DR. SHAKUNTALA BANALE vs ANITA

The brief facts of this Revision Petition are these. The patient, Anita W/o Dr. Veeresh from Bellary was under follow up during pregnancy for antenatal treatment (ANC). On 13.11.2002, she got admitted in the Banale Hospital i.e. OP-2 Dr. (Mrs.) Shakuntala Banale. On next day, patient started labour pain, which was attended by two ayurvedic doctors, the OP did not come and examine her, despite being present in the hospital. Thus, painful delivery took place on 14.11.2002. Due to carelessness of OP, the baby suffered foetal distress; the OP did not take proper care after delivery also. The baby did not cry immediately after birth, therefore, the baby was shifted to Sangameshwar Hospital by the Complainant''s husband. There, it was diagnosed as

birth asphyxia and septicemia, which was treated and then baby was discharged on 28.11.2002, further follow-up, was maintained. Thereafter, on 17.01.2003, a Pediatrician-Dr. Gachimani was consulted as the baby was having fever and excessive crying. The baby was under treatment till 07.04.2003. Baby was also taken to the OP doctor, who, after investigation told that baby was having neurological deficit. Accordingly, she referred the child to St. John''s Hospital (SJH) at Bangalore. Dr. Swarna Rekha at St. John''s Hospital advised treatment by occupational physiotherapy and speech therapy. Thereafter, the baby was under the consultation at Spastic Society of Karnataka from 28.01.2005 to till date for Speech Therapy. On 26.05.2006, baby was shown to Dr. Rajendra Dugani at Hospet, who suspected nevus in the brain, but it was ruled out by M.R.I test on 14.03.2007. The chromosome screening was also performed at St. John''s Hospital, it was normal, therefore, complainant alleged that, on the basis of clinical correlation and MRI findings there should be brain injury because of birth asphyxia of his child. The complainant filed a complaint before the District Forum, Gulbarga. Initially the District Forum dismissed the complaint on the basis of limitation, but it was remanded back by the State Commission on 29.10.2009.

Thereafter, the District Forum, on 25.11.2010 partly allowed the complaint and held:- "Complaint is partly allowed.Complainant is entitled to recover a sum of Rs.3,00,000/- with interest @ 6% per annum from the date of filing of this complaint till the date of realization from O.P.Further complainant is also entitled to recover a sum of Rs.5,000/- towards cost of this proceedings from O.P. Further O.P. is directed to pay the said amount within one month from the date of this order".

Challenging the said District Forum''s order the complainant and OP preferred the two separate first appeals before State Commission. The Appeal No. 2562/2008 filed by the complainant was partly allowed whereas the Appeal No. 1959/2008 filed by the OP was dismissed by the State Commission and passed the following order:- "The complaint filed by the appellant/complainant is allowed in part.The respondent/OP is directed to pay a sum of Rs.8,00,000/- as compensation together with interest at 6% p.a. from the date of filing of the complaint till its realization.The appellant/complainant is also entitled for a sum of Rs.2,00,000/- towards the medical expenses incurred for the treatment of the female child. The appellant as well as her husband are entitled compensation of Rs.1,00,000/- for mental agony suffered by them.Further respondent/OP is directed to pay the litigation expenses of Rs.10,000/-.The respondent/OP is directed to comply the order within 30 days from the date of receipt of this order".

Against the order of the State Commission, the petitioner/OP has filed this Revision Petition.

We have heard the learned counsel for both the parties. Mr. Shailesh Madiyal Counsel for the petitioner vehemently argued that the delivery of patient was conducted by the doctor/OP. It was not conducted by any ayurvedic doctor or any other doctor. The patient was the wife of one doctor; therefore, OP was present throughout delivery, as an extra precaution. OP admitted that,

the child did not cry immediately after birth, hence OP resuscitated the baby immediately and referred to Sangameshwar Hospital for NICU care. Therefore, there was no negligence.

The counsel for the complainant Mr.B.S.Sharma argued that, there was a gross negligence and he reiterated the facts mentioned in the complaint. He vehemently submitted that, the OP was not present throughout during delivery, it was not performed properly, hence the child suffered birth asphyxia, and thereafter, the child suffered developmental delay and mental retardation.

We have perused the affidavit evidence filed by the OP. Accordingly; the OP was a highly qualified OB/GYN practicing for more than 20 years having well equipped hospital. There was no single complaint against the OP. During delivery the OP monitored the fetal heart rate by fetal Doppler in the labor room, which was normal. Hence, there was no fetal distress. It was normal delivery performed by OP with care and caution. However, the baby did not cry immediately after birth. The OP did resuscitation of baby and gave oxygen. Thereafter, immediately baby was shifted to Neonatal Intensive Care Unit (NICU) at Sangameshwar Hospital. The baby was given continuous oxygen and kept in the warmer till it was shifted to the Sangmeshwar Hospital.

It is pertinent to decide whether the child suffered birth asphyxia? The OP during her cross examination before the District Forum submitted that in the month of November, 2002 there were four trainee doctors working under her, one was M.B.B.S. and one was B.H.M.S., and two were B.A.M.S. The OP also accepted that, if a doctor attending the patient in the labour room does not handle the patient properly, it may lead to various damages to the baby in case of vaginal delivery. In the instant case, it is doubtful that who had conducted delivery and who monitored the Fetal heart sounds. It was an admitted fact that, child did not cry after birth, certainly it suffered birth asphyxia.

The CT scan report of the child dated 27-4-2007 revealed (a) Corpus callosal hypogenesis, (b) encephalomalacic areas involving the bilateral parietal-occipital region. Similar findings were confirmed by MRI study subsequently by a Neurologist Dr. Rajendra Dugani. MRI report Ex.P-136 discloses that; "Encephalomalacic areas involving the bilateral parieto occipital region. Corpus Collosal Hypogenesis. No evidence of intracranial space occupying lesion." The medical literature on birth asphyxia, also explains, the cause of corpus callosal hypogenesis and encephalomalasia occur due to birth asphyxia.

We also cannot ignore the evidence/opinion of PW-3, Dr.J.Shankar, Professor in OBG of Vijayanagar Institute of Medical Sciences (VIMS) at Bellary that, the birth asphyxia in that baby was perinatal. His opinion Ex.P-138, is based on medical book of recent advances in OBG by John Bonnear. Therefore, we do not accept the objection raised by the counsel for OP that, PW-3 was an interested expert witness, as he was complainant''s friend working in VIMS. The OP was given liberty for cross examination of PW-3, it was not done. Even the OP has not produced any expert evidence to counter the opinion of PW-3, but at belated stage OP made vain attempt to call Dr. Girish Kamthekar from Solapur as an expert witness.

The OP did not produce medical records pertaining to delivery and condition of child after delivery. It is true, that the instant complaint was filed after lapse of five years. As per MCI guidelines, for a period of three years, the medical records are required to be preserved, but, in the instant case, the OP was aware that, the condition of baby which did not cry after delivery , thus it was a suspected case of birth asphyxia injury. It should be borne in mind that, the every medical professional should be vigilant and should have preserved such important medical record, if something goes wrong, suspicious during treatment or diagnosis. There is no doubt; in the present scenario the patients are more aware about the duty of doctors and their rights. Therefore, doctors need to be more vigilant, because any patient may be a potential litigant in future..!

At the last, the OP was a senior doctor and practicing for past three decades, conducted about 30,000 deliveries till date. But we are surprised to note that, there was no provision of NICU in OP''s hospital and at the time of delivery of said patient no pediatrician was present. The pediatrician or neonatologist should be made available during delivery to take care of new born and to avoid such episodes. We don''t agree in totality that, OP herself conducted delivery, then as baby did not cry after birth, the OP resuscitated baby, gave oxygen and put the baby under warmer. The baby was shifted to another nursing home, but from the evidence of OP, nothing is forthcoming about APGAR score of baby after birth, how much time the baby did not cry, period of resuscitation etc. In our view, it was an inadequate attempt of resuscitation made by OP, in absence of a pediatrician/neonatologist. Thus, it was the deficiency in service and an act of omission, for which OP is liable.

In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Triambak Babu Godbole and Anr . (1969) 1 SCR 206 and A. S. Mittal v. State of U.P AIR 1989 SC 1570 the Hon''ble Supreme Court observed that a person who held himself out ready to give medical advice and treatment impliedly undertook that he was possessed of the skill and knowledge for the purpose. Such a person owed to his patient certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or (and - sic) a duty of care in the administration of that treatment. A breach of any of this duty gave a right of action for negligence to the patient. The medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case was what the law required: (cf. Halsbury''s Law of England, 3rd ed. vol. 26 p. 17). A doctor no doubt had discretion in choosing the treatment that be proposed to give to the patient and such discretion was relatively ampler in cases of emergency.

The Discovery Rule serves an important purpose in protecting patients who are victims of medical negligence. The discovery rule creates an exception so that, the statute of limitations does not begin to run until the patient discovers the injuries resulting from the alleged negligence. The rule is particularly important in medical negligence cases because the patient often will not discover the negligence or injuries until years after the act of negligence. In this instant case, the complainant was suffering from the time of birth of her child and subsequently noticed defects during developmental stage. The complaint was filed after 5 years, but it was a continuous cause of action; hence we are of considered view that, it will be just and proper to award compensation from the date on which child was born i.e. from the time of deficiency committed by OP.

Therefore, on the basis of forgoing discussion, the entire episode speaks to an overworked, understaffed situation, without adequate resuscitation of baby after birth in absence of pediatrician. We are of considered view that, the District Forum calculated compensation at the tune of Rs.300000, which was just and proper, whereas the State Commission enhanced it on exorbitant side. Hence, we set aside the order passed by the State Commission and restore the order of District Forum with modification as; "Complaint is partly allowed. The OP is directed to pay a sum of Rs.3,00,000/- with interest @ 6% per annum from the date delivery of the baby(14/11/2002) and also pay Rs.20000/- towards the litigation charges, within 90 days from the receipt of this order, otherwise it will carry further interest @ 9% pa till its realization. However, there shall be no order as to cost.