Delhi

West Delhi

CC/07/847

RANJANA GANDHI - Complainant(s)

Versus

KUKREJA HOSPITAL - Opp.Party(s)

24 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (WEST).

150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

                                   

Complaint Case No. 847/2007

 

IN  MATTER OF:-

1. Smt. Ranjana Gandhi      

W/o  Shri. Mahender Gandhi

 

2. Sh. Mahender  Gandhi

S/o Shri N.C.  Gandhi 

 

Both  Residents of Flat No.  A-703,

Bhawalpur Biradari Group

Housing  Cooperative Society,

Sector -6, Dwarka,  

New Delhi-110075                                              .…. Complainants

 

VERSUS

 

1. M/s  Kukreja Hospital &

Heart Centre Pvt. Ltd.

C-1,  Vishal Enclave

New Delhi-11002711                                    ….Opposite Party No.1

 

2. Dr.   Geetu Kukreja,

Medical  Director,

M/s  Kukreja Nursing  Home &

Fertility Centre,

83, West  Avenu,

Punjabi  Bagh,

New Delhi-110026                                   …...Opposite Party No.2

 

O R D E R

 

K.S. MOHI, PRESIDENT

 

The complainant has filed the present complaint against the OPs under section 12 of Consumer Protection Act, 1986.  The complainant                  

 

No. 1  is 34  years of age  while  Complainant No. 2 is  40 years of age and  are issueless.  The earlier  child  born   to the  Complainant No. 1  expired  after   few days of birth and complainant  No. 1  was having problem  of  delayed   period causing   problem of conceive the child. As a result  the complainants contacted  OP  No. 2, who ,after examining  both  of them  assured that they would have, healthy child.  OP-2 advised the complainant to  adopt   I.V.F  technology  and showed them  records of  number of cases  who had delivered  in her hospital.  Believing the assurances   given by OP-2, the complainant  started  following   the instructions of  OP-2 and paid  a sum of Rs. 2,00,000/-  and also spent  Rs. 50,000/-  for  various medicines.  It is the  case of the complainant  that OP-2 withdrew 7 follicies and transferred only 4 number of   embryos, thus  preserved 2 embryos  and  1 egg   for future  which was  never returned  to the   complainant  till date.   Thereafter complainant No. 1 was admitted in the hospital of OP-1 on 29.04.2007 on which ovum   aspiration  on 01.05.2007 and embryos was  transferred on 03.05.2007 .  Complainant   No. 1 was called for certain tests on  18.05.2007.  She was  again  admitted on 08.06.2007 till 20.06.2007 and was charged a sum of Rs. 27,340/- .  It is further averred  that Complainant No.1  was again admitted in the hospital of OP-1 on 28.06.2007 and  discharged  on 02.07.2007 by charging  a sum of Rs. 9720/-.  Thereafter again she was admitted on 02.07.2007 as certain complications had developed and was re-admitted and discharged on 11.07.2007 and charged a sum of               Rs. 19,350/-.  Finally complainant   No. 1 was  admitted on 06.08.2007 and was  advised  complete bed rest.  Further on 29.08.2007 at about 10:00 P.M.  complainant No. 1 developed  serious pain  and  medical staff on duty was duly informed. Doctor present was unable to handle  the situation and told them  that it is OP-2  who was competent  to handle the condition of the complainant. No gynecologist  was available in hospital at the relevant  time.  The intimation as to the serious condition of complainant No. 1 was intimated to OP-2 but none came to attend the complainant No. 1.  The complainant No. 2 and his father- in- law  Mr. J.D. Pahuja  continuously  contacted available staff who  told them  that intimation  was already given  to the Doctor who would soon attend  the patient.  The staff did not furnish the contact   number of OP-2 stating it was against the norms of the hospital.  Since  OP did not make proper arrangements t o attend complainant No. 1 who was in serious condition,  the complainant No. 1  aborted first child on the  bed itself  at about 6:30  AM  and second child  aborted  after  15-20 minutes when she was taken to the OP-1  in the lift itself.   The lift was full of blood itself and thereafter  she was taken to  operation theatre  at that time.  The OP-2 came to the hospital but refused to hear the complainants and on the contrary  made for uncalled for  remarks that  complainants  should  thank that  at least   Ranjana, complainant No. 1 was safe.  The OP tempered the medical record of complainant no. 1 to suit their position.  Complainant No. 2 sent legal notice through counsel against  OPs claiming  compensation but all in vain. Hence, the present complaint.

2.    Notice was issued to the opposite parties.   After notice OP-1 and 2 appeared  and filed  joint reply to the complaint by taking preliminary objections that  there is  no cause of action against OP-1 and OP-2  and  complaint is misconceived, baseless,  groundless, false, frivolous,  vexatious   which is filed just to harass, defame and extort  illegal  sum from OP-1 and OP-2 and flagrant  abuse of  process of law to harass and blackmail OPs.    The complainant was   secondary   infertility, genital tuberculosis with a bad obstetric history.  It is further averred that she  has conceived  5 times  before coming to the OPS  and had already  four  abortions. Complainant approached OP and after investigations underwent   IVF and  due  to technical skills of OP-2 conceived  twin pregnancy on 15.04.2007 .  It is averred that the complainant No. 1 from very  beginning had   bleeding per vaginum and was  managed conservatively and discharged in stable condition  and  this problem re-occurred again on 28.06.2007 and 02.07.2007 and due to efforts of  treating doctors the pregnancy  was  saved due to bad obstetric history  and recurrent bleeding. The risk of spontaneous abortion was explained to husband of complainant.  On ultrasound examination there was   loss of  liquid in  one of the sacs and prognosis  was  discussed  with the   attendants  and  informed about high risk of   abortion.  There was bleeding off and on,  associated with the pain and in abdomen  and ultrasound  exam  revealed loss of  liquid  in 2^nd  sac very  remote chances of  survival of fetuses,  which were duly informed. On 29.08.2007  again  the complainant no. 1 informed about bleeding  and had on examination it was found that   the  OS started opening  and again attendants were informed chances  of expulsion of foetuses and there was  prolapsed of cord  and finally on 30^th  August morning   the  patient  started  to abort  and was taken to  labour room under the  supervision of  Dr. Geetu Kukreja, OP-2,  where first foetus was  aborted at 7:15 and second was aborted at 7:30 A.M.  The patient was managed as per standard protocol and was   shifted to room.  She was kept under observation for one day and after satisfactory condition was discharged on 31.08.2007.  On merits OP replied that the patient is Bad Obstetric History  (BOH) and was also suffering  from Genetical Tuberculosis and the patients of Genetical Tuberculosis  has  more chances of  miscarriage   and due to technical skills of OP-2  the complainant  No. 1 despite of such odds  conceived . The IVF was advised by OPs but never gave any undertaking of 100% of results.   The patient was having problems during this pregnancy from very beginning with bleeding p/v  and  was repeatedly admitted under OP-2  who  managed  successfully .  The risk for continuation of pregnancy was explained to the attendants of the complainant. The complainant paid for the tests done as per records with due care and caution.  It is averred that as per practice only good embryos are transferred and bad are discarded.  No eggs or embryos were preserved.  The allegations of the   complainants are denied. The OPs 1 and OP-2 like a prudent doctor provided diligent care  with due  caution.  The abortion is natural process and it is beyond the control of the doctor.  On 29.08.2007 the patient’ husband was duly informed by OP-2 there was no chance of sustenance of pregnancy due to opening of Int. OS.  The patient was observed through  out the night  and due care was taken and  was monitored on an hourly  basis. On 30.08.2007 she was shifted to labour room and  both the foetuses were  expelled in labour  room and   the  blood report of the tests done on 29.08.2007 and 30.08.2007 showed nearly the same  hemoglobin   and there was no significant  blood loss  and the  allegations  of excessive blood loss are  denied.  All allegations are denied and asserted that and  prayed for the dismissal of the complaint.

3.    Rejoinder to the reply of OPs filed by complainant reiterating   the facts of the complainant and controverting the stand taken by OPs.  When the parties were asked to file evidence complainant filed affidavit of evidence reiterating the facts of the complaint on oath.  The complainant  disposed that OP-2 withdraw the seven  follicles and transferred only four embryos and thus preserved two embryos , one egg for further which  are still in  custody  of the O.P. No. 2 which has not been  returned despite demands .  The complainant   followed all the instructions of OP-2 and made huge payment from time to time as advised by the OP-2.  The complainant remained in hospital and adheredto the advice on 29.08.2007.  She  suffered severe pain and attended  Doctor Manoj was available  but was unable to handle the situation  and there was no gynecologist  was available at the  relevant time despite  informing about the  urgency  she  never tuned up and attended the complainant  on that date and the twin child were aborted after 15-20 minutes in the  lift and also relied upon  Annexure C-1 copies of the payments, Annexure C-2  discharge  slips of each admission,  Annexure C-3  copy of letter dated 31.08.2007 requesting to provide entire record, Annexure C-4 to C-6   notice dated 15.09.2007 , service report and  receipts,  Annexure C-7  reply to legal   notice   by Counsel for OP.

        On the other hand OP filed affidavit  of evidence  of Dr. Rajnish Kukreja and Dr.  Geetu Kukreja  dated 19.03.2008 reiterated  the facts of the reply  and denying the allegations  of the complainant and testifying   on oath  and once again  reiterating  that the procedure was valid  as per standard   protocol  and due care was taken  at every stage denying  the allegations and ascertain that  there is no deficiency in service and no medical  negligence  on their part .   They have also relied on affidavit  of expert  witness of Dr.  Sanjay  N.  Patil   and Ambika Ranjan   Technician  Annexure P-1 and P-2  copy of Insurnace Policies and relied upon   treatment papers.

4.   Written arguments filed by both the parties.  We have heard arguments and gone through the record thoroughly and carefully.                          

5.     The polemical point involved in the present complaint is as to whether   the OPs were negligent   in treating the complaint.   Needless to say that complainant Mrs. Ranjana Gandhi underwent IVF  treatment  and subsequently  delivery  in subsequently  delivered suffering  twins, however, both the premature foetuses  died. The  grievance  of the complainant is that  she was not properly  cared and  her treatment   was not minutely  monitored  by the OPs  which led to  abortion of   the fetuses.  Whereas  the case of OPs is that  complainant was admitted in the hospital with  history of Genetical Ttuberculosis.  The complainant was   monitored by the staff doctors  and was properly  cared but  due to over bleeding  she was aborted.  The OPs adopted  and followed  the medical  protocol   and therefore,  no  negligence is attributed  either  to the patient care or treatment.  To reach truth we need sift the medical record and find out whether there was  any misconduct and medical  negligence  on part of the  OPs.  So far as the medical negligence  is concerned it can be  dealt  as  breach of duty  caused by omission to do  simultaneously  which a reasonable  man can do or doing something which a prudential  and reasonable man should not do.  It is also  settled principle  of law   that an  error of judgment or an incident   is a  not a proof of negligence.   As  far as  a doctor follows medical protocol  and the well known  and prevalent procedure  for particular treatment/ surgery  he cannot  be said  to be negligent .  Similarly where there are two courses open to a doctor he can switch over to either  and he can not be faulted with for not adopting  alternative course.  In case  title (“2010” ) 3  Supreme Court Cases   Kusum Sharma And Others Vs  Batra Hospital and Medical Research Centre And Others   held that doctor must  have  a reasonable degree  of skill and knowledge   and must  also  exercise  care of  a reasonable degree,  neither  highest  nor very low  in the  light of the particular case.   Divergence to opinion with other doctors may not be itself sufficient to infer negligence.  A doctor can be said to be negligent  if  he does not possess  specific qualification to  treat a particular disease.   

6.   Now we discuss the medical record of this case to find out whether  OPs were negligent or not.  Admittedly the patient was admitted in the hospital of four occasions and there is no mention of Genetical Ttuberculosis except in the last discharge summary.  The entire medical record is web of falsification because it is replete with interpolation and  thus does not inspire confidence about its genuineness . The complainant has categorically mentioned in detail about negligence of the OPs in para 10 to 14 as to the non availability of OP-2 in the hospital despite the fact that the condition of the complainant was deteriorating and was turning  serious  minute by minute.  These details have not been specifically  refuted by the OPs in the written statement.  It is now well settled law if the contents of complaint are not specifically denied they shall be deemed to be admitted.  The complainant has categorically stated in para 13 of the complaint  that she aborted first child at 6.30 A.M  and second child  after 15-20 minutes when she was taken to the operation theater and the let itself.   These facts has been converted by the OPs rather a case has been made out  by the OPs  that complainant HAD spontaneous  abortion of twin  babies first  baby at 7.15 A.M and 7.30 A.M. The progress report dated 30.08.07 at 6.30 a.m records spontaneous abortion of at 7.15 A.M. and  7.30 A.M.  This report itself falsify the  circumstances of the OPs  about  abortion of fetuses.  Another startling aspect of the case is withregard to consent  certificate  dated 29.08.2007 wherein it has been mentioned by OP-2 that  on date 29.08.2007 after we have  been  told that Ranjana’s mouth of uterus is  opening  both babies  spontaneous abort within few  hours no hope of survival there. The spontaneous abortion actually took place around 6.30 A.M.  on 30.08.2007.  She was visualized and inspected by OP-2 on 29.08.2007 at 11.45 P.M.  Astonishingly aforesaid handwriting has been made by OP-2   where as  other part of the document is duly typed.  It is further strange that the progress record  dated 29.08.2007  on 11.45  P.M. was never signed by OP-2  nor did  it talk about spontaneous abortion.  The progress report dated 29.08.2007 demonstrate that despite complainant  was upset  was and reeling  under excruciating  pain was not attended by OP-2  despite repeatedly informed by the attending staff.   Thus  the medical record of OPs  displayed  all medical negligence   and misconduct on the part of the OPs  is writ large.

 7.    Now we take upthe expert opinion   in the matter.  Admittedly the matter was sent to Deen Dayal Upadhyay Hospital for expert medical opinion  as to the negligence of the OPs.  The Board constituted  by DDU Hospital  exonerated  the OPs by  referring to the  discharge summary submitted by the OPs. The medical Board did not take the trouble to scrutinize  the  medical record and diagnosis confirmed by the doctors.  The report is casual in nature hence not acted upon.  Then the matter  was taken to the Delhi  Medical Council  by Complainant  where they again had to face disappointment because Delhi  Medical Council found  no negligence  on the part of the OPs.  The matter did not need their opinion.  The  complainants  challenge the order of DMC  before MCI.  The MCI elaborately considered the contentions of both the parties along with the medical record placed on recror,  Ethics Committee found that OP-2  who treated the complainant  was merely  MBBS doctors was not qualified to conduct IVF treatment.  There was no history of  Genetical Ttuberculosis except  in the last discharge  summary  they also felt that  accompanying   Dr. Sanjay  Patil  lacked  ethical  responsibility  of  doctor patient relationship.  Not only this the MCI punished OP-2 and Dr. Sanjay  Patil by removing  their  name from the Indian  Medical register a period of 3 months for committing of medical negligence.

8.     Keeping in view the aforesaid discussion and circumstances of the case we are of the considered opinion that both OPs committed medical negligence and misconduct in the treatment of complainant.  Therefore, we award a sum of Rs. 2,50,000/-  paid for treatment  and medicines.  We also award compensation of Rs. 2,00,000/-  in favour of the complainant  against OPs jointly and severely  towards harassment , mental agony  and  litigation expenses.    

Copy of this order be sent to the parties as per rules.

File be consigned to the record room. 

        Announced this________24____ day of ______FEB_______ 2020.

 

 

( K.S. MOHI )                    (S.S.Sidhu)                      (PUNEET LAMBA)

PRESIDENT                      MEMBER                       MEMBER