DEVENDRA KANTILAL NAYAK vs KALYANIBEN DHRUVsHAH

THIS complaint is filed by Devendra Kantilal Nayak and his children against Dr. Kalyaniben Shah and New India Assurance Company Limited for negligence and deficiency in service-medical- for Rs. 11,00,000/- i.e., (Eleven lacs) with appropriate interest. The New India Assurance Company was joined as co-respondent at a later stage as the said Company has contracted to financially indemnify Dr. Kalyaniben Shah. The case is as under:

ONE Mrs. Shobhnaben, aged about 35 years residing at Vadaj, Ahmedabad and wife of Devendrabhai - the complainant and mother of co-complainants 2 and 3 the minors - a son and a daughter. Shobhnaben was a patient of Dr. Kalyaniben Shah during her last confinement which led to various complications and death due to negligence in medical management by Dr. Shah as alleged by complainant.

The said Shobhnaben was taken for the last time to Dr. Shah on 5.8.93 around 3.30 in the afternoon for "delivery" as per advice and instructions of Dr. Shah. She underwent caesarean section operation, delivered a baby girl but did not regain consciousness and ultimately died in early hours of 6.8.93 at V.S. Hospital where she was shifted around 10 p.m. previous day evening in "very serious condition".

DR. Shah is M.D. in Gynaecology and Obstretics and has her own private nursing home in New Vadaj area known as Pankit Hospital, The late Shobhnaben was registered with her as a patient for last some months and Shobhnaben was visiting DR. Shah as and when instructed by DR. Shah for management of her last pregnancy. As per records Shobhnaben had gone to Dr. Shah on 3.8.93 for routine check regarding her pregnancy and everything was reported to be "normal" and she was required to report on 10.8.93 or earlier if need arose.

ON 5.8.93, Shobhnaben started labour pains and she was taken to Dr. Shah for management. Doctor examined Shobhnaben and admitted for caesarean operation. Soon when husband specifically asked for blood etc., he was conveyed everything is "normal" and blood will not be needed and that operation will be over in % an hour. The complainant thereafter went home to manage for money etc. Meanwhile Dr. Shah obtained consent of complainant''s brother for operation on brother''s wife. When complainant returned to hospital, patient Shobhnaben was already taken for operation. At about 3.45 p.m. a baby girl was delivered by operation and was shown outside the operation theatre by Ayah to complainants and relatives and were informed that all was well with mother and baby and patient will be shifted to her room in a short while. Shobhnaben was not brought out of operation theatre till about 5 p.m. and only information that was passed to complainant and relatives was that everything was well and she will be brought "out" soon.

AT about 5.10. p.m. the complainant was requested to take blood sample to Karnavati Hospital/Laboratory for test and blood for transfusion. When the complainant failed to get blood from the said laboratory he called back to hospital on phone and was instructed to go to Green Cross Blood Bank in Paldi. As claimed by Dr. Shah she had not phoned Karnavati Blood Bank and the said blood Bank was unaware about the blood transfusion request. Further they did not have unusual group blood in stock. The blood group of Shobhnaben was unusual (i.e. A negative group).

COMPLAINANT''s father and brother had gone to Karnavati blood Bank and had sent the complainant back to Dr. Shah''s hospital and that they went for blood to Green Cross Laboratory. As soon as complainant reached Dr. Shah''s hospital he was soon sent to Dipdhara Nursing Home to fetch the ''monitor'' which he did. Mean- while a couple of bottles of blood also was arranged by the complainant''s brother and father. This happened around 6 p.m. All the while all the attendants were kept busy by asking for various medicines, blood etc. The attendants were busy getting money and medicines. On repeated asking only reply that was given was that everything will be alright and don''t worry. No one was allowed to see the patient.

As claimed, the opponent did not give any worthwhile information on patient and kept on asking for more and more blood. The request for blood was telecast and was also announced on A.I.R. The response was good and about 8 to 10 bottles of blood were managed and were being transfused. People also advised for removal of uterus for control of bleeding and was conveyed to opponent who neither gave true picture of patient''s condition nor acted on the said advice and the relatives were told by opponent that" you cannot understand anything and do as you are said."

WHEN the complainant and his father and relatives showed their displeasure and anguish in a harsh way a few relatives were shown the patient in operation theatre one after another and they were aghast to see the patient and operation theatre''s condition which were all blood soaked including the staff doctors in operation theatre. The doctors were scared and speechless and when repeatedly pressed said patient was serious and will have to be shifted to V.S. General Hospital and relatives were asked to arrange for ambulance. The relatives reprimanded the doctors and told them rather than wasting 5 hours you should have informed us in good time and we should have been informed immediately. The doctors remained silent. Ambulance came around 10 p.m. and patient was shifted to V.S. Hospital around that time and was accompanied by doctors Patient was first taken to Gynea department but was told to take the patient back to casualty department because patient was seriously bleeding and unconscious and that the operation was already done. Medico legal formality was done and patient was registered. Meanwhile patient had died when police came for statement. Since complainants were unaware of facts and were all disturbed did not press the complaint against doctor then. Post-mortem of patient was done, says complaint.

AFTER cremation etc. when inquired we came to know that patient had problems from word go and doctors kept on compounding their ''mistakes''. This was told to us by Anaesthetist. Initially it was thought that excessive bleeding was the result of defect in coagulation mechanism of blood but same was ruled out subsequently by laboratory tests. Complainants were informed by various persons including experts, that entire happening was because of Back of the knowledge, care and improper handling of case by opponent and outcome - death - would have been avoided by removal of uterus and other appropriate measures of care in operation and management. This was the duty of a qualified doctor which the doctor had totally failed and patient died. All the reports pertaining to the patient from before the operation till very ends were in possession of opponents and complainants were never given the same or explained about them and this was done with ill-intention and motive.

THUS the death of Shobhnaben is because of total negligence of doctor leading to excessive bleeding.

POST-mortem also notes the cause of death as negligent surgical procedure and its consequences. The hospital also bears the Board of Sonography Clinic and no such facility are available. The complainant also came to know of some incidents where the opponents were required to pay compensation to other patients for their negligence.

The complainants, therefore, submit that in the interest of justice and public at large since said doctor does negligent practice due legal actions be taken.

THE complainants further state that the opponent has failed in her duties and has shown negligence in management of said Shobhnaben which ultimately led to her untimely death. Complainant, therefore, on various counts mentioned in his complaint asked for said compensation of Rs. 11 lakhs.

THE opponent has submitted written statement (Ext 8). THE material facts therein are as under: 1. Opponent accepts, patient was admitted on 5.8.93 but refutes the claim that patient was kept in operation theatre for more than 5 hours. That the facts were suppressed or that opponent made any blunder. THE opponent does not accept the cause of death of Shobhnaben due to gross negligence during surgical treatment. Opponent refutes the charges of lack of reasonable care or standard skill during operation. Opponent also does not agree that complainant cannot be compensated by money. 2. Opponent admits that patient Shobhnaben was under her treatment since last one year and the opponent knew her blood group. 3. Opponent states that she has not done her sonography nor discussed the result of same as being abnormal or discussed anything regarding terminating pregnancy. 4. Opponent on 3.8.93 did not say everything was ''normal'' and that she should come back on 10.8.93. 5. Opponent says on 5.8.93 at about 3 O''clock when she was brought to her she was serious. She had previous history of caesarean operation and dead baby was delivered. It was also reported that she had delivered children 12 and 6 years before and child had died (Not mentioned how delivered or died.) 6. Shobhnaben consulted the opponent on 18.2.93 in ante-natal period. She was advised sonography which she underwent and report was seen. This was around 19.4.93. Sonography had shown placenta previa grade III (three). THE report and condition was discussed with patient and relatives. Seriousness of situation was explained and planned, caesarean operation was advised. 7. Patient when came on 3.8.93, patient was explained high risk of life in placenta previa and was advised operation on same day which patient refused and refused hospital admission also on 5.8.93, patient came with severe bleeding. Patient was examined and treatment given Patient bled further and was advised emergency operation after explaining patient and relatives and consent was obtained. Pathology laboratories were informed by phone to manage proper blood. Dr. Suresh Patel, Anaesthetist was called. Another Gynaecologist Dr. Sandeep Shah was called as" abundant caution". Anaesthetist was informed about bleeding and low blood pressure etc. and that it was a case of placenta previa Gr. III. Dr. Patel gave spinal anaesthesia and operation was started by vertical incision. Baby was delivered and placenta was removed. Placenta was adherent. During the procedure patient''s condition was deteriorating. THE third Gynaecologist Dr. Kamal Jani was requested to visit nursing home for help. THE measurers to stop oozing from placental bed was continued by packing etc. and when all was thought well abdomen was closed. Since Dr. Patel could not manage patient well another Anaesthetist was called to help him (Dr. Rashmin Sanghvi) and patient was given necessary treatment. Since the patient''s condition deteriorated and it was decided to shift the patient to V.S. or Civil Hospital, with consent of relative of patient. Patient was given due care and treatment and inspite of all attempts patient could not be revived. THE opponent further states that she never told the patient or relatives that this was ordinary operation and that no blood was required. It is denied that complainant''s brother''s consent was obtained when complainant was away .It is also submitted that patient had to be kept in operation theatre because of her serious condition and that this fact was known to relatives. In the operation theatre all possible treatment was given to patients, it is submitted.

It is further stated that blood Banks were informed (No names or details about request given) before the operation. It is also stated that blood samples were taken and sent before operation. (Not mentioned when and where the samples were sent and with whom). It is stated that monitor was asked only as accessory and not as necessity by Anaesthetist. Patient was transfused 8 bottles of blood and patient did not suffer because of want of blood. It is stated that uterus removal was not necessary and complainant and opponent had no talk about the same. It is denied that there was profuse bleeding. What scene was described for operation theatre is not true. It is admitted that police formalities at V.S. Hospital was done by the complainant. It is stated that bleeding had stopped but patient had gone in irreversible shock and general condition of the patient was not good. It is stated by opponent that post-mortem report is not correct and malafide. It is stated that death is not due to negligence of opponent and that operation was done well and whatever the complainant or post mortem report states are not true. The opponent has asked for second opinion on post-mortem report and that is awaited. The opponent says she is not liable to pay any compensation and that Shobhnaben was not a healthy person (no details given). It is submitted that complainant has not paid any professional charges to opponent and that complainant has not spent Rs. 25,000/- for blood, medicine etc. Medicines were also prescribed by Anaesthetist. All averments by complainants suffered and being suffered are denied and it is stated that complainant is not entitled for compensation of Rs. 10 lakhs and complaint should be dismissed. Opponents subsequently requested for joining the Insurance Company as respondent (Ex. 9) (which was granted by Commission). Opponent No. 2-Insurance Company has filed the written statement denying charges and that no privity of contract existed between the complainants and opponent No. 2. Therefore, complaint be dismissed. The opponent No. 2 adopts the arguments of opponent No. 1 and limits its liability to Rs. 6 lakhs only in case compensation is awarded (Copy of policy at page No. 66).

AS regards the evidence. Dr. R.S. Bhise, Forensic Expert gave evidence (Ex. 21) has denied experience of Gynaecology. Doctor has not noted any evidence of previous operation on uterus of Shobhnaben. The post-mortem report was prepared by Dr. Bhise and Dr. Desai jointly and signed by both of them. Dr. Bhise has not noted loss of teeth of Shobhnaben. The other information in evidence are of clinical and theoretical nature and is said out of personal experience in subject which is of limited value as Dr. Bhise is not a clinician. Dr. Bhise is unaware about second opinion asked on his report and states that his report is correct and non-biased. Dr. Bhise prepared the P.M. report before the histopathological examination report but finalised the report after receiving it. Dr. Bhise is unable to give specific time since death when P.M. was done to the extent of 24 hours.

ON perusal of post-mortem note it is noted that Shobhnaben had 1.8 litres of haematoma in peritoneum. Uterus was bulky, plenty of blood clots were seen around suturing in various planes. It was also noted that some branches of uterine artery showed ante-mortem cuts and they were not ligated and there was large baematoma around it. Uterus also was repaired deficiently. The cause of death is shock as a result of intra-abdominal haemorrhage following negligent surgical procedure and repair. Histopathological reports are non-contributory. Dr. Suresh Patel is an Anaesthetist. He has personal knowledge of facts and circumstances of case in question. After reaching the hospital he inquired with Dr. Shah about paitent''s condition and availability of blood for transfusion. He was told by Dr. Shah that blood availability is confirmed (Page 101). He examined the patient. Her vital parameters were normal and patient was found fit for Anaesthesia. Patient was given pre-operative medication and spinal anaesthesia was given. After anaesthesia and before permitting the surgeon Dr. Patel confirmed that all was well, her pulse, blood pressure were normal. After delivery of baby anaesthetist noted that patient was "heavily bleeding" from operation site. Anaesthetist asked for the reason - cause of bleeding but Dr. Shah could not "confirm" it. Appropriate injections were given but blood pressure dropped to 96 m.m. Hg. Systolic. Dr. Patel says that Dr. Shah was unable to control the bleeding. Dr. Patel continued medical measures to control the fall of blood pressure by injections etc. Time and again Dr. Patel asked the surgeon to control the bleeding but she could not control the bleeding. Dr. Patel was worried about non-availability of blood and deteriorating condition of patient. Patient''s condition was critical at about 5 p.m., because of continued bleeding. Blood pressure was non-recordable, Radial pulse was absent. Dr. Rashmin Sanghvi another anaesthetist came to assist Dr. Patel around 5 p.m. Blood was demanded but was not available. Two bottles of blood arrived at 6 p.m., blood was tested for blood clotting disorder and in hour 3 bottles of blood were transfused. Meanwhile bleeding per vagina increased and abdomen was distended, medical measures were continued to control patient''s condition. Blood reports for clotting mechanism were normal.

At about 7 p.m. patient''s relatives were brought in the operation theatre and patient was shown to them, patient was semi-conscious. Patient was not responding well to verbal command and at about 8.30 p.m. Dr. Shah informed the patient''s relative to shift the patient to V.S. Hospital and patient was shifted to V.S. Hospital around 9.30 p.m. Patient was serious then.

DR. Patel was subsequently examined as witness wherein he have the following information: - DR. Patel confirmed the statement and his signature. - DR. Patel had made anaesthesia note which later on was handed over to DR. Shah. - DR. Patel says his notes are correct. - DR. Patel states that it is untrue that in collusion with patient''s relative he had created case against DR. Shah. - DR. Patel further states that he is unaware why another Gynaecologist DR. Sandip Shah was asked to remain present. DR. Sanghvi came to assist him. I am competent to manage case independently. DR. Patel has not mentioned the role played by DR. Sanghvi in his note but he has mentioned about him in his sworn statement starting on page 99). He had examined the patient Shobhnaben pre-opera lively and she had no bleeding per vagina. He was given to understand by DR. Shah that patient is having placenta previa and abdominal pain and hence emergency surgery is indicated. He had not confirmed whether blood had arrived in hospital, but DR. Shah had told him blood is available. Because police took his statement, he came to know that police case was filed against DR. Shah. He had even beard about it before also. He could not say about surgical part of operation. He said that in case of bleeding p/v and placenta previa general anaesthesia is generally given but in case of Shobhnaben it was not necessary to give general anaesthesia. He has not erred by giving spinal anaesthesia to Shobhnaben and it is wrong to say that patient deteriorated because of his mistake in anaesthesia and anaesthetic procedure. DR. Kamal Jani was called when half of the operation was over. DR. Patel says that it is not true to say that sufficient blood was available during surgery. It is true that blood transfusion was started during surgery. DR. Patel states this is his first case of placenta previa with pain in abdomen in three such cases that he had conducted. There are pages of "opinion" by Dr. R.M. Jhala from pages 151 to 156. It is not clear who and why his opinion was asked. It is also not clear in what capacity Dr. Jhala has given this opinion. Further, about which case he had given this opinion. It is not titled even. Dr. Jhala does not refer his opinion by name, number, date or any worthwhile indentifiable parameter and for what purpose. Dr. Jhala is neither examined nor he has made any statement regarding present case (particularly by opponent who produced Dr. Jhala''s report). There are innumerable medical references given but none of them is comparable to present situation and serves no purpose for complainant or opponent. This seems to be the exercise in futility.

THERE is material difference in statement of Dr. Shah-opponent No. 1 and Dr. Patel Anaesthetist. Dr. Shah has said patient was serious on arrival and blood pressure was low. Dr. Patel says exactly opposite. Patient was fit and well. Her pulse and blood pressure were normal. Dr. Shah says patient had bleeding per vagina but complainant and Dr. Patel Anaesthetist deny the same. Dr. Shah has produced two sets of case paper both xerox. No original copies are presented though complainant''s representative has asked for the same. The Advocate of opponent Dr. Shah has stated that they do not have any other documents than already submitted. Opponent does not clarify as to how two different sets of case paper are supplied in Commission and other to the Investigating Committee and what happened to the original papers. Also it does not explain disparity in both papers. Dr. Lilaben Trivedi was called as a witness because she was Chair-person of Committee appointed by Medical Council of Gujarat who also instituted inquiry in the present case; the complainant had also written to Gujarat Medical Council complaining against opponent. Committee was provided with case papers relating to said Shobhnabem, post-mortem reports and presumably certificates of blood Banks addressed to President of Medical Council. Dr. Trivedi admitted knowing Dr. Jhala but said she and Committee were not knowledgeable about the report of Dr. Jhala (It is not clear as to why Dr Jhala''s report was sought and who sought). Essentially, Dr. Trivedi, apart from giving general information available otherwise, testified that Committee''s report was independent and unbiased but utterly failed to expalin why and how so many paragraphs of Dr. Jhala''s report were incorporated in Committee''s report ditto to ditto. No change even in coma or full stop. The same was the case as far as final inference and last paragraph was concerned. It is beyond all the possibilities of such occurrence and it is natural to infer that Committee prepared report on basis of Dr. Jhala''s report and did not apply the mind or investigated as it was expected. Further, certificates of blood Banks give date and time of information with such precision after passing of many months. When in one case date of certificate in the certificate is changed after writing and another certificate does not bear the date of issuing certificate, it is impossible to believe that blood Bank keeps records of telephonic information for so many months to the said precision but when comes to issuing certificate the date on which certificate is issued is either wrongly written as in one case and totally omitted in another case (Pages 143,144).

THE opponent inspite of request has failed to present for cross examination by complainant and therefore statements of opponent remain unproven and cannot be accepted as evidence. No independent, uninvolved (directly or indirectly) expert has been called on to confirm the claims of opponent or refute the charges of complainant. While it may raise some doubt regarding the post-mortem report as far as writing the mode of death is concerned. "THE cause of death is shock as a result of intra- abdominal haemorrhage following negligent surgical procedure and repair". THE other findings and corroborative evidences are sufficient to say that patient died because of exsangination which in present case, with due deligence and advance precaution, could have been prevented.

SUBMISSIONS of complainant and opponents in writing do not materially change the facts, situation or inferences. It, therefore, transpires that approach has been negligent in medical management of Mrs. Shobhnaben which ultimately resulted in her death and therefore the said opponent is liable to pay compensation to the complainant. In assessing compensation, we may take into consideration the principles or basis on which compensation is assessed or computed in cases arising out of motor accidents. Deceased Shobhnaben was a housewife and according to the complainants, she was also earning income by doing some tailoring work. However, there is no satisfactory evidence to prove that the deceased was doing tailoring work. The value of services which the deceased was rendering to her family could be safely assessed at Rs. 1,500/- per month or Rs. 18,000/-p.a.If l/3rd of this value is deducted for the services which the deceased was rendering to herself, the value of the benefit of services which the complainants have lost could be assessed at Rs. l, 000/-p.m.or Rs. 12,000/-p.a. Having regard to the age of the deceased, it would be appropriate to apply multiplier of 15 to compute compensation payable to the complainants. If so worked out, the compensation payable to the complainants would come to the Rs. 1,80,000/-. In addition to this amount, the complainants are also entitled to claim Rs. 20,000/- for loss of expectancy of life and Rs. 10,000/- for pain, shock and suffering of the deceased. It may be recalled that before the deceased died, she had suffered pain and shock due to bleeding etc. The complain ants have stated that they had toincure expenditure of Rs. 25,000/- for the medical treatment of the deceased. This expenditure is including amount spent in buying medicines and blood bottles. There is no reason to disbelieve the statement made by the complainant. Thus, the total compensation payable to the complainants works out to Rs. 2,35,000/-.

Out of the three complainants, two are minors. We, therefore, direct that Rs. 70,000/- should be invested in Fixed Deposit with a nationalised Bank or in Unit Trust of India in the name of each of the two minors. The amount will remain so invested for a period of 10 years in case of complainant No. 2 Siddharth and 15 years in case of complainant No. 3 Swatiben. Complainant No. 1 shall, however, be entitled to withdraw interest payable or receivable on said investment for the welfare, maintenance and education of two minor complainants. It shall, however, not be open to the complainants to raise any loan on the said investment or create charge over it to secure any loan or otherwise. Complainant No. 1 shall be entitled to the balance of the amount.

IN the result, the complaint is partly allowed and the opponents are directed to pay to the complainants Rs. 2,35,000/- together with interest @ 12% p.a on Rs. 2,00,000/- from September 1,1993 till realisation and cost of Rs. 5,000/-. The amount of Rs. 70,000/- together with interest payable thereon shall be invested in the name of each of the complainant numbers 2 and 3 who are minors as directed above. The balance of the amount including cost shall be paid to complainant No. 1.

Complaint partly allowed with costs.