Kerala

Idukki

cc/231/2018

Jain k George - Complainant(s)

Versus

Al-Azhar Super Speciality - Opp.Party(s)

28 Oct 2023

ORDER

DATE OF FILING : 31.12.2018

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 28^th day of October, 2023

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

SRI. AMPADY K.S. MEMBER

CC NO.231/2018

Between

Complainant : 1. Jain K. George, W/o. Shinto George,

Alilakuzhayil House,

Pothanicad P.O.,

Kothamangalam, Ernakulam.

2. Shinto George, S/o. George,

Alilakuzhayil House,

Pothanicad P.O.,

Kothamangalam, Ernakulam.

(By Advs: C.K. Vidyasagar &

Kachiramattam Jose Avira)

And

Opposite Parties : 1. The Director,

Al-Azhar Super Speciality Hospital,

Ezhalloor, Thodupuzha – 685605.

2. Noorul Islam Trust,

Ezhalloor, Thodupuzha

Represented by

The Chairman,

K.M. Moosa, S/o. Maideen,

Kottakunnel House,

Randar Kara, Muvattupuzha.

3. Dr. Vinodini, MBBS, DGO, DNB,

Al-Azhar Super Speciality Hospital,

Ezhalloor, Thodupuzha – 685605.

(By Adv: Johnson Joseph)

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act, 1986 (the Act, for short). Complaint averments are briefly discussed here under :

 

1^st complainant is wife of 2^nd complainant. 1^st opposite party is director of Al-Azhar Super Speciality hospital at Ezhalloor in Thodupuzha. 2^nd opposite party is Noorul Islam Trust, Ezhalloor which runs the hospital and is represented by its Chairman. 3^rd opposite party is Dr. Vinodini attached to 1^st opposite party hospital. When complainant was 9 months pregnant, she had gone to 1^st opposite party hospital on 4.8.2018 for check up and evaluation. 3^rd opposite party after conducting routine scan test, opined that foetus is below normal in weight. Doubting this evaluation, complainant had gone to St. Joseph’s Hospital at Kothamangalam on 6.8.2018 for a scan. Her pregnancy checkups and evaluation were being done at the said hospital until her visit to 1^st opposite party hospital. Upon evaluation at St. Joseph’s hospital, foetus was found to weigh 2400 gms, which is normal in case of a foetus with growth of 9 months. Gynaecologist at St. Joseph’s hospital had opined that 1^st complainant’s pregnancy was without any problems and that child in womb was showing normal growth. That all parameters were normal.

 

1^st complainant had joined an insurance scheme called RSBY insurance floated by Central Government. 1^st opposite party is listed under the scheme and it was only for this purpose that complainant had opted to have her delivery in 1^st opposite party hospital. St. Joseph’s hospital was not an enlisted hospital in the scheme. 1^st complainant was called for 2^nd check up on 21.8.2018 and her 3^rd check up was on 29.8.2018 at 1^st opposite party hospital. Delivery date was projected to be on 10.9.2018 by 3^rd opposite party. Before the projected date complainant had developed labour pains, she got herself admitted in 1^st opposite party hospital on 4.9.2018. She was admitted as inpatient with ID number 0000758674. Complainant had sought admission in general ward in compliance with terms of RSBY scheme. On 5.9.2018, in the morning, 3^rd opposite party had conducted a vaginal examination of complainant and discharged her on the same day itself opining that pelvic dilation was limited. She had advised 1^st complainant that in case of fluid leakage or bleeding, complainant can seek admission in the hospital earlier or otherwise she has to come only on 10.9.2018. No medicines were given for pain relief at the time of discharge. Though she was in the hospital on 4.9.2018, from evening onwards, no medicine was administered to her, though she had pain. 3^rd opposite party had brushed aside her complaints stating that these were trivial.

 

Complainant had, after reaching home on the same day itself, developed pains. She had returned to 1^st opposite party hospital. Complainant was again admitted in the evening on 5.9.2018. No pain inducing drugs were administered to accelerate delivery. Nurses were heard to say that there were not enough personnel in the hospital and that this was the reason for non-administration of medicine in evening itself. Complainant was shifted to labour room under observation. On the next day morning at 9 am, labour room nurses had administered drugs to induce pain. All these time, complainant was experiencing severe labour pain. However, 3^rd opposite party stated that 1^st complainant is only exaggerating her pains. She did not care to check the condition of foetus, monitoring by Non Stress Test. Non Stress Test graph gives a rather accurate condition of the foetus, aiding the gynaecologist to judge and fix the timing of crisis management, in case of an impending emergency upsetting the anticipated normal delivery. For reasons best known to 3^rd opposite party, she never cared to conduct NST, despite the fact that complainant had pleaded for caesarean delivery as she was struggling with labour pain for long hours. Mother of 1^st complainant had also suggested to 3^rd opposite party that caesarean should be done. However, 3^rd opposite party had shouted that neither patient nor her parents can decide about caesarean operation and that she alone can do that. She also stated that she had to attend 2 other operations. That caesarean cannot be conducted on fresh flesh without giving anaesthesia. Even in the morning patient was given A¸w for breakfast and Iªn for lunch. 3^rdopposite party had threatened and insulted 1^st complainant in a language not worthy of the profession she professes. Mother of 1^st complainant was scolded and insulted by her. When husband of 1^st complainant also sought for caesarean delivery, 3^rd opposite party had retaliated that 1^st complainant does not want to endure pain and what she was experiencing was not pain at all. All these time, 3^rd opposite party had not cared to examine the condition of foetus. After 5 pm, 3^rd opposite party left labour room saying that she will come back by 7 pm. She had advised 1^stcomplainant to push very hard as the time for delivery was almost nearing. Accordingly, complainant had pushed very hard and was putting maximum pressure to deliver the child from 5 pm to 7.45 pm. She was doing pushing exercise enduring severe pain and discomfort for 3 hours. When 1^st complainant enquired with the nurses and doctor who were standing nearby, whether pushing hard would cause damage to the foetus they had answered that no damage will be caused. Nobody checked the condition of foetus or of the complainant all this time. At 7.45 pm, 3^rd opposite party arrived at scene and after examining 1^st complainant, said that the child in the womb of complainant is too big to have a normal delivery and caesarean is the only option. She checked heart beat of foetus and thereafter caesarean commenced at about 7.45 pm and ended by 8.15 pm. The baby had not cried at birth and nor was there any movement.When1^st complainant anxiously enquired about this, 3^rd opposite party informed her that everything was normal, however, rate of heart beat was only 30. 1^st complainant was not shown the child. She later came to know that the child was shifted to medical college hospital at Kolencherry under ventilator support.

On the next day, complainant was shifted to her room. Her child had died on 11.9.2018 in ICU, upon withdrawal of ventilator support. 1^st complainant was discharged from the hospital on 10.9.2018 and she had seen the child in ICU at medical college hospital. Child looked lifeless at that time with catheters fitted upon its body. There was a bulging on the head at the right parietal region and the area was soft upon touching.1^st complainant has produced treatment summary relating to the child issued from the Neonatology Department of Malankara Orthodox Syrian Church Medical College Hospital. It is stated therein that baby of first complainant was brought intubated at one hour of life from Al-Azhar hospital with history of having not cried at birth, requiring resuscitation in the form of bag and mask ventilation-intubation and CPR. Report further states that at the time when baby was brought to MMC, it was stuporous with no spontaneous respiration, hypotonic, no spontaneous movements, withdrawal reflex plus, pupils were dilated and not responding to light. Therapeutic hypothermia was initiated in view of perinatal asphyxia and HIE stage 3. The report in short gives a dismal picture of a dying baby even when it was brought to a higher centre. Complainant further submits that her baby’s hours were numbered even at the time of birth, shifting to Kolencherry hospital was not at all in the hope of saving it, but only to avoid the ire of the bystanders and the stigma which may be caused upon opposite party. Perinatal asphyxia noted in Kolencherry hospital report indicates the fact that the child suffered suffocation at delivery stage and the reason for the same is nothing, but negligence, inefficiency and lack of care by 3^rd opposite party. If she had taken the matter seriously, the baby would have survived. 3^rd opposite party had committed gross negligence in discharging her duty. Report, which discloses the symptoms of baby, would show that it had practically died in the process of delivery. 1^st and 2^nd opposite parties have not revealed this to 1^st complainant in a bid to wash off their hands, concealing their negligence in attending to the delivery timely. 1^st complainant is a nurse having knowledge in medical field. The fact that the foetus and mother was normal through out pregnancy is evident from medical records of St. Joseph hospital. Due to lack of care, proper attention during crucial hours and belated caesarean for which opposite parties are responsible, 1^st complainant had lost her baby. 2^nd complainant and mother of 1^st complainant were insulted and mentally truamatized by 3^rd opposite party. She had misbehaved against them. Failure to undertake standard investigation, check up and to arrive at sensible judgment regarding condition of 1^st complainant, failure to extend proper attention during crucial hours of labour pain, tantamount to gross negligence and severe deficiency in service from the side of opposite parties. Complainant therefore seeks Rs.5 lakhs towards pain, suffering trauma and pain undergone by both complainants, Rs.5 lakhs towards loss of child, Rs.3 lakhs towards medicine and post delivery expenses made by 1^st complainant and Rs.2 lakhs towards burial of the child and its attending costs, from opposite parties. Total claim is of Rs.15 lakhs with 12% interest and costs.

 

2. Upon notice, opposite parties 1 to 3 have appeared. Opposite parties 1 and 2 have filed a joint written version. Their contentions are briefly discussed hereunder :

 

According to opposite parties 1 and 2, complainant had distorted facts regarding treatment administered to her. Allegations levelled in the complaint are untrue. Both opposite parties admit that 1^st complainant had come to the hospital of opposite parties on 4.8.2018, while she was in the 9^th month of pregnancy. Patient was at gestational age of 34 weeks and 5 days. She had taken previous consultation from St. Joseph’s hospital, Kothamangalam. However, routine growth scans were not taken from there. Ultra sound scan done by consulting radiologist in opposite parties hospital disclosed that foetus was aged 34 weeks with estimated foetal weight of 1.871 kgs, which was confirmed by repeated scanning. 1^st complainant was advised high protein diet and medication. Contentions that 1^st complainant had doubted correctness of evaluation made in opposite party’s hospital and had undergone further checkups and evaluations at St. Joseph’s hospital, Kothamangalam are made with sinister designs. 1^st complainant had come on 21.8.2018 and 29.8.2018. Allegations in paragraph 3 of complaint are exclusively within the knowledge of complainant. 1^st complainant had consultation and checkup in the hospital on 21.8.2018 and 29.8.2018. Expected date of delivery was 10.9.2018, which was reckoned from the date of last menstrual period as reported by 1^st complainant. She was admitted in hospital on 4.9.2018 at 8.15 pm with complaints of intermittent abdominal pain. She was observed for spontaneous outset of labour and advised foetal heart rate monitoring. There was no contra indication for trial labour. As patient was not in labour, she was shifted to ward. She was brought to labour room on 5.9.2018 and observed for contraction. As there was no change in cervix findings, she was allowed to go home with advice to report back in case of increased pain/leaking. 1^st complainant was discharged after detailed examination and evaluation as it was found that her condition was not conducive for labour induction. Allegations that she had experienced pain at the time of discharge and that 3^rd opposite party had brushed aside her complaints are totally false. Allegations in paragraph No.6 of complaint are against facts. 1^st complainant was again admitted in hospital on 5.9.2018 with complaints of pain. On examination, it was found that uterus terms, cephalic with mild contraction and good foetal heart sound. CTG was taken which showed reactive NST and no contractions. Findings were explained to 1^st complainant and her bystanders. As there was no indication for labour induction, close monitoring of foetal heart rate and contractions was advised. On next day, there was progress in cervix dilation. Based on favourable findings, augmentation of labour was done by oxytocin. 1^st complainant was put on continuous CTG monitoring with periodical reassessment of condition. At 10 am, 1^st complainant was getting contractions of 20 – 30 seconds /3 minutes. Per vaginal examination disclosed that cervix was 75% effaced, MC 3-4 dilated, vertex at -3 to -2 station, pelvis normal and adequate. Under sterile precautions, 3^rd opposite party conducted artificial rupture of membrane and clear liquid had drained. FHS was recorded as good. Clinical findings noted as per vaginal examination and other indications were favourable and supportive of proceedings with trial labour. Allegations that no drugs were administered to induce pain, to accelerate delivery though 1^st complainant was in labour are false and hence denied. These allegations are baseless and made upon a mistaken notion regarding labour induction and management. 3^rd opposite party had followed standard and medically accepted protocol in labour induction. Advice was given at the right time, based on clinical findings and progress of labour was assessed by CTG monitoring. A partogram was kept in strict compliance with acceptable medical practice. Allegations that nurses were heard to say that there were not enough personnel in the hospital and that this was the reason for non-administering medicines in the evening itself are absolutely false and baseless. Further allegations that 3^rd opposite party had not cared to check condition of foetus monitoring or to do NST and did not pay any heed to complaints of 1^st complainant are also false and baseless. 3^rd opposite party had done NST as per protocol and reassessed the condition of patient.

 

Contentions addressed in paragraph 7 of complaint are false, concocted and baseless. 3^rd opposite party had attended 1^st complainant at 12.30 pm. Although she was complaining of pain, she was not co-operative. She was getting adequate uterine contractions. Hence 3^rd opposite party had appraised 1^st complainant about the good progress of labour by highlighting the chances to have a normal vaginal delivery. Favourable condition of normal progress of labour good foetal heart rate, adequacy of prevails and average size of baby were explained and thereafter complainant had opted for normal delivery. Vaginal examination was conducted periodically and normal progression of labour was ensured with good foetal heart sounds. Since patient was fully conversant with the classical findings, which indicated likelihood of normal vaginal delivery, she had voluntarily agreed to continue with the normal labour procedure and started co-operating with the medical staff for further management. At 7 pm, 1^st complainant had started to strain, FHS recorded was good and cervix fully effaced, dilated and hence a normal delivery was expected. However, repeated vaginal examination showed some findings with caput but no molding and this situation was explained to patient and bystanders. Thereafter decision was taken to proceed with emergency caesarean section. After taking written consent and emergency preparations, patient was shifted to operation theatre. Baby was extracted at 8.08 pm. However, it had not cried at birth. Heart rate was recorded 30/minute and limp, immediate cord clamping was done and baby was handed over to paediatrician present in the theatre and immediate resuscitation was started. Eventually, baby was shifted to higher centre for further management. Surgery was uneventfully completed and patient was well, bleeding within normal limit. After surgery, patient had no complaints. Wound healing was proper and she was discharged at request on 4^th post operative day.

 

Allegations levelled in paragraph 7, 8 and 9 of complaint are false. After full dilation of cervix with regular contraction, straining from the part of mother is necessary to bear down the baby which is part of usual management. 1^st complainant had not strain herself as expected, cephalous pelvic disproportions may happen due to factors beyond the control of gynaecologist. This may cause obstructions in bearing down in the 2^nd stage in failure of induction of labour, which is an indication for emergency caesarean section. Patient was on close monitoring. There was periodical evaluation and assessment as per protocol. She was never left unattended to as alleged in complaint. Further allegations that 3^rd opposite party had informed 1^st complainant at 7.45 pm that baby is too big to have normal delivery and thereafter only heart beat rate was checked are absolutely false and denied.

 

3^rd opposite party had experienced reasonable skill and care in management of delivery of the patient and had followed her practice which is acceptable to medical profession. There was no failure in conducting trial labour in 1^st complainant’s case as she was expected to have normal vaginal delivery. Obstruction caused in the 2^nd state necessitated emergency caesarean section. This is a condition which could not be anticipated. Baby developed asphyxia due to factors beyond the control of 3^rd opposite party. There was no delay in taking decision for caesarean section. Statement that there was a bulging on the head of the baby towards right parietal region which was soft in touching is unfounded and hence denied. Allegations contained in paragraph 10 of the complaint are also false. Emergency caesarean section was done and baby was extracted at 8.08 pm. However, it had not cried at birth. Even at the time of shifting the complainant to the operation theatre, foetal heart rate was heard. It is true that complainant was shifted to room on the next day. Complainant should prove her allegations regarding the report and treatment summary of the child, issued from medical college hospital, Kolencherry. Allegations that perinatal asphyxia, indicative of negligence, inefficiency and lack of care on the part of 3^rd opposite party is not tenable or sustainable. Perinatal asphyxia can be induced by many factors in the 2^nd stage of labour unrelated to management of labour. Foetal heart rate and clear liquid drained on ARM showed that there was no distress. In normal progress of labour, foetal distress indicative of foetal rate deceleration can happen as an accepted complication and indication for emergency caesarean section. In the case of 1^st complainant, indication for caesarean section was cephalo-pelvic disproportion and obstruction due to failed induction. There was no negligence in treatment and death of the baby was not due to any act or omission from the side of 3^rd opposite party.

 

Allegations that child died due to lack of care, probably attention and belated caesarean from the side of 3^rd opposite party are false and baseless. Allegations contended in paragraph 16 and 17 are also not true. There were no instance of negligence or lack of care from the side of opposite party. There were no instance of misbehaviour. Complainants and their relatives were not insulted. Utmost care and attention was given to 1^st complainant throughout, by 3^rd opposite party and nursing staff of hospital. Allegations that 3^rd opposite party had failed to undertake standard investigation and checkup and that she had failed to arrive at reasonable judgment regarding condition of 1^st complainant are false. Allegations that she had failed to extend proper attention during crucial hours of labour pain are also incorrect. There was no negligence or deficiency in service from the side of 1^st and 2^nd opposite parties. 3^rd opposite party is a reputed gynaecologist in Thodupuzha with a standing of 18 years or more. She has D.G.O and DNB diplomas in gynaecology. She was appointed in 1^st opposite party hospital after consideration of her expertise and efficiency in the field. Due diligence and care was given to 1^st complainant by 3^rd opposite party. Complainant is filed by misrepresenting facts with a view to extract money from 3^rd opposite party. The amount claimed as compensation for treatment is exaggerated and baseless. Claim for compensation on the ground of pain and sufferings, trauma and tension are not sustainable. Expenses claimed towards burial of child and attendant costs are highly exorbitant. Claim raised under different heads totalling to Rs.15 lakhs is highly excessive. Complainants have not sustained any loss or injury on account of any act or omission from the side of opposite parties. Complainants have no cause of action. They are not entitled for the reliefs prayed for. Hence complaint is to be dismissed with costs.

 

3. 3^rd opposite party has also filed a written version disputing the claim of complainant. Contentions taken by her are similar to those taken by opposite parties 1 and 2. She has also stoutly denied all the allegations of negligence attributed to her, apart from specific allegations of misbehaviour towards complainants and their relatives. She has detailed the procedure adopted which is more or less similar to the procedure mentioned in written version filed by opposite parties 1 and 2. Factual assertions denied in written statement of opposite parties 1 and 2 are also adopted by her. She also prays for a dismissal of complaint with costs.

 

4. After affording sufficient opportunity for evidence, this Commission had proceeded to take evidence in the case. Though repeated opportunities were given, complainant was not present for evidence. There was no representation also from 22.7.2023 onwards on her side. Hence after admitting documents produced by her as Exts.P1 to P10, we were constrained to close her evidence. Opposite parties had no oral evidence. 3^rd opposite party had filed proof affidavit which was read in evidence. She has also produced copy of KFOG Guidelines of Labour and Delivery. Earlier, file containing case records of complainant maintained by 1^st opposite party was marked as Ext.R1, without formal proof. Evidence was closed and case was posted for hearing. There was no representation from the side of complainant. We have heard the learned counsel appearing for opposite parties 1 to 3. Learned counsel has submitted that allegations of misbehaviour including insult of complainants and their relatives are totally unfounded and without any evidence. Complainant being a paramedic, upon a mistaken notion regarding induction of labour and child birth, contended that death of the child during delivery was owing to lack of proper care from the side of 3^rd opposite party. As far as opposite parties 1 and 2 are concerned, there are no specific allegations of deficiency in nursing care or attendance by paramedics. Almost all allegations are against 3^rd opposite party. Ext.R1 would go to show that the patient was properly attended to, examined and treated by 3^rd opposite party. She is a gynaecologist having requisite qualifications and experience of 18 years. She had followed the accepted protocol as detailed in the written version and also in the proof affidavit filed by her. This is supported by the guidelines submitted by 3^rd opposite party. Therefore, case is to be dismissed as one without any cause of action.

 

Now the points which arise for consideration are :

1) Whether there was any negligence in the treatment of 1^stcomplainant by opposite parties 1 to 3 ?

2) Whether complainants are entitled for the reliefs prayed for as against opposite parties ?

3) Final order and costs ?

 

5. Point Nos.1 and 2 are considered together :

 

There is no oral evidence from the side of complainant. Ext.P1 is a certificate given by one Prof. Dr. K.K. Diwakar, seen prepared by one Dr. Anil Narayanan of Malankara Orthodox Syrian Church Medical College Hospital, Kolenchery, dated 22.10.2018. Ext.P2 is copy of laboratory report of 1^st opposite party hospital dated 13.1.2018. Ext.P3 is photocopy of obstetric ultrasonography report of 1^st opposite party hospital dated 30.1.2018. Ext.P3(a) is a similar report dated 3.3.2018. Ext.P4 is laboratory report dated 10.4.2018 issued from 1^st opposite party hospital. Ext.P4(a) is a similar report dated 24.4.2018. Ext.P5 is obstetric ultrasonography report dated 24.4.2018 taken from 1^st opposite party. Ext.P6 is copy of laboratory report dated 31.5.2018 of 1^st opposite party hospital. Ext.P7 is a similar report dated 31.5.2018. Ext.P8 is a similar report dated 23.7.2018. Ext.P9 is copy of ultrasound diagnosis issued from the hospital of 1^st opposite party. Ext.P10 is copy of death certificate issued from Aikaranad Grama Panchayat certifying death of an unnamed baby of 1^st complainant dated 18.9.2018.

 

Ext.R1 is the file containing case records of complainant produced by opposite parties 1 and 2. Guidelines of labour and delivery produced by opposite party has not been explained or correlated to the proof affidavit averments of 3^rd opposite party. Hence we are not relying upon the same.

 

According to complainant, foetus and mother were normal all throughout the pregnancy period as could be seen from Ext.R1. Still complainant had lost her baby owing to lack of care, proper attention and belated caesarean. She would specifically state that there was failure to undertake standard investigation and check up and also to arrive at reasonable judgment touching the condition of 1^st complainant. That there was failure to give proper attention during crucial hours of labour pain. All these tantamount to gross negligence and deficiency in service from the side of opposite parties.

 

As mentioned earlier, no specific allegations against any lack of nursing or conduct of tests as such by paramedics is alleged except regarding evaluation done on 4.9.2018 by routine scanning, which according to complainant does not show the correct result. According to complainant, on 4.8.2018, 3^rd opposite party had opined that foetus is below normal in weight. 1^st complainant would say that she had gone again for scanning on 6.8.2018 at St. Joseph’s hospital, Kothamangalam and there foetus was found to be weighing 2400 gms, which was almost normal weight for foetus with an age of 9 months. 3^rd opposite party has stated in her affidavit that foetal weight as per accepted standard should be around 1.8 kg by 32 weeks with weight gain of about 30 to 70 gms per day. On that count, expected foetal weight will be around 2.4 kg with a minimum of 1.97 kg by 34 weeks. Hence there is no scientific reason to challenge the findings of 3^rd opposite party on the basis of ultrasound scan evaluation. These facts remain unchallenged and assertion that wrong evaluation was done on 4.8.2018 remains unproved.

 

In written statement filed by opposite parties, they have specifically pleaded that there was no lack of proper care and attention. 3^rd opposite party had attended to, examined and treated the 1^st complainant in accordance with medical protocol. She has admitted that 1^stcomplainant had come to opposite parties’ hospital on 4.8.2018, while she was in the 9^th month of pregnancy. 1^st complainant had again consultations and checkups in the hospital on 21.8.2018 and 29.8.2018. Though expected date of delivery was 10.9.2018 reckoned from the date of her last menstrual period as reported by her, 1^st complainant was admitted on 4.9.2018 at 8.15 pm with intermittent abdominal pain. She was observed for spontaneous onset of labour and advised foetal heart beat rate monitoring. There was no contra indication for trial labour. As there was no contra indication, she was shifted to ward. She was brought back to labour room on 5.9.2018 and observed for contraction. As there was no change in cervix findings, she was allowed to go home with advice to report back in case of increased pain, bleeding or leakage of fluid. Discharge of 1^st complainant was after detailed examination and evaluation as it was found that her condition was not conducive for labour induction. She was again admitted in the hospital on the same day with complaints of pain. There was no progress as there were no contractions. On next day, there was progress in cervical dilatations. On the basis of favourable findings, augmentation of labour was done by oxytocin. 1^st complainant was put by continuous CTG monitoring with periodical reassessment of condition. At 10 am, 1^st complainant showed good contractions of 20-30 seconds/minutes. Per vaginal examination showed cervix 75% effaced, MC 3-4 dilated, vertex at -3 to -2 station, pelvis normal and adequate. Under sterile precautions, 3^rd opposite party conducted artificial rupture of membrane, clear liquid drained and FHS recorded was good. Clinical findings and other indications were favourable and supportive of proceeding with trial labour. Allegations that no drugs were administered to induce pain and accelerated delivery, are false. These allegations are made based on a mistaken notion regarding labour induction and management. 3^rd opposite party had followed standard and medically accepted protocol in labour induction advised at the right time based on clinical findings. Progress of labour as assessed by CTG monitoring was also relied upon in the procedure adopted. Since complainant was getting adequate uterine contractions, when 3^rd opposite party had attended to her at 12.30 pm, 1^st complainant was explained about good progress in labour. Chances of having normal vaginal delivery was also highlighted. Thereafter complainants have opted for normal delivery. Since patient was fully conversant with the clinical findings and likelihood of a normal vaginal delivery had voluntarily agreed to continue with normal labour and became co-operative with the medical staff for further management. At 7 pm, 1^st complainant had started to strain, FHS recorded was good and cervix was fully effaced and dilated with vertex at +1 station with caput present and expected normal delivery. However, repeated vaginal examination showed the same findings with caput but no molding and the situation was explained to patient and bystanders. Thereafter 3^rd opposite party had decided to proceed with emergency caesarean section. After taking written consent and emergency preparations patient was shifted to operation theatre. Baby was extracted at 8.08 pm, but had not cried at birth. Heart rate was recorded 30/minutes. Limp and immediate cord clamping was done and baby was handed over to paediatrician present in the theatre and started immediate resuscitation. Since there were no further facilities, it was shifted to higher centre for further management. Surgery was uneventfully completed and the patient was well and bleeding within normal limits. After surgery patient has no complaint. Wound healing was proper and she was discharged at request on 4^th post operative day. Allegations that patient was repeatedly advised to undergo trial labour including hard pushing from her side are absolutely false. Since all the signs were of normal vaginal delivery, trial labour was advised by 3^rd opposite party. These facts are reatriated in proof affidavit filed by 3^rd opposite party, which has not been challenged.

 

 

 

Considering the pleadings addressed by 3^rd opposite party and affidavit averments, we find no reason to fault with her for having advised 1^st complainant to undergo trial labour. Facts and pleadings that there were clinical indications and investigation results indicative of normal vaginal delivery remains unchallenged and are consistent with Ext.R1. 3^rd opposite party has further stated that there was obstruction in the 2^nd stage which necessitated emergency caesarean section, that this condition was not anticipated. Baby had developed asphyxia due to factors beyond her control. That there was no delay in taking decision for caesarean section. In normal progress of labour foetal distress indicative of foetal heart rate deceleration can happen as an accepted complication and is an indication for emergency caesarean section.

 

To sum up, during first stages of labour protocol, indications of normal delivery were there due to which trial labour was attempted. However, situation changed during 2^nd stage, when there was obstruction at the pelvic opening, this could be due to shifted position of head or the pelvic opening of patient being smaller in size or delayed labour too. This may have lead to deceleration of heart rate. Perinatal asphyxia can be induced by many factors in the second stage of labour unrelated to management of labour. There is no proof that changes during 2^nd stage of delivery were brought about by any lack of care or negligence from the side of 3^rd opposite party. Ext.P1 is a certificate issued from the higher centre. It only certifies that cause of death of the child was perinatal asphyxia.

 

There is no evidence to show that the death of child was due to gross negligence and deficiency in service from the side of 3^rd opposite party. Hon’ble Supreme Court has in the matter Jacob Mathew Vs. State of Punjab (2005 KHC 1045), laid down the parameters regarding the degree of skill and knowledge of the expert which is to be expected under normal circumstances. Paragraph 49 of the judgment is crucial for consideration here. It is extracted hereunder:

 

49. CONCLUSIONS SUMMED UP

We sum up our conclusions as under:-

(1) Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G. P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case[1957] 1 WLR 582, 586 holds good in its applicability in India.

(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word 'gross' has not been used in S.304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring inS.304A of the IPC has to be read as qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof inactions relating to negligence. It cannot be pressed in service for determining perse the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.

 

Bolam’s test is held to be good as per the decision of Hon’ble Apex Court. Considering the pleadings of complainants and facts on record, we find that there is no evidence to prove that 3^rd opposite party has not exercised a reasonable degree of care, attention or expertise in treating 1^st complainant which was expected of her. We also notice from the affidavit filed by 3^rd opposite party and entries in Ext.R1 case records that 1^st complainant was admitted in the very same hospital on 13.9.2018 with complaints of pain. She was admitted and treated there and thereafter discharged on 15.9.2018, when her condition became better. 1^st complainant is admittedly a nurse. It is not her case that she had come to know about negligence from the side of opposite parties much after her earlier discharge after delivery on 6.9.2018. The fact that she had visited the very same hospital again seeking cure makes one suspect with regard to the allegations raised against opposite parties of negligence in an earlier instance. Facts being so, we are of the view that complainants have not proved deficiency in service from the side of opposite parties 1 to 3. They are not entitled for the reliefs prayed for. Point Nos. 1 and 2 are answered accordingly.

 

6. Point No.3 :

 

In the result, this complaint is dismissed, under the circumstances, without costs. Parties shall take back extra copies without delay.

 

Pronounced by this commission on this the 28^th day of October, 2023

 

 

Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

 

 

Sd/-

SMT. ASAMOL P., MEMBER

 

 

Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX

 

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1-Copy of certificate given by one Prof. Dr. K.K. Diwakar, seen prepared by

one Dr. Anil Narayanan of Malankara Orthodox Syrian Church Medical

College Hospital, Kolenchery, dated 22.10.2018.

Ext.P2 - Copy of laboratory report of 1^st opposite party hospital dated 13.1.2018.

Ext.P3 - Photocopy of obstetric ultrasonography report of 1^st opposite party hospital

dated 30.1.2018.

Ext.P3(a) - Photocopy of obstetric ultrasonography report dated 3.3.2018.

Ext.P4 - Copy of laboratory report dated 10.4.2018 issued from 1^st opposite party. Ext.P4(a) - Copy of laboratory report dated 24.4.2018.

Ext.P5 - Obstetric ultrasonography report dtd 24.4.2018 taken from 1^st opposite party.

Ext.P6 - Copy of laboratory report dated 31.5.2018 of 1^st opposite party hospital.

Ext.P7 - Copy of laboratory report dated 31.5.2018.

Ext.P8 - Copy of laboratory report dated 23.7.2018.

Ext.P9 - Copy of ultrasound diagnosis issued from the hospital of 1^st opposite party.

Ext.P10 - Copy of death certificate issued from Aikaranad Grama Panchayat to death

of an unnamed baby of 1^st complainant dated 18.9.2018

On the side of the Opposite Party :

Ext.R1 - File containing case records of complainant maintained by 1^st opposite party.

 

 

 

Forwarded by Order,

 

 

 

ASSISTANT REGISTRAR