DR. S. M. KANTIKAR, MEMBER

1.       This order shall decide both the appeals. The facts are drawn from FA No.220 of 2008.   Both the appeals are filed against the impugned order dated 09.04.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (for short “the State Commission”) whereby Consumer Complaint No.C-36/98 has been allowed, by holding the Appellant/ Indraprastha Medical Corporation (OP-1) liable for medical negligence as well as administrative deficiency and ₹5,00,000/- has been awarded to the Complainant/Respondent No. 1  as lump sum compensation including the cost of litigation, that is to be paid by the United India Insurance Co. Ltd. (OP-2).  The State Commission also imposed punitive damages to the tune of ₹ 10,00,000/- for the deficiencies, inadequacies and negligence on the appellant herein/OP-1.

2.       Brief facts are that on 14-07-1997 at 02:30 A.M. the complainant, Rajiv Gandotra’s wife, Vandana (for short ‘the patient’) was admitted in OP-1-Apollo Hospital at Sarita Vihar, New Delhi and she delivered a female baby at 09:15 A.M.. The baby being underweight, was taken to Neonatal Intensive Care Unit (NICU) but, the baby expired on 17-07-1997 at 06:15 A.M. It was stated that, during Ante Natal Care (ANC) period from 12-03-1997 to 14-07-1997; as a precautionary measure, the patient remained admitted in the Apollo Hospital, Faridabad. The complainant alleged that after delivery, for 1 ½ hours, Dr. S.B. Khanna did not disclose the sex of baby and the health condition of mother and baby.  It was alleged that the OP hospital claimed to be having facilities like five-star or seven-star hotel and charging exorbitantly, but in reality, the facilities were poor. The Nurse-Patient and Doctor-Patient ratio in the NICU was very less. The facilities were inadequate for segregating healthy babies from the ill. The medical records with respect to intrauterine sepsis, initial resuscitation and initial investigations were not maintained properly.  Because of numerous hospital deficiencies, her premature baby could not survive for more than three days. In nutshell, complainant had made the following allegations (i) incomplete communication and improper attitude of the Obstetrician, Dr. Khanna; the Neonatologist, Dr. Sushma Kaul and Paediatric resident doctor, Dr. Ratnakar Ahuja, (ii) inadequate NICU care provided to the new born baby because of difference of opinion regarding case management between two treating neonatologists, (iii) professional incompetence, (iv) under staffing at NICU and (v) unsympathetic behavior of the hospital administration. It was alleged that for the all reasons, due to deficiency and negligence of the doctors at OP-1, the baby expired. Thereafter, complainant had made repeated endeavors to obtain the medical record, but OP-1 neglected it.  Therefore, being aggrieved, the complainant filed the complaint before the State Consumer Disputes Redressal Commission, New Delhi (for short, “the State Commission”) and prayed for compensation of ₹5,80,000/- with 18% interest per annum.

3.       The complaint was resisted by the OP by filing the written version. OP submitted that the hospital is multi-specialty hospital with 50 disciplines. The preliminary objection raised was that, the case could not be decided without assistance of expert witness and needs elaborate evidence; therefore, it cannot be adjudicated before the fora in summary manner. The mother and baby were treated with due care and caution. The baby was extremely premature i.e. delivered at 26 weeks and weighed only 680 gms. After delivery, baby had no spontaneous respiration and had very occasional heartbeat. In the labour room, a tube was inserted in the windpipe of the baby to assist breathing and Endotracheal suction was done under direct vision. Intermittent Positive Pressure Respiration (IPPR) was started and when the heart rate of baby picked up, baby was shifted to NICU and connected to the ventilator. The other supportive measures were also given by the NICU doctors and nurses. Thus, OP took every possible step to save the life of the baby, though the survival of extremely premature baby was poor.  The treating doctors had explained about condition and prognosis of the baby to the relatives of the mother. The Thyroid tests (T4 & TSH) are routine tests carried out on all babies born in the hospital to diagnose sub clinical hypothyroidism. One unit of blood transfusion was given to the baby.  At frequent interval, blood gas level of baby was monitored and treated accordingly. In order to prevent infection, disposable syringes and other materials were used. The staff was adequate in the NICU and it was not below four nurses per shift throughout. The instant baby in NICU was monitored by Dr. Anil Gupta, the full time senior consultant.   The OP also stated that complainant was informed about initial expenses of about ₹15,000/- per day for NICU treatment.

4.       On the basis of the pleadings and evidence, the State Commission has allowed the complaint and held the OP1-hospital liable for medical negligence and deficiency in service during the treatment of new born. The State Commission directed the OP2-insurance company, the insurer of OP-1 to pay ₹5,00,000/- to the complainant and also imposed punitive damages of ₹10,00,000/- upon OP-1 for the inadequacies and negligence in NICU. It was also ordered to the OP-1 to remove all the deficiencies, which were observed by the Expert Committee of the Delhi Govt.

5.       Being aggrieved, OPs 1 & 2 filed separate  two appeals before this commission.

6.       We have heard the arguments from learned counsel for both the parties. The learned counsel for appellants reiterated the statements made in their respective written versions and denied any negligence on their part. The doctors in the OP1-hospital acted as per normal standard medical practice. The counsel for appellant/OP-1 brought our attention to the  affidavits filed by the senior Consultant Pediatricians, namely, Dr. Vidya Gupta and Dr. Sushma Kaul, who treated the baby in NICU. The Counsel submitted that the mother was tested positive for Cardiolipin antibodies and she was on steroids for the past few months; she was also suffering from Diabetes and taking Insulin injection. At 14 weeks of pregnancy Cervical circlage was performed for cervical incompetence, therefore, it was a complicated delivery. 

7.       On 14.07.1997 at 02:30 am, patient was admitted in OP/hospital., and delivered a premature baby girl at 09:15 a.m. It was a pre-term delivery and the baby was extremely premature i.e. of 26 weeks and weighed only 680 grams. It was a vaginal delivery with foul smelling liquor/meconium. After delivery, baby did not have any spontaneous respiration, very occasional heartbeat present and baby was limp at birth.  The doctors took all possible care of the baby with due diligence and as per the standards. The chances of survival of the baby were very poor i.e. about 10%, same was explained to the relatives.  Immediate resuscitative steps were taken, the tube was inserted in the wind pipe of the baby for proper breathing and simultaneously, Endotracheal suction was done and IPPR was started. The heart of baby picked up and she was transferred to NICU and connected to the ventilator.  The baby was kept in warm temperature and provided fluids and oxygen.  The OP doctors took care to control the infection, maintain biochemical and hematological parameters to the normal.  Every possible effort were made to save the baby, but due to intraventricular Haemorrhage along with all other causes like extreme prematurity, sepsis, Respiratory Distress Syndrome (RDS), persistent Pulmonary Hypertension of the Newborn (PPHN), the baby died.  The counsel further submitted that, the Expert Medical Committee appointed by Government had thoroughly investigated the matter and concluded that there was no negligence or deficiency in service on the part of the hospital and the treating doctors.

8.       The learned counsel for the complainant submitted that, the OP-hospital is falsely claiming as one of the best hospitals, the facilities are not up to the expectations; having numerous lacunae in their act. The staff in NICU was inadequate who did not take proper care of neonate. The counsel submitted that at the request of the complainant, the Medical Committee was constituted by the Government of Delhi, who found several deficiencies in OP Hospital. The Committee opined that, the record keeping should have been better. Particularly, details of initial resuscitation and investigation should have been recorded in a more thorough manner. The neonatal unit of the hospital possesses proper resuscitation and therapeutic equipments, but the method of segregating infected from healthy babies should have been better. The ratio between Nurses:patient and Resident doctor :Patient  in the NICU was inadequate, particularly when the unit was functioning at its full occupancy.  Committee reserved its comments on the financial policies of the hospital and on the allegation of rude behavior of doctors for lack of witnesses.  The Committee further observed that the baby was put on ventilator with high oxygen, IV fluids, adequate antibiotics, but stated that,  non-availability of AB-Negative blood was indeed unfortunate. The report also says that number of resident doctors were barely adequate. In fact, on the fateful day  , there were eight babies in the NICU and only one resident doctor was on duty to manage critical sickness. 

9.       We have  perused the medical records and the expert committee’s report. It is to note that, under the direction of the Health Minister, Government of Delhi, expert committee was formed to investigate the complaint’s allegations. The committee comprised of Professor A. Bhattacharya, Chairman, Prof. N. Aggarwal, (Obstetrics &  Gynecology) and Prof. M.M.A. Faridi, Pediatrics /Neonatology. The Committee held discussion with the complainant, conducted  several meetings; scanned the new born infant and mother’s record, visited NICU to ascertain the facilities and  set up, bed arrangement, staffing pattern, the bio-clinical monitoring facilities and life support system.  The Committee   concluded that the medical care given at OP hospital was adequate.  The cause of death could be a combination of extreme prematurity, intrauterine infection, PPHN, IVH, Sepsis and birth asphyxia.  These causes independently could be fatal for the baby.  On the point of ‘Under staffing of the NICU’ committee opined that, though the labour room and NICU are well equipped with neonatal resuscitation facilities and life support measures but, Patient to Nurse ratio was not satisfactory.  The numbers of resident doctors are barely adequate.  On the fateful day of the death of this baby, there were eight babies in the NICU and only one resident doctor was on duty, which was trained to manage critically sick neonates.  The committee finally concluded as follows:

“The Committee is of the opinion that both the mother and the baby belongs to a very high risk category.  The mother was treated elsewhere during antenatal period and was transferred to Apollo Hospital Shortly before delivery.

The baby at birth was very low birth weight (600 gm), severely asphyxiated with un-recordable blood pressure, had intrauterine sepsis and needed immediate resuscitation in the form of endotracheal intubation, ventilator support and intravenous fluids.  Though specific tests for determining intrauterine sepsis were not recorded, the baby was covered with adequate antibiotic therapy.  The committee also agrees with the cause of death mentioned in the record and holds the view that anyone of the causes mentioned could have been fatal.

“The Committee feels that medical care given to the patient was adequate.  However, the Committee also feels that the record keeping should have been better.  Particularly details of initial resuscitation and investigation should have been recorded in a more thorough manner.  The Neonatal Unit of the hospital possess proper resuscitation and therapeutic equipments.  But the method of segregating infected from healthy babies should have been better.  The nurses/patient and resident doctor/patient ratio in the NICU is inadequate, particularly when the unit is functioning at its full occupancy.  The charges of rude behavior by the doctors could not be ascertained in the absence of any witness.  Committee reserves its comments on the financial policies of the hospital.”

            The Committee further observed that non-availability of AB negative blood and there was no step down nursery or level 1 nursery available in the hospital.  Also, it was stated that though specific test for determining of intrauterine sepsis were not recorded.  The baby was covered with adequate antibiotic therapy.

10.     After our thoughtful consideration and on the basis of observations of expert committee, we are of the considered view that, mother and baby belong to very high risk category. The baby at birth was very low birth weight i.e. 680 gms, severely asphyxiated with unrecordable BP and suffered  intrauterine sepsis.  Baby was given immediate resuscitation in the form of endotracheal intubation, ventilator support and intravenous fluids. Thus, Expert Committee expressed that the treatment given at OP/hospital was adequate and there was no deficiency in service. We also agree with the opinion of expert committee, that the doctors at OP/hospital have made their all efforts to save the baby. The doctors were experienced and qualified as a Pediatrician and Neonatologist;  we do not find any shortcoming or deficiency in NICU treatment of new born baby since delivery.  The doctors have treated the neonate as per  standard of care and skill; there was no breach of their duty.

11.  In this regard, we would like to rely upon the discussion of Hon’ble Supreme Court and this commission’s   on   medical negligence.   In Jacob Mathew’s Case, (2005) SCC (Crl.) 1369, Hon’ble Supreme Court has observed that the higher the acuteness in emergency and the higher the complication, the more are the chances of error of judgment. The court further observed as under:-

"25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice 39 prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."

Court further observed that,

“When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency  to  blame  the  doctor  for  this.   Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every  case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.”

In another case  of Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, Hon’ble Apex Court has observed as follows:

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

Therefore, in the instant case, the chance of survival of the severely premature baby was remote, even though, doctors in NICU have made every attempt to save the baby. Thus, there was neither deficiency nor negligence in the treatment of the patient. 

12.     As already mentioned, the Expert Committee concluded in their report that the nurse/patient and resident doctor/patient ratio in the NICU was inadequate, particularly, when the unit was functioning to its full capacity.  The Committee also stated that the method of segregating infected babies from the healthy ones should have been better.  Keeping in view over all facts and circumstances on record, we feel that the directions to give compensation of ₹5 lakh as well as punitive damages of ₹10 lakh for the deficiencies, inadequacies pointed out is excessive.  We feel that it shall be in the interest of justice that OP is made to pay a sum of ₹ 2 lakh to the complainant on account of such deficiency/inadequacies pointed out by the Expert Committee. 

13.     Both these appeals are, therefore, partly allowed in terms of modification in the order of the State Commission as stated above.  The OP shall pay the said sum of ₹ 2 lakh to the complainant within four weeks from today, failing which, the amount shall carry interest @ 10% per annum till it is fully realized.  There shall be no order as to cost.