State Consumer Disputes Redressal Commission
Smt. Kesar Verma vs Kanwar Nursing Home, Dr.Nita Kanwar & ... on 19 November, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/436
Instituted on : 14.07.2014
Smt. Keshar Verma, Age 31 years,
W/o Shri Dinesh Verma,
R/o : Street No.1, V.V. Vihar Colony,
Through : Shiv Kumar Thakur, Behind Karishma Apartment,
Mova, Raipur (C.G.)
Permanent Address :
Shri Dinesh Verma, S/o Shri Manohar Lal Verma,
New Sai Nagar, Behind Irrigation Colony,
Tilda - Nevra,
Post Office - Nevra, District Raipur (C.G.) ... Appellant.
Vs.
1. Kanwar Nursing Home,
Dr. Neeta Kanwar,
T.V. Tower Road, Anupam Nagar,
Raipur, District Raipur (C.G.)
2. Ekta Institute of Child Health,
Through : Dr. Sangeeta Nagraj,
A Unit of Sparkle Hospital Pvt. Ltd.,
Shanti Nagar,
Raipur (C.G.)
3. United India Insurance Company Limited,
Divisional Office, Krishna Complex, Kutchery Chowk,
Raipur, District Raipur (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri S. Pandya, for the appellant.
Respondent No.1/Dr. Neeta Kanwar along with Shri R.K. Bhawnani,
Advocate.
Shri Shishir Bhandarkar, for respondent No.2.
Shri P.K. Paul, for respondent No.3.
// 2 //
ORDER
Dated : 19/11/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 27.05.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth called "District Forum") in Complaint Case No.302/2010. By the impugned order, the District Forum has dismissed the complaint.
2. Briefly stated, the facts of the case are that in the month of March, 2009, the appellant (complainant) was having pregnancy of 8 months and she went to hospital of the respondent No.1 (O.P.No.1) for her treatment and she approached Dr. Neeta Kanwar, the respondent No.1 (O.P.No.1) along with her Sonography Report and other relevant documents relating to her treatment. Dr. Neeta Kanwar, the respondent No.1 (O.P.No.1) after examining the appellant (complainant) and perusing the documents, ensured her that both mother and baby are healthy. On 25.03.2009, the appellant (complainant) again went to Nursing Home of respondent No.1 (O.P.No.1) and met with respondent No.1 (O.P.No.1) Dr. Neeta Kanwar, who examined her and conducted Sonography and again assured that both mother and baby are normal and delivery would be normal and informed that the expected date of delivery was 23.04.2009. On 16.04.2009, the appellant (complainant) suffered labour // 3 // pain and she went to hospital of respondent No.1 (O.P.No.1) where she was admitted at 12 noon and was taken to operation theatre at about 10 PM Dr. Neeta Kanwar came there after one hour. Dr. Sangeeta Nagraj, Pediatrician, who was working at Ekta Institute of Child Health, the respondent No.2 (O.P.No.2) was called and at about 11:20 PM, the relatives were informed that a female baby was born. The father of the baby was called inside to see the baby where he saw that the baby was not breathing and Dr. Sangeeta Nagraj was giving her artificial respiration. The husband of the appellant (complainant) closely observed that there was an injury on the back portion of the head of the baby. The Doctor inside informed the husband of the appellant (complainant) that the appellant (complainant) was bleeding profusely, and the uterus which was the source of bleeding must be removed immediately and he was asked to quickly arrange for blood otherwise the appellant (complainant) was bound to die. When the husband of the appellant (complainant) was entering the operation theatre, he saw that Dr. Neeta Kanwar was scolding the nursing staff that they had spoiled the case and did not inform her in time. The husband of the appellant (complainant) somehow managed to arrange for 4 units of blood. The baby was shifted to the respondent No.2 (O.P.No.2) Ekta Institute of Child Health, where husband of the appellant (complainant) found that the baby was kept in Ventilator, she was getting convulsions and was unconscious. The Doctor, who // 4 // was attending the baby told him that her condition was critical because the delivery was carried out by forceps which was carelessly and negligently applied over the baby's head, and as a result she has sustained grievous head injury and her brain has been severely and permanently damaged. The doctor also informed him that the baby was going to be mentally deficiency, physically handicapped and seriously crippled for whole of her life and she could never become normal. Due to negligent act of the respondent No.1 (O.P.No.1), the appellant (complainant) was deprived from happiness of child and thus she committed medical negligence and deficiency in service. Hence, the appellant (complainant) filed consumer complaint and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The respondent No.1 (O.P.No.1) Kanwar Nursing Home, through Dr. Neeta Kanwar filed written statement and pleaded that the complaint filed by the appellant (complainant) is not maintainable because elaborate evidence is required. On the basis of judgment of Hon'ble Supreme Court, without obtaining Report of Medical Board, the complaint is not maintainable. The respondent No.1 (O.P.No.1) obtained Doctor Indemnity Policy No.082401/46/08/35/00005543 for the period from 21.03.2009 to 20.03.2010 from the United India Insurance Company Limited, therefore, the above Insurance Company // 5 // is necessary party in the complaint. The appellant (complainant) came to respondent No.1 (O.P.No.1) for check-up on 16.04.2009 and she again came to respondent No.1 (O.P.No.1) and was admitted there. According to P/V findings the delivery time was near about 1.00 PM, but the appellant (complainant) delivered a female child at 11 PM. The patient was admitted in the hospital at about 12.00 noon and she delivered child at 11.07 P.M. which is within time and it was a normal delivery. The respondent No.1 (O.P.No.1) further averred that the appellant (complainant) was examined on 16.04.2009 at about 10 PM and she delivered at 11:07 PM. It was a normal delivery. She had never applied forceps. The injury sustained on the back of baby's head was not because of forceps application, but it was because of bed shore. In the process of normal delivery, due to strong pains there are chances of rupture of uterus which becomes evident in the form of post-partum haemorrhage i.e. bleeding just after birth. The appellant (complainant) was bleeding not only from the uterus but was also having hematuria i.e. bleeding from the urinary passage. In such a condition removal of uterus i.e. hysterectomy become inevitable. The condition of the appellant (complainant) was critical so blood transfusion was required quickly. The appellant (complainant) had a cervical tear which extended deep into the fornices of uterus and a big hematoma (collection of blood) was formed which spread into parametrium and it resulted in fall of blood pressure. If the uterus // 6 // was not removed immediately, the appellant (complainant) would have died. There was bleeding from urinary passage, but on opening the abdomen no injury was seen in the bladder, so a catheter was left in the urinary tract. Bleeding from bladder could have been due to pressure of baby's head. It has further been pleaded that at the time of delivery, Dr. Sangeeta Nagraj, Paediatrician, was called and she was present at the time of delivery. The delivery of the appellant (complainant) was normal delivery and nerve of the baby was pressed within bones, therefore, she could not breathe properly, therefore, Dr. Sangeeta Nagraj, gave oxygen to her. The respondent No.1 (O.P.No.1) did not commit any medical negligence, therefore, the complaint is liable to be dismissed.
4. The respondent No.2 (O.P.No.2) Ekta Institute of Child Health, Raipur through Dr. Sangeeta Nagraj filed written statement and pleaded that the appellant (complainant) has filed this complaint against the respondent No.2 (O.P.No.2) alleging deficiency in service on account of alleged medical negligence. The appellant (complainant) however has not produced any expert's opinion in support of her case and in absence thereof the consumer complaint against the OPs cannot be proceeded with, as per law laid down by the Hon'ble Supreme Court in various recent judgments. The complaint is therefore, not maintainable on this ground alone. So far // 7 // as the respondent No.2 (O.P.No.2) is concerned, there is no allegation whatsoever, against the respondent No.2 (O.P.No.2) and since no medical negligence has been attributed against the respondent No.2 (O.P.No.2), the complaint so far it relates to respondent No.2 (O.P.No.2), deserves to be dismissed or at least name of the respondent No.2 (O.P.No.2) be struck out from the array of the complaint. The complaint suffers from mis-joinder of parties and is not maintainable in its present form. It has further been placed that Dr. Sangeeta Nagraj, had attended the baby at the time of delivery at respondent No.1 (O.P.No.1) Nursing Home and she did not commit any negligence. The appellant (complainant) did not make any allegation against the respondent No.2 (O.P.No.2) in her complainant. It was a normal vaginal delivery, but as the baby did not cry immediately after her birth, she did oro-pharyngeal and nasal suction and then she applied Intermittent Positive Pressure Respiration (IPPR) with Artificial Mechanical Breathing Unit (AMBU) with oxygen was given to child after intubation. On examination of baby it was found that her heart rate was slow initially but recovered to 110/minute after resuscitation. After 10 minutes of resuscitation, Spontaneous but jerky and irregular breathing had started. The father of the baby was explained about the serious condition of the baby and that she needed to be shifted to Neonatal Intensive Care Unit (NICU) at respondent No.2 (O.P.No.2) Hospital. There was no sign of any external injury on // 8 // the back portion of the baby's head. As baby was born through normal vaginal delivery, there was no question of any forceps injury. Looking to the condition of the baby, she was immediately shifted to Ekta Hospital at 12.00 midnight on 16.04.2009 and was admitted therein. At Ekta Hospital the baby had shallow jerkey respiration with abnormal limb movement. She was immediately started on oxygen IV 10% dextrose with calcium gluconate, inj. Taxim, inj. Amikacin (antibiotics) and inj. Gardenal (anticonvulsant) were also given. The baby maintained oxygen saturation till 6.30 AM. On 17.04.2009, when she had massive convulsive episode (fits). She was immediately given inj. Epsolin (Anticonvulsant) but as the baby was not able to breathe properly and oxygen saturation was falling, she was put on ventilator, but her condition remained to be critical. Any doctor from the respondent No.2 (O.P.No.2) Hospital did not ever inform the appellant's (complainant's) husband that the baby had suffered head injury due to the use of forceps. It was normal delivery therefore, question of pulling the baby out with the help of any instrument, did not arise. The appellant (complainant) was not bleeding because of any negligent act on part of the respondent No.1 (O.P.No.1). On the night of 17th April, 2009, the baby started to show signs of peripheral circulation failure, which was adequately corrected. At this point of time it was explained to the father of the child that she was critically ill and her brain had suffered damage due to poor oxygenation (and not // 9 // because of any head injury). It was also explained that the damage to the brain might have lasting effect and the child nay not be mentally normal and can be spastic. The placental insufficiency often remains undetected on USG assessment. The baby remained in such critical condition till 20.04.2009. In between, the expert doctors of respondent No.2 (O.P.No.2) tried to wean off the baby from the ventilator but as she was getting frequent convulsions and oxygen saturation was also dropping, she was again put on ventilator. On 21.04.2009, the baby appeared little better and the convulsion had subsided. The baby was given milk through nasogastric tube and was continued to be on ventilator. But on 24.04.2009, the father of the baby insisted for taking the child off ventilator. He was warned and explained that the child may die if she was put off the ventilator. But the father did not agree and forced the respondent No.2 (O.P.No.2) to withdraw the ventilator, hence the ventilator was withdrawn after obtaining written consent. The other treatment however, was continued. But on 26.04.2009, in spite of the fact that the baby was in critical condition, the father of the baby took the baby home against the medical advice. The respondent No.2 (O.P.No.2) did not discharge the baby after 8 days. The fact on the other hand is that the parents of the baby took her home against the medical advise when the baby needed the treatment most. The baby's brain has suffered damage due to poor oxygenation on account of delayed cry, by the baby at the time of birth. This might // 10 // have long lasting effect on the baby's physical and mental condition. The appellant (complainant) is not entitled to get any amount as compensation from the respondent No.2 (O.P.No.2). So far as respondent No.1 (O.P.No.1) is concerned, no allegation of medical negligence or deficiency in service can be attributed against her also as the appellant (complainant) was treated as per the normal practice and procedure and skill which is accepted as proper by a reasonable body of medical men skilled in that particular field; and since the appellant (complainant) has measurably failed to establish any negligence on the part of the respondents (OPs), the respondent No.2 (O.P.No.2) in particular, no order directing payment of compensation against the respondents (OPs) can be passed.
5. The respondent No.3 (O.P.No.3) filed written statement and averred that the complaint against it is not maintainable because the appellant (complainant) is not its consumer. There is no relationship between the appellant (complainant) and respondent No.3 (O.P.) of consumer and service provider. No benefit will be received by the appellant (complainant) from the above insurance policy and there is no privity of contract between the appellant (complainant) and respondent No.3 (O.P.No.3). No allegation has been made by the appellant (complainant) in the complaint. No cause of action is available to the appellant (complainant) against the respondent No.3 // 11 // (O.P.No.3), therefore, the present complaint is not maintainable against the respondent No.3 (O.P.No.3).
6. Learned District Forum, after having considered the material placed before it by the parties dismissed the complaint.
7. The appellant (complainant) has filed documents. Annexure - 1 is treatment slip dated 02.03.2009 of Kanwar Nursing Home, Annexure 2 is Sonography Film Copy, Annexure 3 is Sonography / Echocardiography Report, Annexure 4 is Discharge Ticket of Kanwar Nursing Home, Annexure 5 is Medical Bill Cum Receipt issued by Kanwar Nursing Home, Annexure 6 (1) is Receipt dated 16.04.2009 issued by Bilasa Blood Bank, Annexure 6 (2) is receipt dated 16.04.2009, issued by Bilasa Blood Bank, Annexure 7 (1) is Blood Report issued by Bilasa Blood Bank, Annexure 7(2) is Blood Report issued by Bilasa Blood Bank, Annexure 8 is receipt No.1255 dated 16.04.2009 issued by Bilasa Blood Bank, Annexure 9 is Blood Report issued by Bilasa Blood Bank, Annexure 10 to Annexure 12 are Bills issued by S.S. Medicose, Raipur, Annexure 13 is medicine slip provided by Kanwar Nursing Home, Annexure 14 and 15 are bills issued by S.S. Medicose, Raipur, Annexure 16 is copy of Sonography, Annexure 17 is Report dated 26.02.2009 of Apollo Diagnostic Centre, Raipur (C.G.), Annexure 18 (1) is Report On Haematological Investigations dated 26.08.2008 issued by Neral Pathology Laboratory, Raipur (C.G.), Annexure 18(2) is // 12 // Report on Sterological Tests dated 26.08.2008 issued by Neral Pathology Laboratory, Raipur (C.G.), Annexure 18(3) is Report on Urine Analysis dated 26.08.2008 issued by Neral Pathology Laboratory, Raipur (C.G.), Annexure 19 is Sonography Report dated 25.11.2008, Annexure 20 is Report dated 25.11.2008 issued by Apollo Diagnostic Centre, Raipur, Annexure 21 is Sonography Report dated 26.08.2008, Annexure 22 is Pelvic Sonography Report dated 26.08.2008 issued by Ashoka Super Speciality Hospital & Research Pvt. Ltd., Raipur (C.G.), Annexure 23 is medicine slip issued by Ashoka Super Speciality Women Hospital & ICSI Test Tube Baby Centre, Annexure 24 is Radiology Report dated 19.01.2010 issued by Shri Balaji Super Speciality Hospital, Raipur, Annexure 25 is prescription dated 19.01.2010 issued by Dr. Kamala Kant Bhoi,, Annexure 26 is prescription dated 30.01.2010 issued by Dr. Kamala Kant Bhoi, Annexure 27 is prescription dated 11.07.2009 issued by Dr. Sanwar Agrawal, Annexure 28 is Report issued by Ekta Institute of Child Health, Annexure 29 is Report dated 13.05.2009 issued by Fatishta Physiotherapy Centre, Raipur, Annexure 31 is Radiology Report dated 20.04.2010 issued by Ekta Institute of Child Health, Annexure 32 is Blood Test Report of Ekta Institute of Child Health, Annexure 33 is Stool Test Report of Ekta Institute of Child Health, Annexure 34 is CBC Report of Ekta Institute of Child Health, Annexure 35 is Biochemistry Report of Ekta Insitute of Child Health, Annexure 36 is // 13 // Liver Profile Report of Ekta Institute of Child Health, Annexure 37 is Biochemestry Report of Ekta Institute of Child Health, Annexure 38 is Biochemestry Report of Ekta Institute of Child Health, Annexure 39 is C.B.C. Report of Ekta Insitute of Child Health, Annexure 40 is Biochemestry Report of Ekta Institute of Child Health, Annexure 41 is Bill issued by Ekta Institute of Child Health, Annexure 42 to 45 are receipts issued by Ekta Institute of Child Health, Annexure 46 is receipt of blood demand of Ekta Institute of Child Health, Annexure 47 to Annexure 53 are bills issued by Desai Medical Stores, Raipur on various dates, Annexure 54 is Blood Test Report dated 23.04.2009 issued by Bilasa Blood Bank, Raipur, Annexure 55 is receipt No.1328 dated 23.04.2009 issued by Bilasa Blood Bank, Raipur, Annexure 56 are receipts issued by Ekta Institute of Child Health on various dates.
8. The respondent No.1 (O.P.No.1) has filed documents. Annexure OP-1 is Professional Indemnity Dr. (Other) Policy, Policy No.082401/46/08/35/00005543 issued in favour of Dr. Neeta Kanwar for the period from 31.03.2009 to 20.03.2010, Certificate in respect of Compliance of Section 64 VB of Insurance Act, 1938, Terms and conditions of the policy. Annexure OP-1 is Case History etc. issued by Ekta Institute of Child Health, Annexure OP-2 is Temperature Chart, Treatment Chart, Annexure OP-3 is Nelson Text Book of Paeediatrics // 14 // 18th Edition Vol. I Part XI Chapter 99.5, Annexure OP-4 is Admission Card of Ekta Institute of Child Health, Raipur.
9. In the instant case, the appellant (complainant) has filed an application under Order 41 Rule 27 CPC along with documents i.e. P- /1 Prescription dated 02.01.2015 issued by Dr. Viraj Shngade, Children Orthopaedic Care Institute, Nagpur, P-2 Certificate issued by Dr. H.P. Sinha, Consultant Neurologist, P-3 Photographs etc.
10. We have heard the parties on the application filed by the appellant (complainant) under Order 41 Rule 27 CPC.
11. The appellant (complainant) sought permission to file above documents at the appellate stage as additional evidence.
12. Looking to the facts and circumstances of the case , we find that the above documents which are sought to be filed by the appellant (complainant) at the appellate stage as additional evidence are essential for proper adjudication of the case and if the above documents are taken on record as additional evidence at the appellate stage, it will not cause any prejudice to the respondents (OPs).
13. Therefore, we allow the application filed by the appellant (complainant) under Order 41 Rule 27 CPC and the above documents are taken on record as additional evidence at the appellate stage.
// 15 //
14. Shri S. Pandya, learned counsel appearing for the appellant (complainant) has argued that the opinion given by the Pediatrician of the District Hospital, Raipur is erroneous. The baby was in a distressed condition with APGAR SCORE 2. The Pediatricians have not even mentioned in their opinion any of the complications which occurred in the baby viz. Asphyxia appearing with childbirth, hypoxic encephalopathy, massive convulsions, peripheral circulatory failure and above all, the injury on the baby's head. Therefore, the opinion given by the Medical Board, is arbitrary and appears to be aimed at concealing the negligent act of the respondents (OPs). He further argued that the delivery should have been normal because the appellant's (complainant's) previous delivery was normal, safe and without any complication. It proves that there was no fault with her reproductive system. The maternal passage was adequate for the baby. The position of the baby in the uterus was normal. There was no chances of an obstructed labour. The several Sonography and other tests carried out during the ante-natal period indicate that both the mother and the baby were normal. The process of delivery started normally and the progress was normal. There was no undue delay in the progress of labour. Therefore, no interference in the process of labour was need. Looking to the facts and injuries sustained by the baby, it appears that the respondent No.1 (O.P.No.1) applied forceps. If the forceps had not been applied, delivery would have terminated // 16 // normally. The unnecessary and negligent interference in the normal labour amounts to gross negligence. Dr. Neeta Kanwar in para 4 of her written statement only stated that the injuries not caused by forceps. Looking to the injuries of the baby child, it is evident that the forceps was applied and it was applied without proper indication. It harms both mother and baby. There is a definite procedure to be followed and utmost precautions have to be taken in forceps application, otherwise complications are bound to occur. Due to faulty application, the forceps severely compressed the head and thereby the brain was badly damaged. Due to the damage to the vital centers of the brain, the baby's respiration suffered badly and resulted in asphysixa, hypoxic damage to the brain convulsions and circulatory failure. Therefore, it appears that the respondents (OPs) Doctors committed medical negligence . Uterus was ruptured and was removed. Due to application of forceps, the bleeding was profuse because the tear was extensive. It caused significant fall of blood pressure and removal of uterus became inevitable. The correct technique of forceps application was not adopted by the respondent No.1 (O.P.No.1), therefore, the brain of the child was badly damaged permanently and the baby is permanently handicapped both mentally and physically. The finding recorded by the District Forum is erroneous and the impugned order is liable to be set aside. He placed reliance on D.C. Dutta's Text Book of Obstetrics Page 113; V. Kishan // 17 // Rao Vs. Nikhil Super Speciality Hospital & Anr., III (2010) CPJ 1 (SC); Vinitha Ashok vs. Lakshmi Hospital, LAWS (SC)-2001-9-37 AIR (SCW)-2001-0-3881 / AIR (SC)-2001-0-3914 / SCC-2001-8-731; Poonam Verma vs. Ashwin Patel, LAW (SC)-1996-5-38 SCC-1996-4- 322/SCC-1996-4-322; Master Abhishek Ahluwalia & Ors. Vs. Dr. Sanjay Saluja, MS Ortho, Physiotherapy Clinic & Ors., 2014 (3) CPR 180 (NC); and Bhaskar Kanwar vs. R.K. Gupta & Anr. 2013 (2) CPR 611 (SC).
15. Shri R.K. Bhawnani, learned counsel appearing for the respondent No.1 (O.P.No.1) has argued that the respondent No.1 (O.P.No.1) did not apply forceps and the injury sustained on the back side of the baby's head was not because of forceps application but it was a bed sore. The delivery was a normal delivery. In the process of normal delivery due to strong pains there are chances of rupture of uterus which becomes evident in the form of post-partum haemorrhage. The appellant (complainant) was suffering from bleeding, therefore for saving life of the appellant (complainant), it was essential to remove uterus. The appellant (complainant) had a cervical tear which extended deep into the fornices of uterus and a big hematoma was formed which spread into the parametrium and it resulted in fall of blood pressure. If the uterus was not removed immediately, the appellant (complainant) would have died. The // 18 // respondent No.1 (complainant) did not commit any medical negligence.
16. Shri Shishir Bhandarkar, learned counsel appearing for the respondent No.2 (O.P.No.2) has argued that Dr. Sangeeta Nagraj, had attended on the baby at the respondent No.1 (O.P.No.1) Nursing Home and no medical negligence was committed by Neeta Kanwar and Dr. Sangeeta Nagraj. The delivery was a normal vaginal delivery, but as the baby did not cry immediately after birth, , therefore, Dr. Sangeeta Nagraj did oro-pharyngeal and nasal suction and then she applied Intermittent Positive Pressure Respiration (IPPR) with Artificial Mechanical Breathing Unit (AMBU) and gave oxygen. The parent of the baby did not want to continue treatment and took the baby home without medical advice. Learned District Forum, has rightly dismissed the complaint of the appellant (complainant).
17. Shri P.K. Paul, learned counsel appearing for the respondent No.3 (O.P.No.3) has supported the impugned order passed by the District Forum and submitted that it does not call for any interference by this Commission.
18. We have heard learned counsel for the parties and have also perused the record of the District Forum.
// 19 // 19 In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, he has mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this express.
'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptieable to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to // 20 // determine the factum of medical negligence or otherwise in a particular case.
(1) Duty of care in accepting the patient for treatment.
(2) Duty of care in providing appropriate treatment.
(3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery."
20. In the literature of "Forceps delivery and complication", it is mentioned thus :-
"Forceps delivery and complications :
The review article by Patel and Murphy gives a concise and clear overview of the current state of play regarding the use of forceps in modern obstetric practice. The article addressees the issue of third degree tears, but does not discuss the occult sphincter injury that may lead to symptoms later in life. The incidence of endosonographic sphincter damage following forceps delivery has been reported in 83% of forceps deliveries when studied prospectively, and this was supported by manometric abnormalities in these patients (1). Faecal incontinence which develops in women in later life (age 60-70 years) has been associated with previous obstetric sphincter injury in 70% of patients, in whom a sphincter defect can be demonstrated unltrasonographically (2).
Forceps Delivery Errors The use of forceps to assist in a difficult delivery has been common practice for a long time. In general, forceps are meant to grasp the baby around the head when the doctor has a difficult time reaching it, // 21 // and help to gently slide the baby out of the mother's womb. Unfortunately, this does not always occur.
The decision to use forceps to assist in a delivery must be carefully considered by the doctor who is delivering the baby. The mother must be in the second stage of labor before an assisted delivery can even be contemplated. Failure to do so can result in permanent injury to the baby as well as to the mother.
Forceps Forceps are smooth metal instruments that look like large spoons or tongs. They are curved to fit around the baby's head. The forceps are carefully positioned around your baby's head and joined together at the handles. With a contraction and your pushing, an obstetrician gently pulls to help deliver you baby.
There are many different types of forceps. Some forceps are specifically designed to turn the baby to the right position to be born, such as if your baby is lying facing upward (occipito-posterior position) or to one side (occipito-lateral position).
Forceps are more successful than ventouse in delivering the baby, but a ventouse is less likely to cause vaginal tearing.
What are the risks of a ventouse or forceps birth ?
Ventouse and forceps are safe ways to deliver a baby, but there are some risks that should be discussed with you. Your obstetrician or midwife should also discuss the reasons for having an assisted birth, the choice of instrument (forceps or ventous), and the procedure for carrying out an assisted birth. The risks are listed here.
Vaginal tearing or episiotomy :
This will be repaired with dissolvable stitches.
// 22 // Third - or - fourth - degree vaginal tear There is a higher chance of having a vaginal tar that involves the muscle or wall of the anus or rectum (known as a third - or fourth-degree tar). This kind of tear affects :
- 1 in 100 women having a normal vaginal birth.
- Up to 4 in 100 having a ventouse delivery.
- 8-12 in 100 having a forceps delivery.
Higher risk of blood clots After an instrumental delivery, there is a higher chance of blood clots forming in the veins in your legs or pelvis. You can help prevent this by moving around as much as you can after the birth.
You may also be advised to wear special anti-clot stockings and have injections of heparin, which makes the blood less likely to clot.
Anal incontinence Anal incontinence (leaking flatus or faeces) can happen after birth, particularly if a third-or fourth-degree tear has occurred. As there is higher risk of such tears after a forceps or ventouse delivery, anal incontinence is more likely to occur after instrumental delivery.
It is difficult to know exactly how common anal incontinence is, as there is no standard definition and because people who have it may be reluctant to say they do. In review of studies looking at incontinence after child birth, estimates of how common anal incontinence was ranged from 13% to 27%."
What are the risks to the baby ?
The risks to you baby include :
// 23 //
- a mark on your baby's head (chignon) being made by the ventouse cup - this usually disappears within 48 hours.
- a bruise on your baby's head (cephalohaematoma) - this happens to between 1 and 12 in 100 babies and disappears with time; it can cause a slight increase in jaundice in the first few days, but rarely causes any other problems.
- marks from forceps on your baby's face - these usually disappears within 48 hours.
- small cuts on your baby's face or scalp - these affect 1 in 10 babies born via assisted delivery and heal quickly."
21. In the literature of "Prolonged Labour", it is mentioned thus :-
"Prolonged labour is when the total duration of childbirth is greater than 24 hours. There are two main types, one when the latent phase of labour is greater than 8 hours and the other when the active phase of labour is greater than 12 hours.
The cause can be due to poor uterine contractions, the baby's position or size being abnormal or issues with the pelvis or birth canal. The last two may result in obstructed labour.
22. In the instant case, the appellant (complainant) was admitted on 16.04.2009 at about 12.00 noon in the hospital of respondent No.1 (O.P.No.1) and she delivered female child at 11.20 P.M. on the same day. It appears that the delivery was within 24 hours of the admission, therefore, it cannot be said that the delivery was prolonged delivery.
23. In the Discharge Ticket of Ekta Institute of Child Health, Raipur, under the head "Treatment Given" it is mentioned thus :
// 24 // "TREATMENT GIVEN : Parents did not want to continue treatment and took the baby home. Progress was explained."
In the said document, it is also mentioned that "the patient left against the medical advice (LAMA)".
24. The Report of Medical Board was obtained for Female Baby from District Hospital, Raipur (C.G.). Dr. Sk.K. Mandrik, Child Specialist, Dr. Nidhi Gupta, Child Specialist and Dr. V.R. Bhagat, Child Specialist, District Hospital, Raipur (C.G.) gave their report dated 27.03.2014 in which it is mentioned thus :-
"Documents provided by District Consumer Forum, Raipur C.G. were studied by Child Specialist Dr. S.K. Mandrik, Dr. Nidhi Gupta & Dr. V.R. Bhagat and our opinion is as follows :-
Patient baby of Smt. Keshar Verma female child was born on date 16/04/2009 at 11.07 p.m. by normal vaginal delivery in Kanwar Nursing Home in a distressed condition with APGAR SCORE 2. Pediatrition was present at the time of delivery and Pediatrition provided timely needed adequate neonatal resuscitation measures. As baby's condition didn't improve satisfactorily and with development of tonic spasm, baby was timely shifted to Ekta Institute of Child Health for Neonatal Intensive Care.
In Ekta Institute of Child Health throughout the hospitalization period patient received adequate Neonatal Intensive Care (Including Ventilator).
As per our opinion we don't find any negligence on part of Pediatrition and Ekta Institute of Child Health regarding treatment of the Patient."
// 25 //
25. Regarding the appellant (complainant), again report was called from Medical Board. Dr. Jaya Phuljhele, Gynaecologist, Dr. Sheela Tiwari, Gynaecologist and Dr. C.K. Chandrawanshi, Gynaecologist of District Hospital, Raipur (C.G.) gave their report dated 10.02.2014, in which it is mentioned thus :-
"Documents provided by District Consumer Forum, Raipur C.G. regarding Keshar Verma V/s Kanwar Nursing Home, Raipur were studied by Dr. Jaya Phuljhele and Dr. Sheela Tiwari. Opinion follows-
Patient Keshar Verma's antenatal record including Sonography shows normal findings. She was admitted in Kanwar Nursing Home, Shankar Nagar, Raipur on 16-4-2009 at 12:15 PM with full term pregnancy and labour pains on her due date. She delivered spontaneously at 11:07 PM on the same day. It seems that the progress of labour was satisfactory hence surgical intervention wasn't required. In bed head ticket application of forcep has not been mentioned anywhere.
Records reveal that after child birth there was sudden severe bleeding from uterus. When every measure failed, decision was taken by gynaecologist to do diagnostic laparotomy to find out the cause of bleeding in order to save patient's life. On opening abdomen there was a big collection of blood on right side of uterus and cervix. After operation patient recovered completely. Therefore decision for removal of uterus is justified."
26. Dr. Sangeeta Nagraj, who is a Paediatrician has specially pleaded that it was normal vaginal delivery, question of pulling the baby out with the help of any instrument, did not arise. The bleeding // 26 // of the appellant (complainant) was because was not because of any negligent act on the part of the respondent No.1 (O.P.No.1). The injury sustained on the back of baby's head was not because of forceps application, but it was because of bed shore.
27. In New Concise Medical Dictionary written by Gupta & Gupta, the "bed sores" has been defined as "These are known as pressure sores also. These develop in bed-ridden patients mostly unconscious and immobile specially in cases of spinal cord injuries who are having loss of sensation. Constantly wet skin due to incontinence of urine may also cause it. These start as red, painful areas that become purple before the skin gives way. Once broken they enlarge, deepens and are very slow to heal. Antibiotics, keeping the part dry, changing the position off and on helps the sufferers."
28. Dr. Sultana Farishta of Farishta Physiotherapy Centre, Raipur also gave her report dated 13.05.2009, in which it is also mentioned that "bed sore at skull was present" and again it is mentioned that "Bed sore healed". It appears that the baby was having head injury due to bed sore and the head injury was not caused due to application of forceps.
29. We are also agree with the contention of the respondent No.1 (O.P.No.1) that after the delivery The appellant (complainant) had a // 27 // cervical tear which extended deep into the fornices of uterus and a big hematoma was formed inside the Uterus which spread into parametrium and it resulted in fall of blood pressure. If the patient is left in low blood pressure condition then the Haematoma is large and when the blood pressure was increased and operation is not conducted timely, it is fatal for the patient and some time the patient would die. Cervical Tear is very bad in which Conservative Suturing could not be done because it goes to parametrium after tearing the Fornices. According to Medical Expert's Opinion, after child birth, there was excessive bleeding in uterus. In the Medical Expert's Opinion, it is nowhere mentioned that instead of normal delivery there was necessity of Caesarean , if from forceps the appellant (complainant) and baby suffered injury, whereas it is mentioned that in the right side of Uterus and Cervics , excessive blood was collected and after operation there was improvement in the condition of the appellant (complainant) and thus decision to remove uterus was right.
30. We find that on 16.04.2009, a baby was delivered by the appellant (complainant) by normal delivery. As per medical records, at the time of birth, the baby could not breathe, which is proved by the contention of the appellant (complainant) where it is mentioned that when the husband of the appellant (complainant) was called, he saw that Dr. Sangeeta Nagraj was giving oxygen to the baby through // 28 // pipe. In this circumstance, we are agree with the contention of the respondent No.2 (O.P.No.2) that immediately after birth, the baby could not breathe, but without making any delay, oxygen was given to the baby through pipe, therefore, it cannot be held that any negligence was committed while treating the baby. It is admitted fact that baby was immediately admitted in Ekta Institute of Child Health, respondent No.2 (O.P.No.2). It is contention of the respondent No.2 (O.P.No.2) that since birth, due to deficiency of oxygen, the brain of the baby was damaged. In these circumstances, we are unable to find any medical negligence on the part of respondent No.1 (O.P.No.1) & respondent No.2 (O.P.No.2) in respect of the baby. It is undisputed fact that after birth, the baby was kept in Ventilator, from which it is proved that the respondent No.1 (O.P.No.1) and respondent No.2 (O.P.No.2) have made full medical arrangement at their level best to save life of the baby. Medical record Annexure OP-1 also proves this fact, but the baby was in need of intensive treatment, but action taken by the husband of the appellant (complainant) would fatal, otherwise it would be hoped that if the baby would intensive care then she come in normal position. Looking to the above facts and circumstances of the case, we do not find any medical negligence on the part of the respondent No.1 (O.P.No.1) and respondent No.2 (O.P.No.2).
31. Therefore, the appellant (complainant) has not been able to prove that the respondent No.1 (O.P.No.1) Dr. Neeta Kanwar & // 29 // respondent No.2 (O.P.No.2) Dr. Sangeeta Nagraj, have committed any medical negligence, hence the finding recorded by the District Forum, does not suffer from any infirmity or illegality and the impugned order does not call for any interference by this Commission.
32. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /11/2015 /11/2015 /11/2015 /11/2015