BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU (ADDL. BENCH)

DATED THIS THE 2^nd DAY OF AUGUST 2023

PRESENT

SRI. RAVI SHANKAR                :         JUDICIAL MEMBER

SMT. SUNITA C. BAGEWADI    :         MEMBER

CONSUMER COMPLAINT NO. 100/2012

V/S

O R D E R

BY SRI RAVISHANKAR, JUDICIAL MEMBER

This is a complaint filed by the complainant against the Opposite Parties alleging medical negligence and prayed for compensation to the tune of Rs.32,00,000/- along with Rs.31,00,000/- towards mental agony and Rs.1,00,000/- towards medical expenses.

2.      The averments in the complaint are as hereunder;   It is the case of the complainant that on 13.08.2010 his wife Smt. Deepa .S. Kolkar who has reached her full term in her pregnancy was admitted at 8.00 p.m. to Opposite Party No.1 hospital with labour pain.  One Dr. Mahadev .N. Honawad and his wife Dr. Vidya .M. Honawad are the doctors at Opposite Party No.1 hospital.  After admission, the wife of the complainant waited for two and half hours in the hospital for the doctors to attend her.  From 8.00 p.m. to 10.30 p.m. for more than 20 times, the relatives who accompanied to her are requested the nurses to call doctor.  During that time, Smt. Deepa .S. Kolkar, the wife of the complainant was screaming due to pain.  At about 10.30 p.m. one Dr. Mahadev .N. Honawad came and IV glucose saline was started along with the injection Syntoninon.  The said injection was given to the wife of the complainant to cause and improve labour pain.  After giving the said injection also up to 2.00 a.m. there was no doctor monitoring the wife of the complainant.  Every ten minutes the patient Smt. Deepa .S. Kolkar asking to call the lady doctor as pain was exceeding, but, the said doctors remained deaf inspite of severe pain also.  Subsequently, at about 2.05 a.m. on 14.08.2010 the wife of the complainant delivered a male child with the help of an untrained nurse and Dr. Vidya .M. Honwad was not present at the time of delivery.  Even the said two doctors are not bothered to come inpsite of repeated calls.  Subsequently, after 20 minutes of the birth, the complainant’s wife was instructed by Dr. Mahadev .N. Honawad to take baby at once to Sanjivini Children’s Hospital immediately, but, the said doctors at Opposite Party No.1 hospital had not given any valid reasons to shift the child to Opposite Party No.2 hospital.  As per the advise given by the doctors at Opposite Party No.1 hospital, the complainant’s relatives took the child to Opposite Party No.2 hospital.  At the time of discharge, the child was wrapped in the white cloth and handed over to the relatives.

3.      Further alleged that one Dr. Rashmi Sanjay Nayak of the Sanjivini Hospital came around 3.00 a.m. and gave a drips and oxygen to the new born child.  Within three hours of the admission i.e. at 6.00 a.m. on 14.08.2010 Dr. Rashmi Sanjay Nayak at Opposite Party No.2 hospital declared the child was dead and forcibly asked the relatives of the Smt. Deepa .S. Kolkar to remove the dead child from the hospital.  As per the Opposite Party No.2 hospital records, the said child was died at 4.30 a.m. itself on 14.08.2010.  The Opposite Party No.1 & 2 hospitals have not explained the reasons for death of the new born child.  The Opposite Party No.1 hospital have not taken any caution and pre-required labour care at the time of delivery and without any information the child was discharged and advised to take to Opposite Party No.2 hospital and subsequently, the child was died in the Opposite Party No.2 hospital.

4.      The complainant further alleged that due to negligence on the part of the doctors at Opposite Party No.1 & 2 hospitals, the child was died without any reason Smt. Deepa had given a natural birth to the baby who is hale and healthy.  The said child was died due to lack of labour care and treatment, hence, alleged medical negligence on the part of the doctors at Opposite Party Nos. 1 & 2 hospitals. 

5.      Further the complainant approached the Police Department and gave a police complaint with respect to the negligence rendered by the Opposite Party No. 1 & 2 hospitals, but, Opposite Party Nos. 3 & 4 have not received any complaint and opposed to file FIR against Opposite Party Nos. 1 & 2 hospitals.  In this regard, he has given a complaint at Lokayuktha and Government of Karnataka to take action against the said police.  The said Opposite Party Nos. 3 & 4 with collusion of the doctors at Opposite Party Nos. 1 & 2 hospitals have not registered the criminal complaint, therefore, they have rendered deficiency in service and claimed for compensation as prayed above.

6.      After service of notice, Opposite Party Nos. 1 to 6 appeared through counsel and Opposite Party Nos. 1 & 2 filed version, but, Opposite Party Nos. 3 to 6 not filed any version.  Opposite Party Nos. 1 & 2 in the version contended that Dr.Mahadev .N. Honawad at Opposite Party No.1 hospital is qualified Obstetrician and Gynaecologist with good vast experience in the Gynaecology field.  The baby after delivery was noticed that Meconium Aspiration Syndrome alternatively “Neonatal aspiration of meconium”) is a medical condition affecting newborn infants.  It occurs when meconium is present in their lungs during or before delivery.  Meconium is the first stool of an infant, composed of materials ingested during the time the infant spends in the uterus.  Meconum is normally stored in the infant’s intestines until after birth, but sometimes (often in response to feral distress) it is expelled into the amniotic fluid prior to birth, or during labor.  If the baby then inhales the contaminated fluid, respiratory problems may occur.  This problem is caused not by the doctor but by the internal system.  Due to which there are several death of new born babies occur.  All due medical treatment was given to the newborn for reviving the chances of life.  It is unfortunate that this tragedy had to happen.  However, with the best of treatment even the medical science cannot treat all the problems facing everyone.  The complaint is verbose and is not specific as to what is the negligence on the part of the party.  The complaint is maintainable only if a consumer, prima facie shows medical negligence and that there is a strong case to prove. 

7.     Further contended that in this background it is pertinent note that the complainant has failed to appreciate as to what Constitutes Medical Negligence under the Consumer Protection Act?  The human body and the way it functions or tends to malfunction is extremely complex and difficult to fathom.  In fact, even the most experienced medical practitioners may fail to detect the true nature of a disease or condition.  It is to be noted that the complainant has failed to appreciate that the Consumer Protection Act considers this while determining the accountability of a medical practitioner when such a case of negligence arises.  Consequently, a medical practitioner can only be held liable for his/her mistake was a result of absence of reasonable skills, knowledge and care expected on his part.  The complainant has failed even to prima facie plead the basic elements let alone any proof on the matter.

8.     In the present matter as the doctors have adhered to the reasonable standards of patient care as per the required professional standards, then he/she cannot be held guilty of negligence.  In addition it is submitted that irrespective of minor discrepancies which are attributable to routine human errors which happen in the course of maintaining records by itself do not prove the existence of negligence and the same cannot help the petitioner.  In fact the records have been verified by the committee of expert doctors and have not found that there is any negligence on the part of this party attributable based on the said records and cited number of decisions and submits that there is no medical negligence on their part and the complainant has filed a false complaint in order to gain wrongfully and they are not liable to pay any compensation, hence, prayed to dismiss the complaint.

9.     The complainant has filed affidavit evidence and marked documents at Ex.C-1 to C-42.  The Opposite Parties have not filed affidavit evidence and documents in support of their contention.  Heard the arguments.

10.    On perusal, the following points will arise for our consideration;

(i)       Whether the complaint deserves to be allowed?

            (ii)      What order?

          11.    The findings to the above points are;

                   (i)       Affirmative

                   (iii)     As per final order

REASONS

12.    On going through the pleadings, affidavit evidence and documents, we noticed that the complainant alleged that doctors at Opposite Party No.1 & 2 hospital rendered medical negligence during delivery of baby which resulted in death of the baby as soon as the birth took place and claimed compensation to the tune of Rs.31,00,000/- for deficiency in service.  On perusal of the entire pleadings, documents and version filed by the Opposite Party Nos. 1 & 2, on 13.08.2010 the wife of the complainant Smt. Deepa .S. Kolkar was admitted to the Opposite Party Nos. 1 & 2 hospital with labour pain.  Subsequently at 2.05 a.m. on 14.08.2010 she gave birth to a male child.  On the same day, the Opposite Party No.1 hospital discharged the mother and child and advised the complainant to approach Opposite Party No.2 hospital.  The said child was suffering from Meconium Aspiration Syndrome (MAS).  Accordingly, the baby and the mother were taken to Opposite Party No.2 hospital where Opposite Party No.2 hospital has admitted and given treatment, but, subsequently on the same day at about 6.00 a.m. the hospital declared the baby was dead.  The reasons assigned by the Opposite Party Nos. 1 & 2 are that the baby was suffering from MAS. 

13.    On perusal of Ex.C27 & C28 the doctors who attended the child have noticed the baby was crying, but, there is no further explanation with respect to the discharge of the child and referred the same to Opposite Party No.2 hospital.  In Ex.C-13 it is mentioned by Opposite Party No.1 hospital that they have noticed thick Meconium in hind water in hind water and also nausal sepia done.  But, the Opposite Party No.1 in the version has not explained the procedure adopted after delivery with respect to the MAS.  On perusal of the version filed by the Opposite Party No.1, we noticed that they have simply explained the cause of death occurred to the baby, but, they have not taken any specific denial to the averments made in the complaint.  The Opposite Party No.1 failed to explain before this Commission that at the time of delivery whether the Pediatrician was present or not.  It is mandate the presence of Pediatrician at the time of delivery.  We also noticed that the Opposite Party No.1 had not filed any sworn affidavit in support of his defence taken.  They have not produced any documents to show that the mother was delivered a baby in normal condition.  The allegations made by the complainant clearly go to show that there is negligence on the part of the Opposite Party No.1 in discharging the baby and mother on the same day of delivery itself.  We noticed here that the Opposite Party No.1 was not whispered anything about the treatment given to the baby if it was noticed that the baby suffered MAS.  The literature produced by the complainant clearly goes to show that the said MAS can be cured if a proper care and treatment was provided. 

What is birth Asphyxia?

There is no consensus regarding the definition of birth asphyxia.  There is a need to have different definitions for purposes of defining the incidence of birth asphyxia, for initiating and making decisions for resuscitation and for predicting neuromotor outcome.  Asphyxia refers to a combination of hypoxia, hypercarbia and metabolic acidosis.  National Neonatology Forum of India has suggested that birth asphyxia should be diagnosed when “baby has gasping and inadequate breathing or no breathing at 1-minute”.  It is a simple and useful definition which can also be used in the community.  It corresponds to 1-minute Apgar score of 3 or less.  Gasping or no breathing at 1-minute or Apgar score of less than 4 at 1-minute is an acceptable definition for purposes of estimating the incidence of birth asphyxia.  However, most of these babies do not need specialized care and they do not have enhanced neonatal morbidity or increased risk of neuromotor disability on follow up if by 5 minutes the infant is stable and breathing normally.  Specialized neonatal care and long term follow up for developmental assessment are indicated in babies who fail to establish effective breathing at 5 minutes or the 5-minute Apgar score is 3 or less.

The American Academy of Pediatrics has proposed that the term perinatal asphyxia should be reserved to describe an infant who manifests all of the following features:

5. Cord umbilical artery PH of <7.0 with a base deficit of > 10 mEq/l.
5. Neonatal neurologic manifestations suggestive of hypoxic-ischemic encephalopathy(HIE).
5. Evidences of multisystem organ dysfunction (eg cardio-vascular, renal, gastro-intestinal, hematologic or pulmonary).

Evaluation of the Infant at Birth

        Despite its limitations, Apgar scoring system is conventionally used for assessing the condition of a newborn baby at 60 seconds after birth.  The respiratory effort and heart beats are the most critical components of Apgar scoring system because muscle tone, response to reflex stimulus and color are dependent upon the cardio-respiratory status of the baby.

          Apgar scoring system ignores the time of cry after birth which is important to identify and differentiate between primary and terminal apnea.  The peripheral cyanosis is awarded a score of one, although majority of healthy normally breathing babies are never totally pink at 1-minute.  Tone and response to reflex stimulus are dependent upon gestational maturity.  Moreover, centrally blue (asphyxia livida) and totally pale (asphyxia pallid) babies are given identical score, although latter are more gravely sick due to the combined effect of cardio-respiratory failure.  Above all, there is sufficient recent evidence to suggest that there is a poor correlation between Apgar score at birth, cord blood pH and future mental prognosis of asphyxiated babies.  However, when 10 minutes Apgar score is 3 or less, or there are no spontaneous breathing movements by 10 minutes, the baby is likely to develop neuromotor disability during follow-up.

          In view of the inherent limitations of Apgar scoring system, it is no longer used to make dicisions for neonatal resuscitation.  It is suggested that an action-oriented assessment as outlined should preferably be used which offers immediate therapeutic guidelines for managing an asphyxiated baby at birth.

          Infants born following acute blood loss during or before delivery are often limp, pale and in shock.  They must be differentiated from severely asphyxiated babies with circulatory collapse because of life saving therapeutic implications.  The presence of antepartum hemorrhage and evidence of blood loss from placenta or umbilical cord should alert to the possibility of fetal hemorrhage.  The vaginal blood can be tested for the presence of fetal hemoglobin to confirm whether bleeding is maternal or fetal in origin.  Initial cord blood hematocrit may be normal but repeat venous hematocrit after 4 to 8 hours may show significant fall due to hemodilution.

Resuscitation Kit

        It is a sad fact that most delivery rooms in developing countries are not adequately equipped for resuscitation of an asphyxiated newborn baby.  Each delivery room must have a well-lighted and warm microenvironment to receive the newly born infant.  Open care system with an overhead radiant warmer and in-built suction and intermittent positive pressure ventilation facility is ideal.  The practice of carrying newly born baby from the delivery room to another room for resuscitation is most unsatisfactory.  The resuscitation kit must be checked by the staff nurse of every duty shift and rechecked by the physician before each delivery.  The pencil-handle laryngoscope with infant(0 and 1) straight blade is preferred.  Its light source and batteries should be in working condition.  Gamma-irradiated disposable endoctracheal tubes with internal diameter of 2.5mm, 3.0 mm, 3.5mm and 4.0 mm mounted with adapters should be available.  The electrical points and suction should be in working order.  Mechanical suction facility with different sized suction catheters(6 Fr, 8 Fr, 10 Fr and 12 Fr) and meconium aspiration device should be available.  Press-type rubber bulb or oral suction De Lee mucus trap must be available to meet the exigencies of electrical failure.  Oxygen cylinder should be checked for its contents.

          Ambu bag and mask is extremely useful and handy to resuscitate an apneic baby.  The self inflatable bags are easy to use but provide only 40 to 50 percent oxygen.  The attachment of a corrugated tube provides reservoir for oxygen and can deliver upto 90 percent oxygen to the infant.  The anesthesia bags are more effective because they can provide upto 100 percent oxygen but they are cumbersome to use and require at least 5 litres of oxygen flow per minute for their inflation.  The kt should contain disposable sterile endotracheal and suction catheters, plastic oral airway, syringes and needles, 7.5 percent sodium bicarbonate, epinephrine 1:10,000, neonatal nalorphine (1.0 mg/ml), naloxone hydrochloride (0.4 mg/ml), ampoules of distilled water, physiological saline, and 10 percent dextrose.  Sterile neonatal delivery packs containing bowl. Scissors, cotton swabs and umbilical ties should be available for each delivery.  Umbilical vessel catheterization supplies should be available so that venous access is established promptly for administration of medications.  The bassinet on which the baby is to be received should be kept warm and provided with an over head radiant heat source and a stopclock to accurately time the sequence of events after birth.

          In tertiary centers, availability of a cardiac monitor and a pulse oximeter is useful.  It is desirable that equipment for resuscitation should be maintained in a sterile condition and baby received in sterile warm sheets with due `aseptic precautions.  Above all, the physician must be adept in the art of cardio-pulmonary resuscitation.  The art of endotracheal intubation should be learnt and perfected by continued practice on the still born and dead neonates.  Several life support neonatal training simulators and modules are available to learn the skills of external cardiac massage and artificial ventilation.  The retention of cardio-pulmonary skills is short lived unless they are constantly revised and practiced.  The resuscitation of the newborn is not cost-intensive but it is highly skill-oriented.

Considering the above said medical literature, we are of the opinion that the Opposite Parties have not following any required standard care in treating the said complications.

          14.    It is a clear case of negligence on the part of the Opposite Party No.1 in discharging the baby and mother as soon as the birth took place.  We are of the opinion that instead of discharging the baby and mother, the Opposite Party No.1 hospital could have called a Pediatrician to their hospital itself for further treatment and procedure.  Basically the Opposite Party No.1 failed to provide Pediatrician at the time of delivery itself.  It is a gross negligence on the part of the Opposite Party No.1 in taking due care as contemplated under the principles laid down in Jacob Mathew v/.s State of Punjab & another in Appeal (Crl) No.144-145/2004 decided by the Hon’ble Supreme Court of India.

15.    The complainant further alleged that after discharge they have taken the baby and mother to Opposite Party No.2 hospital where the doctors have given treatment, but, the said treatment was not successful and subsequently the baby was died.  We find there is no negligence on the part of the Opposite Party No.2 as by the time of admission there was a delay nearly 30-45 minutes in admission.  It is only due to negligence on the part of the Opposite Party No.1 in sending the baby to the Opposite Party No.2 hospital belatedly the death was occurred. 

16.    We are of the opinion that the said complication i.e. MAS is not a fatal as per the medical literature.  En-number of children were rescued from MAS by providing required care and treatment.  Here in this case, the Opposite Party No.1 was not at all taken any procedural treatment post-delivery of the baby.  Hence, it is a clear case of medical negligence on the part of the Opposite Party No.1 and the complainant suffered loss of baby and mental agony.  Hence, the Opposite Party No.1 is liable to pay compensation to the tune of Rs.10,00,000/- to the complainant.

17.    The complainant further alleged deficiency in service on the part of the Opposite Party Nos. 3, 4, 5 & 6 for not accepting police complaint and registering FIR against Opposite Party Nos. 1 & 2.  Mere non-accepting the complaint and registering the FIR not falls within the purview of the Consumer Protection Act, 2019.  The said allegations are not adjudicatable under the Consumer Protection Act, 2019.  Hence, the complaint against the Opposite Party Nos. 3, 4, 5 & 6 are liable to be dismissed.  Since there is no negligence on the part of Opposite Party No.2 doctor, the complaint is also liable to be dismissed against them.  Hence, the following;

ORDER

          The complaint is allowed against Opposite Party No. 1.

The complaint is dismissed against Opposite Party Nos. 2 to 6.

          The Opposite Party No.1 is directed to pay compensation of Rs.10,00,000/- to the complainant with interest at 6% from the date of filing of this complaint till realization for their medical negligence along with Rs.25,000/- towards litigation expenses within 30 days from the date of receipt of this Order.

          Forward free copies to both parties.

                Sd/-                                                         Sd/-

MEMBER                                   JUDICIAL MEMBER

KCS*