Haryana

StateCommission

A/705/2014

Dr. Kamla Thukral - Complainant(s)

Versus

Dharmendra Thakur - Opp.Party(s)

15 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeals No: 705 of 2014 & 774 of 2014

Date of Institution: 08.08.2014 & 02.09.2014

Date of Decision: 15.02.2016

Appeal No.705 of 2014

 

1.      Dr. Kamla Thukral, House No.150, Sector-8, Panchkula, Haryana (Opposite Party No.3)

 

2.      Consultant I/C of Alchemist Multi Speciality Hospital, Sector-21, Panchkula (Opposite Party No.2)

                                      Appellants

Versus

1.      Dharmendra Thakur w/o Sh. Rajesh Thakur, Resident of House No.58, Gulmohar Block, Dhakoli (Zirakpur), District SAS Nagar, Punjab.  

Respondent/Complainant

2.      Alchemist Multi Specialty Hospital, Sector-21, Panchkula.

3.      M/s New India Assurance Company Limited, M-Block Market, Greater Kailash Part-1, New Delhi-110048.

                                      Respondents/Opposite Parties No.1 & 4

Appeal No.774 of 2014

 

Alchemist Hospital, Sector-21, Panchkula-134112, Haryana through its Director.

 

Appellant/Opposite Party No.1

 

Versus

1.      Dharmendra Thakur w/o Sh. Rajesh Thakur, Resident of House No.58, Gulmohar Block, Dhakoli (Zirakpur), District SAS Nagar, Punjab.  

Respondent/Complainant

2.      Dr. Kamla Thukral, House No.150, Sector-8, Panchkula, Haryana.

3.      M/s Oriental Insurance Company Limited, SCO No.5, Sector 17-E, Chandigarh, through its Senior Branch Manager.

4.      M/s New India Assurance Company Limited, M-Block Market, Greater Kailash Part-1, New Delhi.

Respondents

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                            

Argued by:          Ms. Dhriti J. Sharma, Advocate for Dr. Kamla Thukral and Consultant I/C of Alchemist Hospital.

                             Shri Jatin Sahrawat, Advocate for Dharmendra Thakur-complainant.

                             Shri G.D. Gupta, Advocate for Alchemist Hospital.

                             Shri B.S. Taunque, Advocate for New India Assurance Company Limited.

                             Shri J.P. Nahar, Advocate for Oriental Insurance Company Limited. 

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This order shall dispose of afore-mentioned two appeals bearing No.705 and 774 of 2014 having arisen out of the common order dated July 9^th, 2014, passed by District Consumer Disputes Redressal Forum, Panchkula (for short ‘the District Forum’), whereby Complaint No.179 of 2007, filed by Dharmendra Thakur-complainant, alleging medical negligence and deficiency in service on the part of opposite parties was allowed issuing direction to opposite parties No.1 and 3, as under:-

“(i)     To make the payment an amount of Rs.10,00,000/- to the complainant on account of compensation and mental agony.

(ii)      To refund the amount of Rs.6005/- paid by the complainant to the OP No.1-hospital as per bill No.8221 dated 15.06.2006 (Annexure C-7).

(iii)     To make the payment an amount of Rs.11,000/- to the complainant towards litigation expenses.

The liabilities of Ops No.1 and 3 shall be jointly and severely.”

2.      Dharmendra Thakur-Complainant, filed complaint under Section 12 of the Consumer Protection Act, 1986, averring that she was pregnant. She contacted Dr. Kamla Thukral-Opposite Party No.3, on 26.03.2006 and on subsequent dates i.e. 28.03.2006, 18.04.2006, 30.04.2006 and 28.5.2006. Every time, the complainant was assured that everything was normal.  On her check up on 23.04.2006, the complainant was advised ultrasound examination and was given the expected date of delivery as 11.06.2006. However, on 10.04.2006, the complainant started labour pain. She contacted Dr. Kamla Thukral-Opposite Party No.3, who advised the complainant to take hot milk etc and in case of bleeding, she should contact her (Dr.Kamla Thukral). The complainant contacted the opposite party No.2 – Consultant I/C of Alchemist Hospital on telephone. However, the opposite party No.3 advised that she was having false labour pains on account of anxiety. The complainant was, however, taken to the opposite party No.1, where after check up, it was stated that nothing would happen till 11.00 A.M. on 12.06.2006. She was given an injection on 11.06.2006, where upon she stopped to feel the movement of the child in the womb. The complainant again started labour pains. She was admitted in the hospital and taken to delivery room on 13.06.2006 at 11.00 A.M. She was taken to operation threatre at about 2.40 P.M. when she delivered a child. However, it was told that the child had died because of infection, though in the Death Certificate it was mentioned that the child died because of “Distress due to neck around cord”. The complainant was discharged on 15.06.2006 and a bill of Rs.10,000/- was paid to the opposite parties. It was further stated that the opposite parties obtained signature on blank papers. A complaint was also filed with the police. Thus, alleging it a case of medical negligence and deficiency in service on the part of the hospital and treating doctors, the complainant filed the instant complaint seeking compensation.

3.      Upon notice, the opposite parties appeared and filed written reply denying the allegations of the complaint. The opposite party No.1 in its reply stated that the hospital was well equipped with all advanced medical and para medical facilities. The opposite party No.1-hospital had experienced doctors. It was stated that the complainant was a case of elderly primigravida, as the complainant had first conception at the age of 36 years and at that age, it was a high risk pregnancy. It was stated that the complainant   was provided with best medical management and was given due care during her stay in the hospital. She was stated to be under best supervision of Dr. Kamla Thukral-Opposite Party No.3. Any negligence on the part of the opposite parties was denied. It was stated that death of child was due to cord around neck, which was rightly mentioned by the doctor in the Death Summary.

4.      Dr. Kamla Thukral-Opposite Party No.3, in her reply while reiterating the version stated in the reply of opposite party No.1, denied any kind of medical negligence and deficiency in service and prayed that the complaint be dismissed.

5.      The New India Assurance Company Limited-Opposite Party No.4, stated that it was not liable to pay any compensation until and unless the professional doctor is found negligent. However, it was denied that the hospital was insured with it.

6.      After appraisal of the pleadings and evidence of the parties, the District Forum allowed complaint and directed the appellants/opposite parties, as detailed in the opening para of this order.

7.      Aggrieved of the impugned order, Dr. Kamla Thukral-Opposite Party No.3 and Consultant I/C of Alchemist Multi Speciality Hospital-Opposite Party No.2, have filed appeal No.705 of 2014. Alchemist Hospital-Opposite Party No.1, has filed appeal No.774 of 2014.

8.      The question for consideration is as to whether there was any medical negligence and deficiency in service on the part of opposite parties No.1 to 3?

9.      It is by now settled that the onus is on the part of the complainant to prove the negligence of the doctor/hospital. In this case, except her own statement, the complainant has not led any other evidence against the opposite parties.

10.    On the other hand, the opposite party No.1 had moved an application dated 16.07.2013 for seeking expert opinion from Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh, or All India Institute of Medical Sciences (AIIMS), New Delhi. However, the complainant objected to the same by filing reply and consequently the District Forum dismissed the application of the opposite party No.1.

11.    It is an admitted fact that the age of complainant was about 36 years, as is evident from the treatment record of the complainant. It was her first conception. In the medical literature such a pregnancy has been termed as elderly primigravida. We have reference from the Text Book of Obstetrics, Chapter 16^th. There are different stages of labour pains which have been given at page 122 and what are the consequences of cord abnormalities, has been mentioned therein.

12.    A perusal of the elderly primigravida shows that there are two groups of such patients: (1) one with high fecundity and (2) with low fecundity. The complainant fell in the second category.

13.    Undisputedly, it was a case of cord around the neck. Thus, it was a case of cord abnormality. Therefore, the death of child cannot be termed as medical negligence.

14.    Cord Abnormalities have been mentioned in the Text Book of Obstetrics, Chapter 16^th as under:-

                   “CORD ABNORMALITIES

BATTLEDORE PLACENTA: The  cord is attached to the margin of the placenta. If associated with low implantation of the placenta, there is chance of cord compression in vaginal delivery leading to fetal anoxia or even death; otherwise, it has got little clinical significance (Fig.16.5).   

Velamentous placenta: The cord is attached to the membrances. The branching vessels reverse between the membrances for a varying distance before they reach and supply the placenta. If the leash of blood vessels happen to traverse through the membrances overlying the internal os, in front of the presenting part, the condition is called vasa praevia. Rupture of the membrances involving the overlying vessels leads to vaginal bleeding. As it is entirely fetal blood, this may result in fetal exsanguinations and even death (Fig.16.5).

MANAGEMENT: In the presence of fetal bleeding, urgent delivery is essential either vaginally or by cesarean section. The infant’s haemoglobin should be estimated and if necessary, blood transfusion be carried out. If the baby is dead, vaginal delivery is awaited.

ABNORMAL LENGTH: The cord may be unduly long or short.

Short cord: The short cord may be true (less than 20 cm or 8”) or commonly relative due to entanglement of the cord round any fetal part. In exceptional circumstances, the cord may be absent and the placenta may be attached to the liver as in exomphalos.

Clinical significance – In either variety, it may cause: (1) Failure of external version (2) Prevent descent of the presenting part specially during labour (3) Separation of a normally situated placenta (4) Favour malpresentation.

Long cord: The clinical significance due to to the presence of a long cord is that there is an increased chance of: (1) Cord prolapsed (2) Code entanglement round the neck or the body. The condition may produce sufficient compression on the cord vessels so as to produce fetal distress or rarely death. (3) True knot is rare. Even with true knot the fetal vessels are protected from compression, by the Wharton’s jelly. False knots are the result of accumulation of Wharton’s jelly or ddue to varices (Fig.16.6). 

SINGLE UMBILICAL ARTERY: Single umbilical artery is present in about 1-2 per cent of cases. It may be due to failure of development of one artery or due to its atrophy in later months. It is more associated with congenital malformation of the fetus (10-20 per cent). There is increased chances of miscarriage, prematurity, UIGR and increased perinatal mortality (Fig.16.6).

15.              What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital Management Committee, (1957), 1 WLR, 582 (the Bolam’s test), is well settled through a catena of decisions of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 SCC 651 and Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480.  

16.    To determine the medical negligence, following principles have been determined to constitute medical negligence:-

(i)     Whether the treating doctor possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time;

(ii)     Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field.  

17.    In Jacob Mathew’s case (supra), elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury’s Laws of England (4^th Edn., Vol.30, para 35), as under:-

“35. The practitioner must bring to his task 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way…”

18.              In view of the evidence available on the record supported with the medical literature, the allegations of medical negligence stand falsified. The District Forum fell in error in allowing the complaint, hence, the impugned order cannot sustain.

19.    As a sequel to the aforesaid discussion, these appeals are accepted, the impugned order is set aside and the complaint is dismissed.

20.    The statutory amount of Rs.25,000/- deposited at the time of filing of these appeals be refunded to the respective appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 15.02.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL