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Judgment
Dr. S.M. Kantikar, Presiding Member
The present Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 by Baby Samhitha K.S (minor), through her father Satish K.M (Complainant No. 1), Satish K.M (Complainant No. 2) & Sri. Halappa G.V (Complainant No. 3) against the Cloud Nine Hospital (OP-1) & its doctors Dr. Prakash Kini (OP-2) & Dr. Rekha (OP-3) for the alleged medical negligence.
On 09.12.2013, Dr. Ganga H. R. (since deceased, for short the ‘patient’) was admitted to Cloud Nine Hospital (OP-1) for her Caesarean (LSCS) delivery. The LSCS was performed by Dr. Prakash Kini (OP-2) and female baby was delivered. The patient’s Blood Pressure (BP) was fluctuating and after LSCS, it became 180/110 mm Hg. The patient was advised to continue her hypertensive medicines Tab. Alphadopa and Labetalol. It was alleged that the patient (mother) and her newborn were discharged within two days from OP-1 without stabilizing her blood pressure completely. It was against the normal standard of practice. Subsequently, on 12.12.2013 in wee hours at 1.45 am, her condition became worsened and she developed breathlessness, therefore, she was re-admitted to OP-1 Hospital. Dr. Rekha (OP-3) treated her with nebulization with Duolin and Budecort, though the patient was not asthmatic. The patient was again discharged within 25 minutes of re-admission. Unfortunately, her breathlessness continued and she was taken to Radhakrishna Hospital, where she passed away on the same day. The Post Mortem was conducted and the final PM report dated 12.05.2014 mentioned the cause of death as “Cardiac failure as a result of Congestive Cardiac Failure”. Later, on 26.12.2015, the father of the patient (Complainant No. 3) took opinion from Prof. Dr. Lepakshi B.G (MD Obst. Gynaec), who reported several lapses in the treatment from OPs. Being aggrieved, the Complainants filed this Consumer Complaint and prayed a sum of Rs.5,56,60,000/- as compensation under various heads.
The Opposite Parties filed their respective Written Version separately and denied allegations of medical negligence. The Cloud Nine Hospital (OP-1) raised preliminary objection that the complaint was barred by limitation, as it was filed after two years from the death of patient Dr. Ganga. It was contended that patient showed signs of mild pre-eclampsia, but it was not severe pre-eclampsia. The LSCS delivery was conducted, a female healthy baby was born. The patient’s BP was varying, and on the first post-operative day, it became high 180/110 mmHg. It was stabilized with antihypertensive drugs. As she was doing all activities normally, therefore she was discharged in good condition with appropriate medications. The OPs followed latest ACOG and NICE guidelines. On 12.12.2013, Dr. Ganga (patient) complained of breathlessness, the OP-3 treated her as emergency and her breathlessness was relieved. The OP-1 claimed that the patient was treated in accordance with medical guidelines. Dr. Prakash Kini & Dr. Rekha (OPs-2 & 3) have adopted the written statement filed by OP-1.
Heard the arguments at length from both the sides. The learned Counsel on both the sides reiterated their evidence on record. They filed medical literature on the subject and textbook references[Williams Obstetrics 19th Ed.].
The learned counsel for Complainant argued that the doctors at OP-1 wrongly described the case as with mild pre-eclampsia, despite the patient suffering from severe pre-eclampsia. It was mentioned in the case sheet as "G2E1 at 38+4 weeks, mild pre-eclampsia”. The OP did not conduct any investigations for pre-eclampsia like Hemogram, Coagulation profile, Liver function tests and Renal function tests and Ophthalmic examination. The Doctor's case note and Nurses’ notes prove the same.
The learned Counsel for the Complainant further argued that as per ACOG guidelines, a pre-eclampsia patient has to be an in-patient and under observation for 72 hours, whereas, the OPs discharged the patient after 50 hours which amounts to negligence. The patient rushed to OP-1 hospital in wee hours of 12.12.2013 with the Complaints of breathlessness and OP-3 wrongly diagnosed it as asthma. The OP-3 failed to diagnose it as pulmonary edema or CCF. The OP-3 administered Duolin and Budecort the drugs used in asthma.
The learned Counsel for OP-1 argued that the complaint was barred by limitation. The cause of action was arisen on 12.12.2013 whereas the Complaint was filed in the year 2016. The learned Counsel narrated the symptoms of severe pre-eclampsia and submitted that the patient had no such symptoms and merely having high BP does not warrant as severe pre-eclampsia. He further submitted that irrespective of mild or severe pre-eclampsia, the definitive treatment under such circumstances was termination of pregnancy. In the instant case, the pregnancy was beyond 37 weeks, i.e. 38 + 4 weeks, thus, the treatment was delivery. Therefore, the pregnancy was terminated by C-section done by OP-2. The healthy female baby was born. If it was severe pre-eclampsia, then the baby would have suffered IUGR. After delivery, the patient was kept under observation for 50 hours as per the guidelines of FOGSI. Therefore, the allegation of the Complainant to keep the patient for 72 hours was wrong. The patient’s BP was stabilized and she was discharged with prescription of 2 hypertensive drugs. The patient was also advised to consult Cardiac Specialist. The patient died after more than 14 hours of discharge from OP-1 hospital. The patient died of her own negligence and disregard to the advice of OP-3. The learned Counsel further argued no opportunity was granted to cross-examine the expert Dr.Lepakshi. Therefore, this Commission shall not consider the said opinion.
In the instant case the issue revolves around whether Dr. Ganga was suffering from mild or severe pre-eclampsia and whether the OPs treated the patient as per the standard of practice.
I have carefully perused the medical record with respect to blood pressure findings. On 09.01.2013, the BP was showing persistent high value between 160/110 to 180/110. (Dr. Kini’s notes from 22.04.2013 till 06.12.2013).
30.09.2013
160/80
04.11.2013
180/90
08.11.2013
160/100
22.11.2013
160/100
29.11.2013
180/110
06.12.2013
170/100
10.12.2013
180/110 - 9.00 a.m.
180/110 – 6.15 p.m.
Thus, it clearly establishes that there was high blood pressure prior to delivery as the feature of pre-eclampsia. The termination of pregnancy should have been done at 37 weeks, but in the instant case, though the patient was under regular ANC follow-up of OP-2 & 3, the delivery was delayed beyond 38 weeks despite uncontrolled hypertension. It is pertinent to note that despite two anti-hypertensive medicines, the patient had hypertension which was indication of severe pre- eclampsia.
On careful perusal of record, it revealed that before C-Section the treating doctors failed to conduct necessary investigations like coagulation profile, LFT, RFT and Ophthalmic examination. It is pertinent to note that the patient was discharged within short time of 50 hours after C-section. As per current norms, the hospital stay up to 48 hours following uncomplicated vaginal delivery and up to 96 hours followed uncomplicated caesarean delivery[American Academy of Pediatrics and ACOG 2007] .Thus, in my view, it was wrong decision of Ops to discharge (patient) within 48 to 50 hours. As per the latest ACOG guidelines of the year 2013, for woman in whom Gestational hypertension, pre-eclampsia or super imposed pre-eclampsia is the BP should be monitored in the Hospital or in the OPD at least 72 hours during post-partum.
The contention of OP-2 that the minor – baby Samhitha K. S. was not represented by natural guardian, however her father was arrayed as Complainant No.2 in this matter. It was also brought to the notice that Complainant No.2 got remarried and the grand-father the Complainant No.3 was taking care of the child. Since there is no dispute regarding the custody of minor, in my view, the Complaint is not defective. It is pertinent to note that an Affidavit filed by the Complainant has not brought any new facts in the instant case. The provisions of CPC are not strictly applicable to the proceedings under the Consumer Protection Act.
I have perused the expert opinions filed by both the parties. The Complainant filed an opinion from Dr. B.G. Lepakshi, the Professor & Head of Obstetric and Gynec (OBG) at Shimoga Institute of Medical Sciences. The observations are reproduced as below:
1)ANC visits: She was on domiciliary treatment inspite her BP was persistently high even on two antihypertensives. There is no records pertaining to alarming symptoms and monitoring of end organ damage like Hemogram, liver function tests, renal function tests &ophthalmoscopic examination whereas patient required hospital based proper management
2) Pregnancy continued beyond 37 wks inspite of uncontrolled hypertension. Elective LSCS done at 38+4 weeks. Termination would have been thought at 37 wks only.
3)On admission, diagnosis was documented as G2A1 at 38+4 weeks with mild preeclampsia with previous ectopic for elective LSCS (Caesarean section) while her BP was persistently high at 170/100mm Hg inspite of being on 2 antihypertensives- Alphadopa (500- tid) & Labetalol (100 bd) while the diagnosis was severe preeclampsia.
4) Before LSCS no investigations pertaining to Preeclampsia were performed (Hemogram with coagulation profile, liver function tests, renal function tests &ophthalmoscopic examination) Investigations recorded done on 20/09/13 (HB-11.3g/dl, Platelet count-1.7lakhs & Blood group-B+ve) done for routine ANC and USG done on 06/12/13.
5) Operative and post-operative details reveal persistently elevated BP, no proper intake output chart poorly documented while it is a known fact that preeclamptic patients are prone for fluid and electrolyte imbalance, renal failure and pulmonary edema.
6) During her immediate post op day09/12/2013 even though her BP was persistently high "no anti-hypertensives to be given" was advised.
7) On 10/12/2013 she developed giddiness and BP persistently high she was restarted on antihypertensive.
8) She was discharged on 11/12/2013 around 2.pm. 50 hrs after caesarean section as against Current norms for hospital stays of upto 48 hrs following uncomplicated vaginal delivery and upto 96 hrs following uncomplicated cesarean delivery. Normally, patient is to be kept in the hospital till the blood pressure is brought down to a safe level and proteinuria disappears.
Hospital records reveals BP continues to be high and no other investigations were performed.
9)Earlier hospital discharge is acceptable for appropriately selected women if they desire it. Early discharge is not attempted in pre-eclampsia because these patients are prone for complications like eclampsia, pulmonary edema, renal, hepatic & cardiac failure in this period.
10)0n re-admission even though patient was not a known asthmatic she was treated with Duolin & Budecort( drugs used in the treatment of asthma) while the patient was suffering from pulmonary edema/ cardiac failure which is a known complication of pre-eclampsia which has not been identified and treated accordingly.
The OPs filed two expert opinions one from Dr. Kumar U. and other from Dr. Chowdiah. According to Dr. Kumar U., who was MD Forensic Med, concluded that the treating doctors have exercised reasonable care and skill during the course of pregnancy and thereafter. The treatment was done as per existing guidelines. Moreover, the patient discontinued to seek medical consultation on 12.12.2013. Therefore, the proximate cause of Dr. Ganga cannot be ascribed to the care or early discharge of Dr. Ganga H.R. from the Hospital.
The another expert Dr. Chowdiah. M.D. D.G.O. opined that overall management of Patient throughout her gestation period right from the ANC care to LSCS (Caesarean Section) procedure and subsequent discharge/readmission course is done as per the accepted norms of current treatment protocols/guidelines without grossly deviating or breaching the standards of treatment either in diagnosis of the patient or timely treatment rendered thereof.
In my view, the opinion of Dr. Leepakshi B.G. carries more weight in the instant case. As discussed above in para 9 & 10, the OPs failed on three counts. Firstly, there was failure of duty of care to terminate pregnancy at 37 weeks despite the patient persistently showed feature of pre eclampsia. Secondly, the patient was discharged within 50 hrs after LSCS, which was not a reasonable standard of practice of the OPs. It should be borne in mind that the patient was pre-eclamptic, showing high blood pressure after C-section. Therefore, after C-section she should have kept under strict observation and discharged after 72 hrs. Thirdly, the patient developed breathlessness two days after delivery and taken to OP-1 in wee hours. The OPs have just suspected it as asthma and gave nebulization with Duolin and Budacort. The basic investigation like X-ray chest was not done to rule out pulmonary oedema at that stage. In my view, the OPs failed to diagnose the possibility of amniotic fluid embolism. Therefore, conclusively the medical negligence is attributed to the OPs.
In the catena of judgments, the Hon’ble Supreme Court discussed about what constitute medical negligence. The concept of Duty of Care was clearly explained in the case of Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Babu Godbole[(2013)15 SCC 481] as below:
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose, he owes a duty of care
(i) in deciding whether to undertake the case
(ii) in deciding what treatment to give and,
(iii) in the administration of that treatment
A breach of any of these duties gives a right of action for negligence to the patient.
Similar view was taken in P.B. Desai vs State of Maharashtra & Anr.[[2013] 11 S.C.R. 863] to explain the ‘Duty of Care’ towards the patient.
In the instant case, the OPs-1 and 2 were duty bound to treat the patient with reasonable degree of skill, care, but they failed to exercise due care and diligence, which constitutes medical negligence. It is evident that the breathlessness was just treated with nebulization, in view of asthma. However, the OPs ignored the possibility of amniotic fluid or pulmonary embolism. The PM findings revealed pulmonary edema.
In the case of Smt. Savita Garg Vs. The Director, National heart Institute[IV (2004) CPJ 40 (SC)], it was held as below:-
“Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities.”
Thus, it is apparent that in the instant case, the OPs-2 & 3 failed to exercise due care in their duty of care while treating the patient of pre eclampsia. It was not as per accepted standard of practice. In the instant case, the OP-1 hospital is vicariously liable for the act of OPs-2 and 3, who failed in their duty of care. This view, dovetails from the case of Maharaja Agrasen Hospital and Ors. Vs. Master Rishabh Sharma and Ors[2019 SCC OnLine SC 1658,].
Adverting to the quantum of compensation, I would like to rely upon the law laid down for different methods to determine ‘just and adequate compensation’. The basis of computing compensation under common law lies in the principle of ‘restitutio in integrum’ which, when translated, refers to ensuring that the person seeking damages due to a wrong committed to him/her is in the position that he/she would have been had the wrong not been committed. It was held that there is no restriction that courts can award compensation only up to what is demanded by the complainant. The reliance be placed on the judgment of Hon’ble Supreme Court namely Sarla Verma & Ors. vs Delhi Transport Corp. & Anr[2009 (6) SCC 121], Nizam’s Institute of Medical Sciences Vs Prasanth S. Dhananka & Ors.[ 2009 (6) SCC 1], Dr. Balaram Prasad vs. Dr. Kunal Saha & Ors.[ (2014) 1 SCC 384].
In the instant case, a young doctor lost her precious life at 31 years, left behind husband, minor girl child and her aged father. The husband of deceased remarried, therefore the Complainants No. 1 and 3 deserve just and adequate compensation. There is no straight jacket formula for award of compensation, but it is difficult to quantify the value of human life in monetary terms. Considering the peculiar circumstances and facts of the case and the law laid down by the Hon’ble Apex Court (supra), the ends of justice would be met, if the Complainants are compensated with compensation of Rs. 1 Crore alongwith Rs. 1 lakh as litigation costs, which appear to be just and adequate in the present case.
The instant Complaint is partly allowed. The OP-1 Hospital is directed to pay compensation of Rs. 1 Crore and Rs. 1 lakh towards cost of litigation as directed below:
i. Rs.90 Lakh to be deposited as a Fixed Deposit in any nationalised Bank in the name of Baby Samhitha K.S. and the nominee shall be Halappa G.V. (Complainant No. 3). The amount shall be kept in Fixed Deposit till she attains majority. The Complainant No. 3 can withdraw periodic interest for the care & welfare the child.
ii. Rs.10 Lakh shall be paid to Complainant No. 3 Halappa G.V., the grandfather of baby Samhitha K.S.
iii. The OP-1 shall pay Rs. 1 lakh towards the cost of litigation to the Complainant No. 3.
The entire awarded amount shall be paid within six weeks from today, failing which, it will carry interest @ 9% per annum till its realisation.