ASHOK KUMAR RAI vs SEEMA SINGH

THIS Appeal is directed against the majority order of the State Consumer Disputes Redressal Commission, Lucknow, U.P. (for short "State Commission") in Complaint Case No. 20 of 2004. By the impugned order, the State Commission held that there was negligence on the part of the Appellant in treating the Complainant and directed the doctor to pay ?1,50,000/ - to the Complainant from the date of the receipt of the order failing which it would attract an interest of 12% per annum.

BRIEFLY stated, the material facts are that the Complainant, a pregnant lady, approached the Appellant Doctor on 13.2.2004 with abdominal pain and on examination, he detected excess collection of fluid in the abdomen. She was treated as an inpatient from 13.2.2004 till 17.2.2004. The Complainant pleaded that in order to avoid extra expenses, she had taken a room on rent, neighbouring the hospital and was staying with her in laws and undergoing treatment. On 2.3.2004, she was again admitted in the hospital for abdominal pain and the Doctor prescribed some medicines and informed her that the expected date of delivery would be 15.3.2004. The Complainant averred that on 15.3.2004 and on 16.3.2004, the treating doctor pumped out fluid from the abdomen. Once again, on 17.3.2004, the Complainant suffered pain in her abdomen and was admitted in the O.P. clinic at 6.00 P.M. The nurse examined her and informed the attendants that there was no foetus movement of the child in the womb and that the child had already died.

THE Complainant pleaded that inspite of repeated requests from her family attendants, the Doctor had insisted on conducting an ultrasound scan and did not take any steps to perform the delivery by caesarean operation. The Complainant contended that the Doctor did not treat the patient till 6.00 P.M. the next day, though she had become bluish in palor. The dead child was also not removed from the womb. On 18.3.2004 at 5.15 P.M., a second opinion was taken from Dr. Anirudh Singh who had operated upon the patient and removed the dead child. It is the Complainant''s case that on 17.3.2004, had the Doctor repeatedly monitored the foetus at regular intervals of 15 minutes and had he scanned the ultrasound also at regular intervals, the child could have been saved. It is the further case of the Complainant that Dr. Anirudh Singh and his co -doctors opined that had the operation been delayed beyond 6.30 P.M. on 18.3.2004, the Complainant would have died. The Complainant contended that her physical condition had weakened after discharge from the second hospital i.e. on 28.3.2004. It is her case that Dr. Anirudh Singh had opined that in her present condition she cannot conceive for the next two years. The Complainant further pleaded that the Appellant had demanded huge amounts of money from her but was negligent in treating her which led to the death of the unborn child. The Opposite Party filed his written version denying all the allegations of negligence and pleaded that the Complainant had first approached him on 13.2.2004, in her eighth month of pregnancy, with abdominal pain, for which he had treated her as an in -patient till 17.2.2004 and thereafter she had contacted him again only on 2.3.2004, when she was admitted for a day. He had informed her that the expected date of delivery was 15.3.2004. Subsequently, the patient had approached him only on 17.3.2004 at 11.15 P.M., by which time the child was found dead in the womb. The Doctor had opined that the ultrasound report taken on 18.03.2004 (Page -122 of Annexure -VI) showed that there was no foetus movement and as per the normal medical procedure he had waited for spontaneous delivery as the operation could not be conducted in such a complicated situation and natural expulsion would automatically take place after sometime. The patient''s family tried to compel him to perform a caesarean operation which he had refused to do and the patient''s attendants had left the clinic against medical advice and approached Dr. Anirudh Singh, who is a general Surgeon and not an Obstetrician or a Gynaecologist.

IT is further stated by the Doctor that as per the prescription of Dr. Anirudh Singh, the caesarean operation did not indicate any decomposition or any injury to the Complainant''s body. It is only an assumption that the patient would have died if delivery had not been conducted by Dr. Anirudh Singh by caesarean operation. The Doctor filed the Medical Literature relating to Intrauterine Foetal Death (IUD) which provides that there is a chance of high risk in IUD and spontaneous delivery should be awaited. Only in an emergency, decision of caesarean delivery should be taken. The Doctor pleaded that there was no negligence in his line of treatment as he had conducted the necessary tests and followed conservative treatment as prescribed in the standard norms of medical literature.

THE State Commission based on the evidence adduced and the pleadings put forward held that there was negligence in the treatment of the Complainant and directed the Opposite Party Doctor to pay ?1,50,000/ - to the Complainant within two months from the date of receipt of the order failing which the amount would attract an interest of 12% per annum. The State Commission also observed that if the Opposite Party is insured, he can recover the amount from the concerned Insurance Company after fulfilling the required formalities. There was a dissent order by one of the Members who dismissed the complaint on the ground that there was no negligence by the Doctor.

AGGRIEVED by this order, the Appellant doctor preferred this Appeal.

WHAT constitutes medical negligence is well settled through a catena of decisions of the Hon''ble Supreme Court, including in Jacob Mathew Vs. State of Punjab and Anr., 2005 6 SCC 1, a three Judge Bench decision; Indian Medical Association Vs. V.P. Shantha and Ors., 1995 6 SCC 651. Noted from these judgments, the broad principles to determine what constitutes medical negligence, inter alia, are: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; and (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. In this connection, in Jacob Mathew the three Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury''s Laws of England (4th Edn., Vol.30, para35), as follows: "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; "

WE shall, therefore, examine the allegation of medical negligence on the basis of the afore -mentioned broad principles: Firstly, we address ourselves to whether the Appellant adopted the normal practice of medical parlance while treating the Respondent in terms of clinical treatment and conducting diagnostic tests?

THE facts not in dispute are that the Respondent was admitted in the Appellant''s Hospital with abdominal pain on 13.2.2004 and was treated for the same upto 17.2.2004. A brief perusal of the prescription slip dated 13.2.2004 issued by the Appellant, herein shows that the patient had first approached the Appellant on 13.2.2004 with abdominal pain and the preliminary tests were done to check parameters like Blood Pressure, level of Haemoglobin, type of blood group, HIV status, monitoring of foetus etc. It is clearly stated in the prescription that the expected date of delivery was 15.3.2004. An ultrasound scan was also done and the report dated 13.2.2004 showed that there was foetus movement and mild polihydromnus. The record of the medicines administered during the treatment period has been filed.

AS per the Respondent''s version, she had taken a room in the neighbouring house and was continuously treated by the Appellant from 13.2.2004 onwards. She also stated in her complaint that the Appellant had drained fluid from her abdomen on 15.3.2004 and 16.3.2004 but did not file any prescriptions or treatment record to evidence the same. On the other hand, we observe from the prescription on record that the Respondent had approached the Doctor again only on 2.3.2004 with abdominal pain and the Appellant had clinically examined her and wrote TERM SIZE FHS +ve CEPHALIC PRESENTATION and advised pain killer for five days. It is also noted in the prescription that foetus movement was ''present''. It is the Appellant''s case that as the ultrasound on 13.2.2004 did not show any abnormality and as the foetus movement and heart rate on 2.3.2004 were normal, he did not admit the Respondent as an inpatient, but prescribed Dynapar and tablet Brucodin. Thereafter, admittedly the Respondent approached the Opposite Party on 17.03.2004 once again with abdominal pain and the Doctor based on the ultrasound scan report dated 18.3.2004 observed that there was no foetus movement and advised conservative management of natural expulsion of the dead child.

THE Appellant herein had conducted all the preliminary tests as can be seen from the Pathology Report of Savitri Nursing Home dated 13.2.2004 as under: JUDGEMENT_12_LAWS(NCD)4_2015.htm

THE prescription dated 13.2.2004 clearly shows that the patient had visited the Appellant doctor for the very first time in the eighth month of her pregnancy. It is pertinent to note that the previous medical records of the patient herein i.e. the treatment record of the previous eight months of pregnancy has not been filed before the Commission. The importance of the patient''s medical history in a case like this cannot be undermined. The Respondent is silent about this period.

IT is the Respondent''s case that on 17.3.2004, frequent foetus monitoring at regular intervals of 15 minutes and ultrasound scan at regular intervals was not done and because of this the Doctor could not save the child. This allegation of maintaining such a frequency of monitoring and scanning by the Appellant is not supported by any Medical Literature. The record does not show that the patient had ever visited the Doctor between 2.3.2004 to 17.3.2004. It is an admitted fact that on 2.3.2004 (page -118 of Vol.VI) the foetus movement was present which is also evidenced in the test report. If the patient had approached the Doctor in the interim period between 2.3.2004 and 15.3.2004 which is the expected date of delivery, it would have been possible for the Appellant to conduct the foetus examination but there is no material on record to evidence that the Respondent had visited the Appellant''s hospital in this interim period and that the Appellant had negligently not conducted the necessary tests. To reiterate, we observe that the Appellant had conducted the ultrasound examination (p. 112 of Vo.VI) on 13.2.2004 and also checked the foetus movement on 2.3.2004 and when the patient had not visited the Respondent, it was not possible for the Appellant to conduct any further examinations.

A brief perusal of the causes of IUD would give us a better understanding if the Appellant had taken the necessary precautions.

THE SLCOG National Guidelines (References: (1) Fretts RC Maternal age and fetal loss. Older women have increased risk of unexplained feal death, Br. Med J 2001; 322 (7283): 430 (2) Showghy S. Milaat W. Early teenage marriage and subsequent pregnancy outcome, East Med Healt J 2000; 6(1): 46 -53. (3) Kiely J L. Fetal death during labor. Am J Obstet Gynecol 1985; 173:721 -27 explains the causes of Intra -Uterine Death and the precautions to be taken are as follows: " 3.1 Scope of the Guidelines The death of a foetus at any stage of pregnancy is a tragic and a very sensitive event and the obstetricians aim is to; - Establish the diagnosis - Investigate the cause - Delivery - Subsequent counselling of the parents.

3.3 Prevention/Prediction -Prenatal screening for Blood group, viral infections. - Prevent early marriage and pregnancy (Showghy has stated that pregnancy at the age of 16 years and less can increase the IUD risk factor by 4 times). - Better education can directly influence the implementation of reproductive health. - Several causes like chromosomal abnormalities, are not preventable even with modern medical knowledge, whereas others like post -maturity are completely preventable. - Intrauterine fetal death secondary to Rh isoimmunisation can be prevented with correct administration of anti -D 1g. - Proper prenatal care.

- Proper Diabetic and other diseases control. (Hypertension, SLE, Antiphospholipid syndrome, etc.) - Fetal monitoring for cases with the high risk can lead to prevention of IUD. - Ultrasound can be used to diagnose placental situation and is prediction of IUD.

3.4 Diagnosis The absence of fetal heart sounds remains the mainstay of clinical diagnosis supported by lack of fetal movements and regression of uterine size. Auscultation of the fetal heart by Pinnard stethososcople is dependent upon the experience of the operator, and reported lack of fetal movement by the mother may be unreliable. The ultrasonic examination confirms the diagnosis. USS diagnosis of death is recognized by an absent fetal heart pulsation, skull collapse and retraction of brain tissue. An attempt should always be made to determine the cause of the fetal death because this may dictate further management. Sometimes there are situations where advice should be given for delivery without delay. The presence of ruptured membranes with retained dead foetus is a recipe for intrauterine sepsis. A major placental abruption is associated with a risk of rapid onset coagulopathy.

3.5 Complications Problems associated with retained dead foetus: -Infection, -Maternal distress -Psychological manifestations Depression, rejection of pregnancy, withdrawal, -Coagulopathy, - Rhesus isoimmunization in rhesus negative mother, - Necessity for surgical intervention and its concomitant complications. Coagulopathy only seems to occur after 16 weeks of gestation, and in general only when the dead foetus has retained in utero for more than 4 weeks.

DIC due to retained dead foetus dictates a necessity to empty the uterus. Spontaneous abortion or labour will occur in 80% of women within 2 weeks. Only 10% remain undelivered for more than 3 weeks.

GLEANED from this Literature, the broad principles to determine is whether Precautionary Measures (3.3) like prenatal screening, foetus monitoring and ultrasound examination were done to prevent IUD and the afore -mentioned reports establish that the Appellant had done so. Now with respect to Diagnosis (3.4), the ultrasonic examination did not show any complications like placental situation or ruptured membrane but instead was normal on 13.2.2004 when the patient first visited the Doctor. Therefore, it cannot be stated that the Doctor did not diagnose or prevent the onset of IUD. A brief purview of Complications (3.5) show that when she was examined by the Doctor on her first visit to him, the Complainant did not suffer from any such complications to warrant any extra care. It is stated that spontaneous abortion or labour will occur in 80% of women within 2 weeks.

IN view of the above, we are of the opinion that there is no negligence on behalf of the Appellant in so far as the Respondent''s contention that necessary diagnostic tests were not conducted. Secondly, we address ourselves to the contention of the Respondent that the Appellant was negligent in not performing delivery by caesarean section which could have saved the life of the baby and could have prevented further complications in the physical condition of the Respondent.

THE Doctor was present and submitted before us that he had advised conservative management only as per the Standard Medical Norms and drew our attention to Chapter -21 of the Text Book of Obstetrics by D.C. Dutta, in which Intrauterine Fetal Death (IUD) is explained as under: "Literally, intrauterine fetal death (IUD) embraces all fetal deaths weighing 500 gram or more occurring both during pregnancy (antepartum) death and during labour (intrapartum). But death of a fetus weighing less than 500 gram (before 22 weeks) has got a distinct ethology and is usually termed as abortion. Death during labour ends in delivery of a fresh stillborn and does not pose a problem for management. Thus for practical purpose, antepartum death occurring beyond 28 weeks is terms as intrauterine death. It usually results in the delivery of a macerated fetus. There is a gradual decline in the incidence of IUD. Preconceptional care during pregnancy and labour provision for prenatal diagnosis and selective termination in congenital anomalies are the possible reasons".

MANAGEMENT The patient and her relatives are likely to be upset psychologically but they should be assured of safety of non -interference. In about 80% of cases, spontaneous expulsion occurs within 2 weeks of death. The patient may remain at home with the advice to come to the hospital for delivery. If spontaneous expulsion fails to occur within 2 weeks, intervention should be done. Fibrinogen estimation should be done every week, if not twice a week. A falling blood fibrinogen level approaching 150 mg., should be arrested by controlled infusion of heparin.

WHAT emerges from the Medical Literature, is that in 80% of the cases, spontaneous expulsion occurs within two weeks of death. The patient may remain at home with the advice for delivery. If spontaneous expulsion fails to occur within 2 weeks, intervention should be done. It is the Appellant''s case that the procedure he had suggested is a time tested one and is certified by standard norms of Medical Literature.

WE glean from the afore -mentioned Medical Literature that treatment subsequent to IUD is of conservative management and no surgical procedure is suggested unless it is warranted by an emergency situation. Dr. Anirudh Singh, who had subsequently performed the caesarean operation, never stated that there was any kind of infection or bleeding or any physical complication which might have resulted from the non -performance of the caesarean operation by the Appellant. The contention of the Respondent that the Appellant should have performed the caesarean operation on 17.3.2004 and the baby would have been saved is unsustainable in the light of the fact that the patient never approached the Doctor between 2.3.2004 and 17.3.2004 and not even on the expected date of delivery i.e. 15.3.2004 for any sort of examination, but only visited on 17.3.2004, by which time the child had already died in the womb.

NOW we address ourselves to the opinion given by the Medical Board comprising of three Doctors namely Dr. Kanchanlata Pandey (MS), Dr. Alpana Rani Gupta (MS) and Dr. M.P. Singh (MD). The Medical Board opined as follows: "On the basis of documents available and facts on record the reason for the death of baby in the womb of Smt. Seema Singh cannot be fortified and the Medical Board is consented with the fact that Dr. Ashok Kumar Rai is not responsible for the death of the baby in the womb of Smt. Seema Singh".

THE Chief Development Officer, Deoria, in his report, opined that Doctor Rai has not committed any negligence and the Respondent''s treatment is not the reason for the death of the baby in the womb and only observed that the human touch expected by a patient from a Doctor was not exhibited by him.

ALL medical negligence cases concern various questions of fact and the burden of proving negligence lies on the Complainant and in the instant case it cannot be said that treatment of the Respondent by the Appellant was against the norms prescribed under the medical jurisprudence. Negligence has to be established and cannot be presumed. In the instant case, before coming to a positive finding, an expert opinion is necessary as the Commission cannot constitute itself into an expert body and contradict the Report given by the Medical Board unless there is something contrary on the record by way of an expert opinion or there are any medical treatise on which reliance could be based. Unfortunate though the incident is, the Complainant failed to establish negligence by examining any expert on the subject.

THE Apex Court while defining negligence has repeatedly laid down that so long as a Doctor follows the practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better method of treatment or more skilled doctor had chosen a practice which the accused had not followed.

IN Hucks v. Cole,1968 118 NewLJ 469, Lord Denning stated that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

WE rely upon the decision of the Hon''ble Supreme Court in V. P. Shantha s Case,1995 6 SSC 651, and Jacob Mathew s case,2005 6 SSC 1wherein it 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."

KEEPING in view the afore -mentioned discussions and the material on record, we are of the considered view that the treatment rendered by the Respondent herein is as per normal standards of medical practise and cannot be construed to be negligent or deficient in any manner. Therefore, we allow this Appeal and set aside the majority order of the State Commission in Complaint Case No. 20 of 2004 and consequently the Complaint is dismissed. No order as to costs.