Delhi

StateCommission

CC/597/2016

MASTER SHIVANSH ARORA - Complainant(s)

Versus

DR.TRIPTI RAHEJA & ANR. - Opp.Party(s)

SUVIDUTT

11 Jan 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 11.01.2019

Date of Decision : 21.01.2019

COMPLAINT NO.597/2016

In the matter of:

 

1. Master Shivansh Arora
2. Shobhit Arora
3. Somya Arora

 

Both r/o.

 

D-50 Old Gupta Colony,

Lala Lajpat Rai Park,

•  

 

 

Versus

1. Dr. Tripti Raheja,

C-25 A, Groudn Floor,

Vijay Naga,

•  

 

2. M/s. Vinayak Hospital,

2 Derawal Nagar,

Model Town,

•  

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. Complainant no.1 is minor child, complainant no.2 is father of complainant no.1 and complainant no.3 is mother of complainant no.1. They have come forward on the allegations that OP-1 is Consultant, Gynaecologist and Obstetrician. She is working in more than one hospital and clinic one of which is OP no.2. Complainant no.3 being pregnant began consulting Dr. Neelam Dhamija, on periodical basis  from 15.02.14 onwards. Thereafter, as per her medical guidance and referral alone, from medication to numerous Ultra Sound scanning to other clinical tests were conducted on the complainant no.3. On 28.02.14 under the referral of Dr. Neelam Dhamija, Ultra Sound scanning report was `single viable  fetus of 8 weeks  and 2 days’. Complainant no.3 was well and nothing to worry about. On instructions of Dr. Neelam Dhamija, complainant no.3 was instructed to undergo  a Obstetric Ultrasound test. She had the same on dated 25.03.14 and report showed everything normal. Thereafter complainant no.3 started consulting another consultant, Gynaecologist and Obstetrician and also a specialist in Laparoscopy and Infertility named Dr. Tripti Raheja / OP-1. Under the referral of Dr. Tripati Raheja, Ultrasound test of the lower abdomen – level II was conducted on pregnant / the complainant no.3 on 12.05.14. Report stated that all was well and the impression was `single live fetus of 19-20 weeks of gestational age’. On 22.09.14 again an Ultrasound scanning was done on he complainant no.3 which is  the last one the report contended handwritten remark `cord seen near neck of fetus’ estimated fetus weight was reported to be 3554 grms. On the same day OP-1 considering the complainant no.3 in her 37 weeks and 6 days, gave instructions to her to get admitted in the OP-2 hospital. Accordingly complainant no.3 was admitted in OP-2 on 22.09.14 at 9.42 a.m. Complainant no.3 was under the observation of the doctors available and was absolutely alright.
2. On 23.09.14 around noon, the complainant no.3 was facing severe labour pain. The only doctor available who is qualified for aiding delivery was Dr. Tripati Raheja/ OP-1. She attended to the pregnancy case of complainant no.3. Complainant no.3 literally begged before OP-1 to go for a cesarean operation as she could not bear the excruciating pain and felt that normal vaginal delivery would be problematic for her. During the time of delivery, there was neither proper facility nor qualified staff like nurses to assist the delivery at  the OP-2.
3. After delivery on 23.09.14, OP-1 informed the complainant no.3 that she had faced extreme difficulty in conducting a normal delivery due to the excessive weight of the baby. It is advised to use forceps in such case, but the forceps was not used by the OP-1. In the process of extracting the baby Due to applying extra force, the nerves of upper right limb of the infant appeared to have got damaged causing paralysis. His neck and shoulder had also turned blue due to bleeding under the skin. It is called a `shoulder dystocia’. Because of the medical negligence by OP-1, now the new born baby is made to live his life with one of his limbs dysfunctional and paralyzed.
4. It is medically well accepted that 10% of fetal weight is added to the body weight of the fetus at the later stage. Calculating the expected birth weight accordingly, at the time of birth the baby was expected to weigh more than 4 kg. If weight of new born baby crosses 4 kg, it is considered to be macrosomic or a `big baby’. In the instant case, the new born baby was weighted 4.2 kg. So called big babies are to be delivered by way of caesarean section rather than normal vaginal delivery. By taking risk of vaginal delivery on `big babies’ may lead to medical accidents of shoulder dystocia on the new born rendering him paralyzed for life time.
5. After the birth of the child mother was not allowed to see her child and after many hours the hospital authorities permitted the complainant no.2 to see his child. Complainant no.2 saw his new born son in the ICU with one complete portion of his head turned pale and bluish, complainant no.2 insisted the OP-1 as to why it has happened, in return the OP-1 replied nonchalantly that there is nothing to worry about. With a bleak hope of recovering from the medical trauma faced by a new born son, complainant no.1  immediately made arrangements for discharging his new born son from the OP-2 hospital. Although mother was admitted in OP-2 hospital, the complainant no.2 proceeded to transfer his new born son to Fortis Hospital. Medical expenses met at the OP-2 hospital and other chemist stores have taken a huge toll on the complainant no.2. After 3 days complainant no.3 was also discharged from the OP-2 hospital. The complainants went from one hospital to another, consulted numerous doctors from physiotherapist to Neurosurgeons for curing the birth defect. The medical experts opined this case as brachial plexus palsy, which is loss of movement or weakness of the arm. It occurs when collection of nerves around the shoulder are damaged during birth. Doctors have suggested that permanent cure may be difficult, but surgery and physiotherapy can bring improvements in the muscle contractions and reflexes of the baby.
6. From 15.01.15 onwards, the complainant no.1 started taking consultation from the doctors of Medanta division of Plastic, Aesthetic and Reconstructive Surgery of Medanta Hospital, Gurgaon. The bill in Medanta Hospital ran in tune of lakhs and is still mounting. Complainant no.2 sent a formal legal notice to OPs stating that she was initiating litigation.
7. What constitutes medical negligence has been dealt by Hon’ble Supreme Court  as :-

1. Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time.
2. Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with one of the responsible bodies of opinion of professional practitioners in the field.

8. In FA no.217/07 titled as M/s. Singhal Maternity and Medical Centre vs. Master Nishant Verma, National Commission held that where shoulder did not expel normally, it became necessary to use forceps to complete the delivery. In the process of  extracting the baby with forceps, the nerves of his upper right limb appeared to have got damaged causing paralysis and his head had also been injured and heavily pulped on both sides. That was found to be a case of medical negligence.
9. There was incomplete ante natal checks and care done by OP-1 on complainant no.3. The same are extremely important and integral part of medical care during pregnancy because these help in identifying, assessing and consequently reducing the risks to both the mother and the fetus. During ante natal checks, pelvis assessment of the complainant no.3 was never conducted. The ultrasound was also not correctly interpreted as fetus weight  was 3.5 kg., however, the actual weight at birth was 4.2 kg. It can be inferred that there was a large difference of 20% between the estimated fetus weight and the actual weight at birth.
10. In para-9 of the complaint the complainant pleaded that it is well accepted that ultrasound tests by themselves are not the most accurate method of estimating the birth weight of the fetus. While delivery, OP-1 gripped too tightly and applied excessive lateral traction to the baby’s  neck so as to free the shoulder. In fact, lateral traction only serves to push the baby’s head towards either of his shoulder and these get stuck thereby causing shoulder dystocia. When confronted with serious problems during delivery, an emergency caesarean section could not be conducted since the operation theatre was not kept readily prepared or equipped for conducting surgeries, which is clearly a deficiency in service. After shoulder dystocia was noted, McRoberts maneuver was not adopted by the OP-1 and, therefore, no mention of the same  in the discharge certificate. McRoberts whenever is employed   which involves hyperflexing mother’s leg tightly to her abdomen.
11. Even after delivery, due care was not taken, there was sheer callousness and indifferent attitude from side of OP. When complainant no.2 saw complainant no.1 six hours after delivery in ICU, the paediatrician replied that complainant no.1 was not OK and would be allowed to meet the next day. Hence this complaint for directing OP-1 to pay medical expenses met  till now and would be met in future, totalling Rs.25 lakhs with interest @12% per annum till realisation, direct OP-1 to pay compensation for medical negligence to the tune of Rs.5 lakhs with interest @12% per annum, direct OP-2 to pay compensation for contributory negligence to the tune of Rs.5 lakhs with interest @12% per annum, award compensation of Rs.5 lakhs for trauma underwent by the complainant and his family, Rs.50,000/- for litigation expenses.
12. OP-1 filed WS stating that complaint itself show negligence and deficiency on the part of complainants by not following advice from doctor/ OP-1 as she did not go for mandatory lab  investigations as advised and neither attended mandatory  antenatal visits after 26^th June as advised by OP. She reached of her own to know the stage of  pregnancy by getting herself admitted for four hours under false labour pain on 15.09.14. All care was taken to prevent further damage to mother and child by timely  shifting baby to higher centre for neonatal neurology management for the diagnosis which was labelled by OP-1 and OP-2. OP-1 has good experience in Obstetrics after having post graduation and has conducted numerous  normal and complicated delivery. The present diagnosis is one of the Obstetrical emergency which was properly managed and did not  lead to further complications like  Cerebro vascular Ischemia in new born, post partum hemorrhage, severe injury to birth canal and placental emergencies like retained placenta in mother and mortality to both.
13. The umbilical cord is compressed within the birth canal and fetal chest still undelivered, leads to rapid fall in the oxygen level in the blood of the baby. This is why the shoulder dystocia is an emergency and leads to severe hypoxic damage to the brain of baby or death of baby if not resolved in 4-5 minutes. Shoulder dystocia is one of the most often complication which can neither be predicted nor prevented by any means.
14. On merits she stated that expert medical opinion will be required. Complainant neither visited after 25.06.14 nor brought any lab tests as advised. On admission the patient was seen by  the team Dr. Meetu Bhushan which is recorded in the case sheet. The parent was kept on electronic fetal monitoring to regularly assess the fetal heart rate throughout the labour. Never during the course of treatment, was any abnormality recorded. After delivery of the head, the anterior shoulder of the baby got stuck in the pelvis beneath symphysis pubis. When the shoulder of the baby failed to descent, immediately MAC ROBERT’S maneuver was done along with supra public pressure. However both these maneuvers failed and baby still could not be delivered because of badly stuck shoulder. Then delivery of the posterior arm was attempted which was successfully competed and rest of the body of the baby came out. Head to shoulder delivery interval was one minute and forty seconds. Baby cried after two minutes of delivery. The baby was shifted to nursery ICU where various bloods  investigations were performed and i/v fluids, antibiotics were started along with oxygen in NICU. Next day paediatrician noticed respiratory distress and decreased movements of the right arm. Hence the baby was shifted to higher centre for further management after fully explaining to the mother and relatives and showing to mother. Hospital record in  this regard was Annexure-O with the WS. The mother was discharged on 24.09.14 in satisfactory condition with oral medication as she recovered well after delivery. So, it is wrong and denied that new born was not shown to the mother and relatives. Forceps were not applied here as it was not indicated due to sudden impacted shoulders beneath the pubic bones. Forceps is instrument which is used to assist delivery of the head of the baby, however in this case the head was already delivered, so there was no indication/ requirement of forceps.
15. OP-1 went on to mention that it is not possible to accurately estimate the weight of the baby by clinical examination and investigation till date and this fact is mentioned in all the text books of obstetrics. Cesarean  delivery  may be considered for suspected fetal macrosomia with estimated fatal weights greater than 5000 gms in women without diabetes and greater than 4500 gms in women with diabeties.
16. The decision of National Commission cited by complainant does not have any relevance as OP-1 done ANC from 23.04.14. Neither exact weight of fetus was available based on USG report nor extra force was applied. There is no similarity between the cited case and the present case. The present complication occurred is a known unforeseen complication of second stage labour and this can happen in any small to super speciality hospital irrespective of state of art, available infrastructure and super specialist. She prayed for dismissal of the complaint.
17. OP-2 filed WS raising preliminary objections that the allegations of the complainant that she begged before OP-1 to go for caesarean operation  is false story. OP-1 has done her MBBS from Sardar Patel Medical College, Bikaner, Rajasthan in the year 1997. She completed her MD in Gynaecology and Obstetricians from Lady Harding Medical College, Delhi in the year 2000 and was enrolled by Delhi Medical Council  vide DMC registration No.13417. She became member of Royal College of Obstetricians and Gynaecologist MRCOG (London) in the year 2008. She had worked as Senior Resident at Lady Harding Medical College, Delhi from 2000-2003. Since then she has been working as consultant and has worked with OP-2 since 2005, also with Max Super Speciality Hospital, Shalimar Bagh, Delhi. She has vast experience in dealing cases of High risk pregnancy laparoscopic surgery and various caesarean and had performed more than 4500 cases of deliveries both normal as well as C-Section deliveries. Alleged negligence is required to be tested by Board of Medical doctors . No notice was served by complainant on OP-2. OP-2 is insured with Oriental Insurance Company Ltd.,Nagia Park, Shakti Nagar, Delhi. OP-2 moved an application for impleading insurance company as OP-3 which has been allowed.
18. OP-3 filed a separate WS pleading that risk is covered to the extent of terms and  conditions of the policy issued. In doing so it relied upon decision of Hon’ble Supreme Court in Oriental Insurance vs. Sonia Cherayan (1999) 6 SCC 451. It adopted the WS of OP-1.
19. The complainant filed rejoinder affidavit to counter affidavit of OP-1 and 2.
20. In their evidence the complainants filed affidavit of complainant no.2.
21. Per contra OP-1 filed her own affidavit in evidence which is on the lines of defence taken in WS. OP-2 filed affidavit of Dr. R.L. Singhi, Medical Supdt. in evidence.
22. As per pleadings of OP-2, the matter was referred for Expert opinion to Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi. Report dated 21.03.18 has been received  which recites that enquiry committee constituted by Medical Supdt., Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi vide letter dated 30.01.18 went through the treatment record provided to the committee out of the total photocopies  of 480 pages. The committee is of the opinion that the patient was managed as per standard treatment protocols. There are known complication to all medical procedures which are documented in literature, like in the present case. Shoulder dystocia brachial plexus injury to new born occurred at the time of delivery. As per opinion of committee there appears to be no deficiency in management of the patient by the treating doctors. The committee comprised of Dr. Sanjay Chaudhary, HOD  (Peds), Dr. Neeraj Sharma, Specialist (OBG) and Dr. Sumanta Boro, Specialist (Anesthesa).
23. All the parties have filed their written arguments. I have gone through the material on record and heard the arguments. Counsel for complainant  drew my attention towards copy of literature marked as Annexure-C alongwith complaint. At page-15 it is mentioned that during delivery abrupt or powerful force is avoided to avert brachial plexus injury. Still OP used force. He also drew my attention at page-19 where it is mentioned that such a dystoica is an emergency.
24. On the other hand counsel for OP-1 took me through page-21 of the same literature where it is mentioned that lost cases of shoulder dystocia can not be accurately predicted or prevented. Elective induction of labour caesarean delivery for all women suspected of having a macrosomic fetus is not appropriate. So OP-1 did not prefer to do caesarean delivery.
25. Counsel for OP-1 went on to draw my attention towards bottom of page-20 of the same literature where it is mentioned that in one  study of nearly 2 million vaginal deliveries, overland and co-workers (2012) noted that in 75 percent of  shoulder dystocia cases, newborn weighted 4000 g. The concept of caesarean delivery is indicated for large foetuses, even those estimated to weight 4500 g., should be  tempered. Rouse and Owen (1999) concluded that a prophylactic caesarean delivery policy for macrosomic foetuses would require more than 1000 caesarean deliveries with attendant morbidity as well as millions of dollars to avert a single  permanent brachial plexus injury. On this basis he wanted to calculate that merely because the child weighed 4.2 kg., caesarean delivery was not required.
26. I may add that estimate is only that  estimate and can not take place of actual weight. A day before the delivery, when the child was estimated to be of 3.5 kg. Weight, the OP-1 could not predict that next date the weight of child would be 4.2 kg. or that caesarean delivery was required.
27. In the present scenario doctors are under criticism that they resort to caesarean delivery just for extracting more money. Here is a case where doctor preferred vaginal delivery and she is blamed for not going for caesarean delivery.
28. It is not the case of the complainant that she is diabetic. In non diabetic ladies, vaginal delivery is feasible till the weight of the baby being upto 5 kg. In the instant case the baby was 4.2 kg. at the time of delivery. A day before the baby’s weight was 3.55 kg. So there was nothing wrong in OP-1 taking  a decision for vaginal delivery.
29. Moreover the medical science is a technical subject. In such cases opinion of technical person/ medical person must weight more. This is more so when that third technical person comprises of three doctors and that too from government hospital. Their report deserves to be accepted. As already mentioned above, the team of doctor of Baba Saheb Ambedkar Hospital has opined that OP-1 had followed the proper procedure and there is no negligence in treatment.
30. In Jacob Mathew vs. State of Punjab (2005) 6 SCC 1 it was held that a simple look and care, an error of judgement or an accident, is no proof of negligence on the part of medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he can not be held liable for negligence merely because a better alternative course method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resolve that practice or procedure which accused followed. When it comes to the failure of taking precaution what has to be sent is whether those precaution were taken which the ordinary expert of men has found to be sufficient, a failure to use special or extra ordinary precaution which might have prevented the particular happening can not be a standard for judging the alleged negligence.
31. It was further held that a professional may be held liable for negligence on one of  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 skill in that branch which he practices.  A highly skilled professional may be possessed of better qualities but that can not be made the basis or the yard stick for judging the performance of the professional proceeded against on indictment of negligence.
32. In Kusum Sharma vs. Batra Hospital I (2010) CPJ 29 Hon’ble Supreme Court held that a doctor faced with an emergency ordinary tries his best to redeem the patient out of his suffering.  He does not stand to gain anything by acting in negligence or by omitting  to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged or proceeded against criminally. Observations in Jacob Mathew Supra that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine of his patient, were approved.
33. In Achutrao Haribhau Khodwa vs. State of Maharashtra (1996) 2 SCC 634 it was held that in the very nature of medical profession, skill differs from doctor to doctor and more than one  alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing  his duties to the best of his ability and with due care and caution. Merely because one course of action in preference to the other one available, he would not be liable if the course of action chosen by him is acceptable to the medical profession.
34. In Spring Meadows  Hospital 1998 (4) SCC 39 it was held that an error of judgement is not necessarily   negligence .
35. Examined in the light of above discussion, I am of the firm opinion that complainants have failed to make out any  case of medical negligence. The complaint is dismissed.
36. Copies of order be sent to both parties free of cost.
37.  

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)