GOVIND SHAMRA vs SEVAYATAM HOSPITAL SODALA

Challenge in these two Revision Petitions bearing Nos. 3540/2008 and 3874/2008 filed by the Complainant and the Hospital respectively, under Section 21-b of the Consumer Protection Act (for short "the Act"), are to the Appeals bearing No. 362 and 339 of 2004 respectively on the file of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (for short "the State Commission"). By the impugned order the State Commission partly allowed the Appeal of the Complainant and directed the Opposite Party Hospital to pay compensation to the Complainant of Rs.2,00,000/- and further directed that out of the same, a fixed deposit of Rs.75,000/- to be made in name of each of the children for the period till they attained majority. However, the Appeal preferred by the Hospital was dismissed.

The brief facts stated in the complaint are that:-

The Complainant''s wife was treated in the Opposite Party Hospital and had undergone tests on 01.06.1998, 24.07.1998, 31.07.1998, 15.09.1998, 26.09.1998 and 10.10.1998. The Complainant pleaded that sonography and the relevant urine and blood tests were done and on 13.10.1998 the Patient was admitted in the Hospital for delivery. It is averred that the Complainant''s wife had delivered twins and that her hemoglobin was only 7.5 gm and that she was anemic, but proper care was not taken because of which she died due to postpartum hemorrhage. The Hospital was in the knowledge of the Patient''s condition with respect to anemia but did not take proper steps for procuring the blood on time and she was referred for blood transfusion to Zanana Hospital. The Complainant pleaded that when facility of blood transfusion was not available with the Opposite Party Hospital, knowing that the patient was anemic and was going to deliver twins, it should not have accepted the case of emergency delivery. Hence the complaint seeking directions to the Opposite Party to pay a compensation of Rs.4,64,000/- which includes Hospital expenses, loss of love and affection, mental agony and physical pain.

The Opposite Party filed their reply admitting that the delivery of the Patient had taken place at the Hospital and that she had delivered twins and that the consent was taken from the Patient''s mother and that all the preliminary necessary tests were done and the results were found normal. The Hospital denies that the hemoglobin of the Patient was only 7.5 gm and pleaded that on 01.06.1998 when the Patient was initially brought to the Hospital for treatment, her hemoglobin was 7.5 gm but thereafter by 01.09.1998, i.e. after three months, her hemoglobin percentage increased to 8.6 gm which level is found in 50% of the women in India and for which immediate transfusion is never done. The Hospital denies that the Complainant''s relatives had provided the necessary blood. There was no requisition given by them to the Complainant, nor the Complainant had produced any such documentary evidence. It was never disclosed to them as to whether the blood was brought for the Patient. They also deny that as per Medical Standard, at the time of delivery the hemoglobin ought to be 10 to 12 gm. They also denied that had the delivery been done by C-Section, the Patient would not have suffered from postpartum hemorrhage (PPH). PPH may arise even when sometimes uterus has to be removed.

It is pleaded that submissions of the Complainant are self-contradictory. The Patient had high blood pressure for which medicine Nicardia was given and the specialist gynecologist had treated the Patient and the twins were born by normal delivery. It is pleaded that when transfusion of blood became necessary, the Patient''s mother was requested for providing the blood, but she expressed her inability saying that she was a poor lady and therefore, the Opposite Party Hospital, thinking it proper that it may take a long time to procure the blood from Sawai Maan Singh Hospital or Health Welfare Centre which are both situated at more than a distance of 15 kms, referred the Patient to Zanana Hospital, Jaipur and had also taken care to take the Patient in their own ambulance along with two Hospital attendants accompanying the Patient. Sh. Radhey Shyam and Sh. Babu Lal, Hospital attendants themselves arranged for the stretcher and got the Patient admitted in Zanana Hospital where the blood was arranged and transfused. The Complainant did not attend to the Patient even for one day and only the Patient''s mother and the Hospital attendants had taken care of her. It is submitted that all necessary care and caution as per the standard medical parlance had been taken by the Opposite Party and no negligence can be attributed to them.

The District Forum based on the evidence adduced observed that the Patient was referred to Zanana Hospital at the time when her condition had become abnormal, whereas they should have arranged for blood transfusion in the initial stage itself and had they done so, the Patient could have been saved. Though the hemoglobin level had fallen, no steps were taken for arranging the blood and held that necessary precautions were not taken in the treatment of the Patient and allowed the complaint directing the Opposite Party Hospital to pay compensation of Rs.1,00,000/- and costs of Rs.1,000/-.

Aggrieved by the said order both the Complainant and the Hospital preferred Appeals No. 362 of 2004 and 339 of 2004 respectively before the State Commission.

The State Commission partly allowed the Complainant''s Appeal and increased the compensation from Rs.1,00,000/- to Rs.2,00,000/- and also held that out of the same a fixed deposit of Rs.75,000/- each was to be made in favour of the children till they attained majority. The State Commission observed as follows:-

"If the opposite party had asked the attendant to bring blood, then that was to be given requisition; but the opposite party itself has come with admission in its reply that no requisition was given to the complainant. The indoor ticket, which was produced in original, which is being made part of the record. Despite finding the lesser quantity & percentage of haemoglobin and that the patient was to give birth to twins, nor arranging for blood and not even instructing the complainant for bringing blood, shows that the opposite party respondent has been completely negligent in his regard. The post-mortem haemorrhage was obvious in the twins. If caesarean delivery was done, then due to lesser quantity of hemoglobin blood transmission was obvious. And if it was a normal delivery of twins then also there was every possibility of haemorrhage. In such a situation pre-arrangement for blood was very essential. It is also proved from the record that death of Smt. Usha occurred due to her animic condition. Considering on all the circumstances the learned Forum has delivered the detailed judgment in contravention there of no other conclusion seems not be possible. The conclusion, that death of Smt. Usha Devi was occurred due to negligence of the opposite party hospital, is confirmed. Appeal has also been filed on behalf of the complainant wherein he has prayed for enhancement of compensation. Only an amount of Rs.1,00,000/- has been ordered to be paid to the complainant by way of compensation, in regard to which the contention of the learned counsel for the complainant has been that this amount is in no manner sufficient. Due to death of Smt. Usha in her younger age, the twins could not have affection of mother, the children were deprived of nourishment by mother and they will also be deprived in future. For this reason the complainant claimed for compensation of Rs.4,64,000/- and prayed for payment of this amount. The plea was made on behalf of the opposite party hospital that the opposite party hospital has not been negligent in the delivery, occurrence of death due to merely anemic condition, the Opposite Party cannot be penalized in such manner that it may be directed to pay excessive amount.

..............................

Resultantly, the appeal of the Sevayatan Hospital is dismissed. Allowing the appeal of the complainant partly, it is ordered that the opposite party hospital shall pay compensation to the complainant and his children Rs. 2,00,000/- in place of Rs. 1,00,000/-; on payment of this amount, a fixed deposit of Rs. 75,000/- each to the children be made for the period till attaining majority by them. If any necessity is arisen prior to their attaining their majority, then the learned Forum using its discretion can pass an appropriate order".

Dissatisfied by this order both the Complainant and the Opposite Party filed these Revision Petitions. Ld. Counsel for the Complainant submitted that the statement of Dr. Kalyan Sahai Bairwa, Senior Doctor of Ladies Hospital, Jaipur shows that the Patient was in a very serious condition on 13.10.1998 and that the case was referred from Opposite Party Hospital with the report that the Patient had delivered twins at around 5.10 p.m. and 5.20 p.m. It is further stated by the doctor that he found the condition of the Patient to be serious, she was unconscious, pulse and B.P. were not recordable. Her family members were informed about the condition that there was shortage of blood in her body and that the chances of recovery were weak. The birth of the first child was done with an instrument and there was minor bleeding and he had filled the packing as normally done by everyone. Three units of blood were given but the Patient died around 11.30 p.m. In his statement he submitted that he cannot state whether the mistake was committed by the person who had performed the delivery but can only say that in case of twin children chances of PPH are increased. A complaint was also given to the Medical Council seeking action against the doctors on the ground of negligence.

The brief point that falls for consideration is when the hemoglobin level of the patient was around 8.0 gms% at the time of her admission in the Opposite Party Hospital, whether the delivery of twins ought to have been done by way of a C-Section and whether blood transfusion had to be given at the initial stage itselfRs.

Ld. Counsel for the Hospital submitted that decision whether to go for a normal or C-section delivery depends on various parameters and not merely on whether the delivery was for twins or not. He admitted that the level of hemoglobin was 8.0 gms% at the time of admission of the Patient but contended that it has not been substantiated by expert opinion that the Complainant''s wife should be termed as anemic and was in need of blood at the initial stage itself. In fact the Patient''s mother was present throughout and was explained the position, but the Complainant was never present and therefore the consent was also taken only from the Patient''s mother.

It is the Opposite Party Hospital''s case that the doctor had already informed on 10.10.1998 to the Patient''s mother that the Patient was anemic, at least two units of blood may be required at the time of her delivery. Indoor ticket was also given for requirement of two units of blood but as the Complainant himself was not present but Patient''s mother gave assurance that they were arranging blood and asked the Opposite Party to continue with the treatment. The patient''s attendants kept on giving assurance that the blood was being brought. It is the case of the Opposite Party that only because blood was not provided by the Complainant, in spite of requesting on 11.10.1998 itself the blood could not be transfused. On 13.10.1998 also a request was made to provide at least one unit of blood but the Complainant was not present. On 13.10.1998 till 7.00 p.m. the blood was not provided and therefore, the Patient was referred to the Zanana Hospital.

Ld. Counsel for the Opposite Party Hospital further contended that had the delivery been done by C-Section, PPH would not have occurred is totally wrong. According to medical science PPH can take place at any time.

It is observed from the material on record that the Patient was admitted on 10.10.1998 and the diagnosis as per the indoor ticket is primigravidae, twin pregnancy with anemia and PIH. She was discharged on 13.10.1998 and it is recorded in the indoor ticket that the first twin was delivered using low mid cavity forceps and the second twin was delivered through assisted breech delivery. This record proves that as on date of admission the Patient was diagnosed as having anemia. In such a situation the Hospital record does not show whether steps were taken to arrange for blood on that day itself. As per the typed sheet of the treatment record it can be seen that there was an instruction to arrange blood at least one unit on 13.10.1998 and on page 23 and 24 of the treatment record filed here clearly shows that the line "blood was not received" was inserted as it appears to be in a different hand-writing on 11.10.1998 and the sentence "arrange blood at least one unit'' appears only on 13.10.1998. Again on 13.10.1998 it is written "arrange two units of blood urgently." There is no time specified and it is not understood whether the requisition, if at all, was for one unit of blood or two units of blood. The medical record does not establish whether any blood was requisitioned on 10.10.1998, 11.10.1998 and 12.10.1998 but the Opposite Party Hospital itself had diagnosed the Patient to be anemic and bearing twins. In such a medical condition the basic care and caution as per the normal medical standards is to arrange for the blood of relevant blood group to be available for transfusion, if necessary. In the instant case the medical treatment records of the Patient do not show that any such steps were taken by the Opposite Party Hospital. It is also stated by Dr. Kalyan Sahai that the Patient had come to his Hospital on 13.10.1998 in a very serious condition and in requirement of urgent blood. He stated that in case of delivery of twin children chances of PPH are increased. The Opposite Party Hospital record also does not state as to how much blood was lost and in their reference sheet to Zanana Hospital it is stated that blood transfusion and exploration of tears should be done. A brief perusal of page 21, which is a part of the medical record filed by the Opposite Party Hospital in Vol.-I, the indoor ticket dated 13.10.1998 shows the consent given by the Patient''s mother Vimla Devi that the Patient was willing for forceps delivery, knowing all consequences. The contention of the Opposite Party Hospital that this is a valid contention is not sustainable in the light of the decision of the Hon''ble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1 in which the Apex Court had clearly laid down as follows:

"(i) A doctor has to seek and secure the consent of the patient before commencing a "treatment" (the term "treatment" includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.

(ii) The "adequate information" to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.

(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment."

Having evaluated the material on record, relied upon on behalf of the Opposite Party Hospital, in support of the plea that a valid consent has been obtained from the Complainant before the aforesaid delivery, it is opined that none of the documents meets the requirement of the ''informed consent''.

To reiterate, the bed ticket of the Hospital itself depicts that the Patient was anemic; delivered twins; first twin using forceps with episiotomy; second twin was assisted breach delivery; and therefore, it is all the more necessary in such a situation that precautionary arrangements ought to have been made for procurement of blood and if necessary blood transfusion. The medical records do not show that any such steps were taken. Even if the decision whether to go for normal delivery/caesarean depends on various parameters the fact remains that when the Patient was in an anemic condition delivering twins no proper care or caution was taken by the Opposite Party Hospital by making arrangement for blood transfusion.

I find force in the contention of the Complainant that the compensation of Rs.2 lakhs awarded by the State Commission for death of a 22 years old mother leaving behind two small children is meagre and should have awarded the amount prayed for i.e. Rs.4,64,000/- as the Complainant had lost congenial rights and also the love and affection of a wife and the children lost the love and affection of their mother. It is submitted that an amount of Rs.14,000/- were spent towards medical expenses, though a bill has not been issued and Rs.5,000/- for medicines. Rs.2,00,000/- are sought for compensation towards depriving of Complainant of love and affection of wife and Rs.2,00,000/- were sought for children who lost love and affection of a mother with Rs.50,000/- towards physical pain totaling to Rs.4,64,000/-. It is an admitted fact that the Patient was treated in the Opposite Party Hospital and that the Patient who died was only 22 years of age and no compensation was sought for with respect to loss of income as the Patient was not gainfully employed; the only compensation that was sought for was with respect to loos of love and affection and I find it a fit case to enhance the compensation from Rs.2,00,000/- to Rs.4,50,000/-. As observed from the record that though there is a concurrent finding of fact by both the Fora below with respect to negligence on the part of the doctor, the amount awarded for the death of a 22 year old woman leaving behind two young twins was only Rs.2,00,000/- without awarding of any interest by way of damages or by way of compensation.

For all the aforementioned reasons I find it a fit case for enhancing the amount awarded by State Commission from Rs.2,00,000/- to Rs.4,50,000/-, which is inclusive of medical expenses and loss of love and affection, to be paid within four weeks from the date of receipt of copy of this order failing which the amount would attract interest @ 9% p.a. An amount of Rs.2,00,000/- each to be put in Fixed Deposit in the name of the children till they attain majority and Rs.50,000/- to the Complainant.

In the result Revision Petition No. 3540/2008 filed by the Complainant is partly allowed and Revision Petition No. 3874/2008 filed by the OP Hospital is dismissed with costs of Rs. 10,000/-.