State Consumer Disputes Redressal Commission
Smt. Naziya vs Dr. Anuradha Agarwal on 16 September, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/123/2017 ( Date of Filing : 23 Mar 2017 ) 1. Smt. Naziya Lucknow ...........Complainant(s) Versus 1. Dr. Anuradha Agarwal Lucknow ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 16 Sep 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission , U.P. Lucknow. Complaint Case No 123 of 2017 1- Smt. Nazia w/o Mohd. Arif a/a 33 years. 2- Mohd. Arif s/o Late Mohd. Naim a/a 37 years. 3- Mohd. Adil s/o Mohd. Arif and Smt. Nazia a/a 6 months (minor) through his natural guardian (mother) Smt. Nazia w/o Mohd. Arif all R/o 536/53, Sector-2, New Madeyganj Khadra, Lucknow. ... Complainants. Versus 1- Dr. Anuradha Agrawal, MBBS, MS(Gynaecologist & Obstetricians) Registration no.52891. 2- Dr. Anup Agarwal, MBBS, MS Replacement & Trauma Surgeon, Reg. no.52886. 3- The Sushrut Hospital Reg. no.5746 through Dr. Anuradha Agarwal Registration no.52891. (opposite party no.1) All R/o Sec.D, Priyadarshini Yojna, Sitapur Road, Near Kiran Gas Agency, Lucknow. 4- United India Insurance Co. Ltd., 16-M, Gole Market, Mahanagar, Lucknow through Branch Manager. ....Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Mohd. Ali, Advocate for the complainants. Sri Manish Mehrotra, Advocate for the OPs no.1 to 3. Sri A.K. Rai, Advocate for the OP no.4. Date : 28.09.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: The present complaint Case has been filed by the complainant against the opposite parties for the following reliefs:-
For awarding a sum of Rs.50 lakhs in favour of the complainant no 3 against the opposite parties'as damages for the amputation and loss of his hand permanently on account of negligence and carelessness of opposite parties.
For awarding a sum of Rs.20 lakhs as compensation for mental torture and agony to the complainants caused on account of carelessness and negligence of the opposite parties which resulted into amputation of right-hand of baby, complainant-3.
For awarding a sum of Rs.10 lakhs in favour of the complainant against the opposite parties, on account of the medical consultation fees medicines, treatment etc .
For awarding any other and further relief in favour of the complainants are against the opposite parties which This Hon'ble Commission may deem fit and proper in the circumstances of the case.
The brief facts of the complaint case are that, that the opposite party -3 is a Private Hospital and Maternity Centre run and owned by opposite party -1 & 2 and provides medical services treatment to the public at large on payments and the complainant was admitted in the hospital of opposite parties for delivery of child and all expenses of treatment, medicines and services etc in respect of the treatment and medicines are given to the complainants -1 & 3 were duly paid by the complainant. The complainant-1 was admitted in the opposite parties hospital on 30.08.2016 at about 01.00 pm and within few hours she gave birth to a male child, complainant-3, at about 5:15 PM as full-term normal veginal delivery (FTNVD). This child was later on named as Mohd. Aahil. As the delivery was normal which spoiled the plan of opposite parties to extract the money from complainant if delivery would have been done by cesarean operation so with motive and intention to grab and extract more money from the petitioner. The opposite parties unnecessary misled and created phobia in the minds of parents of the baby without taking any opinion from paediatric doctor or expert and proper medical examination, & diagnosis told that "new born baby" did not try of the time of birth which required immediate treatment in Neonatal Intensive Care Unit ( NICU) otherwise the baby will not survive, whereas the baby was looking quite normal and healthy by his appearance.
The opposite parties no.1 & 2 against the free consent of the complainant no.1 & 2 admitted the baby in the so-called NICU which is neither properly equipped not having a skilled paediatric Doctor or expert to handle the newly born baby but opposite party -1 & 2 started the treatment in NICU by themselves alone along with other nurses of the hospital. Whereas complainant no 1 & 2 repeatedly requesting to call any super expert paediatric docotr and often the help, one and opinion but his request was turned down by the opposite parties for the reasons best known to them. It is pertinent to mention here that no any paediatric doctor or neonatologist is posted or appointed in the hospital of the opposite parties to treat the newly born babies. From outside of NICU it was observed by the complainant and the attendant said that the opposite parties -1 & 2 was puncturing the muscle of the hand of the poor baby has so many places to trace the vein for IV drip but they were unable to trace the same and right-hand of the baby due to delay in the started breeding at so many places which was regularly rubbed by Cotton by the nurse concerned and later on after getting the vein, injection was given by the opposite parties as per their diagnosis of treatment and to maintain IV drip needed a stable baby's hand was strapped so tightly that baby remained restless throughout its stay at NICU and the symptoms of restlessness of baby was completely ignored by the opposite parties.
The opposite parties -1 & 2 did not allow parents of the baby to see or visit the baby at NICU for more than four days and they did not allow the mother of the baby to feed her baby in this period thus they wrongfully detained, confined and treated the baby in their NICU without free consent of the complainants which is not only shocking for the complainants but is a wilful cruel misconduct of the opposite parties which is against the immunity medical ethics and principles of NICU. Suddenly on 04.09.2016 the opposite parties allowed parents to see their baby in NICU only when they noticed that the skin of the right hand of the became black swelling, then they asked the reason of it from the opposite parties who assured them that nothing to worry and it will disappear automatically and skin will become normal in due course of time and will get its natural and original colour very soon and they discharged the baby in haste on 04.09.2016 . The complainants noticed from the body language of the opposite parties that they are concealing some serious thing from them but no alternative was left to the complainant except to rely the statement of opposite parties and the aforesaid complaint and symptoms completely ignored by opposite parties. On 05.09.2016 it was noticed by the complainants that black discolouration of right-hand was progressing therefore the baby was brought to opposite parties again, who gave and recommended the same treatment and advice for complete blood test and application of TBACT/ MEGHAHEL cream on the right hand of the baby. The complainant follows the above instructions but found no improvement then again consulted the opposite parties on 06.09.2016 who vide his letter DTD 06.09.16 advised to consult and recommend Dr Prof sd Pandey , (Plastic Thousand) for expert opinion and management and at this stage also, it was quite apparent by the statements and explanation to the petitioner that they wanted to shift their burden of treatment and the illness of the cost by themselves on somebody else to save that the skin from negligence.
As per the commission of opposite parties, the petitioner/ complainants consulted Dr Prof SD Pandey but he did not treated himself for which he is expert and competent and did not want to involve himself because he knew the gravity and consequences of the disease caused by opposite parties and was in their collusion. On 07.09.2016 the complainants consulted Dr Manoj Kumar Singh of the "Yamini Balya Chikitsalaya MMB, 1/136, Sector-B, Jankipuram, Lucknow" who observed black discolouration of right-hand of the after IV and restriction as gangrene of tips of all fingers and referred the case to SIPS for further management and openly elaborated the consequences of the disease of the baby and advised to consult the super specialist Dr or hospital to save the baby and hand of the baby from amputation because in his opinion it was a case of amputation. The petitioner after making a judgment of money and circumstances rushed to the "Bai Jerbai Wadia Hospital", a renowned hospital at Mumbai and the baby was admitted there on 19.09.16. The doctors of the Wadia Hospital tried their level best to save the hand of the baby by giving suitable medical treatment till25.09.16 but the attempt of unsuccessful and they decided to amputate the affected part of the hand of the baby to save his life. The attendants and petitioner's decided to take one more chance to save the hand from amputation of the baby rushed to another very renowned plastic surgeon of Narayanan Hospital of Narayanan Handayalaya Ltd. at Bangalore where the delay was admitted and treated from 03.10.16 to 14.10.16 but they were also of the decision of amputation of the hand and the complainants were compelled to face the situation of amputation of the hand of their baby.
The poor baby is now doomed to lead a handicapped life due to the greed for money of the opposite parties who first of all unnecessary admitted that the ill equipped and improperly manned NICU and incompetently handled a perfectly healthy baby which iatrogenic complication (an adverse effect that was not associated with the patients' underlying disease) leading to loss of hand of innocent baby. Opposite party -1 is simply MBBS / MS in gynaecology and obstetrics and opposite party -2 is MBBS /MS in replacement and trauma surgeon but none of them are new letter was to, paediatric doctor or expert and having no degree or qualification to treat the newly born child in NICU and they were fully aware of the fact that they are not qualified or competent person to treat the baby in NICU, even then they will fully unnecessarily indulged themselves into the treatment of the baby in spite of so many warnings by the complainants to this effect and without considering the harmful effect of the same but due to greed of money they improperly treated the baby in NICU which resulted into injury, gangrene and amputation of right-hand of the baby.
The doses of injection Taxim 250 mg and Amikacin 50 mg given by the opposite parties to the baby was not up to the mark and accurate and were prescribed without ascertaining the actual date of the patient which is also against the medical ethics and science because doses of medicines are always prescribed according to the weight and age of the patient. The opposite parties did not perform his duty best and if the baby vital signs and other symptoms of the baby were properly monitored and watched in the NICU by the competent person shall they could have detected and treated the starting of gangrene in very initial stage and the situation of gangrene followed by amputation would have been prevented. The hospital and NICU of the opposite parties are without the proper facilities and is not equipped to with the competent personnel to attend newly born baby and were without proper facilities and established in violation of Hospital and Nursing Rules and Regulation. In medical terminology the upper extremity is subdivided into three parts, first up are, second for our and third hand includes Palm, fingers and thumb. The colour Doppler examination of right upper extremity venous report dated 19.09.2016 and the echocardiogram and colour Doppler report dated 21.09.2016 of the baby as were done on the advice of doctors of Wadia Hospital Mumbai are attached herewith which clearly in the one that the blood supply of the right palm and fingers were absent resulting into gangrene and thereafter babies right hand up to rest have to be amputated at the level of metacarpal phalangeal joint by the surgeon of Narayanan Hospital at Banglore on 05.10.16 and thereafter its shuttering operation was done on 08.10.16 , the amputation of right-hand of the baby was done on account of faulty and wrongful treatment and diagnosis and carelessness and negligence of the opposite parties and they are not only guilty of medical negligence but there commission and commission our clause violation of oath of hypocrites by which the doctors swear. The complainant no 3 had thus compelled to lead handicapped life and had to face so many difficulties throughout his life which cannot be explained in words. By way of importation of his right hand as well as mental goalies and torture coupled with heavy expenditure on the treatment of the baby.
In view of the above facts and reasons complainants are entitled to the sum of Rs.80 lakhs as compensation for the amputation of right-hand of his son and for mental agony and torture and for medical consultation and expenses in medicines et cetera. The cause of action for filing the present complaint arose on 30 August 2016 when the opposite parties unnecessarily admitted and treated the baby in his field and unmanned NICU and which caused injury and gangrene and amputation of hand of the and thereafter day by day within the jurisdiction of this Hon'ble Commission. Therefore it is requested to the Hon'ble commission to grant the aforementioned release to the complainants.
Opposite parties -1 has submitted her statement in which she has stated the charges of the complainant and said that she is a highly qualified and well experienced doctor having post-graduation in MD (obstetrics and gynaecology) from LLRM Medical College, Meerut and she is a gold medallist winner in July 1999. She also has to credit several research papers. The answering opposite party, being a gynaecologist, admitted the complainant/patient under her care as a case of delivery of child. Certain reckless allegations have also been made by the complainant with reference to the infrastructure and facilities of the hospital, relevant ever be in that regard would be made by the opposite party -2 & 3 before this Hon'ble court.
The complaint petition has been filed by the complainant completely on miss appreciation of medical facts and solely on the basis of presumption and assumptions. The patient Mrs. Nazia was admitted on 30.08.2016 as a case of delivery. All the tests were duly prescribed and thereafter the patient delivered a male child being 3.5 K the at 5:15 PM on 30 August 2016 by normal delivery. The delivery notes, clearly shows that the patient had "Shoulder Dystocia"and the delivery of the child was a difficult delivery and the baby was asphyxiated. However, in view of best efforts on part of the answering opposite party, successfully the delivery of the baby was conducted and the newborn baby was immediately thereafter shifted to Neonatal Intensive Care Unit under paediatric care, which was imminent in view of the difficulty delivery of the baby as mentioned above. Shoulder dystocia is a known medical complication and this is not possible for any diagnosis prior to the delivery, yet however the case was very well managed by the answering opposite party. Proper and restriction of treatment was given to the complainant as per standard medical protocol, all of these is duly recorded in the hospital records/case sheet of Mrs. Nazia, the complainant. At this stage it is pertinent to mention that the patient duly executed in the consent form along with her husband which is also part of hospital records.
The opposite party further submitted that the Post delivery the condition of the baby was well managed and completely under control, the baby was well, taking feeds and accordingly appropriate treatment was duly advised. It is pertinent to mentioned that the baby was well attended by the paediatric and who was continuously looking after the baby in the Neonatal Intensive Care Unit. From time to time the advice and diagnosis from the paediatric doctor is also part of the case sheet of the baby which was separately maintained. The case sheet will also demonstrate that as was diagnosed by the paediatric, the problem of slight swelling over the fingers, was immediately attended as per medical norms and appropriate and dressed treatment at the stage was duly prescribed for the said problem as well. The baby was given to the mother on 01.09.16 . The baby is case sheet will show that the baby was born with asphyxia with the complication of shoulder dystocia during delivery and hence special care had to be taken to ensure normal life and recovery of the child. It is pertinent to mentioned that Administration of IV fluids and antibiotics and other drugs over the only treatment of choice and necessary. The blood test report dtd 31.08.2016 shows increased blood Count which is evidence of infection as these type of complicated deliveries may be prone to septicaemia; that is why on initial management and appropriate treatment was administered and the baby and mother was discharged on 04.09.16 morning and thereafter immediate referral to an expert was made as soon as the opposite parties, for the first time noticed slight variation in colour of the finger on 06.09.16 in follow-up OPD.
The complainant was admitted at Sushrut Hospital on 30.08.16 and on the same day the baby was delivered and on 04.09.16 (10.00am) the patient along with the baby was duly discharged from the hospital with appropriate advice. Thereafter in the evening of 05.09.16 after almost 36 hours from the discharge the baby was brought to the hospital in follow-up and accordingly advice for appropriate tests and advice for application of TBACT cream on the right-hand of the baby in relation to the swelling on the hand. However, thereafter on 06.09.16 , as has been admitted by the complainant in the complaint petition that the patient was referred to expert opinion of Dr Prof SD Pandey (Plastic Surgeon) who is ex professor and HOD Department of Plastic Surgery, KGMU and is an expert in hand for further expert management. The referral letter dated 06.09.16 has already been filed by the complainant. It is relevant to mention at this stage that after 06.09.16 the patient never returned or consulted the opposite parties. The colour Doppler report dated 19.09.16 from Dr Jankharia'sImazing Centre, Mumbai shows that no deep are superficial vein thrombosis; "there was some acute thrombotic occlusion of other radial artery from its proximal third segment onwards up to restaurant with collaterals seen along its entire course. Some acute thrombotic occlusion of the ulnar artery from its mid segment onwards up to the wrist joint where it shows very poor, patchy recanalization via collaterals ". This report shows no venous thrombosis and in fact shows some acute thrombotic occlusion of radial and ulnar artery, which is a clear medical proof of the fact that the cause of the complication in the baby had no nexus with the administration of Intravenous Cannula, the only procedure administered on the baby after delivery and which was most required medical intervention for proper management post birth of this child.
The complication is revealed by the colour Doppler report is a very rare complication and secondly the use of the world "sub acute" in the report means and proves that it was a slow progressing complication which is not possible to diagnose delay time which the patient remained in the care of answering opposite party. The complication of arterial thrombosis is aware complication and to have arterial thrombosis in radial and ulnar artery simultaneously is rarest of rare complication. There is relevant medical literature to show awareness of this complication and also proves that birth asphyxia and septicaemia and maternal hypertension are known reasons for such arterial thrombotic events. These facts are clearly shows that there is no question of any deficiency in service or medical negligence having been committed by the opposite parties while diagnosing and administering treatment on the complainant as well as the new born baby. It would be clear that insofar as the unfortunate incidents of amputation of fingers of the child is concerned, it is a deeply regrettable fact but the opposite parties stated that there is absolutely no nexus with the treatment administered on the new born baby while the patient remained with them. After 06.09.16 the patient never contacted or returned to the opposite parties. The records filed by the complainant along with the complaint petition show no evidence of any medical care between the period 07.09.16 and 19.09.16 and which is a considerably long period for absence of any proper treatment which will have a direct bearing on the degree of complication which unfortunately occurred in the child and hence the fact of negligence and lack of proper care on part of the complainantthemselves cannot be ignored by this Hon'ble commission.
In the present case the complainant was billed only for an amount of Rs.9100/- against Bill number 301 and Rs.13,000/- towards bill number 302, drugs bill is separate. So for the issue of equipments et cetera of the hospital are concerned, appropriate reply will be given by opposite parties -2 &3. It is stated that no attendant can actually see inside the NICU or labour room where the child was resuscitated as these are restricted areas. It is preposterous therefore for the complainant to allege the fact of puncturing the muscle of hands of would-be be at many places, which is just a wild allegation without any basis and hence is strongly denied. The case sheet of NICU of the show that the baby was given to the mother on 01.09.16 at 10 PM and thereafter on 02.09.16 the baby was taking mothers feed and hence the allegations made in the complaint is just a figment of imagination on part of the complainant. Furthermore, the hospital records already demonstrate that appropriate treatment was advised to the baby for selling the hand and thereafter undisputedly on 06.09.16 the baby was referred to expert opinion. The answering defendant has done deliveries of more than 2500 babies in the last 17 years of her professional career. The allegations made by the complainant are totally misconceived, vexatious in nature and hence strongly denied.
The dose of injection Taxim 250 mg once daily and injection Amikacin 50 mg was duly prescribed by the paediatrician after assessing the appropriate doses as per the weight of the child has to allegation of the complainant is medically ill founded. There is no question of any medical negligence. The hospital is a well equipped hospital with well experienced and highly qualified doctors and paramedical staff. The complainant is not entitled to any relief from this Hon'ble commission. In any case the opposite parties strongly denied any liability whatsoever to the complainants. The complainants petition being divide of merits and liable to be dismissed with cost in favour of the opposite parties.
The opposite parties no.2 & 3 has submitted their written statement in which they have stated that the opposite party no 2 is the Managing Dir of the opposite party no.3, Sushrut Hospital and the husband of the opposite party no.1, Dr. Anuradha Agrawal. A detailed written statement on the facts and circumstances and the merits with reference to the treatment administered on the complainant no 1 and her newborn baby has been filed by the opposite party no 1, who was the treating gynaecologist in this case and accordingly the answering opposite parties no 2 & 3 fully adopt the difference statement of the opposite party no 1 to be the detailed written statement on their behalf as well.
Sushrut Hospital Maternity-Trauma Centre is an institution with him organised medical, paramedical and nursing staff that provide a full range of medical services, required for internship treatment of observation including surgery. It also includes facilities for childbirth and infant management, as well as outpatient clinics. Sushrut Hospital Maternity -Trauma Centre is an institution where great care is taken in the selection of the staff. Well qualified, service oriented and dedicated medical, Gen, specialist and super specialist, paramedical, nursing and supportive staff, whose quality is remembered by all who come in contact with them. It is well organised institution with great emphasis on preventive, promoted curated and rehabilitative work ,health education, family welfare, mother and child health activities. Antenatal checkup, child welfare and immunisation are routine work of this hospital. The hospital has both institutionalised referral as well as community-based activities. The complaint petition filed by the complainant completely on this appreciation of medical facts and solely on the basis of presumption and assumptions.
The patient Mrs. Nazia was admitted on 30 August 2016 as a case for delivery. All preoperative tests were duly prescribed and thereafter the patient delivered a male child weighing 3.5 KG at 5:15 PM on 30 August 2016. The delivery notes, clearly show that the patient had shoulder dystocia and the delivery of the child was a difficult delivery and the baby was asphyxiated. In view of the best efforts on part of the answering opposite party, successfully the delivery of the baby was conducted and the newborn baby was immediately thereafter shifted to NICU under paediatric care, this was imminent in view of the difficult delivery of the baby as mentioned above. Shoulder dystocia is a known medical complication and which is not possible for any diagnosis prior to the delivery, yet however the case was very well managed by the answering opposite party. Proper registration of treatment was given to the complainant as per standard medical protocol, all of which is duly recorded in the hospital records/case sheet is of the complainant. The patient duly executed the consent form along with her husband is also a part of hospital records. The Post delivery the condition of the baby was well managed and completely under control, the baby was well, taking seats and accordingly appropriate treatment was duly advised. The baby was well attended by the paediatric, who was continuously looking after the baby in the NICU. From time to time the advice and diagnosis from the paediatric doctor is also part of the case sheet of the baby which were separately maintained. The case sheet of the new born baby could also demonstrate that as was diagnosed by the paediatric, the problem of slight swelling over the fingers, was immediately attended as per medical norms and appropriate and best treatment at that stage was duly prescribed for the set problem as well.
The baby's case sheet will show that the baby was born with asphyxia with the complication of shoulder dystocia during delivery and hence special care had to be taken to ensure normal life and recovery of child. Immediately thereafter the newborn baby was put in proper and special care of paediatrician and all efforts as per standard protocol were taken to restore normalcy in the baby which was successfully done. The agitation of IV foods and antibiotics and other drugs over the only treatment of choice and necessary. The blood test report dated 31st August 2016 shows increased blood Count which is evidence of infection as these types of complicated deliveries may be prone to septicaemia; that is why all initial management and appropriate treatment was administered and thereafter imitate referral to an expert was made as soon as the answering opposite party no 2 , for the first time noticed slight the Russian in colour of the finger on 06 September 2016. After discharge on 04.09.16 , on 05.09.16 the baby was brought to the hospital in follow-up and accordingly advice for appropriate tests and advice for application of TBACT cream on the right-hand of the baby in relation to the swelling on the hand. Thereafter on 06.09.16 the patient was referred for expert opinion of Dr Prof SD Pandey (Plastic Surgeon) for further expert management. The colour Doppler report of19.06.16 shows that no deeper superficial vein thrombosis. This report shows no venous thrombosis and in fact shows some acute thrombotic occlusion of radial and ulnar artery which is a clear medical proof of the fact that the cause of the complication in the baby had no nexus with the admission of Intravenous Cannula, the only procedure administered on the baby after delivery and which was most required medical intervention for proper management post birth of the child. It is a very rare complication and secondly the use of the word subacute in the report means and proves that it was a slow progressing complication which is not possible to diagnose during the time which the patient remained in the care of answering opposite party.
The complication of arterial thrombosis is a very rare complication and to have arterial thrombosis in radial and ulnar artery simultaneously is rarest of rare complication. There is absolutely no nexus with the treatment administered on the newborn baby while the patient remained with them. It is also pointed out that the records are filed by the complainant along with the complaint petition show no evidence of any medical care between the periods 07.09.16 to 19.09.16 and which is a considerably long period for absence of any proper treatment which will have a direct bearing on the degree of complication which unfortunately occurred in the child and hence the fact of negligence and lack of proper care on the part of complainants themselves are cannot be ignored. Only reasonable and appropriate payments were charged from the patient in consonance with the costs and nothing more. The treatment of the child was carried out by a highly experienced and skilled paediatric doctor, Dr K P Singh and hence the allegations of the complainant that Neonatal Intensive Care Unit at Sushrut Hospital is totally incorrect and false. No attendant can actually see inside the NICU or Labour Room where the child was resuscitated as these are restricted areas. It is preposterous therefore for the complainant to allege the fact of puncturing the muscle of the hands of the poor baby act so many places, which is justified litigation without any basis and hence strongly denied.
The answering opposite party no.2, Dr. Anup Agrawal is a highly qualified and well experienced Orthopaedic Surgeon and is the owner of the hospital and works after every possible aspect of hospital administration including patient care. The baby was taken care of by Dr. Anuradha Agarwal herself round-the-clock and also there was round-the-clock caring by highly efficient and well-trained medical and paramedical staff of the hospital. The baby was also managed by expert paediatrician Dr. K.P. Singh just after the delivery. This hospital is giving 24-hour services to (accidental), trauma, maternity and neurosurgery patients. The hospital is well equipped with all the modern gadgets. The patient was given full care and appropriate medical treatment as per standard medical protocol and there is no question of any medical negligence on their part. The complaint petition being divide of merits and liable to be dismissed with cost.
The opposite party no.4 has also submitted its written statement in which he has stated that no cause of action accrued against him. The claim amount is very much excessive and without any basis, has denied the liability of the answering opposite party to indemnify the insured is under the terms and condition of the policy and not otherwise. As per the terms and conditions of the policy, "the insured shall give written notice to the company as soon as reasonable tactic to be of any claims made against the insured (or any specific event or circumstances that may give rise to a claim being made against the insured) and these forms the subject of indemnity under the policy and shall give all such additional information as the complainant require. Every claim, it, summons or process and all the documents relating to the events shall be forwarded to the company immediately; they are received by the insured. No admission, offer, promise of payment shall be made or given by or on behalf of the insured without the written consent of the company. The company will have the right but in no case the obligation, to take over and conduct in the name of the insured, the defence of any claim and will have full discretion in the conduct of any proceedings and in the settlement of any claim and having taken over the defence of any claim may relinquish the same. All amount expended by the company in the defence, settlement of payment of any, will reduce the limits or indemnity specified in the schedule of the policy. The insured shall give answer information and assistance as the company may reasonable required."
Neither the complainantfurnish the copy of the policy or the details of the policy, to the answering opposite party till date not the insured has informed about the alleged claim/case to the answering opposite party and as such, the answering opposite party is not liable to pay any claim to either the complainants or to indemnify the insured if any. The opposite parties no.1 to 3 did not inform the answering opposite party regarding the aforesaid claim till date and thus the opposite parties failed to comply the terms and conditions of the policy and in the circumstances, the answering opposite party is not liable to indemnify the insured. No cause of action accrued to the complainants to file present complaint against the answering opposite party. The complaint has no force on merits as against the answering opposite party and is not maintainable as per law and as such liable to be dismissed with special costs in favour of the answering opposite party.
We have heard the learned counsel for the complainant Mr. Mohd. Ali, learned counsel for the opposite parties no.1 to 3 Mr. Manish Mehrotra and learned counsel for the opposite party no.4 Mr. A.K. Rai and perused the pleadings, evidence is and documents on record.
First we start with the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC 513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim .
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.
Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis (TEN) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr. Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings. The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
Now we come to the facts of the case. We have seen the qualification of the concerned doctors. They are well qualified doctors and nothing adverse has been put before us showing that they do not have the required experience or required degree as per the details filed by them, we are convinced that they are qualified doctors in their field. It is alleged by the complainant that no paediatrician was called for the baby. We have seen the discharge in which on 03.09.16 there is note of paediatric call. There is a prescription of Dr. K.P. Singh who is paediatrician. So it is clear that there was paediatrician for the treatment of the child and it is wrong to say that no paediatrician was called for for the treatment of the baby.
Now we discuss about the shoulder dystocia and asphyxiated baby.
Shoulder dystocia is a complication of vaginal delivery and the primary factor associated with brachial plexus injury. In this review, we discuss the risk factors for shoulder dystocia and propose a framework for the prediction and prevention of the complication. A recommended approach to management when shoulder dystocia occurs is outlined, with review of the maneuvers used to relieve the obstruction with minimal risk of fetal and maternal injury.
Keywords: birth trauma, brachial plexus injury, diabetes, Erb palsy, macrosomia, shoulder dystocia.
Shoulder dystocia, a complication of vaginal delivery in which the fetal shoulders fail to deliver spontaneously after the head emerges, is uncommon but potentially treacherous. Its precise incidence is difficult to ascertain, owing to the different definitions used in the literature and uncertainty about how often its occurrence is documented in medical records. Estimates range between 0.15 and 2.0% [1-3]. Although most cases of shoulder dystocia can be relieved without permanent sequelae for the neonate, this is not always the case [4,5]. Complications include various degrees of brachial plexus injury (BPI) and, less commonly, asphyxial or traumatic central nervous system damage and long bone fractures [6]. Maternal adversity in the form of lacerations, hemorrhage and psychological stress occurs as well [7]. BPI occurs in about 1-20% of shoulder dystocia cases [1-2,6,8]. It is often a transient neuropraxis and recovers fully in hours to months; it is permanent in about 3-10% of cases [6,9], probably the result of avulsion of nerve tissue. The likelihood of intact survival after shoulder dystocia depends heavily on the skill with which it is managed; preemptive cesarean delivery of babies at high risk would be ideal, but the identification of such cases can be challenging.
Almost all BP is associated with shoulder dystocia are Erb palsies, and result from overstretching of the C5-6 nerve roots during parturition, particularly in the presence of difficult shoulder delivery. There is enough evidence that BPI can occur in the absence of shoulder dystocia to conclude that not every injury is the consequence of excessive force applied by the obstetrician or midwife [10,11]. Moreover, it seems equally clear that BPI can occur in association with shoulder dystocia even when the complication has been managed optimally. The weight of the available information suggests, however, that inopportune medical intervention is probably a factor in most injuries.
Universal cesarean delivery would eliminate almost all cases of shoulder injury; but this approach is impractical, and would have an unfavorable risk/benefit balance. In this regard it should be noted that the incidence of shoulder dystocia seems to have increased in some places [12], even as the cesarean rate has risen substantially over recent decades. The incidence of Erb palsy, however, may have been be more stable [13,14], although a study from Sweden showed a dramatic increase between 1980 and 1994 [15]. Whether these differences in incidence and trend relate to ascertainment bias, variations in definitions and reporting or are the consequence of improved obstetric practice is unknown. Certainly, in order for the clinician to minimize the incidence of BPI or other adverse sequelae of shoulder dystocia she or he must be thoroughly familiar with existing risk factors, incorporate them into a decision matrix for each patient, offer cesarean delivery when risks are very high and be prepared to deal expertly with shoulder dystocia if it occurs.
Risk Factors.
To optimize outcomes we should aim to avoid injury from shoulder dystocia and, when possible, avert its occurrence. One step toward avoidance is to identify the patient at increased risk for shoulder dystocia and BPI.
There are a number of maternal and fetal characteristics associated with the development of shoulder dystocia and BPI, but many cases develop without recognized antecedent risk factors [16]. The ability to predict the occurrence in an individual delivery is limited, but not unachievable (see below), and the prevailing notion that shoulder dystocia is always an unexpected complication has done little to advance our understanding of how it might be prevented [17,18]. Several algorithms have been suggested to predict and thereby prevent shoulder dystocia based on identifiable predisposing factors [19-23]. Risk factors for shoulder dystocia and BPI can be usefully categorized into those identifiable in the patient's history, and those that arise or are identified during prenatal care or labor (Box 1).
Box 1.
Major risk factors for shoulder dystocia and Erb palsy.
History History of shoulder dystocia or baby with BPI Maternal diabetes Maternal obesity Antepartum factors Macrosomia (risk increases as fetal weight increases) Gestational diabetes Excessive weight gain Intrapartum factors Clinical pelvimetry and estimated fetal weight concerning for CPD Protracted active phase dilatation Arrest of dilatation Prolonged deceleration phase Failed, protracted or arrested descent Long second stage Precipitate second stage Instrumental delivery BPI: Brachial plexus injury; CPD: Cephalopelvic disproportion.
Obstetric History A woman with a prior pregnancy complicated by shoulder dystocia or BPI, neonatal macrosomia or diabetes mellitus is at increased risk for difficult shoulder delivery [24,25]. A previous shoulder dystocia increases the risk of recurrence several fold; up to 10-20% of patients have the complication with a subsequent birth [24-26], often with a higher incidence of associated BPI than the primary case [24]. These observations make it reasonable to offer cesarean delivery to patients with a history of shoulder dystocia in a previous pregnancy, particularly if there are other associated risk factors present.
Having had a macrosomic infant previously also increases the risk of shoulder dystocia [27]. It is uncertain whether a family history of shoulder dystocia in a sister or mother predisposes the patient to the complication or if differences in racial background or body type of the father of the pregnancy plays a role. In general, fetal growth is more dependent on maternal than paternal body composition and stature, although paternal stature contributes [28,29].
Other factors that some studies have associated with elevated rates of fetal macrosomia (and presumably shoulder dystocia) include high maternal birth weight, short stature, preexisting obesity, diabetes, excessive weight gain in pregnancy and advanced maternal age [30-33].
Prenatal care A number of further risk factors are identifiable during the course of prenatal care. Some of these are potentially modifiable, but most are not. Prominent among these are maternal obesity [30,34], excessive weight gain [27,35], various degrees of glucose intolerance [36,37] and multiparity [30]. Ideally, maternal obesity should be addressed before pregnancy. Substantial weight loss is not prudent during gestation because it may predispose to small for gestational age infants, especially in women with relatively mild obesity [38]. Moderation of caloric intake and careful attention to weight gain during pregnancy does reduce the risk of macrosomia in women with class II and III obesity [38].
Maternal diabetes mellitus has long been recognized as a strong risk factor for shoulder dystocia [39-41]. In addition to predisposing to macrosomia [42], diabetes, especially if glycemic control is poor, confers differences in body proportions that probably explain why, at any given birth weight, the fetus of a diabetic mother is more likely to experience shoulder delivery obstruction than one of a nondiabetic [41,43-44]. The fetus of a diabetic is prone to central growth and adiposity, with the trunk relatively large compared with the head [37,45]. In fact, this disproportionate growth affects large babies of nondiabetics, and helps explain the high incidence of shoulder dystocia among them [45,46].
Glucose tolerance exists on a continuum, and it is therefore not surprising that the incidence of neonatal macrosomia, shoulder dystocia and BPI is increased among women who have a positive 50 g glucose challenge test followed by a negative glucose tolerance test, particularly if the latter has one abnormal value [36,37].
Intrapartum observations Careful evaluation of a parturient can reveal risk factors not previously recognized. Clinical or ultrasonographic estimation of fetal weight is valuable. Indeed, fetal macrosomia (variously defined) is the strongest risk factor for shoulder dystocia and BPI in both diabetic and nondiabetic pregnancies (Box 1) [47,48].
Estimation of fetal weight can, however, be challenging, especially in the large fetus, for which measurement errors can be substantial. Even ultrasonography does not always provide highly accurate fetal weight estimates [49,50]. In part for that reason, recommendation for cesarean delivery based solely on a high estimated fetal weight is not likely to be cost effective and would result in an excessive number of unnecessary cesareans [51-53]. Moreover, approximately half of shoulder dystocia events occur in fetuses weighing <4000 g [3,52], so simply using a weight cutoff to preclude a trial of labor will not prevent many cases [50,52]. The American Congress of Obstetricians and Gynecologists has suggested consideration of cesarean section to prevent a shoulder dystocia at an estimated fetal weight of 4500 g in a diabetic and 5000 g in a nondiabetic patient, although several hundred cesareans would probably required for prevention of each BPI using such weight criteria [51].
Induction of labor in cases of suspected fetal macrosomia does not decrease the incidence of shoulder dystocia, except perhaps in some diabetics [54-56]. Likewise, although a male fetus is more likely to have shoulder dystocia than a female [57], male fetal sex is not a sufficiently compelling reason to recommend induction of labor or cesarean to prevent shoulder dystocia.
Thorough clinical cephalopelvimetry can be especially helpful to the clinician in assessing risk, because certain pelvic features predispose to difficult shoulder delivery. The presence of a narrow anteroposterior outlet diameter (common in a pelvis with android or platypelloid features), or a long and steeply inclined pubic symphysis (seen primarily in an anthropoid pelvis), should alert the clinician to an increased risk, especially if other predisposing factors exist. Shoulder dystocia can even occur in a gynecoid pelvis if it is unusually small or descent is precipitate.
As labor progresses, certain abnormalities of dilatation and descent signal further risk, probably because of their association with fetal macrosomia or fetopelvic disproportion. In at least half of BPI cases a preceding dysfunctional labor pattern can be identified [37]. Arrest and protraction disorders of the active phase and second stage probably predispose, as does (seemingly paradoxically) precipitate descent [58]. But one abnormality of the first stage, a prolonged deceleration phase, has a particularly strong association with shoulder dystocia and neonatal BPI [27,30,59]. This abnormality, which occurs when final retraction of the cervix around the fetal head is delayed because fetal descent cannot be timely initiated, is an important bellwether for second stage abnormalities and shoulder dystocia. When a prolonged deceleration phase is combined with a second stage longer than 2 h the odds of BPI increase 20-fold [20].
Decisions about assisted vaginal delivery in the setting of a prolonged second stage in a patient with a suspected macrosomic fetus should be informed by the fact that the use of forceps or vacuum extractor substantially increases the risk of shoulder dystocia [60]. This is especially true if the delivery is done from the midpelvis, but applies as well to all instrumental deliveries [2,61-62]. Moreover, the shoulder dystocia associated with these deliveries is more likely to require complex maneuvers and result in fetal injury [61].
Prediction It is often assumed that shoulder dystocia is an unpredictable and, therefore, unpreventable complication [17,63] but this fatalism is unwarranted. Although predicting with certainty that shoulder dystocia or BPI will occur in a particular case is rarely possible, our ability to identify cases in which shoulder problems are likely is improving and can help guide clinical decisions.
Three kinds of systematic attempts to identify cases at high risk have been promulgated. One uses late pregnancy or intrapartum sonographic measurements of body weight and dimensions, an attempt to identify the fetus with macrosomia or a disproportionately large trunk or bisacromial diameter. Empiric risk scores have also been used, based on the assumption that there might be a direct relationship between the number and type of risk factors and likelihood of shoulder complications. Finally, multivariate statistical techniques can assess risk factors based on their strength and interaction in a population so that risk can be assessed for an individual patient [20-21,64]. These approaches have yielded mixed results.
Ultrasonography has not proved very helpful in identifying candidates for preemptive cesarean delivery. Shoulder dystocia and BPI are strongly associated with large fetal weight [65] but, although using a weight threshold for preventive cesarean will forestall many cases, the trade-off in higher economic cost and in maternal and neonatal morbidity is substantial [65-68]. A more focused approach that relies on identifying the fetus with disproportionate trunk or shoulder girdle growth seems more promising, but the predictive values and false positive rates are not encouraging [69]. Gerber et al., for example, found that for an abdominal/head circumference ratio above 1.05 the sensitivity and specificity for the prediction of shoulder dystocia were 46 and 75%, respectively, with a positive predictive value of only 5.7% [70]. Similar results were obtained by other investigators [71].
Risk factors, as discussed above, are characteristics or events shown to occur with a significantly higher frequency in association with the outcome under study. But a distinction must be made between risk factors and predictive factors. Many strong risk factors for an outcome are poor predictors of it, particularly if they are prevalent in the population. For example, maternal obesity has a strong association with shoulder dystocia and BPI; but the presence of obesity in an individual is a poor predictor of BPI because obesity is common, and only a small proportion of obese parturients have shoulder dystocia or BPI. Further complicating this issue is that many of the strong risk factors for shoulder dystocia are not mutually exclusive, and their interactions are not well understood. For example, gestational diabetes mellitus, obesity, fetal macrosomia, excessive weight gain and dysfunctional labor frequently coexist, and whether their individual influences on risk overlap, are additive, or multiplicative may be difficult to discern statistically. Moreover, the independent effects of variables may vary among patients according to the complex clinical situation in which they occur. That may be why empiric risk scoring systems have not been fruitful [22,23].
Multivariate analytic techniques, which can consider the interaction of risk variables associated with shoulder dystocia or injury, hold the most promise for prediction [20-21,64]. One study created an Erb palsy risk score from a series of 45 cases. Applied to a theoretical population, the risk scoring system would prevent 36% of BPI cases and result in 14 (in retrospect, unnecessary) cesarean deliveries for each BPI averted [20].
To optimize the value of these multivariate predictive systems they must be unique to the population in which they are used because the influence of demographic variables will depend on their prevalence in the population. Even the baseline prevalence of shoulder dystocia and BPI will affect the value of these systems. In addition, only variables the practitioner can discern and act upon before delivery should be used. Thus, in a decision matrix aimed to reduce the incidence of BPI, variables like birth weight (which cannot be known accurately before delivery) or the presence of shoulder dystocia (which, once present, precludes preemptive cesarean) should not be incorporated as variables. Unfortunately, variables that could be valuable in a risk scoring system, such as pelvic architectural features and details of obstetric history, are often not recorded, or are not assessed with sufficient clarity to be of value.
Given the current state of our knowledge, and the fact that multivariate risk scoring systems are not yet suitable for general use, what approach should the practitioner take to minimize the incidence of BPI without doing an excessive number of cesarean deliveries? A practical approach is to consider the presence of risk factors in the three categories described above (historical, prenatal and intrapartum). The presence of strong risk factors in two or three categories should prompt strong consideration of cesarean delivery. It is necessary to consider that the adverse influence of a risk factor is affected by its severity. Poorly controlled diabetes presents greater hazard than a case with euglycemia; an estimated fetal weight of 5 kg is more concerning than one of 4 kg; a prior shoulder dystocia that resulted in permanent BPI is of greater importance than one that resolved without injury. Moreover, risk assessment is a serial process, and as new problems are identified during the course of care, especially during labor, plans can be altered accordingly. For example, the development of a prolonged deceleration phase in a woman with other risk factors may well be sufficient to tip the scales in favor of cesarean section.
Clinical management.
When shoulder dystocia occurs there is an understandable urgency perceived by everyone in the room, not least the patient, who is generally quick to react with anxiety to fears expressed by the staff or to chaotic behavior. Although the situation needs to be addressed promptly and efficiently, hasty management can do serious damage. Deliberate and logical steps should be taken, and, assuming that fetal oxygenation was normal at the onset of the dystocia, taking several minutes to deliver the fetus rarely causes significant morbidity. To ensure optimal outcome the primary provider and the rest of the team must institute a coordinated prescriptive plan of action. There is some evidence that staff training approaches including drills, checklists and debriefings after shoulder dystocia cases can be helpful. They improve documentation and result in superior outcomes [72,73]. It is important that all staff are included in these training exercises so that everyone understands her or his role when this emergency occurs [34,73-75]. Our suggested management paradigm is outlined in Figure 1 and described below [75].
Figure 1.
A logical paradigm for the management of shoulder dystocia. This approach works well, but the order of applied maneuvers should be modified according to the extant situation.
While its details may be modified to address individual or institutional preferences, availability of clinical resources and extant circumstances, the need to proceed with a logical sequence of assessments and maneuvers is paramount. A detailed description of the technical aspects of maneuvers to resolve shoulder impaction is beyond the scope of this review. For such information the reader is referred to references 75-78. There is not strong evidence to support any sequence of manipulations as being superior to others. Most recommendations are based on clinical experience. Whatever maneuvers are used, it is important not to rush, to remain calm and to give clear instructions to the patient and assistants. Intense fundal pressure, downward traction on the fetal head or repeated forceful suprapubic pressure should be avoided, as these actions are likely to result in injury. An episiotomy may be appropriate. It will not relieve the obstruction, but will facilitate intravaginal or intrauterine manipulations.
When shoulder dystocia is suspected, often - but not always - by finding the baby's head retracted tightly against the mother's perineum, the management plan should be instituted. The best initial approach is not to touch the baby's head, no matter how tempting to do so. The brachial plexus may already be on tension, and it can take surprisingly little force to injure it. Rather, it is advisable to await the next contraction before instituting any maneuvers [76]. Use the intervening time to assess the situation by thorough examination, to summon necessary help and to explain to the patient and the team what is to be done. The mother should be encouraged not to push until a shoulder is emerging, and fundal pressure should generally be avoided. The most experienced obstetrician available should take charge of management.
The presence of a protocol, unique to each institution, is vital. Once triggered by personnel at the delivery a series of events should be set in motion so that help is summoned. An experienced obstetrician and obstetrical nurse are important, as may be a neonatologist and anesthesiologist. If the patient was deemed to be at very high risk extra help should be immediately available in anticipation of difficult shoulder delivery.
A careful examination of the patient should be done, with a focus on several things. Determine the orientation of the shoulders in the pelvis, assess whether the posterior shoulder has negotiated the sacral promontory and entered the midpelvis and rule out a compound presentation. Reassess the subpubic angle and the inclination of the lower sacrum and coccyx. If the posterior shoulder is unengaged or there is a limb presenting alongside the head, problems that complicate a few percent of shoulder dystocias, these should be dealt with promptly. If not, and the anterior shoulder does not stem beneath the symphysis pubis with the subsequent contraction, attempt rotation of the shoulders into an oblique diameter of the inlet (Rubin maneuver) [77]. If rotation is not possible, consider delivery of the posterior arm. If rotation occurs but delivery does not, continue rotation a full 180°, the Woods maneuver [78].
When the lead provider is attempting to rotate the shoulders it is advantageous for an assistant to facilitate rotation by applying pressure to the anterior shoulder suprapubically. This pressure should be directed posterolaterally in the same direction as vaginal attempts by the lead provider so as to encourage rotation of the trunk. Suprapubic pressure directed posteriorly will not accomplish that goal.
Delivery of the posterior arm The posterior arm will usually be extended, and require flexion so that the hand can be grasped and the arm pulled across the fetal chest. Once the posterior arm is delivered, the anterior shoulder will usually emerge easily. Computer simulation suggests that this approach might involve less stretch applied to the brachial plexus when compared with suprapubic pressure or rotation of the fetal shoulders [79] and, when it can be accomplished, is highly effective in relieving the obstruction [80]. Fracture of the humerus is not an uncommon complication of posterior arm delivery, especially when flexion of the elbow is difficult or impossible. Most such injuries heal well.
Extreme maneuvers Clavicle fracture When more conservative approaches fail, intentional fracture of the clavicle may relieve a shoulder dystocia. In fact, spontaneous fractures are not often associated with BPI, probably because the collapse of the shoulder girdle precludes the problem. The posterior clavicle is generally most accessible. Careful technique is required to avoid injuring the subclavian vessels or the apex of the lung.
Zavanelli maneuver When all attempts to relieve shoulder obstruction have failed, the Zavanelli maneuver is an option. The fetal head is flexed and pushed back into the uterus, reversing the movements of the preceding mechanism of labor. Expeditious cesarean is then done. There are case reports and case series detailing the use of this maneuver, with mixed results [81-83]. During the time before delivery, death or permanent peripheral or central nervous system injury may have already occurred [81]. However, the technique can be successful, with excellent maternal or neonatal outcome [82]. Because it is done so infrequently, and not all cases are reported, it is impossible to evaluate the relative risks and benefits of the Zavanelli maneuver.
Symphysiotomy This procedure, which involves surgical division of the symphysis pubis via an incision in the mons veneris, is performed rarely in the developed world, although it does have advocates [84,85]. In cases of intractable shoulder dystocia, often after a failed Zavanelli maneuver, it has been used as a last resort [86]. Injury to the urethra, an unstable pelvis and chronic osteitis pubis can complicate the procedure and recovery.
Atypical presentations Maneuvering the posterior shoulder into the sacral hollow When initial examination after diagnosis of suspected shoulder dystocia finds the anterior shoulder impacted behind the symphysis and the posterior shoulder above the sacral promontory, most maneuvers will be of no avail until the posterior shoulder is engaged. To accomplish this, place traction on the fetal scapula or, if necessary, the axilla, pulling the shoulder into the sacral hollow. The movement of the shoulder into the pelvis from above the inlet will allow manipulation of the shoulders or posterior arm to facilitate delivery. The use of an axillary sling to manipulate the posterior shoulder has been advocated [87].
Compound presentations.
The presence of a prolapsed arm or a leg adjacent to the head can cause shoulder dystocia, and identifying a compound presentation is vital before any of the usual maneuvers is initiated. The limb may remain in the vagina once the head delivers, or may be completely prolapsed. If it is a leg and cannot be easily repositioned, cesarean will be necessary. If it is the posterior arm, attempt to deliver it directly, and if the anterior arm presents, do a Woods maneuver to move it posteriorly to facilitate its delivery.
Rare sources of dystocia Rarely, what appears to be shoulder dystocia is caused by other obstructive phenomena. A large sacrococcygeal teratoma, conjoined twins or fetal ascites can prevent delivery of the fetal body after the head emerges. In these situations, some clues from the physical examination can be helpful, and ultrasound imaging in the delivery room may make the diagnosis and guide therapy. Cesarean delivery is usually necessary, although in the case of ascites needle drainage can sometimes be done to diminish the abdominal circumference.
McRoberts Maneuver The McRoberts maneuver, which came into popular use in the early 1980s, is often recommended as the first maneuver to use in a case of shoulder dystocia. It has the advantages of simplicity, ease of application and no requirement for skillful manipulation. Full flexion of the mother's knees and hips against her abdomen may alter pelvic dimensions to favor delivery [88]. It is successful in a substantial number of cases [89]. However, in severe cases when the McRoberts maneuver does not work it may in fact contribute to the occurrence of BPI, and for this reason we do not recommend its use. The rotation of the pubic symphysis may draw the impacted anterior shoulder away from the head fixed at the introitus, thus introducing further tension on the already stretched brachial plexus roots. Moreover, when this procedure is used, it is often accompanied by unnecessary and potentially harmful downward traction on the head and suprapubic pressure. It does not work prophylactically, and potentially places more tension on the fetal neck than maneuvers that involve manipulation of the shoulders [2,90-92]. Adoption of McRoberts maneuver has been associated with an increased incidence of BPI over time [12], despite the increasing rate of cesarean delivery among macrosomic babies [93,94].
Maternal position The importance of maternal posture requires emphasis. Most deliveries occur with the mother in a modified lithotomy position. All of the maneuvers described for manipulation of the fetus tend to be described from this perspective, which is most convenient for the attendant, but not always the most comfortable for the parturient. In fact, reports, admittedly anecdotal, from situations in which alternative positions for delivery are the norm suggest very low rates of shoulder dystocia. The use of the lateral position, or even squatting or kneeling on hands and knees should be considered for deliveries in which there is a high risk of shoulder dystocia. Moreover, these positions may be valuable in the management of obstructed shoulders and should be strongly considered if initial attempts at rotation of the shoulders are unavailing. These options can be limited by epidural anesthesia or by patients who find it difficult to change position. The Gaskin maneuver (moving the patient onto her hands and knees) and the lateral position often result in spontaneous or easily expedited delivery of the posterior shoulder [3]. If necessary, delivery of the posterior arm is often facilitated by these positions.
Conclusion Shoulder dystocia is infrequent but has potentially serious consequences. It can be prevented by performing preemptive cesarean delivery on cases at very high risk, but our ability to identify such cases is still limited. Prompt diagnosis and optimal management of shoulder dystocia when it occurs is the key to preventing permanent neurologic sequelae. Management requires the coordinated efforts of a team with the requisite skills. The team leader should direct the management and institute a series of maneuvers to extricate the fetus with minimal risk to it and the mother. A thorough understanding of relevant pelvic and fetal anatomy is necessary as well as of the mechanisms through which the dystocia can be resolved. Maneuvers that involve manipulation of the fetal shoulder girdle confer less tractile force on the fetal brachial plexus than manipulations of the mother or of the fetal head or neck.
Future perspective To reduce the frequency of BPI, especially that associated with difficult shoulder delivery, will require progress on two seemingly paradoxical fronts. First, we must harness the ability of decision support software in electronic obstetric records to present the clinician with updated risk assessments during the course of pregnancy and labor. The supporting algorithms must be population-specific and be modeled so as to consider all relevant variables that might impact risk while there is still time to avoid hazardous vaginal delivery. Each hospital or governing organization will need to set thresholds for the number of cesareans that is an acceptable trade-off for preventing a BPI.
In addition to this futuristic approach there is a need to revisit education in some basic obstetric principles. The importance of clinical cephalopelvimetry and accurate identification of dysfunctional labor patterns - both arguably diminishing skills - is necessary for the best possible information to be fed to the computer algorithms.
Study of the relative value of various maneuvers or sequences of maneuvers for management of shoulder dystocia could, in theory, be accomplished in a series of randomized clinical trials. Such studies would be difficult to design because of the many potentially confounding variables to take account of, would require very large multi-institution samples, and would be very expensive and complex.
Executive summary Shoulder dystocia occurs in 0.15-2% of all deliveries.
Brachial plexus Injury is diagnosed in up to 20% of newborns after shoulder dystocia. Injury is transient in most, but can lead to serious permanent disability.
Risk factors Risk factors can be identified in the patient's history and during prenatal care and labor. Most prominent are a history of prior shoulder dystocia or brachial plexus injury, current fetal macrosomia, maternal obesity, diabetes mellitus, excessive weight gain and dysfunctional labor patterns, especially a long deceleration phase followed by a long second stage.
Prediction Prediction of this complication is imperfect, but many cases can be avoided by taking multiple risk factors into account and delivering the highest risk cases by preemptive cesarean. Risk assessment is best accomplished by multivariate analysis, but current systems can predict only about a third of cases.
Clinical management Skillful use of a logical series of maneuvers can prevent injury in many cases. Staff training and simulation exercises are helpful to prepare for management of this emergency.
When shoulder dystocia is suspected it is useful to await the next contraction before initiating any maneuvers. Traction on the fetal head and neck should be scrupulously avoided.
Initial maneuvers should focus on rotation of the fetal shoulders. If unsuccessful, delivery of the posterior arm is usually helpful, as is moving the mother into a lateral or hands-and-knees position.
Limited data exist on the effectiveness and safety of intentional clavicle fracture, the Zavanelli maneuver and the use of symphysiotomy. They could be considered, however, in desperate cases.
Financial & competing interests disclosure The authors have no relevant affiliations or financial involvement with any organization or entity with a financial interest in or financial conflict with the subject matter or materials discussed in the manuscript. This includes employment, consultancies, honoraria, stock ownership or options, expert testimony, grants or patents received or pending, or royalties.
No writing assistance was utilized in the production of this manuscript.
References Papers of special note have been highlighted as: • of interest; •• of considerable interest
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So it is clear that shoulder dystocia is a serious obstetric emergency. It is more common in the case of the vaginal birth. The complainant has pleaded in his complaint that the opposite parties want to extort money and they wanted cesarean operation but as the baby born normal they managed to extort money by one way or the other. This allegation is totally false as per medical literature. The seizure operation would be a better option in this case if knew the condition of the baby. The next issue is concerned with asphyxiated baby.
What is asphyxia neonatorum?
Asphyxia neonatorum is a condition that occurs when a baby doesn't get enough oxygen during the birth process. It can be fatal. Another more common name for it is perinatal asphyxia, or birth asphyxia. Hypoxic-ischemic encephalopathy may be a result of severe asphyxia neonatorum.
What are the symptoms of asphyxia neonatorum?
Babies may not experience the symptoms of asphyxia neonatorum right away. A fetal heart rate that's too high or low can be an indicator.
Your baby may experience immediate symptoms after birth. These can include:
skin that appears pale or blue difficulty breathing, which may cause symptoms such as nasal flaring or abdominal breathing a slow heart rate weak muscle tone The length of time your baby goes without oxygen affects the severity of symptoms. The longer a baby is without oxygen, the more likely they are to experience symptoms. More severe symptoms can include injury or failure of the:
lungs heart brain kidneys What are the causes of asphyxia neonatorum?
Anything that affects your baby's ability to take in oxygen can cause asphyxia neonatorum. During labor and delivery, doctors must carefully monitor and try to manage oxygen levels for both mother and baby to reduce risks.
Asphyxia neonatorum can occur if one or more of the following occurs:
Your baby's airway is blocked.
Your baby has anemia, which means their blood cells don't carry enough oxygen.
The delivery lasts too long or is difficult.
The mother doesn't get enough oxygen before or during delivery.
The mother's blood pressure is too high or low during delivery.
An infection affects the mother or the baby.
The placenta separates from the uterus too quickly, resulting in a loss of oxygen.
The umbilical cord wraps improperly around the baby.
There are two ways babies who lose oxygen before, during, or after delivery can experience asphyxia neonatorum. The lack of oxygen can cause immediate damage. This can happen within minutes. Damage can also occur when cells recover from the lack of oxygen and release toxins into the body.
Who is at risk for asphyxia neonatorum?
According to the Seattle Children's Hospital, asphyxia neonatorum occurs in about 4 out of every 1,000 full-term live births in the United States. Premature babies are at increased risk for this condition. Babies born to mothers with conditions that affect pregnancy, such as diabetes mellitus or preeclampsia, are also at greater risk.
A study published in the Italian Journal of Pediatrics notes that the mother's age or the baby's low birth weight are also risk factors. It's also more common in developing countries where mothers have less access to proper prenatal and postnatal care.
Top of Form Bottom of Form How is asphyxia neonatorum diagnosed?
Your baby will receive an Apgar score about 1 to 5 minutes after birth. The scoring system has five factors:
breathing pulse appearance response to stimulus muscle tone Each factor gets a score of 0, 1, or 2. The highest score possible is 10. A baby with a lower Apgar score after 5 minutes has a higher risk for asphyxia neonatorum. A score lower than 7 can indicate that a baby doesn't have enough oxygen. The doctor may suspect your baby has asphyxia neonatorum if they have an Apgar score of 3 or lower for more than 5 minutes.
A doctor may also test a baby's blood for high acid levels. This can indicate poor oxygenation. A doctor may also order blood tests to see if a baby's kidneys, heart, and liver might be affected.
How is asphyxia neonatorum treated?
The severity of your baby's symptoms influences the treatment. The timing of when your baby receives the diagnosis also affects their treatment. For example, mothers may receive additional oxygen before delivery to boost a baby's oxygenation before birth. A cesarean delivery is a potential preventive measure in prolonged or difficult deliveries.
After birth, babies with the condition may need ventilation to support their breathing. Keeping babies warm has also been shown to reduce harmful effects. Doctors will also monitor the baby's blood pressure and fluid intake to make sure they're getting enough oxygen.
Some babies can experience seizures as a result of asphyxia neonatorum. Doctors should carefully treat these babies to avoid injury from seizures.
What is the long-term outlook?
The outlook depends on how long your baby goes without oxygen. Surviving babies can experience anything from no consequences to major long-term disabilities.
Asphyxia neonatorum is a leading cause of brain damage and death in infants worldwide. An estimated 900,000 babies die each year around the world due to asphyxia neonatorum, according to the World Health Organization, the majority of these deaths occur in developing countries. Early diagnosis and prompt treatment of the condition are vital to saving the baby and minimizing complications.
Diagnosing Birth Asphyxia At birth, doctors and nurses check your baby's condition carefully and give a number rating from 0 to 10. This number is called an Apgar score. The Apgar rates skin color, heart rate, muscle tone, reflexes and breathing effort. A very low Apgar score (0 to 3) lasting longer than 5 minutes may be a sign of birth asphyxia.
The doctor will check your baby for other signs of a lack of blood flow or oxygen. These include:
Abnormal breathing Poor blood circulation Lack of energy (lethargy) Low blood pressure Not peeing Blood-clotting abnormalities Treating Birth Asphyxia If your baby has mild asphyxia at birth, they will get breathing support until they can breathe well enough on their own. We watch them closely for signs of problems.
Babies with more serious asphyxia may need:
Breathing support from a machine that sends small, rapid puffs of air into your child's lungs. Some babies may need nitric oxide through a breathing tube or a heart-lung pump for life support.
Body cooling (hypothermia).
Medicine to control blood pressure.
Kidney support with dialysis.
Medicine to treat seizures.
Intravenous (IV) nutrition to give their bowel time to recover.
When needed, we provide these advanced treatment options:
-High-frequency ventilation High-frequency ventilation uses a breathing machine that sends small, quick puffs of air into your baby's lungs. It is more gentle than a regular breathing machine, which sometimes uses high pressure that can damage fragile newborn lungs.
-Inhaled nitric oxide Inhaled nitric oxide is used if your baby has respiratory failure or high blood pressure in the lungs (pulmonary hypertension). Your baby will get nitric oxide through a breathing tube into their airway. This helps open (dilate) the blood vessels in their lungs so the vessels can carry oxygen-rich blood around the body.
-Hypothermia Research shows that cooling a baby's internal body temperature to 33.5 degrees C (about 91 degrees F) for 72 hours can help protect their brain from damage during the second stage of asphyxia. This stage (reperfusion) is when normal blood flow and oxygen are restored to the brain. This treatment works best to reduce brain damage if it is started within 6 hours after birth. This treatment is only used if babies are at least 35 weeks' gestation (not more than 5 weeks early).
-Extracorporeal life support (ECLS) Extracorporeal life support uses a heart-lung pump to provide temporary life support when a baby's heart or lungs are not working well or need time to heal. "Extracorporeal" means outside the body. Oxygen-poor blood is drawn into a machine that removes carbon dioxide, adds oxygen and then returns the oxygen-rich blood to the baby's body. We will give your baby sedation while on ECLS. A nurse and an ECLS specialist will closely monitor your baby. The ECLS machine used to be called extracorporeal membrane oxygenation (ECMO).
-Follow-up treatment Babies born too soon (premature) or those who did not get enough oxygen during birth may have permanent injury. This may affect their brain, heart, lungs, kidneys, bowels or other organs.
Babies with asphyxia may develop:
Cerebral palsy Cerebral palsy (CP) is a general term for when a person has permanent differences in how they move and control their muscles (motor function). The differences are caused by an injury to a child's developing brain. The brain injury can happen before, during or after birth. The injury does not change (it is non-progressive), but the effects can change over time and worsen as children grow. CP affects a child's strength, muscle tone and motor control.
There are also many related conditions that can be seen in children with CP. These may include difficulties with gross and fine motor skills, cognitive abilities, and speech and language development. It is important to talk to your medical provider(s) about what related conditions your child may have. A diagnosis of CP does not guarantee your child will have related conditions.
Developmental delays Attention deficit hyperactivity disorder (ADHD) Hearing problems Eyesight problems After your child receives any urgent or emergency treatment they need, the team at Seattle Children's plans and provides ongoing care so your child has the best possible outcome. We evaluate all your child's health needs and work with you to create a care plan that fits your child and family. Catching problems early and getting a referral to specialists may improve outcomes for your child.
So asphyxia neonatorum occurs in about 4 out of every 1,000 full-term live births in the United StatesWe have seen the delivery notes of the opposite party no 1 dtd 04.09.16 , where it has been written "swelling on hand". On the case sheet of 02.09.16 it is written "swelling noted over hand" and it is also written "sumag dressing given" on this date the baby was taking mothers feed and burping. The baby has been given to the mother on 01.09.16 at 10 PM. The complainant was discharged on 04.09.16 and on that date it has clearly been mentioned that there is swelling on the hand. On 06.09.16 the complainant was advised to consult Dr Prof SD Pandey (Plastic Surgeon). The complainant has stated that she visited Dr Prof SD Pandey but he did not want to involve himself in this case, then she visited Dr Manoj Kumar Singh on 07.09.16 who referred the case to SIPS. After this the complainant went to Mumbai and admitted her baby in Bai Jerbai Wadia Hospital. Here she was till 25 September 2016. Thereafter she went to Narayaana Hospital of Narayana Handayalaya Ltd at Bangalore and got her baby admitted on 03.10.2016 . Now it is not clear that between 07.09.16 till 25.09.16 what action was taken by the complainant, as she did not go to SIPS but she went to Mumbai. Again there is no account of the baby for the period 25.09.16 till 03.10.16 . It is really surprising that during such a long period she did not visit any hospital or she did not take any step for her baby.
We have seen the papers filed by the complainant . There are some papers related to Bai Jerbai Wadia Hospital, in which plastic surgeon's opinion has been mentioned. There is Echocardiogram and Colour Doppler report. As per colour Doppler examination report, the veins are compressible and reveal no luminal thrombosis. The impression is that no deep or superficial vein thrombosis is seen. In another test of colour Doppler of right upper extremity artery dtd16.09.16 , the impression noted is "sub acute thrombotic occlusion of the radial artery from its proximal third segment onwards up to the wrist joint with collaterals seen along its entire course. Sub acute thrombotic occlusion of the ulnar artery from its mid segment onwards up to wrist joint where it shows very poor patchy recanalization via: collaterals." After this date what steps were taken by the complainant is not clear. Another discharge summary belongs to NH Mazumdar Shaw Medical Center which shows that the baby was admitted there for 15 days from 03.10.16 till 14.10 16 .It has been advised that review in plastic surgery OPD with Dr Ashok Kaul on 18.10.16 for further care. It is also not clear whether she visited the doctor or not. There is one discharge summary of Sparsh dated 31.10.16 were to retain that operated case of groin flap of right hand. Groin flap division and suturing done Under General Anaesthesia. The baby went to this hospital for further management.The groin flap is an axial pattern flap based on the superficial circumflex iliac artery and the superficial venous network of the groin area. The superficial circumflex artery commonly arises from the femoral artery and in about 50% of cases there will be a common trunk with the superficial inferior epigastric artery.Flap surgery involves transporting healthy, live tissue from one location of the body to another - often to areas that have lost skin, fat, muscle movement, and/or skeletal support.
There are some papers of the Jaslok Hospital and Research Centre Mumbai, some papers are of 22.09.16 but the complainant has not mentioned about these papers. So from the above facts one thing is clear that grave carelessness has been shown by the complainant by not visiting to any hospital between 07.09.16 to 18.09.16 and again from 25.09.16 to 02.10.16 . Nothing has been revealed by the complainant that what she did during this period. So it shows that the opposite parties discharged her on 04.09 16 and advised her to visit the plastic surgeon but she visited first to Mumbai and then to Bangalore. Also between intermittent period she did not visit to any hospital or doctor. So we find that there is no deficiency of service or carelessness on the part of the opposite parties no.1 to 3.
One issue raised by the complainant is regarding the two medicines given to the baby by the opposite parties no 1 to 3 . It is in relation to Taxim 250 mg once daily and injection Amikacin 50 mg . Let us see its constituents and doses.
Taxim 250 MG Injection is a third-generation cephalosporin antibiotic.
Cefotaxime is a third generation cephalosporin antimicrobial agent which has received wide acceptance as a first-line antibiotic for many infections in neonates, infants and children. With an average elimination half-life of about 1 h, cefotaxime is not considered to be a 'long half-life cephalosporin' like ceftriaxone. For this reason, currently accepted dosage regimens for cefotaxime in infants and children employ a dosage of 50 mg/kg every 6 h. Re-examination of the paediatric pharmacokinetic data for cefotaxime and use of simple multiple-dose pharmacokinetic simulation of alternative dosage regimens was performed. From this analysis, regimens administering 75 mg/kg of the drug every 8 h or every 12 h were projected to produce serum cefotaxime concentrations adequate to effectively kill many of the common pathogens against which the drug is currently indicated for use in children. The clinical utility of these alternative dosage regimens was supported by a review of the medical literature and examination of the clinical results from studies in neonates, infants and children where cefotaxime was administered in 2 to 3 divided doses daily. It would appear, therefore, that increasing the cefotaxime dosage to 75 mg/kg administered at 8 h intervals would result in less frequent drug administration which would not be expected to compromise safety and efficacy. Alternative dosage regimens for cefotaxime merit further consideration and clinical evaluation before they become commonly used in paediatric therapeutics.
injection Amikacin 50 mg Emergence of a multiply drug resistant Enterobacter cloacae during a seven-week period in 1980 caused amikacin to become the aminoglycoside of choice in the initial management of suspected sepsis in a neonatal intensive care unit. Recommended doses (7.5-10 mg/kg loading; 15 mg/kg in two divided doses IV) were given to 5 infants < or = 1,000 gm and to 13 larger babies. Trough levels 11.5 hours after a dose were 16.6 +/- 11.9 microg/ml in infants < or = 1,000 gm and 6.5 +/- 4.3 microg/ml in the larger infants (P < 0.02). Peak levels one hourpostinfusion exceeded 40 microg/ml in 3 of 5 < or = 1,000-gm babies and 4 of 12 > 1,000-gm infants (P = NS). Overall, 7 of 10 peak and/or trough levels in < or = 1,000-gm infants were in the range considered toxic in adults, versus 7 of 24 in larger babies (P = 0.03). These data show that surprisingly excessive blood levels of amikacin are likely in infants < or = 1,000 gm and may also occur in larger infants using currently recommended dosage schedules. These unexpected findings emphasize the need to monitor drug levels and individualize therapy in very low birthweight infants.
As per opinion of the doctor and paediatrician the above mentioned medicines were given and it cannot be said that it was given in overdoses. So from all the facts we are of the opinion that in this case res ipsa loquitur is absent. No negligence has been shown by the opposite parties no 1 to 3 . One thing is also needs clarification. It is very difficult to find the veins of a newly born baby and to make it conspicuous the hand is patted gently to find the vein for IV drip. So it has no force that they were puncturing the muscle of the hand of poor baby. How to find a ein to Draw Blood? First, palpate the patient's arm for a vein. Most veins are not visible to the naked eye, and touching may be the only way to find a problematic vein. Trying to feel what is a viable vein or not is a critical skill for a phlebotomist. Palpate means examination by pressing on the surface of the body to feel the organs or tissues underneath. So it is wrong to allege that the opposite parties 1 & 2 were puncturing the muscle of the hand. We have seen the photographs of the baby and it is really shocking and we have full sympathy with the baby but as far as medical negligence is concerned, in this particular case we do not find any medical negligence on the part of the opposite parties.
So from all the facts and circumstances of the case and also going through various articles of medical literature, we have come to the conclusion that there is no deficiency of service on the part of the opposite parties 1 to 3 and there is no medical negligence on their part. The peasant complaint is liable to be dismissed.
ORDER The complainant is dismissed with cost.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to the Record Room. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated September 28, 2022 JafRi, PA II C-2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER