State Consumer Disputes Redressal Commission
Female Baby Kashifa Anjum vs Dr. H.L. Mahendra, Medical Director on 11 October, 2023
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/190/2013 ( Date of Filing : 30 Oct 2013 ) 1. Female Baby Kashifa Anjum Aged 1 year 11 months, No. 77/A, 8th Cross, Bapuji Nagar, A Block, Shimoga 577201 Minor baby rep. by her parents 2. Mrs. Asma Kaousar Aged about 28 years, No. 77/A, 8th Cross, Bapuji Nagar, A Block, Shimoga 577201 3. Athique Ahamed S/o. Basha Sab Aged about 36 years, No. 77/A, 8th Cross, Bapuji Nagar, A Block, Shimoga 577201 . ...........Complainant(s) Versus 1. Dr. H.L. Mahendra, Medical Director Vivekananda Hospital & Maternity Home, Tilak Nagar, Shimoga . 2. Dr. H. Shamalabai, Gynaecologist Respondents No. 2 to 5 are working under the Respondent No. 1 Medical Director, Vivekananda Hospital, Shimoga . 3. Dr. H. Hungund, Anaesthetist 2 to 5 are working under the Respondent No. 1 Medical Director, Vivekananda Hospital, Shimoga . 4. Dr. Vijayshree, Duty Doctor Respondents No. 2 to 5 are working under the Respondent No. 1 Medical Director, Vivekananda Hospital, Shimoga 5. Dr. Dakshayani, Duty Doctor Respondents No. 2 to 5 are working under the Respondent No. 1 Medical Director, Vivekananda Hospital, Shimoga ............Opp.Party(s) BEFORE: HON'BLE MR. Ravishankar PRESIDING MEMBER HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER PRESENT: Dated : 11 Oct 2023 Final Order / Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH) CONSUMER COMPLAINT NO.190/2013 DATED THIS THE 11th DAY OF OCTOBER, 2023 PRESENT SRI RAVI SHANKAR, JUDICIAL MEMBER SMT. SUNITA C.BAGEWADI, LADY MEMBER 1. Female Baby Kashifa Anjum Aged 1 years 11 months, No.77/A, 8th Cross, Bapuji Nagar, "A" Block, ... Complainant/s Shimoga - 577 201 2. Mrs.Asma Kaousar Aged about 28 years No.77/A, 8th Cross, Bapuji Nagar, "A" Block, Shimoga - 577 201 Minor baby represented by her parents 3. Mr.Athique Ahamed S/o Basha Sab, Rtd. Engineer Aged about 36 years No.77/A, 8th Cross, Bapuji Nagar, "A" Block, Shimoga - 577 201 (By Sri.Maria Satish Kumar, GPA holder of complainants) -Verses- 1. Dr.H.L.Mahendra, Medical Director, Vivekananda Hospital and Maternity Home, Tilak Nagar, Shivamogga .. Respondent/s 2. Dr. H.Shamalabai, Gynaecologist, 3. Dr.H.Hungund, Anaesthetist, 4. Dr.Vijayshree, Duty Doctor, 5. Dr.Dakshayani, Duty Doctor, Respondents No.2 to 5 are Working under the Respondent No.1 Medical Director, Vivekananda Hospital and Maternity Home, Tilak Nagar, Shimoga (OP No.1-By Sri.Dasharath.T.M, Advocate) (OP Nos.2 & 3- By Sri.Sateesh Chandra.K.V., Advocate) (OP Nos.4 & 5-Notice duly served - Absent) O R D E R
BY SRI.RAVISHANKAR, JUDICIAL MEMBER This complaint is filed by the complainant against the Opposite Party Nos.1 to 5 alleging medical negligence and claimed for compensation to the tune of Rs.99,00,000/- for damages arising from Permanent Brain Damage due to Birth Injury along with other relief as deemed fit, in the interest of justice and equity.
2. The brief fact of the complaint is that, the patient Asma Kaousar was a pregnant mother who followed up with Dr.H.Shamalabai during the Antenatal period and for the delivery. All the reports during the Antenatal Period including ultrasound showed a perfectly normal baby foetus during the Antenatal period.
The complainants further alleged that on the unfortunate day of 30-10-2011, Asma Kaousar got admitted in Vivekananda Hospital at 1.00 p.m. after developing Labour Contractions and Labour Pains, there has been PERJURY in submitting various contradictory medical records suggesting that Dr.Vijayshree was on day duty and that Dr.Dakshyani was on night duty on 30-10-2011. The treating specialist doctor came only on 31-10-2011 at 7.45 a.m. and found that the labour was obstructed and the patient was posted for operation of caesarian section. Because of the prolonged labour of about 20 hours, the patient Asma Kaousar's life was put at risk and the baby developed BIRTH ASPHYXIA which is solely and directly because of the gross negligence due to neglecting the patient for more than 20 hours without Gynaecologist specialist doctor's visits.
The complainants further alleged that, the doctors in Vivekananda Hospital subjected the patients to a lot of inconvenience by transferring and referring the newborn baby to Neonatal ICU in Vaatsalya Hospital. The baby was on ventilator for 3 days and thereafter once the baby was fit for discharge, was immediately placed along with the mother who was in Vivekananda Hospital.
The complainants further alleged that, the patients have availed of the services of antenatal care, delivery (obstetric care) and care of newborn in Vivekananda hospital in 2011. The kind and nature of service was specialist and super specialist care. The date of availing of service was mainly from 30-10-2011 and 31-10-2011 and thereafter follow-up care. The services rendered by the hospital have been paid in full and as fee for service. The amount paid as price, consideration paid in full towards the service is as Vivekananda hospital Rs.40,670/- and Vivekananda hospital (medicines) Rs.10,373.50. The amount paid for treatment in other hospitals is Vaatsalya hospital Rs.15,143/-; Vaatsalya Hospital (Medicines) Rs.5,229.59 and RPC Medicines Rs.2,753.28. The complainants pray for dispensation from production of the photocopies of the bill/cash memo/voucher or receipt.
The complainants further alleged that despite paying the free-for-service in full and the lives of an expectant mother and a foetus have been subjected to risk of death by non-attendance of a Specialist Gynaecology Doctor for more than 20 hours. After 20 hours, the patient was told that the labour was obstructed and the baby has SUFFERED PERMANENT AND IRREVERSIBLE BRAIN DAMAGE because of the delay in conducted delivery for obstructed labour. Hence there is deficiency of service, which is directly related to cerebral palsy and Birth Asphyxia of newborn baby.
The complainants further alleged that the Opposite Parties have committed perjury, tampering with medical records, forgery to conceal evidence of professional medical negligence and deficiency of service. Karnataka Medical Council is conducting enquiry registered as ENQ/34/2013 related to professional negligence and violation of code of medical ethics.
The complainants further alleged that the baby Kashifa Anjum will not be able to enjoy life as a perfectly normal human being during her life and will require life-long medical attention in the form of physiotherapy and rehabilitation. The perfectly normal baby has been rendered in a permanent vegetative state because of delay in specialist attending to the patient for obstructive labour from 30-10-2011. The complainants have their doubts whether the hospital has the appropriate licence and registration including registration under Karnataka Private Medical Establishment Act (KPME Act). The complainants claim a nominal relief of Rs.99,00,000/- for the damages for Permanent Brain Damages of a newborn baby which will not be sufficient for lifelong medical care and rehabilitation. Therefore, pass the suitable orders awarding compensation to the tune of Rs.99,00,000/-to the complainants towards medical negligence on the part of the Opposite Parties. Hence, this complaint.
3. After service of notice, the Opposite Party No.1 appeared through their counsel and filed version and contended that, the 1st Opposite Party is Vivekananda Hospital and Maternity Home situated in centre of the Shimoga City. The hospital has been established more than 30 years back and they are giving good services to their customers in and around Shimoga city and Malnad people in the rural areas. The hospital is equipped with highly qualified Doctors, Physicians and Paramedical Staff. The hospital equipped with very good equipments and upto date medical data. The hospital hitherto has not received any complaints from the general public or any blames. The hospital is one of the recognized and well established hospitals. The hospital has not received any complaint from their patients and or from government officials and authorities. The hospital is having 24 hours services to the public and also maintains decent and decorum of the medical profession.
The 1st Opposite Party Dr.H.L.Mahendra is the Medical Director of the Vivekananda Hospital and Maternity Home, he is a qualified doctor and also highly experienced in his Profession in Paediatric.
The 2nd Opposite Party Dr.H.Shamalabai who is an Obstetrician and Gynaecologist and also well versed in her profession. She has been in the profession as doctor since about 30 years.
The 3rd Opposite Party is Dr.B.G.Hungund who is an Anaesthetist who is also a well experienced doctor. The hospital is having Orthopaedic Surgeons, Physicians, Neurologists, ENT Surgeons, Paediatrician and other Paramedical staff. The hospital is provided with more than 30 beds and they have been cleanly maintained by the Opposite Party authorities and the Opposite Parties are giving very good service to the public in Shimoga city.
The 1st Opposite Party further contended that the complainants alleged the allegation that Smt.Asma Kaousar on 30-10-2011 got admitted in Vivekananda Hospital at 1.00 p.m. after contractions and labour pains and there was absolutely no medical attentions and patients were totally neglected and later the doctor came on 31-10-2011 at 7.45 a.m. and found that the labour was obstructed and posted for caesarian section because of the prolonged labour of about 20 hours the patient was put to risk and the baby developed birth asphyxia solely because of the gross negligence due to neglecting the patient for more than 20 hours without a doctor visit. After the birth of the child the parents were subjected to lot of inconvenience including referral and stay in Neonatal ICU in another hospital where mother was serious in Vivekananda Hospital, the new born baby shifted to Vaatsalya Hospital immediately. Due to this gross negligence permutation period Asma Kaousar leading to risk to life of mother and birth Asphyxia to baby of Asma Kaousar leading to permanent brain damage to an innocent child. At the time of admission of Asma Kaousar the ultra sound showed a perfectly normal baby fetus during the antenatal period under these facts of the case. The OPs strongly denied the gross medical negligence.
The 1st Opposite Party further contended that Smt.Asma Kaousar was admitted in Vivekananda Hospital, Shimoga on 30-10-2011 the complaints of mild back ache the patient was admitted at about 2 p.m. had no labour pain at the time of admission. The patient was earlier being examined regularly by the 1st Opposite Party only after 6 to 7 months and the ultra sound report of the patient dated 30.10.2011 reveals a single live fetus in cephalic presentation with no obvious anomalies and growth corresponded to 34-36 weeks with fetal head circumference of 32 centimeters as on 30-10-2011. Her last menstrual period was 26.1.2011 and Shamalabai, OT staff, Anaesthetist and Paediatrician were informed and prepared for the surgery. A live female child was extracted on 31-10-2011 at 10.05 a.m. the child was immediately handed over to the pediatrician.
The 1st Opposite Party further contended that at birth the child had weak cry, with cyanosis and the entire body surface covered with thick muconeum stained liquid. The Apgar score of the child was 3 to 4 and within few seconds of birth, the child was transferred to the resuscitation unit with radiant warmer and oxygen was given and suctioning was done to clear the airways. Ambu bag resuscitation with bag and mask ventilation and oxygen flow was done and air ways were cleared. The condition of the child improved after the aforesaid steps were taken by the paediatrician i.e. 3rd Opposite Party. After the child started breathing slowly, endotracheal tube was inserted to remove secretions and it was observed that the secretion was mixed with meconium. This was an indication that the child has suffered from aspiration pnuemonitis due to muconeum aspiration syndrome. The child was also given a stomach wash through oral cavity by 8 Gauge Ryle's tube with 1:1 normal saline and kept warm, given oxygen and IV fluids. However since the child's condition was deteriorating 30 to 40 minutes after birth, it was decided that it would be prudent to shift the child to Vaatsalya Hospital as Vivekananda hospital did not have facilities of neonatal ventilator in case required. The attendants were counseled regarding the high risk due to meconium aspiration syndrome and the child was shifted to Vaatsalya Hospital wrapped in an embrace warmer along with Amboo bag and oxygen. All the resuscitative measures taken in respect of the child were by a Senior Paediatrician. The 1st Opposite Party with about 30 years of experience and all these events have been documented in the case sheets.
The 1st Opposite Party further contended that on 5-11-2011 the child was brought back by the attenders from against medical advice from Vaatsalya Hospital to Vivekananda hospital. The child was admitted on humanitarian grounds and was treated under the advice of the neonatologists of Vaatsalya hospital who visited the child at Vivekananda hospital and has recorded on 6-11-2011 by Dr.Dhananjaya Sarji, Medical Superintendent, Vaatsalya Hospital and also by Dr.Manu, on 8-11-2011. In discharge on 8-11-2011 since baby had Muconcum Aspiration Syndrome and Dr.Dhananjaya had ordered to give IV antibiotics through umbelcal vein for few more days and inspite of that Attenders went against, medical advice from Vivekananda hospital and later on the baby was not brought back to Vivekananda hospital and probably baby might have developed some complications after discharge and they did not bother to get the umbelical vein catheter removed even after discharge and also they did not bother to get antibiotics through umbelical vein for few more days since the pneumonia treatment shall be continued for a minimum period of 2 weeks and the chest x-rays taken at Malnad Diagnostic Centre reveal bilateral patchy pnuemonitis. However, after discharge on 8-11-2011, the child was never brought back to the hospital even for routine immunization and only after the lapse of 1 ½ to 2 years this complaint has been filed alleging that the child is suffering from cerebral palsy.
The 1st Opposite Party further contended that none of the OPs herein have acted with negligence. All the measures taken by the OPs is in line with well documented medical practice and of the standard expected of any medical professional with reasonable skill. The problems suffered by the child at the time of birth were due to a condition called meconium aspiration syndrome which is not attributable to any negligence by doctors. Further more in this case, the passage of inutero meconium was completely not detectable since membranes were intact and muconeum might have passed by the foetus few hours before delivery due to abnormal position of deep transverse arrest and non descent of head of baby towards the brim of pelvis at symphysis pubis which usually takes place after cervix dilatation of more than 10cms during second stage of labour, which might not be possible in this case due to deep transverse arrest of the head with anterior frontanella placed transversely and there is no rotation of the head which makes the baby to lie in partially oblique position which might be the cause in this case. However after birth all necessary measures were taken to resuscitate the child and she was not fully fit for discharge at that time from Vivekananda Hospital and only because of the request by the attenders patient was discharged along with the child and they were telling that we cannot pay hospital bill any more since they had already spend some amount at Vaatsalya hospital for the baby. The cause for cerebral palsy if existing in the child, cannot be commented upon by the OPs since they have no knowledge of the condition of the child after discharge from the hospital and whether and what kind of treatment has been administered to the child since then is also not within our limits.
The 1st Opposite Party further denied that the patient was admitted at 1.00 p.m. on 30-1-2011 with labour pain. The patient was admitted at 2.00 p.m. and was not in labour and only had complains of mild back pain. It is absolutely false to state that there was no medical attention. The patient and foetus were being continuously monitored by the 4th and 5th Opposite Parties, clinical assistants and staff nurses on duty under the supervision of the 2nd Opposite Party.
The 1st Opposite Party further denied that the testing doctor found that the labour was obstructed and if so the patient would have had severe pain and absence of FHS. The 2nd Opposite Party after having waited for progress of labour, decided at about 9.00 a.m. on 31-10-2011 to conduct LCCS, it is also false that the patient had prolonged labour for about 20 hours and in such case rupture of uterus would have taken place. Even as at 6.45 a.m. on 31-10-2011 the dilation of the cervix was only 2-3 centimeters, where as in a patient in full labour the dilatation will be about 8 to 10cms with full effacement as in 2nd stage of labour, it is because there was no progress in labour and patient had not reached 2nd stage of labour that the 2nd Opposite Party decides to conduct LSCS mainly due to deep transverse arrest which persisted in occipito posterior instead of rotation to occipito anterior with anterior fountanecae in transverse position during pervaginal findings. It is further denied that the parents were put to any inconvenient. The child was shifted to Vaatsalya hospital in her best interest and to prevent any adverse consequences since Vivekananda hospital did not have facilities such as ventilator and all measures taken to shift the baby with E.T. Tube and Amboo bag with oxygen. Therefore these OPs considered it their responsibility to shift the child to Vaatsalya hospital where there were facilities such as Neonatal ICU and ventilator. On the other hand without any care or concern for the well being of the child, the complainants for reasons best known to them, shifted the child from Vaatsalya hospital against medical advice. The averment that the parents have spent a lot of money for rehabilitation and taking many opinions for cerebral palsy due to birth Asphyxia is not within the knowledge of these Opposite Parties and it is denied. The averments that the Opposite Parties have tampered with medical records are also completely false and denied. It is reiterated that the Opposite Parties have not been negligent in giving the treatment of the patient and the child.
The 1st Opposite Party further contended that references to the Opposite Parties are perpetrators or abettors inappropriate and baseless and Vivekananda hospital's bill for Asma Kaousar from 30-10-2011 to 5-11-2011 was Rs.16,210/- and not Rs.40,670/- as stated by the complainants. The actual hospital bills of Asma Kaousar are as follows;
IP No.1518 Date of Admission: 30.10.2011 Bill No.1587 Date of Discharge: 05.11.2011 1. Ward Charges - General 6X200= 1200.00 2. Nursing charges-General 6X100= 600.00 3. Registration/Admission 100.00 4. Major Operation Theater charges 3500.00 5. Anaesthesia materials 850.00 6. OT Assistance charges 600.00 7. Operation charges for Dr.Shamalabai 6500.00 8. Anaesthetist Dr.Hungund 1200.00 9. Specialists visiting charges 500.00 10. Duty Doctors charges 360.00 11. Others: Paediatrician charges and Warmer charges 800.00 Total Rs. 16210.00 Advance Rs.10000.00 Balance Rs. 6210.00
Baby of Asma Kaousar's bill for 4 days from 5.11 to 8.11 will be produced at a later stage and drugs and medicines bills would be around Rs.3500/- and not Rs.10373.50 as stated by them.
The 1st Opposite Party further contended it has been by the Hon'ble Supreme Court in a catena of cases that to prosecute a medical professional's negligence, it must be shown that the practitioner did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary sense and prudence would have done or failed to do. Doctors performing their duties and exercising an ordinary degree of professional skills and competence cannot be held guilty of negligence. Having regard to the facts of this case, it cannot be said that the Opposite Parties herein did something or failed to do something which in the given facts and circumstances no medical professional in is ordinary sense and prudence would have done or failed to do.
The 1st Opposite Party further contended that the doctors were not attending the patient on 30-10-2011, but the case sheet summary discloses all details of the treatment. According to the complainant, she was admitted on 30-10-2011 at about 1.00 p.m. for a back ache. Later, the senior medical doctor Dr.Mahendra.H.L, who was also on duty in the nursing home for all cases, made a check up of the patient at 2.30 p.m. and entered in case sheet that she was not in labour.
Dr.Vijayashree, Clinical Assistant observed the patient at 3.00 p.m. and also entered in the case sheet that findings were that of cervix admitting only 1 finger and FHS normal.
At 4.30 p.m. once again treated by the clinical assistant and findings were same with BP=130/80 and FHS = 140/mt and P/V findings same and cervix admitting only 1 finger.
Dr.Mahendra treated at 6.30 p.m. and also informed Dr.Shamalabai that the findings were that of FHR = 136/mt, uterus had no contractions and pervaginal findings showed only 1 finger dilation of cervix of the patient.
By 8.00 p.m. Dr.Shamalabai telephonically advised to give treatment and also getting all the information about the patient over phone, wherein the uterine contractions were on and off. P/V moderate show + and Membranes were intact and Dr.Shamalabai was engaged in some in some other duty of patient. But in this case there was no high fever or sepsis or exhaustion or severe pain abdomen and there will no uterine contractions at all and forms BANDL's RING between upper and lower uterine ligaments.
By 8.20 p.m. Dr.Mahendra once again enquired the patient. She complained of mild backache only and she had no labour pain and all the reports are documented in case sheet. In obstructed labour features of maternal exhaustion and sepsis with fever persists and may lead to rupture of uteru, if left like that.
On 31.10.2011 at 7.45 a.m. some drips have been given on the advice of Dr.Shamalabai like 5 units of syntocinon with dextrose at 9.30 a.m. the 2nd Opposite Party Smt.Shamalabai decided to take the LSCS at 9.30 a.m. after the operation within a minute the child had low cry at birth. Then the staff nurse and Pediatrician gave oxygen to the child. Immediately after LSCS after suctioning through mouth with wide bore catheter and entire body covered with thick muconeum liquid and the paediatrician and the 1st Opposite Party took the baby, immediately to resuscitation unit and amboo bag fixed with oxygen source and resusertation continued for few seconds and since the Apagar score was 4 to 5 at the end of 1 to 2 minutes, Endotracheal tube was passed and routine oxygen continued with bag and mask ventilation and inspite of that child started deteriorating and the pediatrician decided to shift to baby along with ET tube and oxygen to Vaatsalya hospital and doctors from Vaatsalya hospital gave visits to Vivekananda hospital. In spite of telling them to continue treatment. At the time of discharging, the Opposite Parties instructed to complainant to bring the baby for check up every week, since the baby was suffering from muconeum aspiration syndrome. But the complainant was not turned to the Opposite Parties hospital anytime after discharge.
The 1st Opposite Party further contended that the birth asphyxia of the child, but they have not produced any cogent evidence or expert opinion. In the absence of expert's opinion or oral evidence of experts, the complainant cannot allege the gross negligence on the part of the Opposite Parties, as the Opposite Parties have taken due care and treated the baby and patient with utmost care and caution. Under these circumstances the complainant has failed to establish that the child was suffering from birth asphyxia and all other allegations are concocted and are all false allegations and the doctors have acted in time and treated both mother and child with good intention only. At last the Opposite Parties want to recall the judgment of Karnataka Medical Council in which there is only warning for the 1st Opposite Party for having appointed unqualified doctors and for other Opposite Party Nos.2 and 3 they were only given warning to renew their registration certificates and there is no word of negligence in any time during the treatment of the patient Asma Kaousar and Baby of Asma Kaousar and at least there is a comment for the 2nd Opposite Party there is warning for her negligence during the admission of the patient Asma Kaousar, but she was attending for her old aged mother's health in some other place and hence she could not come and see the patient during admission, since she was not in labour. Hence the Opposite Parties prays to dismiss the complaint, in the interest of justice and equity.
4. The Opposite Party Nos.2 and 3 appeared through their counsel. But, despite granting sufficient opportunities, the Opposite Party No.2 and 3 not filed their version.
5. Notice on Opposite Party Nos. 4 & 5 duly served called out absent, hence, placed exparte.
6. The complainants filed affidavit evidence and marked documents as Exs.C1 to C53. The GPA holder of the complainants files affidavit evidence of expert evidence of Dr.Savio Pereira. The 1st Opposite Party filed affidavit evidence with documents and also filed affidavit evidence of Dr.C.G.Raghavedra Vailaya as RW1 and Dr.C.R.Shubha Vailaya as RW2.
The GPA holder of complainant filed interrogatories on behalf of complainants to RW-1 Dr.C.G.Raghavedra Vailaya. The 1st Opposite Party filed interrogatories to be answered by Dr.Savio Pereira witness of the complainants. The GPA holder of complainants files reply to interrogatories by Dr.Savio Pereira, expert evidence of complainants.
One Dr.Dhananjaya.S.R, filed Chief Examination of Affidavit evidence along with documents. The GPA holder of complainant filed interrogatories to witness of Dr.Dhananjaya Sarji, along with copy of documents. Dr.Dhananjaya S.R, answered the interrogatories of complainant.
7. We have heard the arguments from both sides.
8. On perusal, the following points will arise for our consideration;
(1) Whether the complainants have proved medical negligence on the part of Opposite Parties?
(2) Whether the complainants are entitled to the reliefs as sought?
(3) What order? 9. The findings to the above points are; (1) In the negative (2) In the negative (3) As per final order R E A S O N S Point Nos. (1) & (2):
10. The complainants alleged medical negligence against the doctors at the 1st Opposite Party hospital delay in conducting the delivery for obstructed labour, the baby has suffered Permanent and Irreversible Brain Damage due to Birth Injury which resulted in Cerebral Palsy and Birth Asphyxia have claimed a compensation to the tune of Rs.99,00,000/-.
11. On perusal of the pleadings, versions, affidavit evidence, interrogatories and documents produced by both the parties that, on 30-10-2011 Smt.Asma Kaousar admitted to Vivekananda Hospital at 1.00 p.m. since she developed labour pain. After the admission of Smt.Asma Kaousar, it is alleged that for a long 20 hours they have not taken any measures to deliver the baby and there is prolonged labour of about 20 hours, due to which the baby suffered Birth Asphyxia and due to said Birth Asphyxia, she suffered Cerebral Palsy, it is only due to negligence on the part of the 1st Opposite Party doctors for prolonged labour, the baby suffered disablement, hence, prays for compensation as stated above.
12. On the contrary, the Opposite Parties have taken contention in their version and affidavit that, though Smt.Asma Kaousar admitted on 31-10-2011, it was noticed that she had only suffered some back pain and not labour pain, she was continuously observed by the duty doctor one Dr.Vijayashree and Dr.Dakshayani on the whole night, since there was no such labour pain was noticed, they have informed the 2nd Opposite Party/Dr.H.Shamalabai who is the Gynaecologist. Subsequently on 30-10-2011 the 2nd Opposite Party visited Smt.Asma Kaousar and noticing there was no any such labour pain and expected date of delivery was given on 2-11-2011, they have proceeded to conduct Ceasarean Section delivery accordingly the baby was extracted where it was noticed that the baby was in able to respirates properly as normal and it was diagnosed that a muconeum aspiration syndrome. As per the precaution these Opposite Parties sent Smt.Asma Kousar and baby to the Vaatsalya Hospital for better treatment, where we noticed that the baby was treated as Muconeum Aspiration Syndrome.
13. The complainant further alleged that due to prolonged labour the baby suffered Birth Asphyxia and due to which she suffered Cerebral Palsy as per the expert opinion given by one Dr.Savio Pereira and claimed for compensation.
14. We noticed here that the complaint was filed after lapse of one and half to two years alleging medical negligence. The complainant basically alleges that there was prolonged labour upto 20 hours which resulted in Birth Asphyxia. We are of the opinion that when there is a prolonged labour was noticed the said non occurrence of labour pain cannot be attributed as a medical negligence on the part of doctors who had performed Ceasarean Section delivery. The affidavit sworn by Dr.Shamalabai clearly established that at the time admission i.e. on 30-10-2011 there was single live fetus in cephalic presentation with no obvious anomalies growth upto 34-36 weeks with fetal head circumference of 32cmt and it was noticed that there are only dilatation of the cervix only 2 to 3cmt, where the patient in full labour requires dilatation upto 8 to 10cmt with a full effacement as in the 2nd stage of labour. It was also noticed that the patient was not reached the 2nd stage of labour where at that stage; the 2nd Opposite Party had decided to conduct a Lower Segment Ceasarean Section (LSCS), only due to deep transverse arrest which persisted in occipito posterior instead of rotation to occipito anterior with anterior fountanecae in transverse position during pervaginal findings. We are of the opinion that the patient herself was not set ready for delivery even at the 2nd stage of labour, the doctors cannot be compel to proceed with normal delivery. The 2nd Opposite Party had rightly opted for LSCS procedure for delivery only on 31-10-2011 at 6.45 a.m. and accordingly the baby gave birth through Ceasarean section delivery. When the baby suffers birth asphyxia the reason for the said cannot be attributed as negligence on the side of the 2nd Opposite Party doctor. The 2nd Opposite Party doctor after the delivery and rightly noticed that the breathing problem in the baby, immediately the same was informed and sent to Vaatsalya hospital for better treatment by the child specialist. The evidence of the doctors does not disclose the negligence on the part of the 2nd Opposite Party doctor and other doctors.
15. The complainant had tendered affidavit evidence of one Dr.Savio Pereira on his side; the said affidavit evidence is not going to be considered as expert opinion, because this Commission has not appointed any expert to obtain any opinion. Even on perusal of the affidavit and interrogatories, it is noticed that the doctor has given opinion that, there is prolonged labour upto 20 hours. Even for the sake of arguments, if there is prolonged labour upto 20 hours that cannot be called as negligence on the part of the 2nd Opposite Party who performed Ceasarean Section surgery for extraction of the baby. Further we noticed that the matter was referred to Karnataka Medical Council (KMC) to give their opinion. Accordingly after enquiry, the Karnataka Medical Council has pointed out only negligence on the part of the 2nd Opposite Party doctor for the reason that she was not present at the time of admission of the patient/ Smt.Asama Kaousar. Mere non-presence of the 2nd Opposite Party at the time of admission not amounts to any negligence or medical dereliction on the part of the 2nd Opposite Party. It is very clear that at the time of admission Smt.Asama Kaousar had not suffered any labour pain, she had only a back pain which is not amounts to stage one labour pain. The periodical observation clearly goes to show that the baby was not set ready for delivery and the Karnataka Medical Council also not given any wording with respect to negligence on the part of the 2nd Opposite Party while performing Ceasarean Section delivery of the baby. The procedure adopted by the doctors at 1st Opposite Party hospital not against to the any professional ethics. Further we are of the opinion that the matter was again sent to Indian Medical Council for further opinion. The Indian Medical Council also not given any opinion with respect to the professional/ medical negligence on the part of the 2nd Opposite Party, except violation of professional ethic i.e. non-production of the documents within prescribed time. In the absence of any opinion with respect to the medical negligence on the part of the 2nd Opposite Party, we cannot conclude that merely the baby developed Birth Asphyxia during Caesarian Section delivery amounts to medical negligence on the part of the 2nd Opposite Party doctor.
16. On perusal of the affidavit evidence and interrogatories produced by the Dr.C.G.Raghavendra Vailaya and Dr.C.R.Shubha Vailaya, it is clear that there is no medical negligence on the part of the 2nd Opposite Party. The complainant has not explained before this Commission that why he had filed a complaint after lapse of 1 ½ to 2 years. Further the complainant has not specifically alleged medical negligence against the 1st Opposite Party doctors. The affidavit evidence sworn by the complainant merely establishes that the baby suffered Birth Asphyxia and due to prolonged labour. As per the medical literature there may be chances of prolonged labour due to in a proper position of the baby in the womb for delivery and also growth of the fetal head circumference of 32cmt and even dilatation of cervix only 2 to 3cmt. The required position for delivery was not traced out on 30.10.2011 at the time of admission of the patient/Smt.Asma Kaousar. Such being the case there is a prolonged labour, the said prolonged labour not amounts to medical negligence on the part of the Opposite Parties. As per the medical literature the prolonged labour may be upto 20 hours and if within that period the baby was not delivered, the option left to the treating doctor is to conduct LSCS procedure for delivery of the baby. The said procedure was adopted by the treating doctor in the 1st Opposite Party hospital. Hence, we found there is no any medical negligence on the part of the Opposite Parties. The complainant baselessly alleges medical negligence on the part of the 2nd Opposite Party for prolonged labour. It is well established that, when there is prolonged labour, the baby may suffer birth asphyxia. The said complication cannot be attributed on the part of the Opposite Parties as alleged by the complainants. The reasons for Cerebral Palsy was not properly explained by the complainants in their affidavit, even the doctors who have sworn affidavit was also not explained a proper reasons Cerebral Palsy.
17. On perusal of the affidavit of Dr.Dhananjaya.S.R, who had sworn that the baby was not having endotracheal tube and was having spontaneous respiration with respiratory rate of 56/min. They have provided Ambu Bag during transport; the said documents were not documented in the records. In the interrogatories is clearly mentioned that they have provided ventilation to the baby in view of persistent respiratory distress. The baby was hemodynamically stable and they have provided IV fluids through umbilical venous catheter and also they have provided incubation when they have noticed Meconium Aspiration Syndrome. It is regularized procedure to be adopted when they have noticed Meconium Aspiration Syndrome. When the baby suffered Meconium Aspiration Syndrome inside the womb itself that cannot be considered as medical negligence, viewing from any angle, we noticed there is no any other medical negligence on the part of the Opposite Party doctors. The complainants failed to establish any specific medical negligence on the part of the 2nd Opposite Party, except not present at the time of admission. Mere none presence of the doctors at the time of admission not amounts to any medical negligence. The duty doctor noticed the patient had not under labour pain at the time of admission, when such being the case, the presence of the treating doctor is not required. We are of the opinion that, the doctors also have some personal inconvenience and also they have got their own duties to perform beyond professional duties. Dr.Shamalabai has sworn affidavit that at the time of admission she had been to some other hospitals for taking care of her mother. Hence, the said submission is not sufficient to say that she is not negligence in attending the complainant and conducting Ceasarean Section procedure for delivery of the baby. Though the complainant had produced documents which are marked as Ex.C1 to C50 are not sufficient to establish medical negligence on the part of the Opposite Parties. The entire documents does not disclose any medical negligence on the part of the treating doctors of the 1st Opposite Party hospital. Hence, we are of the opinion that, the complainants are not entitled to get any compensation as claimed in the complaint. Accordingly, the complaint is liable to be dismissed.
18. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R The complaint filed by the complainants is hereby dismissed. No order as to cost.
Send a copy of this order to both parties.
Lady Member Judicial Member Jrk/- [HON'BLE MR. Ravishankar] PRESIDING MEMBER [HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi] MEMBER