Anupam Dasgupta These appeals are directed against the order dated 31.01.2007 of the Union Territory Consumer Disputes Redressal Commission, Chandigarh (hereafter, he State Commission in complaint case no. 56 of 2006. By this order, the State Commission held the appellants (in F.A. no. 157 of 2007; hereafter, he appellants guilty of medical negligence (deficiency in service) in treating the wife of the complainants/respondents 1 and 2 at the time of her delivery (which led to her untimely death) and allowed their complaint by awarding compensation of Rs.20,26,000/- and cost of Rs. 10,000/- to be paid equally by appellants 1 and 2. As Dr. G.S. Kochhar (representing appellant 1) and Appellant 2 were each insured with respondent 4 (the Oriental Insurance Company OIC) for Rs.10 lakh, the State Commission directed respondent 4 to pay Rs.20 lakh out of the compensation awarded and the appellants 1 and 2 to share the balance amount equally. For convenience, we refer to the parties in accordance with their status in F.A. no. 158 of 2007. 2. The respondents/complainants 1 and 2 alleged before the State Commission that the baby that Charanpreet Kaur, wife of complainant/respondent 1 delivered in Deep Nursing Home (hereafter, he Nursing Home died soon after the delivery though there was no foetal distress till the time of delivery. They also alleged that Charanpreet was told about the death of her just-born baby as a result of which she went into shock. The Nursing Home was not fully equipped to handle emergency cases like those of atonic uterus that Charanpreet developed and undertake the requisite treatment, viz., uterine artery embolisation. The appellants had also not arranged for blood for transfusion before the delivery and even the blood group of the patient had not been ascertained beforehand. Appellant 2 took unduly long to decide the need for blood transfusion to Charanpreet and thereafter some time was taken to arrange the blood from outside. They (the appellants/opposite parties OPs) also delayed shifting Charanpreet to the Post Graduate Institute of Medical Education and Research, Chandigarh (in short, he PGI to such an extent that on arrival there she was declared, rought dead Therefore, this was a clear case of medical negligence and deficiency in service. The appellant doctors fabricated the record of the patient treatment to escape prosecution for gross negligence in treating her. For these allegations, respondent 1 sought total compensation of Rs.80 lakh on account of loss of income due to the death of Charanpreet Kaur, Rs. 10 lakh for the death of the baby, Rs. 5 lakh on account of mental agony and torture, Rs.10,000/- towards medical expenses, Rs.11,000/- towards litigation cost and interest @ 18% per annum on the amount of compensation and medical expenses from the date of actual payment till realisation. 3 (i) On the other hand, the appellants (OPs) pleaded that the deceased Charanpreet came to the Nursing Home for the first time on 10.11.2005, i.e., towards the end of her pregnancy term. Appellant 2 examined her and estimated the approximate date of delivery of the baby to be 02.01.2006. She was advised to continue the iron and calcium tablets that she was taking and also undergo cardiological check-up. Though Charanpreet informed Appellant 2 that the check up by the cardiologist showed that everything was normal, she did not produce the cardiologist report before Appellant 2. On 16.12.2005, Charanpreet went to the Nursing Home for a routine check-up and was advised to continue her earlier medications. (ii) In the night of 19.12.2005, Charanpreet was brought to the Nursing Home with complaint of pain. On examination, Appellant 2 found that she was not in labour pain. Charanpreet was again brought to the Nursing Home on 21.12.2005. After discussing the available alternatives with the accompanying relatives, Appellant 2 decided to induce labour pain as Charanpreet was suffering from false labour pain and the foetus was mature. Dr. G. S. Kochhar (appellant 1) who was an anesthetist of considerable experience also examined her and found her to be clinically normal except that she had low blood pressure. Thereafter, the procedure to induce labour was started. Appellant 2 periodically examined Charanpreet. After she started having strong contractions at about 01 a.m. on 22.12.2005, the membrane was artificially ruptured and an injection was administered at about 01.30 a.m. Charanpreet delivered a baby boy at 02.40 a.m. Appellant 2 was with her since 01.00 a.m. till the delivery of the baby because Charanpreet was tense. Her pulse rate was checked regularly, including just five minutes before the delivery. The baby did not cry but gasped after the birth. The baby was handed over to the pediatrician who had been present since 02.15 a.m. (about half an hour before the delivery). The pediatrician tried to resuscitate the baby by administering oxygen as well as medication. Appellant 1 also assisted. However, all efforts to save the baby failed and he was declared dead at 03.10 a.m. (iii) After the delivery of the baby, injections were administered to Charanpreet. She expelled the placenta completely with the membrane and the episiotomy was sutured. However, at this stage at about 03.15 a.m. - Charanpreet started bleeding. She was shifted to the operation theatre where intravenous saline drip and blood substitute were started and oxygen mask was also given. Intensive examination of the genitalia was carried out to locate the source of bleeding but both the vagina and cervix were found to be without any tear. The relatives were then asked to arrange two units of blood for transfusion. The blood transfusion was started at about 04.15 a.m. (iv) Considering the complications that Charanpreet had developed, a senior gynecologist and a general surgeon were also called in for consultation, who reached the Nursing Home at about 04.00 a.m. They both conducted necessary tests but could find no apparent reason for the bleeding. The doctors then concluded that the patient was suffering from Post-partum Hemorrhage (PPH) because of uterine inertia and agreed that she should be referred to the PGI for uterine artery embolisation. The patient was transferred to the PGI with two (more) units of blood transfusion running simultaneously and oxygen support. Dr. G. S. Kochhar, Anesthetist reached the PGI ahead of the patient and took the patient personally to the Septic Labour Room (SLR). However, during the transfer from the Nursing Home to the PGI, the patient suffered another bout of bleeding. The physician in-charge at the SLR, PGI declared her rought dead 4(i) We have heard Ms. Kanwaljit Kochhar for the appellants, Mr. Meet Malhotra on behalf of respondents 1 and 2, Ms. Manjusha Wadhwa for the OIC and Dr. Sushil Kumar Gupta for the New India Assurance Company and have carefully considered their submissions and also gone through the records of the case. (ii) It may be noticed at the outset that Charanpreet death was investigated quite thoroughly by successive Medical Boards appointed specifically for this purpose on complaints of gross negligence made by the complainants/respondents to various authorities in the State Government. 5. In its impugned order, the State Commission has held the appellants guilty of medical negligence on several counts: (i) The first count is that the appellants could not establish that Charanpreet was anemic or hypotensive before the delivery. This finding is based on the observations of the Medical Board in the latter report dated 20.03.2006 as discussed in paragraphs 19 & 20 of the State Commission order: 9. The fact that she was under shock is not supported by the report of Medical Board dated 20.03.2006 in which it was observed as under: s such, it cannot be said with certainty from the records whether this patient had anaemia at term or hypotension and shock before the delivery or not. However, in the presence of either or both of these conditions, atonic PPH is more likely to be worse and catastrophic. 20. Therefore, version of OPs no. 1 and 2 that Ms. Charanpreet Kaur was anemic or was having hypertension or shock before delivery is not proved on file. The delivery of baby according to the said report had taken place at 02.39 It is further mentioned in it that following delivery, Pitocin and Methergine injections were give to Ms. Charanpreet Kaur to prevent Post-partum Haemorrhage (PPH) but there is no mention of time when these were given. (ii) The State Commission has also held that the patient blood was sent for cross matching after avoidable delay at 03.15 a.m., though she was bleeding continuously after the delivery at 02.39 a.m. In this context, the State Commission has observed: ince she was continuously bleeding after delivery as the uterus did not contract and was in a relaxed stage so her blood was sent for cross-matching at 03.15 a.m. Certainly it is negligence on the part of OP no. 2 not to get identified blood group of Charanpreet Kaur at the time of delivery and further to get the blood ready for transfusion. The valuable time was lost in giving blood by transfusion. According to medical report, two units cross-matched blood arrived at 04.15 a.m. and transfusion started immediately, i.e., about two hours were wasted in not giving blood and during that period she continued profusely bleeding. (iii) Further, relying on the OPD card of the PGI (to which the appellants had referred the patient because of her complications), the State Commission has concluded that these documents did not mention that Dr. G. S. Kochhar accompanied Charanpreet or that he made efforts in the SLR, PGI for about half-an-hour to revive her. The patient was recorded to have been rought deadto the SLR. Thus, the State Commission has concluded that the affidavit of Dr G. S. Kochhar was not reliable from the time (07.10 a.m.) of preparing this OPD record at PGI. The State Commission has also concluded that the reference slip from the Nursing Home had not been received along with the patient and, therefore, it could not be ruled out that the slip was manipulated later on. (iv) Referring to the report dated 18.08.2006 of the Government Medical College and Hospital, Chandigarh, the State Commission has observed: 8. It is true that Government Medical College and Hospital, Sector 32, Chandigarh had given report dated 18.08.2006 in which they stated that they had taken into consideration medical record and inquiry report and they were of the opinion that there did not appear any gross negligence in the management of patient by treating doctors. It is a short report and had not given the reasons for recording such a finding. We cannot scrutinise the reasons given in the report dated 18.08.2006 especially when doctors in their report dated 20.03.2006 had stated that it cannot be said that Ms. Charanpreet Kaur was suffering from anemia, hypotension or from shock before delivery. Therefore, report cannot be relied upon in view of the false affidavit given by Dr. G. S. Kochhar and other circumstances which had come on file. (v) Holding the appellants 1 and 2 guilty of not exercising due care in treating Charanpreet Kaur, the State Commission has finally observed: 0. Therefore, Ms. Charanpreet Kaur patient with Atonic Hemorrhage who had bled for almost three hours was not ready to be shifted to PGI without any expert doctor accompanying her. Certainly it is negligence on the part of OPs no. 1 and 2. Further, they had worsened their negligence as none of them accompanied the patient to PGI. Thus, OPs no. 1 and 2 are negligent, as they did not exercise due care and caution in treating Ms. Charanpreet Kaur even if we presume that there was no fault as far as the death of baby is concerned. It is true that it is not necessary for every professional to possess the highest level of expertise in the branch in which he practices but it was expected from a doctor that he should treat the patient with due care and caution and diligence and thus, they are held to be negligent. 7. On behalf of the appellants, Mrs. Kochhar has argued vehemently that the reasoning and conclusions of the State Commission were erroneous. Thus, according to her: (i) It was not correct to conclude that the time of delivery was 02.40 a.m. Medically, a delivery can be treated as ompleteonly after the placenta and membrane had been fully expelled. In this case, the patient expelled the placenta about 15 minutes after the delivery of the baby. Therefore, the delivery was ompletedat about 3 a.m. (ii) Secondly, in a normal delivery (as was the case here), the uterus gradually contracts of its own after the delivery and the bleeding stops. However, in this case, the uterus did not contract fully and went into a phase of relaxation after the initial contraction. That the bleeding in this case was unusual could be known only after it was verified that it was not from any tear in the vagina or the cervix or from the site of the episiotomy. All this took some time (as detailed in the medical record) and it could be finally concluded by about 3.15 a.m. that the uterus had not fully contracted, leading to the bleeding. It was only then that efforts to transfuse blood could have been initiated because no Obstetrician/Gynaecologist could anticipate such complications in the course of a normal delivery and keep units of blood ready for transfusion. Therefore, the assumption of the State Commission that the time taken to get the blood and start the transfusion was two hours was both factually and medically incorrect. As shown by the patient medical record, the transfusion was actually started in less than an hour of the diagnosis of the possible cause of the bleeding (atonic uterus) and, in the given circumstances; this was the shortest possible time to start the blood transfusion. (iii) Thirdly, the State Commission conclusion regarding the patient blood group and blood matching was also erroneous. The first page of the medical record would show that the patient blood group had been noted right at the beginning. However, before starting blood transfusion every unit of blood has to be necessarily cross-matched with that of the patient. This was done in this case, as it is necessary to avoid the possibility of adverse reaction that may occur even when the patient blood group and that of the blood to be transfused match. (iv) Therefore, the treatment given to the patient during her stay in the Nursing Home was according to the standard protocol. There was no delay in shifting her to the PGI. Before so referring the patient, the appellant Doctors had to make sure that all other causes of bleeding had been ruled out and that the patient was fit to withstand the journey with the help of blood, fluids and oxygen. Charanpreet was accompanied by two paramedics from the Nursing Home, with a unit of blood being transfused simultaneously on each arm as well as oxygen supply. Dr. G. S. Kochhar preceded the van carrying Charanpreet to the PGI in his own car to ensure that there was no delay in taking her to the SLR. (v) As many as 5 Medical Boards had examined the case records and come to the conclusion that neither in dealing with the new-born baby asphyxia nor in treating the mother for her sudden complication of atonic post-partum hemorrhage (PPH) did the appellant/OP Doctors commit any act of medical negligence. (vi) Even otherwise, the onus to prove the allegations of negligence was on the respondents. The respondents produced no expert to do so. On the contrary, as many as 17 Doctors - all medical experts constituting the Medical Boards found that there was no negligence on the part of the appellant Doctors. All the Medical Boards were constituted at the behest of the respondents/complainants and their opinions were given after thorough perusal of the entire medical record of Charanpreet. 8. On behalf of respondents/complainants 1 and 2, Mr. Malhotra has submitted as under: (i) From the assertions and admissions of the appellants (Dr. G. S. Kochhar and Dr. Kanwarjit Kochhar) the present case is one of admitted negligence. (ii) In view of such admissions, the case law relied upon by the appellant is not applicable nor are any other related proceedings, such as indingsof panels of Doctors relevant in the present case. (iii) What happened inside the delivery room/operation theatre was known only to the appellants. Therefore, what the appellants have themselves stated is of vital importance. The appellantsown version is as follows: (a) The deceased Mrs. Charanpreet Kaur delivered a baby between 1.45 to 2.00 a.m. (vide middle of page of the list of dates, though elsewhere it is stated that the delivery took place at 2.40 a.m.) The said paragraph reads: Dr. R. P. Bansal, MBBS, MD, a qualified Paediatrician was present with the patient from 2.15 a.m. onwards (half an hour before delivery). Delivery took place at 2.00 a.m. (b) fforts to save baby were made but baby was declared dead at 3.10 a.m. However, all efforts to save the baby failed and the baby was declared dead at 3.10 (c) Patient/deceased Mrs. Charanpreet Kaur was bleeding. Cause of bleeding was allegedly attempted to be ascertained and treated. (d) Transfusion of blood was started at 4.15 a.m. (vide page of list of dates). (e) Uterine artery embolisation facility was admittedly not available at the Nursing Home as was correctly recorded in para. 5 of the impugned judgment: ... there was no facility for meeting emergency necessitating uterine artery embolisation to check bleeding as was required in the case of Charanpreet Kaur (f) Paragraph 8 of impugned judgment records the appellantsversion that the deceased Charanpreet was shifted to the PGI about 05.30 a.m. She was declared dead at 5.45 a.m. (iv) In para 21 of the impugned judgment a quote from a standard textbook on the subject bstetrics and Gynecologyedited by S.S. Ratnam, K. Bhasker Rao and S. Arulkumaran is reproduced: Excessive bleeding after childbirth (postpartum hemorrhage or PPH) is the single largest cause of maternal death worldwide. While some bleeding after childbirth is normal and expected, blood loss greater than 500 ml is commonly defined as a marker for PPH. Severe blood loss is dangerous and potentially life threatening. The World Health Organisation (WHO) estimates that 1,50,000 women bleed to death each year as a result of childbirth. PPH accounts for a quarter of all maternal deaths with individual countries reporting percentages of UP to 60%. A woman suffering from PPH can die quickly (Often within 2 hours) unless she receives immediate and appropriate medical care. Every minute of delay raises the likelihood that a woman suffering from hemorrhage will die. (v) This authoritative medical opinion on how quickly PPH can prove fatal has not been assailed or controverted by the appellants. (vi) Thus, on the admitted facts, the deceased Charanpreet was bleeding heavily from about 1.45 a.m. to 05.30 a.m. In view of the standard textbook opinion, as above, the deceased should have been moved to the PGI at the latest by 3.45 a.m. for uterine artery embolisation (which alone could have stopped the bleeding and for which the Nursing Home had admittedly no facility). (vii) There was admittedly a further delay of 45 minutes over and above the aforesaid deadline. In fact, even transfusion was started only at 4.15 a.m. Looked at from any angle even by the appellantsversion, between the onset of bleeding and the patient being transferred to the PGI, there was a gap of 3 hours 45 minutes (maximum) to 3 hours (minimum). (viii) It would appear that the appellant Nursing Home and attendant Doctors had first acted negligently that lead to death of the baby boy. Perhaps that is why they were not keen to rush late Charanpreet Kaur to the PGI for fear of this negligence being detected. They deliberately and negligently delayed and denied the proper treatment to the late Charanpreet Kaur, knowing full well that every minute delay could be fatal. (ix) There cannot be a more patent case of gross and open negligence by doctors, apparently keen to cover their mishandling of a case of delivery of baby. Both mother and child lost their life at the altar of the dithering and unprofessional hands and negligent attitude of the appellant Doctors and deficient facilities at the Nursing Home. (x) In the light of the admitted facts of the case, no Board of Doctorsfindings, etc., are necessary to establish negligence on behalf of the aforesaid parties. The fact that Board after Board remained silent on these aspects only shows the ubiquitous influence of the aforesaid parties and the abuse to which they put their status and position. 9. On behalf of the OIC, Ms. Manjusha Wadhwa has made written submissions as under: (i) Dr. Gurdeep Singh Kochhar and Dr. Kanwaljit Kochhar were insured with respondent 4/New India Assurance Company. The OIC had no contract of indemnity in respect of these doctors. (ii) The OIC cannot be held liable unless appellant 1/Deep Nursing Home is liable under the terms and conditions of the policy. It has been established on record that the operation theatre of Deep Nursing Home was fully equipped to handle usual emergencies during delivery. (iii) Accordingly, the State Commission has not passed any order against Deep Nursing Home and hence the OIC cannot be held liable in the facts and circumstance of the present case. (iv) The New India Assurance Company has also quoted clause 8.8 of the professional indemnity policy, which reads as under: f at the time of happening of any event resulting into a liability under this policy, there be any other liability insurance or insurances effected by the insured or by any other person covering the same liability, then the company shall not be liable to pay or contribute more than its rateable proportion of such liability. Further, as per clause 8.9: his policy does not cover liability which at the time of happening of any event resulting into such liability, which but for the existence of this policy, be insured by any other policy (but not a liability policy) or policies, except in respect of any excess beyond the amount would have been payable under the such policy/policies had this insured not been effected. (v) Thus, the primary liability is of the insurance company which has insured the doctors personally and not of the insurance company that has issued the general policy. Enquiry Reports 10. We may now read the various reports of enquiry into the case by Medical Boards established by the Government of Punjab form time to time: (i) First Enquiry Report dated 23.01.2006 (by a Board of four Doctors from the Government Hospital, Sector 16, Chandigarh) Mrs. Charanpreet (deceased) wife of Shri Manmeet Singh aged 32 years was pregnant for the third time; she had one male living child 6 years and one abortion prior to this pregnancy. She booked herself for antenatal check-up with Dhillon Nursing Home on 16.06.2005. Her last menstrual period was 26.03.2005 and expected date of delivery 02.01.2006. She got regular antenatal check-up and investigation done. Investigations were within normal limits and she was prescribed Iron capsules and Calcium tablets. She followed up with Dr. Dhillon till 08.11.2005. She booked herself for further check-up at Deep Nursing Home, Sector 21-D, Chandigarh. On 10.11.2005 she c/o decreased foetal movements. She was advised to get USG and medical consultation for foetal movements. And her ultrasound on 11.11.2005 showed a normal baby with biophysical profile as 8/8. She revisited Dr. Kanwarjit Kochhar on 29.11.2005, 01.12.2005 and 16.12.2005 for regular check-up. Her blood pressure during all these visits ranged from 110/80 to 94/60. She was advised to get Hb and urine test on 29.11.2005. On 01.12.2006 she was advised repeat ultrasound. Record shows that she has taken course of antibiotics on 03.11.2005 and 03.12.2005 on prescription from Cosmo Hospital, Mohali. Cash memo is on record but prescription is not there. On 19.12.2005 she reported to Dr. Kanwarjit Kochhar with pain in the back, loose motions and pressure in lower abdomen. On examination she was found not to be in labour hence was kept under observation. On 21.12.2005 she was admitted in view of pressure and pain in lower abdomen and blood stained discharge. Findings on admission are Blood Pressure 90/60, CVS and Chest no positive findings, Uterus term, vertex fixed, FHS + and regular, P/V cervix one finger 20-25% effaced. Labour was induced by placing Misoprost in posterior fornix at 12.00 MD on 21.12.2005. She was monitored as regards pulse, BP, FHS. Her BP at 12.00 MD was 86/60 mmHg and pulse was 82 per minute. Labour augmented by Pitocin drip one unit/bottle, 20 drops per minute at 06.30 pm and she was monitored for temperature, pulse BP, FHR and uterine contractions. At 7.45 pm strong pains every 1-2 minutes were observed and rate of Pitocin was decreased to 10 drops per minute. Blood pressure continued to be 86/60 and pulse was 80 per minute. Artificial rupture of membrane was done at 1.00 A.M. on 22.12.2005 and she delivered a severely asphyxiated male child at 2.40 a.m. which could not be resuscitated and mother developed atonic PPH for which she was given inj. Methergin, Pitocin drip, Inj. Prostodin, Haemaccel I/V infusion, Ringer lactate and four units blood were ordered, uterus and cervix were explored for retained placental/tissue and membrane and cervical tears and injuries, 4 tablets of Misoprost were placed in rectum, her general condition did not improve and she did not respond to treatment, her condition was reviewed by a second senior gynecologist and then she was referred to PGI at 4.45 A.M. on 22.12.2005 with two units of blood on flow with two paramedics with the patient for uterine blood vessel embolisation. Doctors at PGI recorded at 5.05 A.M. as brought dead. The time interval between delivery and death has been approximate two and half hours. The case was reviewed by the second senior Gynaecologist Dr. Umesh Nandini Jindal before being referred to PGI. The BT was started at 4.15 a.m. Complainant has mentioned in his representation that Mrs. Charanpreet started bleeding at 11.00 p m on 21.12.2005. However, there is no record in the Nursing Home file. He has alleged that deceased heard the doctors talk about death of baby, which shocked her and her condition deteriorated. This cannot be confirmed. Complainant has alleged that there was no Anesthetist available. It is mentioned that Dr. Gurdeep Singh Kochhar is an Anesthetist and was present. Dr. Kanwarjit in her reply to the representation has concluded that Mrs. Charanpreet died of atonic PPH despite all possible treatment and she has mentioned in referral slip to PGI that she was in shock before delivery. Nursing home record shows that at the time of admission her BP 90/60, pulse 82 pm, no evidence of air hunger or cold and clammy skin which shows that she was not in shock. In advanced pregnancy when blood pressure is recorded in supine position, lower readings are recorded. PPH is the third most common cause of maternal mortality and accounts for 9-10% of maternal deaths. Atonic PPH is more common in grand multipara, prolonged labour, obstructed labour, deep anesthesia, twin pregnancy, hydramnios, instrumentation and anemia. It was not a case of any of above-mentioned conditions except anemia, which cannot be ruled out. Since no record of complete haemogram even Hb, BT, CT at time of admission is available, bleeding disorder or deranged haemogram parameters cannot be ruled out. As far as the baby is concerned, as per the available record every parameter was normal in antenatal period, even ultrasound done on 16.12.2005 showed that baby was biophysically normal. Labour record also shows that FHS was normal till delivery; there was no intrapartum accidents like cord prolapse, meconium stained liquor, abruptio placentae, cord around neck, prolonged labour or instrumental delivery. Baby had severe birth asphyxia. As mentioned in the records ale baby born at 02.39 a.m. on 22.12.2005 with no respiration, Heart ccasional heart beat, APGAR 0/10. Resuscitation done in form of endotracheal intubation, assisted ventilation and Adrenalin in 1:10 given through the endotracheal tube but baby could not be revived If there was occasional heartbeat then APGAR has to be 1/10. In my view this therapy given to the baby in form of intubation, cardiac massage and endotracheal Adrenalin are the standard procedure for the treatment of severely asphyxiated baby and they were adequately followed. Cause of severe birth asphyxia is indeterminate, it could have been due to events occurring in intrapartum period or there could have been other etiology which cannot be commented upon in the absence of autopsy which was not done. It is concluded that the patient has died because of severe atonic PPH which did not respond to the treatment given at Nursing Home. The treatment given for atonic PPH was as recommended. Blood is not arranged beforehand for normal deliveries. The patient went into shock at 3.45 a.m. as per the record as the BP was 80/P and pulse was 96 per minute (Tachycardia). Blood samples sent for cross matching at 3.15 A.M. and blood was brought from Rotary and Blood Bank Society Resource Centre, Dakshin Marg, Sector 37, Chandigarh. The last BP recorded at time of referral 4.20 a.m. was 70/P and pulse 98 per minute. The blood was started at 4.15 A.M. on both sides and referred to PGI at 4.45 A.M. The enquiry is based on the record provided by the complainant and the police which are placed on record duly marked from page no. 1 to page 50 of the complaint addressed to the Honle Secretary Health and page 1-67 of the police file. [Emphasis supplied] (ii) Second Enquiry Report dated 20.03.2006 (conducted by a Board of Doctors from Government Medical College and Hospital, Sector 32, Chandigarh) With reference to orders of the SMER on NP 5 the Director Principal constituted the following Board of Doctors from GMCH-32 on 27.02.2006 to look into the complaint of alleged negligence by doctors of a private Nursing Home: 1. Prof. Harsh Mohan, Medical Superintendent and HOD, Pathology, Chairman 2. Prof. K. K. Gombar, HOD, Anaesthesia, Member 3. Prof. Veena Parmar, HOD, Paediatrics, Member 4. Prof. Anju Huria, HOD, Ob and Gynae, Member 5. Prof. A. K. Attri, HOD, Surgery, Member In compliance with above orders, the committee held meetings on 03.03.206, 06.03.206, 07.03.206 and 13.03.2006 to study the record provided in the file and the proceedings of the inquiry conducted already by doctors from GH6 and discussed the draft report on 16.03.2008 and 20.03.2006 before submitting the finalised report on 20.03.2006. Based on thorough deliberations and discussion amongst members, following are the findings of the committee: 1. The background of the complaint: As per record, the case pertains to undated complaint by the complainant Mr. Manmeet Singh, husband of deceased Mrs. Charanpreet Kaur and father of deceased newborn male baby, to the SHO, Sector 19 which has also been endorsed to SSP, Chandigarh and the complainant has followed it up in his representations dated 31.01.2006 to SHO, Sector 19 again and to SMER dated 06.02.006. The complainant in these detailed representations to the authorities has leveled allegations of negligence against Dr. (Mrs.) Kanwarjit Kochhar, the attending Obstetrician and Dr. G.S. Kochhar, both of Deep Nursing Home, Sector 21-D, Chandigarh and held them responsible for the death of his newborn baby and his wife on 22.12.2005 and has requested thorough inquiry followed by criminal action against both these doctors. 2. Antenatal period under the same doctors: (i) After going through the entire record, we find that patient Mrs. Charanpreet Kaur was on antenatal follow up with Dr (Mrs.) Kanwarjit Kochhar since 10.11.2005. The record of her visits in Deep Nursing Home show her BP recording of 110/80 mm of Hg on 10.11.2005, 100/80 mm of Hg on 29.11.2005, 96/70 mm Hg on 09.12.2005, not mentioned on her visit on 16.12.2005, and lastly 94/60 mm of Hg on 21.12.2005 which is the day when she was admitted to the Nursing Home. On advice of Dr (Mrs.) Kochhar, the patient had a cardiology consultation on 29.11.2005 (Dr. Sumeet) for breathlessness and low BP but there is no record on it except that the patient informed her Obstetrician that her cardiologist had told her that she was fine. Conclusion: Although the reading of BP mentioned during antenatal period has been towards lower side of normal value, but the patient cannot be labeled as hypotensive during antenatal period. (ii) As per records, the single haemoglobin (Hb) value recorded on 29.07.2005 is 10.7 gm/dl (i.e., about 18 weeks gestation). There are no other reports on Hb values later during the entire antenatal period in the record. Conclusion: In Indian pregnant female subjects, value of normal Hb has been reported as more than 11 gm/dl at full term as per literature. But the Hb report at term or in last trimester are not there in record; however, a single report of 10.7 gm/dl at 18 weeks gestation is near normal (more than 11 gm/dl) to mild anaemia requiring haematinics which she was receiving. 3. Hospital admission and death of newborn and the mother: Two major catastrophes occurred during the period following admission of the expectant mother Mrs. Charanpreet Kaur at Deep Nursing Home on 21.12.2005 at 11 A.M: (i) delivery of newborn male baby at 2.39 a.m. on 22.12.2005 which was declared dead at 03.10 a.m. on 22.12.2005; and (ii) subsequently followed by death of the mother, Mrs. Charanpreet Kaur at or before 05.45 on 22.12.2005 Our findings on the sequence of both these events culminating in unfortunate death of the newborn baby and the mother are as under: (i) Sequence in the death of newborn baby As per record in the file, fetal heart sounds (FHS) were present till the time of delivery. As per record of noting by the attending paediatrician, Dr. Bansal, a male baby was born at 2.39 a.m. on 22.12.2005, although at one place, Dr. (Mrs.) Kochhar has mentioned delivery time of 2.30 a.m. in her referral slip of the patient to PGI. As per notes of Dr. Bansal, there was no cry, no respiratory effort, heart beat occasional, unstable, no response to suction; assisted ventilation and other resuscitation measures like cardiac compression and drugs started. The heart rate rose to 10-15 beats per minute but later heart rate continued to drop; no response to continued resuscitation efforts till 3.10 a.m. when the baby was declared dead at 03.10 a.m. Autopsy was advised by the paediatrician to ascertain the exact cause of death but declined by the relatives. Conclusion: From the above notes and sequences, it emerges that the baby had severe birth asphyxia with APGAR score of 1/10. The resuscitation measures taken by attending paediatrician are according to standard protocol/guidelines and were carried out for sufficient time as per recommendations. (Reference: International Guidelines for Neonatal Resuscitation, 2000. As excerpt from the Guidelines 2000 for Cardio-pulmonary Resuscitation and Emergency Cardiovascular Care: International Consensus on Science. Pediatrics 2000; 106:29) The cause of death of baby is severe birth asphyxia and resuscitation failure. The cause of severe birth asphyxia cannot be determined without autopsy of the baby. (ii) Sequence in the death of mother The patient, Mrs. Charanpreet Kaur, was admitted on 21.12.2005 at 11 a.m. due to complaint of backache. As per record, labour was induced with misoprostol 25 micrograms (which is the correct dose). As per record, the patient was monitored for fetal heart rate, pulse and BP along with uterine contractions by the ANM at the Nursing Home. At 1.00 A.M., pelvic examination was conducted by Dr (Mrs.) Kochhar and artificial rupture of membrane (ARM) was done; liquor amnii at that time was clear. As stated above already, the delivery of the baby took place at 2.30 a.m. Following the delivery, Pitocin and Methergin injections were given to the mother to prevent post-partum hemorrhage (PPH) but there is no mention of the time when these were given. However, the patient had PPH and all the uterotonic drugs (mentioned in the record Methergin, Pitocin, Prostodin) were repeated. In view of continued bleeding of the patient (PPH), her blood was sent for cross-matching at 3.15 a.m. Patient uterus was explored for retained placental bits and the cervix and vagina explored for lacerations. However, these findings were negative and the uterus was felt to be relaxed; therefore, the diagnosis of atonic PPH was made by Dr. (Mrs.) Kochhar. Patient went in to shock as per record reproduced below: BP at 3.45 a.m. = 80/?, pulse 96/mt BP at 4 a.m. = 70/?, pulse 96/mt; and BP at 4.20 a.m. = 70/?, Pulse 98/mt. Two units of cross-matched blood arrived at 4.15 a.m. and transfusion was started immediately. Meanwhile, as per record, at about 4.15 to 4.30 a.m. other senior doctors Dr. N.S. Sandhu, Consultant Practising Surgeon and Dr. Umesh Jindal, Consultant Practising Obstetrician and Gynaecologist were called to see the patient, and as per their notes in the file, they were there up to 05.15 a.m. Both of them confirmed the diagnosis of atonic PPH. Dr. Umesh Jindal in her examination notes has stated, atient was bleeding, conscious, PA (per abdomen) uterus was relaxed; local examination revealed no cervical or vaginal tear; 800 microgram Misoprost inserted PR (per rectum) (had already received 2 ampoules of Prostodin and Methergin.) Uterus explored; no products found. Placenta examined again; complete with membranes. Patient referred to PGI for uterine artery embolisation after informing the doctor on duty in SLR. The bottom lines of referral slip for the patient issued by Dr. (Mrs.) Kochhar states atient being shifted to PGI for uterine artery embolisation. Patient in shock before delivery; BP 96/60; urinary output at 4.45 a.m. 100 ml. As per record, two more units of blood were also brought by the relatives of the patient, and at the time of referral to PGI the patient was on blood transfusion on both sides. The patient was brought to PGI at 5.45 a.m. The notes of doctor on duty at PGI (Dr. Pramod Kumar, Senior Resident, Ob & Gynae) have stated, atient brought dead to SLRatient attendants and husband not willing for autopsy. We do not want the case to be made medico-legal Conclusion: From the above sequence of events, it appears that this patient had atonic PPH, which was managed conservatively but without success. Other management modalities of atonic PPH are surgical intervention including hysterectomy or uterine artery embolisation and immediate shifting to a higher facility for the latter. It is known that Dr. G S Kochhar is himself a qualified anaesthesiologist. It is not mentioned anywhere in the record what resuscitation support system had been provided to the patient at the time of her transportation to the PGI, except that she was on blood transfusion. PPH is a known complication of delivery and accounts for 8% of maternal mortality in developed countries. Different patients may cope differently with blood loss in PPH; a healthy pregnant woman is far more tolerant to blood volume loss of 30-50% than a woman who has pre-existing anaemia, an underlying cardiac complication, or pre-eclampsia. (Reference: Women in developing countries are 40 times more likely than women in developed countries to die in child birth. WHO Managing Complications in Pregnancy and Childbirth: A Guide for Midwives and Doctors. WHO/RHR/ 00.7. Geneva: WHO, 2000) As such, it cannot be said with certainty from the records whether this patient had anaemia at term or hypotension and shock before delivery or not. However, in the presence of either or both of these conditions, atonic PPH is more likely to be worse and catastrophic. (iii) Third Enquiry Report dated 03.04.2006 he reconstituted committee as per the orders of Secretary, Medical Education and Research, Chandigarh Administration dated 23.03.2006 met in the office of Medical Superintendent, Government Medical College Hospital, Chandigarh on 03.04.2006 at 04.00 p.m. All the members of the committee were present. The members deliberated on the entire available records once again and considered both the reports submitted by the Boards of Doctors, namely General Hospital, Sector 16 and GMCH, Sector 32 Chandigarh respectively. The Committee is of the opinion that the members had been provided with the record relating to patient hospital stay along with representations by the complainant and the entire record has been interpreted in its proper perspective vis vis complainant representations because that was the brief given to the committee by the Competent Authority. Based on interpretation of the records, the committee is of the considered opinion that there is no divergence in the conclusion drawn from both the reports of the experts of General Hospital, Sector 16 and the Board of Doctors of GMCH, Sector 32, Chandigarh. (iv) Fourth Enquiry Report dated 18.08.2006 Proceedings of the Committee regarding inquiry report of the complaint made by Mr. Manmeet Singh, son of Sukhdev Singh, H NO. 4299, Sector 68, Mohali. With reference to letter no. 2282/GD/14855/UT/E-6 dated 16.06.2006 from the Senior Superintendent of Police, UT, Chandigarh, the committee consisting of the following met on 18.08.2006 under the Chairmanship of the Director Health Services, UT, Chandigarh. The meeting was attended by the following members: 1. Dr. Manjit Singh Bains Chairman Director of Health Services General Hospital, Sector 16, Chandigarh 2. Dr. Usha Bishnoi Member Medical Superintendent, General Hospital Sector 16, Chandigarh 3. Prof. Harsh Mohan Member Medical Superintendent, GMCH, Sector 32, Chandigarh 4. Prof. K. K. Gombar Member Head Department of Anaesthesia 5. Prof. Veena Parmar Member Head, Department of Paediatrics 6. Prof. Anju Huria Member Head, Department of Gynae 7. Prof. A. K. Attri Member Head, Department of Surgery The Committee deliberated on the issue addressed in the above-mentioned letter of SSP/Chandigarh and took into consideration the record of deceased mother and child provided by the Police Department earlier. The Committee also discussed the inquiry report submitted previously by the team of doctors from General Hospital, Chandigarh and team of experts from the Government Medical College, Sector 32, Chandigarh. Taking into consideration the above-mentioned medical records and inquiry reports, the committee is of the opinion that there does not appear to be any gross medical negligence in the management of patients by treating doctors. [Emphasis supplied] Extracts of Medical Literature Produced by Parties 11. While the complainants/respondents have relied on the medical literature cited before the State Commission (Obstetrics and Gynecology by S.S. Ratnam, et al), the appellants/OPs have produced medical literature from various sources in support of their contentions. The relevant portions of the medical literature cited by both the parties are reproduced below: ostpartum Hemorrhage Excessive bleeding after childbirth (postpartum hemorrhage or PPH) is the single largest cause of maternal death worldwide. While some bleeding after childbirth is normal and expected, blood loss of more than 500 ml is commonly defined as a marker of PPH. Severe blood loss is dangerous and potentially life threatening. The World Health Organisation (WHO) estimates that 150,000 women bleed to death each year as a result of childbirth. PPH accounts for a quarter of all maternal deaths, with individual countries reporting percentages of up to 60%. A woman suffering from PPH can die quickly (often within 2 hours) unless she receives immediate and appropriate medical care. Every minute of delay raises the likelihood that a woman suffering from haemorrhage will die. Although many medical conditions can cause haemorrhage, the majority of severe bleeding occurs because the uterus (or womb) is unable to contract properly after delivery of the baby. Other causes of excessive bleeding include: tears of the vagina and cervix, clotting disorders and problems with the placenta. Certain factors are associated with developing PPH (for example, previous PPH, previous multiple pregnancies); however, most cases (about two-thirds) take place in women with no known risk factors. All women must therefore have access to prevention and to emergency treatment for severe blood loss after childbirth. In developing countries, the risk of dying from postpartum bleeding is 1 in 1000 deliveries. [Emphasis supplied] igh Risk Pregnancy Directory Obstetric Hemorrhage By David A. Miller, MD The average blood loss at the time of delivery is approximately 500 cc during a vaginal delivery and 1,000 cc during a cesarean section. Excessive blood loss or ostpartum hemorrhagecomplicates approximately 4% of vaginal deliveries and 6-7% of cesarean sections. Common causes of hemorrhage around the time of delivery include uterine atony, vaginal or cervical tears, retained fragments of placenta, placenta previa, placenta accreta and uterine rupture. Hereditary abnormalities in blood clotting may cause hemorrhage as well. Uterine atony is a term used to describe the failure of the uterine muscle to contract normally following delivery of the baby and placenta. This condition is responsible for upto 90% of all cases of postpartum hemorrhage. Separation of the placenta from the wall of the uterus results in shearing of the mother blood vessels that previously supplied blood to the placenta. Normally, bleeding from these severed vessels is stopped by contraction of the uterus and compression of the vessels. If uterine contraction is not adequate, bleeding can continue. At times, the uterus is prevented from contracting effectively by fragments of placenta that remain in the uterus after delivery or by benign growths of uterine muscle within the uterine wall known as fibroids. In these cases, the term tonyusually is not applied. In most cases, the uterine muscle simply fails to contract adequately. Many factors can cause the uterus to fail to contract after delivery. These are summarised in Table 1. Table 1 - Factors associated with uterine atony Prolonged Labour Fetal Macrosomia Oxytocin Grand Multiparity General Anesthetics (Halothane) Couvelaire Uterus Multiple Gestation Dystocia Polyhydraminos Infection (Chorioamnionitis) In patients with risk factors for uterine atony, excessive bleeding at the time of delivery should be anticipated and, whenever possible, preparations should be made before delivery. General precautions include establishing at least one large-bore intravenous line, ensuring the availability of uterine contraction medications (oxytocin, methylergonovine, prostaglandins) and confirming that appropriate nursing and anesthesia personnel are available and aware of the possibility of postpartum hemorrhage. In selected high-risk patients, it may be appropriate to notify the blood bank of the potential need for blood transfusion. After delivery, uterine atony is detected when there is excessive bleeding and a large, relaxed uterus. Your doctor may perform an examination to be certain that there are no bleeding tears of the cervix or the vagina and that all fragments of placenta have been removed from the uterus. If vaginal or cervical lacerations are found, they should be repaired. Massaging the uterus often causes the uterus to contract and oxytocin usually is given intravenously to stimulate uterine contractions. The doctor may compress the uterus between one hand in the vagina and the other on the abdomen. If this approach is not successful, medications such as methylergonovine or prostaglandin may be used. If atony persists despite these maneuvers, surgery may be necessary. The objective of surgery is to control the bleeding as rapidly as possible. Often, this can be accomplished by clamping the blood vessels that supply the uterus. If successful, this procedure should not affect future pregnancies. In some settings, interventional radiology may provide another alternative. Using X-ray guidance, small catheters, can be placed through the blood vessels in the leg and into the blood vessels supplying the uterus. The blood vessels then can be injected with gelatin sponge particles or spring coils to obstruct blood flow to the uterus. Although successful control of hemorrhage has been reported with this technique, it may not be available in emergency situations. If conservative measures fail to control the bleeding, hysterectomy may be necessary. Severe bleeding may necessitate blood transfusion. Prompt recognition and intervention are the cornerstones of successful management of uterine atony. Alternate sources of bleeding, such as vaginal or cervical lacerations or retained placental fragments, must be excluded. Blood and fluid must be replaced as needed. Conservative measures for control of bleeding include uterine massage, uterine pressure and administration of medications to stimulate uterine contractions (oxytocin, methylergonovine, prostaglandins). Surgery may be necessary to occlude the blood supply to the uterus. If this is not successful, hysterectomy may be required. Preventing Postpartum Hemorrhage: Active Management of the Third Stage of Labor There are numerous definitions of postpartum hemorrhage (PPH). The most widely recognized definition is blood loss after childbirth in excess of 500 ml. Because it is often difficult to accurately measure blood loss, the true incidence of PPH may be underestimated by up to 50%. The majority of cases of PPH occurs in the immediate postpartum period (within 24 hours after birth) and is due to uterine atony, a failure of the uterus to properly contract after the child is born. As a result, bleeding from the blood vessels in the uterus is not controlled. Without immediate and proper medical attention a woman with PPH will probably die. Anemic women are particularly susceptible to such blood loss. Maternal mortality due to PPH is highest where there is poor access to skilled providers, transport systems and emergency services. This is not surprising considering that a woman will die within two hours, on average, after the onset of PPH if she does not receive proper treatment (e.g., appropriate drugs, blood transfusion or surgical intervention). Consequences of Postpartum Hemorrhage: Women who survive PPH are likely to suffer from anemia and other complications. These women often must receive blood transfusions and are susceptible to the associated risks of transfusion reactions or infection with HIV or hepatitis. Bleeding that cannot be controlled using drugs often requires surgery, including hysterectomy. Such procedures are costly and painful and may be emotionally devastating to the women and her family. In addition, they carry the risk of infection, reactions to anesthesia and other complications. Risk of Postpartum Hemorrhage: Although some factors have been associated with an increased incidence of uterine atony leading to PPH, two-thirds of the women who hemorrhage after childbirth have no identifiable risk factors. Therefore, every woman must be closely monitored after childbirth for signs of hemorrhage. Preventing Postpartum of Hemorrhage: Active Management of the Third Stage of Labor: The third stage of labor is the period of time from the birth of the child until the placenta is delivered. A series of procedures, conducted during the third stage and collectively called active management, enhance the ability of the uterus to contract after the child is born. By decreasing the amount of time necessary to deliver the placenta, active management can prevent PPH by preventing uterine atony. Active management consists of: giving a drug (uterotonic), within one minute of birth, that causes the uterus to contract; early clamping and cutting of the umbilical cord; and applying controlled traction on the umbilical cord while applying counter-traction on the uterus. The Truth About Maternal Death and PPH 5,15,000 women die during pregnancy and childbirth every year. 99% of maternal deaths occur in developing countries. 1,30,000/- women bleed to death each year while giving birth. 2/3 women with PPH have no identifiable risk factors. 90% of cases of PPH are due to uterine atony. Percentage of maternal deaths due to PPH. Sub-Saharan Africa: 25%, West Africa: 27% and Indonesia: 45%. Following the delivery of the placenta, the uterus is massaged through the abdomen to ensure that it remains contracted. Uterotonic Drugs Giving women oxytocin immediately after childbirth is probably the single most important intervention used to prevent PPH. Women given oxytocin lose less blood, resulting in a decreased incidence of PPH and anemia. A woman receiving oxytocin delivers her placenta faster and is less likely to require manual removal of her placenta, a painful procedure that increases the risk of infection. Timing of Administration Oxytocin is most effective when administered within one minute after the birth of the baby. Waiting to give oxytocin until after the placenta is delivered increases the women risk of uncontrolled bleeding. Oxytocin and Ergometrine Oxytocin alone and oxytocin plus ergometrine are generally equally effective in reducing the incidence of PPH. Giving oxytocin alone, however, is associated with fewer side effects (e.g., nausea, vomiting and increased blood pressure). In addition, ergometrine cannot be given to women with high blood pressure (a common problem in pregnancy). Misoprostol Prostaglandins are effective in controlling hemorrhage but most have the disadvantages of being more expensive and having increased side effects (e.g., diarrhea, vomiting and abdominal pain). One notable exception is misoprostol, a prostaglandin analogue currently being investigated as a potential uterotonic drug for use in active management of the third stage of labor. Studies to date indicate that misoprostol is effective in reducing the incidence of PPH without the side effects associated with other uterotonic drugs. Furthermore, misoprostol is inexpensive, stable at room temperature and can be given orally all of which are tremendous advantages over currently available uterotonic drugs. A Few Simple Procedures Save Lives Active management of the third stage of labor can substantially decrease the following: Incidence of PPH due to an atonic uterus Length of the third stage of labor Need for additional drugs to treat excessive bleeding Need for a blood transfusion Need for surgical intervention Incidence of anemia and other problems associated with excessive blood loss Performing just a few simple procedures giving a uterotonic drug, clamping and cutting the umbilical cord, applying traction on the umbilical cord while applying counter-traction on the uterus and massaging the uterus through the abdomen has the potential to prevent more than 1,30,000 maternal deaths every year. [Emphasis supplied] Extracts of Medical Literature on Prenatal (Antenatal) Care In addition to the medical literature cited by the parties and reproduced above, we deem it necessary to read some standard textbooks on Obstetrics dealing with ante/prenatal care of a pregnant woman visiting her Obstetrician/Gynaecologist. I. Manual of Obstetrics (Second Edition) by Shirish N Daftary and Sudip Chakravarti, Assisted by Gaurang S Daftary Chapter 9 - Prenatal (Antenatal) Care xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In summary, the goals of prenatal care may be stated as follows: Prevention of adverse maternal and perinatal outcome by early identification of pregnancy complications Application of other health measures not specific to pregnancy (pap smears, rubella antibody test and HIV screening) Provide adequate psychosocial counsel ling Patient education mothercraft and childcare Contraceptive planning for the future xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx History A detailed history of her demographic data, current pregnancy problems, previous obstetric performance, past medical and surgical problems, personal history particularly with regard to exposure to teratogens and a review of family history for medical or genetic problems is obtained and documented. Demographic Data and Social Background Various demographic data may serve to identify patients at increased risk for adverse pregnancy outcome, e.g., preterm delivery and poor fetal growth. Maternal age less than 17 years, or more than 35 years. Low socio-economic status and limited education. Interpregnancy interval of less than 1 year. Low pre-pregnancy maternal weight (less than 45 kg). Cigarette smoking and tobacco chewing. Previous premature birth, low birth weight (LBW) infant less than 2000g, previous abortion, stillbirth or neonatal death. Family attitude towards pregnancy, and assessment of socio-economic environment. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Previous Obstetric History The previous obstetric performance of the patient has an important bearing on the outcome of her present pregnancy. Hence a detailed record of the number of previous pregnancies, the date and year of their occurrence, the outcome of each pregnancy detailing gestational maturity achieved, any medical or obstetric problems present at the time, details of prenatal care received, outcome of labour, normal delivery or instrumental assistance required. Details about the baby, viz. sex, weight at birth, Apgar score at birth, neonatal condition and details of puerperal problems if any should be documented separately for each successive pregnancies. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Personal and family history Any history of bleeding during the course of pregnancy, use of medications, exposure to teratogens, abuse of drugs or substances like tobacco, alcohol or opiates should be recorded, and their possible adverse effects considered. History of allergies, particularly to drugs, should be noted and use of such drugs meticulously avoided. History of use of contraceptives in the past is recorded. Family history of tuberculosis, diabetes, haemoglobinopathies (thalassaemia), blood dyscrasia, hypertension, genetic disorders and twins should be recorded. Ultrasound examination Determination of gestational age by ultrasound has an accuracy within 4 to 5 days in the first trimester, and of 10 days in the second trimester up to 20 weeks of gestation. It becomes less accurate (between 2 and 3 weeks), if assessment is carried out only in the last trimester. Dating of pregnancy should be carried out within 20 weeks of pregnancy. Neonatal assessment after the birth of the baby provides confirmation of earlier obstetric evaluation within 1 to 2 weeks of accuracy. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Investigations During Repeat Visits in the Prenatal Period Haemoglobin and haematocrit values at 18 to 20 weeks, 24 to 28 weeks and 36 weeks. Urine for protein/glucose at every visit. Urine culture/presence of nitrite at 24 to 28 weeks in women showing presence of bacteriuria. Blood sugar after 1 hour of administration of 50 g glucose load to detect impaired carbohydrate tolerance at 28 weeks. Repeat antibody titre in Rh-negative women at 28 to 32 weeks. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Follow-up Prenatal Visits The pregnant mother is regularly called for follow-up visits to ensure that her pregnancy is progressing satisfactorily, to assess fetal growth, to discuss any problems perceived by her, to advise follow-up laboratory investigations and other special investigations like sonography at the appropriate times, and lastly to check that she is taking her medications regularly. Frequency of Antenatal Clinic Visits In an uncomplicated pregnancy, a woman is seen every 4 weeks up to 28 weeks, every two weeks up to 36 weeks, and thereafter once every week up to term. Women with medical or obstetric problems require close surveillance, the interval being decided in individual cases by the nature and severity of the problem. Monitoring of Pregnancy The following parameters are recorded at each subsequent visit Symptoms: fatigue, nausea and vomiting, constipation, abdominal pain, backache, cramps in calves, headache, altered vision, swelling of face, fingers and feet, vaginal bleeding, vaginal discharge and dysuria General examination to include pallor and oedema Blood pressure, the extent of change is noted Weight, the extent of change Obstetrical examination Fundal height measurement Abdominal palpation to record fetal lie and presentation Estimate fetal size and note growth rate Fetal movements and auscultation of fetal heart Vaginal examination after 37 to 38 weeks, if required, to assess consistency, position, effacement and dilation of the cervix (Bishop score) Speculum examination, in case of vaginitis to obtain vaginal discharge for examination, to confirm presence of incompetent cervix, and to ascertain leakage of amniotic fluid II. Dewhurst Textbook of Obstetrics and Gynaecology (Seventh Edition) Chapter 6: Antenatal Care by Timothy G. Overton XxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxFrequency and timing of antenatal visits There had been little change in how frequently women are seen in pregnancy for the last 50 years. In 2003, the National Institute for Clinical Excellence produced a clinical guideline entitled ntenatal care; routine care for the healthy pregnant women This document recognized the large amount of information that needs to be discussed at the beginning of pregnancy particularly with regard to screening tests. The first appointment needs to be early in pregnancy, certainly before 12 weeks if possible. This initial appointment should be regarded as an opportunity for imparting general information about the pregnancy such as diet, smoking, folic acid supplementation, etc. A crucial aim is to identify those women who will require additional care in the pregnancy (Table 6.1). Table 6.1 Factors indicating the need for additional specialist care in pregnancy Conditions such as hypertension, cardiac or renal disease, endocrine, psychiatric, or haematological disorders, epilepsy, diabetes, autoimmune disease, cancer or HIV Factors that make the women vulnerable such as those who lack social support Age 40 years and older or 18 years and younger BMI greater than or equal to 35 or less than 18 Previous Caesarean section Severe pre-eclampsia or eclampsia Previous pre-eclampsia or eclampsia Three or more miscarriages Previous preterm birth or midtrimester loss Previous psychiatric illness or puerperal psychosis Previous neonatal or stillbirth Previous baby with congenital anomaly Previous small-for-gestational or large-for-gestation aged baby Family history of genetic disorder (By kind permission of the National Collaborating Centre for Women and Children Health) A urine test should be sent for bacteriological screen and a booking for ultrasound arranged. Sufficient time should be set aside for an impartial discussion of the screening tests available including those for anaemia, red-cell antibodies, syphilis, HIV hepatitis and rubella. Because of the complexity of Down syndrome, this too should be discussed in detail and supplemented with written information. Ideally another follow-up appointment should be arranged before the screening tests need to be performed to allow further questions and arrange a time for the tests following material consent. The next appointment needs to be around 16 weeks gestation to discuss the results of the screening tests. In addition, information about antenatal classes should be given and a plan of action made for the timing and frequency of future antenatal visits including who should see the woman. As with each antenatal visit, the blood pressure should be measured and the urine tested for protein. The 20 week anomaly scan should also be discussed and arranged and women should understand its limitations. At each visit the symphysio-fundal height is plotted, the blood pressure measured and the urine tested for protein. At 28 weeksgestation, blood should be taken for haemoglobin estimation and atypical red-cell antibodies. Anti-D prophylaxis should be offered to women who are rhesus negative. A follow-up appointment at 32 weeks will allow the opportunity to discuss these results. A second dose of anti-D should be offered at 34 weeks. At 36 weeks, the position of the baby needs to be checked and if there is uncertainty, an ultrasound scan arranged to exclude breech presentation. If a breech is confirmed, external cephalic version should be considered. If placenta praevia had been noted at 20 weeks a follow-up scan at 36 weeks is needed. For women who have not given birth by 41 weeks, both a membrane sweep and induction of labour should be discussed and offered. [Emphasis supplied] Discussion 12. The deceased Charanpreet Kaur was under the medical care of Appellant 2 since the 32nd week (approximately) of her pregnancy, through childbirth and till her reference and shifting to the SLR of the PGI where she was recorded as rought dead In examining the degree of professional care bestowed on her by Appellants 1 and 2, it is, therefore, necessary to review the medical record, including that of the prenatal period with reference to the standard protocol as extracted above from the literature cited by the parties and the authoritative textbooks. 13 (i)(a) As regards the prenatal stage, both the textbooks referred to above emphasise the need for detailed recording of previous obstetric history as well as personal/family history of the pregnant woman when she comes first to her Obstetrician. Thus, according to the textbook by Daftary et al: The previous obstetric performance of the patient has an important bearing on the outcome of her present pregnancy. Hence a detailed record of the number of previous pregnancies, the date and year of their occurrence, the outcome of each pregnancy detailing gestational maturity achieved, any medical or obstetric problems present at the time, details of prenatal care received, outcome of labour, normal delivery or instrumental assistance is required. Details about the baby, viz., sex, weight at birth, Apgar score at birth, neonatal condition and details of puerperal problems if any should be documented separately for each successive pregnancies. (b) In this case, Charanpreet went to some other Obstetrician during the early part of this pregnancy, which was her second. In the memorandum of appeal, Appellant 2 has stated that at the time of her first visit to the Nursing Home, Charanpreet did not show any of her previous medical records even though Appellant 2 asked her to do so. In such a situation, as an Obstetrician of even average competence, skill and experience, it was necessary for Appellant 2 to at least ask and note down Charanpreet obstetric history in respect of her previous child. However, apart from recording the age of the first child as 1/2 years there is no detail in the medical record of consultation on 10.11.2005. (ii) The absence of record of necessary details of Charanpreet first child by Appellant 2 becomes more significant when we notice the latter statement in her written version before the State Commission that during this first visit she learnt rom the hushed tonesof Charanpreet that there was some problem with her first child and that she (Appellant 2) might not have agreed to undertake delivery of this baby had she (Charanpreet) told Appellant 2 of the problem with Charanpreet first child (autistic?), because with such a genetic disorder of the first child, the second one was also likely to have congenital abnormality. In view of these categorical statements, it is clear that Appellant 2 was fully aware of the medical significance of her patient obstetric history and its implication for her current pregnancy, as an average Obstetrician would indeed be expected to know. It is, therefore, very surprising that despite being fully cognisant, Appellant 2 did not insist that the deceased patient show her the medical records relating to her first child birth as well as the previous diagnostic test reports pertaining to her current pregnancy. This would have been a minimal professional requirement (and hence, standard practice) for even an average Obstetrician attending on an expecting mother, particularly if the Obstetrician suspected that the last child suffered from some puerperal disorder, as has been alleged by Appellant 2 in her written version. (iii) Appellant 2 has further stated that she advised the deceased to undergo cardiological check-up because he was breathless However, once again she did not insist that Charanpreet produce the cardiological consultation report though allegedly she informed Appellant 2 that the cardiologist (whom she had actually consulted in lieu of the one recommended by Appellant 2) had said that everything was all right with her. (iv)(a) Further, Charanpreet medical record at the Nursing Home does not have any entry regarding her blood picture (except a scrawled, stand-alone entry of just +in the top left hand corner of the first page of the medical record). In fact, it is only in the first two of the Enquiry Reports that we find one Haemoglobin (Hb) value (10 gm/dl) of Charanpreet being mentioned, which was of 29.07.2005 (i.e., much prior to Charanpreet first visit to the Nursing Home on 10.11.2005) and hence probably from the records of Charanpreet medical follow-up in the Obstetric clinic that she was visiting prior to November 2005. This earlier record, according to Appellant 2, was never shown to her (but perhaps produced by the complainant along with his complaint to the State Government authorities, including the Police, as a result of which it was available to the Enquiry Committees/Boards). That being so, it would follow that Appellant 2 did not have any knowledge of Charanpreet hematological status at any stage since 10.11.2005 and yet made no effort to ascertain this information which had such crucial implications for her pregnancy. (b)(1) In this regard, we may notice that according to the textbook by Daftary, et al quoted above in extenso, the following tests are mandated: aemoglobin and haematocrit values at 18 to 20 weeks, 24 to 28 weeks and 36 weeks. Urine for protein/glucose at every visit. Urine culture/presence of nitrite at 24 to 28 weeks in women showing presence of bacteriuria. Blood sugar after 1 hour of administration of 50 g glucose load to detect impaired carbohydrate tolerance at 28 weeks. Repeat antibody titre in Rh-negative women at 28 to 32 weeks. However, in the written version of the Appellants or in their memorandum of appeal there is not even a whisper of Appellant 2 advising the patient to undergo any of these tests at any point of time since she first came to the Nursing Home. If Charanpreet had not produced the previous blood and other investigation reports despite being asked to do so, Appellant 2 would have had no way of knowing her hematological status or even whether she had undergone any of the requisite tests. Would it not be then absolutely necessary for Appellant 2, as a qualified and experienced Obstetrician certainly of average skills in her profession, to specifically advise in writing the minimal blood and urine tests and refuse to attend on Charanpreet if she failed to comply? As already noticed, the only hematological entry we can see is +(i.e., for the blood group) scrawled by Appellant 2 at the top left hand corner of the first page of the medical record even the Hb value of July 2005 is not recorded anywhere on the pages of medical record produced before us. It would appear that this Hb value was recorded in the enquiry reports based on reports of earlier investigations submitted by Complainant 1 to the Police these were the records made available to the Enquiry Committees/Medical Boards. (2) Moreover, if Charanpreet did not produce any of the previous medical/hematological records, how did Appellant 2 record her blood group as + If Appellant 2 recorded Charanpreet blood group on the oral information given by her during her first visit, it would lend credence to the allegation that when it came to the question of actually transfusing blood to Charanpreet post diagnosis of PPH, the Appellant-Doctors thought it necessary to get the blood group rechecked and not merely cross-matched. (c) The Enquiry Report dated 20.03.2006 of the Board of Doctors of the Government Medical College and Hospital, Sector 32, Chandigarh specifically observes that there was ... no other report of Hb values later during the entire antenatal period in the record Yet, by way of conclusion, this report records, ut the Hb report at term or in the last trimester is not there on record; however, a single report of 10 gm/dl at 18 weeks gestation is near normal (more than 11 gm/dl) to mild anaemia requiring haematinics which she was receiving (d) It is quite clear to us that in observing as above, the Medical Board has glossed over the fact that as a standard medical practice, it was necessary for Appellant 2 to insist on the patient getting her blood and urine tests done, at least with a view to ascertaining her Hb level in the last trimester and see if she was suffering from (iron deficiency) anemia and also her carbohydrate tolerance and bacteriuria. (e) The Enquiry Report does recognise that the Hb value of 10 mg/dl mandated administration of haematinics. The first page of the medical record, however, shows just one entry of 29.11.2005: e, Ca without any mention of the dosage of either. Probably, this lone entry was interpreted as indicative of Charanpreet receiving haematinics. Even if she was taking Fe (iron) tablets, as per the medical record, it is common sense that the dosage would need to be regulated/reviewed depending on the patient actual Hb value(s). As there was no Hb reading except one of July 2005, it is clear that whether Charanpreet status of ear-normal to mild anemiain July 2005 was maintained or had worsened significantly by the time of her delivery would only be a conjecture and not an informed medical assessment by Appellant 2. (f) The significance of the hematological status of Charanpreet at the time of her delivery cannot be overemphasised. This is recognised in the report dated 20.03.2006 of the GMCH Medical Board, when it observes, ... PPH is a known complication of delivery and accounts for 8% of maternal mortality in developed countries. Different patients may cope up differently to blood loss in PPH; a healthy pregnant women is far more tolerant to blood volume loss of 30-50% than a woman who has pre-existing anaemia, an underlying cardiac complication, or pre-eclampsiaand further, s such, it cannot be said with certainty from the records whether this patient had anaemia at term or hypotension and shock before delivery or not. However, in the presence of either or both of these conditions, atonic PPH is more likely to be worse and catastrophic. (g) Likewise, the Medical Board of the Government Hospital has also observed in this regard, Atonic PPH is more common in grand multipara, prolonged labour, obstructed labour, deep anesthesia, twin pregnancy, hydramnios, instrumentation and anemia. It was not a case of any of above-mentioned conditions except anemia, which cannot be ruled out. Since no record of complete haemogram, even Hb, BT, CT at time of admission is available, bleeding disorder or deranged haemogram parameters cannot be ruled out. (h) In other words, Appellant 2 was expected to take the standard care of ensuring that Charanpreet got her blood tested at least once, immediately after she came in for her first consultation, which she failed to do. This was a clear act of medical negligence. (j) Most important, both the Medical Board reports clearly attach importance to the question of Charanpreet anemia because of the fatal consequence of PPH in the case of an anemic woman. In other words, it is only a matter of simple logic that Charanpreet pre-existing leeding disorder or deranged haemogram(vide Government Hospital Medical Board report excerpted above) was the most likely cause why her bleeding from atonic uterus could not be controlled and ultimately led to her death. (v)(a) One of the allegations in the complaint is that Charanpreet heard the doctors talk of the death of her newborn baby, which caused her much anguish and led to her going into shock after delivery. Appellant 2 has denied this and the Enquiry Board of the Government Hospital has observed that this could not be confirmed. However, how the Board has arrived at this conclusion without examining any eyewitness is not clear. (b) On the other hand, it is to be noted that the entire process of resuscitation of the baby was apparently carried out in the labour room, because there is no mention in the affidavit of the Paediatrician that after the baby was handed over to him, he went into another room. It would be natural for the Paediatrician and/or Appellant 2 as well as the assisting nurses to talk about the status of the baby as the process of resuscitation was carried out and for Charanpreet to hear the conversation which could not but be extremely disturbing to her. (vi) We may now notice another important aspect of the care provided to Charanpreet in the course of managing her bleeding. The following is specifically mentioned in the medical literature produced by the parties: iming of Administration Oxytocin is most effective when administered within one minute after the birth of the baby. Waiting to give oxytocin until after the placenta is delivered increases the women risk of uncontrolled bleeding. On this important issue, we also find the following being recorded by the Medical Board of the GMCH: ollowing the delivery, Pitocin and Methergin injections were given to the mother to prevent post-partum hemorrhage (PPH) but there is no mention of the time when these were given. This because in the record of Charanpreet labour (written in hand probably by the Staff Nurse/Auxiliary Nurse Midwife (ANM) of the Nursing Home), there is no record of any activity or time during the half hour 2.30 3.00 a.m. whereas the delivery was at 2.39/2.40 a.m. and there is an entry of Pitocin injection being administered at 2.30 a.m., i.e., pre-delivery. The question that the Appellants or their learned counsel have not thus ventured at all to address in the appeal is why the Medical Board thought it so necessary to flag this point of timing of administration of Pitocin (which is clearly the local brand name of Oxytocin) to Charanpreet. In our considered view, the Medical Board made this pointed observation because it had doubts if Pitocin was administered as per standard practice within one minute of the delivery or after the placenta was expelled. (vii) It has finally been claimed by the Appellants that two staff nurses accompanied the patient on her journey from the Nursing Home to the Septic Labour Room (SLR) of the PGI. Given the critical condition of the patient, including the fact that she was already in shock and continued to bleed profusely, it is surprising that Dr. G. S. Kochhar a trained anaesthetist did not consider it a part of his uty of due careto accompany the patient in the van so that he could take some steps to handle any cardiac complication that she might suffer during the 15-minute journey. Even if it is accepted that Dr. G. S. Kochhar preceded the ambulance carrying the patient in order to prepare for quick reception of the patient at the PGI SLR, leaving the patient entirely in the care of staff nurses in a condition which could not be managed even by two qualified doctors in the Nursing Home (or, by the experts who were also summoned in by Appellant 2) cannot be termed standard medical practice or exercise of due care expected of a medical practitioner of average knowledge and skills. That is why the report of the GMCH referred to above specifically notes, t is not mentioned anywhere in the record what resuscitation support system had been provided to the patient at the time of transportation to the PGI, except that she was on blood transfusion. 14. Learned counsel for the Appellants has also sought to rely on the findings and observations of the learned Single Judge of the Punjab and Haryana High Court in his judgment and order dated 03.02.2010, the operative part of which is as under: o expert opinions support the allegation of criminal rashness or negligence on the part of the petitioners. Not only that the opinion of various Boards constituted rule out the possibility of any criminal negligence or rashness but even the doctors who were summoned during the treatment of the patient concerned have said so in their affidavits which are also placed on record. Dr. N. S. Sandhu, Dr (Mrs.) Umesh Jindal, Dr. R. P. Bansal, Dr (Mrs.) Kamna Nagpal, Dr. Parduman Singh, Prof. S. K. Khanna and Dr. J. S. Gujral have given affidavits to say what all they did when called showing that everything possible from the standard of ordinary skill and rather more than that was done. The registration of FIR in the manner it has come about and the filing of challan in this case does (sic do?) not appear to be an independent act of the police and apparently is actuated due to influence as noted and, thus, is an abuse of power. FIR has been registered on the basis of view of ordinary man referred to as man in Clapham omnibus. The FIR and the subsequent proceedings initiated against the petitioners, thus, apparently is (sic are?) nothing but an abuse of process of Court. The case for exercise of inherent jurisdiction under section 482 Cr.P.C. thus is made out. The investigating agency is bound to realise that there is a clear distinction between criminal rashness and negligence and rashness and negligence to invoke civil liability. The different standards in this regard have also been noted above while referring to various cases, including, Jacob Mathew case (supra) and accordingly, the finding of the Consumer Forum, which in any event has been stayed, would be of no help in this regard The Law on Medical Negligence 15(i) Through a series of judgments delivered over the years, the Supreme Court has defined and clarified what would constitute medical negligence, which is a variety of eficiencyin erviceas defined in the Consumer Protection Act, 1986 (he Act. However, the definitive judgment distinguishing medical negligence amounting to criminal negligence under section 304A of the Indian Penal Code vis a vis negligence entailing tortious liability under civil law is that of a three-Judge Bench of the Apex Court in the case of Jacob Mathew v State of Punjab [(2005) 6 SCC 1], which has been also relied upon by the High Court in its judgment extracted above. (ii) In this case, after an exhaustive discussion, the Apex Court summarised its conclusions as under: onclusions summed up 48. 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: uty reachand esulting damage (2) Negligence in the context of the 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 case, WLR at p. 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 rosshas not been used in Section 304-A 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 ross The expression ash or negligent actas occurring in Section 304-A IPC has to be read as qualified by the word rossly (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 in actions relating to negligence. It cannot be pressed in service for determining per se 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. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Guidelines Re: prosecuting medical professionals 50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards. 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. (iii) Notably, the Court judgment in this case (also arising in the State of Punjab) was pronounced in August 2005. The Medical Community and the Police were thus well aware of the law on the subject by the time the incidents leading to the consumer complaint in hand took place (in December 2005). 16(i) We may notice now that both the detailed reports, the first dated 23.01.2006 of the Panel of Doctors from the Government Hospital, Sector 16, Chandigarh (H and the second dated 20.03.2006 from the Government Medical College and Hospital, Sector 32, Chandigarh (MCH looked into the complainantsallegations to the Police, obviously seeking criminal prosecution of the Appellants. The report dated 03.04.2006 of the Joint Board of the GH and GMCH was limited in its scope and merely observed that there was no divergence in the conclusions drawn in the aforesaid two reports of the Doctors of the GH and GMCH. The last report dated 18.08.2006, of a Committee headed by the State Director of Health Services, however, clearly stated that there did not ppear to be any gross medical negligence in the management of the patient by the treating doctors (ii) In other words, all these reports of the Boards/Committees of expert Doctors examined whether the Appellants had committed rossmedical negligence and found that it was not so. 17(i) In its judgment mentioned above, the High Court has held that the prosecution could not make out a case of gross medical negligence on the part of the accused Doctors and consequently quashed the First Information Report under the provisions of section 482 of the Cr.P.C. However, we may, with respect, observe that the decision of the High Court does not lead to the conclusion that there was no medical negligence on the part of the Appellant Doctors by the criterion of the Bolam Test. This is so because the question of tortious medical negligence was not before the High Court. On the other hand, as observed by the Apex Court in the Jacob Mathew case, he 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. [Emphasis supplied] (ii) That, in attending on Charanpreet, there were several instances of departure from the standard protocol of antenatal care on the part of Appellant 2 is clear from the detailed discussion in paragraph 13 above, particularly regarding failure of Appellant 2 to insist on Charanpreet going in for standard hematological investigations (that are mandatory for a woman in her 28th week of gestation but apparently not got done even till the 32nd week when Charanpreet first came to see Appellant 2) and getting the cardiological consultation report/findings on record to show if Charanpreet was hypotensive in her last trimester. This is also supported by the pointed observations of the first two Medical Boards/Committees. The deleterious consequences of atonic uterine bleeding for a woman suffering from anaemia have been emphasised by both these Medical Boards (as well as in the relevant medical literature that we have quoted above in extenso). Thus, while no case of tortious medical negligence has been made out against Appellant 2 in handling Charanpreet labour - including delivery, management of the baby problems and post-delivery management at the Nursing Home, there is enough evidence as well as expert opinion in the enquiry reports to hold that the antenatal management of Charanpreet by Appellant 2, particularly in respect of necessary hematological and cardiological investigations, was not at all in accordance with the standard protocol that an Obstetrician of average skill would have adopted. (iii) Further, we see no case of medical negligence/deficiency in service against the Nursing Home, as there is nothing in the enquiry reports on this aspect nor have the complainants led any reliable evidence in support of their allegations in this regard. Hence, while a question may arise about the professional conduct of Dr. G.S. Kochhar, as a qualified Anaesthetist in not accompanying the critically ill Charanpreet in the ambulance and preferring to leave her to the care of two Nurses/Paramedics during the journey to the PGI SLR, no liability can attach to Appellant 1, i.e., the Nursing Home. 18. As a result, we agree with the conclusion of the State Commission regarding Appellant 2 being guilty of medical negligence / deficiency in service, albeit for substantially different reasons, as discussed above. The relief granted by the State Commission is, however, based on the principles governing compensation in such cases and cannot be faulted. We also notice that as a sequel to this Commission direction dated 12.04.2007, complainant 1 had withdrawn Rs.6 lakh deposited by Deep Nursing Home and New India Assurance Co. Ltd. respectively in equal share of Rs. 3 lakh each. 19 (i) Consequently, we dismiss both the Appeals (no. 158 of 2007 and no. 193 of 2007) and direct Appellant 2 (Dr. Kanwarjit Kochhar) to pay Rs.20.26 lakh to complainant 1, as awarded by the State Commission. However, since complainant 1 has already withdrawn the sum of Rs. 6 lakh, the net payment due will be reduced to Rs. 14.26 lakh. In addition, Appellant 2 shall also pay Rs. 14,000/- to complainant 1 towards the costs of these proceedings. The payment (of Rs. 14.40 lakh) may be made within 6 weeks of the date of this order. (ii) On suitable application being made, the Registry of the State Commission may return the security, if any, deposited by the complainants for withdrawing the sum of Rs. 6 lakh from the State Commission. (iii) It will be open to Dr. Kanwarjit Kochhar to claim the amount from any insurance company that she may have been insured with in this context.