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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member
The present Revision Petition has been filed under Section21(b) of the Consumer Protection Act, 2019 (the “Act”) against impugned order dated 24.09.2015, passed by the State Consumer Disputes Redressal Commission, Gujrat (‘State Commission’) in First Appeal No. 1673 of 2013. In this appeal, the Respondent/OP appeal was allowed, thereby setting aside the Order dated 10.07.2013, passed by the District Consumer Disputes Redressal, Anand (District Forum”) in CC No. 246 of 2010, wherein the Complaint was allowed.
For convenience, the parties are referred to as per positions in the Consumer Complaint before the District Forum. Mrs Parulben Shaileshbhai Chunara is the Complainant and Dr. Vinay kumar C. Sinh, Maltidevi Maternity Hospital is Opposite Party (OP) doctor.
In brief, the Complainant, who was pregnant, was under care of the OP doctors from the beginning. Upon admission for delivery to OP hospital on 24.04.2010, she experienced pains on the following day and was taken to labor room. During delivery inexperienced assistants and nurses used inappropriate language and threatened her. After a difficult delivery, the baby boy was born. However, she suffered excessive bleeding and was not moved from the room for two hours. She was later given anesthesia due to ongoing issues. The OP doctor instructed her relative to arrange three bottles of blood immediately due to the Complainant's condition. During delivery, her uterine vein was cut, leading to significant bleeding and extreme pain. The tearing of uterus vein occurred due to excessive pressure applied by OP Doctor while attempting delivery by vacuum method. Consequently, the OP doctor called for an ambulance and informed Dr. Swatiben of Krishna Hospital, Karamsad, about the necessity of an operation. She was admitted to Krishna Hospital on 25.04.2010, where she underwent surgery. She subsequently spent a month in ICU and 15 days in a general ward before receiving further treatment at another hospital for 1½ months. She alleged negligence on the part of the OP hospital where she was initially admitted, stating that due to the severed vein and heavy bleeding, immediate transfer to Krishna Hospital was done. She incurred Rs.3,25,834/- expanse at Krishna Hospital. Also, she suffered mental agony as her uterus was removed, impacting her ability to conceive again. Consequently, she filed CC No. 246 of 2010 before the District Forum, seeking Rs.10,00,000/- in compensation with 12% interest, Rs.3,25,834 for medical expense @ 12% interest and litigation costs.
Top of Form
In reply before District Forum, the OP Doctor contended that the Complainant had been receiving regular treatment at OP hospital since 05.10.2009, during her pregnancy. She was admitted to the hospital for delivery on 24.04.2010, at 7:30 PM, with high BP (160-120), leg swelling and low blood levels. The OP initiated treatment and medication to prevent contractions and facilitate cervical dilation. Labor pains commenced on 25.04.2010, prompting the Complainant's transfer to the delivery room, with her father duly informed of the situation. Following medical protocol, the baby boy was delivered after necessary efforts, with all medications duly recorded in the case papers. Due to the baby's slow heart rate (1m/20), cesarean delivery was recommended, but the Complainant's father declined, leading to the use of a vacuum to expedite delivery, which was successful, with the baby crying after three minutes. After delivery, the Complainant experienced bleeding, for which Dr. Jatin Patel was summoned to administer anesthesia and medication to control it. Subsequently, she was transferred to Krishna Hospital after blood transfusion giving B-Negative blood, with advance arrangements made for blood bottles. The OP asserted that the uterine vein was not severed during delivery. The bleeding was due to vacuum's inadvertent attachment to the thick uterine wall due to the Complainant's movement and high blood pressure. She was admitted to Krishna Hospital solely for bleeding treatment, where she was provided care. OP emphasized that the Complainant received treatment from them from 24.04.2010 to 25.04.2010, and no fees were charged. Additionally, medication was provided by the hospital, and they were unaware of her subsequent treatment at Krishna Hospital. Further, OP highlighted his qualifications (M.D. in Gynecology and D.C.H.) and maintained that he had meticulously and conscientiously treated the Complainant throughout her pregnancy and delivery, despite her high blood pressure. He emphasized that, despite advising cesarean delivery, they prioritized the safety of both mother and baby by opting for vacuum delivery. In conclusion, the OP asserted that their services were not deficient and requested the dismissal of the Complainant's allegations.
The District Forum, in its Order dated 10.07.2013 partially allowed the complaint, finding the OP negligent. It directed the OP to pay Rs.66,166/- within one month. In the event of non-payment, the order stipulated a yearly interest rate of 7.5% on the outstanding amount. Additionally, an expense of Rs. 5000 was awarded for mental anguish until the specified amount was recovered.
Being aggrieved by the District Forum Order, the OP/Appellant filed an Appeal No. 1673 of 2013 before the State Commission. The State Commission vide order dated 24.09.2015 allowed the Appeal, found that the Complainant failed to prove medical negligence against the OP, thereby setting aside the Impugned Order dated 10.07.2013 passed by the Ld. District Forum.
Being dissatisfied by the Impugned Order dated 24.09.2015 passed by the State Commission, the Petitioner/ Complainant filed the instant Revision Petition bearing No. 962 of 2016.
The learned Counsel for the Petitioner/Complainant reiterated the facts of the case and asserted the learned District Forum had unequivocally found evidence of damage to the vein, bleeding, and failure to promptly seek expert medical intervention, thus establishing a clear case of medical negligence. He contested the finding of the learned State Commission, arguing that it contradicted the District Forum's findings and lacked supporting evidence, rendering it a flawed determination. He highlighted the absence of evidence of informed consent from the Complainant for the continuation of a riskier vacuum method known to potentially lead to complications such as uterine vein tears and excessive bleeding. Moreover, they underscored the allegation of delay in transferring the Complainant to another hospital when bleeding exceeded the Respondent's capacity to manage safely, further demonstrating gross medical negligence. He urged the Revision Petition to be granted, along with the award of exemplary and punitive damages, alongside litigation costs. He cited the following judgments in support of his arguments:
a. Dr. TT Thomas Vs. Smt. Elisa & Ors 1986 SCC OnLine Ker 217.
b. Shilaben Ashwinkumar Ram Vs. Bhavin K. Shah & Anr., Civil Appeal No. 1442 of 2019, decided on 04.02.2019.
c. Samira Kohli Vs D. Praha Manchanda & Anr(2008)2 SCC 1.
d. Dr. Balram Prasad Vs. Dr. Kunal Saha & Ors., Civil Appeal No. 2894 of 2012, decided on 24.08.2013.
The learned Counsel for Respondent/OP reiterated the facts and the evidence previously filed and argued that it is the duty of the Petitioner to substantiate any claims of negligence, which she failed. Further, he highlighted that the witnesses referenced and relied upon by the Petitioner themselves testified before the District Commission, affirming that there was no medical negligence and that the treatment provided by the Respondent adhered to accepted medical practices.
Additionally, the Respondent's Counsel argued that even if this Commission was to conclude that the Petitioner is entitled for relief, such relief should not exceed the amount awarded by the District Commission in CC No. 246/2010, which is Rs.65,166. He contended that the Petitioner cannot claim an amount greater than what was awarded by the District Commission, especially since the Petitioner did not file an appeal seeking an increase in compensation. While the Petitioner referenced a judgment of Hon'ble Apex Court in a different context, it does not apply to the present case. He emphasized that this Commission does not possess powers under Article 142 of the Constitution of India, unlike the Hon'ble Apex Court, which exercised its jurisdiction under exceptional circumstances. He pointed out that as per Section 24A of the Consumer Protection Act, 1986, an order becomes final if it is not challenged by the concerned party. Since the Petitioner did not challenge the order of the District Commission, it is considered final. Consequently, the Respondent argued that the present revision petition should be dismissed with costs.
I have examined the pleadings and associated documents placed on record, including the Orders of both the fora and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
The primary issue in this case revolves around determining whether there was medical negligence by Respondent/OP in providing treatment to the Complainant. Specifically, the key question is whether the actions of OP met the standard of care expected in the circumstances, particularly regarding the management of delivery process and the subsequent treatment of complications experienced by the Complainant. The orders of both fora below diverge in their assessments of the complaint regarding medical negligence and deficiency in service. While the learned District Forum partially upholding the complaint, reasoned that given the circumstances of vein damage and continuous bleeding, the OP Doctor should have promptly sought the assistance of another expert doctor or hospital without delay. Consequently, the failure to do so was deemed as an instance of carelessness, with the overall level of negligence attributed to the doctor not exceeding 20%. Additionally, the Complainant alleged that the removal of her uterus resulted in the inability to conceive in the future. Conversely, the learned State Commission reversed this decision, contending that since the issue arose after the birth of the baby, the immediate referral of the Complainant to Krishna Hospital to preserve her life cannot be construed as negligence in the service provided by the OP.
Undisputedly, the Complainant was admitted to the hospital under the care of the OP Doctor for delivery on 24.04.2010. Labour pains began the next day, 25.04.2010, prompting the Complainant to be taken to the delivery room. The delivery involving the birth of a baby boy was challenging and required medical intervention. Following the birth, the Complainant experienced excessive bleeding and required anaesthesia. Due to the severity of the bleeding, the OP Doctors transferred her to Krishna Hospital for further treatment. She underwent surgery at Krishna Hospital where she was admitted to the ICU for one month. The Complainant incurred medical expenses, including those related to the surgery and subsequent treatment. Therefore, allegations of medical negligence and deficiency in service were raised by the Complainant against the OP Doctor.
It is also undisputed that the Complainant had taken treatment from the OP doctor from the beginning of the pregnancy till delivery on 25.04.2010. OP presented all the case papers of the complainant. Bleeding happened from the beginning as the Complainant had high BP and her legs were swollen. Her relatives denied to consent for cesarean delivery. The OP notified the relatives about the challenges involved in such delivery and continued with delivery by vacuum suction method. Undisputedly, as the bleeding persisted post-delivery on 25.04.2010, the Complainant was admitted in Krishna Hospital, Karamsad where she was treated for 45 days. Evidence has been adduced and the treatment team of Krishna Hospital brought out necessary details about the treatment given to her from the beginning till discharge. The complications that happened to her after delivery were resolved after treatment. To save the life of complainant uterus was removed at a subsequent stage. As the main bleeding spot was not found, with the help of intravascular radiologist the point of bleeding at the vaginal artery was identified, immobilized and thus bleeding stopped. Dr. Raitatha of Krishna Hospital has brought out that in normal delivery injuries happen in the vagina and thus bleeding happened in this case and this type of bleeding can happen to women in any type of delivery. Therefore, the delivery of the Complainant entailed inherent complexities. On the relatives declining consent for caesarean operation, the OP hospital continued with normal delivery. However, during the course of delivery there has been excessive bleeding due to movement of fetus as well as suction procedure. On identifying the nature of the bleeding, the OP hospital immediately made arrangement for transfer of patient to Krishna Hospital and facilitated immediate necessary treatment to address the complications. Thus, the circumstances of delivery and her transfer to Krishna Hospital are established.
I would like to rely upon the decision of Hon’ble Supreme Court in Jacob Mathew v. State of Punjab (2005) SSC (Crl) 1369 which followed the Bolam’s principles and observed:
"25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."
Further, in the case of Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 Hon’ble Supreme Court observed:
“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”
Based on the discussion above, it is evident that the OP Doctor fulfilled his duty of care and provided treatment to the patient in accordance with the reasonable standard of medical practice. The decision to refer the patient to Krishna Hospital was necessary and appropriate to safeguard the patient's life and address the complexity of bleeding. Neither bleeding nor referring her for further management to Krishna Hospital can be termed as negligence or deficiency in service.
In view of the foregoing deliberations, I do not find any illegality or impropriety in the order of the learned State Commission dated 24.09.2015. The Revision Petition No. 692 of 2016 is dismissed.
There shall be no order as to costs. All pending Applications, if any, also stand disposed of accordingly.