Haryana

StateCommission

A/100/2016

DR.DEEPSHRI SHARMA - Complainant(s)

Versus

SHALU - Opp.Party(s)

ASHISH CHAUDHARY

10 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeals No: 864 of 2015 & 100 of 2016

Date of Institution: 09.10.2015 & 01.02.2016

Date of Decision: 10.02.2016

 

Appeal No.864 of 2015

 

Shalu wife of Ravinder, Resident of Village Umedgarh, Tehsil Ganaur, District Sonepat.

                                      Appellant/Complainant

Versus

1.      Maharaja Agarsein Charitable Hospital (Regd) Railway Road, Ganaur Mandi, Opposite Police Station Ganaur, through its Manager.

2.      Dr.(Mrs.) Deepshri Sharma (Obs. & Gynae) C/o Maharaja Agarsein Charitable Hospital (Regd.) Railway Road, Ganaur Mandi, District Sonipat.

3.      United India Insurance Company Limited Branch Office 4, 16M Gole Market Maha Nagar, Lucknow (U.P.)

4.      United India Insurance Company Limited, Office No.7, Ground Floor, 150, BBC Complex, Kilokri Ring Road, Opposite Maharani Bagh, New Delhi-14.

                                      Respondents/Opposite Parties

Appeal No.100 of 2016

 

1.      Dr.(Mrs.) Deepshri Sharma w/o Dr. C.P. Sharma, C/o Maharaja Agarsein Charitable Hospital, Ganaur-131101, District Sonipat, Haryana.

Appellant/Opposite Party No.2

 

 2.     Maharaja Agarsein Hospital, Ganaur-131101, District Sonipat, Haryana.  

Appellant/Opposite Party No.1

Versus

 

1.      Mrs. Shalu wife of Ravinder, Resident of Village Umedgarh, Tehsil Ganaur-131101, District Sonipat.

                                      Appellant/Complainant

2.      United India Insurance Company Limited, Office No.7, Ground Floor, 150, BBC Complex, Kilokri Ring Road, Opposite Maharani Bagh, New Delhi-110014.

3.      United India Insurance Company Limited, Office No.4, 16-M, Gole Market, Mahanagar Lucknow (U.P.)-226006.

Respondents/Opposite Parties No.3 & 4

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:              Shri Ram Pal Verma, Advocate for Mrs.Shalu-Complainant.

                             Shri Sandeep Kapoor, Advocate and Sh. Ashish Chaudhary, Advocate, for Maharaja Agarsein Hospital and Dr.Deepshri Sharma-Opposite Parties No.1 & 2.

                             Shri Sukaam Gupta, Advocate for United India Insurance Co. Ltd.-Opposite Parties No.3 & 4. 

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This order shall dispose of afore-mentioned two appeals bearing No.864 of 2015 and 100 of 2016 having arisen out of the common order dated September 1^st, 2015, passed by District Consumer Disputes Redressal Forum, Sonipat (for short District Forum), whereby Complaint No.459 of 2013, filed by Shalu-complainant alleging medical negligence and deficiency in service on the part of opposite parties was allowed issuing direction as under:-

“……we hereby direct the respondent No.2 doctor to compensate the complainant to the tune of Rs.4,00,000/-  (Rs.four lacs) for rendering deficient and negligent services, for causing unnecessary mental agony, harassment and under the head of litigation expenses. The perusal of the case file shows that the respondent No.2 has taken professional indemnity policy from respondent No.4 for the period w.e.f. 27.11.2012 to 26.11.2013 and the incident of wrong treatment given by the respondent No.2 is of dated 11.9.2013 which covers the insurance policy of respondent No2 issued by respondent No.4. Thus, since the respondent No.2 is insured with respondent No.4, we hereby direct the respondent No.4 insurance company to pay compensation to the tune of Rs.4 Lacs (Rs.four lacs) on behalf of respondent No.2 doctor to the complainant.

With these observations, findings and directions, the present complaint stands allowed qua respondent No.2 and 4.”

2.      Shalu-complainant, filed complaint stating that she was pregnant. She was being regularly checked up in Maharaja Agarsein Charitable Hospital (hereinafter referred to as ‘the Hospital’)-Opposite Party No.1 by Dr.(Mrs) Deepshri Sharma-Opposite Party No.2. The expected date of delivery was 18.09.2013.

3.      It was alleged that as usual, on 11.09.2013, the complainant visited the hospital for routine check up and consultation, when the opposite party No.2 asked for immediate delivery by caesarean operation. She was admitted in the hospital. The delivery operation was conducted at about 6.00 P.M. to 6.40 P.M. and she gave birth to a female child. After operation, the complainant became unconscious; she was shifted to General Ward at about 7.00 P.M. It was further alleged there was continuous bleeding from the stitches due to which the condition of the complainant deteriorated. She was shifted to Jaipur Golden Hospital, Sector-3, Rohini, Delhi, where she was kept in Intensive Care Unit (ICU). On 13.09.2013, the laparatomy was done and she was kept on ventilator till 26.09.2013. It was stated that due to the medical negligence on the part of opposite parties No.1 and 2, the complainant had to suffer mental agony, harassment, financial loss and in case she had not taken treatment at Delhi, she would have not have survived. Thus, the complainant sought compensation of Rs.8.00 lacs on account of financial loss; Rs.5.00 lacs for mental agony and harassment etc.

4.      The opposite parties in their reply pleaded that the opposite party No.2 is a qualified Obstetrician and Gynaecologist having degree of M.B.B.S., M.D. On 11.09.2013, the complainant had visited the hospital with full term pregnancy with labour pains. She was carefully examined by the opposite party No.2 and it was diagnosed that she had decreased fetal movement. Initially, she was given trial for normal delivery but due to non-progress of labour, a decision of caesarean section was taken by the team of doctors including opposite party No.2- Dr.(Mrs.) Deepashri Sharma. Since haemoglobin of the patient was 7.8 grams, i.e., below standard range, therefore the attendant of the complainant was asked to arrange blood units for transfusion and they were also explained about the condition of the complainant. The Anaesthetis had given clearance for surgery after pre anaesthetic check ups and the surgery was performed by a team of doctors including Dr.(Mrs) Deepashri Sharma-opposite party No.2.  The surgery was uneventful and the patient delivered a healthy female baby at 6.30 p.m. Thereafter, the patient was shifted to the private ward for post operative care and the patient was fine till 1.00 A.M. Thereafter, she developed hypotension with tachycardia and she complained of chest pain. The attending doctor of the hospital immediately called an ICU Specialist for help and a provisional diagnosis of pulmonary embolism was made. The team of doctors including the ICU Specialist after thorough check ups and detailed discussions, took a decision for the betterment of the patient to refer her to a higher centre for further management. The hospital authorities arranged an ambulance and an RMO and a qualified medical attendant were sent along with the patient in the ambulance for safe transfer of the patient to the higher centre. She was transferred to Jaipur Golden Hospital, as per the choice of the attendants. Thus, denying any kind of medical negligence and deficiency in service on their part, the opposite parties prayed for dismissal of the complaint.

5.      On appraisal of the pleadings and evidence of the parties, the District Forum vide impugned order allowed complaint issuing direction as reproduced in earlier part of this order.

6.      Being aggrieved against the order of the District Forum, the complainant has filed appeal No.864 of 2015, for enhancement of compensation and opposite parties No.1 and 2 have filed F.A. No.100 of 2015 for setting aside the impugned order.

7.      We have heard learned counsel for the parties and perused the case files.

8.      Certain facts in this case are admitted that the complainant was pregnant, she was being checked up from opposite party No.2 regularly. It has also come on the record that on 11.09.2013, she had given birth to a female child by caesarean operation at 6.30 p.m. The patient was fine and was shifted to the private ward for post operative care.   At about 1.00 A.M. (midnight), the patient developed hypotension with tachycardia; she also complained of chest pain. Immediately, an ICU Specialist was called and a provisional diagnosis of pulmonary embolism was made. The team of doctors including the ICU Specialist after thorough check ups and detailed discussions, had taken a decision to refer the patient to some other hospital of higher facilities and management. An ambulance was arranged by the hospital authorities; a RMO and a qualified medical attendant were also sent along with the patient in the ambulance. The patient was transferred to Jaipur Golden Hospital, Delhi.

9.       The question for consideration is whether the patient had developed hypotension with tachycardia due to any medical negligence on the part of the treating doctor and there was any deficiency in service on the part of the hospital and the doctor?   

10.              What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital Management Committee, (1957), 1 WLR, 582 (the Bolam’s test), is well settled through a catena of decisions of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 SCC 651 and Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480.   To determine the medical negligence, following principles have been determined to constitute medical negligence:-

(i)     Whether the treating doctor possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time;

(ii)     Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field.  

11.    In Jacob Mathew’s case (supra),  a three Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury’s Laws of England (4^th Edn., Vol.30, para 35), as under:-

“35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way…”

12.              We proceed to examine the allegations of medical negligence on the yardstick of the above mentioned principles.        

13.              The complainant in para 3 of the complaint levelled allegations of medical negligence, which reads as under:-

“3.     That the said operation was conducted by the respondent No.2 negligently, because, at about 1.30 a.m. (midnight of 11 and 12/09/13), the attendant/brother in law of the complainant, Sumit Kumar made a telephonic call at his/complainant’s residence complaining that due to negligence in operating the complainant, she had attained a very critical condition and due to which, Shalu, the complainant has reached a condition of about to die. After the operation also she was not cared properly. Now, the Doctor had asked Sumit to take the patient somewhere else, as the Dr.had made it clear that the said case is totally out of her control and she could not manage that case any more. As the pulse rate of the complainant/patient had increased considerably and blood has gathered in the womb of the patient due to a continuous bleeding from the stitching of the operation, due to which distension like (Afara) condition had occurred and the patient was still in unconscious condition. He further told that the Doctor did not take care of the patient properly before, during and after the conduct of the operation. Due to the negligency of the respondent No.2, the patient was likely to die. The stitching was also not done properly….”.

 

14.    The treatment record of Jaipur Golden Hospital reflects that on 12.09.2013 the platlet count of the patient (complainant) was 0.90 at 7.02 A.M. and 0.20 on 12.09.2013 at 1.43 P.M. and 0.60 at 4.07. P.M. on 13.09.2013. Due to that reason the condition of the patient deteriorated. There is nothing on the record to suggest that the opposite party No.2 was negligent while conducting the operation. The problem faced by the patient was not due to any medical negligence. The complainant has not produced any expert evidence to connect the opposite parties No.1 and 2 with any medical negligence. Merely that the complainant faced complications, cannot be termed as medical negligence and deficiency in service.

15.    In Jacob Mathew V State of Punjab & Anr, (Supra), Hon’ble Supreme Court held that “ a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”

16.    In Kusum Sharma vs. Batra Hospital, (2010) 3 SCC 480, Hon’ble Apex Court held as follows:-

“I. Negligence is the breach of a duty exercised 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.

 

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

 

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

 

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

……………………………..

xi.  The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”.

 

17     In the present case, the opposite party No.2-Doctor while conducting the operation of the complainant exercised her skill which can be expected from a medical practitioner.  She also possessed the degree of M.B.B.S., M.D. So, this Commission is of the considered view that no negligence can be held to have been caused by the treating doctor, who took proper decision at proper time to save the life of patient by referring the patient to Jaipur Golden Hospital. Even the treatment record of the complainant at Jaipur Golden Hospital does not suggest of any negligence of opposite party No.2. The District Forum has failed to appreciate the facts of the case and evidence produced by the parties, as such, the impugned order cannot sustain.

18.    For the reasons recorded above, appeal No.100 of 2016 filed by Doctor and Hospital, is accepted, the impugned order is set aside and the complaint is dismissed. Consequently, appeal No.864 of 2015 filed by complainant stands dismissed.

19.    The statutory amount of Rs.25,000/- deposited at the time of filing appeal No.100 of 2016, be refunded to the appellants/Opposite Parties No.1 and 2, against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 10.02.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL