he acquires majority. The award has to be implemented by opposite parties no. 1, 9, 10 and 11 jointly and severally, within a period of six weeks from today, failing which the award will attract interest of 9% per annum for the period of default.
23. The complaint accordingly is allowed in the above terms.
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( R. C. JAIN, J. ) PRESIDING MEMBER ..
(S.K. NAIK) (MEMBER) Mukesh