K.K. Kakkar vs Neetu Singh

FIRST Appeals No. 156 of 2004 and 163 of 2004 have been filed by Dr. K.K. Kakkar, Dr. Mrs. Kakkar and Dr. Vijay Singhal respectively against order dated 12.03.2004 of the U.P. State Consumer Disputes Redressal Commission (hereinafter referred to as the "the State Commission") passed in Complaint No. 351 of 1993. The State Commission vide the impugned order held them guilty of medical negligence in the treatment and medical care of Smt. Neetu Singh (hereinafter referred to as "the Complainant/Patient") during delivery of her child and directed them to pay Rs.9,00,000/ - (i.e. Rs.3,00,000/ - to be paid by each of the three Opposite Parties). Since these appeals arise out of the same consumer dispute, it is proposed to dispose them of through a single order by taking the facts from First Appeal No. 156 of 2004. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Smt. Neetu Singh as the Complainant/Patient, Dr. K.K. Kakkar as Opposite Party No. 1, Dr. (Mrs.) K.K. Kakkar as Opposite Party No. 2, Dr. Vijay Singhal as Opposite Party No. 3 and National Insurance Company Ltd. as Opposite Party No. 4.

FACTS : In the brief complaint filed on behalf of Smt. Neetu Singh by her father Shri Rajendra Singh before the State Commission, it had been contended that following labour pains at 6.30 pm on 25.05.1993 she was admitted in the Nursing Home of Opposite Parties No. 1 and 2 [Dr. K.K. Kakkar and Dr. (Mrs.) Kakkar] for her delivery. She was advised that a cesarean section was necessary, for which Opposite Party No. 3 (Dr. Vijay Singhal), an Anesthetist, was called to administer the anesthesia. During the course of the surgery, which was not "properly conducted", she suffered brain damage and became paralyzed. The parents of the Complainant/Patient, who were waiting outside the operation theater, were informed that the reason for this condition was because Complainant/Patient had suffered a heart attack during surgery. Being dissatisfied with the medical care and treatment, Complainant/Patient''s parents got her admitted to another Nursing Home called "Sheel Nursing Home", wherein they were informed that her brain had incurred severe irreversible damage. She was thereafter referred to Sanjay Gandhi Post Graduate Institute, Lucknow on 21.06.1993 and discharged on 17.08.1993 in a comatose condition. Since her condition was caused because of wrong medical treatment by Opposite Parties, the Complainant/Patient approached the State Commission and requested that she be awarded compensation of Rs.7,00,000/ - for proper care and maintenance throughout her life; Rs.1,00,000/ - for mental shock and agony; and Rs.1,00,000/ - for the loss of company of her husband and her newly born son.

On being served, Opposite Parties No. 1, 2 and 3 filed their detailed written statements and denied the allegations of medical negligence. According to them, the Complainant/Patient was admitted to the Nursing Home of Opposite Parties No. 1 and 2 at 6.30 pm on 25.05.1993 with labour pains and diagnosed with pre -eclampsia, which was evident from the high blood pressure, protein in the urine and swelling of the feet duly recorded in the bed head ticket. This potentially serious condition was medically managed by Opposite Parties No. 1 and 2, who are highly qualified Doctors, in their well -equipped Nursing Home. On 26.05.1993 at about 7.10 am it was noted that there were symptoms of fetal distress and since any delay in the delivery would have adverse complications for both the Complainant/Patient and the fetus, a cesarean section was performed after taking the consent of the relatives of the Complainant/Patient. While the Complainant/Patient was on the operation table and before being administered anesthesia, she had eclamptic convulsions and vomiting, which was controlled and throat suction was done. Anesthesia was administered by Opposite Party No. 3, a qualified Anesthetist. The cesarean section was successfully completed and the baby was taken out at 8.13 am. Thereafter the Complainant/Patient was shifted to the recovery room with oxygen. Because of delayed recovery from anesthesia two Specialists Dr. Ajit Sawhney, MD (Medicine) and Dr. Pankaj Bansal, who was called by the relatives of the Complainant/Patient were consulted, and who after seeing the Patient endorsed in writing that the medical treatment by the Opposite Parties was in order and should continue. Her present condition was, therefore, attributed to the fact that the relatives of the Complainant/Patient took her away without informing the Opposite Parties and without the required ambulatory and oxygen support during transit. By way of preliminary objections, it was stated by the Opposite Parties that since the Complainant/Patient had paid no consideration for the treatment, the complaint was not maintainable under the provisions of the Consumer Protection Act, 1986. Further, it was bad in law since no expert evidence had been produced to substantiate the allegations made in the complaint. It was also stated that since the complaint had been signed and verified by father of the Complainant/Patient and not by her, it was not maintainable since her father is not a ''consumer'' within the purview of Section 2(1)(d) of the Act since neither any goods had been sold nor had he hired the services from the Opposite Parties.

THE complaint in this case was filed before the State Commission in 1993 but the orders were finally delivered after over 10 years on 12.03.2004. Reasons for delay have been explained by the State Commission in its impugned order. Also as pointed out by the State Commission during this period, the husband of the Complainant/Patient committed suicide on 20.01.1994 and subsequently her father Shri Rajendra Singh, who presented the complaint on behalf of the Complainant/Patient, also passed away. Smt. Mithilesh Singh, mother of the Complainant/Patient was thereafter permitted to prosecute the complaint before the State Commission vide its order dated 09.05.1997. National Insurance Company Ltd. was permitted to be included as an Opposite Party since Opposite Party No. 3 had taken an insurance cover against medical negligence from the Insurance Company.

DURING the course of proceedings before the State Commission, affidavits of Mrs. Mithilesh Singh (mother of the Complainant/Patient) and Mr. Ram Chander Solanki (a relative of the Complainant/Patient) were filed. Opposite Parties also filed their affidavits in response to the affidavits of the above two persons. Further, medical records of the case as also extensive medical literature were filed by both the parties in support of their respective contentions. Additionally, the opinion of two medical experts was taken on record because as observed by the State Commission "When serious attempt was made to decide the complaint, serious questions confronted the decision necessitating the imperative need of obtaining experts'' opinion in the case before the issues were decided. Parties'' Counsels were requested to give names of two experts, one of whom should be dealing with Neurology and another with Obstetrics & Gynaecology. From amongst the names, Dr. Mazhar Husain, Professor & Head of the Department of Neurosurgery, K.G. Medical College, Lucknow and Dr. (Ms) Hem Prabha Gupta, Professor of Obstetrics & Gynaecology were requested to guide the Commission with reference to the facts available on the record ...". Apart from filing their affidavits based on the records of the case, the State Commission permitted cross -examination of the two experts by the Counsel for all parties and the State Commission also put some interrogatories to the two experts. On the basis of evidence available before it, the State Commission framed 3 questions, which it felt were pertinent to enable it to reach a decision in the matter. The 3 questions and the findings of the State Commission in respect of each of these is reproduced: Question -1

"What was the time of arrival of the complainant into the Nursing Home and what happened till she left the said Nursing Home."

Finding

"The extract of the views of the two experts do not leave any manner of doubt that at the time of admission and soon thereafter sufficient steps have not been taken for controlling the blood pressure if that was taken to be on the higher side. It is correct that only 12 -14 hours elapsed when her condition was said to have gone worse than she had at the time of admission. Such a condition obviously was preventable by administering adequate medicines and attempting to have the child delivered through caesarean section earlier than 7.45 hours of the next day. Only one conclusion was possible at the time of admission i.e. the patient was not having any immediate signs of pre -eclampsia much less eclampsia. If the doctors noted that she was having immediate presence of pre -eclamptic signs, steps could have been at once taken to prevent the eclampsia from overpowering the patient. Both these actions are absent. A child which got delivered at 8.15 AM on 26.5.93, still could have been taken out in the evening, night or in the earlier part of the morning of 26.5.93. Nothing prevented them from taking suitable steps to save the child as well as the mother. The statement of Dr Hem Prabha Gupta is very clear that it should have been better for the doctors in the Nursing Home to administer specific anti -hypertensive drugs. It is also her clear statement that what may have been excessive dose of scoline after the operation. Both these factors go to counter the claim of the opposite parties that since the patient had developed pre -eclamptic conditions, which suddenly turned into eclampsia at 7.45 AM on 26.5.93, that on the operation table the convulsions started, vomiting started, crepts started, with the result that steps to control them were taken which succeeded at once and the child was delivered, is undoubtedly an after thought. The allegation that the complainant was improving and may have improved further if not taken away from the Nursing Home is an allegation in futility as the damage to her brain was irreversible. The record of Sheel Hospital and SGPGI fully support the complainant''s version.

Dr. Mazhar Husain is also candid in his statement that hypoxic ischaemic brain damage is the result of the present state of affairs of the complainant Neetu Singh. Looking at the data available and the documents, i.e. alleged bed head ticket and the Anaesthetist''s report, it is obvious that there is no pathological confirmation of any of the allegations of the opposite parties about the meconium coming out of the child in the womb or that there was actual presence of albumin in excessive quantity so as to invite eclampsia to overtake the patient. The attempt on the part of Sri Chadha to argue that pathological report was removed by the complainant or her relatives is mentioned only to be rejected. If they were to carry away only the pathologist''s report they could very well have taken out the bed head ticket also.

After all one cannot brush aside the fact that the two learned experts belong to the same medical fraternity as the three opposite parties and were required to depose in a matter apparently having serious repercussion on the defendants. The responsibility on the experts was thus delicate and at the same time onerous. The Commission records its deep appreciation for the immense help extended by Dr Hem Prabha Gupta and Dr Mazhar Husain by appearing and deposing before it. Their opinion is undoubtedly painstaking, cautious, but at the same time adequately demonstrate actual realities which in turn shatter the defence pleaded by the opposite parties and the above noted extracted portions of their deposition fully fortify the findings recorded herein.

In view of the aforesaid discussion, it is held that Smt. Neetu Singh, complainant suffered brain damage due to medical negligence commencing from the time she was admitted in the Nursing Home of opposite party No. 1 & 2 which continued till she remained in the hospital including the period she was operated upon for caesarean delivery of the child and till the date she left the hospital as necessary precautions, obvious therapy, effective and careful treatment were not extended to her."

Question -2

Whether the documents produced by the parties are correct and reliable."

Finding

"Having thus dealt with the first issue, the second issue whether the documents produced by the parties are correct and reliable, it may be pointed out that though there are several omissions and commissions in the documents produced but since the complainant''s case is proved and certainly neither disproved nor rendered unproved by the opposite parties'' documents, no finding about their being otherwise or being not genuine is called for.

In the instant complaint as noted above, Smt. Neetu Singh is alleged to have developed all complications just at the operation table where the operation was duly performed, she delivered a male child and yet it is stated that she had pre -eclampsia which turned into eclampsia resulting in the hypoxic brain damage which has resulted into rendering the complainant nearly dead, just a lump of flesh unable to move limbs, unable to respond to nature''s call much less call of human beings. Not only that her own life is miserable, the lives of those who have to drag her till she lives to die, is more miserable indeed."

Question -3

"Whether the case of the complainant if believed will earn compensation as originally claimed or as claimed through the amendment."

Finding

"Coming now to the last issue as to what compensation the complainant is entitled to, a serious consideration has to be extended. 11 good years have elapsed between the date the complaint was filed and the date the judgment is being delivered in Court. Prices of all commodities between 1993 and 2004 has certainly doubled, if not tripled. The initial claim of complaint is Rs.7 Lacs. All the three opposite parties, namely, Dr. K.K. Kakkar, Dr. (Mrs.) Kakkar and Dr. Vijay Singhal are held responsible for the inhumanly pathetic condition of the complainant. The finding of guilt has to be saddled on all of them. Both Dr. Kakkar and Dr. (Mrs.) Kakkar held the operation while Dr. Vijay Singhal did the Anesthetist''s job. Therefore, there is no escape for anyone of them. Keeping in view the time lapsed and also taking into the fact the escalation of price of all items and cost of living, and also the fact that Smt. Neetu Singh''s father had in the meantime expired and the burden to maintain her mother Smt. Mithilesh Singh, apart from Rs.7 Lacs, a further sum of Rs.2 Lacs is to be added so as to make Rs.9 Lacs payable to the complainant. In view of the facts and circumstances, all the opposite parties are liable to pay Rs.3 Lacs each in cash or by bank draft to the complainant, Smt. Neetu Singh through her mother Smt. Mithilesh Singh."

AS stated earlier, being aggrieved by the findings of the State Commission, the Opposite Parties No. 1, 2 and 3 have filed the present appeals.

WHEN this case came up before this Commission on 05.10.2004, pending hearing and final disposal of the appeals, execution of the impugned order was stayed on the condition that each of the appellants (Opposite Parties No. 1, 2 and 3) would pay quarterly Rs.6000/ - to the mother of the Complainant/Patient to be utilized for the treatment and benefit of the Complainant/Patient Mrs. Neetu Singh. Subsequently, during the course of hearing before this Commission, it was informed that Complainant/Patient had passed away on 01.12.2004. All efforts, including through publication, to bring on record her legal heir i.e. her minor son Kartik Chouhan were unsuccessful. Later when Smt. Mithilesh Singh succeeded in getting herself declared as legal heir of the Complainant/Patient under Section 372 of the Indian Succession Act vide orders of the competent Civil Court, she was permitted by this Commission to pursue the case on behalf of the Complainant/Patient. Learned Counsel for the parties made detailed oral submissions in support of their respective cases, which is summarized as follows:

ORAL SUBMISSIONS OF COUNSEL FOR THE OPPOSITE PARTIES Learned Counsel for the Opposite Parties contended that Complainant/Patient had been admitted in the Nursing Home with full term pregnancy following labour pains in the evening of 25.05.1993, where the necessary tests indicated that she had high blood pressure, protein in the urine and swelling of the feet, all of which are classical symptoms of pre -eclampsia. Since these are potentially serious conditions related to pregnancy, all steps as per standard medical protocol were taken to manage it, which included complete bed rest and administration of injection Calmpose, which apart from sedation also reduces hypertension and prevents eclampsia. Her condition continued to be closely monitored while awaiting normal delivery. It was only the next morning that at 7.10 am following fetal distress a decision was taken to conduct an immediate cesarean section, for which consent of the attendants of the Complainant/Patient was obtained and necessary pre -anesthesia tests were conducted. A qualified Anesthetist was also summoned and she was put on IV drip and taken to the operation table for surgery. While on the operation table and before the administration of anesthesia, Complainant/Patient had eclamptic convulsions and vomiting and, therefore, Anesthetist (Opposite Party No. 3) did throat suction and injection Sodium Pentothal was given to control the fits. Thereafter, oxygen was administered and injection Scoline was given since it is a relaxant agent to control fits and to facilitate the passage of tube into the trachea which was necessary for administering anesthesia for the surgery. After administration of anesthesia, the infant was taken out through Lower Segment Cesarean Section (LSCS) and post -operational acts, such as closing the abdomen, applying stitches etc., were successfully completed. These facts are clearly noted in the bed ticket. Dr. Mazhar Husain on the basis of the medical records and after seeing the Complainant/Patient in the court room opined the reason of her post - operative medical condition by stating as follows:

"I do not find any other reason of the said hypoxic ischaemic brain damage except eclampsia to be the only cause of brain damage".

The other medical expert Dr. Hem Prabha, a Gynecologist, had also deposed that the treatment administered by the Opposite Parties, including Calmpose, was on the right lines as per the information recorded in the medical records of the Complainant/Patient. Unfortunately, the State Commission did not take into account this important evidence of the two experts and summarily rejected the same by observing as follows:

"After all one cannot brush aside the fact that the two learned experts belong to the same medical fraternity as the three opposite parties".

Further, contrary to medical evidence and medical literature on the subject, the State Commission concluded that the Complainant/Patient did not have pre -eclampsia or eclampsia on the grounds that her blood pressure remained below 180 systolic and could not have caused this condition. This erroneous finding is not based on medical text or experience. Counsel for the Opposite Parties cited Obstetric Expert Dr. D.C. Dutta, who in his well -known book "Textbook of Obstetrics" states as follows:

"From the prognostic point of view a diastolic rise of blood pressure is more important that systolic rise. Moreover convulsions may occur even with moderate rise of blood pressure; Conversely even with alarming rise of pressure the pregnancy may have an un -eventful outcome.".

Learned Counsel for the Opposite Parties contended that the State Commission erred in also questioning the medication given to the Complainant/Patient, particularly Scoline and Sodium Pentothal instead of a more effective drug Magnesium Sulphate, by disregarding the expert opinion of Dr. Mazhar Husain and also without citing any medical literature or expert to specifically displace this opinion. Counsel for the Opposite Parties concluded his detailed arguments by citing a number of judgments, including of the Hon''ble Supreme Court in Kusum Sharma and Ors. V. Batra Hospital and Medical Research Centre and Ors. [ : AIR 2010 Supreme Court 1050] and Smt. Vinitha Ashok V. Lakshmi Hospital and Ors. [ : 1986 -2002 Consumer 5521 (NS)], to state that there was no medical negligence in the treatment of the Complainant/Patient. Basically the principles enunciated in these judgments, inter alia, are:

(i) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and merely because a doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chose by him was acceptable to the medical profession; and

(ii) A doctor is not guilty of negligence if he has acted in accordance with a practice as proper by a responsible body of medical men in that particular art.

Applying these principles in the instant case, the allegation of medical negligence on the part of Opposite Parties cannot be sustained since it is amply clear from the medical records and the medical literature on the subject that the Complainant/Patient was treated by well -qualified professionals as per universally accepted medical standards for the treatment of such cases. This has also been confirmed by the evidence of two independent medical experts. The State Commission got swayed by emotion and in total disregard of the facts of the case and the established principles of what constitutes medical negligence, erroneously allowed the complaint.

ORAL SUBMISSIONS OF COUNSEL FOR THE COMPLAINANT/PATIENT Learned Counsel for the Complainant/Patient in his oral submissions while confirming that the Complainant/Patient had been admitted to the Nursing Home on 25.05.1993 with severe labour pains denied that she suffered from pre -eclampsia or eclampsia. In fact, it was because of the wrong medical treatment and negligence on the part of the Opposite Parties during surgery that she was rendered comatose, a condition from which she never recovered. Serious doubts were cast on the authenticity of the medical documents filed by the Opposite Parties in support of their case on the grounds that these were filed many years after the incident. Further, the evidence of the two medical experts that there was no deficiency or medical negligence cannot be relied upon since they had never clinically examined the Complainant/Patient and had at best explained the medical technicalities based on the fabricated/manipulated documents filed in evidence by the Opposite Parties. The evidence of pre -eclampsia, particularly that there was albumin in the urine, was challenged since this finding was based on a simple reagent strip test and not on the more reliable pathological test in a laboratory. The other two symptoms i.e. swelling of the feet and hypertension are common in late pregnancy and are not adequate evidence to diagnose pre -eclampsia. In support Complainant/Patient cited the medical report and discharge summary from both Sheel Nursing Home as also Sanjay Gandhi Post Graduate Institute, which nowhere states that the Complainant/Patient''s condition was caused because of eclampsia. In fact, Sheel Nursing Home had recorded that "irreversible brain damage post general anesthesia" was responsible for her comatose condition and that on admission she was already running fever with an infected wound etc., all of which are clear signs of medical negligence. It was denied that the relatives had absconded with the Complainant/Patient without providing adequate ambulatory and oxygen support in transit; she was transferred to Sheel Nursing Home in a properly equipped ambulance with all the required facilities. Counsel for the Complainant/Patient stressed on the discharge summary by Sanjay Gandhi Post Graduate Institute, wherein it was recorded that the Complainant/Patient suffered hypoxic ischaemic brain damage following ILS Cesarean Section, which was conducted because of "inadequate pelvis". It was emphasized that right from the time of her admission, the treatment and medical attention to the Complainant/Patient was inadequate, deficient and negligent. Even her ante -natal case history was not recorded, which is an essential requirement, particularly because it was Complainant/Patient''s first pregnancy, and which the Opposite Parties had diagnosed as a high risk case. For example, no pelvic examination/assessment was conducted nor was any recording made of her previous case history, which included her medical history during the ante natal period and important parameters like height, weight gain, general health status including whether the Patient had undergone the required tests for gestational diabetes etc. This was the minimal reasonable expectation from a qualified doctor keeping in view the critical importance of these tests, particularly in this case. Since the Opposite Parties had concluded that the Complainant/Patient had pre -eclampsia, it was also necessary as per well recognized medical practice for them to conduct a number of laboratory tests which are essential in Pregnancy Induced Hypertension (PIH) *. These include blood and urine studies, renal and liver function tests and tests for fetal well -being.

Additionally, since it is well -established and also acknowledged by the Opposite Parties that cessation of a pregnancy results in disappearance of pre -eclampsia, the best option in the interest of both the mother and the fetus was to have done an immediate cesarean section to minimize the possibility of the Complainant/Patient developing eclampsia and since the Complainant/Patient was already full term, there would have been no danger to the foetus being born premature. Waiting for several hours for the vaginal delivery proved to be fatal in this case and amounted to medical negligence.

Counsel for the Complainant/Patient also pointed out some inherent contradictions in the statements of the medical experts, which cast doubts on their credibility. Specific examples cited were of Dr. Hem Prabha, who first opined that it would have been better if hypertensive drugs were administered to control blood pressure and later changed her stand to state that Calmpose was sufficient in this case. During her cross -examination she had accepted that given the facts of the case, an urgent cesarean section was a safe method to be adopted, implying thereby that she agreed that not conducting an urgent cesarean section as soon as pre -eclampsia was detected did amount to lack of reasonable care and medical negligence. Similarly Dr. Mazhar Husain had also made contradictory statements by first saying that Magnesium Sulphate was an appropriate drug for patients suffering with eclamptic convulsions and subsequently changing his opinion and stating that Sodium Pentothal was correctly administered by the Opposite Parties; even though as per medical literature on the subject*, it is well -accepted that Magnesium Sulphate is much more effective in preventing convulsions, vomiting and aspiration.

These contradictions in the statement of the experts places a valid question mark on their giving a clean chit to the Opposite Parties and under the circumstances the State Commission had rightly concluded as follows:

"The cumulative effect of statement of Dr. Hem Prabha Gupta as also of Dr. Mazhar Husain leaves no manner of doubt that the management of the patient ever -since the admission in the Nursing Home and at the time caesarean operation and thereafter was miserably deficient.

In view of the above facts, learned Counsel for the Complainant/Patient stated that the present appeals having no merit should be dismissed.

Findings We have carefully considered the evidence of the parties, including medical records, written statements, submissions made by their Counsel and the medical literature filed in this case. Gleaned from the tangled web of all the evidence as also the medical literature filed before us, the undisputed facts that emerge are that the Complainant/Patient was admitted with labour pains on completion of full term pregnancy in the Opposite Parties'' Nursing Home on 25.05.1993 and that on the following day she underwent a cesarean section, from which she never fully recovered consciousness and finally passed away in a vegetative state in 2004.

Before discussing the facts in dispute, we would like to state at the outset that although the Complainant/Patient has challenged the authenticity and veracity of all medical documents filed by the Opposite Parties, we are unable to accept the same. In this connection, we note that apart from oral submissions to this effect no evidence per se has been produced to support this allegation. In fact, this allegation did not even find a mention in the original complaint filed by the Complainant/Patient before the State Commission. On the other hand, we agree with Counsel for the Opposite Parties that a plausible explanation for the time taken in filing the medical documents is because the State Commission itself took 11 years to conclude its hearing before giving a final judgment in this case. We further note that though the State Commission had raised this issue it did not give any specific finding that the medical documents were not genuine.

Coming to the facts in dispute arising right from the time of Complainant/Patient''s admission in the Opposite Parties'' Nursing Home till her discharge, we propose to discuss these under the following broad categories along with our findings:

(I) Medical treatment and care at the time of admission of the Complainant/Patient till surgery

It may be recalled that serious allegations have been leveled by the relatives of the Complainant/Patient regarding wrong diagnosis of pre -eclampsia and also failure to record her case history at the time of her admission. After having perused the medical history recorded at the time of her admission, we are unable to agree with this contention pertaining to wrong diagnosis of pre -eclampsia because the bed head ticket prepared at the time of her admission clearly states that the Complainant/Patient had high blood pressure, swelling in the feet and albumin in the urine, all the three of which taken together as per medical literature on the subject* are classical symptoms of pre -eclampsia.

However, we find substance in the Complainant/Patient''s allegation that Opposite Parties were negligent and deficient in not recording her previous case history, which would include information of the number of past ante natal visits, medical case history, important parameters pertaining to her height, weight gain, abdominal and pelvic assessment and whether she had been screened for gestational diabetes etc. This is the minimum essential requirement** expected of trained Midwives, leave alone well -qualified Doctors.

We, therefore, specifically asked the Opposite Parties who were present in Court as also their Counsel if they could explain this lapse but they were not able to give any satisfactory explanation for the same. Regarding their failure to get the necessary lab tests conducted, which are necessary for PIH patients, as discussed in paragraph -11 of the order, we also are not satisfied with the explanation given namely that it was too late to send the specimens to an outside laboratory since the Nursing Home did not have indoor lab facilities. In big cities like Bareilly such laboratories function late into the night. All these were serious lapses and we have no hesitation in concluding that this failure on the part of the Opposite Parties amounted to medical negligence and deficiency in service.

Counsel for the Complainant/Patient had also contended that once pre -eclampsia had been diagnosed conducting a cesarean section was an immediate option and failure to exercise this proved fatal in this case. Medical literature in support was also cited. In this connection, Opposite Parties have also cited a contrary opinion of a universally acknowledged medical expert Ian Donald, who in his well -known book "Practical Obstetric Problems" states that even in case of pre -eclampsia a vaginal delivery should be awaited. Applying the principles as enunciated by the Hon''ble Supreme Court in Achutrao Haribhau Khodwa & Others V. State of Maharashtra & Ors. : [(1996) 2 SCC 634], we are of the view that merely because a doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. In the instant case, the Opposite Parties who are well -qualified Specialists cannot be faulted or held guilty of medical negligence for using their professional assessment to wait for the vaginal delivery which was one of the acceptable options advocated in such cases.

Regarding the allegation of medical negligence and deficiency in service in respect of medicines prescribed to the Complainant/Patient in the pre -operative period, we agree with the opinion of the medical experts that these were correctly administered. The emphasis placed by the State Commission on the so called contradictory statements made by Dr. Hem Prabha pertaining to the use of drugs to treat hypertension in the pre -operative period is misplaced in view of the fact that she subsequently explained that Calmpose was correctly administered instead of hypertensive drugs which would have only prolonged the process of delivery.

(II) Medical treatment and care at the time of surgery

From the evidence on record, including the medical notes, we are unable to agree that there was any medical negligence or deficiency in the care and treatment of the Complainant/Patient during this period. It is not in dispute that a decision to conduct a cesarean section was taken in the early morning of 26.05.1993 when fetal distress was noted and a qualified Anesthetist (Dr. Vijay Singhal) was called and all the pre -anesthesia tests were conducted and the Complainant/Patient was taken to the operation table for surgery. Medical notes of that time further confirmed that eclamptic convulsions and vomiting occurred before the administration of anesthesia and these were controlled with injection Sodium Pentothal as also throat suction. Scoline injection, which is a relaxant agent to control fits and to facilitate the passage of tube into the trachea necessary for administering anesthesia for the surgery, was also given and this treatment has been endorsed in toto by Dr. Mazhar Husain, Professor & Head of the Department of Neurosurgery, K.G. Medical College, Lucknow, after scrutinizing the medical records. "Eclampsia" as its very meaning implies ("like a flash of lightning") can occur suddenly in a pre -eclamptic patient even during normal delivery and it is well documented that this condition can lead to hypoxic ischaemic brain damage. In the absence of any other credible evidence to the contrary to explain the Complainant/Patient''s condition, we agree that it was caused due to eclamptic convulsions and not because of any heart attack or following administration of general anesthesia, as contended on behalf of the Complainant/Patient. Dr. Mazhar Husain, it may be noted, had also clearly opined "I do not find any other reason of the said hypoxic ischaemic brain damage except eclampsia to be the only cause of brain damage". The contention on behalf of the Complainant/Patient that Sheel Nursing Home and Sanjay Gandhi Post Graduate Institute had not mentioned that the Complainant/Patient''s condition was because of eclamptic convulsions can be well explained by the fact that the recordings in these two institutions were made on the basis of information supplied by the relatives/attendants of the Complainant/ Patient and were not based on any independent medical record/examination. The other contention that Complainant/Patient could not have suffered eclamptic convulsions since her blood pressure was below 180 systolic, which was also a finding of the State Commission, is also not borne out by medical literature on the subject and in this connection, it may be noted, as discussed earlier, that Dr. D.C. Dutta, who is a well -known Obstetric Expert, in his book "Textbook of Obstetrics" has clarified that eclamptic convulsions can occur even with moderate rise of blood pressure.

(III) Medical treatment and care post -surgery

The mother of the Complainant/Patient, who was present in the court room, had made an impassioned and emotional intervention before us to state that although she was not a witness to what happened inside the operation theatre, she noted that after the Complainant/Patient was taken out from the operation theatre she was left unattended in an outside verandah in an unconscious state with no medical support. In fact, it is because of this and some other such instances that the relatives/ attendants of the Complainant/Patient had no option but to take her to another nursing home. However, after meticulously going through the medical records, we are unable to conclude that there was any medical negligence and deficiency in service in the post -operative care of the Complainant/Patient. From the medical records, it is apparent that all her vital parameters were being constantly monitored and she was prescribed the required medication. Two independent medical Specialists Dr. Ajay Sawhney and Dr. Pankaj Bansal, who had examined the Complainant/ Patient immediately after the surgery, agreed with the line of treatment being administered to the Complainant/Patient and it may be relevant to point out here that one of the specialists Dr. Pankaj Bansal had been called at the instance of the relatives of the Complainant/Patient and who after examining the Complainant/Patient and discussing the case with Opposite Parties had made detailed notings dated 05.06.1993, in which he had recorded as follows :

Has shown slow sustained improvement on line of management (Netromycin..sic.. Cerebral Decongestants.) No fits now.", "Case discussed personally with Dr. Kakkar

Dr. Bansal had further opined that Complainant/Patient''s condition was because of the post -eclampsia and the line of treatment should continue. No evidence to disprove these facts, apart from verbal submissions, had been produced on behalf of the Complainant/Patient.

TO sum up, based on the medical evidence placed before us and keeping in view as to what constitutes medical negligence and deficiency in service in such cases, as laid down by the Hon''ble Supreme Court in a number of judgments, including in Kusum Sharma (supra), Achutrao Haribhau Khodwa (supra), Jacob Mathew Vs. State of Punjab and Anr. : [(2005) 6 SCC 1] etc., we are of the view that the only medical negligence and deficiency which could be established/proved against Opposite Parties No. 1 and 2 pertains to their failure to record the case history of the Complainant/Patient at the time of her admission and thereafter to get conducted the required laboratory tests, which are essential in a high risk first pregnancy case detected with PIH and pre -eclampsia. We, however, do not find Opposite Party No. 3 guilty of either medical negligence or deficiency in service in the treatment and care rendered to the Complainant/patient during the surgery, including administration of anesthesia.

WHILE we share the sympathy and emotions, which this case evokes with the State Commission, for the reasons extensively discussed in paragraphs 12 and 13 of this order, we are unable to sustain its findings of medical negligence and deficiency in the treatment and care rendered to the Complainant by the Opposite Parties during her surgery and also during the post -surgery period. The order of the State Commission is accordingly modified and compensation awarded by it is reduced from Rs.9,00,000/ - to Rs.5,00,000/ - to be paid jointly and severally by Opposite Parties No. 1 and 2 to Smt. Mithlesh Singh, mother of late Complainant/Patient Smt. Neetu Singh, within a period of two months from the date of this order. Both the First Appeals stand disposed of on the above terms. No costs.

*Source : Article on Pregnancy Induced Hypertension in Yao & Artusio''s Anesthesiology, Fourth Edition

*Source : Chapter 44 on Hypertensive disorder in Obstetric Anesthesia, Second Edition by David II. Chestnut, M.D., Page 911.

*Source: Article on Preeclampsia and Eclampsia extracted from www.webmd.com/baby/guide/preeclampsia -eclampsia

**Source: 1. Article on Introduction to principles of antenatal care - Royal College of Obstetricians and Gynaecologists (extracted from www.rcog.org.uk)

Guidelines for Antenatal Care and Skilled Attendance at Birth by ANMs/LHVs/SNs by National Rural Health Mission, Govt. of India.