VIJAY H. MANKAR vs MANGLA BANSOD

ORIGINAL Petition No. 221/92 has been filed by Shri Haribhau Mankar, husband of late Mrs. Lata Vijay Mankar for alleged medical negligence on the part of Dr. Mangala Bansod, Bansod Nursing Home, Medical Chowk, Nagpur, (opposite party 1) in the treatment rendered to his late wife; Mr. Naresh Bansod (husband of opposite party 1) and Casualty Medical Officer, Government Medical College Hospital, were respectively opposite parties 2 and 3. This case was originally filed before the Maharashtra State Consumer Disputes Redressal Commission as Complaint No. 16/91 where it was heard but by its order dated 21.9.1992, the State Commission felt that due to certain circumstances explained in that order, the complaint could be withdrawn and posted to any other State Commission for decision upon which the National Commission ordered withdrawal of the said complaint to the National Commission and posting of the same for hearing before it. During the proceedings before the National Commission, the Commission directed through its order dated 23.2.1999 that there is no reason for making opposite parties. 2 and 3 as parties and their names may be struck out from the array of opposite parties. In the result, opposite party No. 1 who was the treating doctor against whom allegations of medical negligence have been mainly made is the only opposite party. In view of this, we shall refer to opposite party No. 1 as opposite party in our discussion.

FACTS of the case according to the complainant are as follows. The complainant''s wife (deceased), Lata Mankar, aged 37 years was a regular patient of opposite party and during her pregnancy, she was regularly treated and consulted all through her pregnancy by opposite party, a Gynaecologist, practising in Nagpur since last few years. The patient was mother of two daughters aged about 16 years and 12 years. Almost near the expected time of delivery on 31.5.1990, at about 12.30 p.m. Lata Mankar was feeling uneasy and she went to opposite party''s. nursing home, alongwith her mother, Sudhatai Surkar. After check-up, opposite party told her that there is nothing to worry and prescribed her some medicines and advised her to go home, as there was a week''s time for delivery. However, after taking the medicines prescribed by the opposite party, she had bleeding (black) in the night, which she noticed on the next day morning. On the next day i.e. 1.6.1990, she went to the nursing home around 12.30 p.m. alongwith her mother-in-law. Opposite party sent her to Dr. Gheeke Khandelwal for sonography which was done at about 2.30 p.m. that day and the report showed that the foetus was dead. Thereafter, the patient was admitted in the nursing home at about 3.00 p.m. on 1.6.1990. However, upto 8.00 p.m. for five hours, no treatment and attention was given to her; when asked by Dr. (Mrs.) Kumud Surkar (sister-in-law of the deceased) who is also a doctor, about the cause of death of foetus in the womb, opposite party avoided to answer. Around 7.00 p.m. the patient started pains and her brother Dr. Vilas Surkar (also a doctor) requested opposite party to take quick action but she came at about 8.00 p.m. and started pitocin drip around 9 p.m. and went back. The patient was tired due to pains and mental tension and at about 11.30 p.m. when her condition became worse, her sister-in-law went to opposite party''s house and requested her to perform caesarean operation to remove the dead foetus but opposite party said that it was not necessary and that the foetus would come out normaly. Near about 12.00 p.m., opposite party came to her nursing home from her residence and thereafter, the patient was removed to the labour room. Till 2.00 a.m., what was going on in the labour room was not known to the relatives who were standing outside the labour room. At 2.00 a.m., opposite party came out of the labour room and told the relatives that the patient has delivered a baby naturally and she was alright. Within 5-10 minutes, however, opposite party asked the patient''s relatives to arrange for two bottles of blood of ''O'' Positive group, as there was profuse bleeding. The patient''s brother, Dr. Surkar and his friend, Dr. Milind Naik went out for arranging blood from a blood bank of Dr. Wankar situated at Panchsheel Square, Wardha Road, Nagpur. Before going to the blood bank, the patient''s brother requested opposite party to take blood of her Doctor friend whose blood group is also ''O'' positive, but she refused to take direct blood, on the ground that without cross-matching of blood, she will not take blood. The doctor sister-in-law of the patient asked opposite party to allow her into the labour room to see the patient but opposite refused. The complainant who was present in the nursing home was asked to arrange for more blood as the requirement of blood was 10 to 12 bottles and two bottles were not sufficient. According to the complainant, there was some mala fide intention as all the responsible and male members were deliberately sent out of the nursing home under the pretext of arranging blood. In the meanwhile when the complainant went to the blood bank, the doctor sister-in-law of the patient found opposite party and her husband with the help of one Dr. Deola and a nurse in the hospital, shifting the body of the patient completely wrapped in a white bed sheet in a maruti van. Another sister-in-law of the deceased, Mrs. Malti Mankar was asked to accompany them in the van. The head of the patient was on the lapse of Malti Mankar who observed that the body was quite cool and there was no movement in the body. She was not allowed to see the face of the patient by opposite party''s. husband who was then driving the van. When the body of the patient was shifted in the van, no life saving equipment like blood or saline was attached to her; the body was shifted to Government Medical College (GMC) Hospital without the consent or knowledge of her relatives. In the G.M.C. opposite party hurriedly pulled the patient out of the Van, kept the body on streture and drove the streture herself to Ward No. 18. Opposite party''s husband asked Mrs. Malti Mankar to wait at the main gate for the other relatives, who had gone for blood arrangement. Mrs. Malti Mankar, Mr. Vijay Mankar and Dr. Milind Naik, rushed to Ward No. 18 and found Mrs. Lata dead. The complainant submitted that the patient was directly taken to Ward No. 18 instead of taking to casualty, while opposite party''s husband went for the formality of casualty card etc. In the G.M.C., no medical treatment was given to the deceased as she was already dead which fact has been registered in the record of G.M.C. The complainant has mentioned that the patient was admitted in the G.M.C. on the early morning on 2.6.1990 at about 2.45 a.m. and as per the death certificate of G.M.C., the time of death was 3.05 a.m. and the cause of death was P.P.H. (Post Partum Haemorrhage). In the discharge report, opposite party admitted that the deceased started profuse bleeding at about 2.15 a.m. It is complainant''s case that Mrs. Lata''s death was due to profuse bleeding on account of the insistence of opposite party to deliver the baby naturally and the death occurred prior to the removal of the patient to G.M.C. Opposite party had tried unscientific ways, unprecedented to medical science and knowledge, for delivery of the baby as the baby was deeped in blood and the skin of the baby was having various injuries. According to the complainant, the foetus must have died 4 to 5 days before delivery but this was not checked up by opposite party on 31.5.1990. The complainant''s brother had alerted the opposite party to keep every thing ready for emergency which may arise and also to take expert opinion. Opposite party should have made arrangements for blood and anesthesia before hand, but no such arrangements were made. Anesthesia Specialist Dr. Deole and his wife, the Gynaecologist entered the labour room at 2.00 a.m. on 2.6.1990 which is the time of the delivery of the baby; thus both these Specialists were not present at the time of delivery of the baby nor did they play any role in the process of delivery. In the Discharge Report, opposite party''s statement that the deceased was shifted from her nursing home to G.M.C. with the consent of relatives of deceased is false. Also opposite party''s averment that when the patient was admitted to Ward No. 18 ''C'' drip was attached to her is false. The request of relatives of the deceased for post mortem was deliberately avoided by opposite party. The complainant submitted that their request to the Casualty Medical Officer (CMO) for police investigation and to register a medico-legal case was denied by the CMO. The complainant stated that the deceased paid consultation fees to opposite party whenever she went for check up. The complainant, alleged that opposite party, a practising Gynaecologist failed to take reasonable care to provide skilled service to the late Mrs. Lata and to follow the rules and regulations of professional ethics provided under Medical Council''s Act and Code of Discipline, and was solely responsible for the death of the complainant''s wife which occurred because of her gross negligence. The complainant has also mentioned that opposite party''s husband who had no connection with the medical profession has abetted the opposite party in concealing the death of the patient in the nursing home. On this basis, the complainant claimed damages and compensation from opposite party and her husband for a sum of Rs. 7,47,600/- comprising, (i) Rs. 2,37,600/- towards loss of earnings at Rs. 900/- p.m. and considering the longtitude of 60 years age; (ii) Rs. 3 lakhs towards de-limiting the right of living and for loss of motherhood of two daughters; (iii) Rs. 1 lakh for negligence towards the foetus in womb and its death; (iv) Rs. 1 lakh for harassment and tension to complainant and his family; and (v) Rs. 10,000/- towards cost of complaint.

In her reply version, opposite party raised the preliminary objection that she had not accepted any fees or charges from the complainant and the deceased as they were close relatives of medical practitioners. The complainant had not produced any document to support that he had paid any fees to her. Therefore, he is not a "consumer" who hired her ''services'' within the meaning of the Consumer Protection Act. She stated that, (i) opposite party was in-charge of the treatment of the deceased from the beginning of the pregnancy of the complainant''s wife; (ii) She was pregnant after a gap of 12 years and it was reported to be her 3rd gravida; (iii) She did all the necessary immunizatin, routine investigations (Hb, urine, blood grouping, Rh typing) and regular foetal monitoring; (iv) The patient was suffering from toxemia and she gave necessary treatment and advised the patient admission in the hospital and bed rest but the deceased or her relatives did not take the matter seriously and did not admit her which probably resulted in intra uterine death, (v) on 31.5.1990, the patient came to opposite party at about 12.30 p.m. with complaint of loose motion 5-6 times on the previous night and gripping pain in abdomen; her B.P. was 130/90 and there was Oedema in feet indicating toxemia. Foetal heart sounds were present and normal. Since the patient had complained of loose motions and there was toxemia and mild dehydration, opposite party advised the patient to get herself admitted in the nursing home so that she could correct her fluid and electrolytic imbalances, but the patient did not heed to the advice. She was prescribed medilyte powder, diazapam 5 mg. etc. and advised complete bed rest and plenty of oral liquids; (viii) the patient took some medicines in the night of 30th and 31st May from her brother-in-law, Ashok Mankar who is having a medical store. In the cross-examination of the complainant, he mentioned, "I don''t have either the bills or left over medicines given to her on that day i.e. 31.5.1990". Opposite party stated that this falsified and actual purchase and consumption of the prescribed medicines and the alleged side effects. The patient reported to the opposite party on 1.6.1990 complaining backache and slight brownish vaginal discharge. On examination, it was found that her blood pressure was 140/100 mm. of Hg and there was mild uterine contractions and Oedema on feet. Her P.V. examination was done, the cervix was one finger tight, dilated and brownish spottings were seen. The foetal heart sounds were absent and could not be heard even through Cody''s foetal monitor. The patient was advised to go in for urgent ultrasonography from the Ultra Sonography Clinic of Dr. Khandelwal. The Sonography report showed that the foetus was dead and the placenta was on fundal level. Dr. and Mrs. Surkar were informed about the intra-uterine death (IUD). The patient was admitted immediately at about 3.00 p.m. Since the placenta was at the fundal level and it was a case of IUD, opposite party felt that there was absolutely no necessity to go in for a caesarean; as a matter of fact, in IUD cases, caesarean is contraindicated in all standard books of obstretics. Opposite party denied that Dr. (Mrs.) Surkar requested her for doing caesarean section and that no treatment was given till 8.00 p.m. The patient was kept under constant observation. She was given enema for induction of labour, her blood pressure was recorded from time-to-time, and she was also given injection Calmpose intramuscular. The bleeding time and clotting time of the patient was found to be normal. After waiting for the progress of labour upto about 9.00 p.m. and seeing that labour was not progressing, pitocin drip was started for induction of labour at 8.50 p.m. Besides the opposite party, the patient was constantly under the observation on the progress of labour by a Junior Doctor, Dr. Miss Vandana Wankhande, and the trained nurse. Opposite party mentioned that there is no possibility of rupture of uterus or patient going in for shock due to the pitocin, if it is monitored properly and given in proper doses. Since labour was progressing satisfactorily, opposite party went home at about 10.00 p.m. for meals and came back at about 10.30 p.m. She denied that at about 11.30 p.m. the patient was exhausted due to physical and mental strain and that Dr. Mrs. Surkar went to opposite party''s house to call her to the nursing home. After 10.30 p.m., opposite party was in the nursing home itself. According to opposite party, in the present case, labour was progressing normally and there was absolutely no reason for doing caesarean section. Pitocin drip was continued and in addition Ampicillin injection 500 mg. was started. Again at 11.50 p.m., opposite party examined the patient and observed strong pains and contractions which were lasting for one minute after every two minutes. The patient was taken to the labour room at about 12.30 a.m. in the night. The head of the foetus was at +1 station. B.P. was 130/90 mm. of Hg. Opposite party submitted that Dr. Mrs. Kumud Surkar was inside the labour room with her all along. At 2.00 a.m., the patient delivered normally. Opposite party said that as she felt it desirable to have one more assistant particularly because the patient was a near relation of a brother professional, she sent a messenger to call one Dr. Mrs. Deole, a Gynaecologist. Dr. Mrs. Deole and her husband, Dr. Deole who is an anesthetist, came to the labour room at about 2.00 a.m. Opposite party denied that within 5 - 10 minutes after she informed about the normal delivery, she asked for 2 bottles of ''O'' Rh+ve blood as there was profuse bleeding. After the delivery, the patient was normal. Pitocin drip was continued and at 2.15 a.m. placenta was expelled completely and then there was bleeding. Opposite party and Dr. Mrs. Deole examined the patient to explore the cause of bleeding and found that it was through uterine cavity and there was no tear or injury to the birth canal i.e. cervix, vagine and uterus. Apprehending it to be a case of atonic PPH, treatment was started to stop bleeding, like giving uterine massage, repeating of methargin injection, monitoring the doses of pitocin to 10 and 20 units. The patient was also put on Haemaccel (supplement of blood). It was at this stage the relatives were informed about the bleeding and were asked to arrange blood. Opposite party stated that the decision to take the deceased to the G.M.C. Hospital was done in consultation with other doctors present in the labour room where Dr. Mrs. Surkar was also present. Opposite party said that she was holding saline bottles in her hands which was being given to the patient when she was taken to GMC Hospital. It was the casualty attendant who took the patient to Ward No. 18 with the assistance of Dr. and Mrs. Deole and mother of the complainant. As soon as the CMO was informed that it was a case of atonic PPH, he asked to take the patient directly to Ward No. 18 and then made the endorsement on the casualty card. Opposite party denied that the patient was dead before she was taken to the GMC; the patient was admitted at about 2.40 a.m. in the GMC and as per the death certificate issued by the hospital, the time of death was 3.05 a.m. and the cause of death was heavy bleeding. According to the opposite party, the bleeding was on account of atonic PPH and had nothing to do with the manner or process of delivery; the photographs showed no injuries on the dead foetus. The peeling of the skin etc. and blistering is on account of the maceration because of which the foetus was swollen and its colour was dusky red, indicating that the foetus died 12 to 24 hours prior to delivery. Opposite party stated that an Anesthetist is necessary only if some surgery is to be undertaken. Also in the instant case where a normal delivery was expected, blood was not required. Opposite party mentioned that it was the complainant who insisted and requested that no post-mortem should be conducted because cause of death was already known as atonic PPH but that, on after-thought, he lodged complaint to the police who registered the offence under Section 304-A read with Section 34 of the Indian Panel Code against the opposite party and others. After a thorough investigation, the police came to the conclusion that there was no material against the opposite party to say that the death of the patient was on account of any negligence on the part of the opposite party, and therefore, decided to file the proceedings. Opposite party mentioned that she had done whatever was possible and to the best of her ability, to save the life of the patient. Since, it was a case of atonic PPH which is not very common and since the patient did not respond to the treatment, bleeding could not be stopped as a result of which the patient died; there is absolutely no negligence on her part.

THE complainant and opposite party filed lists of witnesses and persons to be cross-examined. A prayer was made for getting the evidence of witnesses and cross-examination recorded before the President of the District Forum, Nagpur, since all of them are residents of Nagpur and are Marathi speaking : the request was acceded to by this Commission. Counsel for the complainant made a request for permission to examine Dr. Nirmala Ganpat Rao Mokadam as an expert witness from the complainant''s side so that the affidavit already filed by the said Doctor may be supplemented by her oral testimony which would be subject to cross-examination. In the examination-in-chief, opposite party again took the point that she has not charged anything by way of consultation charges or even injection charges. She filed OPD register on record to indicate the payments received from the patients in general. Main points made by opposite party are : (i) Right from conception till the 9th month of pregnancy, the patient''s condition was alright and it was in the ninth month that she developed BP (her B.P. was 140/100 mm. of Hg.). On 15.5.1990, when the patient came for check up, her B.P. had risen and opposite party advised her admission but she did not follow her advice. On 24.5.1990, when the patient came for check up, she was found to be responding to opposite party''s treatment. Opposite party averred "it is not correct to say she was not following my advice but she did not follow my specific advice to get admitted in the Hospital"; (ii) On 31.5.1990, when the patient came with complaint of loose motion on the previous night and pain in abdomen, opposite party advised her to take capsule "Spasmo-proxivon" alongwith the earlier treatment. This was needed because she was having intestinal colic; the dose was subtherapeutic and it can be given in the last trimester of pregnancy, as at that time the foetal development is complete. Opposite party did not record the rate of foetal heart sounds on 31.5.1990 because it was present and normal; (iii) She performed episiotomy incision to the perineum and posterior vaginal wall on the patient, using absorbable sutures and there was no bleeding at that time. She had given stitches after the placenta was expelled. It takes 5 minutes to fix the stitches. Opposite party administered local anaesthesia; for giving local anaethesia, no anaethesist is required. Even though episiotomy was performed, in opposite party''s opinion, the delivery was normal. In 85% cases of normal deliveries, episiotomy is performed. She did not check the B.P. as she was wearing gloves but the accompanying doctors checked the same; (v) After the placenta was expelled, the patient started bleeding profusely. Immediately Dr. Deole who had come in with his wife took a sample of blood (which was given to Dr. Milind Naik and Dr. Mr. Surkar for arranging blood from the blood bank) and started another drip of Haemaccel on the other hand. The bleeding was so profuse that it could not be controlled and there was a fall in the B.P. Dr. Deole gave her injections Mephentine, dexamethasone and soda-bi-carb to raise the B.P., and B.P. rose to 80 mm. of Hg. While bleeding still continued, blood had not yet arrived from the blood bank and it was also an odd time of 2.00 a.m.; it was decided by herself, Dr. and Mrs. Deole and Mrs. Kumud Surkar to shift the patient to the GMC Hospital since the same was just across the road, it has a 24 hours blood bank and has easy availability of blood and also more people would be assisting her; (iv) The patient was taken to CMO who was in the room. The CMO saw vital signs of the patient and made endorsement on the Casualty Papers to admit to Ward No. 18. In the meantime, opposite party''s husband got prepared the indoor card on the basis of the casualty papers. In the Hospital, the treatment was of administering some injections through saline drip and some injections intra-cardia, and anesthetist inserted, an endo-tracheal tube for administering oxygen needed. Despite efforts made by all the doctors, the patient did not respond and she died, after 20 minutes at about 3.05 a.m.

OPPOSITE party stated that the deceased had developed toxemia in the last month. Oedema with rise in blood pressure is toxemia in pregnancy. But the main feature is rise in B.P. Even if oedema is reduced and the patient is having B.P., it is toxemia in pregnancy. If the toxemia in pregnancy is for a prolonged period, the placental insufficiency in foetus may cause death of foetus. As per her knowledge, this was a case of prolonged toxemia in pregnancy. According to opposite party, the foetal death occurred due to three reasons, (i) the deceased did not attend her nursing home as often as required, did not take medicines and did not get admitted as per her advice; (ii) because of toxemia of pregnancy; and (iii) the deceased took medicines given to her as per her information, by her brother-in-law. She could not definitely state as to when the death of the foetus occurred; it could be any time after the patient left the nursing home on 31.5.1990 and before she again came to the nursing home on 1.6.1990. According to opposite party; (i) the percentage of PPH is 1%, and of atonic PPH in PPH is around 80%; (ii) it cannot be anticipated that in a particular case, PPH would occur; and (iii) in normal circumstances, they do not make any preparation for blood transfusion, in advance, because it is expensive and one has to undergo number of tests. OPPOSITE party admitted that she had not made any arrangement for blood though she had already made enquiry for such provision. She added that even after this incident, Dr. Naik had referred some patients to her, which reference letters were on record. In her affidavits, the expert witness, Dr. Mokadam averred that she was giving her personal opinion on the strength of the documents of treatment submitted in the case. She categorised the case as a one of ''elderly premilike'', a specially obstretic risk case with anaemia, toxemia and IUD. She repeated this in her cross-examination. A patient at the age of 37 years becoming pregnant after a long gap of 12 years should be treated as elderly pregnancy, like an elderly primi. The uterus in that case forgets to act, pelvis becomes narrow, the size of the baby increases, soft tissues become very resistant and strong and there is less chance of the patient having a normal delivery. She said such a patient invariably ends in caesarean section operative delivery which is safe for both mother and the baby, whether alive or dead. On repeated questioning, the expert admitted that a pregnant woman with 11.6 gm. of hemoglobin, is not aneamic; the deceased was reportedly having hemoglobin of 11.6 grams. The expert explained that toxemia is a condition which is present in pregnancy, in the second or third primi gravida characterized by hypertension with oedema. Toxemia in pregnancy can give rise to development of fits, i.e. eclampsia and there may be cerebral haemorrhage, thrombosis and the patient may develop kidney failure and may die. The deceased was a case of severe toxemia of pregnancy. In the expert''s view, the BP record of the patient taken on 1.6.1990 and 2.6.1990 i.e. 140/110 mm. of Hg. at 4.00 p.m., 130/90 mm. of Hg. at 12.30 p.m., 100/70 mm. at 2.10 a.m. and 40 mm. systolic at 2.25 a.m. does forewarn something amiss with the patient''s condition, even to the extent of rupture of the uterus - actual or impending. She felt that a constant, vigilant skilled attendance at care did not seem to be forthcoming from a junior doctor or the nursing staff especially in the case of pitocin drip in an elderly primi. As regards the minimum dose of pitocin required to be given for induction of labour, the expert set it at one or two units of pitocin diluted in glucose at the rate of 20 to 30 drops per minute to be adjusted during the whole period of drip which can start the labour pains, with senior medical persons sitting with the patient, watching the uterine contractions. The patient will not have atonic post-partum haemorrhage, if she is given 10 or 20 drops of pitocin after delivery. On questioning, the expert observed that pitocin is used for healing PPH "if the uterus is intact". She clarified that one or two units of pitocin in drips are given for induction of labour pains and if the labour pains progress satisfactorily, the rate can be continued till the patient delivers. But if one or two units of pitocin are causing strong tetanic contractions exceeding one minute, the patient may have rupture of the uterus. Her view was that pitocin was to be discontinued if the uterine contractions exceed one minute. Pitocin is meant to improve tonus of the uterine muscle; the patient will not have haemorrhage when she is being given intravenous pitocin judiciously.

TO the question whether in case of intra-uterine death, the following sequence of treatment should be adopted i.e.; (i) spontaneous labour to be awaited; (ii) induction of labour to be tried; and (iii) only in cases of failure of these two attempts, surgical intervention is required, the expert replied : "This is not correct. All the three alternatives have got their own limitations and their own places. There are different indications for all the three methods to be used or to be employed. In case there is a death of baby inside the uterus, all the three cannot be put by rule of thumb. "We have to individualise every particular patient". Citing the case on hand, this patient was 37 years old with B.P. of 140/110 mm. per Hg. She has got to be immediately taken up for caesarean section to deliver the baby to save the life of mother from traumatic delivery. The expert did not agree that caesarean is contraindicated in case of intra-uterine foetal death. According to her, if the labour is not progressing properly but if there is a possibility of rupture of the uterus, it is better to deliver the patient with intra-uterine death by a ceserean section rather than lose the mother due to traumatic PPH. She observed that the possibility of rupture of the uterus can be detected if the patient is getting strong, tetanic contractions i.e. every two minutes lasting for one minute and the cervix is not dilating and it is just one or two fingers loose. There will be tenderness of the uterus and the patient will have torrential bleeding from the uterine cavity. She also said that even in the case of rupture of uterus, urine can be clear as with rupture of uterus, there is no danger or damage to the bladder. It was the expert''s view that when the patient bleeds profusely, massive blood transfusion is a prime necessity and should be thought of before hand in the case of anemic, high risk pregnant women, with severe or moderate toxemia of pregnancy, who may develop atonic PPH due to failure of contraction and retraction of the uterus.

THE expert mentioned that fibrinogen level was not done in the case. Fibrinogen level falls because of retention of dead foetus for a long time, for four weeks and more. She also observed that when the BP of a patient goes down to 40 mm. per Hg. due to shock and if there is no blood replacement, it is an irreparable shock profusion to the whole tissues and there is multi-disciplinary organ failure. She could not get convinced that BP could rise from 40 mm/hg. to 80 mm./hg; it just cannot happen in irreversible shock. However, opposite party observed that the opinion of the expert is not based on proper data. Opposite party had produced an expert witness, Dr. Jai Dashmukh. He had seen the case papers i.e. OPD papers, ultra sonography report and literature of Spasmo Proxyvon. He averred that prescribed dose of spasmo proxyvon was a sub-therapeutic one and was safe and does not affect the growth of foetus since it was in 35th week, at which time the foetus is fully developed. He stated that "Spasmo Proxyvon" is given only for abdominal colic and is contraindicated in case of patients working near heavy machinery, alocholist, first trimester of pregnancy and in combination with large dose of transquilizers. He said that in this case, besides medilyte and spasmo proxyvon tablets, paxum was given to the patient only for easing her from anxiety. Paxum can cause mild sedation. He admitted that hospitalisation is advised to a pregnant patient having 5-6 times loose motions so as to avoid further complications while it is not needed in normal cases. In his opinion, the deceased''s condition was due to shock probably due to peripheral circulatory failure. He, however, stated that it was difficult to say since he had not examined the patient.

Dr. Mrs. Kumud Surkar, sister of deceased''s husband is a homeopathic (BHMS) doctor like her husband. In her deposition, she said inter alia that, (i) when she asked the opposite party the reason for foetal death, she gave a vague answer; (ii) opposite party took the patient to the labour room at 12.15 a.m. and that was the last time she saw the patient alive; and (iii) when she asked the opposite party if she could accompany the patient in the labour room, opposite party declined saying that since she was her relative, she should not come. In the examination-in-chief, Dr. Satish Deole who had come to help opposite party observed that when bleeding was profuse, opposite party and Mrs. Deole explored the site of bleeding. There was no vaginal or cervical tear. The bleeding was from the uterus and due to blood loss, there was fall of blood pressure of the patient.

THE complainant in her additional submissions referred to the affidavit of the Casualty Medical Officer, GMC stating, (i) the deceased was directly taken to ward No. 18 and was not made available to him for check up and (ii) the patient was received dead in the hospital as per records and that it has been verified from the papers of the G.M.C. However, the opposite party contended that this affidavit cannot be relied upon since it contradicted his earlier written statement. The case was finally heard on August 5, 1999. Both sides were allowed to file written submission in support of their oral arguments, which have been received. We have heard both the parties and carefully gone through the papers of the case and the record of evidence including the opinions of the expert witnesses. Opposite party has stated that the matter has been gone into by the Maharashtra Medical Council who have unanimously resolved to accept the recommendation of their Executive Committee that the medical practitioner was not negligent nor careless in the treatment and hence be exonerated. However the complainant stated that he has already filed an appeal against the same before the Indian Medical Council which is still pending. The preliminary objection of the opposite party is that she has not received any payment as consideration from the complainant and that, therefore, ''service'' rendered in the case is not covered by Section 2(1)(o) of the Consumer Protection Act. However, in the order of the Supreme Court, Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), it has been inter alia stated that services rendered by a non-Government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered services free of charge would fall within the ambit of the expression ''Service'' as defined in Section 2(1)(o) of the Act. It is true in the present case, opposite party''s averment is that fees were not charged because the patient was a close relative of colleague doctors and that it was not a case of ''free'' service because the patient could not afford to pay. Although in their order, the Supreme Court have not distinguished a case of ''free'' service of the kind as in the case on hand, the spirit of their order is that expenses incurred for providing service free of charge to certain patients are met out of income earned by the doctors/ hospitals from services rendered to paying patients and in this view of the matter the non-paying patients are beneficiary of the services which are hired or availed of by the paying patients. That apart, the Supreme Court observed that all persons who avail of the services of doctors are to be treated on the same footing irrespective of the fact that some of them pay for the services and others avail the same free of charge. Also, the complainant had deposed that opposite party had not given receipt for fees paid and that opposite party told his mother-in-law on 31.5.1990 that she would give consolidated receipt for all payments, after delivery. The mother-in-law has filed an affidavit to this effect. In view of the aforesaid discussion, this point need not detain us from proceeding with the adjudication of the complaint on merits.

IT is admitted fact that the patient was pregnant after a gap of 12 years after the birth of her second child. The opinion of complainant''s expert witness was that during such a long gap, the uterus forgets to act, the pelvis becomes narrow and soft tissues become very resistant and strong. According to her, the case of the patient was one of severe toxemia of pregnancy. Interestingly in her deposition, opposite party also opined it to be a case of toxemia of pregnancy though mild. Opposite party has stated "According to my knowledge, the case was a case of prolonged toxemia in pregnancy"; opposite party pointed out toxemia of pregnancy as one of the causes for foetal death. She also performed episiotomy on the patient because the perineum was rigid. Opposite party categorised the patient as high risk patient having regard to her age, the gap between the present delivery and the previous one: "she stated that she had made the patient aware of the high risk and that she attended and treated her personally. At the same time, she felt she was not a high risk patient for PPH. In the medical literature on Obstretics filed in the case pertaining to complications of the third stage labour, patients with medical diseases like cardiac disease, diabetics, severe anaemia, hypertension etc. have been stated to carry a higher risk in so far as incidence of maternal death is concerned. Further, it is observed that in these cases, transfer of patients in shock from long distance to a hospital without prior resuscitation measures often proves fatal. The nursing home at the relevant time, when profuse bleeding started at an odd hour in the night, did not have, even according to opposite party, any blood supply at all. Opposite party''s expert witness also opined that the instant case could be due to shock probably on account of peripheral circulatory failure. Without blood replacement, shock cannot be reversed. Also in such cases of profuse bleeding, hamaccel cannot be a substitute. It is seen from medical literature that when circulatory collapse is due to severe loss of blood, transfusion of suitable blood will help revive the patient soon. Even where shock is not due to severe loss of blood, arrangement for blood transfusion must be available because some loss of blood can be anticipated. Two important questions have to be addressed, (i) why did foetal death occur when the deceased was under the personal, continuous care of opposite party, (ii) when the opposite party had expected it to be a case of natural delivery, why was there profuse bleeding and how did maternal death occur. There has been neither a post mortem of the deceased mother nor an examination of the dead foetus; both these would have thrown some light on these issues. There is also no document before us about what has transpired in the GMC Hospital except for the averments of opposite party that saline was given, oxygen was administered, etc. Even so, some aspects of the case deserve to be noted. By opposite party''s own admission, everything was alright until the ninth month, and on 15.5.1990 when high B.P. and Oedema were noticed. Opposite party diagonised the deceased as a case of toxemia of pregnancy, pregnancy itself being after a gap of 12 years. Since opposite party has even referred to the deceased as a VIP patient and has stated that the patient took her advice on medicines etc., it is beyond comprehension why opposite party could not make the patient realise the possible adverse complications of not getting admitted for bed rest, controlling B.P. and constantly monitoring the foetus, specially when according to opposite party, she was not charging anything from the patient. We also find that during check up on 24.5.1990, opposite party had not registered the foetal heart beat rate. Finally even on 31.5.1990, when the patient came with specific complaints of loose motions and back ache, she was not prevailed upon for admission. Opposite party''s opinion is that foetal death occurred between 31.5.1990 and 1.6.1990. It is also a fact that opposite party had prescribed on 31.5.1990 Spasmo Proxyvon. Available literature on propoxyphene discusses the toxicity of the same as under "Given orally, propoxyphene is approximately one-third as potent as orally administered codeine in depressing respiration.... Respiratory depressant effects are significantly enhanced when ethanol or sedative hypnotic agents are ingested concurrently" (Goodman and Gilman : The Pharmacological basis of Therapeutics, Vol. I PP 509-510), Literature of Spasmo Proxyvon specially warn that "safe use in pregnancy has not been established relative to possible adverse effects on foetal development.

INSTANCES have been reported following usage during pregnancy. Therefore, dextrapropoxyphone should not be used in pregnant woman unless in the judgment of the physician the potential benefits outweigh the possible hazards (PP 866-867 of the paper book). Opposite party has filed an extract from Keneth R. Nis Wander : Manual of Obstretics to show that the use of Propoxyphene is questionable only in the first trimester of pregnancy but the same reference also recommends that more studies are needed on this. Perhaps, opposite party could have avoided prescription of this medicine in this case.

LET us now turn to the management of delivery of the deceased who was lodging a dead foetus. In the absence of a post-mortem report of the deceased, it is difficult to say if PPH was due to rupture of uterus. However, some obvious lapses in the management of the case by the opposite party on 1.6.1990 and 2.6.1990 are noticed. Firstly, opposite party was aware about IUD and while in her judgment she might have felt normal delivery as the right course, one would still expect a normal doctor with normal skill and ability to be prepared for likely emergencies which could arise. In this sense, opposite party was not prepared because, (i) she was literally handling the case singly and she had not accessed the services of any other expert Gynaecologist and anesthetist at the outset; the Deoles were called at almost the last moment at the late hours of the night. Whereas the patient was in the nursing home from 3.00 p.m. in the afternoon, these specialists arrived after delivery was over. This last minute call would perhapse be due to the emergency which arose at that time; (ii) The need for additional experts is borne out by the emphasis laid both by the opposite party and the complainant''s expert witness on the importance of judicious administration of pitocin through constant monitoring; (iii) Opposite party was totally unprepared for this emergency. She did not do any pre-planning or prior preparation for blood supply in the labour room; there was a scramble for blood, and relatives had to be given blood sample and rushed out to bring blood, while the patient was profusely bleeding and her BP was falling. Even the quantity of blood required could not perhaps be assessed (iv) The manner in which the patient who was in a state of shock was rushed to the GMC Hospital for revival/treatment after the condition of patient became critical speaks of the atmosphere of panic in the nursing home at that time; (v) According to Taber''s Cyclopedic Medical Dictionary (Vol. II, P 829), the most common cause of post-partum haemorrhage is "loss of uterine tone caused by overdistention, prolonged or precipitate labour, uterine overstimulation, trauma, rupture or inversion, lacerations of the lower genital tract or blood coagulation disorder". We cannot derive conclusions on the specific cause of PPH in this case. Only the opposite party, Deoles, the assistant nurse of opposite party who were in the labour room would know. We may add here that opposite party''s cross-examination or affidavits or labour room notes do not bring out the presence of the doctor sister-in-law of the deceased in the labour room whereas the latter has categorically stated that she was not allowed into the labour room; (vi) Although the deceased was admitted at 3.00 p.m. on 1.6.1990, there does not seem to have been the requisite sense of urgency and alacrity on the part of the opposite party in organising the management of the case given the complications of IUD and toxemia of pregnancy. By her admission, opposite party had another operation on hand at 4.00 p.m. that day which would have consumed some of her time. We are not sitting in judgment on the procedure chosen by opposite party in delivering the baby. However, the failure on the part of opposite party in not requisitioning the services of additional expert Gynaecologists and anesthetist immediately after admission of the patient and not arranging for prior availability of blood supply cannot be brushed aside as not having contributed to the maternal death in the case. Prompt replacement of appropriate blood would have helped to revive the patient. We are of the view that there was carelessness and medical negligence and, therefore, deficiency in service on the part of opposite party in the management of the case of the deceased. As for compensation to be awarded, the complainant has claimed damages and compensation including costs of Rs. 7,47,600/-. It is a question of irreparable loss of a mother for two daughters at their very young age. In the facts and circumstances of the case, we direct opposite party to pay a compensation of Rs. 2.5 lakhs to the complainant on account of mental agony and suffering caused to the family of the deceased. We also direct opposite party to pay to the complainant cost of Rs. 5,000/-. The complaint is disposed of as above. Complaint allowed.