PRAKASH NURSING HOME vs AJAY KHANDEL

BOTH these appeal Nos. 1119/2005 and 1123/2005 taken up together, arise from the order dated 18. 5. 2005 passed by District Consumer Disputes Redressal Forum, Khandwa directing the opposite party No. 1 to pay Rs. 2,08,000 as compensation and Rs. 2,000 as costs, on account of medical negligence in the treatment given to the wife of complainant No. 1.

COMPLAINANT No. 1 is the husband of Smt. Shivangi (herienafter referred to as the deceased) and complainant No. 2 is her minor son. The facts of the case as depicted by them are that the deceased, who was pregnant, consulted opposite party No. 1, Dr. (Smt.) M. Obeja on 6. 8. 2003. She was told that everything was normal. On 29. 12. 2003, she was brought with labour pains to Dr. (Smt.) M. Obeja, who instead of trying for normal labour performed a caesarean operation in haste. After the operation the doctor went away to Nagpur, without entrusting her patients to any other doctor. As no instructions had been given, the employees of the nursing home refused to attend to the deceased. Due to the negligence in the operation, she was unable to pass urine or stool. Her condition became very serious. Dr. (Smt.) M. Obeja returned on 1. 1. 2004 and referred the deceased to Choithram Hospital, Indore at 10 p. m. No attendant accompanied her and no treatment paper were given to them. There they were informed that the kidney of the deceased had failed. Blood and pus was oozing out of her stitches. A huge amount was spent on her treatment at Chiothram Hospital but she died on 14. 1. 2004. Respondent No. 1 Dr. (Smt.) M. Obeja states that she is an MBBS, MS with 22 years experience and has received 10 gold medals. She states that the deceased was brought to the nursing home on 29. 12. 2003 with leaking all night, in efforts to deliver the child at Harsud, by local midwives. As there were chances of infection and danger to the child, she was given medication and injections to prevent infection and advised immediate operation. But her husband and father-in-law did not give permission, so another patient was taken in for operation. The doctor avers that in spite of severe leakage the relatives did not give permission and at 3 p. m. they were told to take the deceased elsewhere. On receiving that threat, they gave consent. After the operation the condition of the deceased remained satisfactory. The doctor further states that on 30. 12. 2003, her aged widowed mother suffered an accident and fractured her leg, for which she had to rush to Nagpur. The patients, in her absence, were looked after by her husband, Dr. S. N. , Obeja, Asstt. Surgeon, and Gynaecologist Dr. Raskha Sharma. She examined the patients everyday. On 30. 12. 2003, the deceased had started taking liquids and some solids, and her catheter removed. Dr. Raksha Sharma examined the deceased on 31. 12. 2003 and found her normal. On 1. 1. 2004 when Dr. Raksha Sharma came for an emergency delivery early in the morning, she examined the deceased, who told her that she was feeling restless and had chest pain and intermittent stomach pain. Dr. Raksha Sharma advised Dr. S. N. Obeja to call a physician to examine her. Dr. D. K. Garde, MD (Medicine) was called and he examined her. At 10 a. m. her blood pressure fell to 70. She was given intensive treatment and at 12. 30 p. m. her BP improved to 100/70. However there was no urine output. When she returned from Nagpur at 2 p. m. , she referred her to Choithram Hospital, Indore as there was no urine output and dialysis was necessary, which was not available at Khandwa. The doctor contends that due to the delay in the operation the chances of infection increased. Leaking can sometimes result in septicaemia, DIC and Amniotic fluid embolism. The deceased suffered from these complications. She denies any negligence on her part.

Opposite party No. 2, Choithram hospital, Indore, states that the deceased was brought in a serious condition with septicaemia with DIC and acute renal failure with acute respiratory distress syndrome. Despite the best treatment and best efforts she died on 14. 1. 2004.

THE Forum below held the doctor negligent on the ground that the deceased was not provided proper post-operative care and that the doctor should not have undertaken the treatment once the membranes had ruptured, and should have referred her to higher centre. We have heard the respective contentions of the Counsel of the parties on the merits of the case and carefully perused the documents filed on record.

AS the treatment papers were not filed on report and the learned Counsel of the opposite party stated that they had been seized by Police Station Moghat Khandwa, the case diary was called for by this Commission and photocopies of the treatment papers were taken on record. In the appeal, the complainant has filed a rpeort of Dr. V. K. Sanjay, and the opposite party No. 1 has filed documents obtained under RTI which pertains to investigation of the case. The documents are : " (a) A report of Dr. V. K. Sanjay, who carried out an investigation on the instructions of the CMO Khandwa, and held that the (i) operation was performed in half-an-hour, which showed undue haste on the part of the operating doctor, (ii) the nurses were not qualified, and (iii) the records were not properly maintained. (b) A letter of the Chief Medical Officer, Khandwa to the Collector, dated 27. 5. 2005, wherein he has stated that the death was due to a known complication and he found no negligence on the part of Dr. (Smt.) M. Obeja. (c) An opinion of Dr. D. K. Satpathy, Director, Medico-legal Institute, addressed to the S. P. Khandwa, which states that on examining the treatment papers he found that the treatment given was correct, the deceased died of a known complication, and there was no negligence on the part of the doctor. (d) A letter of Dr. (Smt.) M. Obeja written to Dr. Sanjeev Dixit, Director, IMA, objecting to the report of Dr. V. K. Sanjay, on the grounds that he is not a specialist in Obtestrics and Gynaecology, but works as a leprosy officer. (e) A letter by Dr. Sanjeev Dixit, Secretary, IMA to the CMO, Khandwa, objecting to the report of Dr. V. K. Sanjay on the grounds that he is not an expert in the field of Gynaecology.

We thus have on record, reports and opinion of doctors which are contradictory and differ in their conclusions. Whether any of the doctors, Dr. V. K. Sanjay, Dr. Satpathy or the CMO, Khandwa can be considered as experts is debatable, as they do not appear to have expertise and competence in the field of Obstetrics and Gynaecology. In the background of contradictory reports, we consider it futile to study the evidence of the doctors filed on record.

EVEN otherwise, expert opinion can only guide and assist the Court, but the final decision has to be with the Court after considering all the aspects. This was forcefully expressed by Bollen J. [ (1982) 33 SASR 189, 120 as quoted in Jones, Medical Negligence, 2nd Ed. 1996 p. 162]- "but the Court does not merely follow expert evidence slavishly to a decision. The Court considers and weighs up all admissible evidence, which it has received. If the Court did merely follow the path apparently pointed by an expert evidence with no critical consideration of it and the other evidence. It would abdicate its duty to decide, on the evidence, whether in law a duty existed and has not been discharged. "

WE shall now deal with the allegations levelled by the complainant. The first allegation is that Dr. (Smt.) M. Obeja did not try for a normal delivery, but performed the caesarean operation in haste. The deceased was admitted in the morning about 7 a. m. She had suffered labour pains and leaking since 3 a. m. in the morning. The Caesarean was done after 3. 30 p. m. We are unable to see any haste on the part of the doctor in deciding to operate. In fact, the doctor had advised a caesarean section at 10 a. m. , which was refused. Records show that the deceased had a ruptured membrane and that at 2. 30 p. m. and at 3. 30 p. m. she was having ''no contractions. The operation was a necessity and in our considered view, the complainant delayed in giving consent, which should have been given much earlier. The doctor has filed a medical paper "bacteriological Study of premature Rupture of Membranes by R. Kondal Rao Nandan Singh wherein it is mentioned - The foetal membranes provide protection against infection. The liquor amnii has antibacterial activity due to zinc protein complex. Bacterial colonization of the amniotic cavity is known to occur after rupture of the fetal membranes through direct ascent of endogenous vaginal flora. "

Another paper by F Gatry Cunningham MD states - "we consider ruptured membranes the greatest risk factor in women who have caesarean section. In our experience, if the membranes are ruptured for more than 6 hours, regardless of other factors, the infection rate following caesarean section is about 85%. "

THE failure of the child to descend, ruptured membrane and prolonged labour made the deceased a high-risk patient. Operation was a medical necessity. And as is the case with every operation, there is always some risk involved. "they showed that whereas emergency caesarean delivery was associated with an almost nine-fold risk of maternal death relative to that of vaginal delivery, even elective caesarean delivery was associated with an almost three fold risk. " williams Obstetrics, 22nd Ed, Pg. 592 The deceased developed infection, a complication of the surgery, especially when the amnionic sac has ruptured. "although the cervix routinely harbours such bacteria, the uterine cavity is usually sterile before rupture of the amnionic sac. "

Williams Obstetrics, 22nd Ed. Pg. 713 "after membrane rupture, bacteria enter the amnionic fluid, traverse the amnion, and invade deciduas and chorionic vessels, the us causing material fetal bacteraemia and sepsis. " williams Obstetrics, 22nd Ed. Pg. 519. Sources of Intrauterine infection : The patency of the female reproductive tract, although essentially for achievement of pregnancy and delivery is theoretically problematic during phase () parturition. . . . . . . . . . . . . . . . . . . . Microogranisms originating in the vagina or cervix, after ascending, colonize the deciduas and possibly the fetal membranes, where they then may enter the amnionic sac. "

Williams Obstetrics, 22nd Ed. Pg. 179 "most female pelvic infections are caused by bacteria indigenous to the female genital tract. "

Williams Obstetrics, 22nd Ed. Pg. 713 "important risk factors for infection included long duration of labour, and membrane rupture, multiple cervical examinations and internal fetal monitoring. "

Williams Obstetrics, 22nd Ed. Pg. 713

TO counter the risk and control any infection, broad spectrum antibiotics were prescribed prior to the surgery, and after it. Despite the precaution, the deceased developed infection as her immune defences were unable to control the invading microbes. The infection developed into septicaemia, and septic shock, renal complication and led to DIC. In our considered view, if one of the risks inherent in the operation actually took place and led to further complications, it cannot be said to be deficiency on the part of the doctor. As held by the Hon''ble Supreme Court in the case of Jacob Mathew (Dr.) v. State of Punjab and Anr. III (2005) CPJ 9 (SC)=vi (2005) SLT 1=122 (2005) DLT 83 (SC)= (2005) 6 SCC 1, An empirical study would reveal that the background to a mishap is frequently for more complex than may generally be assumed. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor''s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator, i. e. the doctor, cannot be ruled out. " The second allegation is that Dr. (Smt.) M. Obeja left the hospital and went to Nagpur, without entrusting the case to any other doctor. It is admitted by the doctor, that she had to run to Nagpur as her mother had suffered an accident,. However, she states that Dr. (Mrs.) Raksha Sharma, who is also an experienced Gynaecologist, looked after the patients in her absence, On the morning of 1. 1. 2004, when the deceased felt restless and her BP fell, Dr. Raksha Sharma examined her and advised that a physician should be called. Dr. Deepak Garde, MD, was called and he examined the deceased. The case papers, as also the affidavits of Dr. (Mrs.) Raksha Sharma and Mr. Deepak Garde, evidence this sequence of events. In her affidavit Dr. (Mrs.) Raksha Sharma states that she has 20 years experience, and that whenever Dr. (Mrs.) M. Obeja goes out of station, she looks after the patient in her absence. She further states that she had completed a caesarean operation on 31. 12. 2003 at 12. 30 a. m. at night, and when she came out the nurse told her that all the patients were satisfactory. When she went again at 7 a. m. the next day, she was told that the deceased was complaining of restlessness. She examined her, prescribed necessary medication and advised that a physician be called. Dr. Deepak Garde states that he is an MD (Medicine) with 22 years experience. He examined the deceased in the morning on 1. 1. 2004 and again at 2 p. m. the same day. The case papers also evidence that till 31. 12. 2003, the deceased did not have problems. It is also mentioned in the case papers that she passed urine at night at 2 a. m. Apparently, the problems were of sudden onset and were dealt with by Dr. Raksha Sharma and Dr. Deepak Garde. When Dr. (Mrs.) M. Obeja examined her at 2 p. m. , her BP was better but there was no urine output, at 5 p. m. the attendants were advised to take her to a higher centre, where there would be facility of dialysis. We are unable to see any deficiency or negligence on the part of the doctors. The contention of the complainant that no post-operative care was given is without merit.

THE finding of the Forum below that the doctor should not have undertaken the caesarean operation, does not appeal to reason. All patients with ruptured membranes do not end up with septic shock syndrome and DIC. Most patients are able to fight the micro organisms. Just because there are chances of complications, does not mean that all patients should be referred to higher centres. The Forum also held that prior to leaving for Nagpur, the deceased should have been referred to another hospital. However, records evidence that till the time the doctor left for Nagpur, the condition of the deceased was all right. She was also in the care of another Gynaecologist. There was no reason to shift her elsewhere.

IN view of the aforesaid, we do not find any negligence on the part of the opposite parties. The impugned order of the Forum below is set aside. While we dismiss Appeal No. 1123/2005 filed by the complainant, we allow the appeal No. 1119/2005 filed by the opposite party. We however make no order as to costs. This order be retained in appeal No. 1119/2005 and a copy be placed in the record of appeal No. 1123/2005. Ordered accordingly.