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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
CASE STUDY - by Anoop K. Kaushal

Criminal liability in Obstetric Anomalies

and Recovery of Compensation

Deep Nursing Home v. Manmeet Singh Mattewal

First Appeal No. 158 of 2007 decided by the National Consumer Disputes Redressal Commission, New Delhi on 9 th May, 2012 (with FA No. 193/2007, New India Assurance Company Limited v. Manmeet Singh Mattewal ).

Facts: The respondents alleged before the State Commission that the baby that Charanpreet Kaur, wife of respondent 1 delivered in Deep Nursing Home died soon after the delivery though there was no foetal distress till the time of delivery, that Charanpreet was told about the death of her just-born baby as a result of which she went into shock, that the Nursing Home was not fully equipped to handle emergency cases like those of atonic uterus that Charanpreet developed and to undertake the requisite treatment, viz., uterine artery embolisation, had also not arranged for blood for transfusion before the delivery and even the blood group of the patient had not been ascertained beforehand, took unduly long to decide the need for blood transfusion to Charanpreet and thereafter some time was taken to arrange the blood from outside, also delayed shifting Charanpreet to the Post Graduate Institute of Medical Education and Research, Chandigarh to such an extent that on arrival there she was declared, "brought dead", and that doctors fabricated the record of the patient's treatment to escape prosecution for gross negligence in treating her.

Defence : The appellants pleaded that the deceased Charanpreet came to the Nursing Home for the first time on 10-11-2005, i.e., towards the end of her pregnancy term, was examined and the approximate date of delivery of the baby was estimated to be 2-1-2006, was advised to continue the iron and calcium tablets that she was taking and also undergo cardiological check-up. Though Charanpreet informed Appellant 2 that the check up by the cardiologist showed that everything was normal, she did not produce the cardiologist's report before Appellant 2. On 16-12-2005, Charanpreet went to the Nursing Home for a routine check-up and was advised to continue her earlier medications. In the night of 19-12-2005, Charanpreet was brought to the Nursing Home with complaint of pain. On examination, Appellant 2 found that she was not in labour pain. Charanpreet was again brought to the Nursing Home on 21-12-2005. After discussing the available alternatives with the accompanying relatives, Appellant 2 decided to induce labour pain as Charanpreet was suffering from false labour pain and the foetus was mature. Dr. G. S. Kochhar who was an anaesthetist of considerable experience also examined her and found her to be clinically normal except that she had low blood pressure. Thereafter, the procedure to induce labour was started. Appellant 2 periodically examined Charanpreet. After she started having strong contractions at about 1:00 a.m. on 22-12-2005, the membrane was artificially ruptured and an injection was administered at about 1:30 a.m. Charanpreet delivered a baby boy at 2:40 a.m. Appellant 2 was with her since 1:00 a.m. till the delivery of the baby because Charanpreet was tense. Her pulse rate was checked regularly, including just five minutes before the delivery. The baby did not cry but gasped after the birth.

The baby was handed over to the pediatrician who had been present since 2:15 a.m. (about half an hour before the delivery). The pediatrician tried to resuscitate the baby by administering oxygen as well as medication. Appellant 1 also assisted. However, all efforts to save the baby failed and he was declared dead at 3:10 a.m.

After the delivery of the baby, injections were administered to Charanpreet. She expelled the placenta completely with the membrane and the episiotomy was sutured. However, at this stage - at about 3:15 a.m. - Charanpreet started bleeding. She was shifted to the operation theatre where intravenous saline drip and blood substitute were started and oxygen mask was also given. Intensive examination of the genitalia was carried out to locate the source of bleeding but both the vagina and cervix were found to be without any tear. The relatives were then asked to arrange two units of blood for transfusion. The blood transfusion was started at about 4:15 a.m. Considering the complications that Charanpreet had developed, a senior gynaecologist and a general surgeon were also called in for consultation, who reached the Nursing Home at about 4:00 a.m. They both conducted necessary tests but could find no apparent reason for the bleeding. The doctors then concluded that the patient was suffering from Post-partum Haemorrhage (PPH) because of uterine inertia and agreed that she should be referred to the PGI for uterine artery embolisation. The patient was transferred to the PGI with two (more) units of blood transfusion running simultaneously and oxygen support. Dr. G. S. Kochhar, Anaesthetist reached the PGI ahead of the patient and took the patient personally to the Septic Labour Room (SLR). However, during the transfer from the Nursing Home to the PGI, the patient suffered another bout of bleeding. The physician in-charge at the SLR, PGI declared her "brought dead".

Held:

In its judgment, the High Court has held that the prosecution could not make out a case of gross medical negligence on the part of the accused Doctors and consequently quashed the First Information Report under the provisions of section 482 of the Cr.P.C. The decision of the High Court does not lead to the conclusion that there was no medical negligence on the part of the Appellant Doctors by the criterion of the Bolam Test. The question of tortious medical negligence was not before the High Court. As observed by the Apex Court in the Jacob Mathew case, "The jurisprudential concept of negligence differs in civil and criminal law. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e . gross or of a very high degree."

In attending on Charanpreet, there were several instances of departure from the standard protocol of ante-natal care, particularly regarding failure of Appellant 2 to insist on Charanpreet going in for standard haematological investigations (that are mandatory for a woman in her 28 th week of gestation but apparently not got done even till the 32 nd week when Charanpreet first came to see Appellant 2) and getting the cardiological consultation report/findings on record to show if Charanpreet was hypotensive in her last trimester. This is also supported by the pointed observations of the first two Medical Boards/Committees. The deleterious consequences of atonic uterine bleeding for a woman suffering from anaemia have been emphasised by both these Medical Boards (as well as in the relevant medical literature). Thus, while no case of tortious medical negligence has been made out against Appellant 2 in handling Charanpreet's labour - including delivery, management of the baby's problems and post-delivery management at the Nursing Home, there is enough evidence as well as expert opinion in the enquiry reports to hold that the ante-natal management of Charanpreet by Appellant 2, particularly in respect of necessary haematological and cardiological investigations, was not at all in accordance with the standard protocol that an Obstetrician of average skill would have adopted. Further, we see no case of medical negligence/deficiency in service against the Nursing Home, as there is nothing in the enquiry reports on this aspect nor have the complainants led any reliable evidence in support of their allegations in this regard. Hence, while a question may arise about the professional conduct of Dr. G.S. Kochhar, as a qualified Anaesthetist in not accompanying the critically ill Charanpreet in the ambulance and preferring to leave her to the care of two Nurses/Paramedics during the journey to the PGI SLR, no liability can attach to Appellant 1, i.e ., the Nursing Home.

As a result, we agree with the conclusion of the State Commission regarding Appellant 2 being guilty of medical negligence / deficiency in service, albeit for substantially different reasons, as discussed above. The relief granted by the State Commission is, however, based on the principles governing compensation in such cases and cannot be faulted. We also notice that as a sequel to this Commission's direction dated 12-4-2007, complainant 1 had withdrawn ` 6 lakh deposited by Deep Nursing Home and New India Assurance Co. Ltd. respectively in equal share of ` 3 lakh each. Consequently, we dismiss both the Appeals (No. 158 of 2007 and No. 193 of 2007) and direct Appellant 2 (Dr. Kanwarjit Kochhar) to pay ` 20.26 lakh to complainant 1, as awarded by the State Commission. However, since complainant 1 has already withdrawn the sum of ` 6 lakh, the net payment due will be reduced to ` 14.26 lakh. In addition, Appellant 2 shall also pay ` 14,000 to complainant 1 towards the costs of these proceedings.

 
 
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