National Consumer Disputes Redressal
Ajay Khandel & Anr. vs Prakash Nursingh Home & Anr. on 4 October, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2769 OF 2008 (Against the Order dated 30/04/2008 in Appeal No. 1123/2005 of the State Commission Madhya Pradesh) 1. AJAY KHANDEL & ANR. Resident of Behind Jain Sthapak, Khaiwa Khandwa Madhya Pradesh 2. AKASH KHANDEL Resident of Behind Jain Sthapak, Khaiwa Khandwa Madhya Pradesh ...........Petitioner(s) Versus 1. PRAKASH NURSINGH HOME & ANR. Through Dr. Mrs. M. Ubeja Kundleshwar Ward Khandwa Madhya Pradesh 2. INCHARGE Choithram Hospital & Research Centre Indore Madhya Pradesh ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. Pawan Kumar Ray, Advocate For the Respondent : For the Respondent No.1 For the Respondent No.2 :
:
Mr. Deepesh Joshi, Advocate with Dr. Mrs. M. Ubeja, Respondent No.1 NEMO Dated : 04 Oct 2017 ORDER DR. S. M. KANTIKAR, MEMBER
1. The complainant No.1's wife, Ms. Shivangi, (for short, the patient) during pregnancy, was under consultation of Dr. Mrs. M. Ubeja, the OP1 at her Prakash Nursing Home, who told the patient that, she was normal. On 29-12-2003, due to labour pain she was brought to OP-1 at her hospital at 10 AM.. OP-1 instead of normal delivery, in haste performed a caesarean operation (LSCS). After the operation, the OP-1 doctor had gone to Nagpur, without entrusting the patient to any other specialist. The employees of nursing home refused to attend the patient, as there were no instructions. Post operatively the patient was unable to pass urine and stool and became very critical. Dr. Ubeja (OP-1) returned from Nagpur on 01-01-2004 at 2:00 P.M. and continuously observed the patient till evening. Then referred the patient to Choithram Hospital & Research Centre, Indore at 10:00 P.M.. At the time of referral, OP-hospital did not give any treatment record, also no attendant from the OP hospital was accompanied, while shifting of the patient. The pus and blood was oozing, from the stitches. The complainant spent huge amount for treatment at OP-hospital and at Choithram Hospital, but unfortunately, patient died on 14-01-2004. The complainant filed a complaint before the District Consumer Disputes Redressal Forum, Khandwa (in short the District Forum) for the alleged medical negligence by OP-1.
2. The OP resisted the complaint, by filing written version before District Forum. It was submitted that, Dr. Mrs. M. Ubeja-OP1 is MS and an experienced doctor, practicing for more than two decades. The patient was brought to the nursing home in the morning on 29-12-2003, with the leaking of fluid throughout the night and the delivery was tried by local midwife before coming to the nursing home. Thus, there was a chance of infection and danger to the child. Accordingly, OP gave medication and injections to the patient to prevent infection and suggested for immediate caesarean operation, but the patient's husband and father-in-law did not consent to the operation. Therefore, in place of her, other patient was taken for the surgery. At 3:00 P.M., the patient's relatives were told to take the patient elsewhere, therefore/that's why they gave the consent for the caesarean operation. After operation, the condition of the patient was satisfactory. The OP submitted that she had to rush to Nagpur, as her mother suffered an accident on 30-12-2003 and got her leg fractured. In her absence, her husband Dr. S.N. Ubeja, an Assistant Surgeon and Dr. Raksha Sharma, the Gynaecologist were looking after the patient every day. On 30-12-2003, the patient started taking liquids and semi-solid food also, the catheter was removed. On 01-01-2004, Dr. Raksha Sharma examined the patient, who was feeling restless and had chest pain with intermittent stomach ache. Therefore, in consultation with Dr. S. N. Ubeja, the physician, Dr. D. K. Garde was called. Her blood pressure fell down to 70. Thereafter, she was given intensive treatment and at 12:30 P.M. her BP improved to 100/70 but there was no urine output, therefore, on return of OP-1, the patient was referred to Choithram Hospital, for the dialysis, as it was not available in Khandwa. The OP1 submitted that due to delay in LSCS operation, there were more chances of infection which could result in septicaemia, DIC and Amniotic fluid ambolism. At OP-2 hospital, on admission the patient was in serious condition, developed septicaemia with DIC, acute renal failure (ARF) and acute respiratory distress syndrome (ARDS). Despite the best treatment, the patient died on 14-01-2004 at Choithram Hospital. Therefore, the OP-1 denied any negligence on her part.
3. On the basis of the evidence, the District Forum held the doctor negligent on the ground, that the patient was not provided proper post-operative care. The District Forum allowed the complaint and directed the OP1 to pay Rs.2,08,000/- as compensation and Rs.2,000/- as cost. Being aggrieved the complainant filed First Appeal No.1123 of 2005 for enhancement of the compensation, whereas the First Appeal No.1119 of 2005 filed by the OP for dismissal of the complaint. The State Commission allowed the First Appeal No.1119 of 2005, and dismissed the FA No.1123 of 2005, consequently the complaint was dismissed. Aggrieved by the impugned order the complainant filed this revision petition.
4. We have heard the learned counsel for the parties. They have reiterated their respective affidavit submissions. We have perused the documents and medical record on the file. As per the expert opinion given by Dr. V. K. Sanjay, that OP1-doctor performed the operation in half an hour, in undue haste. The nurses were not qualified and records were not properly maintained. In contrast, as per letter issued by Chief Medical Officer, Khandwa to the Collector dated 25-07-2005, it was a known complication and there was no negligence on the part of Dr. M. Ubeja. Similarly, Dr. Satpathy, the Director of Medical Institute issued an opinion to Superintendent of Police, Khandwa that the patient died due to known complications and there was no negligence on the part of the OP-1-doctor.
5. The counsel for OP-1 had raised objections to the report issued by Dr. V. K. Sanjay because he was not a specialist in Obstetrics and Gynaecology but he works as a leprosy officer, therefore, he was not an expert to opine in the instant case. Moreover, Dr. Satpathy and the CMO have opined that there was no negligence on the part of OP-1. Secondly, it is pertinent to note that the patient was admitted at 3:00 P.M. for labour pain and the decision for LSCS was proper. There was neither hurry nor any bad intention of Dr. Ubeja. The decision was taken after rupture of membranes at 2:30 P.M. and patient was not having contractions, thus, the LSCS was essential but the complainants gave the consent at later stage, which became fatal. We have perused the affidavit of Choithram Hospital, Indore, the OP-2 filed by the Director of Medical Services, Col.(Dr.) Kamlakar Vaidya. According to said affidavit the patient was admitted in OP-2 hospital at 2:02 A.M. on 02-01-2004 in serious condition having septicaemia with DIC with ARDS. She was admitted in ICU and examined by Nephrologist, Hematologist and Gynaecologist. She developed DIC and, therefore, resulted into death.
6. According to medical literature "Bacteriological study of premature rupture of membranes" by R Kondal/Rao and Nandan Singh - "The foetal membranes provide protection against infection. The liquor amnii has antibacterial activity due to zinc protein complex. Bacterial colonization of the amniotic cavity is known to occur after rupture of the fetal membranes through direct ascent for endogenous vaginal flora". Therefore, to counter the risk and to control the infection, OP-1 gave broad spectrum antibiotics pre and post operatively but despite the precautions, patient developed infection further septicaemia and shock and further renal complications and DIC. In our view the death was not due to any negligence, on the part of the OP-1.
7. In this context we rely upon judgment of Hon'ble Supreme Court in the case of Jacob Mathew, (2005) 6 SCC 1 wherein the Hon'ble Supreme Court observed that:-
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
8. The medical record from OP-1 hospital and the OP-2 hospital clearly establish that the patient was attended by Dr. Ubeja and also by Dr. Raksha Sharma in absence of Dr. Ubeja. Both are qualified and managed the post-delivery complications. The patient was referred to Choithram Hospital at proper time, therefore, referring the patient to another hospital for higher treatment was not a negligence. In view of the aforesaid discussion, we do not find any negligence on the part of the OP, during delivery and post- delivery complications.
Accordingly, the revision petition is dismissed.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER