State Consumer Disputes Redressal Commission
Tirath Ram Shah Charitable Hospital vs Kamini Yadav on 25 September, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 25.09.2008 First Appeal No.52/2006 (Arising from the order dated 19.12.2005 passed by District Forum(North) Tis Hazari Court, Delhi in Complaint Case No.185/2003) Tirath Ram Shah Charitable Hospital . Appellant No.2, Battery Lane, Rajpura Road Delhi Versus Smt. Kamini Yadav, Respondent Through Sh. Mukesh Kumar, 565, Makhimpura, Sabji Mandi Ghantaghar, Delhi. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. On account of having delayed the operation for delivery of the child resulting in the death of the child, the appellant has been held guilty for medical negligence and directed to pay Rs.1,00,000/- as compensation to the respondent besides Rs.5,000/- as cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. Impugned order has been assailed mainly on the ground that the child was attended to immediately and in most of such cases the death of the child cannot be avoided after delivery.
4. The allegations of the respondent leading to the impugned order in brief were that on 03.04.2002 the CGHS doctors checked the respondent and told her about the pregnancy and referred to the appellant hospital. The doctors at the appellant hospital after examination found every thing all right and to come on 9th month for further check up. On 14.09.2002 the respondent was admitted to appellant hospital with severe pain of pregnancy. The doctors examined the respondent and found the respondent and the baby in normal condition. On 15.09.2002 at 2.00 clock the doctors informed the husband of the respondent that a minor surgical operation is required and took the signatures of her husband for the same. Till 4O clock doctors did not take any action for the abnormal circumstances. At 5.00 PM she was taken for the operation and a baby was born. The baby survived for 24 hour and after that the baby suddenly died. At the request and advice of the doctors the husband of the respondent has put his signatures on the permission for the operation at 2O clock but till 4O clock there was no doctor in the hospital and at 5O clock suddenly they took the decision for the operation. Due to the negligence of the appellant the baby did not survive and the respondent have to suffer the loss of the baby a well as her position became critical. The respondent approached the Forum for redressal of her grievance.
5. In reply the appellant admitted the death of the child but not due to negligence of staff in any manner in rendering medical services to the respondent or to the deceased baby. Version of the appellant is that Smt. Kamini Yadav who was in the family way had been attending the antenatal clinic of the appellant hospital and was checked regularly by Senior Consultant Dr.(Mrs.) S. Budhiraja. The patient had second pregnancy (had a missed abortion). On 15.09.2002 she was brought to the hospital with the complaint of discharge PV (par vagina), PV is normal. She was admitted at 2.20 A.M. and was examined. It was found that her cervix was soft, OS was 1 finger and her pelvis was adequate. FHS was 140, BP of the mother was 140/80. At 9.00 AM Dr. Budhiraja examined the patient and found that the patient was in the early stage of labour. At 11.00 AM the patient had mild contractions and pains, the FHS was still 140, there was no leaking. At 1.00 PM the patient had mild to moderate pains and at 2.25 PM, the pain got stronger and an internal check up was repeated. OS was found to be 304 cms. Therefore ARM was done. It was found in liquor (amniotic saliva) was stained with meconium and it was stained with the stool of the baby, Dr. Budhiraja advised that the patient should be prepared for a caesarean. She also advised that the patient should be started on oxygen and the patient should be put on the left lateral position. Intravenous Ringer Lactate (given to the mother to improve blood flow to baby) CTG had to be done. Foetal ECG is recorded by placing a CTG machine on the uterus of the mother. CTG was found to be within normal limits. The Sr. consultant arrived and examined the patient at 3.15 PM. Due to presence of meconium it was necessary to conduct caesarean. It indicated that the baby was in some distress inside the uterus. Anaesthetist was informed. Sr. Consultant ordered to prepare the operation theatre for conducting caesarean section. The patient was prepared for anaesthesia. The attendants of the patient were explained the condition of patient, surgery, risk, involved both to the mother and the child. The consent of the complainant was taken at 4.00 PM. Sr. Aenesthetis Dr. Kavita Sinha took the decision to give spinal anaesthesia to the patient. This I an injection given in the spinal cord. Mrs. Kamini was on full stomach and general anaesthesia could not be given. After administering anaesthesia the patient was put on the supine position and the surgery was done by Dr. S. Budhiraja. At the time of operation the consultant Paediatrician attended the caesarean. At 5.05 PM the baby was delivered and handed over to paediatrician. The liquor was stained with thick meconium and a loop of cord was present around the neck of the foetus. This could have been a cause of foetal distress and passing of mecomium which was not within the control of the hospital. Thick meconium was removed. Physical stimulation and artificial bag and mask ventilation was given after that breathing and cry was established.
6. It is further pleaded that no further steps were to be taken. All the staff and consultants did their very best. Thereafter the baby was shifted to NICU due to tactypnae and respiratory distress. As the baby continued to appear sluggish and had a weak cry, it was put 0on I.V. Fluid, antibiotic, nebulisation, in addition to all routine care. The difficulty in respiration was due to possibility of intake of meconium by the baby, while inside the uterus which was beyond the control of appellant and its taff. The condition of the baby deteriorating. The father of the baby was informed of the serious condition. A chest x-ray was carried out which showed haziness of both the lung fields. Thereafter a fall in oxygen saturation was observed and the baby developed massive blood stained secretion from the mouth with increase in breathing difficulty, cyanosis and unconsciousness. An endotracheal tube was inserted which confirmed that the blood was originating from the respiratory tract. Artificial breath was started. The baby continued to deteriorated with falling oxygen saturation and heart rate and expired at 05.40 PM despite all resuscitative efforts. The death was due to intrauterine aspiration.
7. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para
8.02)
8. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
10. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did 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.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
11. We have perused the entire medical record, which shows that the patient was admitted in the intervening night of 14th and 15th September 20002 at 2.20 AM. She was immediately examined and it was found that her cervix was soft, OS was 1 finger and her pelvis was adequate. Foetal heart sound (FSH) was 140 while the range for the same is 120-160. BP of the mother was 140/80. Dr. Budhiraja, the senor consultant gynaecologist, was informed at 3.30 am itself that the respondent/patient had been admitted. The OS indicated that she was not yet in labour. On the same day at 9.00 AM, Dr. Budhiraja came to the hospital and examined the patient are indicated in the patients history sheet. It was found that the cervix was 30-40% effaced and that the patient was in the early stage of labour. Thereafter at 11.00 AM the patient had mild contraction and pains. The Foetal Heart Sound (FHS) was still at 1.40 and there was no leaking. The same is recorded in the patients history sheets.
12. At 1.00 PM the patient had mild to moderate pains and the FHS increased to 144. At 2.45 PM the pain got stronger and an internal check-up was repeated because the pain was stronger. At this stage, OS was found to be 3-4 cms. Therefore, an artificial Rupture of Membrane (ARM) was done, it was found that the liquor was stained with meconium (amniotic fluid is known as liquor) and it was stained with the stool of the baby. The same is indicated in the patients progress sheet which form part of the hospital records which was filed before the District Forum.
13. Admittedly the baby was born at 5.05 PM and handed over to Paediatrician and crying induced after suctioning and resuscitation for about a minute. The liquor at the operation was stained with thick meconium and a loop of cord was present around the neck of the foetus. This could have been a cause for foetal distress and passing of meconium which was not within the control of the appellant hospital. Immediately after the birth, suctioning of Nasopharynx and Trachea was done under direct laryngoscopic vision and thick meconium was removed. Since no cry was thereafter noted, physical stimulation and artificial bag and mask ventilation was given approximately for one minute. After that spontaneous breathing and cry was established.
14. Now the question arises, whether this situation was creation of delay in operation or not.
15. As is apparent the main cause of death was that the liquor was found stained with thick meconium and a loop cord was present around the neck of the foetus , resulting in foetal distress and passing of meconium.
16. The aforesaid condition of the child, which was immediately informed by the junior doctor. Delay is writ large particularly in view of the emergent condition of the child as once the ARM revealed that the liquor was stained with meconium and also stained with the stool of the baby, the operation should have been performed without any delay or loss of time. The inordinate delay is inexcusable and amounts to deficiency in service or lack of time in management.
17. Appellant hospital cannot escape from the charge of negligence or deficiency in service which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service.
18. As to the concept of compensation the Supreme Court in case after case and lately in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, has held that compensation encompasses in its fold each and every component of sufferings say mental agony, harassment, physical discomfort, injustice done to the consumer. The observation of the Supreme Court are terse and are as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
19. Foregoing reason persuade us to dismiss the appeal being devoid of merit. The order shall be complied with within one month from the date of receipt of this order.
20. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
21. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 25nd day of September 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri