MEDICAL SUPERINTENDENT INCHARGE, NEHRU HOSPITAL, POST GRADUATE INSTITUTE OF MEDICAL EDUCATION And RESEARCH vs KANWALINDER SINGH

THIS is an appeal filed by the O.P.-Medical Superintendent Incharge, Post Graduate Institute of Medical Education and Research, Chandigarh (for short hereinafter referred as to as PGI) against order dated 1.10.2003 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 475 of 2000, Kanwalinder Singh and Neelinderjit Kaur v. Medical Superintendent Incharge, Nehru Hospital, PGI, Chandigarh.

THE District Forum held deficiency in service on the part of the O.P./appellant and medical negligence in treating the respondent No. 2 and award a sum of Rs. 30,000/- as compensation with Rs. 1,000/- as costs of litigation. THE amount of compensation was directed to be paid within two months from the date of receipt of certified copy of the order failing which it was to carry interest @ 6% per annum till payment. THE complaint was filed on the allegations stated briefly as under: The respondent No. 2 Mrs. Neelinderjit Kaur wife of respondent No. 1 Shri Kanwalinder Singh was having pregnancy of 25 weeks. In the night of 3.4.2000, due to rupture of the membrance of embryo, the aminotic fluid started leaking and by mid-day of the next day i.e., 4.4.2000s, it had leaked completely and thereby endangering the completion of pregnancy period and safe birth of the child. It was in this condition that she was brought to PGI by her husband Shri Kanwalinder Singh and there she was admitted in the emergency ward of Obstetrics and Gynaecological clinic at 9.00 p.m. on 4.4.2000. The Central Registration number regarding the patient was 224496 of the said date of 4.4.2000. She was found to be under severe infection and the doctor decided to go in for induced abortion. Consequently, she was put on Pitocin on 6.4.2000 and at 21.05 hours, the same day, she was operated and a male child was born alive who was later on expired after three hours of the delivery. The contention of the complainant was that no body in the nursery ward appeared to have seriously considered to keep the newly born baby alive after consulting medical experts of the PGI. The placenta was recovered by the process called Controlled Cord Traction (for short hereinafter referred to as C.C.T.) and morphology was complete. The Haemoglobin level of the patient had gone down from 11.8 gm on 4.4.2000 to 4.2 gm on 7.4.2000. The complainant No. 2 - Mrs. Neelinderjit Kaur, the patient was discharged from the PGI in the afternoon on 8.4.2000.

The patient, however, was not quite well after her discharge from PGI and she was taken to Dr. S.K. Vohra (Retd.), Head of the Department of Obst. and Gyane in Rajendra Hospital, Patiala on 21.4.2000 who advised immediate ultrasound scan of the lower abdomen of the patient. The ultrasound scan report showed pre-term uterus was bulky and Techogenic mass was there in the lower uterus segment indicative of placenta pieces. It was alleged that the Haemoglobin level of the patient further lowered on 21.4.2000 to 7.5 gms. It was advised that the process of Dilation and Curettage (for short hereinafter referred to as D & C) was required. On 29.4.2000 and 30.4.2000 four units flood transfusion was given to the patient. Dr. (Mrs.) Babbar attended the patient Mrs. Neelinderjit Kaur on 30.4.2000 for about six hours and carried out D & C at 9.45 p.m. under anaesthesia and the life of the complainant, it is alleged, was saved. The complainants alleged that the doctors at PGI were inefficient and negligent on the grounds that, (1) The case of the patient, after leakage of amniotic fluid and infection being very bad, after induced abortion at 9.05 p.m. on 6.4.2000, D & C should have been carried out by the Doctor Incharge after anaesthesia and blood transfusion as per the routine medical practice to ward against possible retained placental pieces in the uterus, which was not done and secondly on 7.4.2000 morning, the patient was having BP 100/70 and feeling giddiness, the uterus had retracted and the vagina was full of clots, putting the patient on pitocin was not the answer. The ultrasound scan of uterus was absolutely necessary and further action should have been taken on the basis of Ultra Sound Scan report, which was not done.

THE line of treatment adopted at PGI was sought to be compared with the line of treatment undertaken at Rajendra Hospital, Patiala and on that basis, it was averred that the doctors at PGI in the Department of Obst. & Gyane were medically negligent and deficient in rendering service hired and availed by the respondents/complainants. This led to the filing of the complaint in the District Forum and the complainant prayed for issuance of a direction to the respondent to pay compensation to the extent of Rs. 4 lakhs. Notice of the complaint was issued to the respondent who put in appearance and filed written statement. In the preliminary objection, it was contended that the complainant was not a consumer who availed the services of the respondent. It was further averred that the details of the compensation of a sum of Rs. 4 lakhs were not mentioned in the complaint as to what was the basis for claiming the amount of Rs. 4 lakhs as compensation. Lastly, it was contended in the preliminary objections that the complaint was not maintainable against Medical Superintendent Incharge, PGI, Chandigarh who neither attended to nor treated the complainant No. 2 at any stage. The PGI was not impleaded as the respondent nor doctor who attended the complainant No. 2, the patient was impleaded as the opposite party in the complaint.

IT was, however, not disputed in reply to the averments made on merit that Smt. Neelinderjit Kaur wife of the complainant No. 1 was seen at 8.40 p.m. on 4.4.2000 and admitted at Nehru Hospital, PGI, Chandigarh. She had been having ante-natal care at Patiala until her admission and according to the history recorded, she had been having leakage per vagina for the last 20 hours prior to admission. This was her second pregnancy. On admissin, uterine size corresponded to the duration of pregnancy and fetal heart was present. The patient was put on antibiotics. The patient had no fever and cervical swab on admission had not shown any evidence of infection. At 25-26 weeks gestation, the chance of survival of neonate even with all available facilities is 0%. On the other hand, prolonged leakage of amniotic fluid could have led to uterine infection and subsequent infertility or recurrent pregnancy losses. The patient and her husband were explained about the risks of continuation of pregnancy with leakage and consent was also obtained before starting for termination of pregnancy. The patient had pre-term delivery on 6.4.2000 at 9.05 p.m. The patient delivered a live born boy weighing 750 gms. with no apparent congenital malformation. Placenta was delivered by C.C.T. Placenta morphology was normal and the patient had recorded as complete. The surgical procedure such as D&C is not recorded routinely in any pregnancy unless there is a suspicion of incomplete emptying of uterus. On the other hand instrumentation of the uterus immediately after delivery may result in injury to the uterus specially if the doctor goes deep into the uterus check. The curettage for removal of products of conception is routinely done if the period of gestation is less than 12 weeks whereas this patient''s period of gestation was 25 weeks and at this period of gestation the placenta is delivered like a normal delivery, which was not done in the case of the patient. It was further contended that subsequent to her delivery, the patient remained well till 7 a.m. on 7.4.2000 when she was found to have blood clots in the vagina with a retracted uterus, which could happen if the uterus had become atonic after delivery and contracted with expulsion of clots, which is a common occurrence when termination of pregnancy is done by pitocin infusion. In view of this, pitocin infusion was started and the patient responded well since she did not have any heavy bleeding thereafter. In case excessive bleeding had continued, it would have been useful to do ultrasound. Regarding the averment that no blood transfusion was given when HB was 8 gm%, it was contended that blood transfusion had go hazards in spite of screening for HIV and HBSAg. Blood transfusion is not recommnended unless essential since HIV transmission can still occur if donor was in "window period". Hence, blood transfusion is only given as life saving measure when patient is seriously ill. As per the record, it was alleged, at the time of discharge patient had normal blood pressure, no tachycardia, bleeding per vagina was within normal limits. The patient was accordingly discharged with advice to attend emergency services of the department, if the patient had any problem. She was prescribed antibiotics and haematinics at the time of discharge. It was further contended that it takes six weeks for the uterus to return to its normal size. The Haemoglobin had apparently dropped from 8.2 to 7.5 gm%. It was contended that had the patient severe bleeding, HB percentage should have dropped to much lower levels. The patient had D&C and was told to have 5% chance of survival, which is a wrong statement. The allegations of negligence were denied by the respondent for the reasons that (1) D&C was not mandatory after any delivery/abortion more than 12 weeks period of gestation, and (2) Ultrasound would have been useful if bleeding had continued. The patient had stayed for more than 24 hours in the hospital and bleeding was within normal limits after initial episode of excessive bleeding. Thus ultrasound examination was not considered.

THE parties led evidence in the shape of affidavits and placed documentary evidence on record. the District Forum recorded a finding that there was no deficiency in service on account of non-survival of the baby. It was further held that it was difficult to accept the version of the complainant that the patient was profusely and heavily bleeding, when she was discharged. THE version of the complainant that O.P. should have done D&C under anaesthesia and blood transfusion to ward off the possible retention of placental pieces in the uterus, was also not upheld and it was held that the complainant had led no expert medical evidence or medical textual evidence in support of their case that in such like cases D&C was the only proper course of treatment and not the C.C.T. It was held that, therefore, by the mere fact that the O.P. adopted on course of treatment while the complainants have pleaded another course of treatment, it cannot be said that they had committed any deficiency in service when there is no expert medical evidence on record that the course adopted by the O.P. was not a practice usually adopted by a reasonable group of medical experts practising the same branch of Obst. and Gynae.

THE contention of the complainants that when the complainant No. 2/patient was feeling giddiness and her uterus had retracted and vagina was full of clots on 7.4.2000, putting her on pitocin was not the answer and that moment ultrasound scan of the uterus was absolutely necessary and further action should have been taken on the basis of the ultrasound scan and since it was not done, so it was deficiency in service, was also repelled by the District Forum and it was held that except for their own assertion, the complainants have led no reliable expert medical evidence nor produced medical literature in support of their contention that in the present case, the ultrasound examination of the patient on 7.4.2000 was absolutely necessary and in these circumstances, if the O.P. had not subjected the patient to the utrasound examination on the said date, for which they have given their own reasons, which are not found to be irrelevant, it cannot be said that they have committed deficiency in service merely by omitting to subject the patient to ultrasound examination on 7.4.2000 Still further, the District Forum did not accept the contention of the complainants that the patient should have been given blood transfusion and it was held that "Therefore, if keeping in view this threat and also keeping in view the condition of the lady complainant at that time which was not serious, if the O.P. did not give her blood transfusion, it did not necessarily mean that they had committed deficiency in service".

We have referred to the findings of the District Forum, as recorded above, which clearly go to show that the District Forum upheld the contention of the O.P. that the line of treatment undertaken at PGI for the treatment of the complainant No. 2 - Mrs. Neelinderjit Kaur was the accepted line of treatment and there is a clear finding that no deficiency in service or negligence could be held on the part of the respondent. After recording these findings and accepting the version of the appellant/O.P., the District Forum proceeded to consider the line of treatment undertaken at Rajendra Hospital, Patiala and held in Para 16, inter alia, as under : "16. The aforesaid evidence, including the abortion notes of the Rajendra Hospital, Patiala and the Histopathology report of the patient have not been challenged by the learned Counsel for the O.P. and, therefore, they have to be accepted at their face value. If that be so, then it stands proved to the hilt that on 30.4.2000 in the Rajendra Hospital, Patiala by the D&C procedure products of conception i.e., the placental pieces were removed from the uterus of the patient, even though the doctors in the Nehru Hospital, Chandigarh (O.P.) had certified that as a result of the induced abortion conducted by them, the placenta was delivered by controlled cord traction, the placenta morphology was normal that she had recorded as complete. However, the evidence just discussed above falsifies and negates these facts recorded by the O.P. and proved to the hilt that placental pieces were still present in the uterus of the patient which had been extracted by D&C procedure at Rajendra Hospital, Patiala on 30.4.2000. The present is a case akin to the res ipsa loquitur. In these circumstances the onus shifts on to the O.P. to explain as to how the placental pieces/products of conception remained still present in the uterus of the patient even though the O.P. had recorded and certified at the time of her induced abortion that the placenta morphology was normal and she had recorded as complete. However, the O.P. have failed to furnish any satisfactory explanation for this. Therefore, negligence and deficiency in service on their part is proved. If induced abortion is conducted in a premier hospital like the Nehru Hospital, PGI, Chandigarh (O.P.), the minimum that can be expected is that all the products of conception are removed completely by the induced abortion and no part of these products remained in the uterus. But the O.P. have failed to attain and achieve this and they have furnished no satisfactory explanation of the presence of the products of conception in the uterus of the patient on 30.4.2000. Hence negligence and deficiency in service on their part is patent..."

IT is evident that the District Forum compared the line of treatment undertaken at Rajendra Hospital, Patiala and notwithstanding the earlier finding recorded by the District Forum upholding the line of treatment undertaken by the appellant/O.P. for treatment of the patient and committing deficiency in service or medical negligence, the negligence and deficiency in service on the part of the appellant/O.P. has been upheld towards the end of para 16 where the District Forum after observing that the District Forums were conscious of the fact that if a finding is to be recorded against the medical professionals, then the Forum must insist on reliable evidence and proof, proceeded to observed as under: ".....However, in the present case, the complainants have produced irrefutable evidence of the presence of the products of conception in the uterus of the patient even about 23 days after the induced abortion and there is no satisfactory explanation for their presence. So, the judicial conscience of the Forum is satisfied about the negligence and deficiency in service on the part of the O.P. Of course it is the prerogative of the doctor whether he/she adopts the C.C.T. method or D & C method for induced abortion, but what is expected of him/her is that the induced abortion must be complete which the O.P. in the present case has failed to achieve. Therefore, it is here that negligence and deficiency in service on their part lies and not in the mere fact that they had adopted the C.C.T. method and had not adopted the D & C method."

In sum total, the finding of the District Forum is contradictory inasmuch as all the objections and contentions of the complainants regarding medical negligence and deficiency in service on the part of the appellant/O.P. were repelled and a categorical finding was recorded that there was no medical negligence and deficiency in service on the part of the appellant/O.P. in treating the complainant No. 2. The change in the course of reasoning for recording a finding of medical negligence and deficiency in service on the part of the appellant/O.P. is based on a Histopathology/Cytology Report dated 8.5.2000 (Annexure 10), which was extracted verbatim in para 15 of the impugned order, which reads as under: "15. The Histopathology report dated 8.5.2002 (Annexure 10) of the patient is also on record, which reads as under- "Endometrial curettage and placental pieces Microscopic examination On gross Dark brown friable looking mass about 8 cm x 5 cm in size. Microscopically On one side of the section, compressed crowded hyalinized villi can be seen forming an infarct. At one or two foci group of infarct acute inflammatory cells can be seen. Acute and chronic inflam-matory cells can be seen spreading into villi and intervellous spaces. Most of the villi towards the margin are thin, avascular, fibrosed giving a burnt out appearance. Most of the villi structures seem to be second trimester villi. Areas showing inter villous haemorrahage can be seen. Impression Suggestive of abneptio/premature separation of placenta. Decidual areas showing clumps of inter-mediate triphoblast also appreciated suggesting decidual ishemia. Impression Consistent with clinical diagnosis of missed abortion with evidence of acute and chronic focal inflammation focal premature separation with evidence of decidual ischemia."

AT the very outset, it may be pointed out that the view of the District Forum that the learned Counsel for the appellant/O.P. did not challenge the abortion notes of the Rajendra Hospital, Patiala and Histopathology report of the patient, hence, they deserve to be accepted at their face value and it stood proved to the hilt that on 30.4.2000 in Rajendra Hospital, Patiala by the D & C procedure products of conception i.e., the placental pieces were removed from the uterus of the patient, even though the doctors in the Nehru Hospital, Chandigarh (O.P.) had certified that as a result of the induced abortion conducted by them, the placenta was delivered by C.C.T., that placenta morphology was normal and that she had recorded as complete falsified and negated these facts, is not a legal and valid approach. It may be mentioned here that the complainant did not file affidavit of the treating doctors at Rajendra Hospital, Patiala to prove the contents of the reports referred to above. The learned Counsel for the appellant/O.P. submitted that the O.P. could not have been in a position to lead evidence against the contents of the aforesaid reports. It is settled law that burden of proof remains on the party who brings out allegations against the other party and burden of proof never shifts from one party to the other. The onus may shift from one party to the other only when reliable and credible evidence has been led though the burden of proof still remains on that party to show the evidence to be credible. It seems quite surprising that the District Forum, on one hand, upheld the line of treatment undertaken by the doctors of the appellant/O.P. and approved the procedure of C.C.T. and not adopting D & C and in not going for ultrasound and for blood transfusion yet on the basis of the reports of Rajendra Hospital, Patiala, which is subsequent to the treatment of the patient done at PGI, Chandigarh. The earlier findings have been ignored by the District Forum and a finding of medical negligence and deficiency in service has been recorded against the appellant/O.P. by the District Forum. It is noteworthy that the respondents/complainants did not lead any credible evidence to explain as to why they did not come to the appellant/O.P., if the patient continued to have some problem though the discharge card clearly advised her to come to the emergency wing of the Department of Obst. and Gyane. Be that as it may, the patient went and consulted Dr. S.K. Vohra (Retd.) Head of the Department of Obst. and Gyane in Rajendra Hospital, Patiala on 21.4.2000 and on his advice, she went to Rajendra Hospital, Patiala and got her treatment there but by that itself will not mean that the doctors of the Department of Obst. and Gyane at PGI, Chandigarh were negligent and rendered deficient services in adopting the procedure, which was not at all an approved procedure for the treatment of the patient at the stage when she had already had a gestation period of 25 weeks and as a matter of fact, she delivered alive mail child who could not survive and died but the District Forum did not accept the contention that this was due to any negligence on the part of appellant/O.P.

WE are of the considered opinion that the District Forum went wrong in comparing the treatment done at Rajendra Hospital, Patiala with the treatment done at PGI, Chandigarh and on that basis, to record a finding of medical negligence and deficiency in service on the part of the appellant/O.P.

IN the case of Vinitha Ashok (Smt.) v. Lakshmi Hospital and Others, I (2002) CPJ 4 (SC)=VI (2001) SLT 735=(2001) 8 Supreme Court Cases 731, it was held by the Hon''ble Supreme Court in para 24 as under: "24. This is the legal position of the standard of care required by a doctor. A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice then merely because there is a body of opinion that takes a contrary view will not make him liable for negligence."

In the case before us, the material placed on record clearly showed that the appellant/O.P. undertook the treatment, which even according to the finding of the District Forum, was an accepted norm of practice in the concerned field and, therefore, the mere fact that a different procedure, subsequent to the delivery of the child, was undertaken at Rajendra Hospital, Patiala will not be sufficient to fasten liability on the appellant/O.P. and they could not be held to be medically negligent or deficient in rendering service to the complainant No. 2/patient. The appeal has thus considerable merit and is allowed. The impugned order is set aside. The complaint is dismissed with costs to be borne by the parties themselves. Copies of this order be sent to the parties free of charge. Appeal allowed.