State Consumer Disputes Redressal Commission
Mrs. Medha Prasad Kane vs K.E.M. Hospital Society A.H. Wadia ... on 21 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/14/394
Mrs.Medha Prasad Kane
Through power of attorney holder
Shri Ganesh Anant Kane
Shiv Krupa, Overseers colony
South Shivaji Nagar
Sangli 416 416. .....Appellant
Versus
K.E.M.Hospital Society's
A.H.Wadia Nursing Home
Sardar Mudliar Road .........Respondent
Rasta Peth, Pune 411 011
BEFORE: Justice A.P.Bhangale, President
Usha S. Thakare, Judicial Member
PRESENT: Mr.Shirish Deshpande-Advocate for appellant
Mr.Rabindra Hazari-Advocate i/b.Rabindra Hazari Associates
for respondent
Per Hon'ble Justice A.P.Bhangale, President
1. This appeal arose out of the judgment and Award dated 25.04.2014 passed by the District Consumer Disputes Redressal Forum, Pune in Consumer Complaint No.259 of 2008, whereby the Complaint was dismissed.
2. Heard submissions advanced before us.
3. Briefly stated facts are:-
The complainant had delivered child in the Hospital of the OP Hospital on 08.04.2000. The examination of the blood group of the child was conducted and it was found as AB-Rh negative. Complainant was discharged from the Hospital on 14.04.2000.
4. On 02.04.2004 for second delivery the Mother was examined at Ushaprabha Hospital at Sangali belonging of Dr.Shaila Khadilkar.
1Complainant was informed about the probable date of the delivery in first week of May 2004. On 16.04.2004 and 17.04.2004 the Complainant was examined and was advised of indirect Coombs test which was positive. Complainant was advised to examine the blood group of the first child, which was found as A-Rh positive on 19.04.2004. Doctor also advised sonography test. Dr.Pradeep Kulkarni gave report on 20.04.2004. Thereafter, Dr.Khadilkar advised the indirect Coombs Test, on 23.04.2004, it was reported positive.
5. Complainant was suffering anti-body tittering. Dr.Khadilkar raised inference that the OP KEM Hospital gave wrong report of first Child Archit. The study of Mrs.Medha's ICT with rising body titter and Archit's blood group as A-Rh positive, Dr.Khadilkar explained the seriousness in Medha's pregnancy to Medha and her in laws and said there is need to go early delivery of Medha in next two or three days to avoid danger to safety of the second Child.
6. Archit's blood group given by OP as A-Rh negative was wrong. The correct blood group of Archit was A-Rh positive. Hence when Mother's blood group was Rh negative and the first child was Rh positive, there is need to give Anti D injection to the Mother within 72 hours of her delivery. There was negligence in not giving the proper and correct treatment to Medha by OP KEM Hospital, Pune.
7. As per discharge card Anti D injection was not given to Mrs.Medha. As a result, Mrs.Medha was Rh sensitized after her first delivery on 08.04.2004 and this caused the complications in her second pregnancy. Under the circumstances, Dr.Khadilkar had decided to have a caesarian operation on 26.04.2004 and performed it by Pediatrician Dr.Sudha Bhave. Medha gave birth to Female child (subsequently named as Harshada) Harshada's blood group was found A Rh positive. Serum billirubin which was found as 2.1 increases to 20.8 between 27.04.2004 to 29.04.2004. Therefore, an Exchange Transfusion was under taken on Harshada on 29th April 2004 under care of Dr.Sudha Bhave. Harshada was discharged on 2 06.05.2004.
8. Case papers were then obtained from K.E.M Hospital, Pune. On 24.03.2006 notice was sent to KEM Hospital, Pune. Failing Compliance thereof the Complaint was filed on 13.04.2006.
9. Learned Counsel Shri Shirish Deshpande on behalf of the appellant argued that the impugned Judgment and order suffers from non-application of mind. According to Shri Deshpande there was error on the part of the OP Hospital not to administer anti D injection to the Complainant soon after her first delivery of Child Archit. Shri Deshpande urged that when the Father of the Child and Mother had separate blood groups Rh positive and negative and child born has different blood group, then OP hospital should have taken care to administer anti D injection within 48 hours of the first delivery. The omission caused serious consequences for appellant's second child born after four years. We find that the learned Forum below considered this contention and reference was made to National Institute of Immunoheamotology Parel, Mumbai by Learned Forum below for their comments, which were received on 28.05.2012.
10. According to Shri Deshpande , the facts revealed that Archit's blood group detected as AB Rh Negative by the Op is an act of negligence and the omission of not giving Anti D injection within 72 hours of the first delivery of Medha were acts of negligence on the part of OP. The correct blood group of Archit was A Rh positive, while Mother Medha's blood group was AB Rh negative.
11. National Institute of Immunohemotology states that blood group of an individual remains the constant throughout his or her lifetime. Thus, it is submitted that the wrong committed by the OP in detecting the Blood group of Archit and his Mother was perpetuated into consequences at the second delivery of Medha resulted in mental anguish as child Harshada suffered hearing loss due to Rh incompatibility, Billirubin shown rising levels in Milligrams in Harshada Baby, and expenses of Rs.11,93,389 /- for operation for Cochlear implant occurred to the Complainant to treat 3 Harshada at Hinduja Hospital apart from earlier expenses of caesarian operation at her second delivery for want of Anti D injection at proper time at the time of the first delivery.
12. In defence the learned counsel for OP contended that the Op maintains high standard of medical care and they are 103 year old, 600 beds Speciality Hospital in Pune run by distinguished NGO, Public Charitable Trust. It has various departments and reputed credit worthy Hospital with technologically advanced blood Bank. The OP Hospital is aware of the four groups of Blood as A, AB, B and O. In Rh (Rhesus) blood group system, there are three antigens C, D, E. The antigen is highly antigenic meaning thereby that it can cause problems in Patient during and after the blood transfusion. Depending upon presence or absence of antigens, Patient is labeled as D (Rh) Positive or D (Rh) Negative. If Positive person's blood is given to the negative reaction will set in immediately with serious consequences ranging from renal failure to death. In contrast, if blood of Rh negative person is given to Rh positive person, there will be no reaction. If Mother is Rh positive, it does not matter whether infant is Rh Positive or Rh negative as infant's health will not be impaired by this fact. Similarly, if Mother is Rh negative and infant is also Rh negative, then also there will be no adverse effect on the newborn's health. The problem only arises if the Mother is Rh negative and the newborn is Rh positive. Such pregnancies require special care whereby interalia, the Mother's blood is checked for sensitization by conducting Direct Coombs test on the newborn . The Coombs test detects antibodies against Rh antigen. The indirect Coombs test detects antibodies in the serum of Mother. It is the only test for determining whether a Mother whose blood group is Rh negative has been sensitized or not . The direct Coombs test detects antibodies in the neonatal red blood cells of the new born post delivery. It is only when indirect Coombs test on the Mother and the direct Coombs test on the newborn both negative, but the blood group of the newborn is Rh positive, then as per established medical procedure, the 4 Mother has to receive the anti D injection within 72 hours of the delivery. However, where indirect Coombs test on the Mother and Direct Coombs test on the newborn are both negative and the newborn's blood group when tested at birth is found to be Rh negative, then as per established medical procedure prevalent , Mother was not required to be to be administered anti D injection after delivery. Our attention is drawn to document dated 8th April 2000 at Page 90 and 91 of the appeal paper book. Clinical findings states Rh positive Mother term baby whereas the document at page 90, states in box Diagnostics, that Rh negative Mother and blood group of the infant mentioned as AB negative and Direct Coombs test is negative.
13. Clinical finding is history of Patient as narrated by the Patient or relative of Patient taken down by Doctor for professional diagnosis. Then Doctor prescribes investigations and tests for exact diagnosis. Test report has to be distinguished which alone may show tested blood group. The OP Hospital was guided by the test report of the newborn's blood group and the negative result of the Direct Coombs test performed on the neonate's cord blood sample that the Mother is not sensitized i.e. anti Rh antibodies are not formed in the Mother. OP took into account that the indirect Coombs test dated 15 March 2000 tested as negative when pregnant Mother had visited the OP Hospital for antenatal care before her delivery on 8th April 2000. Direct Coombs test dated 8th April 2000 taken on the day of birth of the new born also tested negative. This established that Mother even after delivery had not been sensitized indicating the absence of any contradiction as argued by the Counsel for the Appellant. Thus there was no justification for the OP Hospital to administer the anti D injection to the Rh negative Mother, whose infant was Rh positive. It is also submitted that the Mother was not sensitized while in KEM Hospital, Pune after delivery of her first child Archit. However, in April 2004 when she was pregnant she was sensitized as per tests conducted by Sangli Hospital. Sangli Hospital or Doctors are not parties nor they sworn affidavits in support of the Complaint. It is not the Complainant's case that she disclosed obstetric 5 history in the intervening 4 years, which is extremely significant. The delay of four years to obtain the report when Appellant went for second delivery is also remained unexplained. Hence, complainant has to be blamed for latches. Defence contentions in our view cannot be brushed aside or overlooked that there were probabilities of abortions of pregnancy during period of four years.
14. Now considering the legal position, a 'consumer' is a person who hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person hires or avails of the services for consideration paid or promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. This definition is wide enough to include a patient who merely promises to pay. A complaint is an allegation in writing made by a Complainant, i.e. a consumer that he or she has suffered loss or damage as a result of any deficiency of service.
15. Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have imposed a duty upon the doctor. In the words of the Supreme Court in Permanand Katariya v/s. Union of India reported in AIR 1989 SC 2039 "every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life". Cases are however, clearly restricted to situations where there is danger to the life of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty. The liability of a doctor arises not when the patient has suffered any injury, 6 but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. It must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the complainant. In order to decide whether negligence is established in any particular case, the alleged act, omission, or course of conduct that is the subject of the complaint must be judged neither by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given. The true test for establishing negligence on the part of a doctor is as to whether he has been proven guilty of such failure as no doctor with ordinary skills would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner or Hospital is guilty of negligence unless it is proved that the medical practitioner or Hospital concerned did not act with sufficient care and skill and the burden of proving this rests upon the Complainant, which was not discharged in this case. Learned Forum below has considered the peculiar facts and circumstances of the case by detailed reasons.
16. Having considered the impugned Judgment and order in the light of the rival submissions and the law stated with material cited before us, we do not find any gross deficiency in service or unfair medical procedure adopted nor any actionable valid ground for to set aside or to quash the judgment and order impugned herein. Appeal is found without merits. Hence appeal is dismissed. However, in the facts and circumstances no order as to costs.
Pronounced on 21st July, 2017.
[Justice A.P.Bhangale] PRESIDENT [Usha S. Thakare] JUDICIAL MEMBER 7 8