Master Rishabh Sharma & Ors. v. Rama Sharma & Ors.
Consumer Case No. 119 of 2007, Decided on 10th May, 2016 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi.
Facts: Pooja Sharma, the complainant No. 2, during her pregnancy, was under ante-natal care of OP1 from September 2005. Her expected date of delivery (EDD) was 13-6-2006. It was a case of Placenta Previa; OP-1 assured that she could handle such cases. The premature delivery took place on 2-4-2006; baby was delivered by Caesarean Section (LSCS). It was a premature baby about 32 week age. There was no Paediatrician at the time of delivery, and no neonatal unit was in the hospital. It was alleged that without proper facilities, the OP-1 carried out delivery at her nursing home, despite that there was no neo-natal care. Thereafter, on 2-4-2005 baby was shifted to Maharaja Agrasen Hospital (OP-2). It was kept under observation of consultant Paediatricians, Dr. G.S. Kochar (OP-3), Dr. Naveen Jain (OP-4) and a Senior Consultant Ophthalmologist, Dr. S.N. Jha (OP- 5). The baby was in OP-2 hospital till 29-4-2005, but no test for ROP (Retinopathy of prematurity) was conducted within 4 to 5 weeks of birth. The OP-1 never cautioned the patient about such risk of ROP before or after the delivery. The patient attended the OPD as follow up visits at OP-2 on 4-5-2005 and 13-7-2005, but OP 3 and 4 did not advise anything about ROP. In the last week of November 2005, the mother noticed child’s abnormal visual response, therefore on 23-11-2005 eye examination and ultrasound were conducted at Nayantara Eye Clinic, Delhi. Thereafter, on 3-12-2005, it was finally diagnosed as a case of total retinal detachment – ROP Stage 5 at Shroff’s Charity Eye Hospital, Delhi. Then, the child was referred to Dr. Azad at AIIMS. The mother/Complainant 2 approached OP-1 for explanation, but she shifted blame on OPs 2 to 4. Thereafter, OP-5 was consulted, who tried to avoid to comment, but later on, he referred the child/patient to Shankar Nethralaya, Chennai. The referral note was devoid of previous hospitalisation/treatment details. Thus, OPs failed to explain, why the test, within four to five weeks, was not conducted when the patient was under their custody? The OP falsely mentioned in the discharge summary dated 13-6-2005 that test for ROP was done on 26-4-2005. The Ops’ attitude was not cooperative; complete treatment record was not given to the complainants, hence complainants initiated proceedings under Delhi Medical Council (DMC) to produce the medical record. The DMC vide order dated 14-12-2007 warned the OPs regarding supply of medical records. Therefore, the complainants alleged that it was the failure and negligence of OP-3 to 5 to treat the premature baby. OPs did not take proper NICU care for timely detection of ROP at stage I, during hospitalisation period of 4 weeks. The OP-2 could have prevented the development of ROP to stage 5 i.e. permanent blindness to the child. Hence, they filed this complaint under Section 12 of the Consumer Protection Act on 19-11-2007 and prayed for total compensation of Rs.1,30,25,000, under different heads.
Defence: The OPs 2 to 5 filed a written version and contended that the OP- 2, Maharaja Agrasen Hospital is being run by a charitable trust. The complainant was admitted as a general patient in semi-private category on 2-4-2005. The complainant concealed the fact about free treatment of Rs.50,000 provided to the baby by OP-2 from 4-4-2005 to 29-4-2005. The baby was extremely critical at the time of admission with little chance of survival having multiple problems; it was admitted in NICU (Neonatal ICU) in critical condition. It was diagnosed with features of respiratory failure. Baby was put on mechanical ventilator immediately after admission. It was diagnosed as a case of Hyaline Membrane Disease (HMD). Therefore, surfactant therapy and mechanical ventilation was started. During the hospital stay the child developed pneumothorax, therefore, tube thoracotomy was done by the paediatric surgeon. Blood component therapy was given. The baby was kept on ventilator for 10 days. As per standard protocol, nursing and ophthalmic care was properly given to rule out ROP. Eye examination was conducted by senior ophthalmologist and retina specialist, Dr. S.N. Jha (OP-5) on 26-4-2005 and it was found that no ROP was done at the age of four weeks. Hence, the mother was advised to attend for child’s follow up in special OPD on Wednesday and Saturday, wherein high risk babies are followed up for neuro-developmental assessment, visual and hearing screening. The OP-3 constantly advised the complainant to attend the specialty clinic.
Findings: We have perused the medical record of Sharma Medical Centre of OP-1. The Ante-natal Medical Record clearly revealed that proper ANC care was taken by OP-1. The USG report and Discharge -Summary sheet from Sharma Medical Centre showed that it was the case of Placenta Previa (Placenta-Succenturiate posterior Lobes). Patient/complainant 2 was operated under spinal anaesthesia for an emergency LSCS on 2-4-2005. The baby was diagnosed as Pre-term (32 weeks) with signs of HMD, therefore, after due information to the relatives, the child was shifted to Maharaja Agrasen Hospital (OP-2) under care of Dr. G. S. Kochar. Therefore, we are of considered view that OP-1 conducted delivery with due care and referred the child and mother to higher centre for neo-natal care. There is no negligence on the part of the OP-1. Further it is relevant to note that the Delhi Medical Counsel (DMC)’s order which has opined about lapses on the part of Dr. Rama Sharma (OP-1) in providing medical records in accordance with Regulation 1.3.2 of Indian Medical Council (Professional Conduct, Equity and Ethics) Regulation, 2002, has not observed any negligence on the part of OP-1. We have perused the entire medical record of OP-2 hospital, the prescriptions of different eye clinics where the patient visited. Accordingly, at the time of admission in OP-2 on 2-4-2005, the general condition of baby was poor; it was diagnosed as “32 weeks pre-term AGA with HMD”. Therefore, baby was treated in NICU with ventilator support, injection Surfactant was given gradually. The child was discharged on 29-4-2005 from OP-2; thereafter, the baby visited the OPD on 4-5-2005 and on 13-7-2005, Dr. Kochhar OP-2 advised BERA scan. On 23-11-2005, the child was taken to Nayantara Eye Clinic, B. Scan of eyes was performed. Thereafter, on 3-12-2005 the child was taken to Dr. Shroff’s Charity Eye Hospital, USG (B scan) was performed. It revealed Total Retinal detachment (ROP stage 5). The prescription of OP-2 revealed that on 7-12-2005, child was brought to OP-2 again, but it was referred to Shankara Netralaya for opinion of Dr. Lingem Gopal at Chennai. But, on 13-12-2005, the patient took OPD consultation at Dr. Rajendra Prasad Centre for Ophthalmic Sciences, New Delhi. The OPD card clearly revealed it was a case of ROP stage 5, in the month of December 2005.
Conclusion: Because ROP is sequential and timely treatment has been proven to reduce the risk of vision loss, it is imperative that at-risk infants receive carefully timed retinal examinations and that all physicians who care for at-risk pre-term infants should be aware of the importance of timing. It should be borne in mind that screening for ROP needs to be initiated timely after birth to prevent blindness. It is the responsibility of the caring pediatrician to initiate screening by referring to an ophthalmologist and it is the responsibility of the ophthalmologist to do correct screening and treatment. This has immense medico-legal implications because if a child goes blind due to missed or late screening, then the pediatrician and the ophthalmologist are at a very high risk of litigation. In the instant case, the main question swirls around, whether the OP-5 performed ROP screening or not, at OP-2 hospital? ROP screening is a team work of paediatrician, ophthalmologist and NICU nurse. On the basis of discussion in foregoing paras, we find many lapses on the part of the OPs like no proper medical documentation of ROP screening procedural details. It should be borne in mind that as per referral on 25-4-2006, the OP-5 should have performed retinal examination with binocular indirect ophthalmoscope on dilatation of pupil with scleral depression to ascertain avascular zone at periphery of retina. Nothing is forthcoming from page 102 of the medical record. Therefore, it appears to be a bare visual examination done by OP- 5 in haste to cover up the case. Thus, we are of considered view that on 26-4-2005 the OPs-3 to 5 have neither performed ROP screening nor advised follow up of ROP for the child. The patient visited hospital on 3-5-2006 for follow up, but nothing is in record about ROP testing. It is not a standard of practice or due care of the patient. Thus, a medical negligence. It is pertinent to note that in the instant case the baby was premature 32 weeks, the weight was 1500 gms. The team of doctors at OP-2 should have been alert about the chances of ROP in the premature baby/complainant No.1. It is very vital that judicious oxygen therapy and judicious use of blood transfusions, transfusion of packed RBCs is another risk factor of ROP. Adult RBCs are rich in 2,3 DPG and adult Hb binds less firmly to oxygen, thus releasing excess oxygen to the retinal tissue. Packed cell transfusions should be given when haematocrit falls below following ranges: ventilated babies 40%, babies with cardio-pulmonary disease but not on ventilators 35%, sick neonates but not having cardiopulmonary manifestations 30%, symptomatic anaemia 25%. But, in the instant case blood component therapy was given. Therefore, we hold both the Paediatricians (OP 3 and 4) along with OP-5 liable for the said negligence.
Held: The child, Master Rishabh, has been rendered blind for life. The darkness in his life can never be really compensated for, in money terms. Blindness can have terrible consequences. The family belongs to the middle class, which incurred expenses on the child. The father is no more. Undoubtedly, the care of visually disabled child needs reasonable spells of time. Master Rishabh may also face great difficulties in getting education, marriage and social life. It is, thus, obvious that there should be adequate compensation for the pain and suffering, and the future care that would be necessary while accounting for inflationary trends. Almost one decade has elapsed during treatment and the litigation; certainly the complainants incurred huge expenditure. It is, therefore, necessary to consider the loss which Master Rishabh and his parents had to suffer and also to make a suitable provision for Rishabh’s future. It is pertinent to note that the father of child, Kuldeep Sharma was working as temporary employee in MCD, New Delhi. He expired during pendency of this case. Complainant 2, the mother of Master Rishabh, is a home maker. She will have to take care of entire family including her two kids. Therefore, we assume that, for an average middle class family, yearly expenses will be to the tune of Rs.200,000, out of which Rs.50,000 would be a need for Master Rishabh’s living including medical expenses. As observed in V. Krishnakumar’s case, inflation over time certainly erodes the value of money. The rate of inflation (Wholesale Price Index-Annual Variation) in India, presently, is 2 per cent as per the Reserve Bank of India. Therefore, having considered the present economy and medical inventions, the child may need treatment in future. Master Rishabh’s present age is about 11 years. If his life expectancy is taken to be about 70 years, provision is needed to be made for the next 59 years. The average inflationary rate between 1990-91 and 2014-15 is 6.76% and 2015-16 is 5.65% as per data from the RBI. In the present case, we are of the view that this inflationary principle must be adopted at a conservative rate of 1 percent per annum to keep in mind, fluctuations over the next 59 years. The amount of expenditure, at the same rate will work out to be `53,06,193.32 rounded to `53,00,000 by applying formula for Apportioning for Inflation as
FV = PV x (1+r)n
(PV = Present Value = 50,000, r = rate of return = 1.01, n = time period = 59)
Compensation to mother: The Hon’ble Supreme Court, in Spring Meadows Hospital and Another v. Harjol Ahluwalia, [1998 4 SCC 39] acknowledged the importance of granting compensation to the parents of a victim of medical negligence in lieu of their acute mental agony and the lifelong care and attention they would have to give to the child. This being so, the financial hardships faced by the parents, in terms of lost wages and time, must also be recognized. Thus, the above expenditure must be allowed. It is true that, the mother Smt. Pooja Sharma has to take care of the blind child, throughout her life. She has to suffer mental agony and social stigma due to visually disabled child. Therefore, we are of considered view that, an award of sum of Rs.10,00,000 to the mother (complainant No.2) is just and proper.
Therefore, on the basis of the aforementioned discussion, the relevant medical literature and decisions of the Hon’ble Supreme Court on medical negligence, we allow this complaint and fix the liability for total sum of Rs.63 lakhs ( 53L+10L) upon the OPs 2 to 5. Further we impose Rs.1,00,000 toward costs of litigation. For the reasons stated herein above, we direct the OP- 2 to 5 to pay
Rs.64,00,000 (64 lakhs), to the complainants jointly and severally within 2 months from the date of receipt of this order, failing which entire amount will carry interest @ 9% per annum from today i.e. date of pronouncement till its realisation. It is further directed that out of the total compensation, Rs. 50,00,000 to be kept in fixed deposit in any Nationalised Bank, in the name of Master Rishabh Sharma till he attains the age of 21 years. The periodic interest shall be paid to the mother for 21 years. The remaining amount of Rs. 14 lakhs be paid to Smt Pooja Sharma (Complainant No 2), the mother of Master Rishabh.
