ANJALI SHRIVASTAVA vs SHEELA PAHLAJANI

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (''the Act'') directed against the order passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as the ''District Forum'') in Complaint Case No. 516/2002 on 3.3.2004 dismissing the complaint.

COMPLAINANT has averred in her complaint that she is a 47 years old healthy lady and mother of 2 daughters. She conceived after 13 years after her second daughter was born. She consulted the respondent/O.P. Dr. Sheela Pahalajani at her nursing home namely Mata Laxmi Nursing Home on 4.9.2000 for regular checkup and treatment. On 6.10.2000 she felt that the movement of the foetus (unborn child in the womb) was slower. She immediately complained to the O.P. by going to her nursing home. O.P. examined her and advised taking fruit juice, etc. and lying on her left side. Complainant took the medicines regularly as per advice.

On 10.10.2000 she did not feel any movement in the foetus. She complained to the O.P. by going to her nursing home. O.P. examined her and also got her Ultrasonography done. But did not tell her anything about the condition of the foetus. Although the facility of Ultrasonography is available in OP''s nursing home, O.P. asked the complainant to get her Ultrasonography done in Dr. Chandrika Sahu''s clinic the next day.

ON showing the Ultrasonography report on 11.10.2000, the O.P. told her that the foetus was dead and will be required to be removed by surgery or normal delivery. The complainant was admitted to the OP''s nursing home as on 12.10.2000. The dead foetus was removed on 13.10.2000. It is also stated that she was not given proper attention and was left to the care of a nurse or attendant. The dead foetus thus taken out was healthy and fully developed.

COMPLAINANT has also alleged that she was given to understand that she might be able to conceive again and was called at the nursing home many times after the incident. Discharge ticket and the sonography report of 10.10.2000 were not given to her in spite of asking for it several times and were told that the papers have been destroyed by termites. It is stated that the sonography report of 20.9.2000 states the age of the foetus as 32 weeks while the age of the foetus in the sonography report is mentioned as 29 weeks, 4 days. It is also stated that she was made to have the pathology tests at her own laboratory. A compensation of Rs. 4,00,000 has been prayed for mental agony suffered by her and her family.

COMPLAINANT has submitted affidavit of her own as well as that of Dr. Rajrani Khare MS, DGO, Gynaecologist, Balaghat, Arvind Shrivastava, her husband, and the documents as under in support of her contentions: I. Her own affidavit. II. Affidavit of Dr. Rajrani Khare. III. Prescriptions by Dr. Pahlajani (O.P.)- (i) Date 4.9.2000; (ii) Date 10.9.2000; (iii) Date 24.9.2000; (iv) Date 8.3.2001. IV. Pathological Reports- (i) Blood report dated 9.9.2001 by Mata Laxmi Nursing Home; (ii) Urine report dated 9.9.2001 by Mata Laxmi Nursing Home; (iii) Blood report dated 12.10.2000 by Mata Laxmi Nursing Home; (iv) VSDRL test Report dated 13.9.2000 by Santhana Vikas Lab; (v) Pathological report for blood dated 6.10.2000 by Mata Laxmi Nursing Home. V. Ultrasound Investigation Reports- (i) Sonography report dated 20.9.2000 at Dr. Pahlajani Diagnostic Centre; (ii) Sonography Report dated 11.10.2000 by Sahu Diagnostic centre.

IN reply to the complaint, the respondent/O.P. has admitted that she was consulted by the complainant for checkup for pregnancy but it is denied that the complainant consulted the respondent/O.P. on 6.10.2000 and 10.10.2000. It is stated that the complainant was very irregular and negligent in following advice. It is further stated that even on learning of the death of the foetus on 11.10.2000, the complainant approached the O.P. the next day i.e., on 12.10.2000 in the afternoon. She was administered drugs for normal delivery and the foetus came out by way of normal delivery. Allegations that she was not properly attended by the O.P. is denied. It is stated that intrauterine fetal death is an act of God and has occurred due to the neglect, irregularity in taking prescribed precautions, and following the treatment on the part of the complainant.

It is stated that the disparity in the age of the foetus in the ultrasound reports must have occurred as the head of the foetus gets collapsed and since the average age is calculated on the basis of the length of the head and the leg (femur), the disparity occurs. It is stated that the delivery of healthy babies in the complainant''s age-group took place rarely despite utmost care.

IT is alleged that the complaint has been filed to extract money from the O.P. The grievances of the complainant may be summarized as under: 1. O.P. was negligent in attending to her although she specifically complained to her on 6.10.2000 regarding slow movement of the foetus.

IT is not disputed that the O.P. was consulted for the first time on 4.9.2000 and was under the treatment of the O.P. from 4.9.2000 to the date of incident, 13.10.2000 when the foetus was removed through normal delivery. The prescription of (Annex. 17) mentions the age of the complainant as 45 years, hypertensive and bulky. Subsequently consultations took place on 10.9.2000 and 20.9.2000 (Annex. 18) and 24.9.2000 (Annex. 11) and yet another date as mentioned on the back of the Annex. 11. She had also undergone the various investigations such as Ultrasonography, blood test, etc., as and when advised by the O.P. Ultrasonography report on 20.9.2000 in the complainant''s nursing home, Pathological investigations dated 20.9.2000 and 6.10.2000 and 12.10.2000 (Annexs. 19 and 12) are also on record. As stated in the complaint the complainant became aware of the problem of weakening of movement of foetus on 6.10.2000 and approached the O.P. the same day. She was advised to take fruit juice and prescribed medicines. Again she claims to have approached the O.P. on 10.10.2000 feeling no movement of the foetus.

IT is denied that the complainant consulted the respondent/O.P. on 6.10.2000. Papers regarding consultation or prescription have not been produced. However a report regarding Blood Test for Haemoglobin as referred by the O.P. conducted on the same day in Mata Laxmi nursing home is on record.

O.P. in the reply has denied that the complainant consulted her on 6.10.2000 and stated that ''the O.P. is a leading practitioner in Raipur city and comes across many patients hence the date on which the patient came to her cannot be said.'' An application for production of documents relating to treatment was filed by the complainant before the District Forum on 3.4.2003. Respondent/O.P. did not produce any records and in reply to the said application stated that the records are destroyed after one year ''as is the common practice adopted by almost all nursing homes and private hospitals''.

Thus the only records available are those produced by the complainant.

DR. Rajrani Khare, MD, the sister-in-law of the complainant filed an affidavit in support of the complaint. DR. Khare has stated that she was an experienced Gynaecologist having 28 years of experience. She has further stated that when the complainant informed the O.P. of weakening of movement in the foetus on 6.10.2000 the O.P. should have got the sonography done and decided for a caesarean section of the complainant. It is also stated that it is not possible that the cause of death of the foetus was blood pressure. It is also stated that the weight of the complainant should have been taken and recorded which was not done. Witness DR. Rajrani Khare was cross-examined by the Counsel for the O.P. It was stated on cross-examination that every pregnant woman above 40 years does not necessarily suffer from pregnancy induced hypertention. There are three symptoms of pregnancy induced hypertension commonly seen in patients - swelling in the legs, rise in blood pressure, and rise in albumin level in urine. It is also stated that the blood pressure of the complainant recorded as 140/90 is common in the today''s life of tension. Moreover during pregnancy the weight of the woman also increases hence her weight must be recorded frequently. It is also stated that the complainant was not suffering from hypertension. It is also stated that the death of foetus occurred because the complainant did not follow the instructions of the O.P. It is also stated that the doctor should give all the instructions in writing. It is also stated that the foetus could have been saved had the decision for caesarean taken in time. It is also denied that the O.P. was not negligent.

DURING arguments the learned Counsel for O.P. submitted that the expert evidence of Dr. Khare produced by the complainant cannot be relied upon as she is a close relative of the complainant. On the other hand the learned Counsel for the complainant submitted that no doctors are prepared to give any opinion against another doctor. Therefore, the complainants has produced whatever expert opinion was available. In our opinion the statement of Dr. Rajrani Khare does not become inadmissible and cannot be discarded merely because she is related to the complainant. At most the objection may be considered only with reference to the weight of the testimony rather than the admissibility or the facts disclosed. It is also noted that the O.P. availed of the opportunity of cross-examining Dr. Rajrani Khare and carried out a lengthy cross-examination and several important aspects of the case were elaborated. Therefore, facts brought out in cross-examination by the O.P. certainly cannot be ignored because the O.P. finds them inconvenient. Blood pressure of the complainant was recorded as 140/90 which is not alarming as per the expert evidence. There is no remark in any of the prescriptions written after clinical examination that she had any swelling in the legs. No test for ascertaining albumin level was ever prescribed. This confirms that the complainant was not suffering from hypertension.

DISTRICT Forum in para 6 of the impugned order concluded that the O.P. failed to preserve and produce records for 2 years as per the GOI Notification referred to in the said paragraph. We find ourselves in agreement with the said conclusion and also note that para 1.3.1 of Code of Medical Ethics laid down by the Medical Council of India, reads as under: ''Every physician shall maintain the medical records pertain to his/her patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India or the State Medical Council as the case may be.''

IN view of the above provisions the O.P. was under obligation to preserve the records for 3 years from the commencement of treatment which she has failed to discharge. The State Commission of Madhya Pradesh has in the matter of SA Quereshi v. Padode Memorial Hospital and Research Centre, II (2000) CPJ 463, Bhopal observed that ''The plea of destroying the case history appeared to the Court to be an attempt to suppress certain facts likely to be revealed from the history-sheet''.

Therefore, an adverse inference has to be drawn against the O.P. The contention of the complainant has to be relied upon regarding her consulting the O.P. on 6.10.2000 when the problem started. Blood test report of even date obtained on the instructions of the O.P. also gives credence to the complainant''s contention.

COMPLAINANT has categorically stated that she complied with all the instructions given to her by the O.P. From the copies of reports on record she also appears to have undergone whatever pathological or radiological investigations were asked to be performed. On the other hand the O.P. in her reply stated that the complainant was ''very irregular in following the advice of the O.P.'' On perusal of the prescriptions the only instruction appears regarding diet. But nowhere it is stated by the O.P. as to what instructions were imparted to her, and in what way the negligence on the part of the complainant affected the foetus.

AS is obvious from the prescription the complainant was 45 years of age, obese and hypertensive. Therefore, indisputably she was a vulnerable to several associated risks. A doctor''s duty of reasonable care involves giving the patient a description of his condition and advise as to the appropriate courses of treatment including the risks involved. The likelihood of injury of damage caused is the criterion for determination of as to what degree of care needs to be taken in particular case. The higher the risk involved, the higher the degree of care required. Complainant has alleged negligence and delay on the part of the O.P. in providing her the professional service. The O.P. in reply has alleged negligence on the part of the complainant in not following the treatment and instructions. From the available prescriptions and the sonography and pathological reports we are convinced that the complainant was consulting the O.P. at frequent intervals. None of the prescriptions and the sonography reports shows any thing was amiss with the growth of the foetus or the complainant. It appears that the complainant apprehended some problem on 6.10.2000 and contacted the O.P. Prescriptions clearly show that she had been regularly consulting the O.P. after 4.9.2000 and undergoing whatever tests were advised. None of the prescriptions shows any remark as to any neglect on the part of the complainant. Sonography report dated 20.9.2000 conducted in the OP''s nursing home also does not indicate anything abnormal in the 34 weeks old foetus.

THERE is no attempt or even suggestion on the part of the O.P. to explain as to what went wrong in the last phase of the pregnancy. It would be inconsistent with human nature and difficult to believe that the mother of the child should suddenly turn careless towards the foetus for which she had cherished for long years and has been obtaining medical advice and following it.

IN the present incident the cause of the incident is unknown and no reasonable explanation as to the cause is coming forth from the O.P., maxim "res ipsa loquitur" applies. Extract copies of the William''s Obstetrics Book and Medical Disorders in Obstetrics have been filed by the O.P. The paragraphs of the said extracts are reproduced as under: "According to most studies, there are numerous complications of pregnancy-affecting both the mother and the foetus or neonate-among women over the age of 35. Although there is no precise age beyond which a woman becomes more susceptible to those complications, the age of 35 is frequently used as a cut-off especially in referring to women who are pregnant for the first time. We hope that the indelicate term elderly primigravida-first adopted in 1959 by the INternational Federation of Obstetricians and Gynaecologists." Toohey and colleagues 1995 "Maternal Complications: Because the incidence of most chronic illness accrues as a function of age, it is not surprising that both medical and obstetrical complications are encountered more frequently in older pregnant women. INdeed age is much more important risk factor for intrapartum complications than is parity alone. Lehmann and Chism, 1987 "Medical Complications: Complications due to diabetes and the hypertensive disorders of pregnancy are encountered with increased frequency in pregnant women over 35, as compared with those at the ideal child bearing age of 20 to 25. IN several studies, chronic hypertension complicated 10 to 20 percent of pregnancies in women over 35". All that the above text indisputably proves that the complainant was a high risk patient. With the background and expertise the respondent/O.P. claims to possess it would have been prudent for her to take extreme care looking to the risk factors involved. All possibilities as well as the options available should have been considered. There is no explanation as to why the option of Ultrasonography on the very day when weakening of movement was brought to notice and caesarian was not even considered. Looking to her earlier conduct, it is difficult to believe that the complainant did not follow her instructions.

What exactly led to the intrauterine foetal death of the unborn child will never be known for want of OP''s record which has mysteriously vanished. But neglect to provide proper care and advice are certainly the factors which are to a large extent responsible for the unfortunate incident. The emotional shock and the grief and agony of the mother and the family can very well be imagined.

IN view of the material on record and the above discussion in our opinion the O.P. was deficient in duty on the following counts: (1) Not producing or preserving the records/case history of the patient despite the mandatory provisions laid down under the Medical Council of INdia Act and Rules framed thereunder. We also note that the O.P. had selective amnesia-she failed to recollect several facts as long as they assisted the complainant but had a remarkably good memory in where it helped her defence. (2) Failure to provide proper advice and timely monitoring and warning to the complainant regarding the precautions during pregnancy. (3) Despite being fully aware that the complainant was within the high risk zone of pregnancy because of obesity and hypertension failing to advise suitable precautions for elimination or at least minimizing the risks. (4) Not intimating the complainant of the prognosis and impressing upon her of the gravity of her condition during the entire period of treatment. (5) It is also noted that the OP''s nursing home, Dr. Sheela Pahalajani''s Diagnostic Centre claims to have facilities for several tests including sonography. But on the crucial date 11.10.2000 the complainant was asked to go for sonography test at Dr. Sahu''s Nursing Home resulting in avoidable delay.

Therefore, the O.P. is directly to pay Rs. 2,00,000 (Rupees two lacs) as compensation for deficiency in service and Rs. 5000 (Rupees five thousand) as cost of the complainant including the cost of appeal. The above amount will be payable within 2 months from the date of this order failing which a further amount at 9% by way of interest shall be payable. Appeal allowed.