State Consumer Disputes Redressal Commission
Smt. Shefali Tyagi vs Dr. Manisha on 5 December, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL - 2 - STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL DEHRA DUN CONSUMER COMPAINT NO. 32 / 2002 Smt. Shefali Tyagi ......Complainant Versus Dr. Manisha .....Opposite Party Sh. K.N. Nautiyal and Sh. T.R. Joshi, Learned Counsel for the Complainant Sh. Gopal Narsan, Learned Counsel for the Opposite Party Coram: Hon'ble Justice Irshad Hussain, President Surendra Kumar, Member Dated: 05.12.2006 ORDER
(Per:
Mr. Justice Irshad Hussain, President):
By way of this consumer complaint, complainant has prayed for grant of Rs. 11,30,000/- as compensation on account of alleged medical negligence of the O.P.
2. Briefly stated the facts of the case are that the complainant Smt. Shefali Tyagi became pregnant and since 03.12.2001 remained in post conceptional care and treatment of O.P. Dr. Manisha who with her doctor husband is running Brahma Hospital in the town of Roorkee, District Haridwar. Complainant has had pain in her abdomen for which O.P. prescribed medicines and assured her that everything was normal and that she should not have any worry about her delivery. In the forenoon of 02.08.2002, complainant was admitted in the hospital. In the evening at about 5:16 p.m., O.P. performed delivery of female child by using forceps. Complainant alleged that the delivery was performed with negligence and without proper care resulting which profuse bleeding started from the uterus; that she was not properly attended to by O.P. while running very high fever with severe body pain and that she was discharged in that state of health on 05.08.2002 by the O.P. while assuring that she will be alright within two or three days by taking the medicines prescribed.
3. In the evening of 07.08.2002, complainant had high fever and unbearable pain in her body. When contacted, the O.P. did not agree to make medical check up despite the fact that the complainant had all along been under the care, supervision and treatment of the O.P. Complainant was then taken to and got admitted in the Kasturi Nursing Home of Dr. (Mrs.) Abha Agrohi. On medical check up, Dr. (Mrs.) Abha Agrohi diagnosed severe septic conditions in uterus and private parts and the stitches on the surgery (cut / tear) were damaged. Complainant was told that gauze patch had been left in the vagina when steps were taken to stop the bleeding (haemorrhage). Complainant further averred that in order to perform forceps delivery, the O.P. rashly and negligently made vaginal surgery and in the process extended the cut from vagina to anus which was not properly stitched and as a result thereof, recto-vaginal fistula was formed and urine and faecal matter started passing from one and the same passage causing great mental agony and physical suffering to her. According to the complainant, things were managed to a great extent by Dr. (Mrs.) Abha Agrohi who removed the gauze patch and saved her life and referred her for super speciality treatment so that the damage caused may not spoil her marital life and ability to conceive and bear another child. Complainant was then placed under the specialized medical treatment of Dr. (Mrs.) S.N. Basu at Jaipur Golden Hospital, Rohini, Delhi and admitted there on 28.08.2002 for a major operation performed on 30.09.2002 by a team of experts headed by Dr. Basu for rectification of the recto-vaginal fistula and post delivery complications, a result of rash and negligent handling of her case by O.P. Complainant was advised complete rest for six months and was also told that she will have to suffer surgical interference for delivery, if any, of another child.
4. Complainant also averred that she is a post graduate young woman and her future marital life and its enjoyment have been put to great strain and state of confusion putting her to such a negative frame of mind that she feel that life is a burden for her on account of her sorry state at the hands of O.P. Alleging medical negligence and deficiency in service, consumer complaint was filed with a prayer to direct the O.P. to pay Rs. 10,00,000/- as compensation for mental agony, suffering and social detachment; Rs. 25,000/- towards cost of the medicines purchased and fee paid to the O.P.; Rs. 5,000/- towards legal expenses and Rs. 1,00,000/- for the medical treatment being received by the complainant at Delhi.
5. O.P. contested the complaint and filed written statement wherein the allegations were denied and on merit, it has been reiterated that there was no negligence on her part in regard to the post conceptional care and treatment given to the complainant on account of abdominal pain which was diagnosed as a case of threatened abortion right from 03.12.2001 and thereafter regularly and that the delivery performed by using forceps was perfectly in order and in accordance with the settled medical norms and practice. She also urged that she was fully competent to perform the forceps delivery and at that time, episiotomy (surgery) was properly done and the cut / tear was properly stitched and that this method of delivery was applied to avoid the bigger operation namely caesarian section keeping in view the state of health of the complainant as well as the child in the womb. The complainant has had post partum haemorrhage (PPH) after about two hours of the delivery and the same was even handled with complete professional success by providing blood transfusion, even though according to available medical datas, PPH results in the death of about one-fourth of such cases. O.P. further averred that the treatment was given to the complainant with due diligence and prudence and that no complications / injuries etc. can be attributed to the treatment provided and surgery performed by her. The complainant was prescribed required medicines and discharged in a good state of health after proper check up on 05.08.2002 to the satisfaction of the complainant and her family members.
6. According to the O.P., the complainant did not report to her after discharge from the hospital on 05.08.2002 and that there has not been any negligence in the treatment meted out to the complainant and as such she is not liable for any act of medical negligence and to pay any damages.
7. Parties adduced evidence in the form of affidavits and relevant record consisting of medical prescriptions and the treatment given to the complainant. Complainant also filed receipts of purchase of medicines and the expenses for specialized treatment. Complainant also got the statement of Dr. (Mrs.) Abha Agrohi recorded on commission in support of her allegations.
8. We have heard the learned counsel for the parties and have carefully considered the evidence on record in the light of the submissions of the learned counsel and legal aspects of the matter in issue.
9. Complainant alleged medical negligence on the part of the O.P. in diagnosis, investigation, treatment and management of her pregnancy, delivery, surgery and corrective steps for control of bleeding after delivery. Learned Counsel on behalf of the complainant drew our attention to the affidavits of the complainant Smt. Shefali Tyagi, her father-in-law Sh. M.C. Tyagi and other two witnesses Dr. Mam Chand Sharma and Dr. Vinod Kumar Tyagi, statement of Dr. (Mrs.) Abha Agrohi recorded by Advocate Commissioner and prescriptions of O.P., Dr. (Mrs.) Abha Agrohi and Dr. (Mrs.) S.N. Basu of Jaipur Golden Hospital, Delhi, in support of the argument that the considerable evidence and material on record satisfactorily prove that O.P. treated the complainant right from the very beginning negligently and without due care and caution and performed the required surgery at the time of the delivery without due diligence and responsibility and as such exhibited over all medical negligence in handling the case of the complainant and rather created complications putting the complainant to suffer mental agony and harassment, physically and economically and also diminished the chances of future enjoyment of marital life and capacity to conceive and bear another child. On the other hand, learned counsel for the O.P. argued that though it is true that the complainant developed some complications in her early pregnancy period but the same was successfully managed by prescribing required medicines by the O.P. and that the delivery of the child was successfully performed by approved method of delivery by use of forceps in order to avoid a more complicated and bigger caesarian operation and that the corrective steps which are the standard protocol for PPH were taken and bleeding was controlled at the earliest, although medical texts indicate that in such cases, mortality rate is about 25%. Learned counsel also referred to the statement of Dr. (Mrs.) Abha Agrohi to bring home his point of view that the complainant has not come up with clean hands and has concealed vital facts regarding manual removal of faecal matter on 07.08.2002 in St. Joseph Hospital, Roorkee which in likelihood caused damage to the stitched cut / tear which was still in the healing process and in all likelihood made to admit complications which required treatment elsewhere for no fault at all of the O.P. Learned counsel reiterated that all the material on record brings out the fact that O.P. took due care, caution and applied skillful medical expertise in the matter of diagnosis, treatment, management of the pregnancy and delivery etc. of the child of the complainant and that the O.P. cannot at all be held liable for medical negligence in managing the affair.
10. Before taking up the appreciation of the evidence on record keeping in view the submissions of the learned counsel, it need to be stated at the outset that as has been held by the Hon'ble Apex Court in the case of Jacob Matthew Vs. State of Punjab and another; 2005 CTJ 1085 (SC), "a professional may be held liable for negligence either for not possessing the skill which he professed to have possessed or for not exercising the skill which he possessed with reasonable competence - whether he was negligent or not, the standard for judging him would be that of an ordinary competent person exercising ordinary skill in that profession." The case in hand is also to be dealt with keeping in view the observation relating to medical negligence as made by the Hon'ble Judges of the Supreme Court.
11. Complainant Mrs. Shefali Tyagi's medical prescriptions and antenatal card (Paper Nos. 85 - 93) indicate that O.P. Dr. (Mrs.) Manisha holds M.S. degree in Gynaecology and Obstetrics and is running Brahma Hospital with her husband Dr. Harish who is also a post graduate surgeon and there can be no doubt that O.P. was possessing the skill which she professed to have possessed and as such as has been averred in her affidavit (Paper Nos. 98 - 107), started handling the pregnancy case of the complainant with professional skill right from the very beginning when the complainant for the first time reported to her for complaint of pain in abdomen on 03.12.2001 during the very early phases of her pregnancy. The complainant was subjected to required tests and medicines were prescribed as is evident from the prescription of the said date (Paper No. 88). Complainant continued to be under the treatment of the O.P. as it was diagnosed a case of threatened abortion as averred in the affidavit by the O.P. and regular treatment was accordingly received by the complainant. There is nothing on record in the form of any contrary medical opinion as may have indicated that the O.P. had not properly diagnosed the ailment of the complainant. After the diagnosis and the treatment given by O.P., the complainant had been able to retain the pregnancy and the foetus in the womb undisputedly developed normally into a healthy and normal female baby. The subsequent prescriptions (Paper Nos. 86, 87, 89, 90, 91 and 92) and antenatal card of the complainant of O.P.'s hospital (Paper No. 85) also reveal that the complainant remained in complete post conceptional care, treatment and observation of the O.P. and nothing untoward had been noticed till the foetus had become matured for delivery on 02.08.2002 at the hands of O.P. The material on record, thus, satisfactorily establish that though the complainant had developed unusual pregnancy problems leading to required regular treatment from O.P., the case of threatened abortion in the case of the complainant had been professionally managed skillfully right from the day of the diagnosis, required investigation and treatment till the delivery of the child had become due on completion of nine month period of gestation. In other words, in regard to that part of the management, the submission made by the learned counsel for the complainant carry no conviction and no medical negligence at all can be attributed to the O.P. in handling the case of the complainant to that stage.
12. The second stage pertaining to the delivery of the child no doubt followed the problem of threatened abortion faced by the complainant. It has not been brought to our notice that the material on record or any standard medical text gave indication that the complainant was to have a normal delivery despite the continued problem she faced during the entire period of gestation, for which the treatment was given by O.P. When the normal delivery was not possible, there are following three methods of delivery by some sort of surgical interference and these are:
Use of forceps.
Vacuum extraction.
Caesarian.
13. In medical science, use of forceps is an approved method of delivery, in which situation a more complicated caesarian operation is avoided. O.P. in her affidavit reiterated so and in our opinion, she had chosen a method of delivery which was best suited medically in the case of the complainant and, therefore, it cannot be accepted that O.P. failed to exercise the skill which she possessed with reasonable competence and skill. O.P. also averred in her affidavit that at the time of the forceps delivery, the required episiotomy (surgery) was done in perfect professional manner according to the established definite procedure and the tear was stitched to perfection which continued to be so till the complainant was discharged in a good state of health on 05.08.2002. She denied to the allegation that the tear was stitched rashly and negligently and on account of such imperfection, the tear was damaged and recto-vaginal fistula was formed. O.P. also averred that after about two hours of the delivery by use of forceps, complainant suffered post partum haemorrhage which had been managed by her by giving blood transfusion and following the standard protocol for control of bleeding successfully. Complainant herself nowhere alleged that the bleeding had not been managed and got stopped in time and, therefore, it is obvious that the O.P. had shown perfect skill and professional management as a medical officer in that regard too despite the fact that PPH proves fatal in about one-fourth of such cases. The standard text book of Obstetrics by Williams at page 415 under the heading "Abnormalities of the Third Stage of Labor" reported that "PPH is the most common cause of serious blood loss in obstetrics. As a direct factor in maternal mortality, it is the cause of about one-fourth of the deaths from obstetrical haemorrhage from PPH." O.P. also referred to the Dutta's standard text book of Obstetrics at page 432 under the heading "Complications of the Third Stage of Labour" to indicate that PPH is a fatal complication which may appear unexpectedly in an otherwise uneventful first or second stage of labour and such incident is about 1% amongst hospital deliveries, to support the contention that there was nothing unusual on her part in PPH occurring after two hours of the delivery of the female child of the complainant. We are convinced that the incidence of PPH can also not be connected to any negligence or carelessness on the part of the O.P. in performing the delivery by use of forceps and also that the PPH had been managed with professional competence by the O.P. The evidence of Dr. (Mrs.) Abha Agrohi relied upon by the complainant also failed to indicate any incompetency on the part of the O.P. in handling the case of the complainant. It is of significance that when complainant came to be examined by her for treatment 13.08.2002, she had not found any post delivery problem with the complainant except that the tear which was made at the time of the forceps delivery, had not yet healed and there were septic conditions in it. It is also of significance that Dr. (Mrs.) Abha Agrohi categorically stated that neither the complainant complained of any gauze patch having been left behind after surgery in the vagina, nor any such gauze patch had been seen by her at the time of the medical check of the complainant. This clearly falsify the allegation mischievously made in the complaint by the complainant and the O.P. rightly urged that the complainant has not come up with clean hands and made false allegation to concoct a case of medical negligence against her.
14. In regard to the septic conditions of the tear and formation of recto-vaginal fistula, it need to be stated that the complainant was discharged from the hospital by O.P. on 05.08.2002 after prescribing some medicines to be taken regularly by the complainant. We could not lay our hands upon any material on record which may suggest that at the time of discharge, complainant's tear had developed infection and recto-vaginal fistula had been formed or in any case there had been likelihood of such a formation. Discharge certificate (Paper No. 109) has an endorsement by the husband of the complainant that the complainant was being discharged without any complaint whatsoever on the performance of the medical officer (O.P.) and her staff. The operation notes of the O.P. on it do not admit of any abnormality which may have prevented the discharge of the complainant from the hospital and that required medicines were prescribed to be taken thereafter by the complainant. At the time of the arguments, learned counsel for the complainant submitted that the satisfaction endorsement is printed one on the discharge certificate and if it had been signed by the husband of the complainant on 05.08.2002, the same cannot be taken to displace the allegations in regard to the medical negligence on the part of the O.P. We were also curious as to how after forceps delivery and incidence of PPH, the complainant had been discharged on fourth day of the delivery on 05.08.2002 but we felt satisfied when attention was drawn to the statement of Dr. (Mrs.) Abha Agrohi who gave out that normally in a case of healthy tear as has been given in the case of the complainant, the patient is discharged within three or four days of the delivery and further that the patient is normally discharged with the consent of such a patient. In view of the expert's evidence and the evidence on record, we found nothing abnormal or unusual in getting the complainant discharged from the hospital by O.P. on 05.08.2002 and on that account, lack of due care and caution cannot be attributed to the O.P.
15. After the discharge from the hospital, things did not go wrong till 07.08.2002 as averred in the complaint. On 07.08.2002, complainant was laid down with high fever and severe body pain and according to her, the O.P. refused to attend her. It has been vehemently denied by the O.P. by way of averment in the affidavit also. According to the complainant, when the pain became unbearable and she almost became unconscious, she was taken to and got admitted in the hospital of Dr. (Mrs.) Abha Agrohi. The statement of Dr. (Mrs.) Abha Agrohi, however, do not corroborate the claim of the complainant as she had nowhere stated that the complainant remained admitted in her hospital and she only claimed to have examined the complainant for the first time on 13.08.2002 and she remained in her treatment till 26.08.2002, as is also evident from her prescription (Paper No. 94). Dr. (Mrs.) Abha Agrohi also stated that complainant came to her on 11th day of the delivery and she was told by the complainant that she had earlier been taken to Mission Hospital, where on account of constipation, faecal matter had been removed manually by the staff of the Mission Hospital. On that account, O.P. persuasively averred in her affidavit that the complainant has not come with clean hands and had concealed vital facts regarding her examination on 07.08.2002 at Mission Hospital (St. Joseph's Hospital) and manual removal of the faecal matter and which caused complication in the form of damage and extension of the vaginal tear leading to formation of recto-vaginal fistula. O.P. also filed the copy of the Mission Hospital's record of 07.08.2002 (Paper No. 108) which reveal that complainant Smt. Shefali Tyagi was taken to the said hospital and on account of constipation, enema was given but to no avail and since the rectum was filled with hard faecal matter, it was removed manually. It also endorses presence of recto-vaginal fistula. It is, thus, evident that the complainant suppressed the vital fact of going to Mission Hospital for getting some treatment and there faecal matter had been removed manually by the staff. In that regard, Dr. (Mrs.) Abha Agrohi stated that it was possible that on account of manual removal of faecal matter, the vaginal tear got extended from first degree to third degree, meaning thereby that such an interference may have caused the complication which cannot at all be attributed to any sort of negligence on the part of the O.P. It is also of significance that the complainant falsely alleged that she came under the treatment of Dr. (Mrs.) Abha Agrohi on 08.08.2002 with a view to show that things went wrong with her on account of the unskillful management of her malady by the O.P. In fact, the complainant suppressed the vital information and fact as to where she had received treatment during the period from 07.08.2002 to 13.08.2002 when she finally went to Dr. (Mrs.) Abha Agrohi for rectification of the damage sustained by her.
16. As referred earlier, the complainant remained in the treatment of Dr. (Mrs.) Abha Agrohi from 13.08.2002 to 26.08.2002 and although according to her, she was advised to receive further higher treatment, she went to Delhi after about twenty days and reported at Jaipur Golden Fertility Centre, Delhi for the first time on 16.09.2002 vide consultation card of the said date (Paper No. 95) of Dr. (Mrs.) S.N. Basu and as also affirmed by the averment of her own affidavit and that of her father-in-law Sh. M.C. Tyagi. Again nothing has been shown as to where complainant was made to receive treatment between 26.08.2002 to 16.09.2002 when according to her own, she was told by Dr. (Mrs.) Abha Agrohi that she had a third degree tear which required higher treatment. There can be no gain saying that the complainant suppressed the vital information and fact as to where she had received treatment during this period also as has been the case regarding the period from 07.08.2002 to 13.08.2002 and in the totality of the circumstances of the case, complainant herself and her family members can safely be attributed utter negligence and carelessness in getting the things going bad to worse and for which O.P. cannot be faulted at all. In this connection, it shall also be pertinent to refer again to the statement of Dr. (Mrs.) Abha Agrohi, who as an expert admit of sustaining first degree perineal tear when delivery is performed by forceps and as stated earlier, the complainant did not have third degree tear and recto-vaginal fistula when she was discharged in a satisfactory and good state of health after delivery from the hospital of the O.P. on 05.08.2002.
17. On consideration of the evidence on record and the discussion made as above, we are of the considered view that the complainant has, even remotely, not been able to prove that the things in the control of the O.P. caused her harm. We are also of the considered view that the O.P. had adopted medically recognized course of treatment; performed delivery by forceps, an approved method skillfully and with competence and that the third degree tear / recto-vaginal fistula had not been caused on account of any negligence and carelessness on the part of the O.P. in providing required surgical treatment etc. to the complainant. In short, O.P. cannot legally be held liable for any act of medical negligence and the complainant is not entitled to any compensation whatsoever from her. The consumer complaint, therefore, fails and is liable to be dismissed.
18. Consumer Complaint is dismissed. No order as to cost.
(SURENDRA KUMAR) (JUSTICE IRSHAD HUSSAIN)