State Consumer Disputes Redressal Commission
Nandkishore C Shah vs Kashiba G Patel Children Hospital & ... on 26 April, 2023
Details DD MM YYYY
Date of Judgment 26 04 2023
Date of Filing 01 03 2013
Duration 26 01 10
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT -2
APPEAL NO. 1038 OF 2013
APPELLANTS: [1]. Mr. NANDKISHOR CHHAGANLAL SHAH
(Personally & as guardian and power of attorney holder of Vedang N Shah)
[2]. Mrs. SAPNA NANDKISHOR SHAH
Both residing at Sadar Bazzar, Fatehganj,
Vadodara.
V/s
RESPONDENTS: [1]. KASHIBA GORDHANDAS PATEL CHILDREN HOSPITAL &
JAJODIA RESEARCH INSTITUTE.
Karelibaug, Vadodara.
[2]. Dr. CHITRALEKHA PRAVINBHAI DAVE
Pratapganj, Vadodara.
[3]. Dr. ANAND RAMDAS TAGARSHI
11, Sampatrao Colony,
R C Dutt Road, Vadodara.
[4]. Dr. MEHUL KANTIBHAI SHAH
42, Manisha Society, Old Padra Road,
Vadodara.
[5]. THE NEW INDIA ASSURANCE CO. LIMITED
2nd Floor, Girdhar Chamber,
Rajmahel Road, Vadodara.
CORUM: Mr. R N Mehta Presiding Member
Appearances: Mr. N C Shah Party in Person. Mr. S P Hasurkar Advocate for Res. No. 1 to 4 Mr. P H Thakkar Advocate for Res. No. 5 (Order by Mr. R N Mehta, Presiding Member) Rnm a10382013 Page 1 of 14
[1]. Being aggrieved and dissatisfied with order of dismissal of complaint, the original complainants have preferred this appeal to submit that the impugned order dated 31/1/2013 of District Forum, Vadodara in Complaint no. 18 of 1994 is unjust, arbitrary, illegal and also contrary to well established principles of law and therefore it deserves to be set aside and original complaint of the complainants requiring to be allowed with cost and compensation.
[2]. For the sake of convenience the parties are addressed as per its original nomenclature.
[a]. It was the case of complainants that during 1990, Mrs. Sapnaben was pregnant and she was under care of the doctors at opponent no.1 hospital (hereinafter referred as "Hospital") and complainants were informed that delivery would be normal. On 27/1/1991, she had labor pain and was taken to hospital at about 5.00 a.m. where she was given various medicines, injections and saline bottles were administered. On next day it was informed that normal delivery may not be and caesarean would be necessary and asked to give consent.The complainant gave consent and at about 5.30 p.m. it came to know that a baby boy has been delivered applying forceps procedure. The complainants were informed that baby is otherwise healthy and normal but since he did not cried he should be kept in baby room under observation.
[b]. On next day doctor came around 10.00 a.m. with an X-ray and informed that baby has not passed stool after his birth and it seems that he has no natural passage to pass stool or there is some obstruction and to remove it a surgery known as "Colostomy" would be necessary. It is alleged that when the doctor was asked to give copy of X-ray film to refer and have second opinion of another doctor, the opponent no. 3 (Dr. Tagarshi) and Dr. Mehul not only refused to give it but got annoyed on the complainant. The complainant thereafter approached Dr. Chitralekha who also confirmed that surgery would be necessary and asked to sign consent note to save child. It is in these circumstances, it was signed. The doctors performed colostomy and child became serious on that day. They also informed that child also had intra cranial haemorrhage, hypospadias etc. [c]. However, after about two days thereafter, child had passed stool through natural passage and it was informed to the opponent doctors. The complainants alleged that because of colostomy, unnatural route was created to pass stool from where stool was passing continuously in a tube which was causing other problems like skin irritation, infection. The complainants also alleged that after discharge from hospital, distal loopogram test was performed on the advice of another doctor and it was confirmed that child had no problem passing stool through natural opening and there was no such obstruction at all. The complainants were given understanding that in many cases, child do not pass stool even up to 48 hours and therefore doctors ought to have waited for the natural route but they hurriedly Rnm a10382013 Page 2 of 14 operated child which was not even necessary. The complainants have alleged that when it came to know that surgery was not necessary, to restore original condition, another surgery was required and for all these complainants had to incur huge amount of expenses. The complainants therefore claimed Rs. 497000/- towards expenditure he incurred and asked for compensation for harassment and mental agony and cost of complaint.
[d]. On admission of complaint, notice was issued to opponents who appeared through advocate and filed detailed reply contending therein there was no deficiency in service on their part. They contended that the child did not cry immediately after delivery which was suggesting he had breathing problem. He had intracranial haemorrhage and he did not passed stool for about 17 hours after delivery. This was indicating that there may be obstruction and it was confirmed through passing catheter through anal which did not entered satisfactorily to route and there was no sign of stool on the tip. It was suspected and to rule out suspicion, reconfirmed by test known as "invertogram". From these, diagnosis of "rectal atresia" was made. Both these tests were showing that there was no complete intestinal route and therefore decision of "Colostomy" was taken. There were three competent doctors and they concluded that surgery would be necessary. It is also submitted that distal loopogram was done through colostomy route and therefore it confirmed the potency of intestinal tube. It was contended that there may be error of judgment but it cannot be said negligence in any manner. They prayed for dismissal of complaint with submission that there was no lacuna on their part. However, during the pendency of complaint, Dr. Chitralekha Dave provided information of her insurer since insured under "Doctor's Indemnity insurance Policy." The complainant moved an application to implead it as party and after issuing notice to proposed party, insurer was allowed to join as opponent no.5 in the complaint. The complaint was amended accordingly.
[e]. The complainants have filed affidavit in rejoinder and mostly reiterated the facts stated in complaint and denied the version of the opponents. From the complainant's side both complainants have filed evidence affidavit. Mr. N C Shah was cross examined on oath by the opponents. From the opponents, Dr. Chitralekha Dave, Dr. Mehul Shah and Dr. Tagarshi have filed evidence affidavit and were cross examined by the complainant. After complete trial the District Forum heard both parties and came to conclusion that there was no deficiency in service and therefore passed impugned order which is under challenge.
[3]. The complainants have challenged the impugned order mainly on following grounds:
(a). The District forum did not consider that "Colostomy", a major surgery, was performed on an infant and that too without conclusive diagnosis of "Rectal Atresia".Rnm a10382013 Page 3 of 14
(b). The District Forum committed an error in holding that complainants failed to discharge burden of proof of deficiency or negligence but, in fact the burden was on the opponents in the facts and circumstances of this case.
(c). The District Forum ignored the difference between the case of misjudgment and level of skill vis-à-vis failure in diagnosis.
(d). The District Forum discarded admissions made in cross examinations by opponents and thereby ignored settled principles of medical jurisprudence.
(e). The District Forum erroneously held that since the opponents are expert doctors their bare words are sufficient to exonerate from the liabilities.
[4]. In support of these submissions, Mr. Shah referred oral evidences of witnesses extracts of important statements are as under: (Note: Answers in cross examination of witnesses shown in Italicized fonts).
(4.1). Mr. N C Shah, (complainant):"It is true that a child, delivered by my wife, did not passed stool till 17 hours however I am unable to say whether such condition is serious or not. It is true that doctor informed me on next day that not passing stool until 17 hours is a serious matter. It is true that doctor also informed me on that day what is to be done in such case... it is true that after taking X-ray of my child, Dr. Tagarshi and Dr. Mehul Shah had discussion with me. It is true that Dr. Tagarshi, Dr. Mehul and Dr. Chitralekha informed me that colostomy surgery would be necessary. It is true that I was not pressurised for surgery but I wanted to have second opinion but doctor did not allowed me to take X-ray outside. It is true that when I was informed about need for surgery, at that point of time I was not able to say that surgery is not necessary or I do not want to opt for surgery... It is true that I was informed that my child had problem in passing stool and urine both... it is true that after colostomy, my child had passed stool through natural passage but it is not true that after passing stool, opponent doctors informed me to close colostomy. After discharge from hospital, I have consulted many doctors... after discharge even at my home, my child was not passing stool through natural passage. Because of continuous flow of stool from operative site, child had infection spots and had many other problems and the doctors to whom I consulted advised me to close colostomy so as to enable child to pass stool through natural openings. Surgery to close colostomy was done in 1994. After discharge, many of the doctors to whom I have consulted said that surgery was not necessitated or it was not done properly but none of them have given me in writing... it is not true that doctors informed me that colostomy was necessary to remove obstruction in route of passing of stool but they informed me that child do not have developed intestine and therefore surgery is necessary... It is true that name of doctor at Poona was Dr. Datar. I am not having case papers of treatment taken at Poona. I do not want to produce case papers of treatment at Poona."
(4.2). Dr. Mehul K Shah (Opponent no. 4): I am resident surgeon with the opponent hospital and aware that in or around 1991, complainant no.2 was admitted to opponent hospital for delivery and she delivered a baby boy. I say that there was no lack of care or negligence on my part or on the part of any other attending doctors. I say that the circumstances prevailed at the relevant time, the operation that was performed on the baby, was necessary and that the same was performed after due and proper investigations and examinations.
"Rectal atresia means some part of intestine not created properly. Imperforated anus means natural passage for passing stool is not proper or says there is no whole to pass stool. Meconium plug means black, dried stool accumulated in abdomen of newly born baby. It is true that meconium plug is a condition like constipation and it can be released through enema. Intestinal obstruction means obstruction in intestine which may be because of meconium plug or due to defect in muscles of intestine. It is true that stool cannot be passed because of any one reason rectal atresia, imperforated anus, meconium plug or intestinal obstruction. To find out real cause, invertogram is necessary. It is Rnm a10382013 Page 4 of 14 true that in case of meconium plug or intestinal obstruction, it can be released through enema or through diluting stool even without surgery... any child, usually passes stool within 24 hours if born normal and healthy. It is not true that a normal and healthy born baby do not pass stool within 24 hours, it can be said usual circumstances. I am shown "Textbook of Paediatrics" 12 th edition written by Nelson which is a standard textbook. It is true that in the said book, at page 335, it is mentioned that 99 % of child born at full term and 95 % of child born at preterm, passes meconium within 12 hours and I agree with this observation. It is true that when child was extracted through forceps and sustained injury on head, might be having breathing trouble immediately after birth. To avoid breathing problem after birth, artificial respiration is necessary and usually child becomes normal but in some case, respiration do not attains normalcy. It is true that in the case of this child, circumstances in which he born, usually meconium passed either in mother's womb or immediately after birth but in 1% cases it can be at later point of time also that I can show from standard book. Usually, a child born in normal circumstances needs 8 hours period to pass gas but in case of any obstruction it may not be. In the circumstances in which this child was born, gas passes before 8 hours since he was born under stress.... It is true that if normal born child do not passes stool within 24 hours it cannot be said his life is in danger. I had examined this child firstly on 29/1/1991. It is true that I have not made any note in case papers regarding his physical conditions on that day. There is no note in case paper how he was referred to me but this child was under care of Dr. Tagarshi and therefore he might be referred for surgical opinion. It is true that it is not mentioned in the case papers why Dr. Tagarshi needs my opinion. It is not mentioned in the case papers what tests were carried out after reference to me because I did not performed any tests. This child was referred to me for surgical opinion as he was not passing stool.... Today, I do not remember, whether this child was delivered through forceps or not. I do not know under what circumstances, this child was born. I do not remember after how many hours I had seen this child after birth but I had seen him on next day. I was resident doctor in surgery department. A baby born in our hospital requires surgery or not was decided by me and for which I was examining baby first and if necessary, I was informing to concerned surgeon. Whenever baby brought to me, I was examining when and under what circumstances baby born. I do not remember when and under what circumstances, this child was born. When he was brought to me, I had seen his history.... It is true that when this child was born, working of his heart was weak and respiration was not proper. He had cyanosis. It is true that all activities of this child were negligible. It is true that action and reaction of every animal is based on gas received by the body. It is true that condition of this child may be because of less circulation of oxygen and improvement of activity can be increased with more supply of oxygen. It is true that because of non-supply of oxygen or less supply of oxygen functioning of intestine suffers. It is true that condition of this child at the time of birth was not due to any defect in intestine.
I have seen this child on 29/1/1991 but at what time is not mentioned in the case papers. When I saw this child on 29/1/1991, I also had seen his case papers prepared till then. It is true that Dr. Tagarshi had carried out catheter test and suggested me to take invertogram. The case papers do not suggests any other test have been carried out except catheter test. When child was brought to me he did not have pass stool even after 24 hours of his birth but he was in better condition compare to his condition at the time of his birth. When this child was brought to me there were no other ailments observed except not passed stool for 24 hours. Had I observed any other ailments/symptoms necessary for surgery, I would have noted it in the case papers. Now I say that I have noted conditions requiring surgery in the case papers. After physical examination of child and on the basis of reports of invertogram and catheter test, I had considered it as probability of Rectal Atresia.
It is true that there are other reasons also for not passing stool other than Rectal Atresia. It is also true that many children do not passes stool till 48 hours after birth and thereafter passes normal stool and thereafter it becomes normal also. It is true that if child do not passes stool for long period, his stomach becomes enlarge and may have vomiting. It is true that stomach of child enlarge and starts vomiting, than it can be said that condition of child is serious because of not passing stool. Witness volunteers that if child has not passed stool and breast feeding continues, stomach gets enlarge and vomiting starts but if breast feeding is stopped, stomach do not enlarge and vomiting did not occurs. In this child, breast feeding was stopped. If child is not given breast feeding after birth, even then the contents he had taken prior to birth remains as stool and it also can enlarge his stomach. It is true that when I examined this child, I have not seen enlargement of stomach or any other symptoms and therefore not noted in case papers. It is not true that invertogram is not conclusive test. It is true that Rectal Atresia cannot be confirmed through invertogram. It is not true that I could have waited for surgery till 48 hours since there were no other complications except not passing stool.Rnm a10382013 Page 5 of 14
Child was fit for surgery and was able to endure risk of anaesthesia is not mentioned in the case papers. It is true that it is not mentioned in the case papers what was the condition of child when accepted for surgery. It is true that if there is no Rectal Atresia, means no obstruction, though stool has not been passed it can pass subsequently through nature route.
It is not true that during surgery it came to know that child do not have Rectal Atresia. It is true that two/three days after surgery, the child had passed stool through natural route. When child passed stool through natural route, it confirmed that he had no Rectal Atresia and can pass stool naturally. During colostomy surgery a separate unnatural route was opened to pass stool and it was not closed after he passed stool naturally. Witness volunteers that it cannot be closed immediately. He volunteers further that even after passing of stool through natural route, whether he passes stool regularly that is to be confirmed and after about two/three months it can be closed. I will produce supporting literature to that effect.
It is true that child was operated within 17 hours from the birth. It is not true that surgery was made in haste. It is true that two days after surgery, child has passed stool through natural route. It is true that when child has passed stool through natural route prior to that no attempts were made / no treatment was rendered to pass stool through natural route even before surgery."
(4.3). Dr. Anand Tagarshi. (opponent no.3):"I was an honorary paediatric consultant at opponent hospital.
It is not true that gastric problem, constipation and acidity are hereditary diseases. I have not read any material regarding above said diseases are hereditary. It is true that in my affidavit, I have adopted reply filed by the opponent hospital. It is true that it is not mentioned what was my role in treatment and what precautions were taken. I have not filed any separate reply in this complaint. I have seen case papers of treatment to this child. The child was born on 28/1/91 at about 17.25 hours. It is true that case papers contain notes of observations made during first 13 minutes after birth. Thereafter a note is dated 29/1/91 but at what time he was examined on 29/1/91 is not mentioned. It is true that on 29/1/91, resident doctor has mentioned condition of child is fair. It is true that on 29/1/91, except stool not passed, all observations made by resident doctor are documented as normal. It is true that weight of baby was normal at the time of birth. I had examined this child on 29/1/91 at about 9.30 am but time I have not mentioned in case papers. When I examined the child, stool was not passed and therefore catheter was tried but it could not go beyond 1.5 cm and there were no signs of stool on the catheter and therefore I had advised for invertogram. After invertogram, Dr. Mehul Shah had mentioned in the case papers "Rectal Atresia" meaning thereby there is no intestine. Invertogram was taken on my advice and I had seen report. Invertogram was taken in hospital. I have seen X-ray plate not written report. It is true that because "Rectal Atresia" mentioned in case papers, surgery was suggested. It is true that I am aware of condition of child for the period from 29/1/1991 when I had seen and till discharge was given. It is true that on 1/2/91, meconium was seen came out from natural route. Usually, child born under normal health and circumstances, should pass stool within 12 to 18 hours but this child was born under stress, with respiration problem, heart bits were slow, and therefore he should pass stool immediately after birth or during birth. I was asked to examine this child on 29/1/91 and I was informed about circumstances in which he was born and therefore I am aware of it. In the case papers Rectal Atresia is mentioned that is probability is shown. Opinion for surgery was given by Dr. Mehul Shah. Dr. Mehul Shah and I had treated this patient with consultation to each other."
(4.4). Dr. Chitralekha Dave. (Opponent no.2): "My academic qualification is M.S., M.S paediatric surgeon, and I am working as Honorary Paediatric Surgery Consultant with opponent hospital since 1984. I have practiced as Paediatric Surgery consultant since last more than 25 years.... The baby came out as flabby baby. It did not cry immediately. There was no meconium. The baby was resuscitated; baby did not pass any stool for about 17 hours. The child was under constant care of doctor all throughout including paediatrician. On 29/1/1991, morning the baby was examined by paediatrician. As the baby did not pass any stool, necessary further examinations were carried out at the hospital. Catheter was passed through the anal opening. It went up to 1.5 cm but not beyond. On withdrawal the catheter did not reveal any stool. Hence, doctors further investigated by invertogram to find out whether there is abnormality of the anal canal. The invertogram did not show any air in the rectum.
Rnm a10382013 Page 6 of 14Thus, by scientific examination, derivation was arrived at by doctors, that the child has intestinal obstruction and in the ultimate urgent interest of the child, surgery was required. Thus before I was called for attending the case around 10.30 am, on 29/1/1991 patient was being treated in the fully established hospital and by fairly competent doctors and paediatrician and diagnostic decision was already arrived for inevitable surgery. Based on diagnostic symptoms, I concurred in the decision. Baby was operated by me bonafidely in good faith in the afternoon of dated 29/1/91 and colostomy was performed."
"It is true that when the child referred in complaint born on 28/1/91, I was not in labour room. It is true that I do not have personal knowledge as to conditions of child at the time of birth and whether cried during birth or passed stool or not and I have not seen it. Witness describes procedure of colostomy in reply to question that large bowel is being brought over the skin through surgery so as to pass stool from this route. It is true that after this surgery, child passes stool the above route over the stomach. It is true that after this surgery, patient cannot stop passing of stool, as it is continuously passing from above route. Whether skin near to this surgical site becomes rough or gets affected due to stool, she replied that if not taken proper care it can cause damage. It is true that a patient had undergone this surgery should be given light food.... I had seen child for the first time before surgery but do not remember at what time I had seen him. I have examined him for the first time in operation theatre. It is true that I have not suggested any tests after accepting child for surgery in operation theatre. In reply to your question whether I have recommended any test after accepting child for surgery in operation theatre, I say that I have not suggested any further tests. It is true that I have not made any note regarding physical condition of child when he was taken in operation theatre. It is true that there is no note regarding what I did in theatre. Witness volunteers that all actions were taken according to medical theory but not documented. It is true that we have not made note that colostomy was necessary. Witness volunteers that this note made by my assistant Dr. Mehul Shah. It is true that note made by Dr. Mehul Shah is prior to my examination of child. It is true that during pregnancy, blood pressure of woman changes periodically but it is also true that it do not affects intestine of a child.
If child is not passing stool after birth, to find out cause of obstruction and its location invertogram is being taken.
It is not true that child was not having hypospadias. Hypospadias means flow of child's urine is not proper and it can only be detected after tests for the same. I have not carried out any test for hypospadias and there is no note for the tests carried out. There is no note even for suggestion to do test for hypospadias. I do not remember that there is any clinical note whether child has hypospadias or not. Verifying from the case record, I say that at page 3 of hospital case paper, there is note "cordi with hypospadias" but it is true this note was not made by me. In reply to your question, is there any clinical note to show that child had hypospadias; I say that hypospadias is being examined clinically and it is noted. It is not examined by any laboratory tests. It is not true that if new born baby do not pass stool in usual course it can be waited up to 24 hours. It is true that I have not treated child except surgery.
I do not recollect how many affidavits I have filed in this case. After seeing record, I can say that how many affidavits I have filed. It is true that more than one affidavit we have filed. It is not true that to fill in the gaps in earlier version, we have filed new affidavits have been filed. XXXX XXXX It is true that colostomy surgery is being performed to drain out body waste (stool). It is true that it is not performed to correct Rectal Atresia. It is not true that it is performed to cut through surgically Rectal Atresia. It is true that to remove Rectal Atresia surgery is necessary. Witness volunteers that in this case, child does not have Rectal Atresia.
It is not true that new born baby shall have to be watched up to 48 hours for passing of stool. I have read paediatric book written by Nelson which is standard book. If it is said that meconium can be passed within 48 hours in 99 % cases of normal full term baby and 95 % cases of preterm babies, I am of the opinion it may be one paragraph regarding stool not passed but the book shall be read as a whole. It is true that to remove defect of hypospadias in any child, surgery would be necessary but in Rnm a10382013 Page 7 of 14 that case child must be of age more than 4 years. It is true that to remove hypospadias, surgery is necessary."
[5]. From above deposition, Mr. Shah submitted that none of the doctor has confirmed diagnosis about cause of not passing of stool and though they jumped to conclude that child had Rectal Atresia. Dr. Chitralekha Dave had in specific terms deposed that child had no Rectal Atresia. Dr. Tagarshi, a paediatric consultant, on the basis of X-ray plate seen by him interpreted it as obstruction or say Rectal Atresia. Dr. Mehul Shah, a resident surgeon, without insisting for radiologists report, concluded on the basis of information provided by Dr. Tagarshi and opined for surgical intervention. Dr. Chitralekha Dave, being senior most surgeon, expected to have examined patient thoroughly and ought to have studied reports of invertogram and other clinical details, but she did not and accepted patient for surgery and performed colostomy which was not necessary just because child failed to pass stool for about 17 hours. It is rather admitted position that child had passed stool after two days of surgery through natural passage itself is suggestive that there was neither obstruction nor defect in intestine and it was false presumption on the part of opponent doctors. Mr. Shah referred book titled "Neonatal Practice" in which a chapter "gastrointestinal disorders" it reads as under:
"Delayed passage of meconium: The passage of the first meconium stool occurs within 24 hours in 90 % of babies. Some babies seem to have a delay secondary to the presence of a meconium plug. Usually, relief of such a plug result in no further difficulties. However, approximately 10% of the babies, who have a delay in passage of the first stool for 24 hours, have a bilirubin greater than 15 mg/dl. Meconium plug may be somewhat more frequents in infants with intrauterine growth retardation..... Delay in passing meconium until after 36-48 hours in the term baby should raise the possibility of: (1). Intestinal atresia obstruction (2) Hirschsprung disease (3) Cystic Fibrosis of the pancreas, and (4) Hypermagnesemia."
Mr. Shah read page no. 335 of book titled "Textbook of Paediatrics" by Nelson (12th edition) reads as under:
"some passage of meconium usually occurs within the 1 st 12 hours after birth; 99 % of term infants and 95 % of premature infants will pass meconium within 48 hrs of birth. Imperforate anus is not always visible and may require evidence obtained by the gentle insertion of the examiner's little finger or a rectal tube. Roentgenographic study is required. The dimple or irregularity of skinfold often normally present in the sacrococcygeal midline may be mistaken for an actual or potential pilonidal sinus."
From these, he submits that the doctors could not have jumped to conclude that surgery would be the only option. They have not considered any other probabilities like meconium plug. Thus, the doctors failed to exercise reasonable care and caution before opting for surgery which ought to have been considered as last option to exercise. Mr. Shah submits that Hon'ble Supreme Court in the case of Savita Garg (2004-4-CPJ-40(SC)) observed that when complainant has established prima facie proof of negligence, it is for the doctors to prove on record that they were not negligent in performing their part of duties and in this case, the doctors have not proved that they were diligent in rendering of services and therefore complaint should be allowed.
Rnm a10382013 Page 8 of 14[6]. On other side, Mr. Hasurkar submitted that decision of the doctor based on clinical condition prevailing at that point of time and it is expert doctor's call which cannot be challenged without any concrete proof through an expert opinion. Whether the decision taken by the opponents was correct or not can only be established by the expert opinion of the medical field and the complainant has not examined any expert of the medical field. There was no error of judgment on the part of treating doctors. The decision to operate the child was taken by three highly qualified specialists. The complainant has neither filed any expert opinion nor examined any witness to prove that the clinical finding of the doctor was wrong. It is submitted that subsequent suffering by child is not because of any action on the part of the treating doctor and more particularly when complainants have not produced on record treatment papers at a later point of time though alleged that it is necessitated because of earlier action. He also submitted that during cross examination, no question was put to Dr. Shah or Dr. Tagashi that who others were present when invertogram was taken therefore the finding or clinical decision of these two doctors cannot be brushed aside. Mr. Hasurkar also submitted that although stool have been passed from natural passage after two days but it is because while performing colostomy colonic wash was given to child which has soften the meconium. Mr. Hasurkar submitted that Bolam test applies in this case and the complainant has not pointed any specific act of the opponents that no ordinary prudent doctor would have done it. He also relied upon following judgments. (a). Tarachand Jain vs. Sir Gangaram Hospital (2005-13-SCC-648), (b). Chanda Rani Akhouri vs. M A Methusethupathi (2022- SCC online -SC-481) (c). Martin D'souza vs. Mohd. Ishfaq (2009-1-CPJ-32(SC)) [7]. Based on aforesaid evidence, it is to be decided whether the doctors were negligent in rendering treatment to child of complainant or not. It is certain that there are few facts which are not in dispute. Child was born with stress and did not cry immediately. Child had breathing problem and was kept in special room for specific treatment. Child had not passed first stool till 17 hours. Doctors informed parents about condition of child and asked for consent for surgery. Colostomy was performed and thereafter child had passed stool through natural route. The doctors admitted that not passing of stool was of grave concern and surgery was performed to remove obstructions if any. Dr. Dave has admitted that child do not have Rectal Atresia. Distal Loopogram performed after discharge from hospital confirmed patency of the rectal canal. Thus, central issue revolving around was not passing of stool. There are several views with regard to timings of passing of first stool. It is admitted position that in normal child, first stool can be passed within 24 hours after birth. However in this case, child was not normal according to doctors whereas according to complainant child was otherwise normal except not passed stool. In cross examination, it is proved that child had no other problem except problem of stool. He submits that on the basis of probability of Rectal Atresia Rnm a10382013 Page 9 of 14 colostomy was performed. The complainant submitted that District Forum wrongly held that expert evidence was necessary particularly when there are admissions on the part of the opponent doctors that child had no Rectal Atresia. According to me, submission of the complainant has some force. In United India Insurance Company Limited vs Samir Chandra Chaudhary (2005-3-CPJ-2(SC)) the Hon'ble Supreme court observed as under.
"Admission is the best piece of evidence against the person making admission."
Referring judgment of Avadhkishor Das vs. Ramgopal &ors (AIR-1979-SC-861) the Apex Court observed as under:
"it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative in interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted.... The effect of the admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted, the fact admitted must be taken to be established."
Thus, if evidence on record read collectively, as it stands, it is beyond doubt that the complainant has discharged his initial burden to prove that on the date of surgery, child has no other problem except passing of stool and for which surgery was undertaken.
It is also observed by the Hon'ble Supreme Court in V Kishanrao vs. Nikhil Super specialty Hospital (2010-3-CPJ-1(SC)) that in every case of medical negligence, opinion of an expert is not necessary. Therefore, finding of the District Forum that complainant has not discharged his initial burden through expert opinion is erroneous to that extent and not tenable in the eyes of law. At this juncture, the reliance of complainant on the judgment of Hon'ble Supreme Court in the matter between Savita Garg vs The Director, National Heart Institute (2004- 4-CPJ-40(SC)) cannot be ignored which reads as under:
"in fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated the patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution /hospital than that of the claimant."
Thus, now it is for the opponent to prove that there was no negligence on their part. [8]. It is admitted fact that baby was pulled out through forceps and had some minor injury on head also. It is also recorded in history that child did not cried immediately and had breathing problem. Child was shifted to baby room and was kept under constant observation. Dr. Tagarshi being Paediatric consultant examined the child first and he came to know that child Rnm a10382013 Page 10 of 14 has not passed first stool since 17 hours. According to him it requires observation as to presence /absence of anal canal and its opening. Dr. Tagarshi after examining child tried to verify abnormality of the anal canal on 29/1/91 for which he used catheter test. However, it went up to 1.5 cm but not beyond. He had no option but to withdraw which he did. From this he also observed further that it did not reveal presence of stool mark on the tip. This finding obviously led to prima facie opinion as to some abnormality of anal canal. Dr. Tagarshi thereafter asked to perform invertogram. It is a specialised X-ray examination, in which a coin is strapped to the bottom of the baby where the anus is situated. Then the baby is then put head down position. Because of this, whatever is present in large bowel of the baby rises to upper distal most position. Then the distance between bubble and the shadow of coin is noted. In case of non-development of the distal part of the rectum, causing intestinal obstruction, there will be some distance between the lower most air bubble and the coin shadow and if it is so, that such segment of the bowel is diagnosed absent. On invertogram X- ray plate, there was absence of air in the segment. It revealed no gas bubble in pre-sacral space, implying that the anal canal was not open. Therefore, a diagnosis of intestinal obstruction may be due to Rectal Atresia was made by Dr. Tagarshi. This child was then referred to Dr. Mehul Shah (Surgeon) who also had examined child. He was informed about the report of catheter test and invertogram and he also agreed for the probability of Rectal Atresia. Although in his cross-examination, Dr. Shah has admitted that from the invertogram X-ray, it cannot be said confirm, that child had Rectal Atresia. Dr. Chitralekha Dave (Paediatric Surgeon) also had an opportunity to see the child in operation theatre before surgery. However she had not suggested any new tests and relied upon the tests carried out. She was also of the opinion that child was requiring colostomy surgery. She had given colon wash after surgery. It is also admitted position that two days after surgery, child had passed stool through natural route. She therefore confirmed that child had no problem of Rectal Atresia. According to Mr. Shah, doctors ought to have made confirmed diagnosis before venturing to surgical option and submits that child has passed stool through natural route itself has proved beyond doubt that surgery was not necessitated. Mr. Shah submitted that none of the doctors considered probability of Meconium Plug which could have been treated by applying enema even without surgery. Dr. Dave had clarified that from the available test results, probability is more to have rectal atresia and even to treat meconium plug also colostomy was appropriate surgery. Dr. Dave also clarified that because after surgery, colon wash was given which might have soften meconium and passed through natural route. It is well established that doctor's clinical diagnosis plays an important role and while making diagnosis if doctor has considered surrounding circumstances, it cannot be said that doctor has not taken reasonable care. Negligence cannot be attributed to a doctor so long as he/she performs his/her duties with reasonable skill and competence. Merely because the doctor Rnm a10382013 Page 11 of 14 chooses one course of action in preference to the other one available, he/she would not be liable if the course of action chosen by him/her was acceptable to the medical profession. Dr. Dave had recommended for distal loopogram after discharge from hospital which revealed that intestinal tube was intact. According to Mr. Shah, if this diagnostic investigation procedure would have been done earlier, surgery would not have been necessitated. As such this submission has no force, because, it is categorically explained in the written statement that a distal loopogram is a radiological investigation to ascertain the condition of the total distal loop of the bowel through the colostomy opening. Meaning thereby, unless colostomy is performed, distal loopogram is not possible because it is being performed through colostomy opening. When colostomy is performed to overcome obstruction, obviously the entire route will be found ok thereafter and it may not show any further obstruction. Thus, the doctors have explained their reasonableness in discharging their duties.
[9]. The next question that is requiring consideration is whether there was any other course of action that would have helped in making confirm diagnosis as to whether in fact there is any obstruction or not. When any such course shows no obstruction, then it would be necessary to find out cause of not passing stool and that too even without opting for surgery of colostomy. Dr. Dave has in terms said that there is no other method or technology available which could detect this kind of situation without surgery. Mr. Shah, complainant, has no answer to this except saying circumstances proved that surgery was meant to overcome ailment of Rectal Atresia which in fact did not exist and the doctors failed to diagnose meconium plug which was existing. It is matter of common knowledge that medical science has many secretes yet to unveil and it has many limitations too. It cannot be disputed that doctors have used their skill to find out real cause of concern but reports of their efforts led them to believe that there are strong probabilities of Rectal Atresia. Surrounding circumstances, symptoms observed, ailments and past historical data were considered. Thus the action of the opponent doctors cannot be said unreasonable by any stretch of imagination. They have acted in a best possible manner and have successfully established that they have discharge of their duties diligently. Therefore, even if it is presumed, for the sake of argument, that it was error of judgment, even then they cannot be said negligent so as to make them liable to pay compensation to the complainant. It is not even case of Mr. Shah that action of doctors does not get support in medical science.
In Kusum Sharma vs Batra Hospital (2010-3-SCC-480) it was held that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patient have to be paramount for the medical professionals.
In Achutrao Khodwa vs. State of Maharashtra (1996-2-SCC-634) the Hon'ble Apex court observed as under:
Rnm a10382013 Page 12 of 14"the skill of medical practitioner differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and a court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence ".
A well-known case of Bolam vs. Friern Hospital Management Committee (1957-1-WLR-
582) observed as under:
"it is expected of a professional person that he should show a fair, reasonable, and competent degree of skill; it is not required that he should use the highest degree of skill."
Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation. A medical error is only considered "negligent" if the healthcare practitioner has failed to take "reasonable care". The law does not require a doctor to act "perfectly", but rather, the law requires that a doctor take "reasonable care" in treating and advising a patient, this is not a high or impossible standard to achieve.
In Dr. (Mrs.) Chanda Rani Akhouri Vs Dr. M A Methusethupati (2022-SCC on line - 481) the Hon'ble Apex Court observed that a medical practitioner is not to be held liable simply because things went wrong from mischance of mis-advertence or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be genuine difference of opinions. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command.
In Devarakonda Surya Sesha Mani Vs Care Hospital (2022-4-CPJ-7(SC)) it has been held that unless the appellant are able to establish before the Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the patient.
[10]. In Dr. Harishkumar Khurana Vs Jogindersingh (2021-10-SCC-291) the Hon'ble Apex Court held as under:
"The hospital and doctors are required to exercise sufficient care in treating patient in all circumstances. However, in an unfortunate case, death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence."Rnm a10382013 Page 13 of 14
In Malaykumar Ganguly Vs Dr. Sukumar Mukherjee (2009-3-CPJ-17(SC)) it has been held by the Hon'ble Supreme Court as under:
"for establishing medical negligence or deficiency in service, the courts are guided by following factors, (i). No guarantee is given by any doctor or surgeon that patient would be cured, (ii). Doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill, (iii). Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence, (iv) failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence, (v) in a complicated case, the court would be slow in attributing negligence on the part of doctor, if he is performing his duties to the best of his ability Mr. Shah has submitted some precedents /authorities which deals with negligence, breach of duty etc but according to me, in the instant case, so long as the action of the opponent doctors are found reasonable and in line with medical science and therefore ratios laid down in other judgments are though acceptable in principle, not applicable to the facts of present case. With deep sense of sympathy, I believe that complainant must have suffered lot after birth of his child and must have undergone heavy stress during those days, but since there was nothing which can be said negligent act on the part of the opponent doctors, it may not be possible to make them liable for deficiency in service coupled with negligence as there was no legal injury. Thus, this appeal fails and therefore, I pass the following order.
Order The appeal no. 1038 of 2013 is dismissed. The Order and Judgment of District Forum, Vadodara dated 31/1/2013 in Complaint no. 18 of 1994 is hereby confirmed.
There shall be no order as to cost.
The office is directed to supply copy of this order to parties free of cost and also send copy of this order in pdf format through email to concerned District Forum for necessary action at their end.
Pronounced on this 26thday of April 2023.
Mr. R N Mehta Member.Rnm a10382013 Page 14 of 14