Order-34.
Date-23/08/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The instant case emanates over an allegation of medical negligence.
The complainant’s case in short is that the complainant’s wife Smt. Sharmistha Laha was under treatment of O.P.-1 since her early days of pregnancy till 17/06/2013. The clinical reports dated 19/12/2012, 12/03/2013, 03/06/2013 show normal development of the fetus. The prescriptions of O.P.-1 dated 13/02/2013, 24/04/2013, 22/05/2013 and 05/06/2013 show course of treatment advised by O.P.-1. Prescription dated 05/06/2013 contains two signatures of O.P.-1. The first upper part right hand signature is followed by date 05/06/2013 while the advise Drotin DS-1 twice daily after meal and Zofar 4 mg. 1 tab stat bears only signature. The complainant alleges that O.P.-1 delibarately did not put the date as it was given on 17/06/2013 at 7-30 AM without proper clinical examination. It is alleged that on 17/06/2013 the patient wet to O.P.-1 when she developed pain. After taking tablets i.e. Drotin-DS and Zofar 4 mg., the condition of the patient became serious and convulsion started. As per instruction of O.P.-1 the patient was taken to Srijani Healing Home at Beleghata and was admitted there at 10 AM. The patient had less fetal movement, with fetal heart rate (90-104) with huge bleeding p/v. The said Nursing Home Authority informed O.P.-2 being the wife of O.P.-1 about the matter but O.P.-1 could not be contacted. O.P.-2 thereafter advised O.P.-4 (Srijoni Healing Home) to transfer the patient to CMRI. The patient was released by O.P.-4 and finding no alternative the complainant shifted the patient to CMRI. The patient had profuse bleeding and the head of the baby was coming out. She was admitted at CMRI on 17/06/2013 at 11-37 AM and she was taken into the Labour Room. O.P.-1 came on the scene and informed the complainant that the baby had expired two / three days earlier and the patient delivered a dead baby. It is alleged that the discharge summery and certificate issued by O.P.-3 (CMRI) is a concocted document and a desperate effort to fill in the negligence of the O.P.
O.ps.-1 and 2 have filed W.V. contending inter alia that the complainant has filed the case to malign the reputation of the O.P. parties. It is stated that O.P.-1 first examined the patient the on 13/02/2013 and found the patient in stable condition. The last menstrual cycle of the patient was on 11/10/2012 and expected date of delivery was 18/07/2013 and O.P.-1 advised Sonography fetal profile and advised medicines. The patient again visited O.P.-1 on 24/04/2013 and then on 25/05/2013. On 05/06/2013 the patient again came to him and he advised Zofar 4 mg and Drotin-DS, both are safe drugs. It is further stated that the patient was admitted under the care of O.P.-1 in Srijoni Healing Home on 17/06/2013 as there was complain per vagina and after review of the patient by the R.M.O. in the said Nursing Home it was found that there was severe complication in the delivery which may require post delivery intensive care and other diagnostic and treatment facility not available in the small set up of O.Ps.-3 and 4 and as such the patient advised for a transfer to CMRI at the earliest. The patient was accordingly admitted in CMRI on 17/06/2013 and the history of infertility and myomectomy was provided by the patient or the relatives attending the patient. It is submitted that the patient was taken to Labour Room and a normal vaginal delivery was conducted to deliver an I.U.D. macerated baby by vertex presentation. Macerated means baby has expired at least 48 hours before delivery. During this process two loops of tight cord around the neck was also seen. It is stated that the death of the baby was may be due to placental insufficiency. It is stated that the O.P. party had all along tried to provide better treatment by advising the transfer of the patient to a higher centre. However, the death of the baby was unfortunate. But the same was not due to any negligence or deficiency but due to certain factor over which the O.P. had no control whatsoever.
O.Ps.-3 and 4 (CMRI) being represented by Ruglal Somani, Dy. General Manager of CMRI have also contested the case by filing W.V. contending inter alia that the complaint does not disclose any cause of action against the Hospital and is filed to malign the reputation of the O.P. and as such the same may be dismissed with cost. It is also stated that the complainant has not made any specific allegation against the service of the O.P. party and the Management of the O.P. party Hospital are not Doctors and are not aware of medical treatments. These answering O.Ps. have prayed for dismissal of the case with cost.
Point for Decision
- Whether O.P.-1 is guilty of medical negligence in rendering treatment to the patient ? Whether O.P.-1 is deficient in services to the patient ?
- Whether the remaining O.Ps. are also guilty of committal of medical negligence and deficiency of service ?
- Whether the complainant is entitled to get the reliefs as prayed for ?
Decision with Reasons
We have travelled through the documents on record namely USG Report (Pelvic Sonography), Sonography of Anomaly Scan, USG of Fetasl Profile with colour Doppler study, blood reports, prescriptions in the handwriting of O.P.-1 on different dates, admission and discharge summery / prescription of Srijoni Healing Home dated 17/06/2013, discharge summery and certificate of CMRI dated 17/06/2013. Final Bill of CMRI as filed from the side of the complainant on record.
It is worthy to point out at the very outset that there is no expert opinion forthcoming before the Court at the instance of either of the parties at the time of institution of the case or thereafter. We however find that the O.Ps. have filed an affidavit in reply by one Dr. Subir Adhikary to the questionnaire for cross examination filed by the complainant. Dr. Adhikary however has stated in his affidavit in reply that Dr. Basudeb Mukherjee (O.P.-1) requested him to give an expert report but we find that he has not filed report separately apart from affidavit in reply. It is also pertinent to mention that O.P.-1 has not filed any petition before this Forum for necessary direction seeking expert opinion. Complainant, however, has filed a petition raising objection to such affidavit of Dr. Sudhir Adhikary with prayer to reject the evidence of Dr. Adhikary and has also taken a plea that the so called report is without any order of the Ld. Forum.
Be that as it may, we find that the treatment part as has been complained was provided by Dr. B. D. Mukherjee i.e. O.P.-1. From the prescriptions available to us we find that Smt. Sharmistha Laha, the wife of the complainant was under treatment of O.P.-1 since her early days of pregnancy. On 17/06/2013 at 7-30 AM, the patient developed pain and consulted O.P.-1, who prescribed some medicines like Drotin-DS 1 tab twice daily after meal and Zofer 4 mg. 1 tab stat. It has been admitted by O.P.-1 in para-9 of written version as well as in evidence that the patient consulted him on 17/06/2013 when the patient had only pain but no bleeding per vagina and as such it was assessed as a normal development leading to delivery and there was no anticipated complication or signs of complication of the patient and as such the patient was advised to get admitted in a small set up (O.P.-4). So it is very much apparent that the patient consulted O.P.-1 on 17/06/2013 in the morning. We find that O.P.-1 in the prescription signed his name but did not put the date on it. So we find that it is truly alleged by the patient party that the prescription dated 05/06/2013 contents two signatures of O.P.-1. Upper part of the prescription is signed with date 05/06/2013 by the O.P.-1 while the advise Drotin-DS 1 tab twice daily after meal and Zofer 4 mg. 1 tab stat bears only signature and no date. So it appears that O.P.-1 did not put the date on the prescription as it was given on 17/06/2013 morning for the reason best known to him. O.P.-1 himself has admitted in his W.V. and in evidence that the patient consulted him on 17/06/2013 morning. It can safely be presumed that O.P.-1 examined the patient on 17/06/2013 morning and he also prescribed medicines like Drotin-DS and Zofar 4 mg. So it can also be safely presumed that he did not find anything fault with the baby / fetus at the womb of the mother at that time. O.P.-1 has also stated in his W.V. in para-9 that the patient had only pain and no bleeding per vagina and as such it was assessed as a normal development leading to delivery and there was no anticipated complication or signs of complication. So it is very much clear from such version of O.P.-1 in W.V. that everything was OK with the baby in the womb of the mother. We also find from the admission & discharge summery certificate dated 17/06/2013 of Srijoni Healing Home that the patient was admitted there at 10 AM with less fetal movement with fetal heart rate (90-104) with huge bleeding p/v and the patient had mild breathing difficulty. So the fetal movement was detected by the attending doctor at Srijoni Healing Home with fetal heart rate 90-104 on 17/06/2013 at 10 AM.
We find that the patient had huge bleeding p/v and Sroijoni Healing Home found it difficult to render adequate management and the patient was shifted to CMRI as per the instruction of O.P.-1 through his wife O.P.-2. O.P.-1, however, could not be contact of instantly. O.P.-1, however, was present at CMRI. The patient was admitted at CMRI on 17/06/2013 at 11-30 AM and was discharged on 18/06/2013 as we find from the discharge summery or certificate. The patient was admitted at CMRI on 17/06/2013 at 11-30 AM was taken into the Labour Room. The O.P.-1 thereafter informed that the baby had expired two/three days earlier and the patient delivered a dead baby. It is also stated by O.P.-1 in his W.V. that the patient was taken to labour room and a normal vaginal delivery was conducted to deliver an IUD macerated baby by vertex presentation. Macerated means baby has expired at least 48 hours before delivery. The question is how could it be possible ? O.P.-1 himself has stated that the patient consulted him on 17/06/2013 morning and he did not find anything abnormal with the patient and the patient had only pain and no bleeding per vagina and it was assessed as normal development. So it can be inferred that he detected the fetal movement of the baby at that time. Subsequently when the patient was taken to Srijoni Healing Home, the attending doctor also detected less fetal movement with fetal heart rate 90-104. But curiously enough O.P.-1 subsequently has stated that the patient delivered an IUD macerated baby i.e. baby expired at least 48 hours before delivery. The contradiction is very much glaring. It appears that O.P.-1 examined the patient on the very date i.e. on 17/06/2013 morning and found nothing abnormal and also prescribed medicines but on the very self same date i.e. on 17/06/2013 at 11-30 AM he has given out that the patient delivered a macerated baby i.e. the baby expired at least 48 hours before delivery. We think that it is a gross negligence of treatment and management on the part of O.P.-1. Alternatively, even if it is presumed that O.P.-1 has not examined the patient in the morning on 17/06/2013 how could he prescribe medicines Drotin-DS and Zofar 4mg. without clinically examining the patient? The patient was at an advanced stage of pregnancy, prescribing medicines without proper clinical examination tantamount to gross negligence. So it cuts in both ways as against O.P.-1.
Let us now come to the evidence on affidavit of Dr. Sudhir Adhikarfy. It appears that O.Ps.-1 and 2 examined Dr. Sudhir Adhikary as a witness on their side. Dr. Sudhir Adhikary has stated that as the baby was a macerated still born with two cord around the neck, it proves that the death foetus might have occur 48 hours before delivery in utero. Confusion of fetal heart rate according to him between 90-104 per minute in Srojoni Healing Home may be uterine souffule as during that time heart PR was 100 per minute which is corroborated. It appears that Dr. Adhikary did not examine the patient personally. He never attended the patient at any point of time and he was not present in the O.T. Room of CMRI on the date the patient was admitted. So it appears that he was not personally aware of the condition of the patient and fetus on 17/06/2013 when the patient was admitted in Srijoni Nursing Home. Moreover, the opinion of Dr. Adhikary is not conclusive and he appears to be an interested witness in this case.
It is also argued from the side of O.Ps.-1 and 2 that the patient had a history of Myomectomy and infertility but it is stated from the side of the complainant that the patient had no such history. We find that though the discharge summery and certificate of CMRI contains history of myomectomy in 2005, 2010 and breast fibroabenoma excision. We find no reflection of it in any of the prescriptions of O.P.-1.
On close scrutiny of the medical papers and evidences on record we are of opinion that the time of death as asserted by O.P.-1 in 48 hours before delivery is not corroborated by observation of O.P.-4 in document of Srijoni, where the fetal heart rate was noted indicating that the baby was alive at that point of time. We are also of opinion that O.P.-1 did not examined the patient properly on 17/06/2013 morning. We are of opinion that there was negligence and also deficiency in rendering proper and adequate medical treatment to the patient.
The death of a baby is unfortunate. The mother lost her baby. No death can be compensated in monetory terms. Nevertheless, we think that the complainant is entitled to get compensation for the medical negligence and deficiency in service on the part of O.P.-1. We do not find anything adverse as against the remaining O.Ps. from the materials and documents on record.
It appears that the complainant incurred expenses of Rs.9898/- at CMRI. We are not provided any bill of Srijoni Healing Home. Considering all aspects we pass the amount of compensation as follows.
In result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against O.P.-1 with cost and dismissed against the remaining O.Ps. without cost.
O.P.-1 is directed to pay an amount of Rs.2,00,000/- as compensation for medical negligence and deficiency in service and for causing mental agony and trauma to the complainant apart from litigation cost of Rs.10,000/- within 30 days from the date of this order I/D the complainant will be at liberty to put the order into execution as mandated in the C. P. Act,1986.
