Tirath Ram Shah Charitable Hospital vs Kamini Yadav

THE present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 25.9.2008 in Appeal No. 52/2006 passed by the State Consumer Disputes Redressal Commission (in short, ''State Commission''). The State Commission dismissed the Appeal filed against the order in Complaint No. Consumer Complaint 185 of 2003 dated 19.12.2005 passed by the District Consumer Disputes Redressal Forum (in short, ''District Forum''). The Complainant''s wife Mrs. Kamini was attending the Antenatal Clinic of the OP Tirath Ram Shah Charitable Trust Hospital during her pregnancy. On 14.9.2002 she was admitted to OP hospital with severe pain of pregnancy. She was checked up regularly by senior consultant Dr. S. Budhiraja who found that the patient and the baby were in normal condition. On 15.2.2002, at 5 p.m., Caesarean Section (LSCS) was performed, and a male baby was born. Baby survived for 24 hours thereafter and passed away, suddenly. It was the allegation of the complainant that, husband of complainant gave consent at 2 O''clock, but till 4 O''clock, nothing was done, no doctor was available in the hospital. Hence, due to delay in delivery and negligence, the baby did not survive. Hence, filed a complaint before the District Forum.

THE District Forum held the OP liable for medical negligence because of the delay in performing the LSCS operation which resulted the death of the child, and directed the OP to pay Rs. 1,00,000 as compensation, and Rs. 5000 as costs to the Complainant. Being aggrieved, the OP has preferred the first appeal, which was dismissed by the State Commission.

AGGRIEVED by the impugned order of State Commission, the OP filed this Revision Petition.

HEARD the learned Counsel for both the parties. The Counsel for the Petitioner explained the chronology of events during delivery of child, as following: At 1.00 p.m., the patient had mild to moderate pains and the FHS increased to 144/min. At 02.45 p.m. the pain got stronger and an internal check -up was repeated, the OS was found to be 3 -4 cms. Therefore, an Artificial Rupture of Membrane (ARM) was done; it was found that the liquor was stained with the meconium of the baby. After consent, operation was performed, there was thick meconium and a loop of card was present around the neck of the fetus. This could have been a cause for fetal distress and passing of meconium which was not within the control of the doctors. The baby was born at 5.05 p.m. and handed over to Pediatrician immediately after the birth, suctioning of Nasapharynx and Trachea was done under direct laryngoscopic vision and thick meconium was removed. Since, no cry was thereafter noted, physical stimulation and artificial bag and mask ventilation was given approximately for one minute. After that spontaneous breathing and cry was established.

The Counsel for complainant argued that, particularly as once the ARM revealed that the liquor was stained with the stool of the baby, it was the emergent condition, and operation should have been performed without any delay. The inordinate delay is inexcusable and amounts to deficiency in service by OP; hence the child suffered aspiration pneumonia and death.

PERUSED the evidence on record, the clinical notes, and the relevant medical literature on the subject. The main allegation of the Complainant was that there was delay in performing LSCS, though the consent was given at 2.00 p.m. The baby was delivered at 5.05 p.m., and thereafter as per the standard protocol of resuscitation of child, by suction of Nasapharynx and Trachea was done under direct laryngoscope and thick meconium was removed.

THE main question to decide is, "whether, the delay in performing LSCS after signs of fetal distress, was a fatal one - I have perused the Informed Consent, it was mentioned that "Emergency LSCS", it was signed by the complainant herself and the Husband also. It is quite surprising that, nothing was mentioned about the date and time of consent. Hence, such consent is a Blanket Consent. Therefore, the submission of Complainant is to be believed that, the consent was given at 2 p.m. itself. Secondly, the Progress Sheet (pg. 122) revealed that at 3.15 p.m. the FHS (Fetal Heart Sound) present and the rate was 160 -172/min. It is clearly indicative of sever fetal distress. Thereafter, the OP made arrangements for anesthetist, which further delayed the operation. There was delay of 2 hours from ARM to performance of LSCS. It was an inherent duty of treating doctor to operate the patient, immediately, with a paramount concern to save the child. The OP hospital has failed to counter such emergency. The Hon''ble Supreme Court in the case of Dr. Laxtnan Balkrishna Joshi v. Dr. Trimbark Babu Godbole, : AIR 1969 SC 128 and in A.S. Mittal v. State of U.P., : AIR 1989 SC 1570, has laid down that: "When a doctor is consulted by a patient, the doctor owes to his patient, certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may, on that basis, recover damages from his doctor."

In view of the said judgment, I am of the opinion that the doctors at OP hospital, have delayed, to perform LSCS during the fetal distress. Hence, it was a deficiency in service and negligence. There was no duty of care. Therefore, there is no need of any interference in the order of State Commission. Accordingly, the revision petition is dismissed.