KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 61/2013

JUDGMENT DATED: 12.09.2023

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

COMPLAINANTS:

1. Kumari. Ivana William (Minor) D/o Mr. Harikumar, 242, 50^th Avenue, Main Street, Vancouver East, Canada-B5X1A5.

2. Sneha Rose Abraham, W/o Harikumar, 242, 50^th Avenue, Main Street, Vancouver East, Canada-B5X1A5.

3. Harikumar, 242, 50^th Avenue, Main Street, Vancouver East, Canada-B5X1A5.

(All are represented by P.K. Sumathy, Plamoottil House, Vallichira P.O., Palai, Kottayam-686 574.)

                    (By Adv. R. Santhosh)

                                                Vs.

OPPOSITE PARTIES:

1. M/s Velankanni Matha Hospitals Pvt. Ltd., Thellakom, Kottayam-686 016.

2. Dr. M. Jaipal Johnson, MD DGO, Chief and Head of the Gynecology Department, Matha Hospital, A unit of M/s Velankanni Matha Hospitals Pvt. Ltd., Thellakom, Kottayam-686 016.

   (By Adv. M.C. Suresh for OPs 1 & 2)

3. Dr. Sabila A., Matha Hospital, A unit of M/s Velankanni Matha Hospitals Pvt. Ltd., Thellakom, Kottayam-686 016.

                       (By Adv. T.O. Xavier)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 claiming compensation for medical negligence.

2.  The case of the complainant in brief is summarized below:-

The first complainant is the daughter of the second and third complainants. The second complainant during pregnancy had undergone antenatal checkups from Lok Naik Jayaprakash Narayan Hospital, Delhi in which hospital she was working as a staff nurse.  She was diagnosed with gestational diabetes.  In such situations the babies might be abnormal in size (Macrosomic) which creates complication as the baby will face difficulty in passing through the mother’s vaginal canal. So the delivery of the second complainant was risky. The second opposite party is a famous gynaecologist and the Chairman of M/s Velankanni Matha Hospitals Private Limited. In view of the goodwill and professional experience the complainant had decided to consult with the second opposite party for delivery on 25.07.2011.  During the first check up, the second opposite party advised the complainant that though the expected date of delivery was on 25.08.2011, for safe confinement caesarean section must be conducted on 18.08.2011.

3.  When a pregnant lady has gestational diabetes her pancreas works for production of more insulin but it does not lower her blood glucose level.  So the extra blood glucose goes through placenta and reaches the foetus and causes high blood glucose and the extra glucose will make the baby macrosomic and disproportionate with the pelvis of the mother. Until 36 to 38 weeks the foetal head remains larger than the trunk and between 36 and 40 weeks the relative growth of abdomen, chest and shoulders begin to exceed that of the foetal glucose level in both mother and the fetus.  So in such situations the size of baby’s trunk is likely to increase and there is a chance of shoulder dystocia.  So the second opposite party had advised the second complainant for cesarean section on 18.08.2011 as vaginal delivery was risky.

4.  On 17.08.2011 the 2^nd complainant experienced pain and she got admitted in the hospital at 4:30 p.m. The second opposite party was not available in the hospital at that time. She was informed by the third opposite party that the second opposite party would reach the hospital at the time of the caesarean of the second complainant.  The third opposite party was in charge of the Labour room at that time and she assumed the responsibility of the delivery, but never consulted with the complainant before delivery. The third opposite party had inducted the second complainant into the Labour room disregarding the risk factors such as primi gravida, maternal diabetes, suspected large size of the baby, maternal weight gain more than 20 Kg and the protracted first stage of labour even after induction.

5.  The third opposite party, at about 10:30 p.m. examined the second complainant who manually caused rupture of the amniotic sac which is  against the medical protocol such as the mother should be in the active stage of labour, the head of the foetus should be engaged and there should be indication for the procedure.  Subsequently the second complainant experienced labour pain and she requested for the presence of Dr. Jaipal Johnson during Cesarean. But nobody paid any attention to her request, instead directed the complainant to push the baby.  At about 2:30 a.m. she experienced severe pain.  Herself being a staff nurse, complication in her delivery was anticipated and the second complainant requested for Cesarean so that complication and risk to the baby could be avoided.  But the third opposite party had decided to take the baby out of uterus by vacuum assisted delivery. She gave anesthesia to the perineum area and fluxed the legs and fixed the Vacuum extractor on the head of the baby and conducted an episiotomy without the permission of the complainant. Episiotomy is a surgically planned incision on the perineum and the posterior vaginal wall during the process of the second stage of labour. The incision shall be midline or at angles from the posterior end of Vulva and is to be sutured after delivery.

6.  Subsequently the shoulder of the baby impacted about the Symphysis pubis and the doctor directed her assistant to give fundal pressure.  The nurse gave fundal pressure on the abdomen of the complainant and the doctor pulled the head of the baby out of the vaginal canal at about 3:53 a.m. by excess traction without assessing the impact of traction.

7. Once shoulder dystocia has been diagnosed there cannot be further traction on the head.  The third opposite party had deviated from the accepted medical theory by pulling out the head of the baby even after encountering shoulder dystocia to the baby.

8.  Due to this improper usage of vacuum assisted delivery and excess traction of the head of the baby “Brachial Plexus of the child was injured and now the child is not in the position to move her left hand or to open her left eye. The medical examination at Nimhans Neuro Diagnostic Centre reveals “severe left brachial plexus with C8 / T1 Roots> C5- 6-7 Root lesion”.  The third opposite party had declined to consider the request of the second complainant to have C-section for delivery. The third opposite party was not experienced for conducting surgery and hence she took a decision to apply vacuum assisted delivery with traction on the head of the baby which could be performed only by an experienced medical practitioner.  No maneuvers or supra pubic pressure were performed.  The Episiotomy Surgery could be done only by a surgeon which fact was suppressed in the medical record.  The surgery was done without the consent of the complainant.  The third opposite party did not inform the complainant about the "Erbs Palsi" and "Horner’s Syndrome".  Zavanelli maneuver (cephalic replacement maneuver) or Symphysiotomy were the correct procedures in case shoulder dystocia encounters.  In such situations after having attempted all other maneuvers the foetal head has to be pushed back into the vagina and thereafter immediate C-section has to be done.

9.  The second opposite party accepted the responsibility and undertook the treatment of the second complainant but he delegated his duty to an inexperienced medical Practitioner.  The third opposite party had deviated from the accepted standard of medical care and treatment of the second complainant. On account of the negligence of the opposite parties the first complainant had to undergo another surgery on 12.09.2012.  The complainants suffered pain and hardships.  So each complainant is entitled to get Rs. 1 Crore as damages.  The Complainants had also suffered mental and physical agony as a result of the negligence on the part of the opposite parties and in that count also the complainants would claim Rs. 1 Crore each as compensation.  Due to the negligence of the opposite parties the lucrative career of the first complainant ahead is spoiled and in this regard a claim for Rs. 9 crores 60 lakhs as compensation is put forth. Towards the loss of earnings a claim of Rs.  1,40,000/- is raised as the complainant was not able to perform any work during the period from 18.08.2011 to 10.03.2012.  Further claim of Rs. 1,00,000/- is raised towards the loss of salary of the second complainant. Rs. 15 lakhs is claimed towards the medical expenses.  However the complainants would limit their claim as Rs. 99,87,000/- being damages, compensation and future treatment expenses with interest @12% and Rs. 12,000/- as costs from the opposite parties.

10.  On admitting the complaint notices were issued to the opposite parties who appeared and filed version with the following contentions:-

11.  The complaint is not maintainable either in law or on facts. The pleadings contained in the complaint are framed by suppressing the facts with a view to gain undue financial advantage to the complainants.  The second complainant was a Primi gravida who came to the hospital on 25.07.2011 with her expected delivery as 25.08.2011.Her antenatal checkups were carried out at Delhi.  She was diagnosed with mild gestational diabetics and started human insulin and her blood sugar level was well controlled.  On 17.08.2011 at 5:30 p.m. she came to the hospital with complaints of leaking per vagina with intermittent abdominal pain and was admitted on the same day.  There were no contra indications for normal vaginal delivery and she was managed by the third opposite party and the staff nurses on duty. The labour progressed steadily well as evident from the PV examination at 12:00 a.m. on 18.08.2013 which reveals "cervix fully effaced 3 cm dilated and artificial rupture of membrane was done and liquor was clear".  At 3:40 a.m. the cervix was fully dilated Vertex at +1 station and liquor was clear and she was shifted to labour cot.  The third opposite party had closely monitored foetal heart rate through audible foetal heart monitoring Doppler device and at 3:50 a.m. the third opposite party could notice early signs of foetal heart deceleration. At that time per vaginal examination revealed fully dilated cervix and vertex at +2 -+ 3 station and per abdomen no pole was palpable.  The second complainant did not strain herself to accelerate the delivery on mother’s part.  The second opposite party was informed about the need for vacuum application and with her spot assent vacuum was used with care and caution.  Baby’s head delivered normally with single pull and there was difficulty in delivering the shoulder and it was managed as per MacRobert’s maneuver with adequate supra pubic pressure as per the accepted medical protocol.  Moderate traction was given and the baby was delivered by delivery of posterior shoulder first.  The baby cried immediately on delivery and had APGAR score ‘9’.  In view of shoulder dystocia the baby was immediately attended by Paediatrician and Orthopedician attached to the hospital.  The baby was noted to have paucity of movements of left upper limb and was attended by the Paediatrician and Plastic Surgeon.  On 20.08.2011 the baby was discharged with an advice for review, but they didn't report for review.   Shoulder dystocia is diagnosed after delivery of the foetal head and further expulsion of the baby is prevented by impaction of foetal shoulder within maternal pelvis which is an unpredictable event and not caused due to any act or omission on the part of the doctor who attended the delivery.  In such cases the first step is MacRobert’s maneuver and the second complainant delivered with Mac Robert’s maneuver with adequate supra pubic pressure.  This is the standard and medically accepted procedure in strict regard to the accepted medical protocol.

12.  The second complainant’s pregnancy, though falls under the category of having mild risk due to her mild gestational diabetes, was not an indication for Caesarean Section as her diabetes was well under control.  At the time of birth the weight of the first complainant was 3.725 kg which cannot be branded as a macrosomic baby. So the version of the complainant that the pregnancy was at high risk owing to diabetes and abnormal size of the baby is unsustainable and there was no indication for Caesarean Section at that time.  The second complainant was not induced to labour as she was found in active labour when examined at 11:15 p.m. Primi gravida is also not a risk condition.  Maternal weight gain of more than 20 kg is also not a risk factor for vaginal delivery.  The second complainant was never in a stage of prolonged labour. The ARM was done at 12:00 a.m. in strict regard to the indications after fully observing the criteria as per accepted medical practice.  It is an accepted fact that vacuum cannot be applied without the cooperation of the patient. Episiotomy is the standard procedure to effect delivery which was done after informing the second complainant.

13.  There is no fundamental rule either in the standard text books or in clinical practice that once shoulder Dystocia has been diagnosed there should not be further traction of head.  Brachial Plexus is a known complication of shoulder Dystocia which has no connection with vacuum application or moderate downward traction of the foetal head required to effect delivery.  The opposite parties are not aware about the present condition of the first complainant.  Normal vaginal delivery is the rule and no doctor is expected to do Caesarean section without any specific indication.  The third opposite party is well qualified and experienced in Vacuum assisted delivery and in the management of obstetric emergencies and caesarean section as well.

14. The gynaecology department of the first opposite party is well renowned for service of efficient and experienced obstetricians and gynecologists and the second opposite party is the Head of the Department.  The second opposite party being the head of the department would be called to attend the patient only in case of emergency.  There was no negligence, carelessness, or deficiency of service on the side of the opposite parties and hence they are not liable to pay any amount as compensation.  The first opposite party is duly insured with the United India Insurance Company Ltd. and the professional indemnity policy was valid and if any liability is likely to be ensued the Insurance Company is bound to indemnify the hospital in all respects.  The opposite parties would seek for dismissal of the complaint.

15.  The evidence consists of the testimony of PWs 1 to 4, Exhibits A1 to A7 and X1 series on the side of the complainants.  On the side of the opposite parties DWs 1 to 3 were examined and Exts. B1 to B3 were marked.  The counsel for the complainant and the opposite parties filed written notes of arguments.  

16.  Heard both sides.  Perused the case records.

          17.  Now the points that arise for determination are:

1. Whether the opposite parties were careless or negligent in providing Medical treatment to the second complainant at the time of her delivery?
2. Whether there was any deficiency of service or unfair trade practice on the side of the opposite parties?
3. Whether the complainants are entitled to get any amount as compensation and if so what is the quantum?
4. Reliefs and costs?

18.  Point (i):- The 2^nd complainant has given evidence before the court as PW1 in support of the averments contained in the complaint.  Ext. A1 is the discharge summary dated 20.08.2011 issued by the hospital in respect of the treatment given to the 2^nd complainant.  Ext. A2 is the treatment records with regard to the entire treatment given to the 2^nd complainant.  The complainant had caused issuance of a lawyer notice prior to the institution of the complaint the copy of which and the reply received are exhibited as A4 & A5.  Ext. A3 is the expert opinion given by Prof. R.K. Sharma who was examined before the Court as PW2. 

19.  The second complainant had also tendered evidence regarding the disability of the baby (1^st complainant).  Ext. A6 is the copy of the certificate issued by the Disability Assessment Board attached to the Govt. General Hospital, Kottayam in respect of the 1^st complainant.  In Ext. A6 it is recorded that the 1^st complainant is suffering with 80% of permanent disability with regard to her left upper limb which is caused on account of the brachial plexus injury on left hand.  For proving Ext. A6 the complainant had examined PWs 3 & 4.  PW3 is a doctor who was working in the General Hospital at the time of issuance of Ext. A6.  Ext. X1 series are the documents maintained at the hospital which contains the extract of the disability certificate issued.  The relevant entries are marked as Exts. X1 (a) & X1(b).  The original document was marked as Ext. X1 which was returned since required in the hospital.  PW3 identified the signature of the Chairman Dr. George Palamattom who was the Superintendent and Chairman of the Disability Board at the relevant time. 

20.  PW4 is a Consultant Orthopaedic Surgeon attached to the District Hospital, Kottayam.  He gave evidence that he was a member of the Medical Disability Board which issued Ext. A6.  According to him, the disability was assessed as 80%.

21.  Placing the testimonies of PWs 1 to 4, Exts. A1 to A7 and X1 series the complainants would contend that there was gross medical negligence on the part of the opposite parties in conducting the ordinary vaginal delivery without resorting to an early caesarian operation.  The counsel for the complainant would submit that the 2^nd complainant was highly diabetic and her delivery was a primi gravida and also the size of the baby was big.  So according to the complainant the opposite parties ought not to have conducted a normal delivery in this case.  It is also submitted that there was negligence on the part of the 2^nd opposite party while attending the second complainant.  She was admitted in the hospital for delivery.  She had preferred the above hospital since she had confidence in the professional experience of the 2^nd opposite party.  But unfortunately the 2^nd opposite party had never reached the hospital for attending the patient. 

22.  The case of the complainant is that the 3^rd opposite party, the doctor who had attended the 2^nd complainant was inexperienced and that is why the entire complications arose.  According to the complainant shoulder dystocia had encountered which fact was not noticed by the 3^rd opposite party and that is why the entire complications had occurred. It is also submitted by the counsel for the complainant that there is fabrication of medical records.  The 3^rd opposite party had noted in the medical record that there was deceleration which means the faetal heart rate was lesser than 100.But according to the counsel for the complainant this aspect does not find place in the nurses’ record.  If the faetal heart rate was below 100 it must find a place in the nurses’ record.  According to the complainant when shoulder dystocia is noticed it is not desirable to apply traction so as to facilitate vaginal delivery.  So according to the complainant the 3^rd opposite party was negligent in conducting the delivery.  It is also argued that shoulder dystocia can be anticipated in five circumstances.  (1) Primi gravida (2) gestational diabetes (3) suspected large size of the baby (4) maternal weight gain more than 20 kg and (5) Protracted first stage of labour even after induction of labour.  According to the complainant all these adverse factors were applicable in the case of the second complainant which were ignored by the 3^rd opposite party who subjected the 2^nd complainant to undergo a normal vaginal delivery resulting in the complication.

23.  As against the evidence let in by the complainant the opposite parties 2 & 3 testified before the court as DWs 1 & 2.  They had also examined an expert as DW3.  Ext. B1 is the insurance policy availed by the hospital to cover the injury or complications that arise during the treatment of patients.  Exts. B2 and B3 are the original medical records pertaining to the 1^st and 2^nd complainants.  According to DW1 he is the Head of the Gynecology Department of the hospital.  The case of the opposite party is that their Gynecology Department is run by a team of expert doctors and nurses. DW1 had given evidence that it is not possible for him to attend each and every patient as they will be taken care of by the experts in the Department.  He also added that he had verified the treatment records and convinced himself that proper treatment was given by the 3^rd opposite party.  He also added that on the date of delivery he had seen the patient in the evening.  The 3^rd opposite party has testified before this Commission as DW2.  She spoke about the details of the treatment given to the 2^nd complainant and according to her the treatment records bear the exact narration of the various treatments given by the experts.  The original treatment records are marked as Exts. B2 and B3. 

24.  DW3 is the expert examined by the opposite party.  According to this witness the APGAR score will be recorded within a minute of the delivery and under some situations the incapacity of the child to move the hand might not be noticed by the doctor.  She agreed with the finding recorded by PW3 regarding the APGAR score of the 1^st complainant as ‘9’.  According to this witness the average weight of a baby is 3 kg.  Here the weight of the baby was recorded as 3 kg +/-448 gms.  From this finding it cannot be concluded that the baby was of a big size.  DW3 endorsed the view that the attended gynecologists have adopted the proper procedure in conducting the delivery of the 2^nd complainant. 

25. For proving medical negligence the primary burden is upon the complainant.  The complainant had examined a Forensic Surgeon as PW2. The evidence let in by PW2 regarding the Gynecology Department is based upon the knowledge he earned during his undergraduation for MBBS.  An expert must be a competent person who must be capable to give authoritative and authentic evidence regarding the particular field. In this connection the ruling of the Apex Court reported in IV (2009) CPJ 27 (SC) in Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. & ors. is beneficial.  Sec. 45 of the Evidence Act deals with the expert evidence.  The evidence of an expert is advisory in nature. It is the duty of the expert to furnish necessary scientific criteria for testing accuracy of conclusions so as to enable the Judge to form an independent judgment.  Importance of the opinion is to be decided on the basis of the credibility of the expert. His opinion must be cross checked.  Mere assertion without any data or basis is not evidence even if it comes from an expert.  In the light of the legal position as declared by the Hon’ble Supreme Court, evidence of PW2 has to be scrutinized.  PW2 had crossed to the extent of opining that his evidence is on the basis of common sense and he relied upon his knowledge gained during his training at the MBBS level.  Tendering evidence on the basis of common sense is not enough for the court to accept his evidence as let in by an expert.  On a careful consideration of the deposition of PW2 it can be seen that PW2 cannot be accepted as an expert for proving medical negligence as the above witness is admittedly having only basic education in gynecology earned during his undergraduate level and his specialization is in forensic science.  So this Commission is not inclined to accept the evidence of PW2 or Ext. A3 issued by him to reach a conclusion that there was medical negligence on the part of the opposite parties.

26. Now the risk factors projected by the complainant in electing caesarean operation have to be taken into account.  According to the complainants, the 2^nd complainant was a chronic diabetic patient which fact was not taken into account while choosing vaginal delivery.  In paragraph 2 of the complaint it is averred that the 2^nd complainant was diagnosed as pregnant during her anti-natal checkups done in Lok Nayak Jaiprakash Narain Hospital, Delhi.  But it is curious to note that the complainant did not cause production of the medical records with regard to the anti-natal checkups done while she was in Delhi.  Admittedly the 2^nd complainant had consulted with the 2^nd opposite party only one month prior to the delivery.  Ante-natal diabetes was not detected when she had availed treatment at Delhi.  She also added that the doctors at Delhi never advised her to undergo elective caesarean.  During the cross examination in page No. 3, PW1 had given categorical evidence that she had no gestational diabetes and gestational diabetes was detected only by the 2^nd opposite party.  This evidence would run contrary to the pleadings contained in the complaint to the effect that she was advised by the doctors at Delhi to have elective caesarean as she was detected as a person suffering with gestational diabetes.  The medical records would also indicate that the sugar level of the 2^nd complainant was well under control as human insulin was administered.  Therefore, the case of the complainant that shoulder dystocia occurred as the 3^rd opposite party had opted for vaginal delivery is not found as true.

27.  The evidence let in by PW1 in cross examination would show that shoulder dystocia is an unpredictable event in normal delivery.  She also added that one cannot predict the occurrence of shoulder dystocia till the head comes out.  The medical records produced by the opposite parties would show that MacRobert’s maneuver and supra pubic pressure was applied during the process of delivery. The learned counsel for the opposite party had placed reliance upon the Sixth Edition of Obstetrics Normal and Problem Pregnancies and canvassed the decision that shoulder dystocia is diagnosed when, after delivery of the fetal head, further expulsion of the infant is prevented by impaction of the fetal shoulders within the maternal pelvis.  It has been reported that in 0.15% to 1.7% of all vaginal deliveries shoulder dystocia is seen. 

28.  The complainant would allege another circumstance that the size of the baby was big ie macrosomic.  It is also an adverse circumstance for avoiding vaginal delivery.  When the weight of the baby was checked it was recorded as 3kg +/- 448gms.The weight of the baby after delivery was assessed as 3.725kg.  Macrosomia has been defined as a condition of birth weight greater than 4000 gms or 4500 gms.  So the baby here cannot be construed as a macrosomic one so as to avoid normal delivery.

29.  The learned counsel for the opposite party would place reliance upon the Compendium for the Antenatal care of High-risk Pregnancies wherein it is observed that 48% of incidences of shoulder dystocia occur in infants with a birth weight of less than 4 kg.  The compendium also advised that elective caesarean section is not recommended for suspected fetal macrosomia, if the estimated fetal weight is more than 4.5 kg.  So the elective caesarean section cannot be justified when suspected macrosomia is the only indication.  He had also placed reliance upon the International Edition of Williams Obstetrics 26^th Edition.  An exact prediction for the cause of shoulder dystocia cannot be predicted.  Various techniques are narrated in the journal to free the anterior shoulder from its impacted position behind the symphysis pubis.  The McRoberts maneuver is the first stage with downward supra pubic pressure.

30.  The medical records would prove that all precautionary measures were taken by the 3^rd opposite party in the process of delivery.  The evidence let in by the complainants would show that the 2^nd complainant had reached the hospital with a case of leaking per vagina and she got admitted.  The evidence tendered by the 3^rd opposite party would show that the delivery was in progress.  The complication arose only after the delivery of the head of the featus.  The 3^rd opposite party had applied vacuum which is also an admitted procedure in the process of delivery.  She had also applied traction after exhausting the process of MacRobert’s Maneuver and supra pubic pressure.  There are no circumstances brought out in evidence to reach a conclusion that there was any negligence or omission on the part of the opposite parties with respect to the delivery of the 2^nd complainant.

31.  The complainants had also set up a case that episiotomy was done on the vaginal wall of the 2^nd complainant without her consent.  Episiotomy is a natural consequence in vaginal delivery if there is any obstruction for the baby to pass through vaginal canal.  The evidence on record would indicate that the opposite parties had resorted to an admitted process of accepted procedure in conducting the delivery.  No element of negligence could be attributed on the opposite parties.  The learned counsel for the opposite party would place reliance upon the Guidelines No. 42 of 2^nd edition of Royal College of Obstetricians and Gynaecologists to canvass the position that Brachial plexus injury is one of the most important fetal complications of shoulder dystocia.  Though there is relationship between fetal size and shoulder dystocia it is not a good predictor.  The size of the baby exceeding 4.5 kg may not encounter shoulder dystocia.  So the actual prediction of shoulder dystocia is absolutely not possible.  If an unpredictable eventuality occurs in the process of treatment one cannot jump into a conclusion that there was negligence or carelessness on the part of the doctors.  If the procedure adopted by the doctor is supported by expert opinion they cannot be unnecessarily proceeded against or humiliated since such a course would adversely affect their morale.  The Apex Court in the rulings reported in AIR 2010 Supreme Court 1050 in Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre & ors.  and AIR 2005 SC 3180 in Jacob Mathew Vs. State of Punjab and another took a view that even if there is simple lack of care, an error of judgment or an accident is not proof of negligence on the part of the medical practitioner even if there is deviation from a normal professional practice is not necessarily evidence of negligence. One of the rulings deals with criminal negligence.  On evaluating the entire evidence on record it is crystal clear that the 3^rd opposite party had resorted to a procedure usually adopted in identical situations.  Shoulder dystocia being an unpredictable eventuality no one can blame the doctor as negligent.  Since there is no acceptable evidence on record to reach a conclusion that the opposite parties were careless or negligent in conducting the delivery of the 2^nd complainant, the point is found against the complainants.  In view of the finding in point No. (i), it is found that there was no unfair trade practice or deficiency in service on the side of the opposite parties. 

In the result, the complaint is dismissed.  On a consideration of the peculiar facts and circumstances of the case it is found that parties shall bear their respective costs.      

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                AJITH KUMAR  D. : JUDICIAL MEMBER

jb                                                                                                BEENA KUMARY. A         : MEMBER

APPENDIX

I         COMPLAINANT’S WITNESS :

II       COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :

V       COURT EXHIBIT :

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                      AJITH KUMAR  D. : JUDICIAL MEMBER

jb                                                                                            BEENA KUMARY. A         : MEMBER