National Consumer Disputes Redressal
Minor Harsh Amit Kumar Sheth & Ors. vs Sheth Hospital And Maternity Home & Ors. on 19 September, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.292 of 2005 (From the order dated 31.03.2006 in Complaint No.83/2003 of the State Commission, Gujarat) Minor Harsh Amit Kumar Sheth & Ors. Appellants Versus Sheth Hospital and Maternity Home & Ors. Respondents BEFORE: HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellants : Mr.Dhaval M.Soni, Advocate For the Respondents : Mr.Maninder Singh, Sr.Advocate with Mr.Sumeet Bhatia and Mr.Siddharth Bhatia, Advocates Pronounced on 19th September, 2012 ORDER
PER VINEETA RAI, MEMBER This First Appeal has been filed on behalf of Master Harsh Amit Kumar Sheth (hereinafter referred to as the Appellant No.1), a minor, through his natural guardians, Smt.Vaishali Amitkumar Sheth and Amitkumar Gautambhai Sheth (hereinafter referred to as Appellants No.2 and 3 respectively) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the State Commission). Sheth Hospital & Maternity Home, Dr.Aniben Keyur Kumar Sheth and Dr.Keyurkumar Sheth, opposite parties before the State Commission are Respondents herein.
In their complaint before the State Commission, Appellant No.2 contended that his wife, Appellant No.3, who became pregnant and was under the medical care of Respondents No.2 and 3, underwent sonography on the advice of the Respondent/doctors who confirmed that the development of the foetus was normal. On 07.03.2001, Appellant No.3 got admitted to the Respondent No.1/Hospital following unbearable labour pains and also profuse bleeding where after a physical examination and insertion of a pill in her vagina, she was kept in the labour room with instructions that delivery is likely to take place in the morning. No investigations were carried out during this period and no medical staff attended on her. It is only early in the morning following severe bleeding and the appearance of the head of the baby that she was taken for delivery which was conducted forcibly with forceps. No primary medical check was done on the infant and in fact Appellants mother-in-law observed that the baby was dropped by the Nurse to whom she was handed over following delivery. When the infant was brought before the Appellants for the first time, they noted that there were marks of injury on the side of his head and they were informed that these were minor and were caused because of use of forceps.
It was only after the baby was examined by one Dr.Kishorbhai Jain, Pediatrician who advised that there appeared to be injury on the side of the brain which would require a CT-scan and in view of the generally poor condition of the infant, he was shifted to the hospital of Dr.Kishorbhai Jain and kept in an incubator for one week and a number of tests were carried out. Appellants No.2 and 3 also took their child to the Shobhana Children Hospital for advice wherein it was detected that on account of the injury at the time of birth, there was damage to the sensory nerves because of which there was no movement in the right side of the infant. An MRI Scan confirmed that this had occurred because of the injury caused to the infant at the time of birth. Appellants immediately contacted the Respondents and sought necessary papers from the registration of birth with the Municipal Corporation and it was only after much persuasion that a chit was given indicating the date, time and weight of the baby and with the remarks that the delivery was normal with the help of forceps. When offered Rs.6,000/- as fees for delivery, Respondents refused to accept the same to shirk their responsibility for the negligence caused by them. It was contended by Appellants No.2 and 3 that although several doctors have been consulted including at Hinduja Hospital, the Appellant No.1 still does not have any movement in the right hand due to the injury caused to the sensory nerves. Appellants were advised by one Dr.Vrujesh Udani at Hinduja Hospital that Dr.Grossman, an expert from the US, has suggested that the child should be brought for treatment to the US which may cost US$ 35,000. Since the Respondent/Hospital and Respondents/doctors were solely responsible for the medical negligence resulting in disability of a permanent nature as also lack of proper treatment both prior to the pregnancy and thereafter to the Appellants No.1 and 3, Appellants filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that Respondents be directed to pay them a compensation of Rs.19,50,000/- and Rs.20,000/- as costs.
The above contentions were denied by the Respondents who stated that they were qualified gynecologists and due care and medical attention was given to Appellant No.3 during her pregnancy. Sonography was conducted at regular intervals which indicated that everything was normal. On the night of 07.03.2001 when the Appellant No.3 came to the Respondent No.1/Hospital with labour pains she was physically checked and kept in the labour room itself during which time also medical check-ups were carried out. Since the residences of Respondents/doctors were also within the hospital premises, Respondents were very much present throughout the night.
Respondents also denied that after the delivery, the child had fallen from the hands of a Nurse because of which he was suffering from Brachial Palsy. In fact, Dr.Kishorbhai Jain, Pediatrician had examined the child at the instance of the Respondents/doctors who confirmed that the injury caused to the infant was not as a result of the fall but had occurred at the time of birth due to shoulder dystocia. In this connection, it was pointed out that during delivery as is natural, the head of the baby comes out first and thereafter the shoulders which are wider. Sometimes, as has happened in this case, the shoulder gets trapped and it is by pulling out the remaining portion of the body from the womb that the child is delivered.
Sometimes, during this procedure an injury can occur which is described as shoulder dystocia. However, if the infant is not forcibly pulled out after the head has appeared, its life can be seriously endangered. In the instant case, the childs head came out normally but the portion of his shoulder being broad, dystocia had occurred and even though an episiotomy was done, it became necessary to use forceps for pulling the shoulder of the child so as not to endanger his life. This is a complication which can occur without any earlier symptoms or forewarning and in such cases injury to the brachial plexus cannot be ruled out but one has to select between the two devils - a side risk of hypoxia or risk of injury to brachial plexus. Doctors invariably choose the lesser risk i.e. of causing brachial plexus injury. This does not imply that there is any medical negligence, particularly, in the instant case where as stated above, due care and precaution was taken right from the time of the pregnancy till the delivery and thereafter.
The State Commission after hearing both parties and considering the evidence filed before it including the expert evidence of Dr.Tushar Shah, Gynecologist, concluded that there was no case of medical negligence and the complaint was accordingly dismissed. The operative part of the order of the State Commission is reproduced:
It is the case from the complainant side that the baby got injury due to fall, when he was being handed over to nurse after delivery. It is to be noted here that in the complaint, the same is being linked with Brachial Palsy.
Although, there is no evidence, except bare words of mother-in-law. It is also a fact that the fact with regard to fall of baby has not been disclosed to any of the doctors to whom they have consulted and there is also no mention in the cases papers of any doctor. To our opinion, this allegation is without any basis.
The complainants have also not produced any record to show that Dr.Jain visited first time during the noon instead of 6.17 am. As against that from the opponent side, Dr.Jain himself filed an affidavit that he had come to see the baby in the morning. The complainants also not produced any evidence/opinion of an expert to the effect that how this would make any difference to the injury of a child. Thus, considering from all angle, no evidence has been produced from the complainants with regard to what actions have not been taken by the opponents from Brachial Palsy of the Baby. Under these circumstances, to our opinion, on this count also there is no question of deficiency in service of the opponents.
Thus, considering all facts and circumstances of this complaint, as such there is no evidence but bare allegations.
Merely because injury caused during treatment, it cannot be said that doctors services were deficient. Adding to this here, there is clear cut opinion of an expert that the treatment given by the opponent doctor is within acceptable norms. We have considered all judgments referred in this case but none of them is favourable to the complainants in any way. Therefore, we have no option but to hold that complainants have failed to prove their complaint.
Hence, the present First Appeal.
Learned Counsel for both parties made oral submissions. Counsel for Appellants stated that negligence was writ large on the part of the Respondents/doctors who did not attend to Appellant No.3 although she was in great pain and after birth also the baby while being handed over to the Nurse was dropped which resulted in an injury to the brain causing the Brachial Palsy which has become a permanent disability.
It was because of the negligence of the Respondents/doctors that they could not detect that the baby being large, there could have been problems in a normal delivery and instead conducted the delivery by forceps which resulted in the present condition. Even after birth, no pediatrician immediately attended to the newborn and it was only in the afternoon that Dr.Kishorbhai Jain, a Pediatrician saw the infant and immediately diagnosed that his condition was not satisfactory and that there was an injury for which necessary tests should be conducted and therefore, the infant was shifted to the hospital. Counsel for Appellants further submitted that the affidavit of Dr.Tushar Shah who had not examined the child does not inspire much confidence because he has only conjectured that when it is a case of a big baby, there are possibilities of such incidents occurring but there is no mention in the case papers that this was a big baby. Admittedly, the child suffered from Brachial Palsy which could have been avoided if care was taken while conducting the delivery.
Counsel for Respondents reiterated that due care and treatment as also precautions were taken during the pregnancy and at the time of birth of the baby. Ultrasonography was done regularly to determine the growth and status of the foetus and when during the delivery, the shoulder got trapped which was not expected in the first instance, an episiotomy was done and even then when the shoulder dystocia did not get relieved, there was no alternative but to pull-out the newborn by using forceps. This action had to be taken immediately otherwise the baby could have either suffered hypoxia which is a very severe mental retardation and also his life could have been seriously endangered. Unfortunately, despite all precautions in 20% cases of shoulder dystocia, Brachial Palsy does occur. This is what happened in the instant case. The injury was not because the infant was dropped by the nurse and the pediatrician Dr.Kishorbhai Jain has also confirmed this fact. The burden of proof that there was any deficiency in service was on the Appellants who except for some verbal submission which lacks credibility have not been able to prove that there was any medical negligence. In view of this, the order of the State Commission may be upheld.
We have heard learned Counsel for both parties and have carefully gone through the evidence on record. The fact that Appellant No.3 was admitted in Respondent No.1/hospital following severe labour pains and that she delivered a male child for which a forceps delivery became necessary due to shoulder dystocia is not in dispute. It is further a fact that the child was detected with Brachial Palsy which was linked to the shoulder dystocia. We have perused the medical literature on the subject and have also gone through the evidence on record and we find substance in the contention of Counsel for Respondents that this is an inherent risk which can occur in cases of shoulder dystocia where force has to be used for the delivery. There is no evidence that there was any negligence on the part of the Respondents in this connection. In fact, this was the only option available in this case otherwise the infant could have suffered from hypoxia which is a severe mental retardation and his life could also have been endangered. Further, the allegation of Appellants that the injury occurred because the child was dropped while handing him over to the nurse does not inspire confidence since as observed by the State Commission except for the statement of Appellants mother-in-law, there is no evidence to support this fact nor was this complaint made by the Appellant to any of the doctors. We further note that adequate pre-natal care was taken and various tests including physical and chemical examination, blood tests etc. were done, the evidence of which is on record. It is also not borne out by evidence on record that Appellant No.3 remained unattended prior to her delivery. She was kept in the labour room and a record of her medical condition was maintained throughout. In view of the above facts, we are unable to conclude that there was any medical negligence on the part of the Respondents.
Keeping in view all the above facts, we see no reason to disagree with the order of the State Commission which has gone into all aspect of the case and reached a clear finding that there was no medical negligence on the part of the Respondents. We, therefore, uphold the order of the State Commission and dismiss the First Appeal.
No costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/