National Consumer Disputes Redressal
C. Chandrasekhar & 3 Ors. vs Dwarka Hospital & 2 Ors. on 12 June, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 777 OF 2015 1. C. CHANDRASEKHAR & 3 ORS. S/o. Sri. Channabasavanna Goud, R/o. SMIORE Employees' Co-operative Housing Society Layout Sandur Tq, BALLARI, KARNATAKA. ...........Complainant(s) Versus 1. DWARKA HOSPITAL & 2 ORS. Represented By Its Proprietor and Administrator K. Seetharam,
Opp. Pragathi Gramin Bank Head Office BMA/Moka Road, GANDHINAGAR, BALLARI-583 103 2. DR. K. RADHIKA ACHARYA Consultant Obstetrician & Gynecologist Dwarka Hospital, Opp. Pragathi Gramin Bank Head Office BMA/Moka Road Gandhinagar, BALLARI - 583 103 KARNATAK 3. DR. KIRAN CHAND Consultant Anesthetist Dwarka Hospital Opp. Pragathi Gramin Bank Head Office BMA/Moka Road Gandhinagar, BALLARI - 583 103 KARNATAKA ...........Opp.Party(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER
FOR THE COMPLAINANT :
Dated : 12 June 2023 ORDER
Appeared at the time of arguments
For the Complainant : Mr. Ajay Brahme, Advocate
Mr. Abhivyakti Shandilya, Advocate
Dr. Mahesh Sharma, Govt. Doctor
For the Opp. Parties : Mr. Kieran Narayan, Advocate
Dr. Radhika Acharya
Pronounced on: 12th June 2023
ORDER
1. The present Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 by Sri. C. Chandrasekhar (Complainant No. 1) who is the husband or next friend of Complainant No. 2 & father & natural guardian of Complainant No. 3 & 4 (Minors) against the Dwarka Hospital (OP-1), Dr. K Radhika Acharya-Consultant Obstetrician & Gynecologist (OP-2) & Dr. Kiran Chand-Consultant Anaesthetist (OP-3), for the alleged medical negligence caused to the Complainant No. 2 on account of the catastrophic hypoxic injury sustained by her which rendered her permanently, bed ridden and in a vegetative state.
2. The Complaint:
2.1 Mrs. Shanthakumari, the Complainant No.2 (for short the 'patient') during her second pregnancy (31 week) consulted Dr.Shantha Seetharaman on 03.08.2013. It was Antenatal Checkup (ANC) at OP-1 Hospital, but no ANC card was issued. Prior to that, the patient had ANC in Chiranjeevi Hospital at Hospet. Her Ultrasound (USG) was done periodically on 25 June, 9 July and 30 July of 2013 found normal. The USG done on 03.08.2013 revealed features of mild Oligohydramnios. On the intervening night of 6-7 August, 2013 she experienced nausea, abdominal pain and vomiting. She was initially taken to Government hospital and treated with IV infusions. Thereafter, she got admitted to the OP-1 hospital. Since Dr. Shantha Seetharam was leaving the town, she transferred the case to her daughter-in-law, Dr. K. Radhika Acharya (OP-2), who was also Obstetrician in their hospital. Patient was anemic with slightly elevated bilirubin. It was alleged the liver function tests were not ordered by OP-2.
2.2 The abdominal pain was suspected to be OP-2 case of cholecystitis/duodenal perforation with ascites. The Surgeon Dr. Mahesh Desai examined her and treated with antibiotics and Ryles Tube aspiration. It was alleged that on 8-9 August at about 1:00 am in the night patient had severe abdominal pain and she was taken to operation theatre at 4.30 a.m. for an emergency C-section, and delivered a premature baby at 05:20 am. The patient suffered severe post-partum hemorrhage (PPH) she lost about three liters of blood. It was alleged that the OPs failed to keep adequate blood stock for transfusion. Therefore, to control the PPH, OP-2 performed a sub-total hysterectomy. However, the patient suffered hypovolemic shock and a hypoxic insult. Thereafter, on 03.08.2013 the patient was shifted to the tertiary Care at BKS hospital, where she remained on a ventilator until 06.08.2013. She was then shifted to Manipal Hospital, Bangalore and kept in ICU on mechanical ventilation for about two months. She was discharged in a vegetative state and became permanently disabled. Thus, she has to remain dependent on the attendants and physiotherapist for the rest of her life.
2.3 Being aggrieved, the Complainants, filed the Consumer Complaint and prayed sum of Rs.1,41,20,000/- as Pecuniary compensation & Rs.48,00,000/- as non-Pecuniary compensation along with @12% interest.
3. Defence: -
3.1 The Opposite Parties have filed their respective Written Versions, denying allegations of medical negligence.
3.2 Reply by Dwarka Hospital (OP-1) It was submitted that the allegations are baseless. There is no mandatory requirement for in house NICU, Intensive care unit and blood bank in the hospital. However, the OP-1 has tie-up with the service providers. The Hospital is equipped having functional ventilator and the adequate expertise to handle critical cases. It was further submitted that the patient was under consultation at Govt. Hospital Sandur and Chiranjivi Hospital in Hospet under Dr. Sumangala Devi till 7½ months of pregnancy. As per the ANC scans there was less amniotic fluid and low lying placenta.
3.3 Reply by Dr. K. Radhika Acharya (OP-2) The OP-2 submitted that on 03.08.2013 3 the patient at first time consulted for medical advice from Dr. Shantha Seetharam, therefore ANC card was not prepared. On her way home, she consumed approximately 10-15 fried chillies at a local fair in Bellary which might have caused abdominal discomfort. Subsequently, due to worsening of pain, on 06.08.2013 she was taken to a government hospital in Sandur and treated till next day. On 07.08.2013, due to worsened abdominal pain, she returned to OP-1. Dr. Shantha Seetharam examined her and found the pain was not due to labour. Therefore, the patient was referred to the surgeon Dr. Mahesh Desai.
3.3.1 The OP-2 further submitted that it was as a case of previous caesarean section, which suddenly developed pain in abdomen on 09/08/13 at midnight 1.00 a.m. On examination the OP-2 did not suspect placenta previa. Due to continuous unbearable pain, an emergency caesarean section was performed. During the surgery, placenta previa was discovered which was missed in earlier USG. The surgery was difficult due to scar dehiscence and there was severe maternal blood loss, which required a subtotal hysterectomy. Blood transfusion was made and the patient was shifted to another hospital for further treatment.
3.4 Reply by Dr. Kiran Chand, Anesthetist (OP-3) The OP-3 submitted that he was called at 4.30 a.m. on 09.08.2013, to administer anesthesia to the patient who developed sudden labor pains and fetal distress. Under spinal anesthesia upon opening the abdomen, The OP-2 discovered that there was already blood in the abdominal cavity (hemoperitoneum). The baby was delivered from the amniotic sac by 5.20 am and handed over to the pediatrician. The OP-3 further submitted that after delivery, Uterotonics (Inj. Oxytocin 10 units as infusion) were started, but the patient's blood pressure dropped, which was treated with Inj. Mephentaramine 5mg bolus and rapid infusion of IV fluids. Although there was a transient improvement in blood pressure, it did not sustain, and another IV cannula (20G) was placed for rapid fluid infusion. The patient became drowsy and she was intubated with a cuffed endotracheal tube (ETT) after receiving IV Inj. Ketamine and Inj. Succinylcholine. Initial ventilation was initiated with 100% oxygen and later on it maintained with 50% oxygen in nitrous oxide. To address the dropping blood pressure and uterine atony, the patient received Inj. Methergin 0.2mg, Inj. Dopamine, and later Inj. Phenylephrine at appropriate doses. Additionally, Inj. Sodium Bicarbonate was administered, although it was not mentioned in the anesthetic notes of OP-3. Due to the atonic uterus, a subtotal hysterectomy was performed by OP-2. The OPs made efforts to procure blood throughout the procedure, and around 2 units of compatible blood was transfused. The patient received 2 units of blood and 3 units of fresh frozen plasma (FFPs). She was administered 2 units of Ringer's lactate (RL), 3 units of dextrose normal saline (DNS), and 1 unit of Haemacel (colloid). She remained on the ventilator for approximately 2 hours post-surgery in the operating theater (OT) until she was hemodynamically stable and regain consciousness. As the patient did not regain consciousness and required further treatment from intensivist, she was transferred to BKS Hospital for ongoing management under the care of an intensivist.
4. Arguments:
4.1 Heard the arguments at length. The learned Counsel on both the sides reiterated their evidence on record. They have filed medical literature on the subject and textbook references. They have filed their brief notes of written arguments.
4.2 Arguments on behalf of the Complainants:
The Learned Counsel for the Complainant argued that Dr. K. Radhika Acharya failed to diagnose his wife's anemic condition. The patient suffered PPH and lost 3 liters of blood which resulted in a hypoxic insult to her brain. The hypoxic insult could have been avoided if OPs 2 and 3 had exercised reasonable care and caution. Several departures from the standard of care were evident in the treatment of the complainant's wife. The OP-2 performed an unwarranted C-section at 32 weeks without a medical indication. The relevant hematological investigations were not done, also blood was not arranged in advance. He further submitted that Oxytocin to control PPH is most effective when it is administered within one minute of the birth of the baby. In the instant case, the timing of administering oxytocin was not mentioned. It amounts to negligence. Additionally, the placenta was removed in bits and pieces during surgery, vasopressors were improperly administered, and a sub-total hysterectomy was performed without waiting for blood. Furthermore, there was a failure to administer adjuvants and uterotonics, and separate consent for anesthesia was not obtained. Due to medical negligence of OP-2, the Complainant's wife is now living in a vegetative state.
4.2.1 The learned Counsel further argued that there are number of discrepancies in the prescriptions dated 03.10.2023 and 07.10.2013, wherein Oligohydramnios was mentioned. Also discrepancies in USG finding about the volume of Liquor, at places mentioned as adequate/ nil / less and the word anhydramnios was in handwritten.
4.2.2 During arguments, the learned Counsel for the Complainant brought an expert Dr. Mahesh Sharma (Trainer Obstetrician, Government of Chhattisgarh). He was permitted to make his submissions. According to him from the date of admission the treating doctors were negligent. Firstly, the diagnosis of acute cholecystitis was wrong but finally the diagnosis of PPH was made due to scar dehiscence and placenta previa. The OP-2 wrongly diagnosed the foetal distress. On 07/08/2013 the Hb% was 9.8 g% i.e. moderate anemia but the doctors failed to anticipate the need of blood. The decision for LSCS was to be taken much in advance. The operative notes at 5 a.m. revealed Placenta-Accreta. There was Hemoperitoneum and blood loss of 3000ml. The patient was shifted at 9:40 a.m. to BKS hospital after considerable delay. He submitted that the sonologist was not competent to locate the placenta as it was extending from upper segment. The scar dehiscence/uterine rupture occurred just before opening the abdomen. The patient has suffered PPH leading to hypoxic insult and the evidence on record including Doctor's Notes, USG Report the placenta was extending from upper segment to the lower segment. The expert Dr. Mahesh Sharma concluded that it was a case of gross medical negligence which could have been avoided had the standard procedure like arrangement of blood or shifting the patient to a hospital with requisite ambulance facilities were considered by the Opposite Parties. Conducting hysterectomy without prior arrangement of blood amounts to negligence.
4.3 Arguments on behalf of OP-1 The learned Counsel for OP-1 re-emphasized its evidence. He further argued that the patient was suppressing true facts and drew attention to provisions of the KPMEA Act and the licensing requirements of the OP 1 hospital. The Counsel relied upon the Hon'ble Supreme Court's observations in the Achutrao Haribhau Khodwa v. State of Maharashtra[1] it was held that:
"For establishing negligence or deficiency in service there must be sufficient evidence that a doctor or hospital has not taken reasonable care while treating the patient. Reasonable care in discharge of duties by the hospital and doctors varies from case to case, and expertise expected on the subject, which a doctor or a hospital has undertaken. Courts would be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability with due care and caution."
4.4 Arguments on behalf of OP-2 The necessary uterotonics & adjuvants (sodium bicarbonate) were available in the OT along with all the necessary medications. As there was fetal distress seen in early hours of 09.08.2013, C-Section was decided. The learned Counsel submitted that the initial USG did not show evidence of placenta previa. However, during the caesarean section, the OP-2 discovered that the previous uterine scar had cut through the anterior, low-lying placenta, causing heavy bleeding. In the instant case, multiple complications posed one after the other. On the OT table the complications were efficiently handled by OP-2. She did her level best to save the mother & child. Within half to one hour few units of blood and plasma were arranged and transfused to stop the bleeding. The baby was pale and treated at Prithvi Hospital with blood transfusion. The Counsel drew my attention to three expert opinions namely Dr. M C Patel, OBG, Dr. J Shankar, OBG and Dr. Bala Bhaskar, Anesthesiologist. The learned Counsel also relied upon the standard text books viz. Williams Obstetrics, 'Decision to Delivery' by Tyney & Rayburn and the journal articles on 'Emergency Cesarean Section' and 'Placenta Previa', 'Effects of Anemia on Pregnancy' etc. The counsel relied on the placental migration theory and read extensively from DC Dutta's Textbook on Obstetrics and submitted that no placenta previa was present as none of the scans revealed so and quoted 'placental migration theory' to say that all low lying placentas migrate to the upper segment by 20-24 weeks. He further submitted that no apparent signs of pre-term labor seen.
5. Observations and Conclusion 5.1 In my view, the OP 1 hospital complied with the statutory requirements as under the KPMEA Act. There is no evidence to suggest that the hospital is lacking the facilities or skilled doctors to handle the instant case. The intra-operative findings were unexpected and challenging, notwithstanding the experience and abilities of the doctors on hand. The sworn affidavit of Dr. Mahesh Desai and Expert Opinions of Dr. M C Patel, Dr. J Shankar and Dr. Bala Bhaskar in support of OPs have gone unchallenged. It is pertinent to note that the District Medical Board and Karnataka Medical Council (KMC) did not point any negligence of the OPs.
5.2 I have carefully perused the Order of National Medical Commission (NMC). Initially vide order dated 06.07.2019, the Karnataka Medical Council (KMC) exonerated the OP-2 & 3 from the medical negligence. On 27.12.2022 the NMC Ethics and Medical Registration Board (EMRB) opined that "Dr. K. Radhika Acharya should have been more cautious regarding active efforts to arrange blood and should have considered the option of referral in high-risk case. It is also felt that medical records should have been more elaborate and clearer. So, she is warned to be more careful in future."
In my view, it was a direction for improvisation of OPs' services and no negligence was attributed to OP-2.
5.3 With respect to the Consultant Anesthetist Dr. Kiran Chand, no negligence was found on his part, and he was exonerated from the charges of medical negligence by the KMC.
5.4 I have perused the reports of District Medical Board at Ballari, the KMC, Bengaluru and three expert opinions on records. I have gone through Williams's Obstetrics (23rd Ed.) to know about peri-partum hysterectomy.
5.5 Admittedly, for the tertiary care, the patient was shifted in the early morning to BSK Hospital on the same day (09.08.2013). She was put on ventilatory support and ABG revealed metabolic acidosis. She was transfused two units of blood and two units of FFP. She was continued on higher antibiotics. The neuro protective measures were initiated but on 2nd day of admission, she had myoclonic jerks and proper treatment was started. Further she developed fever with copious endotracheal secretion, therefore, the higher antibiotic Meropeneium was started. In view of the anticipated prolonged recovery because of ventilator associated pneumonia and further need of expert care under neurologist and neurohabilitation, the patient was referred to the higher center Manipal Hospital, Bengaluru on 13.08.2013.
5.6 The operative notes are most crucial in the instant case. I have carefully perused the handwritten operative notes by OP-2 (Anx R-3). It is pertinent to note that it was posted for emergency LSCS, the preterm labour pains with foetal distress (FD). It was mentioned as Laparotomy done, extracted live male baby at 5.20 am. It is pertinent to note that the Intraoperative findings were "Blood in the peritoneal cavity, Scar dehiscence (+) and amniotic sac protruding thr' dehiscence." Therefore, firstly within no time the baby was extracted easily, it cried immediately, resuscitation was done by the Pediatrician. The placenta was densely adherent to uterus both in upper and lower segment. It was gently removed, still small bits were adherent, any attempt led to bleeding. The uterine artery ligation was done and proceeded with hysterectomy as the uterus was flabby. The BP started falling, informed the attendants. Blood was arranged and inotropes, crystlloids and colloids started. For assistance she called additional obstetrician and anesthetist. At about 6.45 am bleeding was completely arrested. Thereafter, completed the procedure by closure. Total 3 units of blood and 3 units of FFP were transfused. Thereafter, for vetilatory support shifted the patient to BKS Hospital.
5.7 I have perused the evidence of the Surgeon Dr. Mahesh Desai and other three experts. Dr. Mahesh Desai submitted that the patient presented with right upper abdominal pain and episodes of vomiting, bloating and not having passed stools since morning. It was also revealed that she had consumed oily, spicy food prior to falling ill. She also visited local government hospital. The clinical findings were suggestive of acute cholestasis or sealed of duodenal perforation. After the treatment the patient relieved of her symptoms of distension and improvement in BP and urine output. He submitted that the OP-2 followed the standard protocols while treating the patient.
5.8 The evidence of expert Dr. J. Shankar submitted that as fetal distress was observed. The LSCS was a choice of treatment. The uterine rupture/ scar/dehiscence was intraoperative finding and it was evident at the time of surgery. It was a catastrophic fatal complication. In the instant case, morbidly adherent placenta acreta was unexpected. Thus it was the main cause of dangerous intraoperative bleeding. The Sub-total hysterectomy was performed as a life saving measure for mother. The baby was shifted to NICU and the pediatrician properly took the care of new born. According to him, due to HIE the patient became in vegetative state despite all best efforts.
5.9 Evidence of Dr. Bala Bhaskar- The Anaesthetist He submitted that as per standard protocol and practice due to fetal distress emergency LSCS was performed by OP-2. The intraoperative bleeding was effectively managed with transfusion of blood, FFP and Haemaccel.
6. Conclusion:
Before concluding, let us briefly go through the sequence of events:
6.1 On 09.08.2013 at 1.00 a.m., due to severe abdominal pain, the patient was brought to OP-1. The OP-2 on examination started treatment and kept the patient under monitoring of labour progress. At about 4 a.m. OP 2 noticed drop in foetal heart rate, it was foetal distress. Therefore, OP 2 decided for emergency caesarean surgery and instructed her staff to prepare OT. She further called the paediatrician, anaesthesiologist and surgeon to be present. At about 5 a.m., the Anaesthetist - OP-3 administered spinal anaesthesia and this was later converted to general anaesthesia. It was maintained with 50:50% O2+N2O. And IV fluids, dopamine infusion followed by phenylephrine infusion also Haemaccel was given to improve BP. Simultaneously, sodium-bicarbonate was used to address metabolic acidosis. It is evident that Oxytocin and Methergin were given for uterine contraction. The pre-term baby was anaemic was treated by the Paediatrician in the NICU at Prithvi hospital. Intraoperative notes read as baby born pale & resuscitated by paediatrician. Thus, in my view, the decision of OP-2 was correct to perform C-section.
6.2 Secondly, in the instant case the allegation of failure to arrange blood as a precautionary measure before undertaking C-Section, will not sustain. From the record it is evident that it was an emergency and decided for C-section at 4.30 a.m. due to foetal distress (FHS falling to 110/min). However, the OP-2 performed laparotomy because of uterine rupture/ dehiscence. The operative finding clearly revealed large volume of blood intraperitoneally (supra 5.6). As OP-1 has informal tie up with Gopi Blood bank, sufficient blood was arranged. The transfusion was started by 7a.m. during operation itself. The OT notes and treatment details were maintained properly by the OP-2, it proves the reasonable standard of care. The OPs managed the hypoxic episode with O2 maintenance and transfusion of several units of blood and FFP. It should be borne in mind that in district & taluka hospitals both at private & government sectors face lot of difficulties in procuring blood. I have perused one reference article titled "Emergency Cesarean section and blood transfusions in patients with severe anaemia - Our experience"[2].
Thirdly, it was an emergency, the uterus was flabby (atonic), therefore to arrest further bleeding the OP-2 performed emergency Cesarean hysterectomy to save life of patient. Thus, in my view, the doctors acted promptly to save the life of patient and her new born. It was neither negligence nor dereliction in the duty of care from OPs. Also, the District Medical Board, the Karnataka Medical Council and NMC have held, there was no negligence.
This view dovetails from the judgment of Hon'ble Supreme Court in the case of Jacob Mathew v State of Punjab[3].
It is known that in a critical and emergent situation, the medical practitioner is always left between the devil and the deep sea where the decision to be taken then and there. The medical practitioner faced with such an emergency always tries his best to redeem the patient out of his suffering. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient.
6.4 In the same case, it was further held as under:-
"Negligence in the context of medical profession necessarily calls for a treatment with a 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."
6.5 In the C. P. Sreekumar (Dr) vs. S. Ramanujam[4] case, where it was observed that:
"Mere averments in the complaint, when denied, cannot be said to be evidence by which the case of complaint can be proved.
In the instant case, vague allegations were raised about non-issuance of ANC card, non-availability of blood, ambulance facility etc. Rather I would say the OPs arranged sufficient blood & FFP during emergency, the serious patient of scar dehiscence was managed efficiently and thereafter patient was referred to BSK Hospital and thereafter to Manipal Hospital. Thus, it was not an act of omission from the OPs.
6.6 In every case where the treatment is not successful or no complete cure or the patient dies during surgery, it cannot be automatically assumed that the doctor or hospital was negligent. This view fortifies from the case Devarakonda Suryasesha Mani v Care Hospital, Institute of Medical Sciences[5], it was held by Hon'ble Supreme Court as below:
"..2. Unless the appellants are able to establish before this 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 spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC. Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care."
7. Based on afore discussion, after going through the collective findings of District Medical Board, KMA and MCI, in my view the team of doctors has performed their duty as per the standard of care. The medical negligence is not conclusively attributable to the hospital (OP-1) and the treating doctors. The Complainants have failed to prove negligence. The Complaint accordingly stands dismissed.
The parties to bear their own costs.
[1] (1996) 2 SCC 634 [2] Journal of Dr. NTR University of Health Sciences 2013;2(4): 255-260 [3] (2005) 6 SCC 1 [4] (2009) 7 SCC 130 [5] IV (2022) CPJ 7 (SC) ........................................... DR. S.M. KANTIKAR PRESIDING MEMBER