National Consumer Disputes Redressal
Baby Geetha And Ors. vs Cosmopolitan Hospitals (P) Ltd. And ... on 18 May, 2006
Equivalent citations: 3(2006)CPJ89(NC)
ORDER
Rajyalakshmi Rao, Member
1. This case reveals to what extent there can be deficiency in service by the medical practitioner.
2. This appeal is filed against the judgment and order dated 28th January, 1997 passed by the Kerala State Consumer Disputes Redressal Commission in Complaint No. 232 of 1991, whereby the complaint alleging deficiency in service and medical negligence against the respondents, was dismissed. Hence, the appeal.
3. Brief facts of the case are:
The first appellant, Baby Geetha (Naveen), is the son of Mrs. Geetha Shibu Thomas and Mr. Shibu Thomas, appellant Nos. 2 and 3 respectively. The appellants' case is that the appellant No. 1 was born at the Cosmopolitan Hospital (P) Ltd., Thiruvananthapuram, respondent No. 1, on 13.12.1989 under the care of respondent No. 2, Dr. M. Subhadra Nair. Consultant Obstetrician and Gynaecologist and respondent No. 3, Dr. G.R. Nandkumar, Consultant Pediatrician. Appellant No. 2 was pregnant and was expecting her first baby and, therefore, visited respondent No. 2 on 13.11.1989. Respondent No. 2 Dr. Nair told her that the expected date of delivery is 6th December, 1989. The appellant No. 2 again visited Dr. Nair on 1st December. Appellant No. 2 did not develop any labour pain on the expected date, i.e., 6th December. She, therefore, visited Dr. Nair once again on 8th December and on her advice she got herself admitted in the hospital (respondent No. 1).
4. As the appellant No. 2 did not develop any labour pain till 10th December, on 11th December the doctor induced labour by administering pitocin drip. Pitocin is a synthetic drug equivalent of the naturally occurring hormone oxytocin which causes uterine contraction and is used to induce labour when a pregnant mother is overdue. In spite of pitocin drip, the appellant No. 2 did not develop labour pain. As such, on 13th December, Pitocin drip was repeated at 6.30 a.m. and at 8.15 a.m. the patient developed only very mild labour pain. Hence, another induced method namely Artificial Rupture of Membrane (ARM) was done and the doctor predicted that delivery would take place only after 12 noon. At about 12.35 p.m. on the 13th December, appellant No. 2 delivered the child.
5. It is the contention of the appellant that after the birth of the child, even though the mother complained about the incessant crying of the baby, tremors and jerks of the baby, baby not sucking, etc., to the doctor, no attention was paid. On the third day of delivery, i.e., on 16th, the mother and the child were discharged noting in the case sheet that it is normal delivery. However, within 16 hours after discharge from the hospital, i.e., on the 17th December, 1989, the child had to be rushed back to the hospital with high fever, convulsion and breathing difficulties.
6. Respondent No. 3 who attended to the infant on 17.12.1989 noted, "High grade fever, not sucking well since yesterdaysepticemia." At a later stage on the same day it is recorded in the case papers as "Fever, mild coryza, partial nasal block, constant with cold, not sucking properly, mild respiratory distress, bleeding from the umbilicus". The baby was provisionally diagnosed as suffering from septicemia and referred within five hours on the same day to the SAT Hospital, Thiruvananthapuram to be given Intensive Care in the Neonatology Department.
7. Various tests were carried out at the SAT Hospital which revealed that the child suffered from Birth Asphyxia (lack of oxygen), which consequently resulted in Hypoxic Ischemic Encephalopathy (HIE). This has resulted in life-long mental retardation of the child, epilepsy and physical disability necessitating custodial care. The child cannot walk and orient himself and is totally dependent on family members.
8. It is the case of the appellants that a full time servant had to be employed and the appellants had to incur an expenditure of Rs. 3,500 p.m., Rs. 2,000 on anti-convulsion drugs and other Rs. 2,250 on physiotherapy. The appellant, therefore, approached State Commission, Kerala in August, 1991 alleging negligence and deficiency in service on the part of the respondents and claimed compensation of Rs. 4.5 lakh. The State Commission dismissed the complaint on the ground that no sufficient evidence had been led to establish negligence or deficiency in service on the part of the respondent. The original complainants are in appeal before us.
9. The case of the appellants is that it is a post-term pregnancy. The expected date of delivery was 6.12.1989, However, the patient did not develop labour till 13.12.1989. Even thereafter, she did not go into natural labour and labour had to be induced. A post-term pregnancy admittedly requires careful handling by the attending doctor which has not taken place. Labour was induced by administering Pitocin drip on 11.12.1989 but even after 12 hours of Pitocin drip, the patient did not go into labour. Once again Pitocin drip was given at second time on 13th December to induce labour It is well-known that Piticon drip can lead to trauma to mother and baby due to increased pressure of the contractions. Well-known authorities in obstetrics insist that once a Pitocin drip is started, the mother should never be left alone and there has to be constant medical care.
10. It is alleged that Pitocin drip was not properly monitored. It is submitted that contraction frequency, intensity, duration and timing of the mother under fetal heart rate were not observed and monitored closely. As even after one and a half hours of Pitocin drip, little labour pain was noted, Artificial Rupture of Membrane (ARM) was done to increase the uterine contraction rate. This rupture produced only 1 ml of amniotic fluid that to meconium stained (i.e., stained by faecal matter which comes out of the bowl of the foetus) whereas in the normal case there should have been much more amniotic fluid of around a minimum of 200 ml. This condition, where there is an unusually small amount of amniotic fluid surrounding the foetus in the uterus, known as oligohydraminios, is known to lead to complications with the delivery. Extracts from medical treatises were brought on record to show that oligohydraminios is a condition where the foetus is at increased risk and hence the fetal condition and uterine contraction require close monitoring, which was not done.
11. Further, it is argued that the fact that amniotic fluid was meconium stained should have given a clear signal of caution for the respondent No. 2 to keep the patient under constant observation. Reliance has been made on the observation in Willams Obstetrics (19th Edition) Page 485 which states, "The presence of meconium in the amniotic fluid may be an ominous sign and this observation makes close monitoring of fetal heart rate and the utenine contraction pattern even more critical."
12. It is alleged that between 8.15 and 12.00 noon on 13th December, Dr. Nair did not see the patient and that there was total negligence. It is argued that pediatrician was not brought in at the time of delivery or immediately after the delivery. Pediatrician saw the infant only half an hour after the birth and even then there were no direct communication between the obstetrician and the pediatrician. Complaints of the mother about the incessant crying of the baby and tremors of the baby were not attended to, nor were these put on record.
13. It is argued that when there were so many clear indications of distress to the foetus, respondent No. 2 Dr. Nair should have gone in for a caesarean section to release the distress to the infant which was not done. Instead of that even though the dilation and expansion of the cervix was not adequate, the mother was made to go through the vaginal normal delivery which caused asphyxia to the child. As per the Pitocin drip rate chart, the cervix had dilated only 4 cm at 12 noon. It is argued that the patient never reached the second stage of labour, but still the delivery was forced. No resuscitation measures were taken to minimize or treat the fetal distress/ asphyxia.
14. We heard both the parties and perused the records carefully. The State Commission dismissed the complaint on the ground of insufficient proof available to establish negligence and deficiency in service on the part of the opposite party.
15. In our opinion, the appellant has brought in enough evidence and text-book references to prove deficiency in service and medical negligence on the part of the respondents. Above all, it is an admitted fact that within 16 hours after discharge from the hospital the child had to be rushed back to the hospital with high fever, convulsion and breathing difficulties. The child was so serious that within five hours after admission in respondent No. 1 hospital, the child had to be transferred to the specialist hospital at Thiruvananthapuram. The hospital certified that the child suffered from Birth Asphyxia which resulted in Hypoxic Ischemic Encephalopathy. Ever since then, the child is under treatment perhaps for his entire life for mental retardation, epilepsy and physical disability.
16. There is enough evidence to show that it is a case of res ipsc loquitur (facts speak for themselves). Once a patient is taken under the charge of the doctor, it is only the doctor who knows all the technical aspects of the problem, what complications have arisen and what exact steps were taken to meet those complications. When the doctor is not forthcoming with all the details, it is not possible for others to fill in these details. Therefore, in cases of medical negligence, there would always be some cases where it may not be possible to lead sufficient direct evidence to absolutely prove negligence. But the entire circumstances of the case need to be taken into account to see whether a case of negligence is or is not made out.
17. Here is the case of post-term pregnancy where in spite of Pitocin drip being given for two days, labour pain did not progress. One more inducement method ARM was tried. An extremely small quantity of 1 ml. amniotic fluid came out establishing oligohydraminios. Even that fluid was stained with meconium. The records show that the cervix did not dilate sufficiently. From the extract or medical journals quoted below it would be seen that all these are distress and warning signals indicating possible damage to the foetus and great care and caution should have been taken to monitor the vital parameters of the mother and the foetus very carefully and the decision to carry out a caesarean section was necessary.
18. The following extracts from Williams Obstetrics (19th Edition) show the possible dangers of Pitocin (Oxytocin) and that close monitoring is absolutely essential.
At page 486 available at page No. 172 of the compilation:
...The mother should never be left alone while an oxytocin infusion is running. The goal of oxytocin administration is to effect uterine activity that is sufficient to produce cervical change and fetal descent while avoiding uterine hyper stimulation and fetal distress. Uterine contractions must be evaluated continually and oxytocin discontinued if contractions must be a 10 minute period or last longer than 1 minute, or if the fetal heart rate decelerates significantly. When hyperstimulation occurs, immediate discontinuation of the oxytocin nearly always corrects the disturbances, preventing harm to mother and foetus.
At page 487 available at page No. 173 of the compilation:
...Oxytocin is a powerful drug, and it has killed or maimed mothers through uterine rupture and even more babies through hypoxia from markedly hypertonic uterine contractions.
At page 487 available at page No. : 173 of the compilation:
...It should be employed for no more than a few hours; if, by then, the cervix has not changed appreciably and if predictably easy vaginal delivery is not imminent, caesarean delivery should be perfomed. On the other hand, oxytocin should not be used to force cervical dilation at a rate that exceeds normal. Ready resort to caesarean delivery in cases where oxytocin fails or in which there are contradictions to its use has served to appreciably diminish perinatal mortality and morbidity.
19. The following extracts from the same book indicate the possible dangers from Oligohydraminios or decreased amniotic fluid.
At page 872 available at page No. 175 of the compilation:
...Oligohydraminios commonly develops as pregnancy advances past 42 weeks and decreased amniotic fluid is associated with cord compression, which may lead to fetal distress, including defection and aspiration of thick meconium.
At page 873 available at page No. 176 of the compilation:
...There is no doubt that when amniotic fluid is decreased in a post terms pregnancy, or any pregnancy for that matter, the foetus is at increased risk.
20. The following two extracts from Willam Nelsons text-books indicate that presence of meconium in the amniotic fluid is an ominous sign;
At page 485 available at page No. 171 of the compilation:
...The membranes, if intact, should be ruptured and ideally an intrauterine pressure catheter and fetal scalp electrode placed. Close observation may be employed for 30 to 60 minutes to see if the amniotomy will improve the quality of contractions. Next, a decision must be made whether to stimulate labour with oxytocin or to effect caesarean delivery. The presence of meconium in the amniotic fluid may be an ominous sign, and this observation makes close monitoring of fetal heart rate and the uterine contraction pattern even more critical.
Nelson textbook of Pediatrics (Thirteen Edition): Page 400 available at page No. 200 of compilation:
...Meconium stained amniotic fluid is seen in 5-15% of births, but this syndrome usually occurs in term or post-term infants. Usually, but not invariably, there has been fetal distress and hypoxia with passage of meconium into the amniotic fluid. These infants are frequently meconium stained and depressed and require resuscitation at birth.
21. The following two extracts indicate the need for careful monitoring of the foetus during labour and the need for constant liaison between the obstetrician and pediatrician;
O.P. Ghai's Book on Essential Pediatrics (Second Edition): page 88 available at page No. 233 of the compilation:
...The most important form of treatment is prevention of asphyxia. Careful monitoring of the foetus during labour and considered but prompt intervention at the early signs of fetal compromise is important in preventing perinatal asphyxia.
Meharban Singh's Book on Care of New Born (Fourth Edition) : Page 25 available at page No. 187 of compilation.
...The pediatricians should maintain constant liaison with expectant mothers by visiting the pre-delivery suites. Infants with fetal hypoxia must be promptly delivered and pediatrician must be informed well in time so that he/she is available at the time of delivery.
The extracts from O.P. Ghai's book on Essential Pediatrics (Page No. 88) indicates that HIE leads to mental retardation:
...Hypoxic ischemic encephalopathy is an important cause of subsequent mental retardation, cerebral palsy, seizures, and choreothetosis. Future neurologic development is related to the extent of the anoxic insult.
22. The above references would prove that all the indications in this particular case are sufficient to recognize it as a high risk case from any angle. The respondent No. 2 could have easily averted the result of a child with HIE if only she acted diligently with enough care and caution that is expected in the present case. She has totally failed to take into account all the warning signals and failed to take steps to immediately conduct a caesarean delivery to avert birth asphyxia. She also did not insist on the presence of the pediatrician respondent No. 3 at the time of delivery of ensure the baby's progress from anoxic insult and to prevent on set of septicemia.
23. After seeing the baby and having treated for two days. Respondent No. 3 also did not pay attention to the complaints made by the mother regarding incessant crying, not sucking, etc. and discharged without considering the symptoms and signals in a case of birth asphyxia child. A case of deficiency of service and negligence has thus clearly been made out against the respondents.
24. From the facts stated above, and the medical literature produced on record, the learned Counsel for the appellants rightly pointed out that
(a) the respondent failed to take appropriate care. As stated above, the expected date of delivery was 6.12.1989. As there was no labour pain upto 13.12.1989. It was a case of post term pregnancy and special care should have been taken. However, it was admittedly treated as a normal case despite the fact that there was no labour even after 12 hrs. of Pitocin drip administration on 11.12.1989. The other fetal distress : signs of 1 ml of amniotic fluid on ARM, that tool meconium stained if taken into consideration it was totally wrong to great as a normal case. Respondent No. 2 has deposed before the State Commission, "nature of delivery is normal delivery".."there is nothing to be frantic about it was a normal delivery and every thing proceeded normally".
(b) ...there was no proper ante natal fetal monitoring by using any of the available tests by the respondents. Further, Pitocin drip was continued despite detecting presence of meconium in the amniotic fluid, till the delivery and no close monitoring of fetal heart rate and the uterine contraction pattern was done after 11.12.1989 and 13.12.1989/ during the Pitocin induction. It is further submitted that contraction frequency, intensity, duration and the timing in relation to the fetal heart rate were not observed closely.
(c) ...the height of the deficiency in service is not taking appropriate care despite the request of the appellant No. 2 that "the baby was experiencing tremors at times during night, was showing tremors and jerks, was crying, was not drinking milk actively and without sucking".
(d) Birth Asphyxia, HIE and Septicemia can exist together. Septicemia is not related to the other two. If there is intrauterine Septicemia it can produce HIE or Birth Asphyxia, but can lead to CP or mental retardation. Incessant crying is one of the symptoms of birth asphyxia. Temperature is not a sure indicator of neo-natal septicemia.
(e)...at the time of the labour the condition of mother got worsened but there was /no doctor present there nor the paramedical staff took necessary measures. That the respondent No. 2 came only at the time of delivery after being called upon by the appellants. Further, the respondent No. 3 (pediatrician) was not consulted at all by the respondent No. 2 before the birth and was not present at the time of birth. He visited the baby only after half an hour of delivery. Even after the birth there was no direct communication between the Gynaecologist and the pediatrician, and both have admitted the same in their deposition which reads as "did Nanda Kumar speak about the condition of the child on 13.12.1989? Was not necessary. Did you discuss about the condition of child with paediatrician on 14th, 15th or 16th? There was no need of it. Only when there is problem, we discuss. Did you discuss with pediatrician on 11th or 12th? There was no need (page 66D of compilation) and by respondent No. 3 "I knew that it was normal delivery but whether the child would be all right has to be determined by pediatrician after clinical examination. After delivery, I discussed about the birth of the child. Not before. There was no direct discussion between the gynaecologist and myself, knowledge was derived from case sheet.
25. We accept the aforesaid contention and in our view this is a case of apparent deficiency in service by the respondents.
26. Hence, helplessness, suffering and mental agony of the parents in bringing up this child cannot be sufficiently compensated considering the permanent disability of the child. The circumstances as narrated regarding the delivery and the present condition of the boy who is almost a child for all purposes clearly fall under the doctrine of res ipsa loquitur (facts speak for themselves). For this purpose, appellants have claimed only Rs. 4.5 lakh. According to us, the aforesaid prayer is just and even we can say that it is on the lower side.
27. In the circumstances, the first appeal is allowed. The impugned order passed by the Kerala State Commission is set aside. Respondent Nos. 1, 2 and 3 directed to pay to the appellants a sum of Rs. 4.5 lakh with interest at 10% p.a. from the date of filing the complaint till the date of payment along with cost of Rs. 10,000 to be paid within four weeks from the date of receipt of the order.