1. SMT . Varsha Priya, Complainant No. 1 and Shri Sarvipriya, husband of Petitioner No. l have filed this complaint alleging medical negligence on the part of Dr. Sushma Pandey, Opposite Party No. 1 who was at the relevant time running Pandey Nursing Home, Opposite Party No. 2 herein. She has claimed total compensation to the tune of Rs. 27,07,800 in terms of relief claimed in Para -14. Facts as alleged by the complainant are under:
2. SMT . Varsha Priya, complainant No. 1 delivered a female child at Brindavan Nursing Home, Salimpur Ahra, Patna on 21.8.1995. The said delivery was normal. On 12.9.1996, Varsha Priya, complainant No. l was admitted in the Pandey Nursing Home, with 8 months pregnancy with blood stains. It was diagnosed to be a case of Amenorrhoca. She was attended to by Dr. Sushma Pandey and was discharged on 13.9.1996 after prescribing certain medicines and bed rest. She was re -admitted on 20.9.1996. Opposite Party No. l advised caesarian operation as the life of the foetus was in danger. She was taken to the labour room at 5.30 p.m. and on the same day at about 7.30 p.m. Opposite Party No. l informed the complainant No. 2 and his family members, friends and relatives that the complainant No. 1 had delivered a male chiled at 7.20 p.m. Opposite Party No. l assured the family member of complainant No. l that she was in the operation theatre and was normal. Complainant No. l was brought from the operation theatre to her room at 10.40 p.m. on 20.9.1996 in unconscious state in the presence of her husband, mother Mrs. Pandey Lally Sahay, mother -in -law Smt. Premlata Prasad, brother Sri Raj Kumar Sahay, Mr. Prabhakar Roy and friends and relatives. At about 3.30 a.m. on 21.9.1996 Shri Raj Kumar Sahay, brother of the complainant and other relatives noticed that hands of Complainant No. l were turning blue and cold. She began gasping for air and developed serious breathing problems. They franticly called for help but nobody was available immediately and later on relatives and friends of complainant No. l forced the respondent Doctor who stays on the upper floor of the Nursing Home to come down and attend to the patient. According to the complainant, Opposite Party No. l had malafidely concealed the fact that the complainant had suffered a cardiac arrest on the operation table and that she was revived after massage on the chest and kept on artificial respiration. The condition of the complainant deteriorated further and became very serious forcing the family members of the complainant to call Dr. Achal Sinha, a Cardiac specialist to the Nursing Home at about 8.30 a.m. who advised the family members of the complainant No. l to take her to Dr. A.K. Thakur''s Heart Hospital (Pvt.) Ltd. According to the complainant, the respondent doctor kept the treatment book of the patient in her custody which was lateron handed over to them on their insistence. Dr. A.K. Thakur immediately sent Dr. Emanul Haque at 9.00 a.m. to Panday Nursing Home to examine the patient. Dr. Haque took the ECG of the patient at 9.05 a.m. and diagnosed that the patient was suffering from Anoxic encaphalopathy and further advised that the patient urgently needed vital support systems and cardiac monitoring.
3. THE negligence alleged is that the opposite Party No. l, who was only a gynaecologist, had without the assistance of an anesthetist, herself administered Spinal anesthesia to the complainant No. l although she was completely incompetent and unqualified to do so. Spinal Anesthesia induced hypertension, cerebral anaxia, and the complainant went into come for the next 18 days. She has still not fully recovered and is suffering from complete loss of memory and has no control over her physical movements.
On notice being issued, opposite party filed her reply denying each and every allegations, averments, contention and statement as set out in the complaint save and except those specifically admitted. It was stated that Opposite Party No. 1 had passed MBBS in 1970 from K.G. Medical College, Lucknow, and M.S. (Obts. Gynae) in January 1976 from Patna Medical College, Patna. In 1996 she worked as Associate Professor in Obst. and Gynaecology Department, Nalanda Medical College, Patna, which is a Government Medical College. That at present the Opposite Party No. l is the Head of the Department of Obst. and Gynaecology at Patliputra Medical College, Dhanbad, and has a teaching and professional experience of about 23 years. That she possesses the required skill and knowledge in the management of Obstetrics and Gynaecological cases and emergencies. She was running Pandey Nursing Home for the last 13 years and the same is registered under the Society Registration Act, 1986. It was admitted that Complainant No. 1 was admitted in the Nursing Home on 12.9.1996 as a case of 8 months pregnancy with bleeding. Patient was diagnosed as a case of placenta previa. After rest and conservative treatment her bleeding was stopped and on request she was discharged on 13.9.1996. The complainant was fully satisfied with the treatment given and care taken. Again she was admitted on 20.9.1996 with excessive bleeding. She was passing blood clots at home and foetus heart sound was slow 120/mt and as such the opposite party advised her for emergency caesarean section to save the life of mother and foetus. It was denied that the patient was taken to the labour room. It is asserted that the patient was taken to the Operation Theatre and proper management was started immediately. After sensitivity test, Dr. B.N. Prasad, anesthetist of the Nursing Home, was informed over phone to come for an emergency caesarean section. At the relevant time, Dr. Baij Nath Prasad was Professor of Anesthesiology Department in Nalanda Medical College, Patna. At present he is Professor and Head of Department of Anesthesiology in Patna Medical College, Patna. Dr. Prasad was a very experienced and possessed the requisite qualification and skill for administering all types of anesthesia including spinal one. Dr. Prasad after giving some food to the complainant gave spinal anesthesia. It is averred that the nursing home is fully equipped with all the necessary equipments to meet any emergency and the opposite party had taken all possible precautions and applied her medical acumen in performing surgical operation of the complainant. The operation was performed by the opposite party No. l with a medical team consisting of:
1. Dr. Sushma Pandey - Surgeon 2. Dr. B.N. Prasad - Anesthetist 3. Dr. Geeta Sinha - Assistant 4. Mrs. Meena Sinha - A grade Staff Nurse 5. Mrs. Reeta Sinha - A grade Staff Nurse 6. Ramesh Pd. Sinha - Operation Theatre Asstt. 7. Sub Staffs.
4. IT is averred that the patient was kept on 100% Oxygen throughout in the Operation Theatre. A male child was delivered at 7.20 p.m. As the B.P. of the patient had fallen, she became cyanosed and pulse less. Cardiopulmonary resuscitation was done. She was managed very carefully. Patient was on Cardiac Monitor. Dr. Prasad incubated the patient and the patient was given external cardiac massage. Without wasting a single moment, all essential drugs were administered to her which were kept in the emergency kit. Within 2/3 minutes pulse and heart rate appeared on monitor and respiration started. Due to sudden collapse, patient was kept in Operation Theatre till 10.30 p.m. under supervision of the center team. The condition of patient was explained to her relatives from time -to -time and they were also allowed to see the patient in Operation Theater. After the patient was put on cardiac monitor and oxygen, a call was given to Dr. Rajesh Sinha, M.D., DTCD, M.R.C.P., a consultant cardiologist and physician. He came around 11.00 p.m. and examined the patient in the presence of opposite party No. l and the other attending doctor. All of them discussed the management of the patient with Dr. Sinha, and treatment was given as per advice of Dr. Sinha. The condition of the patient deteriorated again at 3.30 a.m. She developed cardio respiratory collapse. The attending staff immediately informed the opposite party No. 1 about the condition of the patient who came immediately and gave cardiac massage. Essential drugs were also administered to the patient. Her pulse heart rate and respiration returned within 10 minutes and all through Dr. B.N. Prasad and Dr. S.B. Pandey were present in the Nursing Home and were monitoring the condition of the patient. At this stage, Dr. Rajesh Sinha advised them to contact Dr. A.K.Thakur. The Opposite Party No. l again consulted Dr. A.K. Thakur at 7.45 a.m. and he sent Dr. Haque to examine the patient. After examining the patient, Dr. Haque diagnosed that she was having a heart block. He discussed the condition of Complainant No. l with Dr. A.K. Thakur over phone and he advised to transfer the patient to his heart hospital for proper management in I.C.U. It is asserted that the complainant had levelled a wrong charge against the Opposite Party No. l. It is also asserted Dr. Achal Sinha, Cardiac Specialist also came at about 9.00 a.m. and examined the patient along with Dr. Haque and advised to follow the direction of Dr. A.K. Thakur whom the patient had already contacted. Thereafter, the complainant was discharged on 8.11.1996. Certificate issued by Dr. B.N. Prasad certifying that he had given the spinal anesthesia to the complainant has been attached. Certificate given by Dr. Achal Sinha certifying that he had examined the complainant on 21.9.1996 along with Dr. E. Haque of Heart Hospital and advised to shift the patient to the Heart Hospital for further treatment, has been attached with the reply filed.
5. BY way of evidence, Complainant Nos. 1 and 2 have filed their affidavits. Opposite Party No. 1 has also filed her affidavit by way of evidence. She has also attached the medical literature with the reply.
6. SUPREME Court of India in the case of Jacob Mathew (Dr.) v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=(2005) 6 SCC 1, in a detailed judgement after an extensive discussion on various issues that may arise in case of civil medical negligence and the criminal medical negligence, has concluded that burden to prove medical negligence is on the part of the complainant. It has been held that negligence in the context of the medical profession necessarily calls for a treatment with the difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or on accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would have chosen to follow or resort to the practice or procedure other than what was followed by the Doctor attending.
7. THAT a professional can be held liable for negligence on one of the two findings :
(i) either he was not possessed of the requisite skill which he professed to have possessed, or
(ii) he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the higher level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
8. IN simple words, what has been held by the Supreme Court is that negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
9. IN the present case, after going through the complaint, the reply filed and the affidavit in evidence of complainant as well as the reply filed by opposite party No. 1, we find that the complainant has failed to prove the medical negligence on the part of the opposite parties. Complainant has not produced any expert to prove the medical negligence on the part of Opposite Party No. 1. Burden to prove the negligence is on the complainant which they have failed to discharge. Allegation made in the complaint that Opposite Party No. 1 herself had administered Spinal anesthesia stands falsified by the Dr. Prasad who has certified that it is he who had administered the Spinal anesthesia. A copy of the certificate has been put on record.Complainant has not challenged the certificate given by Dr. Prasad. No evidence has come on record to show that Dr. Prasad was not either present at the time of operation or that he had not administered the anesthesia.
10. ASSERTION in the complaint that anesthesia was administered by the Opposite Party No. l also stands belied from the medical record. Anesthetist Record shows that Dr. Prasad had given the anesthesia. Detailed notes by various Doctors also show that proper care was taken by the Opposite Party while attending to Complainant No. 1. Medical Record also shows that Dr. S. Pandey who is cardiologist attended to the patient throughout as asserted by Opposite Party No. l in her Written Statement. Medical Record put on record completely falsifies the stand taken by the complainants. Signature of Dr. Prasad as well as Dr. Pandey on the treatment given by them is part of the medical record. Similarly, from the medical record we find that the complainant had suffered the cardiac arrest while on the operation theatre and she was attended to by the Doctors present, as a result of which, she revived.
11. IT is the case of 1999. We find from the record that numbers of opportunities were given to the complainant to file evidence by way of affidavit. The complainant has not produced any evidence to prove medical negligence on the part of the opposite party No. 1.
12. FOR the reasons stated above, we find no substance in this case and dismiss the same giving the parties to bear their own costs. Complaint dismissed.
