State Consumer Disputes Redressal Commission
Smt.Preeti Baghel & Anr. vs Om Nursing Home & Anr. on 20 March, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/51
Instituted on : 01.10.2016
1. Smt. Preeti Baghel, Aged 27 years,
W/o Shri Nitesh Baghel,
R/o : D-22, 21 Bunglow, Gayatri Nagar,
Raipur (C.G.)
2. Audvik Baghel (Minor),
Aged about 1 year,
S/o Shri Nitesh Baghel,
Through : Next Friend Mother Smt. Preeti Baghel,
R/o : D-22, 21 Bunglow, Gayatri Nagar,
Raipur (C.G.) ... Complainants.
Vs.
1. Om Nursing Home,
Ashok Nagar, Seepat Road, Sarkanda,
Bilaspur (C.G.)
2. Dr. Usha Shende,
Om Nursing Home,
Ashok Nagar, Seepat Road, Sarkanda,
Bilaspur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, Advocate for the complainant.
Smt. Kavita Sandhu, Advocate, for the OPs along with the OPs.
ORDER
Dated : 20/03/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainants have filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
// 2 //
(a) The OPs may be directed to pay the compensation of Rs.90,00,000/- (Rupees Ninety Lakhs) to the complainants.
(b) The cost of the suit.
(c) Any other relief, which the Hon'ble Commission deems fit and proper may also be awarded.
2. Briefly stated the facts of the complaint of the complainant are that the complainant No.1 is the mother of Audvik Baghel (complainant No.2) and she is filing this complaint on her behalf and through her minor child Audvik Baghel. The O.P. No.1 is hospital working in the name of Om Nursing Home and O.P. No.2 Dr. Usha Shende, is a Doctor and owner of Om Nursing Home (O.P. No.1). The complainant No.1 took a pregnancy test on 14.10.2014 for the first time and it's result came to be positive. She was advised by the doctor to take Sonography and other tests which she took on 14.10.2014 and all reports were considered normal by doctor. Keeping in view the safe and healthy delivery and welfare of the child, complainant No.1 and her husband decided to get the delivery done in India in the care of their parents, so they came back to Raipur on 10.12.2014, at that time the complainant No.1 was having four months pregnancy. Immediately after reaching Raipur complainant No.1's husband took her for check up to a Gynaecologist in Raipur, who advised for Sonography. The reports were found to be normal. On 04.01.2015, // 3 // complainant No.1's husband went back to Dubai for his job. The parents of the complainant No.1 were residing at Bilaspur, so the complainant No.1 went to her parents' home at Bilaspur on 14.12.2014. The complainant No.1 sincerely took all the medicines prescribed by the doctors. After moving to Bilaspur, complainant went for a check up to Dr. Usha Shende (O.P. No.2) on her mother's advice. The doctor recommended certain tests which complainant No.1 underwent and reports for all tests, were found normal. On 15.01.2015, the complainant No.1 went for regular check up to O.P. No.2. Complainant No.1 sincerely followed her treatment and took all medicines prescribed by O.P. No.2. When complainant No.1 went to O.P. No.2 on the next date for check up, she checked the child and informed the complainant No.1 that is discontinuing the vitamin supplements from the prescription because the child is growing at a very fast pace. The due date for delivery predicted by the doctor in Dubai was 01.06.2015 and the due date predicted by O.P. No.2 was 31.05.2015. Complainant No.1' husband and her family were very excited about the child and they took all kinds of precautions and care before the delivery. The complainant No.1 was regularly in contact with O.P. No.2. On 30.05.2015, as the delivery date came, complainant No.1 went for a final check up to O.P. No.2. The doctor asked her to take a sonography and wait for two days for the delivery. On 31.05.2015 the complainant No.1 underwent sonography and took the // 4 // reports to O.P. No.2. The doctor informed complainant No.1 that there is a single loop (cord) around the neck of the baby about which she has informed earlier also after seeing the reports. The O.P. No.2 said it is not a cause of worry and there will be no problem in normal delivery of the child due to the single loop around the neck. She said all reports are normal. In the evening of 31.05.2015, the complainant suffered slight pain in her abdomen. She went to O.P. No.1 hospital for delivery on 01.06.2015 at around 7.30 A.M. in the morning. The complainant No.1 was taken to the labour room with the intent of getting a normal delivery and she was made to undergo labour pain from 10 A.m. to 1.30 P.M. The complainant No.1 was also administered some injections for the same. The complainant No.1 tried hard for normal delivery. During this time, the complainant No.1 was suffering unbearable pain and she asked the nurse to call for the doctor. The complainant No.1 requested that her operation be done, because she is not able to bear the pain more. The nurse approached O.P. No.2, but the doctor asked the nurse to let complainant No.1 try for some more time. That seeing complainantmNo.1's condition, her father, as well as mother approached O.P. No.2 to get the delivery done by operation, but the doctor refused to do an operation. The O.P. No.2 took complainant No.1's mother in the labour room and showed that the baby's head was coming out and the delivery will be done in the next five minutes.
// 5 // The complainant No.1's mother also told complainant No.1 that she could see the baby's hair. During this time, there was another patient in the labour room, who was going to deliver her second child and her condition was critical. The complainant No.1's baby had almost come out entirely, but O.P. No.2 left complainant No.1 in this condition and went to attend the other patient to get her delivery done first, which took about 20-25 minutes. During this entire time complainant No.1 kept screaming for an operation to be done for her delivery. When O.P. No.2 got back to complainant No.1, she realized that the baby was stuck and complainant No.1's condition had become serious. At about 1.30 P.M. the doctor instructed the nurse to take complainant No.1 to operation theatre. At this time complainant No.1 went through a horrifying experience. The complainant No.1 was taken to the operation theatre on the upper floor of the building in an unconscious condition, with the baby's head almost out, by making her climb the stairs. There were no prior arrangements made for the operation and another 15-20 minutes were wasted in making the arrangements for the operation. O.P. No.2 called somebody on the phone. Then the operation started at about 1.50 P.M. The child was delivered after operation, but she showed no movement. Dr. Pranay Andhare, who is a paediatrician was present during the operation and he took the child in his hands after delivery but the child neither cried nor moved. The complainant No.1's family members were not shown the child // 6 // property and he was entirely wrapped in cloth. The child was suffering breathing problems so O.P. No.2 called for ambulance and instructed the complainant's husband to take the child to a child speciality hospital. The complainant No.1's husband along with Dr. Andhare took the new born in the ambulance to Shishu Bhawan Hospital administering oxygen to him throughout the time. After reaching Shishu Bhawan the child was immediately put on ventilator. The senior Doctor at Shishu Bhawan Dr. Shrikant Giri informed the complainant's husband that the child's condition was critical; he had convulsions thrice and had suffered Hypoxia, a condition which occurs due to lack of supply of oxygen immediately after birth or during birth. On the next day, Dr. Giri got certain tests relating to the brain of child done. Seeing the reports, Dr. Giri informed that the child's brain was severely damages and the chances of his surviving were meagre. The complainant No.1's husband inquired about the weight of the child, then he got to know that O.P. No.2 has not prepared any records in relation to the birth of the child. The child was admitted in the I.C.U. of Shishu Bhawn Hospital from 01.06.2015 to 22.06.2015. The family members of the complainant No.1 requested the doctors to save the life of the child and that they were ready to do anything required towards that end. During this time complainant No.1, her husband, brothers and parents did everything possible for the good health and care of the child, all in the hope that the child will be // 7 // healthy. They had sleepless nights for a month and their day-do-day life was completely disturbed. On 04.06.2015 complainant No.1's family went to O.P. No.1 and asked her to tell them the truth behind the reason of the child's critical condition, because the child was healthy in the womb and complainant No.1 did not have any pre- pregnancy problems, the child's heart beat was also normal and complainant's health was always good during pregnancy. On being asked in a strong tone O.P. No.2 revealed that she saw single loop (cord) around the neck of the child in Sonography reports, but termed it as a normal scenario, however, during delivery she noticed two loops around the neck of the child due to which the delivery became complicated and the loop was tightened around the neck of the child when he was pulled out, causing hypoxia. She callously told them that loop around the neck is not a problem for normal deliveries and she usually gives effect to other deliveries with chord around the neck as normal delivery only. It is a prima facie case of gross negligence on part of O.P. No.2 to subject the client's child to such a risk. O.P. No.2 did not take any Sonography or Doppler test to know the situation of the loop around the neck on the day of the delivery. On the other hand, she pushed for normal delivery of the child having full knowledge about the fact that having a normal delivery posed a perceptible and probable risk to the life and health of the new born due to the presence of loop (cord) around the neck. She deliberately took // 8 // the risk even after knowing about the presence of the loop from the earlier Sonography reports of the complainant No.1. Hence, she was careless and negligent in her conduct and did not exercise the standard of care that is expected of a doctor. On 14.06.2015, the child was removed from ventilator and the MRI of his brain was done. After seeing the MRI Report, Dr. Giri was of the opinion that the child will be completely disable in the future. Being deeply disturbed by the MRI Reports of the child, complainant No.1 consulted a renowned Paediatric neurologist Dr. Ashish Aujla in Raipur. Dr. Aujla explained that due to lack of oxygen to the brain of the child for a long time during delivery irreparable damage was cause to the child's brain and therefore, the child is suffering from Cerebral Palsy and will be mentally and physically disabled in the future. He opined that the child will suffer some or all of the disorders of speech, vision, hearing, intellect, motor disabilities etc. He advised that there is no cure for this condition of the child and he will be permanently disabled throughout his life. The OPs are solely responsible for this condition of the child. The negligence and recklessness on OPs part has resulted in lifetime suffering of the child. The complainant No.2 will be dependent on somebody throughout his life for his day-do-day activities. The complainant No.2 will need constant assistance, care and treatment. The child's future seems very difficult and painful. Complainant and her husband will incur heavy expenses for the special requirement of // 9 // a completely disabled child. The complainant No.1's child (complainant No.2) is suffering and is not able to eat and for this a surgery is required for which complainant No.1 has consulted Dr. Ravindra of Hinduza Hospital, Mumbai where the surgery is to be conducted of the stomach and at the place of the neck will cost the expenses of near abut 4-5 lakhs. The operation of the complainant No's.1 child (complainant No.2) was conducted on 18th March, 2016 at Hinduza Hospital, Mumbai for the said problem. Because negligence committed by the O.P. No.1 & O.P. No.2, the complainant No.1 and her entire family and the child (complainant No.2) is suffering and for which OPs are responsible. The OPs have done the act against the medical profession and the act of the OPs comes under the category of deficiency in service and unfair trade practice. Hence, the complainant filed instant complaint and prayed for granting reliefs, as mentioned in relief clause of the complaint.
3. The OPs filed their written statement and raised preliminary objections and averred that the notice under reference is false, malafide and not sustainable in law as Complainant No.2 is not a consumer as contained in Section 2(1)(d) insofar as it relates to services and the definition of the expression 'service' contained in Section 2(1)(o) of the Consumer Protection Act, 1986. The complainant No.1 and her minor child (complainant No.2) both are having different legal entity. The liability of a doctor arises not when the patient has suffered any injury, // 10 // but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. The incomplete medical records filed with the complaint by the complainant No.1 reveals that the period prior to pregnancy and her first 12 weeks of pregnancy (most crucial period) to be from August, 2014 to November, 2014. She has spent this period in Dubai. Since the medical literature specks clearly that development, organo-genesis takes place in the first 12 weeks of pregnancy and many factors operating during these 12 weeks (first three months) of pregnancy can cause severe damage to developing branch which manifest later in the form of "cerebral palsy". Some of the factors enumerated from the vast list in medical literature are : (1) Iodine deficiency, (2) iron deficiency, (3) poor nutrition, (4) high fever, (5) infection, (6) exposure to radiations, smoke, drugs, environmental toxins. The reports from Dubai as regarding Complainant No.1's treatment, health status, needs to be obtained from the complainant No.1., this is mandatorily required to file the complete reply. The fact lies that the reports cannot be considered to be normal as interpreted by the complainant No.1 involving the OPs name on a false gesture. The OPs had all the times analyzed the various reports produced - barring the ones from Dubai, specially the Sonological studies which carry certain limitations and it does not reflect the "intellectual development" even when the report speaks the physical development to be normal. A normal USG report can never hamper // 11 // the possibility of manifestation of cerebral palsy at later stage, due to cerebral insult at one or the other stage of pregnancy. The complainant No.1 came to O.P. No.2 only after passing crucial period of 12 weeks (3 months) after getting the pregnancy. The O.P. No.2 never assured and neither said to the complainant No.1, or attendant, or to the relatives that " there is a single loop (cord) around the neck of the baby ... there will be no problem in normal delivery due to single loop around the neck". The USG report at all the time (31.05.2015) reveal "evidence of cord at fetus nuchal. The O.P. No.2 categorically explained the complainant No.1, attendant, relative that cord at 'fetus nuchal" meant that the loop of cord connecting the fetus to mother's womb was "back of neck" of the fetus and not encircling the neck of the fetus and not encircling the neck of the fetus as wrongly concluded by the complainant, however, also explained that this location can change at any time due to fetal development and its movement. The complainant is making a futile attempt to hide away certain facts with intention best known to her or to her adviser. Medical records clearly speaks of, with the committal from complainant No.1 that she started to have labour pains from even of 31.05.2015 and that she started to pass and has been having watery discharge - liquor (clear) from 4 AM onwards on 01.06.2015. The complainant No.1 reached O.P. No.1 at 07:30 A.M. Almost delaying the medical attention and care by more than 12 hours of pains and 3 ½ hours of leaking. It itself reflects the // 12 // negligent behaviour on the part of the complainant No.1 since it had been categorically explained to her by O.P. No.2 to establish a contact immediately under any such scenario. However, with the vast experience that the O.P. No.2 caries to her professional credit it was observed and concluded that with the progress of labour it was quite expected that normal delivery would give the outcome in this labour. The labour pains are severe of the severest pains and that a lady during her first labour (primi) fails to understand that after the turmoil's labour pains mother gives birth to a child and crux of suffering is born by mother herself and nobody else, and in the subsequent pregnancies, having the previous experience of labour pain, the anxiety and suffering leaves lesser impact. O.P. No.2 was vigilant and observant while attending the process of labour which the complainant was undergoing, along with the fetal well being and all vital signs for both. There was no cause of anxiety in the minds of O.P. No.2 with the vast experience that she carried as mother god. Hence, alone O.P. No.2 called in complainant No.1's mother and demonstrated inside the labour room that the dilation of cervix is adequate progressing effacing and thereby scalp hair of fetus became visible which were shown to the mother of complainant No.1, this has been admitted by the complainant No.1 in the complaint. The calling of the mother of complainant No.1 to the labour room reflects the clear heart of O.P. No.2 meaning thereby that the O.P. No.2 had full // 13 // confidence that the planned normal delivery would be successful. The O.P. No.2 has not left complainant No.1 to get done the delivery of another patient. It is blatant lie that the baby of complainant No.1 had "come out" almost completely or that anything like the "baby was stuck out" and that the O.P. No.2 said that the condition has gone serious. The O.P. No.2 has labour room with 2 labour tables and a team of assistants including efficient experienced staff and paediatrician present throughout during labour in all cases, this is by way of routine practice and principle at O.P. No.1. The consecutive delivery was going on hand in hand in the same room. There is no question that the O.P. No.2 left the complainant No.1 in lieu to attending another patient in labour process. The O.P. No.2 carried equal responsibilities towards the second patient on ethical, moral, medical grounds. The complainant No.1 kept rigid on her non-cooperation and failure to bear down which prevented the progress of otherwise normal labour. The allegations made that the head of the baby was also out while complainant No.1 was taken through stairs is a total blatant lie. Had the head of fetus come out, the process of delivery would have been completed. The complainant No.1 is trying to gather false, frivolous, vexatious sponsored litigation. The fact lies that the set up created by experienced O.P. No.2 within the O.P. No.1 carries certain norms in which the labour room, the operation theatre so also emergency drugs, staff, are present throughout, from the very minute patient in labour is // 14 // taken up in the hospital. Anesthetist, paediatrician are mandatorily made available on call for every case, as required. The normal justified practice adopted after caesarean sanction and when the new born failed to cry, with ill health the pediatircian made all efforts to revive and resuscitate and only thereafter with the consent of the husband and other attendants it was decided to shift the baby to pediatric NICU. The non-cooperation by the complainant No.1 during the labour, had made the havoc and the new born suffered adverse effects. At the LSCS, upon opening the uterus fresh thick meconium was found in liquor which until this stage was clear. It signified and denoted fetal distress of recent time, with Fetal Heart Rate (FHS for short) at 140 per minute carried no signs of the same when the complainant No.1 stopped to bear down. The O.P. No.2 has taken utmost care and expertise throughout the treatment showered upon complainant No.1 and 2, which alone lead the pregnancy to term also giving observation to all the signs and progress during delivery, attended throughout by the qualified, experience paediatrician which clearly depicts in the noting of APGAR SCORE at ONE MINTURE = 3/10 at FIVE MINUTRE = 4/10 and at TEN MINUTRE = 6/10.2. The new born was immediately handed over to the paediatrician at hand who started to deal emergency by intubating and carrying out other vital steps where arose the negligence in not recording the weight of new born at this minute. The baby was shifted in the ambulance by // 15 // the paediatrician with father of complainant no.2 to the NICU wherein all records pertaining to new born were prepared. The complainant is making effort to put bald allegations against the experienced O.P. No.2 who constantly was vouching the process of delivery. There was nothing that suggested that visualization of cord is necessary looking in lieu to previous Sonography reports and that an attempt to conduct Sonography on the table when law speaks that the Sonography machine is not to be made portable from the place of its registration. Same are said to be opinion from Dr. Giri. This opinion cannot be imposed on O.P. No.2's conducting meticulously delivery of complainant No.1. Since the findings of any MRI report / opinion from Dr. Giri cannot conclude that the cerebral insult is the result of the deficiency or negligent action of O.P. No.2 during the process of delivery. The MRI report quotes the date as 24.06.2016 with a overwriting. This report also has been mis-quoted by the complainant and her advisors. Findings are most consistent with severe hypoxia ischemic encephalopathy (multi cystic encephalomalacic changes). There has been no explanation brought on record / affidavit in the name of said Dr. Giri that damages that he predicts to be permanent is in any way carrying a nexus with meticulous care and observation showered by the O.P. No.2. The said report has been issued by Dr. C.D. Sahu of Bilaspur, MRI Centre and nowhere has it concluded that the said severe hypoxia ischemic encephalopathy is due to deficiency // 16 // or negligence on the part of O.P.No.2. The statement said to have been given by one another Dr. Aujla is merely on the basis of MRI report that lack of oxygen to the child's brain for a long time has created the said damage which nowhere reflects in the treatment record of the complainant No.1and that "this lack of oxygen for a long time to the child's brain is due to deficiency or negligence on the part of the O.P. No.2 the experienced obstetrician and gynaecologist of repute. The O.P. No.2 has adopted the standard practice as per sanctioned medical norms. There exists no nexus between the surgery conducted at Hinduja Hospital in Mumbai and the delivery conducted by O.P. No.2. No irreparable loss and injury have been caused to patient by the act of O.P. No.2. The complaint is liable to be dismissed with heavy costs for mental harassment and defamation of the OPs.
4. The complainants filed documents. Document A-1 is prescription of Aster Medical Centre, Dubai dated 26.11.2014, A-2 is Requisition Form of Aster Diagnostic Center dated 26.11.2014, A-3 is Invoice of Aster Medical Center dated 14.10.2014, A-4 is prescription of Om Nursing Home dated 18.12.2014, A-5 is Report of Thyrocare Technologies Ltd. dated 17.01.2015, A-6 is Report of Shruti Sonography dated 15.01.2015, A-7 is Report of Shruti Sonography dated 08.05.2015, A-8 is Discharge Card of Shri Institute of Child Health dated 28.06.2015, A-9 is Report of Bilaspur MRI Center dated 24.06.2015, A-10 is Kids Care Prescription of Dr. Ashish Singh dated // 17 // 10.07.2015, A-11 is Report of Gitanjali Diagnostic Centre dated 12.12.2014, A-12 is Prescription of Saxena Nursing Home dated 12.12.2014, A-13 is Report of Ganga Diagnostic and Medical Research Center dated 13.12.2014, A-14 is Report of Shruti Sonography dated 31.05.2015, A-15 is Report of Shri Institute of Child Health dated 02.06.2015, A-16 is Report of Ekta Diagnostic Center from 02.06.2015 to 17.06.2015, A-17 is Report of Shishu Bhawan dated 09.06.2015, A-18 is Report of Kids Care dated 22.01.2016, A-19 is Discharge Summary of Shri Narayana Hospital dated 11.02.2016, A-20 is Discharge Summary of P.D. Hinduja Hospital dated 15.03.2016, A-21 are bills of P.D. Hinduja Hospital, A-22 is letter of Dr. Ashish Singh to Dr. Brajeshj Udani, Hinduja Hospital, A-23 is Discharge Ticket of Ekta Institute of Child Health dated 03.04.2016, A-24 is Notice of the complainant's advocate to the OPs dated 20.04.2016, A-25 is postal receipt dated 22.04.2016, A-26 is reply of the Advocate of the OPs. The complainant also filed Certificates issued by Dr. Ashish Singh Aujla.
5. The OPs have filed documents. Annexure OP-1 is copy of medical Text Practical Pediatric Neurology by Veena Kalra, IInd Edition Arya Publication, Page 129-131, Annexure OP-2 is copy of medical record of the O.P. No.1 hospital, Annexure OP-3 is copy of Manual of Neo-Natal Care by J.P. Cloherty et al South Asian Edition, Wolter Kluwer Page 725-726, Annexure OP-4 is copy of Nelson Text Book of Pediatric Volume I, First South Asian Edition, Page 798, // 18 // Annexure OP-5 is copy of the medical literature Clinical pediatric neurology by GM Fenichel 6th Edition Page 282 Table 12-2, Annexure OP-6 is copy of the list as enshrined in Care of the New Born by Meharban Singh, 8th Edition page 110 CBS Publishers, Annexure OP-7 is coy of medical literature in Care of the New Born by Meharban Singh, 8th Edition, Page 116-117 CBS Publishers, Annexure OP-8 is copy of the medical literature Nelson's Text book paediatrics, 17th Edition, Page 566, 567, 2024, 2025 Elsevier.
6. Shri R.K. Bhawnani, learned counsel appearing for the complainants has argued that the complainant No.1 took a pregnancy test on 14.10.2014 for the first time and its result came to be positive. She was advised by the doctor to take Sonography and other tests. According to the advice given by the doctor Sonography and other tests were conducted. The complainant No.1 was taken to Gynaecologist in Raipur for check up who advised for Sonography. The complainant No.1's parents reside at Bilaspur, therefore, complainant No.1 went to Bilaspur. The complainant No.1 contacted O.P. No.2 for check up. O.P. No.2 recommended for certain test. The complainant No.1 got conducted certain tests. In the test it is found that all things are normal. The complainant No.1 went for regular check ups to O.P. No.2. The complainant No.1 sincerely followed the advice given by the O.P. No.2. On 31.05.2015, the complainant No.1 again underwent Sonography and took the reports to O.P. No.2. The // 19 // O.P. No.2 informed the complainant No.1 that there is a single loop (cord) around the neck of the baby about which she has informed earlier also after seeing the reports. The O.P. No.2 said that it is not a cause of worry and there will be no problem in normal delivery of the child due to the single loop around the neck. She said all reports are normal. In the evening of 31.5.2015, the complainant No.1 experienced slight pain in abdomen. The complainant No.1 went to the O.P. No.1 Hospital for delivery on 01.06.2015 at about 7.30 A.M. in the morning. The complainant No.1 was taken to the labour room with the intent of getting a normal delivery and she was and she was made to undergo labour pain from 10 A.M. to 1.30 P.M. She was also administered some injections for the same. The complainant No.1 tried hard for normal delivery. The complainant No.1 suffered unbearable pain and she asked the nurse to call for the doctor. She requested that her operation be done because she cannot bear the pain anymore. The nurse approached the O.P. No.2, but the O.P. No.2 asked the nurse to let complainant N.1 try for some more time. On seeing condition of the complainant No.1, her father and mother approached the O.P. No.2 to get the delivery done by operation, but the O.P. No.2 refused to do operation. The O.P. No.2 took the complainant No.1's mother in the labour room and showed that the baby's head was coming out and the delivery will be done in next five minutes. The complainant No.1's mother also told the complainant No.1 that she could see the baby's // 20 // hair. During this time there was another patient in labour room who was going to deliver her second child and her condition was critical. The complainant No.1's baby had almost come out entirely, but the O.P. No.1 left complainant No.1 in this condition and went to the other patient to get her delivery done first, which took about 20-25 minutes. When the O.P. No.2 came back to the complainant, she realized that the baby was stuck and complainant No.1's condition had become critical. The complainant No.1 was taken to the operation theatre on the upper floor of the building in unconscious condition with the baby's head almost out, by making her climb the stair. In the operation theatre, no prior arrangements were made for the operation and another 15-20 minutes were wasted in making the arrangements for the operation. The Operation started at about 1.50 P.M. The child was delivered, but there was no movement in the child. Dr. Pranay Andhare, who is a Paediatrician was present during the operation and he took the child in his hands after delivery but the child neither cried not moved. The complainant No.1's family members were not shown the child properly. The child was suffering from breathing problem. The child was shifted to Sghishu Bhawan Hospital where child was kept in ventilator. Dr. Shrikant Giri informed the complainant No.1's husband that the child's condition was critical, he had convulsions thrice and had suffered Hypoxia, which occurs due to lack of supply of oxygen immediately after birth or during birth. The O.P. No.2 has // 21 // not prepared any records in relation to the birth of the child and she deliberately caused delay to operate the child. MRI of newly born child was done and after seeing the MRI Report, Dr. Giri was of the opinion that the child will be completely disabled in the future. Dr. Ashish Aulja explained that due to the lack of oxygen to the brain of the child for a long time during delivery irreparable damage was caused to the child's brain . The child became disabled due to negligent act of the O.P. No.2, therefore, the O.P. No.2 committed medical negligence, hence, the complainants are entitled to get compensation from the OPs, as prayed by them in the complaint.
7. Smt. Kavita Sandhu, learned counsel appearing for the OPs has argued that the complainants have not adduced any cogent and reliable evidence regarding allegation of medical negligence. The expert report has not been filed by the complainants. It is the duty of the complainants to prove the allegation of medical negligence by adducing cogent and reliable evidence. The allegations made by the complainants is false, frivolous and baseless. Proper attention was given by the O.P. No.2 to the complainant No.1. The complainant No.1 was not supporting during the labour pains, had made the havoc and the new born baby suffered adverse effect. In the O.P. No.1 hospital, emergency drugs, staff are always present, from the very minute patient in labour is taken up in the hospital. The O.P. No.1 hospital is duly registered and approved with statutory government // 22 // body. Anesthetist, Pediatrician are mandatorily made available on call for every case, as required. It is not true that the complainant No.1 was taken to First Floor by climbing stairs. In the O.P. No.1 Hospital, there is labour room with two labour tables and a team of assistants including efficient experienced staff and paediatrician were present. The O.P. No.2 has properly done her duty and she is a skilled doctor. The opinion of Dr. Giri cannot be imposed on the O.P. No.2. The findings of any MRI report / opinion from Dr. Giri cannot conclude that the cerebral insult is the result of negligent act of the O.P. No.2 during the process of delivery. The medical text clearly speaks of multiple number of causes before pregnancy, during the pregnancy and after delivery. The date referred for MRI to have been done is 14.06.2016 is false. There is overwriting in the MRI report. There exists no nexus between the surgery conducted at Hinduja Hospital in Mumbai and the delivery conducted by the O.P. No.2. It was observed and concluded that with the progress of labour, it was quite expected that normal delivery would the outcome. The labour pains are severe of the severest pains and that a lady during her first labour (primi) fails to understand that after the turmoil's of labour pains mother gives birth to a child and crux of suffering is born by mother herself and nobody else, and in the subsequent pregnancies, having the previous experience of labour pain the anxiety and suffering leaves lesser impact. Many a times, a Primi mother shrieks and shouts // 23 // and pleads to get her out of labour pains anyhow, may it be through operation. The Obstetrician acts as "mother god" and takes the decision in the best interest of her patient. The mother in labour complainant No.1 refused to take up the plan of the O.P. No.2, so also turned down her own mother's pleading to "bear down" and this failure from complainant No.1's side made a delay in getting down the baby in the very last phase of normal labour, had the complainant No.1 co-operated and abided to the instructions and help given by the O.P. No.2, who never wanted the caesarean operation to be done on the complainant No.1, since the progress of labour was as per norms, all the more without any signs of fetal distress or anoxia. The O.P. No.2 was vigilant and observant while attending the process of labour which the complainant No.1 was undergoing, along with the fetal well being an all vital signs for both. There was no cause of anxiety in the O.P. No.2's mind with the vast experience that O.P. No.2 carried as mother god. Hence alone O.P. No.2 called complainant No.1's mother and demonstrated inside the labour room that the dilation of cervix is adequate progressing effacing and thereby scalp hair of fetus became visible which were shown to the mother of complainant No.1. This has been admitted by the complainant No.1 in the complaint. The call of the mother of the complainant No.1 to the labour room reflects O.P. No.2's clear heart, meaning thereby that the O.P. No.2 had full confidence that the planned normal delivery would be successful. But // 24 // the complainant kept rigid on her non-co-operation and failure to bear down which prevented the progress of otherwise normal labour. The complainants are trying to gather false allegations on no basis to create a false, frivolous, vexatious sponsored litigation. No irreparable loss and injury have been caused to the patient by the act of O.P. No.2. The test whether a doctor has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled doctor exercising and professing to have the special skill of a doctor. It is crystal clear that like light of the day, the O.P. No.2 did her duty with utmost care and caution, therefore, there is no question of medical negligence, unfair trade practice of deficiency. Complainants are not entitled for any compensation from the OPs. The notice set by the complainants is vague and reply thereof, was duly given by the OPs. The OPs are not liable for the health of the complainant No.2 and the complainant No.2 has been unnecessary made party in the complaint. The complainant No.2 is not "consumer" of the OPs. There have been no damages incurred to complainant No.1 as regards her health or married life or to the power to bear further children. The name of the treating doctor is Dr. Usha Shende but the instant complaint was filed against Dr. Usha Shinde showing carelessness and negligence on the part of complainant No.1 and unveils the sole motto to extort exorbitant amount of money. There is no nexus established between the // 25 // judicious and prompt treatment given by the O.P. No.2 and the assumptions is a mass of defamatory allegations and total blatant lie. The complainant No.1 has all the more abandoned advices and post delivery follow-ups. The complainants have produced this mass of incoherent facts in cryptic manner which is baseless, false, frivolous, vexatious used as tool to blackmail and extort money from the OPs, the O.P. No.1 is doctor of high repute and calibre. The complaint is liable to be dismissed.
8. We have heard learned counsel appearing for both the parties and have also perused the documents filed by them in the instant complaint. We have also perused the documents and affidavits filed by both the parties.
9. The OPs raised preliminary objection that the complainant No.2 is not a consumer of the OPs. The above contention of the OPs is not acceptable.
10. Definition of 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986, is as under:-
"(d) "consumer" means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does // 26 // not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];"
Explanation:- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;"
11. The complainant No.1 was admitted in the O.P. No.1 hospital for delivery and the delivery was done by the O.P. No.2. The complainant No.1 has made allegations against the O.P. No.2 that due to lack of care by the O.P. No.2, the complainant No.2 suffered permanent disability. The complainant No.1 is consumer of the OPs and the complainant No.2, is beneficiary, therefore, the complainant No.2 comes within purview of consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1961 and the dispute between the parties comes within consumer dispute.
12. According to the complainants, the complainant No.1 did not bear labour pain more, then she requested the nurse to call the O.P. No.2, but the O.P. No.2 told the mother of the complainant No.1 to // 27 // wait for some minutes and normal delivery would be done and she refused to deliver through cesarean. When the baby was delivered, his condition was critical, then he was taken to Shishu Bhawan by ambulance and Dr. Pranay Andhare himself took the new born baby in Shishu Bhawan. On examination of the baby, Dr. Shrikant Giri, who is a Senior Expert Pediatrician told that the condition of the newly born baby is critical and he had convulsions thrice and had suffered Hypoxia, which occurs due to lack of supply of oxygen immediately after birth or during birth.
13. Annexure A-5 is Report of Arogyam - Thyrocare Technologies Limited, in which it is mentioned thus :-
"Test Name Method Value Units ALPHA FETO PROTEIN (AFP) C.L.I.A. 33.1 IU/ml Pregnancy : Week Range Week Range 14th : 10.41 - 49.40 18th : 19.26 - 91.51 15th : 13.11 - 57.08 19th : 23.26 - 101.80 16th : 15.12 - 64.45 20th : 28.05 - 125.85 17th : 17.72 - 76.11 21st : 33.30 - 92.75
Lange Ph, McIntire Kr, Waldmann Ta, Et Al. Serum Alpha-Fetoprotein and Human Chrionic Gonadotropin in the diabnosis and management of Nonsemininomatous Germ-Cell testicular cancer. N Engl. J Med 1976; 295 :
1237 -40.
Interpretation The rapid rise in HCG Serum levels after conception makes it an excellent marker for early confirmation and no pregnancy. HCG levels can be useful // 28 // in prediction of spontaneous abortions. Aiding in the detection of ectopic and multiple gestation. For diagnostic purpose, Results should always be assessed in conjunction with the past history, clinical examination and other findings."
14. The Report dated 16.01.2015 of Arogyam Thyrocare Technologies Limited is annexed at page No.24 of the record, in which it is mentioned thus :
"Statistically the result of the triple test is NEGATIVE. But Age Risk is 1 : 1286 Trisomy is Screening - The risk is < 1 : 10000 Statistically there is NO RISK indication for Trisomy 18 Neural tube Defects screening - The risk is < 1 : 10000 Statistically there is NO RISK indication for spina bifida or anencephaly."
15. The Sonography Report issued by Shruti Sonography, is marked as Annexure A-7, in which it is mentioned thus :-
"IMPRESSION : A SINGLE LIVE INTRAUTERINE FETUS WITH AVERAGE GA 36 WEEKS 0 DAYS WITH CEPHALIC PRESENTATION.
SINGLE LOOP OF CORD AT FETUS NUCHAL.
US EDD 05/06/2015."
16. The Annexure A-8 is NEONATAL DISCHARGE CARD issued by Shri Institute of Child Health (Shishu Bhawan). In the above // 29 // Discharge Card, the diagnosis is FT with A& D with BAHIE III with MAS with ....."
17. The MRI Report dated 24.06.2015 issued by Bilaspur MRI Center, is marked d as Annexure A-9, in which it is mentioned thus :-
"IMPRESSION :
1. Bilateral cerebral hemispheric severe atrophy with extensive sub-
cortical cyts, deep white matter atrophy with signal abnormality and bilateral basal ganglia atrophy. Findings are most consistent with severe hypoxic ischemic encephalopathy (multicystic encephaIomaIacic changes-high energy failure status".
18. The Report of Ganga Diagnostic & Medical Research Centre (P) Ltd. dated 13.12.2014, is marked as Annexure A-13, in which it is mentioned thus :-
"USG OBSTETRICS This study helps only to assess fetal well being (appx gestation age by USG, fetal weight, fetal position, liquor & placental location & grade) & should not be considered as malformation / anomaly scan. IMPRESSION :-
Single live intra - urine gestation of mean gestational of 16 weeks 0 day (+ 2 wks) in CEPHALIC presentation at the time of scan."
// 30 //
19. The Sonography Report dated 31.05.2015 issued by Shruti Sonography, is marked as Annexure A-14, in which it is mentioned thus :-
"IMPRESSION : A SINGLE LIVE INTRAUTERINE FETUS SEEN WITH AVERAGE GA 38 WEEKS 3 DAYS WITH CEPHALIC PRESENTATION.
SINGLE LOOP OF CORD AT FETUS NUCHAL.
US EDD 11/06/2015."
20. The Report of Shri Institute of Child Health Dated 02.06.2015, is marked as Annexure A-15, in which it is mentioned thus :-
"USG CRANIUM Normal brian parenchyma.
Normal ventricular system.
Hyperechoic lesion noted in bilateral caudothalamic groove.
Normal posterior fossa.
Soft tissue edema noted in parito - occipital scalp. IMPRESSION :
GRADE 1 HEMORRHAGE IN BILATERAL
CAUDOTHALAMIC GROOVE.
CAPUT FORMATION IN PARITO - OCCIPITAL
SCALP."
21. The Report dated 09.06.2015 issued by Shri Institute of Child Health, is annexed at page No.40 in the record, in which it is mentioned thus :-
// 31 // "IMPRESSION :- MILD COMMUNICATING HYDROCEPHALUS."
22. The Report dated 22.01.2016 issued by Kidscare Paediatric Neurology Centre, Raipur, is marked as Annexure A-18, in which it is mentioned thus :-
"EEG REPORT Awake EEG was done with 10-20 electrode placement. The background is frontally dominant alpha mixed with beta activity. There are frequent discharges seen from frontal regions bilaterally, there are associated with eye blinking. Photic stimulation was not contributory. Conclusion :
Frequent focal discharges seen arising from frontal region bilaterally. Clinically these are associated with eye blinking."
23. The Discharge Summary dated 11.02.2016, issued by Shree Narayana Hospital, Raipur is marked as Annexure A-19, in which it is mentioned thus :-
"Date of Admission : 09.02.2016 05:16 PM
Date of Discharge : 11.02.2016 01:34 PM.
Principal Diagnosis : CP WITH GLOBAL
DEVELOPMENTAL DELAY WITH
VIRAL CROUP."
// 32 //
24. The Discharge Summary Card dated 15.03.2016 issued by P.D. Hinduja National Hospital & Medical Research Centre, Mumbai, is marked as Annexure A-20, in which it is mentioned thus :
"FINAL DIAGNOSIS :
Hiatus hernia Operative Title & Date :
Laparoscopic hiatal hernia repair + 360o fundoplication + gastrostomy under general anesthesia done by Dr. Ravindra Ramadwar on 18/03/2016.
CHIEF COMPLAINTS & HISTORY :
The patient admitted with history of perinatal asphyxia with history of HIE ? microcephaly. Mother gives history of regurgitation of the feed greater over the last 1 month. History of respiratory distress following the regurgitation of feeds. History of delayed milestone with failure to thrive, barium marked dilated esophagus, hiatus with abnormal gastroesophageal junction is far away.
PRE-OP COURSE : The patient is referred to Dr. V. Udani for his delayed milestone and microcephaly neurological side as well as Dr. Sooni Udani for surgical fitness. Surgical fitness was obtained.
OPERATIVE PROCEDURE & DATE :
Laparoscopic hiatal hernia repair + 360o foundoplication + gastrostomy under general anesthesia done by Dr. Ravindra Ramadwar on 18.03.2016.
Procedure : Under general anesthesia, with all aseptic precautions, parts prepared and draped, 5 mm port at umbilical site and small 3 mm port at 4 different site over the anterior abdominal wall. Hiatus // 33 // hernia identified. The content of stomach and sac pulled down then slowly dissected around the gastroesophageal junction preserving the vagus nerve and vessel. Nerve and vessel around the gastroesophageal junction. Right and left crest of diaphragm identified.
Large hernia sac is dissected and excised down. Hiatus closed with 3-0 Ethibond suture with interrupted suture, not tight as instrument was not able to pass.
Foundoplication done - 360o stomach rupture, few stitches at the upper part of stomach.
Gastrostomy done on left side of the anterior abdomen wall with purse string sutures and 16 Fr. Foley's catheter placed in situe. Hemostasis achieved. Skin closure done with 4-0 Monocryl. Steri Strips applied. Dressing done. The patient tolerated operation well."
25. The complainants have filed Certificate issued by Dr. Ashish Singh Ahujla in which it is mentioned thus :-
"Audvik Baghel, 1.5 year / M is under my care for severe asphyxia sequelae. He has guadriplegic cerebral palsy. He also suffers from resistant epilepsy.
He had operation for stomach herniation in chest cavity and presentaly partially fed through gastrostomy tube. Audvik's seiures are control presentaly with multi antiepileptic drugs. He is undergoing regular physiotherapy, vision and speech therapy. He requires round the clock monitoring and support. Please do not hesitate to contact me if you require further information."
// 34 //
26. The complainants have filed another Certificate issued by Dr. Ashish Singh Aujla, in which it is mentioned thus :-
"Audvik Baghel, 1 year 6 months / M is under my care for physiotherapy. He has quadriplegic cerebral palsy and resistant epilepsy.
He has partial neck control. He tries to reach for familial faces. He initiates rolling. He is unable to sit or stand without support. He needs long term special specialized care."
27. The Annexure OP-1 is literature on Practical Paediatric Neurology, in which it is mentioned thus :
"What is Cerebral Palsy ?
It is not a specific disease, but a symptom complex. Encompassing a group of non-progressive but often changing motor impairment syndromes characterized by abnormalities of movement, posture and tone.
It is caused by a wide varieties of developmental, genetic, metabolic, infectious or ischemic illnesses resulting in above mentioned phenotype.
It is often secondary to an insult of limited duration or anomalies of the brain arising in the early stages of development (viz prenatal, intranatal, neonatal and post neonatal upto 5 yrs). A large majority have features suggesting a prenatal cause. Maternal infections, chorioamniotis, urinary tract infections, release inflammatory cytokines resulting in damage. Perinatal asphyxia is still an important cause in developing countries. Extreme low birth weight and prematurity are important cause of oxidative stress in the vulnerable white matter.
// 35 // Though static the clinical picture evolves and deficits may increased. Variable deficits of intelligence, speech and vision may coexist."
Role of birth asphyxia
- The extent to which asphyxia is responsible for cerebral palsy is debated but certain it is not as important a cause as thought previously.
- .....
Diplegia :
- Commonly seen in babies born preterm with associated problems of intraventricular haemorrhage and periventricular leucomalacia.
- The entire body is affected, though the involvement of the lower limb and trunk is much more than the upper limbs.
- Increased adductor tone and scissoring is seen in infancy.
- Later in life ambulatory problems occur.
- Mentation is usually preserved.
- Seizures are uncommon."
28. The complainants have specifically pleaded that seeing complainant No.1's condition, her father as well as mother approached O.P.No.2 to get the delivery done by operation, but the Doctor refused to do operation. She took complainant No.1's mother in labour room and showed that the baby's head was coming out and the delivery will be done in next five minutes. The complainant No.1's mother also told complainant No.1 that she could see the baby's hair. In para 20 it has been pleaded that during this time there was another patient in the // 36 // labour room, who was going to deliver her second child and her condition was critical. When the O.P. No.2 left the complainant No.1, at that time her baby (complainant No.2) had almost come out entirely, but O.P. No.2 left complainant No.1 in this condition and went to the other patient to get her delivery done first and the complainant No.1 waited 20-25 minutes. The same was supported by affidavit of the complainant No.1 as well as her mother. The complainant No.1 has also filed her additional affidavit and affidavit of Smt. Shashikala Bhardwaj, who is mother of the complainant No.1.
29. A medical practitioner would be liable only where his conduct falls below that of standards of reasonable competent practitioner in his field. The true position that an error of the doctor may or may not be dispense on the another error. The term "negligence " has construed when a legal duty to exercise 'due care' on the part of the doctor, breach of the said duty and consequential damage. If the doctor does not give immediate treatment when required, it comes within medical negligence.
30. In the instant case, looking to the pleadings and affidavits filed by the complainants, it appears that the complainant No.1 did not bear labour pain more. The complainant No.1 and her mother requested the O.P. No.2 for cesarean, but the O.P. No.2 did not give response to their request. According to the complainants, the complainant No.1 was taken in the operation theatre by climbing // 37 // stairs. In reply to question No.11, the O.P. No.2 gave her answer that "The normal justified practice adopted after cesarean section and when the new born failed to cry, with ill health the paediatrician made all efforts to revive and resuscitate and only thereafter with the consent of the husband and other attendants, it was decided to shift the baby to pediatric NICU. The non-co-operation by complainant No.1 during the labour, had made the havoc and the new born suffered adverse effects. At the LSCS, upon opening the uterus fresh thick meconium was found in liquor which until this stage was clear." It appears that O.P. No.2 waited for normal delivery instead of conducting Cesarean. Looking to Report of Dr. Shrikant Giri and MRI Report, the child will be completely disabled in future due to lack of oxygen. Looking to document Annexure A-20, it appears that the child was admitted in the P.D. Hinduja National Hospital and Medical Research Centre, Mumbai with history of perinatal axphyxia with history of HIE. Looking to the Discharge Summary / Card of P.D. Hinjuja National Hospital and Medical Research Centre and MRI report of Dr. Shrikant Giri, it appears that due to lack oxygen to the brain of the child for a long time, the child suffered from cerebral palsy and will be physically and mentally disabled in future. According to the complainants, the complainant No.1, her mother and father, requested the O.P. No.2 for cesarean, but the O.P. No.2 did not give any response to their request and told to wait for some minutes. The head of the baby was stuck.
// 38 // Had the O.P. No.2 immediately took the complainant No.1 in operation theatre for cesarean operation, probably, there would be no lack of oxygen. The baby was stuck for a long period, therefore, there was lack of oxygen. The O.P. No.2 did not care for child, therefore, the act of the O.P. No.2 comes within purview of medical negligence.
31. The complainants have prayed for granting total compensation of Rs.90,00,000/- (Rupees Ninety Lakhs), which includes Rs.10,00,000/- towards cost of treatment incurred after delivery of child, Rs.72,00,000/- (Rupees Seventy Two Lakhs) for personal attendant required by the child throughout his life, Rs.3,00,000/- (Rupees Three lakhs) towards consultation charges and Rs.5,00,000/- (Rupees Five Lakhs) for costs for tests, check ups, annual CT Scan and other medical expenses. The complainants have filed some bills, but the complainants have not been able to proved that they paid Rs.10,00,000/- towards treatment and Rs.3,00,000/- towards consultation fees. It is established that the complainant No.2 will be completely disabled. Looking to the facts and circumstances of the case and the disability of the child (complainant No.2), it is just and proper to award a lump sum amount of Rs.8,00,000/- (Rupees Eight Lakhs) to the complainants from the OPs.
32. In view of the above discussions, we partly allow the complaint filed by the complainants and it is directed that :-
// 39 //
(i) The OPs will jointly and severally pay a sum of Rs.8,00,000/-
(Rupees Eight Lakhs) towards compensation to the complainants within two months from the date of this order, along with simple interest @ 9% p.a., on the above amount from the date of filing of the complaint i.e. 01.10.2016 till realisation.
(ii) The OPs will also jointly and severally pay a sum of Rs.12,000/- (Rupees Twelve Thousand) towards cost of litigation to the complainants.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
20/03/2017 20/03/2017 20/03/2017