Tuesday 28 April 2015

Another case of one crore compensation

Another case of one crore compensation

National Consumer Disputes Redressal Commission: Consumer Case No. 104 Of 2002:
Dr (Mrs) Indu Sharma, Complainant(s) vs Indraprastha Apollo Hospital
Course of events

The patient was hospitalized in OP-1 hospital (Indraprastha Apollo Hospitals) after midnight due to rupture of membranes on 10.6.1999. On the same morning, Dr Sohini Verma (OP-3) advised IV fluid with 1 ampule of Syntocinon (Oxytocin) to speed up the delivery. According to the patient, she was administered the maximum dose of oxytocin and there was a fall in the fetal heart rate, which was 80/min during the midnight of 11/12-6-1999.

She underwent emergency caesarean section (LSCS) and delivered a female baby at 3.36 am, birth weight 3.7 kg. The baby did not cry immediately after birth and it took almost 5 minutes.

The baby was kept on ventilator in NICU. The condition of baby deteriorated further, till 29.6.1999. The baby was unable to suck milk. The patient was discharged on 16.6.1999, while the baby was discharged from OP-1, on 30.6.1999. The patient had taken treatment from OP-3 for infertility and thereafter, spontaneously she conceived after 4 ½ years.

After 2 ½ months, from 23.08.1999, the baby was admitted to Holy Family Hospital with complaints of loose motions and strong clonic seizures from 23.8.1999. CT scan showed severe brain atrophy which could lead to severe mental retardation. The complainant observed that at age of 1 year 8 months, the baby’s milestones were delayed; episodes of seizures persisted. Also, the baby was unable to hold her neck and unable to suck milk.

From 21.09.1999 to 03.12.2002, the child was treated at AIIMS. The Disability Board of AIIMS, New Delhi certified the baby as ‘95% disability’.

The baby survived for 12 years with disabilities and with mental retardation and died on 15.1.2012.

Allegations
• No senior doctor available at the time of admission to the hospital; patient examined by resident doctor.

• Oxytocin administered in maximum dose, following which the fetal heart rate began to drop (80/min), but none attended the patient immediately.

• OP-3 failed to perform LSCS within 12-18 hours after membrane rupture and was abnormally delayed for about 27 hours.

• Excessive dose of oxytocin led to fetal distress and cerebral anoxia-palsy.

• Further CT scan and x-ray reports of the baby were declared as normal by the OP; but, in the opinion of doctors in the US and brother of the patient (a pediatric surgeon in USA) the severe atrophy of baby’s brain cortex was due to birth asphyxia and that the child might remain severally mentally retarded for as long as she lives.

• OPs made number of corrections /interpolations on the case sheets; the neonatal record was also tempered with.

• The Complainant never received the CTG graphs from the OP.

• The OP-3 failed to take proper care during delivery, which resulted in birth of an asphyxiated baby.

The complainant filed a complaint in the NCDRC alleging medical negligence on the part of the treating doctors and the hospital where she delivered her baby. And sought a total compensation of Rs.2.5 crores plus Rs.5 lacs for the mental agony and Rs.25,000/- as costs of litigation.

The commission examined three separate affidavits of evidence by Dr Sohini Verma, Senior Consultant and Gynaecologist, (OP-3), the Neonatologist, Dr Saroja Balan working at OP-hospital, and the Medical Superintendent, Mr. Singhal of OP-1 including that of the two witnesses from hospital, one of the sister In-charge Retnamma K. Nair and the other of Dr Poornima Dhar, the Anesthetist.

OP-3 was allowed to argue and assist the counsel for OP. The counsel argued that as the complaint was filed after delay of 264 days, it was barred by limitation. According to OP-3, oxytocin was given only for 17 hours and not for more than 24 hours; total 66 units of oxytocin was given by controlled infusion pump with proper monitoring. The delay in LSCS was due to non-cooperative attitude of patient. The FHR was normal throughout. OP-3 denied that during the last two hours of the progress of the labour, in question, no uterine activity and FHR recording were mentioned in the nursing chart. The CTG records were handed over to the complainant at the time of discharge, along with other documents.

The counsel asked for the complaint to be dismissed as there was no negligence on the part of OP-1 and/or OP-3.

Observations of the Commission
• On 03.03.2003, the Complainant filed an application for Condonation of 264 days delay in filing the complaint. The Commission disregarded the defense of the OP that the complaint was time barred as the delay of 264 days in filing the complaint had been condoned on 16.12.2011. Also the cause of action remains continuous till the patient or the complainant comes to know about the real injury.

• The Complainant has not produced any medical expert evidence, and has not produced any witnesses from Holy Family Hospital and AIIMS where the baby was treated after discharge from OP-1. Initially on 27.03.2006 complainant filed one application for referring the case to the medical expert of AIIMS to take medical expert opinion but she withdrew the said application. The Complainant relied upon the medical textbooks, the research articles.

• The OPs produced three expert opinions from doctors in own hospital, namely Prof (Dr.) Kamal Buckshee, Senior Consultant with Department of Obstetrics & Gynaecology of OP-1 Hospital, Dr. (Mrs.) Urmil Sharma and Dr.(Mrs.) Harmeet Malhotra, all have examined the treatment papers, opined that the treatment given to the patient was correct, and that there was no deficiency or negligence on the part of the treating doctors.

• 'There was delay in performing LSCS by OP-3; waiting period should not have been more than 24 hours and FHR should be carefully monitored.

• The child was consulted at several hospitals like Holy Family Hospital, New Delhi from 29.091999 to 08.09.1999 and took treatment at AIIMS from 29.09.1999 to 2003 for cerebral palsy and brain atrophy.

• The Commission did not accept the defense of OP-3 that it was induction failure and instead stated that OP-3 decided emergency LSCS because of fetal distress/non-reassuring fetal heart rate, and not induction failure. The Commission also did accept the contention of OP-3 that the baby was born with pre-existing (prenatal) neurological disability in the absence of any signs of foetal hypoxia or birth asphyxia

• The medical records of the baby were produced after a decade i.e. on 20.11.2014.

• All investigations (blood and urine test, USG, colour Doppler, CTG) done in antenatal period were normal. Triple marker test was not done as there was no previous family history of any genetic disorder.

• Repeat USG was not done at the time of admission to recheck a loop of cord around neck seen in previous USG done 12 days back. Pelvic adequacy by clinical pelvimetry was not checked for including adequacy of fluid even when the patient was leaking profusely. The FHS recorded was 146/minute, therefore the condition of foetus was good prior to delivery.

• In the instant case, the resident and nurses failed to appreciate the signs of distress on the foetal heart monitor, and they failed to inform the attending OP-3 of the non-reassuring heart tracings.

• OP-3 did not follow the standard of care for a hospital to quickly deliver a baby by emergency C-section when necessary. “Standard of care allow obstetricians two options to ensure that the continuation of labour is safe for the baby. One option is to perform a test to make sure that the baby is not acidotic. (If a baby is acidotic, it means inadequate gas exchange is taking place and the baby is being deprived of oxygen.) If that test is not performed, the Oxytocin must be stopped. However, if stopping the Oxytocin did not improve the heart tracing, the standard of care required C-section delivery since vaginal delivery was not imminent. Even if the foetal acidosis test is not familiar to some obstetricians, all obstetricians are familiar with the necessity of calling a stat C-section when a fetal heart tracing does not improve despite resuscitative measures. A good trial on fetal resuscitation would require randomization based on fetal distress diagnosed using the “gold standard” of fetal scalp blood pH < 7.2, testing the methods used for resuscitation, and accounting for the variables.”

• In this case, the long labour process brought about by poor and negligent medical management caused the birth of asphyxiated child with cerebral palsy and seizures. The birth record voluminously speaks about the asphyxia.

• The medical records showed many cutting, erasing marks, pin holes; some handwritten insertions, over writings and discrepancies in the doctor’s and sister’s chart, which showed that the records were apparently manipulated and fabricated.

• The OPs were obliged to explain how the baby’s cerebral palsy occurred if the required treatment had been given. In the absence of such exculpatory evidence, the invocation of the maxim res ipsa loquitur, is justifiable in this case.

• The records of the patients should be maintained by doctors and hospitals. “It is wise to remember that “Poor records mean poor defense, no records mean no defense”.

• The Commission rejected the contention of the OP that the delay in cesarean section was due to the reluctance on the part of the patient stating that “it was the bounden duty of the doctor to decide, the correct line of treatment; doctor wouldn’t just blindly obey the wishes of the patient…”

• The Commission also rejected the expert opinions produced by OP-3 from the three experts of OP-1 hospital, as they had given their opinion on the basis of tampered medical records, they were from same hospital and more chances of interested witnesses.

• It is the responsibility of the medical team to closely monitor the heart tracings so that they know when the baby becomes distressed.

• The say of OP that the patient was informed about emergency LSCS which was rejected by the patient or by her husband. The OP did not take written consent or signature of the complainant or her husband about refusal of C-section. The progress sheet clearly shows some insertion made by OP/staff to show that patient was informed. Thus, the entry was also tampered one.

Conclusions of the Commission
• The patient had pregnancy after 4 ½ years of infertility making it a precious pregnancy.

• Corporate hospitals and Specialists must perform at a higher level than other hospitals/GPs as they represent themselves as possessing highest standard facilities and care, superior skills and additional training.

• The records clearly showed fetal distress indicated by hypertonic contractions and fall in FHR below 120/min and OP-3 failed to take proper decision for emergency C-section making it an act of omission, thus negligence.

• The medical records of the mother and baby are tampered at many places.

• The substandard care administered to the patient during labour resulted in poor outcome despite using modern technology of CTG. Inability to interpret the CTG trace, i.e., poor pattern recognition, failure to correlate to the pathophysiology that caused the CTG changes, not taking into consideration the clinical situation that may suggest fetal distress and delay in taking appropriate action due to poor communication and team work were reasons for the poor outcome.

• Taking into account the sufferings of mother and child for 12 years, treatment and other expenses, the metal agony and trauma to the parents who suffered loss of their baby and thereon the quantum of interest on such amount, the Commission allowed a lump sum award of compensation of Rs. One crore by relying upon the judgments of Hon’ble Apex Court for award of compensation.

• The Commission further imposed punitive costs of Rs.10 lacs on OP-1 as OP had not issued entire medical record to the patient, indulged in the unethical medical practices and professional misconduct like tampering of medical records. It was the duty of the hospital to preserve the CTG tracings. Thus OP did not follow the standard of medical practice, not maintained medical records.

Final judgement
The commission found the OPs guilty of medical negligence and fixed total compensation of Rs. One Crore; out of which OP-1 will pay Rs.80 lacs and OP-3 will pay Rs.20 lacs to the patient/complaint within 90 days from the date of receipt of this order. The insurance company shall indemnify the respective OPs, as per law. Rs.10 lacs was imposed as punitive cost which OP-1 shall deposit in the Consumer Legal Aid Account, NCDRC within 90 days from the date of receipt of this order. If the order is not compiled within 90 days, the OPs are liable to pay interest @ 9% per annum, till its realisation.

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