Afsana Bano Alias Baby vs MANJU VERMA

THE Complainant Smt. Afsana Bano consulted Dr. Manju Sharma (OP -1) as her family doctor on 03.02.1997 for her pregnancy and she was under regular follow up. As per advice by OP -1, an ultrasound (USG) was done in Narayan Ultrasound Clinical on 03.06.1997, and reported as 17 -18 weeks of live pregnancy (Annexure -1). The OP -1 informed the Complainant about the expected date of delivery (EDD) as 10.11.1997. During regular check up, the USG study was performed by Dr. Mukti Bhatnagar on 23.06.1997, 26.06.1997 and 23.08.1997. Also laboratory checkups at Dr. Ramesh Mitra Pathological Clinic and Dr. Anup Tripathi Pathological Lab were performed. The Complainant paid Rs.25,000/ - on 03.11.1997 and the OP -1 did not issue any receipt. On the instructions of OP -1, the Complainant was admitted in a Medical College on 10.11.1997 for immediate delivery by caesarian operation (LSCS) in the private ward. On 11.11.1997, the OP -1 visited the patient and further advised for ultrasound, blood test and urine test. The report was sent to the house of OP -1. The OP -1 did not disclose anything to the complainant about the reports. Thereafter, the OP -1 regularly visited the Complainant till 16.11.1997, thereafter the OP -1 went on leave without any information to the complainant or any alternate arrangement for the patient.

ON the next day the OP -2 examined the patient (Annx -3B). All of a sudden, on 17.11.1997 at 04:00 a.m. the Complainant became serious prior to delivery, there was bleeding, nobody attended the patient till 11:00 a.m. The Complainant was taken to labour room with the help of a Safai wali and available family doctor, but no doctor was available to attend her till 05:30 p.m. Thereafter, at 06:00 p.m. with the help of OP -2 LSCS was performed. It was performed after 14 hours and with carelessness. The child after delivery developed serious complications and the child was admitted in S.R.N. Children Hospital, Allahabad, on 19.11.1997. The concerned Dr. P. C. Mishra stated that the condition of the baby was serious due to damage in the lungs, stomach; also there can be a possibility of damage to the heart and brain of the child. The child was treated up to 25.11.1997 under the supervision of Dr. P. C. Mishra and Dr. Rajiv Saran. Due to this episode the relatives of the Complainant have to stay for one month in the hospital, the child suffered pneumonia (Annx. 4). Thereafter the child did not improve much; and showing abnormal activities day to day. Therefore, on 12.07.2002, the child was checked by Dr. A. K. Srivastava at Viklanga Kendra, Allahabad (Annx -5). Thereafter, on 01.04.2004, further consulted with Dr. R. K. Singh who informed about the impossibility of cure of the child and issued a certificate of permanent disability (Annx -6 and 7). Finally, on 10.06.2005 the Complainant met the OP -1 and discussed her child ''s problem but the OP -1 turned a deaf ear and defended that it was not her case, and asked the Complainant to contact Dr. Tandon, a Mental Specialist. The OP -1 sent her without issuing any reference letter, but OP -1 directed her ward boy to write a letter to Dr. Tandon. Aggrieved by those events, the Complainant served two notices to the OP -1 & 2 on 12.03.2005 and on 12.05.2005 and asked to refund the amount of the treatment and operation which she did not perform. The OP -1 did not respond to those notices. The Complainant filed a FIR and also filed a Consumer Complaint before this commission on 31/08/ 2005 alleging that, OP -1 and 2 for spoiling the life of her child and negligent in their duties and prayed for compensation from OP -1 and 2 of sum of Rs.1,32,12,921/ - under different headings, which are as: (a) Delivery deposit money paid to OP -1 Rs. 25,000.00 (b) Interest for 8 years of Rs.25,000/ - Rs. 37,921.00 (c) Medicines Expenditure up to 8 years Rs. 5,50,000.00 (d) Average study up to 22 years Rs. 2,10,000.00 (e) Permanent disabled average age 60 to 75 years 100% disability and Mental agony to the Complainant and his family members Rs.1,22,24,000.00 (f) Fare from Tanda to Allahabad and From Allahabad to Tanda by Taxi And Hotel expenses, etc. from 03.02.1997 to 18.06.2005 Rs. 1,50,000.00 (g) Notices expenses Rs. 16,000.00 Rs.1,32,12,921.00

DEFENSE : The OPs 1 & 2 resisted the allegations of the Complainant as those are based on totally frivolous nature. Further, submitted in their version that the complainant is not maintainable because they are Government doctors, not doing any private work and they have not charged any money from the Complainant. They were carrying on the work assigned by the Government of Uttar Pradesh in the MLN Medical College. The Govt. of UP should be one of the OPs. Also, the OPs raised an objection about exaggerated claim for want of jurisdiction. In support of contention of OPs, produced medical literature marked as Annexure CA -1,CA -2 and CA -3). The OPs took objections as a time barred complaint , which was filed after 6 years from the delivery.

ARGUMENTS : We have heard the counsel for both the parties. The Counsel for complainant vehemently argued about the negligence of OP -1, who intentionally advised the complainant for LSCS and there was enormous delay of 14 hours for delivery of baby, which resulted in to cerebral hypoxia and further damage to the baby. There was no improvement and condition of child was deteriorating for long period and the complainant noticed the cerebral palsy after five years i.e. on 12.07.2002. Thereafter, Dr. R. K. Singh who informed the complainant on 01.04.2004, about no chances of cure for the child and issued a certificate of permanent disability. Hence, the complaint was filed on 31/08/2005, which was not time barred. The counsel for OPs argued on the point of maintainability of complainant which was filed after 6 years. He has further argued that, the complainant was a Primi -gravida (first pregnancy), and the normal duration of labour takes between 12 -16 hours. In absence of OP -1, the patient was attended by OP -2 and performed the LSCS with proper care. After delivery, the child was healthy; the APGAR score was 10/10, which was not sign of birth asphyxia. The counsel brought our attention to the Discharge Ticket of Complainant from Deptt. of Obstetrics. & Gynecology, Annx -3, the summary of operation notes which mentions the indication for caesarian section was non -progress of labour. It was further denied that the OP -1 took Rs.25,000/ - from the complainant for operation. The counsel produced several medical literatures on Cerebral Palsy, APGAR Score. Reasons:

AFTER thoughtful consideration we would like to discuss this case on following points; i) Whether the services of OP -1 and OP -2 are ''''Contract of Service '''' or ''''Contract for Service '''' ? ii) Applicability of Bolam ''s Test. iii) Maintainability of this complaint. i) ''''Contract of Service '''' or ''''Contract for Service ''''

The OP -1 and 2 being Government doctors were discharging duties in the Department of Obstetrics and Gynecology, Motilal Nehru Medical College, Allahabad. The services to the patients are without any consideration. Both are employed under the State Govt, of Uttar Pradesh. The treatment in Govt hospital is being done free of cost, hence, it will not fall under the C.P.Act.1986. We are very suspicious about the allegation of complainant that the OP -1 had taken Rs.25,000/ -from her for treatment. As there is no proof of payment, even otherwise it is unimaginable that in year 1997 any doctor ''s charge such huge amount. Thus, the OP -1 and OP -2 were rendering their services as a Govt doctors, it is a ''''Contract of Service '''' and not a ''''Contract for Service '''', which is not under preview of C. P. Act.

II ) Applicability of Bolam ''s Tests: We have perused the medical records on file, and the annexure 3, which clearly mentioned about the indication for LSCS was ''''Non Progress of labour with leaking. There was no mention of any fetal distress. It was ''''a full term normal baby was extracted by Vx (vetex) at 6 pm on 17/11/1997 with A/S 10/10 i.e. APGAR score 10/10 '''' Therefore, it is clear that the healthy child was born, and after 3 days, on 19/11/1997 the child was referred to Sarojini Naidu Children Hospital (pediatrics wing of MLN Medical College) for mild jaundice. At the time of admission, the clinical notes documented as normal child with icterus (jaundice). In this context, we have referred the literature on APGAR score in Text Book of Obstetrics; the Wikipedia, which gave interpretation of APGAR scores as: - ''''The test is generally done at on and five minutes after birth, and may be repeated later if the score is and remains low. Scores 7 and above are generally normal, 4 to 6 fairly low and 3 and below are generally regarded as critically low ''''

The Cerebral Palsy and the Birth asphyxia: We have also referred several medical texts from Nelsons Text Book of Pediatricians, and few books in Pathology and Immunohematology on the subject of Cerebral Palsy, the Birth asphyxia and Neonatal Jaundice. According to the Author Freeman Miller, the Cerebral Palsy causes can either be prenatal (from conception to onset of labour) natal (from onset of labour to delivery of the baby), on post natal (period after delivery). * Some prenatal causes include congenital malformations like schizencephaly (cleft in brain) chromosomal defects like Down ''s syndrome, storage or metabolic disorders, maternal toxaemia and infectious during pregnancy (fever, measles). * Natal causes include maternal and fetal distress. Fetal distress can be caused by hypoxia (asphyxia/hypoxia neonatorum) or by intracranial haemorrhage and inhalation of amniotic fluid. These causes can be anticipated and prevented by a treating doctor with proper monitoring during labour. However, all these conditions will be reflected in the general condition of the child immediately after delivery. * Post natal causes include post natal trauma, infectious, encephalopathy, hyperpyrexia with convulsions. In this case on hand, the APGAR score of 10/10 after birth indicates a normal healthy child, which neither require any resuscitation nor have lung/brain hypoxia.

THEREFORE , we are of considered view that, the delayed mile stones or cerebral palsy of the child in this case is not due to any negligence of the OP -1 or OP -2. The text book on Essentials of Obstetrics clearly mention that, during the course of normal labour a caesarian section is contemplated if maternal or foetal distress occurs (decreased heart -rate) or if labour progress stops.

REGARDING jaundice to the baby: The Neonatal jaundice, though normal and common in neonates (physiological jaundice) may be very high in some cases (pathological jaundice). When the citrus (Jaundice), reflected by serum bilirubin estimation becomes high it can cross the blood brain barrier and may produce cerebral palsy (Kernicterus). In fact, Kernicterus is a very common cause of cerebral palsy in children. Discharge Ticket of the new born (Annx 4) shows that 2 units of blood transfusion was given, it ''s a standard of practice to treat certain cases of the neonatal jaundice (Exchange transfusion). Therefore, these causes are often not preventable and the treatment is not in the domain of the obstetrician. Thus, it is worthwhile to mention here the Bolam ''s case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582, it was held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. The Constituents of Medical Negligence is now well established by a plethora of Rulings of the Hon ''ble Supreme Court of India in Jacob Mathew vs. State of Punjab[(2005) 6 SSC 1] and in Indian Medical Association vs. V.P.Shantha [(1995) 6SSC 651 had concluded 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. ''''

IN this case both the doctors Dr. Manju Verma and Dr. U. K. Ghosh are faculty member in Department of OBG of Govt Medical College. They are qualified and possess requisite skill and experience of more than a decade to operate LSCS. They have taken adequate care of the patient. The OP -1 made proper alternate arrangement with Dr. U. K. Ghosh (OP -2) and thereafter proceeded on Casual Leave w.e.f. 17th Nov.1997 till 21st Nov. 1997. Hence, we do not find any deviation or negligence committed by the OPs.

III ) Maintainability of this complaint The complainant herself alleged that, the cause of action firstly arose on 17/11/1997, when she was neglected while awaiting delivery. Thereafter as per Annexure 7/12 she came to know on 26/08/1999 about the delayed mile stones of her child, thus the accrued cause of action may be 26/08/1999. She filed a complaint on 31/08/2005, which is more than 2 years of the cause of action. As per section 24 -A Limitation Period - of the C.P. Act, 1986 the complaint filed before this commission is hopelessly time barred. Also, we do not find any application submitted by the complainant for condoning the delay in filing the complaint. It is also pertinent to note that, the complainant ''s prayer is for total compensation of Rs.1,32,12,921/ -, which is unrealistic one. She claimed the expenditure incurred on treatment at the tune of Rs.7.31 lacs. There is neither any cogent evidence of expenses nor declaration of economic status of income of the Complainant. It is a vague and evasive attempt of the complainant.

THEREFORE , with the forgoing discussion, we do not find any evidence of cerebral hypoxia or fetal distress after the delivery of child by LSCS. Thus, it was not the cause of Cerebral Palsy or delayed mile stones. The doctors OP -1 & 2 performed their duty as per standard of medical practice; we do not find any negligence in delivery of child by the LSCS method. The treatment was done in Govt Hospital, at free of cost, hence, this case is not under preview of the C.P. Act. Accordingly, we dismiss the complaint as a time barred and which has no merits.