Haryana

Ambala

CC/269/2019

Vishal Dhanwan - Complainant(s)

Versus

Sneh Meternity and children Hospital - Opp.Party(s)

Vishal Dhanwan

16 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	269 of 2019
Date of Institution	:	02.09.2019
Date of decision	:	16.10.2023.

Vishal Dhanwan son of Sh. Suresh Chand Dhanwan, aged about 38 years, permanent resident of H.No.39, Vashisht Nagar, Ambala Cantt, District Ambala.

…..Complainant

 

Versus

1. Sneh Maternity and Children Hospital, Taneja Road. Opposite KD Hospital, Mahesh Nagar, Ambala Cantt., District Ambala through its Proprietor.
2. Dr. Manisha Garg (Women Gynecologist) wife of Dr. Anurag Garg. C/o Sneh Maternity and Children Hospital, Taneja Road, Opposite KD Hospital, Mahesh Nagar, Ambala Cantt, District Ambala.
3. ICICI Lombard General Insurance, ICICI Lombard House, 414, Veer Savarkar Marg, Near Siddhivinayak Temple, Pradhadevi, Mumbai 400025 vide professional Indemnity Bearing Insurance Policy No.4021/174191853/00/000 effective from 24.07.19 to 23.07.2020.

 

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

Present:      Shri Vishal Dhawan, Advocate, counsel for the complainant.

                   Shri S.S. Garg, Advocate, counsel for the OPs No.1 and 2.

                   Shri Rajesh Kumar, Advocate, counsel for the OP No.3.

 

Order:        Smt. Neena Sandhu, President.

1.                 Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the total amount deposited by the complainant i.e. Rs. 50,000/- for treatment of his wife.
2. To pay Rs.19,00,000/- as compensation for physical harassment and mental agony suffered by the complainant
3. To pay a sum of Rs. 5500/- as litigation expenses.
4. Grant any other relief, which this Hon’ble Commission may deems fit.

 

2.             Brief facts of this case are that the wife of the complainant Smt. Nishtha Dhanwan was pregnant for the second time and got all her treatment done from Dr. Manisha Garg (Women Gynecologist)/OP No.2. She prepared pre delivery treatment card' (Anti natal card) of complainant’s wife and for full nine months his wife remained under the treatment of Dr. Manisha Garg. Dr. Manisha Garg called complainant’s wife from time to time and on her advice complainant’s wife took medicines and underwent ultra-sound and other medical test from time to time.  For full nine months, complainant and his wife were told by Dr. Manisha Garg that their baby is healthy and there is no need to worry. This fact was also told to the complainants by Dr. Gagandeep Mittal who had conducted ultra sound test of wife of the complainant. On 25-07-2019 as per advice of Dr. Manisha Garg complainant and his wife went to Dr. Gagandeep Mittal for her ultra sound. In report of the scan there was a circle of cord (nadu) around the neck of the baby, which also reflected in the scan report dated 28-06-2019. When the complainant and his wife asked about this from Dr. Manisha Garg, she said that there is nothing to worry and she would do the normal delivery very easily. On 02-08-2019 as per instructions of Dr. Manisha Garg, the complainant took his wife to OP No.1 Hospital at about 12.00 noon where she examined her and gave her a tablet to be taken at 2:00 PM and directed them to go back to home and asked them to come to hospital at 6:00 PM in the evening. When the Complainant reached hospital at 6:00 PM, one girl who was looking totally unprofessional, who administered drip to wife of the complainant and gave her another tablet to take and admitted her in the hospital so that labor pains can start. At that time, complainant was called in the room of Dr. Anurag Garg and was asked to deposit Rs.10,200/- which amount was debited from the debit card of complainant's wife Nishtha, but no receipt was given in this regard. Wife of the complainant was directed to walk in the hospital itself and to pass as much urine as possible and she was also directed to sit by spreading her legs forcibly which was done by wife of the complainant with great difficulty. During whole of this process, the behavior of Dr. Manisha Garg and her staff girl was very bad and disgusting. At about 12:00 o'clock in the night, wife of the complainant started experiencing pains after every 5 minutes and at about 12:30 in the night, her water bag busted out. Despite repeated requests, Dr. Manisha Garg did not turn up and complainant woke up the lone untrained staff nurse who was appearing to be around 20-22 years of age, who made wife of the complainant to lie on the bed, not to walk and experience all the pains while lying on the bed. Wife of the complainant remained lying on the bed up to 2.20 (night) and her condition remained pathetic and she continued to cry with pain. Complainant called the nurse and the Doctor again and again, but nobody came to check the feeder heartbeat and in the last at about 2:20 (night), Dr. Manisha Garg came in the worried condition and took wife of the complainant in the operation theatre. During this period, the nurse came in and out several times and when asked, she told that wife of the complainant is in serious condition. Complainant taking stock of the gravity of the situation, asked the nurse to tell the Doctor to do cesarean operation, but Dr.Manisha Garg did not come outside and at about 2:40 in the night, Dr. Anurag Garg (child specialist) who is the husband of Dr. Manisha Garg, came down from the house into the operation theatre whereas he should have remained there earlier. After some time, nurse called complainant in the operation theatre and when he went inside he saw that Dr. Manisha Garg and Anurag Garg were worried and complainant was told by Dr. Manisha Garg that due to cord (nad) entanglement around the neck of the baby, while pulling out, the baby had died due to suffocation. Complainant asked Dr. Manisha Garg as to why she did not do operation, she informed that it was due to non availability of anesthetist. When he asked to refer to some other hospital, she refused saying that there is facility of operation in their hospital. Due to lack of professionalism, carelessness and mismanagement on the part of Dr. Manisha Garg, baby girl of the complainant died while taking birth because the fact of the cord around the neck of the baby was already in the knowledge as per report of two scans. Dr. Manisha Garg did not go for operation even when the same was utterly necessary, nor did she call anesthetist and remained adamant for normal delivery, due to which complainant girl died despite being remaining alive in the womb of his wife for full nine months. Wife of the complainant was kept in the hospital up to 4:00 PM of 03-08-2019 and then she was discharged. At the time of discharge, the complainant asked Dr. Manisha Garg to give in writing the discharge summary and she gave them in writing, which revealed that the cause of death of the baby was mentioned due to coming of the cord 'nadu' before the birth which is called 'cord prolapsed' in medical language. This was altogether different from what the complainants were told by Dr. Manisha Garg. Complainant along with his wife and his mother-in-law met Dr. Manisha Garg on 05-08-2019, who then told that the head of the baby had already come out of the womb and was fixed and she admitted her nurse and her own mistake. Complainant's girl child has died due to carelessness and medical negligence of Dr. Manisha Garg. Complainant has registered a complaint with file No.26098, 16/08 DGHS with the Director, General Health, Haryana, for lodging of FIR against the hospital and doctor. The girl child of the complainant died due to carelessness and medical negligence of Dr. Manisha Garg, thereby causing lot of mental agony, pain and harassment to the complainants, hence this complaint.   
3.           Upon notice, OPs No.1 and 2 appeared and filed written version and raised preliminary objections to the effect that the present complaint is not maintainable as the complainant has leveled serious, complicated and complex allegations which cannot be adjudicated by this Commission; this complaint is bad for non-joinder of parties; the principle of res ipsa loquitur is not applicable in each case; there is no expert report placed by the complainant to prove medical negligence etc. On merits, it has been stated that the wife of the complainant was taking ante-natal treatment from OP. No. 2. Cord prolapse cannot be prevented by antenatal care for 9 months. There are no tests available to predict cord prolapse. Umbilical cord prolapse is where the umbilical cord descends through the cervix, with (or before) the presenting part of the fetus. It affects 0.1-0.6% of births. Cord prolapse occurs in the presence of ruptured membranes and is either occult or overt. Cord prolapse is an obstetric emergency because of Perils to the baby. In a prolapse, the umbilical cord drops (prolapses) through the open cervix into the vagina ahead of the baby. The cord can then become trapped against the baby's body during delivery. Umbilical cord prolapse occurs in approximately one in every 300 births. The risk of death of the baby is about 10%.  On 2/07/2019, on USG there was cord around neck of the baby which was also present on the scan of 28/06/2019. The complainant was clearly told that cord around neck itself is not an indication of LSCS. The complainant agreed to this as this was their second delivery and first one was clear and smooth normal delivery. They signed the consent. The complainant came with his wife at around 6:30 PM. She was in early labour & complaining of discharge per vaginum. On per vaginum examination, she was 2-3 cm dilated with 20-30% effacement & the contractions were mild membranes which were felt intact. The patient was admitted and the syntocinon drip with the induction dose was started. The patient was monitored for her contractions and fetal heart rate as per the hospital protocol. At 10 PM, OP No.2 again did per vaginum examinations, pains were still mild. Cervix was still 2-3 cm dilated with 30-40 % effaced & vertex at - I station. OP No. 2 decided to discontinue the syntocinon drip & asked patient to take rest and allow the labour to proceed naturally. At midnight, the patient started having pains at interval of 5-6 minutes. At around 12:30 AM, spontaneous rupture of membrane occurred. Effaced head was at O station, liquor was clear & FHS was 140-144/mt & regular. At 1.45 AM, FHS was heard in the presence of attendants & contractions were at an interval of 5-6 minutes. At 2:15 AM, the patient was having good contractions & she was bearing down. Situation was assessed & shifted the patient to the LR & called OP at 2:20 AM. OP immediately came down. Patient was almost fully dilated, head at +2 station with a small loop of cord protruding from the side of head. Cord pulsation were felt, that was feeble. Fetal heart rate was 30-40/minute. Right MLE given & baby was delivered at 2:32 AM & handed over to the pediatrician. Pediatrician did his best to revive the baby and continued resuscitation for about 40 minutes but could not save the baby. In between, right MLE was stitched & PP was shifted to the room in a stable condition. Baby was declared dead to the attendants at 3:15 AM.  The cause of death was written "cord prolapse" in the discharge summary which is absolutely true, as the present case is a precipitate delivery in which cord can slip along the side of head even after the fixation, which actually happened in this case. Complainant alleges that baby was forcibly pulled, and cord was entangled & baby died due to suffocation but actually the delivery was very easy without any force or push because the patient was 2^nd fravida with normal pelvis. Contrary to this, the delivery was very rapid which led to cord prolapse and fetal compromise. The patient alleges of severe pain & injuries during delivery but after 3rd day on 5/08/2019, she came by herself to OP No. 2 walking normally, her stitches were normal & she was in a stable condition. As per medical literature, Occult (incomplete) cord prolapse - the umbilical cord descends alongside the presenting part, but not beyond it. Overt (complete) cord prolapse-the umbilical cord descends past the presenting part and is lower than the presenting part in the pelvis. Cord presentation-the presence of the umbilical cord between the presenting part and the cervix. This can occur with or without intact membranes. Cord prolapse is an obstetric emergency and it was an accident for which OPs No.1 and 2 could not be blamed. Rest of the averments of the complainant were denied by the OPs No.1 and 2 prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.3 appeared and filed written version and raised preliminary objections to the effect the instant complaint is a gross abuse of process of law and has been filed by complainant with the sole purpose of harassing and pressurizing OP No.3; the instant complaint is based on false, frivolous and baseless facts;  the complaint is not maintainable; the complainant is not consumer as it was not the complainant who had taken the treatment and thus the complaint by husband of the patient is not maintainable and is liable to be dismissed on this score alone; the complainant has approached this Commission with unclean hands; the complainant has not annexed and documentary evidence or medical evidence to infer that there was any negligence of OP No.2 and in absence of the same the complaint is liable to be dismissed etc. On merits, it has been stated that OP No.2 was never negligent in her duties and even if she is found negligent in her professional duties, even then OP No.3 is not liable to pay any compensation, as per terms and conditions of Insurance Policy, in question. The complainant never submitted the claim documents/claim form to OP No.3. It is settled proposition of law that the complainant has to prove the negligence of the doctor, but in the present case the complainant himself had signed consent form in which he had given consent to OP No.2 for normal delivery and there is no negligence of OP No.2, nor there is any report from the medical experts as per the rules and regulations. Rest of the averments of the complainant were denied by the OP No.3 and it prayed for dismissal of the present complaint with special cost.
5.           Learned counsel for the complainant tendered affidavit of wife of the complainant as Annexure C-A and affidavit of the complainant as Annexure C-B alongwith documents as Annexure C-1 to C-25 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OPs No.1 and 2 tendered affidavit of Dr. Manisha Garg and Sneh Maternity & Children Hospital as Annexure RW1/A alongwith documents Annexure R-1 to R-4 and closed the evidence on behalf of OPs No.1 and 2. However, it is pertinent to mention here that the OP No.3 failed to lead any evidence despite availing various opportunities, therefore, evidence of the OP No.3 have been closed by the order of this Commission on 14.09.2023.
6.           We have heard the learned counsel for the complainant and learned counsel for OPs No.1 to 3 and have also carefully gone through the case file.
7.            Learned counsel for the complainant submitted that it was on account of medical negligence on the part of OPs No.1 and 2 that the baby of the complainant died during delivery, they are thus liable to compensate the complainant for the mental agony and physical harassment suffered by him and his family members.  The learned counsel for the complainant has placed reliance on the order dated 22.02.2018, passed by Hon’ble State Commission, Haryana, in the case of Dr.Jyotika Kapoor, MD (Medicine), Kap’s Diagnostic Centre Versus Seema Rani and Others.
8.           On the other hand, learned counsel for OPs No.1 and 2 submitted that OPs No.1 and 2 did all efforts to save the baby of the complainant, at the time of her birth, yet, it was on account of medical complications (obstetric emergency), that the baby of the complainant could not be saved. From the perusal of report submitted by the Board of Medical experts, which was constituted, on filing of complaint by the complainant against the OP No.2, before the District Civil Hospital, Ambala, it is evident that there is no medical negligence on the part of the OP No.2 and the baby of the complainant died because of obstetric emergency. There is no medical negligence on the part of the OPs No.1 and 2, he has placed reliance upon the case Kapil Aggarwal v. Sarvodaya Hospital & Research Centre, 2022 SCC OnLine NCDRC 21, 08-02-2022  decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and also produced the medical literature in this regard.   
9.           The learned counsel for the OP No.3 submitted that the OP No.2 was never negligent in performing her duties.  Complainant himself has signed the consent form whereby he has given consent to OP No.2 for normal delivery and There is no medical negligence on the part of the Ops No.1 and 2, thus as per terms and conditions of the insurance policy, it is no liable to pay any compensation to the complainant. He has referred the judgment passed by Hon’ble Supreme Court in India, New India, in case of Dr. Harish Kumar Khurana Vs. Joginder Singh & Ors. 2021(3).
10.           Since, neither the fact that the wife of the complainant was admitted in the OP No.1 Hospital for delivery; treatment was given by OP No.2; and that during delivery the baby died is not in dispute, as such, the only question which falls for consideration is, as to whether, there was any medical negligence on the part of OPs No.1 and 2 in the matter or not.
11.           It is significant to mention here that in the present case, it is coming out from the document Annexure R-1 i.e. the Medical Expert Report that  on receipt of complaint dated 05.06.2021 of medical negligence in the office of the PMO, District Civil Hospital Ambala from the complainant against Dr.Manisha Garg/OP No.2, a Committee of Board of Specialized Doctors consisting of Dr.Anuradhu, Gynecologist, G.H. Ambala City; Dr. Rajni, Gynecologist, G.H. Ambala City; Dr.Suresh Sharma, IMA Member, Ambala City; Dr. Subhjyoti Parkash, SMO DCH Ambala City and Dr.Sangita Goyal, Civil Surgeon,  was constituted to apprise as to whether there was any medical negligence on the part of OP No.2 in the matter or not. In this report, it has been mentioned that cause explained as asphyxia due to cord prolapse which became evident at the time of delivery. It is an obstetric emergency which was the cause of demise of the baby. The said medical committee of experts has opined that there is no medical negligence on the part of Dr. Manisha Garg/OP No.2.
12.           It may be stated here that the complainant has neither challenged this report nor has produced any contrary documents to this report. On the other hand, as stated above, it is clearly found mentioned in the report Annexure R-1 that the committee of said medical experts was constituted on the complaint having been received from the complainant himself. Even in para no.7 of his complaint also, it has been admitted by the complainant himself that the above said complaint was lodged by him to the Director General Health, Haryana which was registered with file No.26098 dated 16.08.2021. Thus, in the face of the medical expert report, Annexure R-1 referred to above, it can easily be said that there was no medical negligence on the part of OPs No.1 and 2.  In the case of Kapil Aggarwal v. Sarvodaya Hospital & Research Centre, (Supra), the Hon’ble National Commission by making reliance on the judgment passed by the Hon’ble Supreme Court in the case of Achutrao Haribhao Khodwa & Others Vs State of Maharashtra & others[1] has held that every death in the hospital during treatment cannot be attributed as medical negligence of the treating doctor and hospital.
13.           In this view of the matter, it is held that since the complainant has failed to prove his case, as such, no relief can be granted to him. Resultantly, this complaint stands dismissed with no order as to cost.  Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.        

Announced:- 16.10.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President