JUSTICE V.K. JAIN, PRESIDING MEMBER

          The complainant No.2 Pooja Gupta, wife of complainant No.1 and the mother of complainant No.3, consulted OP No.4 Dr. Sitwant Khan, a Gynecologist by profession, on 17.01.2012.  By that time, she already had an abortion about three year earlier and she also had a breach PP.  Repeat ultrasound was advised to her.  On 27.1.2012, she was advised by OP-4 to opt for delivery by Caesarian (Elective L.S.C.S), at Forrd Hospital.  The allegation of the complainants is that she deliberately advised her to go for Caesarian, whereas her condition did not require such a procedure.  She was admitted to Forrd Hospital for the aforesaid delivery on 02.12.2012.  She delivered a baby on the same day.  The Caesarian was performed by OP-4 and OP-3 Dr. Prakash Asthana was the Anesthetist, associated with her.  This is also the allegation of the complainants that the opposite parties did not take preoperative care and did not make adequate preparation, for the procedure and to overcome the complications, which could arise during the procedure.  The preliminary allegation of the complainants is that during the procedure, Smt. Pooja Gupta required oxygen, which the opposite parties did not provide to her and consequently her brain cells and other parts of her body got damaged, she having suffered Hypoxia, Ischemic Encephalopathy.   She was then shifted to Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow, UP on the same day, in a serious condition.  She regained her senses after 23 days of treatment in Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow but her memory and voice were lost because of non-supply of oxygen.  Alleging negligence on the part of the opposite parties in the treatment of Smt. Pooja Gupta, the complainants are before this Commission seeking compensation etc.  

2.      The complaint has been resisted by the opposite parties, who have denied any negligence in the treatment of Smt. Pooja Gupta.  On merits, it has been admitted that she had consulted OP-4 and was advised delivery by Caesarian, which, according to the Opposite parties, was done considering that she had already undergone abortion about three years ago and a breach PP had also been noticed on 17.1.2012.    It is further stated in the written version filed by the opposite parties that as per the ultrasound reports of Smt. Pooja Gupta, the delivery had to take place by 04.2.2012 and the risk increases if a patient does not deliver by the due date.  She was therefore planned for Elective L.S.C.S. on 02.12.2012.  It is further stated that the operation was successful and there was no complications during the procedure.  It is also claimed that the required amount of oxygen was administered to her during the procedure and all other parameters were looked-after.  It is further alleged in the written version that when she was being transferred to the stretcher for being taken to the ward, she had a sudden cardiac arrest for which immediately cardiopulmonary Resuscitation was given.  She was resuscitated and shifted to ICU.  It is claimed that she was taken to Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow by her husband against medical advice and at that time all her vitals were normal.  

3.      During the course of hearing, the learned counsel for the opposite parties took a preliminary objection that no charges from the patient having been taken by the OP-4, she cannot be said to a consumer within the meaning of Consumer Protection Act.  I however find no merit in this contention.  Though, no fee for OP-4 is shown charged from the complainants in the bill issued by the hospital, it is not as if no charges at all were taken from them for the procedure undertaken at the hospital.  The complainants did make a substantial payment to Forrd Hospital for the procedure, medicines, consumables etc.  So long as consideration was paid to the hospital, it would be immaterial if no separate consideration was paid to OP-4 or was not charged by her, considering the condition of the patient, at the time she was transferred to Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow.  It is not necessary that the consideration from the consumer should always flow directly to the service providers.  If the consideration was paid only to the hospital, not only the hospital, OP-4 would also be liable to compensate the consumer if it is proved that she was negligent in the treatment of the patient.

4.      During the course of hearing, I specifically asked the learned counsel for the complainants as to what according to him was the negligence on the part of the opposite parties in the treatment of complainant No.1 Smt. Pooja Gupta.  Shri L.B. Rai, learned counsel for the complainants stated that the Ops had failed to provide oxygen to Smt. Pooja Gupta when it was required during the course of the procedure.  This according to the counsel, had resulted in she suffering from hypoxia, Ischemic Encephalopathy.  When the learned counsel was asked as to what evidence, the complainants have produced to prove that the oxygen was not provided to Smt. Pooja Gupta during the course of the procedure, he submitted that Hypoxic, Ischemic Encephalopathy, happens only due to want of oxygen and had the oxygen been supplied as required by the patient during the course of the procedure, she would not have suffered from the hypoxia, Ischemic Encephalopathy. 

5.      As noted earlier, the case of the Ops is that the required oxygen was available and was provided to the patient.  There is no direct evidence of the oxygen not being available in the operation theatre or having actually not been provided to her during the course of the procedure.  There is no evidence of the patient having required oxygen soon after the procedure and the same having not been provided to her.  As far as hypoxia, which means lack of oxygen supplied to the brain is concerned, the complainants themselves have placed on record medical literature, which shows that the Cerebral Hypoxia can happen due to several causes, including cardiac arrest.  On Wikipedia, it is defined as a condition that occurs when the entire brain is deprived of an adequate oxygen supply, but the deprivation is not total.  While HIE is associated in most cases with oxygen deprivation in the neonate due birth asphyxia, it can occur in all age groups, and is often a complication of cardiac arrest.  The case of the opposite parties is that the patient Smt. Pooja Gupta had all of a sudden suffered a cardiac arrest, which, in turn, led to cerebral hypoxia, as the supply of oxygen to the brain is either stopped or diminished in a cardiac arrest. 

The complainants themselves have filed a medical certificate, issued by Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow, which shows that Smt. Pooja Gupta had suffered cardiac arrest ⁻c hypoxia, Ischemic Encephalopathy.  Therefore, it cannot be disputed that she had suffered a cardiac arrest.  When I asked the learned counsel for the opposite parties as to why the patient had suffered cardiac arrest soon after caesarian, she submitted that the patient suffered from a rather uncommon obstetric complication, known as obstetric namely Amniotic Fluid Embolism, which when it occurs has a mortality rate as high as 80%.  She drew my attention to the following excerpts from the Danforth’s Obstetrics and Gynecology, Ninth Edition, Edited by James R. Scott, M.D.  Professor, , Ronald  S. Gibbs, MD, Professor and Chair, Beth Y. Karlan, M.D. Professor and Arthur F. Haney, MD Professor and Chairman:

          “AFE is an uncommon obstetric catastrophe with a mortality as high as 80%.  It is a biphasic process that is triggered by the sudden embolization of amniotic fluid or debris of fetal origin into the maternal venous circulation.  The initial physiologic disturbances involve profound alterations in hemodynamics and oxygenation, often followed by the development of a consumptive coagulopathy.  Either of these phases may predominate and, occasionally, bleeding may be the initial manifestation.  The most common clinical picture consisted of sudden dyspnea and hypotension, commonly followed within minutes by cardiorespiratory arrest.”

          One half of all patients with AFE die within one hour after the onset of symptoms, in survivors, neurologic damage or brain death secondary to the initial severe hypoxia is not uncommon.  Data from the National AFE Registry suggested an overall mortality rate of 61% only one half of these who survive do so without significant neurologic sequelae.”

          “Signs and symptom noted in patients with amniotic fluid embolism

          Signs or symptom           No. of patients                             %

          Cardiopulmonary arrest            40                              87%”

6.      The onus was upon the complainants to prove that the opposite parties were negligent in the treatment of Smt. Pooja Gupta.  They did not lead any direct evidence, which would prove any negligence on the part of the opposite parties in her treatment at Forrd Hospital.  As far as lack of supply of oxygen which resulted in cerebral hypoxia is concerned, that could have happened due to cardiac arrest from which Smt. Pooja Gupta suffered when she was being shifted to Ward.  There is no direct evidence produced to prove the actual cause of cardiac arrest.  The complainants have not filed any material from which it may be shown or even inferred that the cardiac arrest had happened on account of any negligence in her treatment.  The opposite parties, on the other hand, have demonstrated by producing medical literature that cardiac arrest could possibly have happened on account of an uncommon obstetric complication namely Amniotic Fluid Embolism.

7.      No expert evidence has been led by the complainants to prove any medical negligence on the part of the opposite parties in the procedure undertaken at Forrd Hospital.  No expert, including any doctor from Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow, where complainant No.2 was admitted for a long period has been produced to prove that the Cerebral Hypoxia could not have resulted, without the opposite parties failing to supply oxygen to Smt. Pooja Gupta during the course of the procedure, undertaken on her, though, it cannot be disputed as a legal proposition that the negligence in the treatment of a patent can be proved even without any expert evidence.

8.      The learned counsel for the complainants referred to the decisions of the Hon’ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. (2010) 5 SCC 513 and Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. (2010) 3 SCC 480.  However, neither of these judgments is of any help to the complainants in view of they having failed to establish any negligence on the part of the opposite parties in the treatment of Smt. Pooja Gupta.   V. Kishan Rao (supra) was a case of wrong treatment in as much as the patient was not treated for Malaria even when he had intermittent fever and chills.  He was rather treated for typhoid as a result of which his condition became critical and he could not survive.  Despite definite indication of Malaria being available, Widal test for typhoid having been found negative, he was treated for typhoid instead of being treated for malaria.  It was in these circumstances, that the Hon’ble Supreme Court held that expert evidence was not necessary to prove medical negligence.  In Kusum Sharma (supra), the Hon’ble Supreme Court culled out the principles which need to be kept in mind while deciding whether a medical professional is guilty of negligence or not.  The following are the principles laid down by the Hon’ble Supreme Court in this regard:

          “I.      Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

          II.       Negligence is an essential ingredient of the offence.  The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

          III.      The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

          IV.     A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

          V.      In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

          VI.     The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing grater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.  Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield the desired result may not amount to negligence.

          VII.    Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because the doctor chooses once course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

          VIII.   It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

          IX.     It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

          X.      The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals / hospitals, particularly private hospitals or clinics for extracting uncalled for compensation.  Such malicious proceedings deserve to be discarded against the medical practitioners. 

          XI.     The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.  The interest and welfare of the patients have to be paramount for the medical professionals.”

          Applying the above referred principles, I am of the considered view that no negligence on the part of the opposite parties in the treatment of Smt. Pooja Gupta has been proved by the complainants.

9.      Though, it is vaguely alleged in the complaint that doctor had not made proper preoperative preparations and had not conducted the required tests before starting the operation, there is no evidence of the alleged want of preoperative preparations or any necessary investigations having not been carried out.  The ultrasound scan had admittedly been done before subjecting the patient to the procedures.  There is no evidence of any instrument required during the course of the procedure not being available in the operation theatre at the time the procedure was performed.  Therefore the said general allegations do not stand substantiated.

10.    It was lastly submitted by the learned counsel for the complainants that the complainant No.1 shifted to Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow, which shows that Forrd Hospital did not have adequate facility to take care of the complications which could arise during or because of the procedure performed on Smt. Pooja Gupta.  The case of the opposite parties in this regard is that she was discharged on the request of the complainants.  Admittedly, Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow is a large Super Specialty hospital and the facilities as well as the equipments available in Forrd Hospital cannot match the facilities, expertise and equipments available at Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow.  That however, does not lead to the inference that the Forrd Hospital was not equipped to deal with the complications, which ordinarily could arise during such a procedure.  There is no evidence of an equipment required for dealing with the common complications arising in such a procedure not being available in Forrd Hospital.  Therefore, it would be difficult to accept that the Forrd Hospital was not adequately equipped to deal with the complications which could ordinarily arise during or because of the procedure performed on her.

11.    For the reasons stated hereinabove the alleged negligence on the part of the opposite parties in the treatment of Smt. Pooja Gupta does not stand proved. The complaint is therefore, dismissed, with no order as to costs.