R.P. Unniyal vs S.V. Nursing Home

P class="subparagraph">"Don''t Shift Responsibility and Blame" - -It is the situation frequently come across that, how some people not only refuse to accept responsibility when they''ve made a mistake, but they even shift the blame onto someone else...!! The Greek playwright Sophocles put it this way, "It is a painful thing to look at your own trouble and know that you yourself, and no one else, has made it."

Complaint:

THE Complainant Mr. R.P. Unniyal and his wife Smt. Sulochana (since deceased) herein referred as "Patient" who visited the S.V. Nursing Home, OP -1 on 26.1.2002 and consulted Dr. Veena Gupta, OP -2 and Dr. S.V. Gupta, OP -3. After due investigations the OP -2 advised immediate termination of said pregnancy by Dilatation and Curettage (D & C) method. The ultrasound was conducted by OP -3, confirmed pregnancy of 8 weeks. Accordingly, on 26.1.2002 the patient was admitted in the S.V. Nursing Home, complainant paid advance of Rs. 6,000 and on same day D & C was performed. The OP -2 informed the Complainant about the successful termination procedure and assured the couple nothing to worry. The patient was kept in the hospital for one more day. But, meanwhile, the patient started complaining of severe pain and bleeding, the OP -2 was informed, who expressed that, nothing to worry, as no complications and she will improve soon. However, the bleeding and pain went on increasing, but the OPs -1 and 2 repeatedly assured the Complainant not to worry. As the pain became more severe on 27.1.2002 the OP -2 took the patient to the operation theatre and she performed D & C again to ensure that termination had been done successfully. The Complainant alleges that, he was consented for the second D & C because of the pitiable condition of his wife. Despite, the 2nd D & C, patient''s condition further deteriorated and showed signs of excessive bleeding and discharge. Even in such condition the OP -1 and 2 forcibly discharged her on the same day on the pretext that there were no complications and symptoms will go away after few days of rest. However, on 29.1.2002, in the morning condition of the patient became serious, was unable to eat, she had pain in abdomen and vomiting. Also, bleeding was increased and was unbearable. Hence, the Complainant took her immediately to the OP -1 Nursing Home, the OP -3 took the patient for an ultrasound test (USG) at Gupta Diagnostic Centre, Faridabad. The Complainant did not get USG report, but it was given to OPs -2 and 3. Thereafter, the OPs -2 and 3 informed the Complainant about a minor complication occurred and therefore advised the patient to get treatment at Escort Hospital, Faridabad. The OPs -2 and 3 did not disclose the extent and nature of complication. However, the Complainant was not satisfied with the treatment and the explanation given by OPs -2 and 3, he took the patient to Apollo Hospital, OP -4. The patient was attended by team of doctors, OPs -5 to 8, who performed a lengthy operation, but the patient did not recover, finally died on 13.2.2002. The Complainant filed this Complaint against the OPs -1 to 8 for deficiency and negligence in medical services to his wife. His wife was around 34 years of age, she was a school teacher earning Rs. 2,600 and also earning Rs. 4,800 per month by way of private tuitions. Therefore, the complainant prayed for fixing liability jointly and severally on OPs -1 to 8 to pay Rs. 21,31,200 as loss of income, Rs. 2,00,000 towards medical bill and Rs. 5,00,000 for mental agony. Defense:

The OPs filed written versions and denied the negligence. OPs submitted that, the patient Sulochana Unniyal was brought for checkup of pregnancy problem on 26.1.2002 at 4 p.m. to OPD of the OPs and medical prescription was issued to her after checkup. At the same time the Complainant and his wife disclosed that the case had already been handled by a local Dai (midwife) and an abortion had already been attempted, but the problem arose and requested for immediate abortion. The OPs denied that she was advised or performed immediate termination of pregnancy on 26.1.2002 itself. As, it was being a National Holiday (26th January) no ultrasound clinics were open in the evening, hence USG was advised next day. However, she was admitted to the nursing home for observation and medicines were started. There was no increase in bleeding and pain during night of 26.1.2002, advised treatment as stated earlier. On the next day of i.e. 27.1.2002, the USG was performed from the nearest ultrasound centre of Dr. Deepak Gupta. The USG report showed the Uterus was Retroverted, (bent backwards), and there was pregnancy of 8 weeks. Thereafter, at about 12.30 p.m. the D & C was performed, but no products of conception came out and the procedure was abandoned with a plan to repeat it under USG guidance. All the facts were explained to the Complainant and his wife. Also a written consent was obtained from both husband and wife; it is Exhibit OPW 1/10.

THEREAFTER , the patient was kept under observation, she was comfortable, so she was discharged at 6 p.m. on 28.1.2002. The OP further submitted that, after discharge there were more chances that the patient (between 6 p.m. on 28.1.2002 till 10 a.m. of 29.10.2002), might have approached local Dai (midwife) who performed MTP and the intestines being possibly ruptured. It was supported by the findings by the doctors of Apollo Hospital, who reported about multiple perforations in the intestine and the perforation of uterus. Therefore, such multiple perforations can be caused only by unqualified hands (Dai). The OP contended that, since the MTP was attempted by her on 27.1.2002 at 12.30 p.m. and the patient was under observation till 28.1.2002 at 6.00 p.m. i.e. for 30 hours, she did not show any signs or symptoms of multiple perforations, thus the patient was improving. Such multiple perforations can be caused only by the inexperience hands of an unqualified person (Dai), but, not by a qualified doctor.

THE OP further contended that, the death took place at Apollo Hospital due to complications which started at the hands of OPs 5 to 8. The post -mortem was intentionally avoided by the OPs -5 to 8 in collusion with the complainants, to conceal the real cause of death at Apollo Hospital. In support of OPs contention, OP -2 produced Medical Board report as Exhibit OPW 1/2. The OP -2 submitted that, the Complainant knew very well about the complications of patient which had occurred due to mishandling of the case by a local Dai. Therefore, complainant issued a cheque for Rs. 6,000 in advance to the OP on 25.1.2002 itself and brought his wife to OP on 26.1.2002 during emergency condition. It shows the Complainant had already made -up his mind and very well planned to get his wife admitted and treated with the OPs. Due to good doctor -patient relationship, OP -3 charged on for Ultrasound, Laboratory and consumable purchased items, and refunded Rs. 5,000 by cheque dated 6.3.2002. Therefore, the complainant with mala fide intentions filed this complaint, it should be dismissed. Therefore, OP 2 and 3 denied their liability of any negligence in treating the patient. Submissions and findings:

WE have heard the Counsel for the parties. The Counsel for the complainant vehemently argued about the negligence on the part of OP -2 and 3, he did not make any submissions against OPs -5 to 8 regarding negligence. He reiterated the OPs -2 and 3 performed D & C on 26.1.2002, which caused serious consequences and death of his wife. He contended that, OPs concealed several medical reports and documents. The Counsel for the OPs -2 and 3 reiterated the submissions made out in their defense. He further submitted that, the Complainant lodged a FIR against the OPs on 7.4.2002, at Police Station Kotwali NIT, Faridabad under Section 304. The OP was granted bail. The police after police investigations and considering the report of the Medical Board filed a cancellation report in the Court of Chief Judicial Magistrate, Faridabad. The OP -2 filed copy of bail order (Ex. OPW 1/4), copy of the Medical Board Report (Ex. OPW 1/5), copy of the statement given by OPs -2 and 3 to the police (Ex. OPW 1/6 and 7) and to the Senior Superintendent of Police (Ex. OPW 1/8). On the basis of this, the Counsel vehemently submitted that, patient Smt. Sulochana did not expire due to medical negligence and carelessness of the Ops -2 and 3 but, she died because of complications which had arisen at Apollo Hospital. The Counsel further submits that, all possible efforts were made by the OP -2 to procure the indoor file from the police by way of filing application with Court stamp fee (Exhibit -OPW 1/11).

WE have perused the records on file, the copy of Consent Ex. OPW 1/10 and the Opinion of Medical Board (Ex. OPW 1/5). The Medical Board was constituted by IMA, Faridabad in consultation with Civil Surgeon, Faridabad. The Medical Board is of the opinion that, on 26.1.2002 the patient probably handled by a Dai was brought to S.V. Nursing Home where she was examined and ultrasound advised. MTP was tried on 27.1.2002 and patient remained admitted till 28.1.2002 evening for observation. As per records, at the time of discharge, all vitals were normal. We have given our thoughtful consideration to analyze the sequence of events carefully in this case. In nutshell, we found that, as per version of OPs -2 and 3, the patient approached them on 26.1.2002, but D & C of the patient was attempted on 27.1.2002, which did not yield any products of conception; because of retroverted uterus. The OP kept the patient under observation in her hospital and discharged her on 28.1.2002 at 6 p.m. The patient was again brought to S.V. Nursing Home on 29.1.2002 morning with complaints of abdominal distention, pain and bleeding P.V. Dr. Veena Gupta (OP -3) personally took the patient to ultrasonologists, it was suspected uterine perforation, and therefore the patient was immediately referred to Escort Faridabad/Apollo Hospital. As per records of Apollo Hospital, that on 29.1.2002, at the time of admission patient was in shock, pulseless with un -recordable blood pressure and was resuscitated in ICU. Exploratory Laparotomy was done which revealed a large uterine perforation and multiple perforations in ileum. Resection of ileum (with all perforations) with end to end anastomosis was carried out by Dr. Sushil Jain. Products of conception were evacuated and uterine wall was repaired by Dr. Harmeet Malhotra. Again on 5.2.2002, the patient underwent re -exploration for anastomotic leak and loop ileostomy was done. After that patient''s condition further deteriorated. She was given ventilation support, TPN and Antibiotic cover, but in spite of all support and resuscitatory measures the patient died on 13.2.2002 at 1.10 a.m.

AS the crucial documents like case papers, clinical and surgical notes for the period of 26th to 28th January, 2002, maintained by OP -1 hospital were not available on file. Hence, during arguments we have requisitioned complete medical record on file of Case from Chief Judicial Magistrate, Faridabad, but the records were not traceable. Therefore, we proceeded to decide this case on the basis of circumstantial evidence, medical literature and texts. Also, it came to our surprise that, neither OP -2 nor 3 was a Gynaecologist. The OP -1 is a nursing home which functions under the aegis of the OPs -2 and 3, who are husband and wife. The OP -1 holds himself out to be an Orthopedic Surgeon while the OP -2 holds and represents herself out to be a Pathologist, Gynaecologist and Obstetrician. The same is also represented on the letter head of the OP -3 (Annexure G). The said nursing home purports to be a government approved center for abortions having, inter alia, a maternity ward and visiting consultants of all specialists.

WE have examined available medical documents like (a) Discharge Summery of Apollo Hospital, (b) the Histopathology Report given by Dr. Samid Kaul and (c) Medical Board Report. (a) The Discharge Summery of Apollo Hospital (OP -4) is reproduced as hereunder:

Diagnosis:

Post MTP -Uterine Perforation with multiple Ileum Perforations and Acute Peritonitis with Septicemic Shock.

Summary:

Ms. Sulochana Unniyal, 34 years old lady, had undergone MTP in S.V. Nursing Home, Faridabad on 26.1.2002 and was referred to Apollo Hospital on 29.3.2002. She was brought in Triage with unrecordable pulse and blood pressure and was in septicaemic shock. Abdomen was distended, tender diffusely and muscle guarding. After resuscitation in Triage by team of experts, she was admitted in Surgical ICU.

She underwent exploratory laparotomy. There were multiple perforations in the ileum and there was a large uterine perforation. Uterus was bulky. Resection of the ileum (including all perforation) with end to end anastomosis was carried out by Dr. Sushil Kumar Jain. Products of conception were evacuated and uterus and uterine was repaired by Dr. Harmeet Malhotra. Patient continues to remain critical.

On 5.2.2002, she underwent re -exploration for anostomatic leak and loop ileostomy was done.

Patient''s condition further deteriorated. She was on ventilation support, TPN, appropriate antibiotic cover and was looked after by Dr. Sushil Kumar Jain, Dr. Harmeet Malhotra, Dr. Nalin Nag, Dr. Sanjiv Jasuja, Dr. R.K. Mani, ICU experts and anaesthetists. Patient''s condition kept on deteriorating in spite of best efforts by all experts. In spite of all support and resuscitatoy measures, she could not be revived and was declared dead on 13.2.2002 at 01.10 a.m.

(b) The Surgical Pathology Report is reproduced as hereunder:

CLINICAL DESCRIPTION:

Post MTP perforation of small bowel, with peritonitis.

GROSS DESCRIPTION

(1) Resected segment of ileum, 20 cm long, already cut open. Serosal surface shows multiple perforations, varying in size from 3 mm to 1 cm; and the serosa is covered by a thick exudates. The perforations are evident on the mucosal surface. Intervening mucosa appears unremarkable -P/E A -F.

(2) Products of conception - -Multiple, spongy and membranous pieces, altogether Ex. 2 cm. P/E GH.

Microscopic Description:

Sections from the ileum reveal normal mucosal lining and sub mucosal edema and vascular congestion. The serosal surface is covered by fibrinous exudate and acute inflammatory infiltrate.

Sections from specimen labelled ''products of conception show many sheets of decidual cells''.

Conclusion: Resected segment of ileum:

MULTIPLE PERFORATIONS OF ILEUM WITH ACUTE SEROSITIS.

Specimen labelled ''products of conception''.

Products of Conception Confirmed.

(c) Medical Board''s Opinion:

The Medical Board is constituted on the request of investigating Police Officer, it was constituted by Secretary, IMA and the Civil Surgeon, Faridabad, consisted of Dr. Meenakshi Ghai (Gyn.), Dr. Vandana Babbar, M.S. (Gyn.), Dr. S.K. Gupta, M.S. (Surgery). The relevant part (last two para) of opinion is reproduced as below:

"The Board is of the opinion that the patient had died as a combined effect of uterine perforation and the subsequent complications of surgeries done on 29.1.2002 and 5.2.2002 at Apollo Hospital. As per records the patient was stable when she was discharged from S.V. Nursing Home on 28.1.2002. So it cannot be commented upon as per records that whether the perforation occurred on 27.1.2002 or on 28.1.2002 after discharge from S.V. Nursing Home.

As per records, since at the time of discharge on 28.1.2002, the condition of patient was stable and on 29.1.2002 noting the seriousness of patient Dr. Veena Gupta personally accompanied the patient to the ultrasonologists, where perforation was suspected, the patient was immediately referred to a better hospital for further management. Hence, it appears that there is no negligence on part of the treating doctor."

On perusal of clinical notes made by OPs -2/3 in the case paper (Annexure G), revealed the notes for 26.1.2002 and 28.1.2002 only, but the clinical finding and treatment details for the date 27.1.2002 were conspicuously missing. It was an admitted fact that, the uterus of patient was retroverted, and by performing D & C, the OP did not get any material (products of conception). Routinely, the patient will be discharged from the hospital within 3 to 4 hours after D & C procedure, unless there is any complication was suspected during D & C, like uterine perforation. But, in this case, the OP 2 and 3 kept the patient in hospital for 30 hours, for the reasons best known to them only. As per affidavit of OP 2 and 3 that the patient discharged on 28.1.2002 evening, afterwards the patient might have approached Dai for MTP during intervening night, which caused perforation. Discussion:

WE have noted that, there is no evidence on record that the Dai (midwife) has performed the MTP prior to 26.1.2002 i.e. before admission at S.V. Nursing Home. As per the affidavit evidence of the OP -2, the patient had undergone MTP 23/24 January by some Dai; under such circumstances the while admitting the patient on 26.1.2002, the OPs -2 and 3 should have been more vigilant and investigated the case properly. Even, the prescription of OP -1 (Annexure G) available on file did not mention about such details of past corroborative history. The OP -2 and 3 have failed to explain, about, the need of the patient for which she was hospitalized for duration from 26.1.2002, till 28.1.2002 evening. There are no medical records to prove the mode and which treatment was given by OPs -2 and 3 in their hospital from 26.1.2002 till 28.1.2002. Even, it is unfortunate that, crucial records of this case could not be traced from the Chief Judicial Magistrate, Faridabad. Thus, in these circumstances we have to rely upon the circumstantial evidence, available medical records and medical literature.

NO doubt, the hospital (OP -1) is authorized centre for MTP, but we are unable to substantiate that, whether OPs -2 and 3 are qualified to do the MTP (Medical Termination of Pregnancy), as the OP -2 is an Orthopaedic Surgeon (MS) while OP -3 is Pathologist (MD, Pathology). It is also not clear that, who performed the MTP whether OP -2 or OP -3? Whether they are competent and qualified to perform MTP? Furthermore, on perusal of FIR, the statements given by QPs -2 and 3 before the Investigating Officer showed some discrepancies. The statement of OP -2 revealed that on 27.1.2002 "the abortion was attempted by Suction machine", while the statement of OP -3 revealed that "it was attempted by D & C method". The patient''s uterus was retroverted, and there are more chances of perforation of retroverted gravid uterus if abortion is not attempted carefully. In this case the uterine perforation has certainly occurred on 27th due to attempted procedure either by Suction or by D & C. The OPs -2 and 3 anticipated the occurrence of perforation. Therefore, as a precaution, the patient was kept hospitalized under their observation till evening of 28.1.2002 (about 30 hours) under cover of IV Fluids, higher antibiotics and analgesics. She was advised bland diet. Thus, the signs of perforation diminished and the patient was sent to her home on 28.1.2002 evening. But, as per complainant''s submission that, despite of persistent pain the patient was forcibly discharged by OPs on 28.1.2002 on pretext that there was no complication and symptoms would go away after few days. Unfortunately, the perforation became flared up and the patient was brought again to OP -1 on 29.1.2002 with fully blown signs of perforation with vomiting and distention of abdomen, but the patient was subsequently shifted to Apollo Hospital immediately. This clearly goes to show that the uterine perforation further caused damage to the intestine.

OUR observation revealed that on 29.1.2002, about 11 a.m., the patient was taken to Apollo Hospital (OP -4) in critical condition, after resuscitation she was admitted in Surgical ICU, thereafter, the team of doctors (OPs -5 to 8) performed Exploratory Laparotomy, revealed a large uterine perforation and multiple perforations in ileum. Resection of ileum (with all perforations) with end to end anastomosis was carried by Dr. Sushil Jain (OP -5). The products of conception were evacuated and uterine wall was repaired by Dr. Harmeet Malhotra. Again on 5.2.2002, the patient underwent re -exploration for anastomotic leak and loop ileostomy was performed. Thereafter, patient''s condition further deteriorated and died on 13.2.2002. We are of considered view that, the treatment at Apollo Hospital was as per standard of practice. We don''t find any negligence on the part of OPs -5 to 8.

THE Hon''ble Supreme Court of India and this Commission defined the elements of medical negligence. In the case of Dr. Laxman Balkrishna Joshi v. Dr. Tritnbak Bapu Godbole and Anr., : (1969) 1 SCR 206, observed that: "A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."

In Jacob Mathew''s case, it was observed as:

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.

Similarly, in this case the OPs -2 and 3 have not adopted an ordinary care while performing D & C. It is clear that OPs -2 and 3 on pretext of one and another tried desperately to shift their onus of negligence/mistake on either unqualified Dai or on the Apollo Hospital and the doctors. The defense taken by OPs -2 and 3, that the MTP was attempted by the Dai prior to 26.1.2002 or during night of 28.1.2002, is false and not acceptable. These are lame excuses from OPs -2 and 3. The Apollo Hospital''s Discharge Summary and Surgical Pathology Report clearly establish that, there were intestinal perforations, as well as uterine perforation, with signs of severe peritonitis. The opinion of Medical Board is also not supportive to the OPs. It is just a narration of clinical findings; it is devoid of treatment and procedural details adopted by OPs -2 and 3.

The principle of "Eggshell Skull Doctrine" is applicable in this case, wherein liability exists for damages stemming from aggravation of prior injuries or conditions. The "eggshell skull rule" is a legal doctrine used in both tort law and criminal law that holds an individual liable for all consequences resulting from their activities leading to an injury even if the victim suffers unusual damages due to a pre -existing vulnerability or medical condition. Doctrine that makes a defendant liable for the plaintiffs unforeseeable and uncommon reactions to the defendant''s negligent or intentional tort. Therefore, on the basis of evidence, medical documents, the chronology of the events and considering the circumstantial evidence, we have arrived at a decision, that OPs -2 and 3 are responsible for the medical negligence.

A "safe" abortion is "safe" only after its completion. However, according to Williams Textbook of Obstetrics, many cases of perforation may go undetected and, when observed, can be treated without surgical intervention. Conservative management is usually recommended for uterine perforation during dilatation and curettage (D & C), also considerable intra -abdominal damage can be caused by instrument passed through a uterine defect. Thus, "unsafe" abortion performed by inexperienced doctor is considered the cause. However, it may happen with experienced obstetricians in a tertiary centre. We must consider certain aspects of the D & C procedure. D & C is performed in a "blind" manner, meaning that it depends on tactile feedback to the operator. Experience and skill of individual doctors are essential for a safe D & C. However, the nature of the procedure itself prevents complete avoidance of adverse events. Complications will occur in a certain percentage of patients even if the procedure is expected to be "routine" and performed by experienced obstetricians or a doctor (OP -3), as was the present case the uterus was retroverted. The OP -3 who failed, she must be aware that adverse events such as uterine perforation with intestinal injury can occur even during routine D & C.

It is an admitted fact that, the deceased/patient was a Teacher and she left behind her husband and two children. Therefore, complainant deserves just and proper compensation. Accordingly, we allow the complaint and order the OPs -2 and 3 to pay compensation of Rs. 10,00,000 (ten lacs) with interest @ 6% p.a. from the date of filing of this complaint. Order shall be complied within 90 days from the receipt of this order; otherwise it will carry further interest @ 9% p.a. till its realization. The complaint against OPs -4 to 8 stands dismissed. The parties are directed to bear their own costs.