Rajasthan

StateCommission

34/2003

Vikash Arya S/ Shri Stayendra Kumar Arya - Complainant(s)

Versus

Santokba Durlab Ji Memoriyal Hospital and Medical Research Institute - Opp.Party(s)

Umesh

15 Mar 2017

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

COMPLAINT CASE NO: 34 / 2003

 

Vikas Arya s/o Satyendra Kumar Arya r/o 347 Gyatri Nagar'A' Maharani Farm, Durgapura, Jaipur.

Vs.

 

1.Santokba Durlabhji Memorial Hospiral & Medical Research Institute, Bhawani Singh Marg, Jaipur.

 

2.Dr.Smt.Preeti Sharma, Gynaecologist, Santokba Durlabhji Memorial Hospiral & Medical Research Institute, Bhawani Singh Marg, Jaipur.

 

Date of presentation of complaint 29.10.2003

Date of Order 15 . 03.2017

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Hon'ble Mr. Kailash Soyal -Member

 

Mr. Umesh Nagpal counsel for the complainant

Mr. Ashutosh Bhatia counsel for the non-applicants

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BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

This complaint has been filed against the non-applicants with the contention that wife of the complainant was having pregnancy . She consulted non-applicant no.2 on 8.6.2001 and thereafter she remains in consultation with non-applicant no.2. On 23.10.2001 she complained non-applicant no.2 for movements of the fetus are less but doctor replied that it is a general practice. On 29.10.2001 she was admitted for delivery and she delivered a child with normal delivery but during the delivery as the cord of the fetus was around his neck he could not get enough oxygen. After birth convulsions were started. Child was not treated with due care and he was discharged from the hospital. Thereafter the complainant visited to physiotherapist. CT scan was also done and it was found that child is suffering from cerebral palsy as the non-applicants have not took necessary care in delivery and after the child suffered the disease and compensation has been asked.

 

The contention of the non-applicants is that the wife of the complainant first consulted Dr. Preeti Sharma on 8.6.2001.

 

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She was advised to have sonography on 23.10.2001 which was not done by her. On 29.10.2001 she was admitted for delivery. She delivered a male child on the same day at 3.34 p.m. After the admission till delivery she was given due care and in presence of Dr. Preeti Sharma she has delivered a child. Resident doctors were also there. There was no cord around the neck of the child and baby does not cry hence, he was hanged upside down. His pulse rate was also 100 hence from bag and mask oxygen was supplied. After intial care he was shifted to paediatric care unit. No medical negligence was committed by the non-applicants. After CT scan it was found that he was suffering from cerebral palsy which is a genetic birth disease. It has also been submitted that in pediatrician care he was under direction of Dr. Bothra hence, claim should have been rejected.

 

Both the parties entered into evidence. After conclusion of the evidence and arguments on 19.5.2011 the complaint was allowed by this Commission. The National Commission vide its order dated 15.11.2016 send the matter to this Commission for fresh adjudication and opportunity is also granted to the hospital and the treating doctor to file additional documents within four weeks from the date of receipt of the copy of the

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order. In pursuance of the order of National Commission additional affidavit of Dr. Preeti Sharma and affidavit of Dr. G.C.Bothra were filed alongwith the photo copy of documents.

 

Heard the counsel for the parties and perused the record of the file. The complainant has also submitted written arguments.

 

The first contention of the complainant is that the additional documents have not been filed in time. Admittedly the order of the National Commission is of 15.11.2016 whereas the documents are filed on 23.12.2016 after expiry of four weeks and could not be taken on record.

 

Per contra the contention of the non-applicants is that they received the copy of the order on 25.11.2016 which is also clear from the order of the National Commission itself as certified copy was prepared on 25.11.2016 and within time they have filed the documents. In view of the above the documents have been filed in time hence, are taken on record.

 

The contention of the complainant is that the non-applicants have not taken due care of child hence, he has

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developed cerebral palsy. Dr. Preeti Sharma in her affidavit has stated that the treatment given on 29.10.2001 from 11.15 to 3.15 p.m. and record of the same has also been submitted before this Commission after permission of the National Commission which also speaks that wife of the complainant was given due care since admission at 11.15 till 3.15 p.m., when she was prepared for delivery and heart beat of the child was also normal. Doppler test was also conducted. CTG of child was also normal. Hence, it can be concluded that from 11.15 to 3.15 p.m. there was no negligence on the part of the non-applicants. Inspite of the permission by the National Commission to file additional documents nothing has been brought on record to show that what happened after 3.15 p.m. till birth of the child and it is admitted case of the non-applicants specially Dr. Preeti Sharma that the child was suffering from cerebral palsy which is a genetic defect and this fact has been sworn by Dr. Preeti Sharma in the affidavit she has submitted before this Commission executed on 18.11.2005 but now in additional affidavit which has been submitted after the permission of the National Commission the narration has been improved and it was also stated by Dr. Preeti Sharma that in addition to genetic defect the baby was found to be suffering from optic atrophy, congential dislocation of hip, static

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encephalopathy with spastic quadriplegia which has not been disclosed in earlier affidavit. Hence, this seems to be after thought only.

 

Record of Medical Board has also been submitted which also speaks that child is suffering from birth asphyxia and related to cerebral damage.

 

The contention of the non-applicants is that cerebral palsy is caused by combination of genetic, physiological, environmental and obstetrical factors. There cannot be dispute about these studies but here in the present matter the specific contention of the non-applicant is that the child was suffering from cerebral palsy as it was genetic/ birth defect. Cerebral Palsy has been explained by the complainant by relying upon text book of Williams 24^th Edition on page no. 638 to 640 which speaks that this term refers to a group of non-progressive disorder of movement or posture caused by abnormal development or damage to brain and it has also been noted that it is common in premature or low birth weight infants which is not the case here as delivery was normal after maturity of fetus and weight of the child on birth was also 2.83 kg.. which is normal in indian conditions.

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The non-applicants have not submitted any evidence which could say that the cerebral palsy caused to the child due to genetic or birth defect. Dr. Preeti Sharma has stated that after CT scan it was found that cartex of the child is not developed. To support this contention no CT Scan report has been submitted before this Commission. Dr. Preeti Sharma has stated in her additional affidavit that documents in regard to treatment of baby has also been submitted but to utter surprise of this Commission only discharge ticket of the baby has been submitted but history and clinical findings recorded in the discharge ticket which are based on daily treatment chart or bed head ticket has not been submitted inspite of permission given by the National Commission. Admittedly all documents in relation to treatment of the child from his birth till the discharge from the hospital are with the non-applicants inspite of this no document has been submitted to support the contention of the non-applicants. Hence, it can very well be presumed that either no documents have been prepared or if prepared are against the non-applicants and counsel for the complainant has rightly relied upon the judgment passed by the National Commission in Consumer Case No. 104 of 2002 Dr. Indu Sharma Vs. Indraprastha Apollo Hospital and ors.

 

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reported in 2015 (3) RLW 2316 where the National Commission has held as under:

 

“Thus, in our view there was an obligation on the Ops to explain how the baby's cerebral palsy occurred? If the patient and the baby were accorded the requisite treatment. Thus, the absence of such exculpatory evidence to circumstances, the invocation of the maxim res ipsa loquitur, is justifiable in this case. In this context we relied upon the recent judgment of this Commission decided on 25.3.2015 by the bench of Hon'ble Mr.Justice D.K.Jain and Hon'ble Mr.Vinay Kumar, in the First Appeal 522/2008 Leela G Nair Vs. Prof.Dr.K.P.Haridas.

 

“ Medical record maintenance has evolved into a science of itself and form an important aspect of the management of a patient. It is important for the doctors and hospitals to properly maintain the records of patients. It will help the doctor to prove that the treatment was carried out properly. The proper medical record it will help them in the scientific evaluation of their patient profile, helping in analysing the treatment results, and to plan treatment protocols. It is wise to remember that “Poor records mean poor defense, no records mean no defense”.

 

 

In view of the above when no document has been submitted to prove that the treatment was carried out properly,

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negligence of the non-applicants is writ large.

 

The complainant has further relied upon 2006 (3) CPJ 89 Baby Geetha & ors. Vs. Cosmopolitan Hospitals Pvt.Ltd. where the National Commission has held after relying on the book by O.P.Ghai Essential Pediatrics (second edition) page 88 as under:

 

“....The most important form of treatment is prevention of asphyxia. Careful monitoring of the fetus during labour and considered but prompt intervention at the early signs of fetal compromise is important in preventing perinatal asphyxia.”

 

 

Here in the present case the non-applicant has not submitted any document which could support the contentions raised by the non-applicants or sworn by Dr. Preeti Sharma or Dr. G.C.Bothra.

 

Dr.Preeti Sharma has accepted the fact that child attempted to breath by gasping and heart beat was managed which was 100 minute and he did not cry and she has further stated in her first affidavit that child was hanged upside down.

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The contention of the complainant is that it was negligence per se on the part of doctor as skill development training published by the National Institute of Health and Family Welfare Ex. 2 clearly narrates that if the baby does not cry in that case do not slap the baby or hang it upside down which clearly shows the negligence on the part of the non-applicants.

 

This study further says that if the baby does not start breathing or is gasping than assistance may be given with a bag and mask and the contention of Dr.Preeti Sharma and Dr. Bothra is that they started this first aid measure but no record has been submitted to support this contention and when documentary evidence is available only affidavit could not prove the fact. Further more it may be noted that affidavit of Dr.G.C.Bothra was not submitted earlier. It has been submitted on 3.1.2017 and they have stated that pediatric resident was in the labour room but this fact was never stated by Dr.Preeti Sharma in any of her affidavits. Only presence of resident was stated and even name of the resident has not been disclosed and affidavit of resident has not been submitted.

 

A bare perusal of affidavit of Dr.Bothra clearly shows that he is not aware of the facts till the child shifted to Neonatal

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Unit and Dr.Preeti Sharma has also stated that in labour room child was taken care by resident and thereafter he was shifted to Pediatric Care Unit run in direction of Dr.Bothra. Hence, in view of the above para no. 2 to 4 stated in the affidavit of Dr. Bothra are of no value as he was not having knowledge of the same and no record has been submitted here to fortify these contentions. Further more Dr.Bothra has not disclosed that how the child was treated in Neonatal Unit. Only this much has been said that baby was appropriately managed but what was the management has not been disclosed and admittedly the baby was discharged with the diagnosis of “High risk baby”. This all consideration clearly shows that the child was not cared properly in the hands of non-applicants.

 

Discharge summary has been submitted in which it has been clearly stated that heart beat is below 100, child is gasping respiration at birth and it has also been stated that bag and mask ventilation was given but no record has been submitted. It has also been noted in the discharge ticket that child has convulsions after birth. This all goes to show the negligence on the part of the non-applicants.

 

Dr. Preeti Sharma has stated that till the delivery there

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was no complications. Heart beat of child was normal, CTG was normal hence, it does not lie in the mouth of the non-applicants to say that the child was suffering from birth asphyxia. On 10.9.2001 as per Dr.Preeti Sharma sonography for foetal well being was done and it contains that foetal spine is normal and there is no foetal abnormality which goes against the defence of the non-applicants.

 

The counsel for the complainant has rightly pointed that as per guidelines of Medical Council for preparation of medical record it was the duty of the non-applicants to maintain indoor records in a standard form from the commencement of treatment and admittedly in the present case the records have not been submitted which clearly shows the deficiency/ negligency on the part of the non-applicants.

 

The contention of the complainant is that the non-applicants has specifically accepted the facts that child was suffering from severe birth asphyxia but to ascertain this no test has been done. His first CT Scan was done at Amravati Scan Centre when he was three and half months old. It was the duty of the non-applicants to get Neuro imaging of brain within 24 to 96 hours and they have rightly referred page 640 of text

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book of Willams 24^th edition and as per the text it was necessary so that full extent of injury could be ascertained which was not done by the non-applicants.

 

The complainant has also submitted affidavit of Dr. Chetan Padiya and Dr. Shruti who are respectively Pediatrician and Gynaecologist who has also supported the contention of the complainant. Dr. Chetan Padiya has stated that in cases of severe birth asphyxia it is emergency and if oxygen supply is not proper for seconds it can damage the brain and at the time of the birth if heart beat of child is 100 and he is gasping it shows the lack of oxygen and Dr. Shruti has stated that when child has not cried it was not advisable to lay him upside down.

 

The contention of the counsel for the non-applicant is that upto 3.15 p.m. there was no fetal distress and liquor was also clear and it is also shown in the record submitted as Anx. 1 on page 20 to 21. It has already been observed that from 11.15 till 3.15 p.m. the doctors were attentive and they were treating the patient reasonably and there was no fetal distress but it goes against the non-applicants that when till 3.15 p.m. all events were normal it was not the diagnosis of Dr. Preeti Sharma that

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fetus is suffering from any abnormality. What happened thereafter which has caused the child cerebral palsy and this question has not been answered by the non-applicants rather relevant documents have been suppressed. Hence, in view of the above discussion it can be concluded that the non-applicants are negligent.

 

The contention of the complainant is that before delivery she was administered over dose of oxytoxin but nothing has been suggested that the child get abnormality due to administration of oxytoxin. It has also been objected that the normal dose of oxygen is ten drops whereas she was administered 50 drops . Be that may be the case but when this is not the reason of disease of child, it has no relevance in the present matter.

 

The contention of the complainant is that in Post Natal Card cuttings have been made and to support this contention Ex. C-1 and C-2 were placed on record during arguments which clearly shows that in column condition of baby at birth cuttings have been made and new words have been inserted but this is not the scope of the enquiry here.

 

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Non-applicants have placed reliance on 2005 ( 5) Supreme 297 Jacob Mathew Vs. State of Punjab & anr., 2010 (1) RLW 722 (SC) 1 Kusum Sharma Vs. Batra Hospital where general principles regarding medical negligence are being propounded by the apex court.

 

The non-applicant has also relied upon III (2000) CPJ 558 Rajinder Singh Vs. Batra Hospital, I (2003) CPJ 305 Jai Prakash Saini Vs. Director Rajiv Gandhi Cancer Institute where it has been stated that charge of negligence could be cleared if opposite party shows that he acted in accordance with the general and approved practice. There is no dispute about this preposition but here in the present case non-applicant could not establish anything that how they treated the child after birth or which approved practice they have adopted.

 

The non-applicant has also relied upon III (1999) CPJ 9 (NC) Kanhaiya Kumar Singh Vs. M/s.Park Medicare and Research Centre and I (2003) CPJ 153 (NC) Dr. Harkanwaljit Singh Saini Vs. Gurbax Singh where no negligence has been found on the facts of the case which is not the case. Hence, in view of the above deficiency/negligence on the part of the non-applicant is proved.

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To sum up the complainant's wife gave birth to male child with normal delivery.Child and mother were normal till 3.15 p.m. thereafter admittedly child was delivered on 3.34 p.m. Child is suffering from birth asphyxia . Nothing is shown that how the child and mother were treated from 3.15 p.m. on 29.10.2001 till their discharge. No documents were submitted and in view of law laid down in Indu Sharma and Baby Geetha (supra) the non-applicants were deficient in service.

 

The complainant has asked for the medical expenditure, cost of attendant, mental agony and cost of proceedings.

 

The principle of awarding compensation one can safely relied on is restitutio in integrum. This principle has been recognised and relied on in Malay Kumar Ganguly Vs. Sukumar Mukherjee, 2009 (4) R.C.R. (Civil) 14 : 2009 (4) R.C.R. (Criminal ) 1 : 2009 (5) Recent Apex Judgments (R.A.J.) 405 : (2009) 9 SCC 221 and in Balram Prasad's case (supra), in the following passage from the latter:

 

“170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle

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provides that person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone Vs. Rawyards Coal Co.)”

 

An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event.

 

Here in the present case the facts clearly shows that the new born has suffered cerebral palsy due to negligence of the non-applicants and for whole life he is in constant need of attendant. No money can compensate the suffering and helplessness of the child and trauma and mental agony of the parents. The quality of life of the family members have spoiled for ever and the child has suffered permanent disability. For past medical expenses bills of about Rs. 35,000/- are being placed on record which should have been reimbursed by the non-applicants. Further looking at the facts that the child could

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not lead a normal life and parents have also suffer the pain and agony and constant trauma the child is not able to perform his daily chores.

 

Hence, we order that an amount of Rs. 50 lakhs shall be paid to the complainant as compensation. Out of the above amount Rs. 40 lakhs shall be fixed deposit in the name of child and his mother and accrued interest of the same could be utilised for the care of the child. Medical expenses of Rs.35,000/- shall be paid to the complainant. We are also aware of the fact that the matter is lingering on since 29.4.2003 and on the instance of the non-applicants it was carried upto the National Commission. Hence, in view of the matter Rs. 50,000/- are awarded as cost of proceedings. The complainant is also entitled for 9% interest on the amount of Rs. 50 lakhs from the date of presentation of the complaint i.e. 29.10.2003. The order should be complied within one month. In above terms this complaint is allowed.

 

We cannot be oblivious to the fact that inspite of strong contest by the non-applicants the complainant is still ignorant of the events happened from 29.10.2001 from 3.15 p.m. till the birth of child and later on till his discharge from the hospital. It

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is a common experience that patient and their attendants remain unaware about the diagnosis, treatment and procedure during their stay in the hospital. Attendants are kept away from the patient and they are not even allowed to enter in the room where his patient is kept, in the name of hygiene, cleanliness, individuality and speciality of treatment etc. This is need of the day that patient and his attendants should be made known the diagnosis, treatment and procedure etc. and also when and how it was given as the ultimate object of the enactment is not getting or giving compensation but to have flowless service. It is much more essential in the medical field as it is question of life and death and effect the quality of life. Hospital should not claim immunity by only getting a consent letter signed by the patient or attendant which is also in many cases blank. Cases like, in hand should not repeat which left the patient and family in life long regret. Hence, we direct the Principal Secretary, Consumer Affairs and Principal Secretary, Medical and Health to formulate a scheme/guideline for keeping transparency in the hospital that patient and their attendants should know exact diagnosis, treatment procedure required and given to the patient from time to time without compromising the quality and urgent nature of the treatment and procedure given or

 

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required in the situation. The above scheme/guidelines shall be formulated within three months and be placed before this Commission.

 

Judgment pronounced and signed today i.e. 15^th March, 2017.

 

 

(Kailash Soyal) (Nisha Gupta)

Member President

 

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