Anil Srivastava, Member
The observation of the Hon’ble NCDRC while delivering the judgement in the CC No. 104/2002 on 22.4.2015 in the matter of Indu Sharma v. Indraprastha Apollo Hospital & Ors. as indicated below is relevant for the disposal of this complaint filed by Shri Ritesh Kumar Garg & Ors. (for short complainants) before this Commission under Section 17 of the Consumer Protection Act, 1986 (the Act) against the Max Hospital, hereinafter referred to as OPs.
“The most important and emotional event in the life of a couple is the birth of a child and it is always a joyous occasion in the family when a newborn arrives. Most parents have a niggling fear that the nine months of pregnancy is comparable to walk through a minefield. Things can go wrong at any time. They only breathe a sigh of relief when they’ve counted all ten toes and fingers of their newborn. It is no wonder they feel that way because it can be the most devastating thing if your baby is born with a birth defect.”
2. The complainants alleging gross negligence on the part of the OPs have prayed for the relief in this complaint as indicated below:
(a) the payment of liquidated damages of Rs. 50 lakh on the aforesaid basis,
(b) the payment of actual expenses incurred by the complainants both in the respondent hospital and the hospitals/ diagnostic centres consulted subsequent thereto at 18% interest.
3. Facts of the case, necessary for the adjudication of the complaint are these.
The issue in the case breathed into life on the birth of a child with defect due to the negligent act of the OP. The said child is complainant No. 3 while Shri Ritesh Kumar Garg and Smt. Arti Garg father and mother, are complainant Nos. 1 and 2, respectively. All the complainants are resident of Sonepat.
4. The complainant No. 2 conceived a child ten years after marriage and for the purpose of delivery they got themselves registered with the OPs. The delivery was due in early part of June, 2007. The complainant No. 2 was admitted in the OP hospital on 4.6.2007, with the clear condition of the pregnancy induced hypertension requiring qualitative caution and appropriate procedure while handling the delivery case. The complainant No. 2 delivered reportedly a healthy male baby in the evening of 5.6.2007 through full time normal vaginal delivery apparently with no complications as per obstetric report. But soon thereafter abnormality in the left arm of the baby was discovered and that abnormality was attributed to ‘shoulder dystosin’. It is alleged that the abnormality in the functioning of the left arm termed as stricken with Erb Palsy was due to crude and violent pulling of the new born baby during the latter’s delivery irreversibly damaging the neuro motor functioning of the left arm. The baby was subjected to violence through pulling which caused the avulsion of the roots of left branchial plexuses which in common parlance meant the destruction of the nerve roots through an exercise of unprofessional and intransigent use of violence and the consequent pseudomeningocele. In fact number complications such as shoulder dystocia were noted in the obstetric’s report although the same was super added in the Obstetrics Discharge Summary and the neo natal discharge summary dated 9th June, 2007.
5. Since no complications were noted during delivery the apparent dystunctining of the left arm was deemed to be attributable to some defect in the bone. Therefore, an X-ray test was advised to the baby and accordingly the complainant No. 1 was referred to the physiotherapy department.
Could the shoulder dystocia raising the presumption of injury to the cerebral plexus be cured through physiotherapy?
6. The fact is that no dangerous and complicated condition such as shoulder dystocia was observed during delivery. This fact, per se, is a clear instance of negligence and lack of reasonable care expected of medical professional.
7. The complainant has alleged that they were only mute witnesses to the pathy of the hospital and were discharged from the hospital on 9.6.2007 without any remedial steps having been taken with respect to newly born child. Not even MRI scan was conducted in an apparent bid to diagnose the malady.
8. Thereafter, the complainant Nos. 1 and 2, with a view to find out the cause of the crippling dysfunction, got the MRI scan conducted on the baby, the complainant No. 3 and it was revealed that the baby had suffered avulsion/ destruction of roots of left branchial plexuses. A copy of the report dated 23 rd June, 2007 submitted by a private diagnostic centre i.e. Krystal MRI Scan and Disgnostic Centre, is at Annexure P-3 A. To further corroborate this finding, the complainant Nos. 1 and 2 got the complainant No. 3 further examined at Sir Ganga Ram Hospital on 25th June, 2007. A copy of the report is at Annexure P-4.
9. The complainant Nos. 1 and 2 again visited the OP hospital and at the instance and reference by the doctor from the OP hospital, the complainant No. 3 was got examined at Saral Diagnostics on 19th December, 2007 and subjected to motor sensory nerve conduction test which further confirmed the finding of a severe left brachial plexus injury. A copy of the report by the Saral Diagnostics dated 19th December, 2007 is at Annexure P-5. The findings were returned by the tests conducted at Batra Hospital on 21.12.2007 and a copy of the same is at Annexure P-6.
10. The complainants having been informed of the damage done to the new born, took following steps to find out the root cause and to take remedial steps. On 18th January, 2008 the complainant No. 3 was examined at P.D. Hinduja Hospital at Mumbai. The neurological surgeon at Hinduja Hospital required the complainant No. 3 to go through MRI test to confirm the possibility of pseudomeningocele. A copy of the advice dated 18 th January, 2008 by the neurosurgeon is at Annexure P-7.
11. The complainant Nos. 1 and 2 again, approached the consultant doctor the obstetrician Dr. Kusum Sahni who had supervised the delivery. The latter referred the complainant No. 3 to Saral Diagnostic Centre once again. The diagnostic Centre vide its report dated 2nd Feb., 2008 confirmed the finding of the severe left brachial plexopathy and the resulting pseudomeningocele. A copy of the report dated 2 nd Feb., 2008 is at Annexure P-8.
12. The complainant No. 3 was once again brought to the Hinduja Hospital at Mumbai in a futile bid to undo the damage done to the child but the latter had shown no sign of improvement. The left arm of the child had no neuro motor signs.
13. The complainants have averred that the OPs were negligent while conducting the delivery of complainant No. 2 and to prove their case they have produced before us Medical Literature. The opinion of Dr. R.M.L. Hosptial was also sought for and obtained. The complainant has further alleged that the OP hospital has failed in its duty to take reasonable care expected of professional doctors resulting in permanent disablement and impairment which is the index of its liability. This given the representations by the OP hospital, tantamounts to a shocking deficiency in service. Not only this, the hospital by virtue of this negligence, has seriously infringed the complainant No. 3 fundamental right to live with dignity which is the sine qua non of the Article 21 of the Constitution. For this act of negligence resulting in permanent disability, the complainants would not be able to lead a normal and healthy life.
14. The complainants thereafter served upon the OP a legal notice calling upon it to pay liquidated damages to the tune of Rs. 50 lakh for having caused permanent disability to the complainant No. 3 and mental agony and pain to the complainant Nos. 1 and 2 over the prospect of seeing their only child suffer for no fault. The respondent hospital however chose to deny the liability.
15. Accordingly this complaint was filed for the redressal of the grievances. OPs were noticed and in response thereto the written statements have been filed, stating therein, interalia that the complainant has failed to produce any medical or expert opinion. To deal with the defence taken by the OPs we my have to examine whether it is necessary or essentially required of the complainant under the law to furnish such expert opinion.
16. The Hon’ble Supreme Court of India in the matter of V. Kishan Rao v. Nikhil Super Specialty Hospital, III (2010) CPJ 1 (SC)=V (2010) SLT 349, in Civil Appeal No. 2641/2010, decided on 8.3.2010, held in para 47 of the judgement as under:
In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence before the Consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired Judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the For a finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.
It was accordingly held by Their Lordships that it is not bound by the general direction given in paragraph 106 in D’souza (supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. This Court is constrained to set aside the orders passed by the State Commission and the National Commission and restores the order passed by the District Forum. The respondent No. 1 is directed to pay the appellant the amount granted in his favour by the District Forum within ten weeks from date.
Relying on the judgment of the Hon’ble Supreme Court, the contention of the OP on the subject is rejected.
17. The OPs have also taken preliminary objection to the effect that the allegation of negligence and deficiency of service are false and baseless, frivolous and without any justification. On the contrary their averment is that they have taken the utmost care and due precaution in handling the delivery of the baby. No malfunctioning in the left arm of the baby was discovered at the time of delivery. The baby was diagnosed with “shoulder dystocia”, (In the process of giving birth, once the baby’s head is delivered, one of the newborn’s shoulders may become impacted behind the mother’s pubic bone, causing the body of the baby to stuck and making the delivery more difficult). But this is not the fall out of the negligence or deficiency. Shoulder dystocia is the result of natural complication that can happen in any child birth despite total and absolute precaution having been taken. It happens in a very small number of cases but this is something which cannot be predicted. One comes to know of such an abnormal event only in the process of delivery when head of the baby is out of the womb but remaining part remains to be taken out.
18. The complainant has however disputed this point and averred that the OPs were not well aware of the seriousness of the situation when they termed the delivery as normal. It is a case where it was incumbent on the part of the OP to observe precaution which was not done leading to this avoidable untoward situation. The complainant’s further allegation on the subject is that the OP with such name, fame and reputation, claiming to be of highly skilled and specialized faculty if could not assess the seriousness and gravity of the situation, there cannot be a worst case of negligence when the hospital could not evaluate the problem during the process of delivery.
19. The OP have denied the averment of the complainant that they could not note the complication during the delivery. The baby suffered the shoulder dystocia at the time of delivery and therefore he was advised x-ray for the purpose to rule out any injury to bone for the arm and once it was clear that no injury to bone was caused, the baby was advised physiotherapy for assessment and management of injury resulting from shoulder dyptocia, which fact was also reported in the discharge summary. But recommending the new born for the x-ray was delayed for no tangible or cogent ground and the delay if was avoided, could have saved the ignonimity, as found.
20. The complainants have also filed rejoinder and affidavit reiterating what was averred in the complaint. Both parties have also filed their written arguments. We have examined the documents.
21. The matter was listed before us for final hearing on 5.1.2018 when the Counsel for both sides appeared and advanced their arguments. We have also perused the records of the case. We have also perused the rival contentions.
22. The learned Counsel for the complainant in the first instance argued that the complainant claim is founded on the principle of res Ispa loquitur in terms of the ratio of the case V. Krishna Rao v. Nikhil Super Specialists Hospital (supra). According to him the gross negligence of the OP lies in the failure of the attending doctors to perceive the complication caused by shoulder dystocia. As a result of the unprofessional handling, the baby was born a cripple with no movement or sensation in the left arm causing brachial plexus avulsion in which condition all the brachial plexus nerves, communicating with the brain and the arm, are uprooted from the spinal cord. The OP without even taking up the follow up action of diagnosing the underlying cause discharged the mother and the baby from the hospital to fend for themselves. As a result, the complainant No. 3 continues to be a cripple notwithstanding the best of medical treatment stated to have been given to him.
23. The complainants have argued that the defence of the respondent stating that the crippling dysfunctioning and paralysis in the left arm of the baby to the state of shoulder dyptocia has no legs to stand since even by the statement of the opposite parties it does not lead to avulsion of the nerve roots, the fact evident from the report of Dr. Ram Manohar Lohia Hospital.
24. The complainant in their anxiety about the new born child and in order to find out the true cause of the crippling disability of the child, got an MRI scan of the left arm of the baby from the Krystal MRI Scan and Diagnostic Centre on 23.6.2007. From the report it was evident that left bractial plexus of the baby had been completely uprooted from the spinal cord. Consequently there was no motor and sensory conduction in the left arm. The complainant Nos. 1-2 being upset with the report, sought for the second opinion from Sir Ganga Ram Hospital and they also confirmed the question of brachial plexus nerves. Thereafter the complainants rushed to Hinduja Hospital at Mumbai where again the MRI was done and once again PSEUADMENINGOCELE was observed signifying root avulson injury. Having no other alternative a major neurosurgical operation was conducted on the child, involving an expenditure of Rs. 1,61,061 which amount was paid to Hinduja Hospital. Additionally, a sum of Rs. 32,634 was spent for removing a permanent cripple. An amount of Rs. 65,000 was spent for travelling between Delhi and Mumbai and return.
25. The complainant has alleged that this is all due to the negligence of the OPs leading to this problem which the child may have to face whole life and consequently the parents would be put to avoidable harassment and mental agony. The complainants have objected to the averment of the OP to the effect that the paralysis and dysfunctioning of the child is attributable to the complications caused by a shoulder dystocia, forcing them to resort to the application of pubic pressure, has no legs to stand since if such a situation was visualized some remedial measures required to be taken could have been taken, which of course not having been done, gross deficiency of service was noted and in that event the negligence stands proved and established. If this was the situation, describing the delivery as normal could not have been possible the fact which even the Dr. RML Hospital has observed that such a cause could not have been described as ‘normal’.
26. The complainants have also objected to the evidence filed by the respondent since at the material time the doctor who has sworn was not on the rolls of the hospital and therefore the evidence filed on affidavit amounts to an act of perjury. The further allegation of the complainant is that the averment made by the respondent stating that paralysis and dysfunctioning of the complainant No. 3 is attributable to the complications caused by a shoulder dystocia to resolve which the hospital resorted to the application of supra pubic pressure. The fact on the other hand is that during delivery of the baby the attending doctors were not even aware of the complication. There cannot be a case worse than this in the matter of medical negligence. Under these circumstances to conclude in the discharge summary that the delivery was normal suffers from factual inconsistencies. In fact a little care could have averted the abnormality.
27. The complainants have built their edifice alleging negligence on the details indicated above. The OP in their written arguments at the very outset stated that the allegation of the complainant on the face of the expert opinion dated 17.10.2010 received from Dr. Ram Manohar Lohia Hospital, regarding negligence does not survive. However we do not agree with this since the opinion received also suggests that it would be categorized as abnormal labour complicated by shoulder dystocia. The OPs have further stated that soon after Shoulder Dystocia was diagnosed the only appropriate step considering the tenderness of new born was to conduct physiotherapy to strengthen the muscles, which step was taken and therefore their action is not susceptible to any negligence as alleged.
28. Secondly the averment of the OP that they had taken all possible care and caution while conducting the delivery cannot be accepted in its totality since the opinion received does not fully testify the averment made.
The OP have further stated that they had taken utmost care and due precautions in handling the delivery of the baby. It is a matter of fact that no malfunctioning in the left arm of the baby was discovered at the time of operation. However the baby was diagnosed with “Shoulder Dystocia” which is associated with child birth in some cases but this is not the resultant of any negligence of attending obstetricians. Shoulder Dystocia is a result of natural complication that can happen in any child birth and opposite party had taken abundant precautions for the delivery of the baby. It is submitted that the attending medical practitioners of the OP applied measured amount of suprapublic pressure. It may be further added that the application for pubic pressure is a well established practice of Obstetrics, which are proved highly beneficial in resolving dystocia cases. It is also an established principle that in order to facilitate the passage of the baby’s anterior shoulder under mother’s pubic bone, its head is deflected downwards just to apply requisite traction while the mother is pushing the baby, however same cannot be equated with pulling or extracting out the baby.
29. The OP have also stated that they had to conduct the procedure of artificially rupturing of the membrane for induction of labour. Keeping in view the fact that the complainant No. 2 was a patient of hypertension and hence all required precautions, as required, were taken. The OPs, responding to the argument of the complainant that cesarean was done which was not required as it was a case of normal delivery, have rebutted and averred that that was done having regard to the fact that fetal heart pale of the baby had started dipping, in which case conducting normal delivery would have been even more fatal.
30. But that still leaves a question whether cesarean was conducted proper, inasmuch as whether applying of force after head of the baby was out of womb was called for or whether this was necessitated because of the negligence done while conducting the cesarean. The learned Counsel for the OP has not argued on this submission. The learned Counsel for the complainant on the other hand had vigorously argued that the shoulder dystocia was caused owing to the negligence on the part of the OP. Further the report of X-ray recommended by the OPs at a very late stage was made available only on the day they were discharged. The learned Counsel for the complainant has argued that had timely steps were taken to undertake the x-ray, grave situation as has resulted could have been averted. No steps were taken by the OP to refer the matter to a specialist which goes to show further negligence as it cannot be presumed that no specialist in such a renowned hospital was available.
31. We are satisfied that the negligence on the part of the OP is writ large on face. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in law of torts by Ratanlal and Dhirajlal holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential component of negligence are three : ‘duty’, ‘breach’ and ‘resulting damage’, that is to say:
(i) the existence of duty to take care, which is owned by the defendant to the complainant;
(ii) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(iii) damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.
The test for determining the medical negligence has been laid down in the BOLAM’s case, (1957) 1 WLR 582. The Hon’ble NCDRC in the matter of Jaswinder Singh & Anr. v. Neeraj Sud (Dr.) & Anr., IV (2011) CPJ 236 (NC), have laid down about the BOPLAM test as under:
“Professional man should command the copies of knowledge which forms part of professional equipment of ordinary member of his profession. The standard is that of reasonable average.“
32. The term negligence is used for the purpose of fastening the defendant with liability under the civil law and, at times under the criminal law. But in both the sets, negligence is negligence and jurisprudentially no distinction can be drawn between negligence under the civil law or negligence under criminal law. Generally, it is the amount of damages determinative time of the extent of liability in tort.
The Hon’ble NCDRC in the matter of ILS Hospital & Anr. v. Bimal Kumar Ghosh, II (2013) CPJ 594 (NC), held as under:
“Non-exercise of reasonable caution in treatment amounts to negligence.”
The Hon’ble NCDRC in the matter of V. Srinath (Dr.) & Anr v. Gaurav Lamba, III (2011) CPJ 481 (NC), held as under
“Wrongful surgery causing permanent disability amounts to negligence.”
The Hon’ble NCDRC in the matter of Adwait Patil (Dr.) v. Priya Shamrao Deshmukh, III (2016) CPJ 437 (NC), held as under:
“Delayed treatment leading to disability amounts to negligence. Compensation is liable to be paid.”
The Hon’ble NCDRC in the matter of Dr. Anil Jain and Anr. v. Devender Kumar, IV (2012) CPJ 497 (NC) held as under:
“If the surgery is not done on time, negligence stands established.”
Finally the Hon’ble NCDRC in the matter of Jaswinder Singh & Anr. v. Neeraj Sud & Anr., IV (2011) CPJ 236 (NC)
“If during post operative complications have arisen due to lack of expertise, negligence stands established.”
33. Coming back to the facts of the case proper and due care not having been exercised while conducting the cesarean leading to shoulder dystocia resulting finally in the permanent disability, the negligence on the part of the OP is writ large of the face and is established, and having reached to this conclusion the point that remains for consideration is the compensation to be awarded. The complainant has sought for, among others, compensation of Rs. 50 lakh for the damage done and suffering caused.
34. Their Lordships in the Hon’ble Supreme Court of India in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr., I (1998) CPJ 1 (SC)=III (1998) SLT 684=(1998) 4 SCC 39 were pleased to observe as follows:
“Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excessable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case the Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone be
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yond the bounds of what is expected of the skill of a reasonable competent doctor.” 35. It is also an established law that under the Act, the Consumer Fora has jurisdiction to award compensation depending upon established facts and the circumstances of the case. While dealing with such contention in Charan Singh v. Healing Touch Hospital & Ors., III (2000) CPJ 1 (SC)=87 (2000) DLT 573 (SC)=VI (2000) SLT 867=(2000) 7 SCC 668, Their Lordships observed that the Consumer Forums are required to make an attempt to serve the purpose of recompensating the individual but which also at the same time aims to bring about the pualitative change in the attitude of service provider. It was observed as under: “It is not merely the alleged harm or mental pain, agony or physically discomfort, loss of salary and emoluments, etc. suffered by the appellant which is in issue—it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence.” 36. One of the arguments of the OP is that the complainant has not impleaded the concerned doctor as one of the OPs. The submission, in our view, is not tenable in view of the judgment of the Hon’ble Supreme Court of India in the matter of Savita Garg v. National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=(2004) 8 SCC 56. Similarly in the matter of B.T. Sridhar v. Vokkaligara Sandha, IV (2015) CPJ 215 (NC) – the Hon’ble NCDRC held as under: “Medical negligence leading to death, the NCDRC awarded the compensation of Rs. 20 lakh with 9% per annum.” 37. Keeping the principles as set out and detailed above, in our considered view, it would be just and reasonable to award compensation of Rs. 20 lakh to the complainant for the suffering, mental pain and agony caused. This may serve the purpose of bringing about a qualitative change in the attitude of the hospitals of providing service to the human beings as human beings. Human touch is necessary; that is their code of conduct; that is their duty and that is what is required to be implemented. Additionally an amount of Rs. 5 lakh are awarded for the incidental expenses incurred from the time of admission of the complainant No. 2 at the time of delivery till the check up of complainant No. 3 at Mumbai. Rs. 5 lakh is awarded as litigation cost. The amount so awarded in the preceding paragraph be paid within a period of three months from the date of receipt of the copy of the order failing which simple interst at the rate of 9% shall accrue till the realization of the amount. In the result, the complaint is allowed. The OPs are directed to pay in all Rs. 30 lakh to the complainants. There shall be do order as to cost. Ordered accordingly. Let a copy of the order be forwarded to both the parties free of cost as statutorily required. File be consigned to record. Complaint allowed.