State Consumer Disputes Redressal Commission
Naveen Prashar vs K.C. Sharma Poly Clinic on 2 May, 2013
IN THE STATE COMMISSION : DELHI Date of Decision2.5.2013 Complaint No. 149/2007 Shri Naveen Prashar S/o Shri Mahesh Chand R/o 2728/204, Tri Nagar Delhi ..Complainants Vs 1. 2. 3. 4. K.C. Sharma Poly Clinic, 289B, Onkar Nagar-B, Tri Nagar, Delhi through its Administrators/Incharge. Dr. Ansuhla Mittal Dr. Ankur Mittal Both r/o 2640, Tri Nagar, Tota Ram Bazar, Delhi-110 035. Dr. Anand Sharma c/o K.C. Sharma Poly Clinic, Tri Nagar, Delhi-110 035. ---Opposite Parties CORAM Justice Barkat Ali Zaidi (President) Salma Noor, Member
V.K.Gupta, Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not?
V.K.GUPTA
1. This is a complainant under Section 12 of the Consumer Protection Act, 1986.
2. Briefly stated factual scenario of the case is that the complainant got married on 18th May, 2006 with Bachpan @ Rekha Sharma and fortunately after two months of the marriage got pregnant. She was taken to Dr. Anshula Mittal, OP No.2 who declared the date of delivery as 18.4.2007 after taking the Ultrasound. The complainant visited on 16.4.2007 the clinic of the OP-I whereupon Dr. Anshula Mittal and Dr. Ankur Mittal, OP No. 2 & 3 respectively insisted the complainant that his wife must be admitted in the clinic, however, the complainant wanted his wife to be admitted in some well equipped hospital like Agrasin Hospital or ESI Hospital Punjabi Bagh, but OP No.2 & 3 insisted the complainant to get the patient at the clinic i.e. OP No.1, which was being run by Dr. S.C. Sharma. It was informed amended vide order dated 16.09.2013 by Dr. Anshula Mittal and Dr. Ankur Mittal, OP No.2 & 3 respectively that the wife of the complainant was normal and there was no complication at all. It was also told by these two doctors that they have done numerous cases, whereas the case of the wife of the complainant is a normal case so he should not go to another hospital. Albeit the clinic was not well equipped for the facility of operation and other emergency requirements, but the complainant trusted on all the Ops. The OP No.2,3 & 4 started giving treatment to the wife of the complainant by giving some pain doss and about 9.30 p.m. it was told by them that the wife of the complainant was taken for delivery. At that time the complainant talked with her wife, who was in full sense. At about 10.00 p.m. on 17.4.2007 when the complainant heard no noise from inside delivery room/operation theatre and the complainant peeped inside the delivery room from the glass there they saw a different scene that all the OPs were giving pumping to the wife of the complainant whereas the such treatment is not required for the purpose of delivery. At about 11.15 p.m. Dr. Anshula Mittal and Dr. Ankur Mittal, OP No.2 & 3 respectively came outside the room and told that condition of the wife of the complainant was very serious and operation required for which consent was given by the complainant. At about 12.15 a.m. the complainant started knocking at the door of OP No.2 & 3 who came outside and told that the condition of the wife and children were serious and they required to be admitted in some big hospital for which they called ambulance. OPs suggested Bara Hindu Rao hospital, whereupon complainant requested that Bara Hindu Rao Hospital is at a very far place and nearest hospital is Maharaja Agresain Hospital, Punjabi Bagh. A direction was given to the driver of the ambulance by these doctors to take the patient to Bara Hindu Rao Hospital, however the brother of the complainant chased them at Shastri Nagar, Delhi and requested all the OPs who were inside the ambulance and the driver to take the ambulance at Agrarsain hospital. Anyway, the wife of the complainant along with newly born child were taken to Agrasain hospital and they recorded that the wife and newly born child of the complainant were brought dead. On this the complainant informed the police and the police and proceedings started.
There was sheer negligence on the part of OP No.2 & 3 as a result of which the wife and newly born child of the complainant died. The complainant claims a compensation of Rs.40,00,000/- together with interest @ 18% p.a.
2. The OP No.1 & 4 file the written statement and denied the allegations. It is contended that Dr. Anand Sharma is a qualified amended vide order dated 16.09.2013 Orthopedician, therefore, there is no question of the treatment by him when the qualified doctors i.e. Dr. Anshula Mittal and Dr. Ankur Mittal, OP No.2 & 3 respectively were treating the patient.
With regard to the presence of Dr. Anand Sharma who was working as Orthopedician in K.C Sharma clinic who is . amended vide order dated 16.09.2013 Sharma in the delivery room at the relevant time is also denied that when the complainant knocked the door of the delivery room, the OP No.4 came outside the said room.
It is admitted that the wife of the newly born baby were declared dead by doctors of Maharaja Agresain Hospital, Delhi. There death were denied in the hospital. Therefore, neither OP No.1 nor OP No.4 is liable for any comepnstion.
3. OP No.2 & 3 filed the joint written statement and denied all the all the allegations. It is admitted that in the month of August/Sept., 2006, Smt. Bachpan @ Rekha Sharma, the wife of the complainant came to the clinic of OP No.2 & 3 and she was examined by Dr. Anshula Mittal, OP No.2.
Ultrasound was taken and she was found normal. Routine blood test for pregnancy was also advised and this was not done. In the first week of Oct., 2006 when the blood test was taken, she was found to be normal except for mild Anaemia. In the 3rd week of Oct., 2006, the wife of the complainant again visited the clinic with a complaint of high grade fever. Her platelet counts were done, which were slightly deranged and the necessary medicines were prescribed. The wife of the complainant again visited on 25.10.2006 with mild cough and was given necessary medicines. From time to time when the wife of the complainant visited the clinic, OP No.2 advised the medicines. On 5.4.2007, Ultrasound was done, which was found normal. The complainant also informed that his wife was also booked in ESI Hospital, Basai Darapur, New Delhi. On 7.4.2007, OP No.2 advised for admission in the hospital for induction of labour, but the complainants family members refused, but get in touch with OP No.2 on telephone. On 14.4.2007, the wife of the complainant visited the clinic of OP No.1 and was examined by OP No.2, who suggested for admission in the hospital in view of the post dated pregnancy with good size baby and also advised elective Lower Segment Caesarean Section (LSCS) for the reasons mentioned in para 6 of the WS.
Finally she was admitted on 17.4.2007 and further advised for elective Lower Segment Caesarean Section (LSCS), but the complainant did not agree. At about 5.30 p.m., the patient started having mild labour pain and at about 8.30 p.m. pediatrician, OP No.3 called. At 9.00 p.m. there was a foetal drop to 100-120/min., therefore, it was an emergency situation where the delivery of the baby has necessarily took place immediately, the natural way or by Caesarean Section, failing which there was danger of foetal death/poor neonatal prognosis. The complainant and his relatives were asked to give consent for LSCS, but they refused and insisted for vaginal delivery, therefore, OP No.2 & 3 were helpless. At about 10.00 pm the vitals of the patient were stable. Pulse was 80/min, BP 130/72 mm of hg, contractions + FHS _ but irregular 100-110/min, P/V fully dilated, fully effaced, vertex at +2 membranes absent. The patient was exhausted and not hearing down well. The grim situation was explained to the relatives of the patient, but they refused to give their consent for LSCS. At 10.50 p.m. in view of the deteriorated condition of the patient and the foetus, Dr. Ajay Memnani, Anesthetist was called, and finally at around 11.25 p.m. informed consent was given by the complainant for the Caesarean Section. A second surgeon namely Dr. D.K Bhardwaj (MD Gynae) was also called. Emergency LSCS started at around 11.35 p.m. Spinal Anaesthesia was given under all aseptic precautions. Bladder was catheterized. 50 ml of high coloured urine was drained. Parts were cleaned and draped. Abdomen was opened in layers by right paramedian incision. UV fold was identified and incised. Bladder was retracted. A curvilinear incision was made on the uterus, and a baby boy was delivered out of the uterine cavity. However no spontaneous respiratory efforts were seen. The baby was handedover to the pediatrician at 11.45 p.m. Placenta was delivered complete with membranes. Inj. Methergin and synto infusion were given by anesthetist. The procedure for Uterine closure was thereafter started by which time Dr. D.K. Bhardwaj, the second surgeon also joined the surgery. In normal course, the Uterus contracts after extraction of the baby and removal of Placenta, after which the procedure of Uterine closure is carried out. However, in the present case, the Uterus became flabby, and active bleeding started. In the circumstances, bimanual uterine massage was immediately started. Suddenly the patient became restless, started shouting and moving of hands. The Anesthetist reported that BP of the patient had gone down, and hence he took corrective measures by pushing fluids.
Requisition for blood was again sent.
Inj. Methergin was repeated, and Inj. Carboprost was also given. Bilateral uterine artery ligation was also done. However the Anesthetist reported that the pulse had disappeared. He therefore started intubation and cardiac massage. By these corrective measures, Sinus rhythm was restored. In the meanwhile, uterine tone regained satisfactorily, and the bleeding also stopped. Hysterectomy was one of the options considered by the attending surgeons, since the possibility of fresh bleeding of the Uterus could not be ruled out after the Abdomen was closed, in which event the Abdomen would have had to be reopened, and the whole process would have meant further loss of blood, which was life threatening, particularly when the relatives of the patient had not arranged the blood requisitioned. However, the option of Hysterectomy was abandoned, as uterine tone had regained + bleeding had stopped + patient was a primigravida + poor neonatal prognosis + poor hemodynamic status of the patient and there was need to hurry the procedure.
Hence counts of mops were checked, adequate hemostasis was achieved, and the abdomen was closed in layers.
Antiseptic dressing was done.
Catheter drained 150 ml of hemorrhagic urine. Loss of blood during the operation was approximately 1.5 L, liquor clear, LUS well formed, bilateral tubes and ovaries normal. Vaginal toileting was done. Bleeding P/V WNL. Epi stitched in layers. Per rectal misoprost 800mg was inserted prophylactically. The baby was taken out, born, limp, apneic and cyanosed.
Basic steps of resuscitation were started, that included providing warmth, positioning, cleaning airway, dried, stimulated, and given free flow of oxygen. There was so spontaneous respiratory effort, and hence artificial respiration was given by ambu bag with 100% oxygen for 30 seconds. There was however no cardiac activity at this time, and hence simultaneously cardiac massage was also started along with artificial respiration, which was continued for 30 seconds. There was no response in cardiac activity or respiration at that stage.
Hence, Adrenaline was given via umbilical vein. Dose was repeated, when there was no response after 30 seconds. At this stage the child was intubated and the above resuscitation efforts were continued. In view of the poor Hemodynamic status of the wife of the complainant, the relatives of the patients were advised to shift her to a higher centre, therefore ambulance was immediately called so that he patient be sent to such a hospital where the bed in ICU is available. The OP suggested for taking the patient to Bara Hindu Rao Hospital where the ICU and ventilator facility were available, but the complainant refused to do so and insisted to take to Agrasain Hospital. Dr. Anshula Mittal, OP No.2 is a qualified doctor having MBBS from Maulana Azad Medical College and MD from Safdarjung Hospital and VMMC, New Delhi.
She also won several awards and gold medals during her graduation. Dr. Ankur Mittal is also a qualified doctor having MBBS and DCH from Maulna Azad Medical College, New Delhi. Both the doctors are very qualified and competent medical practitioners, having adequate knowledge and experience in their profession; therefore, there was no medical negligence on their part at any point of time or at any stage of the medical treatment. Therefore, the complainant is not entitled for any relief.
4. The complainant has filed the rejoinder by denying fresh allegation in the written statement of the OPs
5. Both the parties have filed the affidavits by way of evidence in their respective support.
6. We have heard complainant present in person and Ld. Counsel for all the OPs. perused the material on record.
7. Halsburys Laws of England in its 4th Edition Vol. 26 pp. 17-18 defines doctors negligence as under
Negligence Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient..
8. In a celebrated and oft-cited judgment in Bolam vs. Friern Hospital Management Committee (1957) 1 All ER 118, Mc Nair, L.J. observed that:
I must explain what in law we mean by `negligence. In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, than there is a cause of action.
9. Negligence in the context of the medical profession necessarily calls for a treatment with difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
10. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
11. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
12. The complainant present in person in this case very vehemently submitted that the clinic i.e. OP-1, which is maintained by OP No.4 is un-registered and it is converted into a commercial establishment and his wife and the new born baby died on account of the sheer negligence of OP No.2 & 3 within one year of their marriage. On the other hand, Counsel for the OPs submitted that there is no negligence on the part of any of the OPs.
13. It is an admitted case of both the parties that the death of the complainants wife and new born baby occurred in the hospital of OP No.1
14. The OP No.1 is K.C. Sharma Poly Clinic where the medical treatment of the complainants wife as well as new borne baby was made by Dr. Anshula Mittal, Dr. Ankur Mittal, and Dr. Anand Sharma OP No. 2, 3 & 4 respectively. Neither the OP No.1 nor the OP No.4 has produced any evidence against the allegation of the complainant that the said poly clinic was unregistered.
Obviously, the necessary presumption isthat the said poly clinic was being run without any registration, unauthorizedly by Dr. K.C. Sharma, OP No.4, which itself is a part of the negligence. Further, the said poly clinic was not equipped with the instruments which could be required for any emergency.
15. In this case, the complainant, after the death of his wife and new borne baby in the hospital lodged an FIR with the Police and also made a complaint in respect of the gross medical negligence by Dr. Anshula Mittal and Dr. Ankur Mittal to Delhi Medical Council. Delhi Medical Council has submitted the report, which is dated 16.7.2010. Delhi Medical Council has examined the complainant as well as the doctors very meticulously and has passed very comprehensive and exhaustive order and made the following findings:
i) Dr. Anshula Mittal, erred, in advising and undertaking delivery at an unregistered centre.
ii) Dr. Anshula Mittals claim that she advised caesarian section on many occasions but the same was refused by the patients relatives, is not substantiated by a negative consent.
Iii) A patient with full term pregnancy with good sized baby with borderline pelvis and polyhydraminous under the normal circumstances should have been taken up for LSCS as a first option. However, even if it is to be believed that the patient or her relative were adamant about normal delivery, it was incumbent upon the gynecologist to have been prepared for LSCS, by ensuring arrangement of blood and other surgical necessities which are associated with such a procedure. It is further observed that Dr. Anshula Mittal, being a gynecologist should have foreseen the perils of delaying the LSCS procedure in this case and if the patients relatives were reluctant to give their consent, their negative consent should have been recorded.
The doctor being the best judge of her patients condition could have gone ahead with the LSCS even without waiting for consent of the relatives if the clinical condition of the patient warranted and it was in the best interest of the patient. Even though a doctor is under obligation to discuss with the patient/relatives all available treatment options, it is expected to him/her as a professional to hive his/her opinion regarding the option which he/she thinks is appropriate depending upon the clinical condition of the patient and if the patient/relatives differ with the doctors clinical judgment, then the doctor should advice the patient to seek consultation of other doctors.
iv) Under the circumstances of this case, the Delhi Medical Council is of the view that in a full term pregnancy with good sized baby with borderline pelvis and polyhydraminos, LSCS was a preferable option to normal delivery, at the first instance itself and the delay in conducting the cesarean section within a reasonable period even after not succeeding with trial of labour for almost 12 hours, was highly unprofessional, as the same was expected to compromise the health of both the patient and fetus, which unfortunately eventually happened in this case.
degree of skill, knowledge and care, which was expected of an ordinary prudent gynecologist in the treatment administered to Late Bachpan Sharma.
17. It is further manifestly clear that Dr. Anshula Mittal and Dr.Ankur Mittal was gross negligent in the delivery of the wife of the complainant who died at the same time and new borne baby was also died as Dr. Anshula Mittal failed to exercise the reasonable degree of skill, knowledge and care, which was expected of an ordinary prudent gynecologist in the treatment administered to Late Bachpan Sharma wife of the complainant. It is further stated in this report that the opinion of the Delhi Medical Council holding Dr. Mitrtal guilty of medical negligence is final.
18. It is very vehemently submitted by the Counsel for the OP that this Commission can ignore the Medical Council opinion and form its own opinion holding that there is no medical negligence in the circumstances of the case. This contention is devoid of all forces. It has also been held by the Honble National Commission Honble National Commission in Dr. H.S. Saini Vs Gurbax Singh 1986-2005 Consumer 8674 (NS) arising of the Revision Petition No. 409/2002, decided on 20.11.2002 that the Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based. Under these circumstances Honble National Commission held that the expert opinion shall be taken into consideration and the Commission cannot ignore it.
19. It may be added that Delhi Medical Council examined the matter very meticulously and held that doctors were negligent in the delivery of the complainants wife as a result of which, she and newly born baby died.
20. There is an ample evidence on the material on record that the mother and newly born baby died in the delivery room which were seen by the complainant and his relatives by peeping into the class. OP No.2 & 3 came out and immediately directed the complainant to take his wife and newly born baby to Bara Hindu Rao Hospital and immediately the ambulance was arranged. There is also an ample evidence on record that the complainant ahs asked that Agrasain hospital is nearby having a very experienced and competent doctors, therefore, the wife and newly born baby should be taken to this hospital, which was very vehemently resisted by the OPs, which shows a malafied intention on the part of the OPs in as much as the wife of the complainant and newly born baby died in the delivery room on account of the gross negligence of the OPs.
21. Now there remains with regard to the assessment of the compensation, it may be relevant to mention that in this case wife of the complainant has died and the newly born baby could not see the light of the day on account of the sheer negligence of the OPs. The complainants wife died within one year of the marriage. The human lives cannot be measured or evaluated in terms of money and the only consolation is by awarding the huge amount of compensation so that it should be lesson to those doctors who are negligent in the medical treatment.
Taking into consideration the entire facts and circumstances of the case, we quantify the amount of compensation as Rs.20,00,000/- (Rupees twenty lakhs).
22. The complaint is allowed and OPs jointly or severely shall pay Rs.20,00,000/- (Rupees twenty lac only) as compensation to the complainant within 30 days, in case this amount is not paid within 30 days, the OP shall pay interest @ 10% p.a. after expiry of 30 days from this order to the date of realization.
23. Let a copy of this judgment be sent to the Secretary, Medical Council of India, Pocket-14, Sector-8, Dwarka Phase-I, New Delhi to initiate the cancellation of the registration of Dr. Dr. Anshula Mittal, Dr. Ankur Mittal & Dr. Anand Sharma amended vide order dated 16.09.2013, OP No.2, 3 & 4 respectively and the cancellation of the registration be informed to the State Commission.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member (V.K.Gupta) Member (Judicial) Arya