State Consumer Disputes Redressal Commission
Sai Mahima Hospital vs Anil Rana & Ors. on 28 August, 2006
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION SHIMLA APPEAL NO. 338 OF 2004. Date of Decision 28.8.2006. 1. Sai Mahima Hospital, Ram Nagar, Dharamshala, Tehsil Dharamshala District Kangra, H.P. through Dr. Mrs. Prem Lata Shukla, Proprietor of Sai Mahima Hospital, Ram Nagar, Dharamshala, Distt. Kangar, H.P. . . Appellant. Versus 1. Anil Rana S/o Sh. Gurmukh Singh R/o Vill. Bari, PO Bane Di Hati Tehsil Dehra, Distt. Kangra, H.P., 2. Master Anshal Rana (minor) through his legal and natural Guardian his father Anil Rana S/o Sh. Gurmukh Singh R/o Vill. Bari, PO Bane Di Hati, Tehsil Dehra, Distt. Kangra, H.P., . . . Respondents/Complainants 3. Satya Nanda Nursing Home near Bus Stand Dehra, Tehsil Dehra, Distt. Kangra, H.P. through Dr. Mrs. Vir Bala Nanda., 4. Satya Nanda Nursing Home, Near Bus Stand Dehra, Tehsil Dehra, Distt. Kangra, H.P. through its Proprietor or Mahendera Nanda, 5. National Insurance Company Limited Branch Office Dharamshala, Tehsil Dharamshala, Distt. Kangra, H.P. through its Branch Manager. Proforma Respondents. For the Appellant. Mr. Ratish Sharma, Advocate, Vice Mr. Digvijay Singh Advocate. For the Respondents Mr. Mohinder Kumar, Advocate No.1 and 2. For the Respondents Mr. Himanshu Mishra, Advocate, Vice No. 3 and 4. Mr. Ajay Mohan Goel, Advocate. For the Respondent Mr. Neeraj Bhatnagar, Advocate. No.5. APPEAL NO. 341/2004. 1. Satya Nanda Nursing Home, Near Bus Stand Dehra, Tehsil Dehra, Distt. Kangra, H.P. through its Proprietor or Mahendera Nanda, 2. Dr. Vir Bala Nanda Satyaa, Nanda Nursing Home, Near Bus Stand Dehra, Tehsil Dehra, Distt. Kangra, H.P. . . . Appellants. Versus 1. Anil Rana S/o Sh. Gurmukh Singh R/o Vill. Bari, PO Bane Di Hati Tehsil Dehra, Distt. Kangra, H.P., 2. Master Anshal Rana (minor) through his legal and natural Guardian his father Anil Rana S/o Sh. Gurmukh Singh R/o Vill. Bari, PO Bane Di Hati, Tehsil Dehra, Distt. Kangra, H.P., 3. Sai Mahima Hospital, Ram Nagar, Dharamshala, Tehsil Dharamshala, Distt. Kangra, H.P. through its Proprietor Dr. Prem Lata Shukla., 4. National Insurance Company Limited Branch Office Dharamshala, Tehsil Dharamshala, Distt. Kangra, H.P. through its Branch Manager. .... . . Respondents. For the Appellants. Mr. Himanshu Mishra, Advocate, Vice Mr. Ajay Mohan Goel, Advocate. For the Respondents Mr. Mohinder Kumar, Advocate. No. 1 and 2. For the Respondent Mr. Ratish Sharma, Advocate, Vice No. 3. Mr. Digvijay Singh, Advocate. For the Respondent Mr. Neeraj Bhatnagar, Advocate. No. 4. APPEAL NO. 352/2004. 1. National Insurance Company Limited through its Divisional Manager, Shimla Divisional Office, Hotel Himland, Circular Road, Shimla, H.P. . . . Appellant. Versus 1. Sh. Anil Rana S/o Sh. Gurmukh Singh R/o Vill. Bari, PO Bane Di Hati Tehsil Dehra, Distt. Kangra, H.P., 2. Master Anshal Rana (minor) through his legal and natural Guardian his father Anil Rana S/o Sh. Gurmukh Singh R/o Vill. Bari, PO Bane Di Hati, Tehsil Dehra, Distt. Kangra, H.P., 3. Sh. Sai Mahima Hospital, Ram agar, Dharamshala, Distt. Kangra, through Dr. Ms. Prem Lal Shukla, Proprietor, Sai Mahima Hospital., . . . Respondents. 4. Satya Nanda Nursing Home near Bus Stand Dehra, Tehsil Dehra, Distt. Kangra, H.P. through Dr. Mrs. Vir Bala Nanda., 5. Satya Nanda Nursing Home, Near Bus Stand Dehra, Tehsil Dehra, Distt. Kangra, H.P. through its Proprietor or Mahendera Nanda, Proforma Respondents. For the Appellant. Mr. Neeraj Bhatnagar, Advocate. For the Respondents Mr. Mohinder Kumar Advocate. No. 1 and 2. For the Respondent Mr. Ratish Sharma, Advocate, Vice No.3. Mr. Digvijay Singh, Advocate. For the Respondents Mr. Himanshu Mishra, Advocate, Vice No. 4 and 5. Mr. Ajay Mohan Goel, Advocate. Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mr. Narinder Singh Thakur, Member. Honble Mrs. Saroj Sharma, Member. Whether Approved for reporting ? Yes. O R D E R:
Justice Arun Kumar Goel (Retd.) President All these appeals have arisen out of the order dated 17.11.2004 passed by District Forum, Kangra at Dharamshala, in Complaint No. 29/2002, as such these were heard together and are being disposed by this common order.
2. Appeal No. 338/2004 has been filed by Sai Mahima Hospital, Ram Nagar, Dharamshala which was arrayed as OP No.3 and is hereinafter being referred as OP No.3. Satya Nanda Nursing Home, through Dr. Mrs. Vir Bala Nanda, and this Nursing Home through Dr. M. Nanda were arrayed as OP No.1 and 2 in the complaint and are being referred to as OP No.1 and 2. Similarly National Insurance Company Ltd was arrayed as OP No.4 and is being referred to hereinafter as OP No.4.
3. Appeal No. 341/2004 has been filed by OP No.1 and 2 whereas Appeal No. 352/2004 has been filed by OP No.4.
4. After having heard learned counsel for the parties at length and also having gone through the record of the case, admitted as well as proved facts are, that late Smt. Mamta Rana wife of complainant No.1 and mother of complainant No.2 was admitted with the Nursing Home i.e. OP No.1 and 2. She was admitted on the night of 23.11.2001. On the morning of 24.11.2001 at about 7:45 AM she delivered complainant No.2. This was a normal delivery.
5. Thereafter condition of the deceased was not improving, thus then at about 11:30 AM there were fluctuations in her vitals so OP No.1 advised the attendant to shift the patient as soon as possible and was referred to Gynecologist and Obstetrician. From the record of the case, it is also made out that OP No.1 Mrs. Vir Bala Nanda accompanied the deceased and her husband to the Nursing Home of OP NO.3. Though she alleges that it was complainant No.1 who insisted for taking her to the Nursing Home of OP No. 3, whereas stands of complainant that it was Dr. Mrs. Nanda who took her to the Nursing Home in question. After deceased was taken to the Nursing Home of OP No.3 at Dharamshala which is at a distance of 50 kilometers from Dehra, it was found by the said OP that blood two units were required, as such attendant was asked to do the needful and in fact he did. It is also established on record by the time blood could be arranged from Zonal Hospital, Dharamshala and brought to OP No.3, the patient was no more as she was declared dead at 4:15 P.M. In this background complaint was filed for deficiency in service on the part of the OPs No.1 to 3. On the objection of OP No.3, OP No.4 Insurance Company was added since it had taken a policy from the said respondent for being indemnified.
6. When put to notice stand of the OP No.1 was that the complaint involved complicated question of law and fact which required detailed expert and other evidence, thus it could only be decided by Civil Court, so the present complaint was not maintainable, complainants had no cause of action which was otherwise false, frivolous, fictitious and had been filed with malafide ulterior motive with a view to defame and malign the Opposite Party. It may be dismissed and compensation under Section 26 of the Consumer Protection Act, 1986 be allowed in her favour. While admitting the admission of the deceased in the Nursing Home in question, on 23.11.2001, it was denied that Rs. 3500/- was settled as delivery expenses. Further according to OP No.1 it was told by her to the attendant that there is no facility for blood, caesarian operation and any other complicated delivery and only normal delivery cases are taken up in the clinic. OP No.1 also pleaded that at the request of attendant of the deceased she accompanied them to Dharamshala being a kind hearted lady and on humanitarian grounds where instead of taking the deceased to the District Hospital, she was taken to Nursing Home of the OP No.3 of their own. OP No.1 alleged that OP No. 3 assured complainant No.1 that patient was not in a dangerous condition.
7. Stand of OP No.2 is that he has nothing to do and the patient was attended upon by OP No.1 in the Nursing Home at Dehra.
8. Stand of OP No.3 qua complaint involving complicated questions is same as of OP No.1 and as already noted she was covered under professional policy where after OP No.4 was added. OP No.3 further pleaded that it was revealed by OP No.1 that complainant No. 1 and her family members of deceased were advised to shift her to Zonal Hospital but in vain. Here part of the pleadings from Para 8 of OP No.3 need to be extracted which in our opinion is relevant for deciding this case.
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It is absolutely incorrect that the replying opposite party assured the complainant and his family members that the patient is not in a dangerous condition and that when asked for blood or medicines she replied in negative. It is also wrong to allege that at about 4:00 P.M. on the same day on asking by the complainant and other family members, the opposite party 1 to 3 directed them to arrange the blood immediately but blood reached late after her death. The moment patient reached in the Nursing Home at about 2:30 P.M. she was Semi conscious and in a serious condition. She was brought with a history of excessive bleeding after delivery. The patient was in shock with B.P. 90/50, pulse 120 to 130 and Pallor ++
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(Emphasis supplied)
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- - -- - - - - - - - - - - - - - - - - - - - - - When checked from Vagina piece of membranes was found there and was taken out as a result of which the bleeding was controlled. However, on thorough examination it was found that it was a case of PPH i.e. Post Partum Haemorrhage. Allegations of negligence on its part were denied by opposite party and according to it beside all efforts she expired.
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(Emphasis supplied)
9. Stand of OP Insurance Company was that there was no professional negligence, error in discharging the duty on the part of OP No.3, therefore it was not liable to pay any amount as no notice of occurrence materially affecting the risk insured in writing was given by OP No.3 to it, which was mandatory according to the Insurance Policy, as such it disputed its liability i.e. of OP No.4. It was reiterated that there was no negligence on the part of the said OP No.3. Rejoinders were filed to the replies and stand in the complaint was reiterated, and averments to the contrary were denied.
10. Record of the case shows that the First Information Report was lodged with the police vide FIR No. 23/2001, under section 304-A/201 IPC against OP Nos.1 and 2 at Police Station Dehra. Finally cancellation report Ext R1/D was accepted by the Additional Chief Judicial Magistrate, Dehra in criminal case No. 3-1/2003, this was on the basis of the report of the Medical Board, Dharamshala who had opined that there was no negligence in the treatment of deceased. Court while accepting the final report held that no case has been made out against the accused persons and it was ordered to be filed as cancelled. Reference to this order is being made because on behalf of OP Nos. 1 and 2, great emphasis was laid on it, as well as on a decision of Bihar State Commission, wherein it was held that to hold an enquiry on the factual negligence on the part of OP Nos.1 and 2 as is the case in this complaint, when the criminal complaint had been dismissed by the Court on the same facts.
11. As already noted after registration of FIR, the matter was referred to Rajinder Parshad Medical College Hospital, Dharamshala for its opinion. Board gave it and the same is at page 241 of the complaint file where the Board headed by Dr. Sita Thakur, Associate Professor of the Department of Gynae opined that after going through the records there was no negligence found. Boards opinion is Ext. R1/F.
12. During the course of complaint a questionnaire was filed by the complainant for being sent to Dr. Sita Thakur and also to seek expert opinion from institution like PGI, Chandigarh. Later prayer was turned down, whereas other was allowed. Dr. Sita Thakur has filed affidavit which is at pages 195-197 of the file. Questionnaire is at pages 205-207 and her reply to it is at page 451 of the file. In our opinion questions No.4,5 and 8 alongwith their replies are relevant and material in this case which are extracted hereinbelow:-
4. Whether blood transfusion was required Blood transfusion At Satya Nanda Nursing Home to save the could have helped Life of deceased Smt. Mamta Rana and in saving life of Whether any effort in this context was Smt. Mamta Rana.
Made by Dr. Vir Bala Nanda as per the Regarding efforts Medical record shown to you. in this context
5.Whether the deceased Smt. Mamta Rana made by Dr. Vir needed blood transfusion from 10 A.M. Bala Nanda, the to 12:30 P.M. at above Nursing Home and medical record of did the treatment record show that any of patient Mamta is her attendants was asked by Dr. Vir Bala required to to arrange blood and whether she was profess- answer ionally qualified for such transfusion. this.
8. Whether after the admission in Sai Yes.
Mahima Hospital, the patient Mamta Rana required immediate blood transfusion.
13. Effect of these answers coupled with her affidavit will be dealt with later on. In the aforesaid background the main question in all these three appeals is whether this is a case of deficiency in service by OP No. 1 to 3, and whether this is a case of medical negligence on their part or not. If the answer is affirmative no exception can be taken up to the impugned order. Otherwise complainants must fail.
14. At the time of hearing of the appeal Mr. Goel appearing for OP No. 1 and 2 urged that criminal case was registered against his clients and no negligence has been found, therefore, the present complaint was not maintainable. This is otherwise necessary according to him to avoid conflicting decision. He laid great emphasis on the FIR and its cancellation report accepted by the court, which according to him was based on the same facts as in dispute before the Forum below. In this behalf he made reference to decision of Bihar State Commission in the case of Jitendra Nath Versus Dr. (Mrs.) Manju Geeta Mishra & Others 1 (1995) CPJ 96.
15. We have gone through the order of Bihar State Commission. With respect, we have not been able to persuade ourselves to follow this view for the simple reason that so far rigour and standard of proof in a criminal case is concerned, it is for the prosecution to cover the distance between may have and must have, with a view to succeed. Whereas in summary proceedings by the Foras under Consumer Protection Act, 1986 the matter has to be gone in a summary manner on the basis of the material before it. According to Mr. Goel there was no negligence of any type whether Civil or Criminal as such this complaint was liable to be dismissed on this short ground alone. In this behalf Mr. Goel laid great emphasis that his client had informed complainants No.1 that only normal deliveries are carried out in the nursing home and also there was no facility of blood, caesarian operation and other complicated cases. He relied upon Ext. R1/A the record of case history of deceased from her admission till she was taken to Dharamshala.
16. In Ext. R1/A respondent No. 1and 2, Dr. Mrs. Vir Bala Nanda has held herself out to be consultant Gynecologist and Obstetrician, whereas Dr. M. Nanda has projected himself to be family physician. And amongst other facilities available in the Nursing Home it is shown to be having Clinical Lab and Indoor, Delivery, (E.T.C.). It no where mentions that there is only arrangement in the nursing home for normal deliveries and there is no arrangement of blood, or caesarian etc. This in our confirmed view is purely an afterthought on the part of OP No.1 to save her skin. Nor can these facts be even remotely inferred from EX. R1/A.
17. On the plea that complicated questions of law and fact are required to be gone into after recording evidence which is only possible before an ordinary court of law, is again a plea raised by Mr. Goel simply to be rejected. As already observed OP No.1 did not realize the gravity of situation after delivery of the child. In this behalf when a reference is made to the reply of OP No.3 and affidavit filed by her, as well as by Dr. Om Parkash and the Ward attendant on behalf of OP No.3, coupled with its prescription slip it is evident that the deceased was bleeding and was in a semi conscious state due to profuse bleeding after delivery, whereas there is no such mention in Ext. R1/A i.e. the treatment administered by OP No.1 right from the stage of her admission till she was taken to the Nursing Home of OP No.3. And reasons of not mentioning profuse bleeding after delivery in Ext. R1/A are not difficult to find, because if this was mentioned then the patient required blood transfusion and there was no arrangement available with the OP Nos.1 and 2. In these circumstances admitting the deceased for delivery by these OPs was wholly unwarranted. Because if some complications arose even in case of a normal delivery as is the situation in these appeals, then there was no arrangement for its immediate and aggress medical management. This in our opinion by itself constitutes not only negligence but deficiency in service too. In this view of the matter reliance by Mr. Goel on the decision of National Commission in the case of M/s Special Machines, Karnal Versus Punjab National Bank & Others 1 (1991) CPJ 78, is wholly ill-founded and is therefore rejected. We are of the view that there is no complicated question of either law or fact involved in this case.
18. We are alive of the fact, that the skill of medical practitioners differ from person to person and there can be number of courses open for treating a patient. In these circumstances a particular doctor might follow one of the accepted and recognized course of treatment. If he has properly taken care of the patient by adopting one of such recognized mode of treatment to the best of his ability, of course with due care and caution, then it can not be termed as a case of medical negligence. And in such a situation the Courts find that he had attended the patient with due care, skill and diligence and if a patient does not survive or suffers with some permanent ailment it will not be possible to hold doctor responsible to be guilty of medical negligence.
19. A standard of care which is required in this direction while determining deficiency in service for the purpose of section 2 (1) (g) of the Consumer Protection Act, 1986, test would as is applied in action for damages and as laid down by the direction to the Jury in Bolam Versus Friern Hospital Management Committee (1957), 2 All ER 118. For ready reference observation made in behalf is extracted hereinbelow:-
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- - - - - - - - - - - - - - - - - - - - - - - - - - - -Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (Charlesworth and Percy, ibid., para 8.02).
20. This principle was accepted by the Honble Supreme Court in the case of Jecob Methew V. State of Punjab and another 2005 (2) CPC 515 SC and observation which are relevant for this case are as under:-
A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(Emphasis supplied) In its this decision it also observed:-
The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie summarized the Bolam test in the following words (Con LR p.
79)-
From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet (Charlesworth and Percy, ibid., para 8.04).
The degree of skill and care required by a medical practitioner is so stated in Halsburys Laws of England (4th Edn., Vol. 30, para 35):
35.
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed, among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been action with ordinary care. - - - - - - - - - - - -
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21. To similar effect is the decision of the National Commission in the case of Dr. Sushil Tripathi & Anr Vs. Ghanshyam Khatik, 2006 (2) CPC 214.
22. Even otherwise a doctors duty towards his patient is clear. One who considers that he can give medical advise and treatment impliedly undertakes is presumed to be possessed of skill and knowledge for the purpose and when consulted such person i.e. the doctor owes a duty of care with skill in discharging his duty whether to undertake the case of not. He also owes a duty of care in administration of the treatment. A breach of such duty gives the right of action for negligence to the patient if the medical practitioner fails to bring to his task a reasonable degree of skill and knowledge and must exercise the same reasonably.
23. Applying the parameters laid down in the case of Achutrao Haribhau Khodwa and others Versus State of Maharashtra and Others (1996) 2 SCC 634, we are of the view that this is a case of clear cut negligence on the part of OP Nos.1 and 2. Here the above extracted stand of OP No.3 and the affidavits filed by Dr. Prem Lata Shukla its Proprietor, Dr. Om Parkash Sharma who was working in her Nursing Home and that of Mrs. Reena, Ward attendant assume significance. It is clear cut stand of OP No.3 that membranes had not been fully removed out after delivery which was removed by her. Further according to her with the removal of membranes bleeding was controlled. Answers to question No.4, 5 and 8 extracted hereinabove to the questionnaire sent by the District Forum to Dr. Sita Thakur also assumes great significance.
24. According to OP No.3 after admission of patient Mamta Rana with it immediate blood transfusion was required. Admittedly there was no blood bank with OP No.3. As such whether despite advice of OP No.1 to take the deceased to District Hospital, complainant No.1 of his own brought his wife to OP No.3 when there was no arrangement for blood even with this OP is of no consequence. Because in our opinion deceased ought not to have been admitted by OP No.3.
25. An attempt was made by Mr. Goel to place great emphasis on the affidavit of Dr. Sita Thakur, however in our opinion in the face of her reply to the questionnaire, this affidavit does not in any manner advance the case of any of the appellants before us. In case urgent blood transfusion was required which according to OP No.3 was requisitioned from Government Hospital blood bank, we feel that sufficient time was wasted, she ought to have forthwith referred the deceased to the District/Zonal Hospital for better and aggressive medical management looking to the patients serious condition as is evident from the affidavit of Dr. Prem Lata Shukla. Why this was not done could not be explained on behalf of respondent No.3.
26. Non removal of membranes by respondent No.1 after delivery is established as also the continued bleeding thereafter which was only controlled when those were removed by OP No.3 at Dharamshala. In this view of the matter there cannot be any better case of medical negligence on the part of OP Nos.1 and 2. Mr. Goel submitted that in order to succeed complainants were required to produce expert evidence. No doubt initially onus was upon them. However, from the material on record we are of the view that deficiency of service and medical negligence, both are established beyond any shadow of doubt. When after delivery a Gynecologist does not remove even the membranes what sort of doctor he or she is. Mr. Goel pointed out that vitals were not stable. If that was the position clinical test should have been undertaken because OP Nos.1 and 2 have clearly held out in Ext. R1/A that facility of Clinical Lab was there.
27. A perusal of the entire case history Ext. R1/A shows that not even a single clinical laboratory test was undertaken. There is mention of blood being there whenever checked after delivery on the pads, nothing was done to check the same except for giving medicines without looking into its cause. In these circumstances reliance placed by Mr. Goel on Smt. Vinitha Ashok, Appellant V. Lakshmi Hospital and others. Respondents AIR 2001 Supreme Court 3914, Dr. Devendra Madan & Ors Versus Shakuntala Devi 1 (2003) CPJ 57 (NC), Mrs. Beena Garg Versus Kailash Nursing Home and Ors III (2002) CPJ 99 (NC) and 2004 CPJ 20 (NC) in our opinion is wholly misconceived.
28. We may observe that no benefit can be derived from Ext. R-X the affidavit of Dr. Sita Thakur which is at pages 195-197 of the complaint file. Lastly and in the alternative Mr. Goel, without in any manner conceding the claim of complainants, urged that award is on higher side. We do not agree with him. Complainant No.2 lost his mother within less than 24 hours of his birth, that too purely due to negligence on the part of those who were supposed to take care of her, that being so we find that amount ordered to be paid by his clients is not on higher side. May be that complainant No.1 has re-married, but complainant No.2 will have to live with his step mother throughout his life and how she will look after, God only knows.
29. In the appeal 338/2004 filed by OP No.3 Mr. Digvijay learned counsel urged that she is holding MD, Master Degree of Gynae. The subject patient came in a serious medical condition to her at Dharamshala, that too after 8 hours profused bleedings. Her membranes had also not been removed which were removed by her. With a view to advance the case of her client Mr. Digvijay placed reliance on the decision of National Commission in the case of Sethuraman Subramaniam Iyer Versus Triveni Nursing Home and another 1998 (1) CLT 242 NC, and urged that there being no evidence to show either deficiency in service or medical negligence on the part of his client, she cannot be held responsible for payment any amount.
30. Patient was brought to Nursing Home at 2:30 PM and according to OP No.3 she was in a semi-conscious condition and immediate blood transfusion was required. Admittedly there was no blood bank with OP No.3 and it had to be requisitioned from the Government Hospital. It was in fact requisitioned and brought by the attendant of the deceased but by the time she had already passed away. This is not only the stand of Dr. Prem Lata Shukla Proprietor of OP No.3, but is also the stand of Dr. Om Parkash employed by her in her hospital and the female ward attendant. In the ordinary course of things instead of admitting the patient she should have been referred immediately to the Government Hospital so that the time that was wasted in requisitioning blood which was urgently required to be transfused would have been saved in this behalf. Again at the risk of repetition question and answers extracted hereinabove from the questionnaire sent to Dr. Sita Thakur assume significance. There is also material on record to show that distance of OP No.3 Nursing Home and Government Hospital is about half a kilometer. Thus in our opinion this is a fit case where the principle of Res-ipsa-locquiter is clearly attracted. As such no benefit can be derived on behalf of OP No.3 on the decision of National Commission in the case of Sethuraman Subramaniam Iyer versus Triveni Nursing Home and another, (supra).
31. It was further submitted by Mr. Digvijay that his client did best medical management in providing best medical care to the deceased who was in a precarious condition, despite that she passed away. We are constrained to observe in this behalf that after admitting the patients and being satisfied that blood is required to be transfused she instead of referring her to the hospital requisitioned the blood and had asked attendant to do the needful. We feel that this is a clear cut case of deficiency of service on her part for, reasons need not be commented upon.
32. In the appeal filed by the Insurance Company Mr. Bhatnagar submitted that there is no negligence, error or omission on the part of OP No.3 while discharging her professional duty and in this behalf he referred to pleadings. An attempt was also made by him to take advantage of the writing on the back side of Ext. R3/B to exonerate OP No.3 as well as his client. So far writing on the back side of Ext. R3/C is concerned it is of no consequence. Reason being that the position of the person who had written it can be better imagined than explained at that point of time, when sole consideration with him was saving the life of his wife and not what he was writing. Further with a view to exonerate OP No.3 and 4 Mr. Bhatnagar submitted that the condition of the patient had already become critical as is evident from Ext.R3/C the case history of patient in the Nursing Home of OP No.3. This argument negatives his plea that there is no negligence on the part of the insured i.e. OP No.3.
33. Another plea that conditions of policy stood violated when immediate notice was not given to his client by OP No.3. Again this plea is raised simply to be rejected. Reason being that this stand is inconsistent on the part of his client because on the one hand he argued that there was no negligence, whereas we are prima facie satisfied that medical negligence is there and he argued that there is violation of the terms and condition of policy.
34. Learned counsel for the complainants pointed out that stand of OP Nos.1 and 2 about there being fluctuations in vitals of the deceased we have already held that those could be checked by laboratory tests. Tests were to be undertaken by OP Nos 1 and 2. Whereas blood pressure and temperature was almost stable. This position is evident from Ext. R1/A the case history of the deceased, from her admission till she was undertaken to Dharamshala. We have observed that not a word has been said about profuse bleeding in Ext. R1/A, why is not made out and also could not be explained by Mr. Goel.
35. We may reiterate before concluding, that so long a doctor after due care and caution even with ordinary skill takes care of the patient and follows recognized line of treatment, merely because another doctor would have taken any other line of treatment and/or would have better managed the patient will not constitute medical negligence. Negligence prima facie in our opinion is lack of due care and caution. When delivery was normal, there were no complication of profuse bleeding, in the case of deceased as none is mentioned in Ext R1/A, then what is pleaded by OP No.1 that there being no such arrangement for blood, caesarian etc with it was already explained to the attendant of the deceased, is a devise prima facie coined to save its skin by this OP. Medical negligence is clear in this case because there is mention of blood being found on the pads changed as per Ext. R1/A. Still not a word is said about either the membranes being found or there being bleeding after delivery. Plea of bleeding having regressed mentioned in Ex R1/A, clearly indicates that the deceased was bleeding and it got reduced. At this point of time vitals of the deceased were normal. Question of regression of bleeding would only arise, when there was in fact bleeding.
36. OP No.3 has clearly and in express terms stated in her reply as well as affidavit that this was a case of PPH i.e. Postpartum Hemorrhage. In medical terminology it is denied as under:-
Generally the term denotes excessive haemorrhage from the genital tract at any time after the birth of the baby upto the end of puerperium amounting to a degree affecting the general condition of the patient. For statistical purpose, haemorrhage of more than 500 ml. is defined for postpartum haemorrhage.
37. Whereas OP No.1 who had accompanied the patient to the Nursing Home of OP No.3 has not given any explanation in this behalf because she was the best person having treated the deceased first and in whose Nursing Home male child was delivered during the process of a normal delivery. And who advised the attendant of the deceased to shift her. And as already observed vitals of the deceased were normal so long she was at Dehra Nursing Home. As such what was the emergency that arose all of a sudden to ask the attendant of the deceased to shirt her around 11:30 AM. This in our opinion lends support to the fact that deceased was bleeding profusely after the child birth. And answers of Dr. Sita Thakur extracted above support this conclusion.
38. There was no complications when vitals were almost stable both at Dehra and Dharamshala as is evident from record, where was the need to have advised attendant to shift the patient from Dehra to Dharamshala could no be answered by Mr. Goel nor there is anything on record to suggest that it was the attendant who wanted the patient to be shifted.
39. No other point was urged.
In view of the aforesaid discussion we are satisfied that there is no merit in these three appeals merit dismissal. It is ordered accordingly with costs. Each of the appellants shall pay Rs. 5,000/- as costs to complainants.
All interim orders passed from time to time shall stand vacated forthwith. Office will make available a copy of this order to the parties free of costs as per rules. A copy of this order be placed on the record of Appeal No. 341/2004 and 352/2004.
Shimla.
28th August, 2006. (Justice Arun Kumar Goel)Retd.
President.
(Narinder Singh Thakur), Member.
(Saroj Sharma), Karan* Member.