State Consumer Disputes Redressal Commission
Dr. Jugal Chandra Maiti vs Smt. Papiya Hazra on 18 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/547/2013 (Arisen out of Order Dated 07/12/2012 in Case No. CC/33/2008 of District Purba Midnapur) 1. Dr. Jugal Chandra Maiti Medical Officer, District Hospital Purba Medinipur, P.O. & P.S. - Tamluk, Dist. Purba Medinipur. ...........Appellant(s) Versus 1. Smt. Papiya Hazra W/o Sri Sunirmal Hazra, Vill. & P.O. Banunia, P.S. Mahishadal, Dist. Purba Medinipur. 2. Superintendent District Hospital Purba Medinipur, P.O. & P.S. - Tamluk, Dist. Purba Medinipur. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Abhik Das Mrs. Koyeli Mukhopadhyay , Advocate For the Respondent: Inperson/, Advocate ORDER
18/09/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Purba Medinipur in CC 33 of 2008. One Member of the Learned District Forum by the judgment dated 29/08/12 allowed the complaint awarding compensation of Rs.5 lakh and litigation cost of Rs.5000/-. The other Member by the judgment dated 07/12/12 allowed the complaint awarding compensation of Rs.3,50,000/-, litigation cost of Rs.5000/- to the Complainant and the Ld. President of the Forum by the judgment dated 14/09/12 dismissed the complaint on the ground of medical negligence.
The case of the Complainant/Respondent, in short, is that she obtained Diploma in General Nursing Midwifery and served as staff nurse in Ramakrishna Mission Seva Pratishthan from 01/05/01 to 30/04/06 and at ICARE, Haldia from 01/02/07. The Complainant conceived and was under the treatment of Dr. Biswajit Ghorai. On 08/05/07 she developed labour pain and got admitted in the Hospital, that is, OP No.2 on payment of required fees for cabin. On the next day at about 6.30 a.m. the Complainant suffered severe pain and she was made to walk to the labour room instead of providing wheel chair. At that time a Group-D staff caused rupture of the membrane which should have been done by the doctor himself. The doctor examined the Complainant in the labour room once only to ascertain the foetal heart sound. The Complainant for the whole night suffered pain and the doctor applied sucker machine which was defective. While causing delivery the doctor made rough handling and without anesthesia caused the delivery by administering sedative injection. The female baby of the Complainant expired on 10/05/07 due to the negligence caused by the doctor at the time of delivery. The Complainant was discharged on 11/05/07. Because of the deep tear in the vagina the stool was passing through the vagina and the Complainant had to undergo treatment and operation at Ramakrishna Mission Seva Pratishthan for repair of recto-vesico-vaginal fistula. The Complainant had to undergo pelvic disfunctioning colostomy operation. The baby of the Complainant expired due to the negligence on the part of the doctor and due to rough handling and deep tear in vagina during delivery the Complainant developed recto-vesico-vaginal fistula. All the sufferings were due to the negligence on the part of the doctor and the complaint was filed before the Learned District Forum alleging medical negligence.
The Learned Counsel for the Appellant has submitted that the Learned District Forum did not follow the established procedure in disposing of the complaint case. It is contended that the Group-D staff who allegedly caused the rupture of membrane has not been impleaded. It is submitted that the baby was born on 08/05/07 and expired on 10/05/07. It is contended that after delivery the infection in vaginal canal is a very common phenomenon which may result in recto-vesico-vaginal fistula. It is contended that injuries during child birth is a known complication in case of normal child birth. It is submitted that no expert opinion was adduced by the Complainant. It is submitted that the baby suffered asphyxia as there was cord round the neck and it was removed and the baby was born safely. It is contended that the labour pain continued for more than 20 hours and even then there was normal delivery. The Learned Counsel for the Appellant has referred to the medical literature on Episiotomy -Wikipedia, the free encyclopedia; Childbirth - Wikipedia, the free encyclopedia; Williams Obstetrics, 22nd edition, pages 500, 716, 719, 720, 722, 724 and the decision of the Hon'ble National Commission in FA 151 of 2010 [Smt. Rajkumari vs. Dr. (Smt.) R. Singh and Ors.].
The Respondent in person has submitted that she is a midwife nurse and she was treated by doctor during the period of pregnancy. It is submitted that the membrane rupture was caused by Group-D staff which was not permissible and the Gynaecologist himself ought to have checked it to ascertain the colour of the fluid (liquor) to determine whether caesarean section was necessary or not. It is submitted that the baby suffered hypoxia and it was clearly mentioned in the discharge certificate that there was birth asphyxia due to cord round the neck and the baby was referred to Pediatrician and that the baby expired on 10/05/07. It is submitted that under what conditions the baby was handed over to the Pediatrician has not been stated by the OPs. It is contended that the Gynaecologist in spite of prolonged labour pain for more than 20 hours and membrane rupture ought to have performed caesarean section and in that case the baby could have been saved. It is submitted that forcible delivery caused infection and harm to the baby and due to deep tear recto-vesico-vaginal fistula developed. It is submitted that the doctor did not monitor the situation and the doctor examined the foetal sound once only. It is submitted that subsequently the Complainant had to undergo treatment and surgery at Ramakrishna Mission Seva Pratishthan for repair of UVPF + RUF with pelvic colostomy. It is submitted that five operations were done in all for recto-vesico-vaginal fistula. It is submitted that there was higher degree of cutting/tear and the episiotomy resulted in complications. It is submitted that when Gynaecologist was present tear should not have occurred and tearing itself is negligence. The Respondent has produced the medical literature, namely, WebMD - Vaginal Fistula - Rectovaginal Fistula; C. S. Dawn, Text Book of Obstetrics Neonatology and Reproductive and Child Health Education, Revised 16th edition, 2004 and the medical papers, namely, the discharge certificate from the OPs and the discharge summary issued by Ramakrishna Mission Seva Pratishthan.
We have heard the submission made by both sides and perused the papers on record. The Complainant/Respondent paid the sum of Rs.300/- to the OPs for cabin charge as per receipt issued by the OP Hospital. It has been held by the Hon'ble Apex Court in the decision reported in 2014 (1) CPR 247 (SC) [Paschim Banga Khet Mazdoor Samity & Ors. Vs. State of West Bengal & Ors.] that in a welfare State primary duty of Government is to secure welfare of people by providing adequate medical facilities for people and the Hospitals run by State and Medical Officers employed therein are duty bound to extend medical assistance for preserving human life and the failure on the part of a Government Hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21 of the Constitution of India and the Petitioner should be suitably compensated for breach of his right. In the instant case the Complainant is a consumer and entitled to medical treatment from the Government Hospital.
It is the contention of the Complainant/Respondent that there was negligence on the part of the doctor in causing delivery and instead of waiting for normal delivery caesarean section ought to have been performed. It is also the contention of the Respondent/Complainant that because of prolonged labor pain for more than 20 hours the baby suffered hypoxia and after birth expired on 10/05/07. From the medical literature submitted by the Respondent, namely, WebMD - "Artificial Rupture of the Membranes to Induce Labor" wherein it has been mentioned that to start (induce) or speed up labor, the doctor may rupture the membranes. In the instant case it is the specific contention of the Complainant that rupture was caused by Group-D staff. It further appears from the medical literature submitted by the Respondent, namely, New Kids-Center [D.C. Dutta's Text Book of Obstetrics (edition not noted)] that colour of the liquor plays vital part in determining whether caesarean section should be done or not. From another literature produced by the Respondent, namely, New Kids-Center (Treatment of a Nuchul Cord) it has been mentioned that if the vaginal delivery is prolonged and threatens the health, safety or life of the baby, an emergency caesarean section must be performed and delay in performing c-section can severely exacerbate the detrimental effects of hypoxia and ischemia and can lead to serious brain injury. It has been further mentioned that the failure to properly monitor and treat the mother and baby during pregnancy, labour and delivery is negligence and the failure to follow standards of care and guidelines and to act skillfully and quickly also constitutes negligence. In the instant case in spite of labour pain the doctor abstained from performing caesarean section and it resulted in hypoxia. From the discharge certificate issued by the OPs it is clear that there was "birth asphyxia due to cord round neck". The baby expired on 10/05/07. Having heard both sides and on perusal of the papers on record, we are of the view that there was negligence on the part of the doctor in conducting delivery and not resorting to caesarean section.
It is the contention of the Respondent/Complainant that during delivery there was mis-handling by the doctor and there was deep tear for which she had to undergo surgery several times at Ramakrishna Mission Seva Pratishthan. The Respondent has produced the papers issued by Ramakrishna Mission Seva Pratishthan wherefrom it appears that there was delivery on 08/05/07 and there was perennial injury. The Complainant had undergone RUV/VVF with EUA. The Complainant remained admitted in OP Hospital from 08/05/07 to 11/05/07. From the medical papers issued by Ramakrishna Mission Seva Pratishthan it appears that the Complainant remained admitted from 18/05/07 to 10/06/07, 13/08/07 to 19/08/07, 15/09/07 to 20/09/07 and 01/10/07 to 10/10/07. It, therefore, follows that immediately after discharge from the OP Hospital the Complainant with severe complications regarding recto-vesico-vaginal fistula had to undergo surgery on several occasions. It is evident that those complications arose at the time of delivery due to the negligence on the part of the doctor. The doctrine of Res ipsa Loquitur is squarely applicable in the circumstances of the case. The doctor did not follow the standard medical practice and procedure and abstained from taking standard care and exercising skill in the matter. Having heard both sides and on perusal of the papers on record, we are of the considered view that for such acts of negligence on the part of the doctor the Complainant is entitled to get compensation and cost.
Learned District Forum while disposing of the case did not follow the established procedure. The Bench should deliver judgment, even if there is dissenting view, on the same date and not on different dates.
OP No.1 of the complaint is directed to pay compensation of Rs.5 lakh and litigation cost of Rs.25,000/- to the Complainant within 45 days from this date failing which interest @ 9% p.a. shall accrue from the date of default till realisation.
Let a copy of this judgment be sent to the Secretary, Department of Health and Family Planning, Government of West Bengal for issuing necessary direction for proper functioning of the OP No.2 Hospital. The Appeal is disposed of accordingly. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER