Navya S vs Manipal Northside Hospital

THE complainants have filed this Complaint against the opposite parties (for short, ''OPs'') claiming compensation of Rs. 43,00,000 under various heads.

THE facts in this case are as follows: Late Dr. G. Mamatha (for short, the ''Patient'') was a Doctor by profession. Complainants 1 and 2 are her children and complainant No. 3 is her husband. The Patient went to OP -1 Hospital on 26.4.2002 at about 9.30 a.m. along with her husband as she desired to have a check up and if need be to take suggestion concerning her pregnancy and its termination. The patient knew that Dr. Malathi Rao (O.P. 3) was a reputed Gynaecologist working in O.P. -1 Hospital. It is averred that the Doctors in the Counter of O.P. -1 Hospital suggested the patient to have a Medical Termination of Pregnancy (for short, ''MTP'') since the foetus was only 6 weeks old and there was absolutely no problem in having a MTP as she was already a mother of two children. When the patient enquired as to who was the surgeon who conducts MTP in O.P. -1 Hospital, the staff/Doctors in O.P. -1 Hospital informed that she would be operated by Dr. Malathi Rao. It is further stated that there was no check up by any Doctor. But the Doctors/Nurses in O.P. -1 Hospital unilaterally decided to admit the patient by telling that Dr. Malathi Rao would conduct the MTP operation. On admission, the patient was made to lie on the bed. The Nurses of O.P. -1 Hospital came and administered two injections. The further averment in the complaint is that the authorities of O.P. -1 Hospital did not even permit the husband of the patient to interact with the patient and it is not known as to who instructed the Nurses who hurriedly came and administered two injections. The further case of the complainants is that immediately after the administration of the injections, the patient became unconscions and she was not responding to any impulses. The husband of the patient after coming to know of the same fact panicked with desperation as to what medicine the Nurses had injected and the Nurses stated to have injected the injections left the patient and went away in total confusion. According to the complainants, no sooner the patient became unconscious none of the Doctors was immediately available to attend on the patient who started feeling giddiness immediately on the administration of injections. After some time, Dr. Sharada Shekar, Anaesthetist, Dr. J. Sridhar, Nefrologist and Dr. G.K. Prakash came near the patient and advised the staff to shift the patient to Intensive Care Unit (for short, ''ICU''). The further case of the complainants is that there was no timely treatment to the patient to bring her back to normalcy by resuscitating until 10.00 a.m. Ultimately this resulted in causing drastic damage to the brain of the patient for want of supply of Oxygen. The further case of the complainants is that around 10.00 a.m., Dr. Malathi Rao was made to rush from the operation theatre and she and other Doctors decided to shift the patient to the Manipal Hospital, Airport Road, Bangalore (O.P. -5). Accordingly, the patient was shifted to O.P. -5 Hospital. The patient was in O.P. -5 Hospital for about a month and ultimately she could not get any relief and thereafter she was shifted to Mallige Nursing Home, Bangalore and, ultimately, the patient died on 14.7.2002.

ACCORDING to the complainants, O.P. -1 Hospital did not obtain the consent of the patient for the MTP. The Medical Termination of Pregnancy Act, 1971 (for short, the ''Act'') imposes certain restrictions regarding MTP operations. According to the complainants O.P. -1 Hospital was not competent to conduct the MTP Operations since the said Hospital was not authorized under the Act to conduct such operations. Further, the Doctors who conduct the MTP Operations must be Registered Medical Practitioners. But, in the instant case, the Doctor who proposed to conduct the MTP operation was not a Registered Medical Practitioner. Therefore, according to the complainants, the very admission of the patient to O.P. -1 Hospital to conduct the MTP operation itself was illegal.

THE O.Ps. have filed their version. In their version the O.Ps have denied the fact that death of the patient was due to callous negligence and professional impropriety both in administration and total professional negligence and ignorance of prudent knowledge in medicine on the part of the O.Ps. According to the O.Ps., the patient had approached O.P. -1 Hospital for consultation concerning her pregnancy and its termination. The further averment is that the patient was desiring to undergo Family Planning Operation and in that connection she had consulted her classmate and friend Dr. Nalini, MD (OBG) and she in turn telephoned to Dr. Malathi Rao at her residence and informed that the patient who was her classmate and friend wanted urgent MTP and sterilization on that day only as she was going out of station in two days thereafter. In reply to that O.P. -3 told Dr. Nalini to ask the patient to see her before 8.30 a.m. as she had already fixed certain other surgeries thereafter. The further case of the O.Ps. is that Dr. Nalini was informed that the patient had already conducted on herself pregnancy test which was confirmed positive and for some reasons she was in a great hurry and have the surgery done on that day itself. Accordingly, the patient came to O.P. -1 Hospital along with her husband in the morning of 26.4.2002 on her own and attended to the formality of admission in O.P. 1 Hospital. Both the patient and her husband also signed the necessary informed consent form for admission and the surgical procedure of MTP and for sterilization. It is further averred that as O.P. -3 was pre -occupied in a pre -fixed surgery, she had no occasion to interact with the patient. O.P. -3 on being told by Dr. Nalini about the admission of the patient and that the patient was fit for the procedure and the formalities having been completed agreed to conduct the MTP. Accordingly, Dr. Nalini after thoroughly examining the patient and taking her medical history, appears to have taken steps to prepare the patient for the procedure and as a routine part of this gave two injections to the patient, namely (1) 1 ampoule of Rantac (intravenous) and (2) 1 ampoule of Perinorm (intravenous). But the patient however started feeling giddiness and became unconscious after administration of the above said injections. Thereafter, as the patient became unconscious, Dr. Nalini and also Dr. Sharada Shekar and Dr. G.K. Prakash who were readily available in O.P. -1 Hospital were immediately summoned and they gave necessary help and made every effort to resuscitate the patient. But the O.Ps. have denied the fact that the Nurses of O.P. -1 Hospital have given the injections referred to above and were handling the patient. The O.Ps. have also denied the statement that the Doctors have not given any prescription to the nurses to administer the injections referred to above. As the patient did not get back to the normalcy, she was shifted to the ICU of O.P. -1 Hospital and thereafter to O.P. -5 Hospital accompanied by Dr. Nalini and Dr. Jyothi Sridhar. The patient was in OP -5 Hospital for about a month and was discharged on 24.5.2002. But she did not get any relief from OP -5 Hospital in spite of the best efforts made by the Doctors in OP -5 Hospital. The sum and substance of the defence of the O.Ps. is that in spite of the best efforts they could not do anything to get the patient restored to normalcy and there was no negligence on their part and, therefore, the complaint is liable to be dismissed. The complainants have not asked for any relief alleging any negligence or deficiency in service as against OP -5 Hospital.

BOTH the parties have filed their Affidavits by way of evidence in support of their case. OP -3 was subjected to cross -examination before this Commission. The complainants and the O.Ps. have produced documents by way of evidence and they are all marked as Exhibits.

ON the rival pleadings of the parties, the points that arise for consideration in this case are: (1) Whether OP -1 Hospital obtained the consent of the patient before preparing the patient for MTP? (2) Whether the complainants have established negligence as against O.Ps. 1 to 3 as alleged in the pleadings? (3) Whether OP -1 Hospital is a recognized Hospital for the purpose of conducting MTP Operations under the provisions of the Act? (4) To what relief the complainants are entitled?

Point No. 1: The fact that the patient was admitted to OP -1 Hospital for MTP is not disputed. Section 3 of the Act provides when pregnancies may be terminated by registered Medical Practitioners. Clause (b) of Sub -section (4) of Section 3 reads thus: ''Save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.''

OP -1 Hospital has produced the consent form, which is marked as Exhibit R -19. The said consent form is signed by the husband of the patient. In the column provided for the signature of the patient one x mark and one mark which looks like English Alphabet d are found. According to the complainants, the signature of the patient was not obtained before preparing the patient for the MTP. OP -3 in her cross -examination has stated ''I do not know who obtained the signature in the consent form as I was not there''. She has further stated that ''Dr. Mamatha has given consent for operation and it is in the case sheet, which is maintained by the Hospital under Exhibit R -2. It is signed by Srinivasa the husband of the patient''. From a reading of the evidence of OP -3 it is clear that the mark appearing in the column meant for the signature of the patient is not the signature of the patient. The patient was a Doctor by profession. Since the Act requires the consent of the pregnant woman, OP -1 Hospital ought to have obtained the signature of the patient on the consent form instead of obtaining the signature of the husband of the patient. When the Act mandates the consent of the patient, obtaining the consent of the husband of the patient is no consent at all. Therefore, we hold that OP -1 Hospital has not obtained the consent of the patient as required under the Act. Accordingly, we answer Point No. 1 in the negative.

POINT No. 2: The case of the complainants is that the patient was made to lie on the bed and some nurses injected some injection which was not known to the complainants. The case of OP -1 Hospital is that Dr. Nalini who was a friend of the patient had injected two injections, namely (1) 1 ampoule of Rantac (intravenous) and (2) 1 ampoule of Perinorm (intravenous). But in order to show that Dr. Nalini had administered the said injections to the patient, the authorities of OP -1 Hospital ought to have filed an Affidavit of Dr. Nalini. The reason given by OP -1 Hospital for not filing affidavit of Dr. Nalini is that she is staying in abroad and she is not available to file affidavit. Assuming that Dr. Nalini is in abroad, it is not so difficult for OP -1 Hospital to get the affidavit sworn to by Dr. Nalini at a place where she is now staying/residing and file the same. In this regard, it is also useful to refer to the evidence adduced by the O.Ps. OP -3 has filed her Affidavit stating that Dr. Nalini after thoroughly examining the patient and taking her medical history appears to have taken steps to prepare the patient for the procedure and as a routine part of this gave two injections to the patient, namely (1) 1 ampoule of Rantac (intravenous) and (2) 1 ampoule of Perinorm (intravenous). From this evidence of OP -3 it is seen that OP -3 has not positively stated in her affidavit who has given the above said two injections to the patient. According to the complainants, it is the nurses of OP -1 Hospital who gave the said injections. The further case of the complainants is that they do not know what injections the Nurses gave to the patient. Dr. Malathi Rao in her cross -examination has stated ''I do not know who administered the injection to the patient. I have not come across the prescription in the hospital records regarding the injection given to the patient.'' The Hospital record which is marked as Exhibit ''R -21'' also does not disclose who prescribed the above said two injections to the patient because the said document is not signed by any Doctor. OP -3 in her cross -examination has stated that ''Nurse Shankaramma was in the casualty, when the patient was given injection.'' When the complainants have asserted that the injections were given by the Nurses without any prescription, OP -1 Hospital ought to have filed the affidavit of the said Shankaramma to establish who actually gave the injections to the patient. OP -3 in her cross -examination has denied the suggestion that injections were given by the Nurses in the absence of Doctors and it was not Rantac and Perinom. In support of this contention, OP -3 has stated that she verified the ampoules and found that the correct injection was given to the patient. But in order to prove this fact, the Hospital authorities ought to have produced the ampoules which were examined by OP -3. OP -3 has further stated that in this regard she had written to the company whether there was any instance of re -action to this injection and they verbally informed that there is no such case. But to prove the fact that there was no instance of any re -action to the injection, OP -1 Hospital ought to have filed the affidavit of the concerned official of the company. The Hospital records as stated earlier disclose that on the date of admission of the patient, certain medicines were prescribed. But the said record maintained by OP -1 Hospital is not signed by any Doctor. The patient was admitted as a patient of Dr. Malathi Rao, i.e., OP -3. There is one Note by one Dr. Jyothi Sridhar narrating what happened after shifting of the patient to the ICU. A bare looking at the case sheet maintained by OP -1 Hospital shows that it appears to have been prepared for the purpose of this case subsequent to the filing of the complaint. Complainant No. 3 is the husband of the patient. The patient is not alive so as to say what happened during the procedure. Under these circumstances, it is for OP -1 Hospital to establish and explain that there was no negligence or deficiency in service on their part. The positive case of the complainants is that it is only the Nurses who gave injections and they do not know what injections were given to the patient. As stated earlier, no affidavit of the Nurse who was stated to be present in the casualty ward has been filed. OP -3 in her cross -examination has said that she does not know who administered the injection to the patient. OP -1 Hospital has not filed the affidavit of Dr. Nalini in order to show that she gave the injections. The case sheet also does not disclose that the medicines such as (1) 1 ampoule of Rantac (intravenous) and (2) 1 ampoule of Perinorm (intravenous) were prescribed by the Doctor, since no Doctor has signed the case sheet. Though the patient was admitted as a patient of Dr. Malathi Rao, the said Doctor had no occasion to see the patient till the patient became unconscious. Though OP -3 admits in the version and the affidavit that she asked Dr. Nalini to inform the patient to meet her in OP -1 Hospital at 8.30 a.m., she says in her cross -examination that she had not given any consent to the admission of the patient. OP -3 further says that she had not come across the prescription in the hospital records regarding the injection given to the patient. The ampoules were also not produced before this Commission in order to prove the fact that the injections given were Rantac and Perinorm. Under these circumstances, it is not known what injection was given to the patient. The above facts clearly establish that there was negligence on the part of the O.Ps. in not providing proper treatment to the patient and the negligence was the sole cause for taking away the life of the patient. The facts narrated above conclusively prove that but for the negligence and deficiency in service on the part of OP -1 Hospital, the patient would not have died. Therefore, we are of the considered view that the complainants have proved and established the negligence on the part of OP -1 Hospital. Hence, we answer point No. 2 in the affirmative.

IN reply to the Interrogatories filed by the complainant, OP -3 has stated that the patient got admitted voluntarily to undergo MTP and Sterilization. At the time when the patient voluntarily got admitted under her name, except Dr. Nalini no other Doctor had seen the patient. She has further stated that the patient was asked by Dr. Nalini to meet her before 8.30 a.m. on that date. But the patient failed to do so. The reply of OP -3 to Interrogatory No. 17 is as follows: ''Dr. Mamatha was not scheduled for surgery and hence no staff nurse was in -charge of her operation.''

If the patient was not scheduled for surgery, there was no reason for OP -1 Hospital to give injections, which was the first step to be taken for the procedure of surgery. In the answer given to Interrogatory No. 27, OP -3 positively says that Dr. Nalini herself gave the injections to the patient, though in her cross -examination she has stated that she does not know who administered the injections. There are lot of inconsistencies in the evidence given by OP -1 Hospital which speaks of the fact that there is no truth in the defence set up by OP -1 Hospital.

POINT No. 3: Section 3 of the Act reads thus: ''3. When pregnancies may be terminated by registered medical practitioners: (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of Sub -section (4), pregnancy may be terminated by a registered medical practitioner. (a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner, is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less then two registered medical practitioners are, of opinion, formed in good faith, that - (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, or (ii) there is substantial risk that if the children were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation I : Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation II : Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in Sub -section (2), account may be taken of the pregnant womens actual or reasonably foreseeable environment. (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.'' Section 4 of the Act reads as follows: ''No termination of pregnancy shall be made in accordance with this Act at any place other than - (a) a hospital established or maintained by Government, or (b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee: Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.'' From a reading of the above said sections of the Act it is clear that pregnancy may be terminated by a Registered Medical Practitioner. In the instant case, the case of the complainants is that in order to do MTP Operation in a Hospital, the concerned Doctor should be a Registered Medical Practitioner. According to OP -3 she is a Registered Medical Practitioner to conduct MTP Operation. Section 4 provides in which place pregnancy may be terminated. Under the said section, no termination of pregnancy shall be made in accordance with the Act at any place other than, (a) a hospital established or maintained by Government, or (b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee. The proviso to Section 4 provides that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time. In the instant case, OP -1 Hospital is not established or maintained by the Government. Further, the said place is not approved for the purpose of the Act by the Government or by a District Level Committee. OP -1 Hospital has not produced any certificate issued by the Government or the District Level Committee approving OP -1 Hospital to conduct the MTP Operations. If that is so, OP -1 Hospital ought not to have admitted the patient for MTP Operation. The very admission of the patient for the purpose of MTP Operation itself was illegal and contrary to law. This fact conclusively proves that OP -1 Hospital is engaged in doing certain operations which are prohibited by law, may be with a view to make money illegally. Further, though OP -1 Hospital is prohibited from doing such operations, it had admitted the patient to do an operation illegally by throwing the required procedure to winds and by acting contrary to the medical practice apart from not providing proper treatment to the patient. The way in which the patient was treated clearly shows that OP -1 Hospital intends to make money by doing such prohibited operations. Therefore, we answer point No. 3 in the negative.

Point No. 4: Complainant Nos. 1 and 2 are the minor children of the deceased patient and complainant No. 3 is the husband of the patient. Complainant Nos. 1 and 2 are deprived of the love and affection of their mother and her services. Complainant No. 3 being the husband is deprived of the companionship and the services of his wife. The deceased patient was a Doctor by profession. She was aged about 29 years. From the pleadings, we find that she had a good prospects in future. Complainant No. 3 has also spent several lakhs of rupees for the treatment of his wife initially in OP -1 Hospital, thereafter in OP -5 Hospital and Mallige Medical Centre.

TAKING all these facts into consideration and also in view of the fact that it is not possible to measure the loss that the complainants are made to suffer in terms of money, awarding a sum of Rs. 5,00,000 as compensation in favour of complainants 1 and 2 would meet the ends of justice.

IN the result, we pass the following order: (1) The complaint is allowed in part. (2) OP -1 is directed to pay Rs. 5,00,000 (Rupees five lakhs only) to complainants 1 and 2 with interest at 9% per annum from the date of the complaint till realization. (3) Since complainants 1 and 2 are minors, we direct that the compensation payable to complainants 1 and 2 as directed above shall be deposited in any of the Nationalized Banks till they attain majority. (4) Complainant No. 3 is permitted to withdraw the interest to be accrued on the above said deposit for the purpose of utilizing the same for the education and maintenance of complainants 1 and 2. (5) OP -1 is also directed to pay Rs. 10,000 to the complainants towards the costs of these proceedings.

Complaint partly allowed.