Cesarian or Normal Delivery ? Dear Drs. make a Right choice to avoid paying compensation of Rs. 30 lakhs like case in hand

The State Commission began its judgment with the observations of National Commission in the case of Indu Sharma V/s. Apollo Indrapastha Hospital, 

Case Details :

Ritesh Garg & ors. V/s. Max Hospital, New Delhi.

Complaint No.282/2008, decided on 29/01/2018.

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=8%2F0%2FCC%2F08%2F282&dtofhearing=2018-01-05

Facts in short :

1. The Complainant No.2 - Mother conceived after 10 years of her marriage and got admitted for delivery with the Opponent. She delivered a baby boy viz. Kush and the delivery was Normal. But soon after the delivery it was found that the baby had abnormality in his left hand and it was attributed to "shoulder dystocia" .

2. It was alleged that the abnormality in the functioning of the left arm termed as stricken with Erb Palsy was due to crude and violent pulling of the new born baby during delivery irreversibly damaging the neuro motor functioning of the left arm.

3. In obstetric report, there was no mention of "shoulder dystocia" and the report was normal. Thus the baby was referred for physiotherapy.

4. It was alleged that the condition of "shoulder dystocia" was not found during delivery itself was negligence. Moreover no tests like MRI were advised.

5. The unfortunate parents then moved from this Hospital to that Hospital and after various MRI it was confirmed that baby had suffered avulsion/ destruction of roots of left branchial plexuses. The Complainant also denied that the Delivery was normal as mentioned in discharge summary since there were factual inconsistencies.   As a result the baby Kush who became permanently disabled lost his right to live with dignity as guaranteed U/Art. 21 of the Indian Constitution and hence a claim of Rs.50 lakhs was made.

Defense of Hospital :

1.The Hospital raised various objections and denied the charges  of negligence and deficiency of service being false and baseless.  On the contrary their averment is that they have taken the utmost care and due precaution in handling the delivery of the baby. No malfunctioning in the left arm of the baby was discovered at the time of delivery. 

2. The baby was diagnosed with “shoulder dystocia”, but this is not the fall out of the negligence  or deficiency. Shoulder dystocia is the result of natural complication that can happen in any child  birth despite total and absolute precaution having been taken. It happens in a very small number of cases but this is something which cannot be predicted. 

3. One comes to know of such an abnormal event only in the process of delivery when head of the baby is out of the womb but remaining part remains to be taken out. The Opponent also denied the expert opinion. The Opponent contended that the C-section was conducted as the fetal heart pale of the baby started dipping and in such case the normal delivery would have been even more fatal.

Held :

1. The court while questioning the contention of the Hospital relating to C-section delivery observed that whether Cesarean  conducted was proper, inasmuch as whether applying of force  after head of the baby was out of womb was called for or whether this was necessitated because of the negligence done while conducting the cesarean. Surprisingly the Ld. Council for the Opponent did not argue on this point.

2. Had timely steps were taken to undertake the x-ray, grave situation as has resulted could have been averted. No steps were taken by the Opponent to refer the matter to a specialist which goes to show further negligence as it cannot be presumed that no specialist in such a renowned hospital was available. 

3. It observed that proper and due care not having been exercised while conducting the cesarean leading to shoulder dystocia resulting finally in the permanent disability, the negligence on the part of the OP is writ large of the face and is established.

4. After relying on various judgments of National Commission and Hon. Apex Court, the NCDRC allowed the Complaint to the tune of Rs.30 lakhs.

This case reminds me the famous judgment of Hon. UK Supreme Court in the case of Montgomery  V/s. Lanarkshire Health Board .  Its on the similar facts. In that case also the baby had shoulder dystocia, but the Doctor insisted for Normal Delivery and it was contended by the mother that had the choice been given to her, she should have applied for C-Secion delivery.

 The UK Supreme Court gave finding that "Giving birth in the "natural" and traditional way or giving birth by cesarean section (unless she lacks the legal capacity to decide) " is the choice of a Pregnant woman.

. It further held that  "Pregnant women should be offered evidence-based information and support to enable them to make informed decisions about their care and treatment. Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being" Her Ladyship observed while concluding her judgment.

The case in hand is an eye opener for all the Oby and Gyneac Doctors. Any parent would always want their baby as healthy and without any deformity. No amount of money can fill such void. Now a days due to late marriages and one baby one family concept, every baby is a precious baby and it may have lot of peer pressure on Doctors.  The decision to select between C section or Normal shall always depend upon the facts of each case. So don't worry.. Just be careful.

Thanks and Regards,

Adv. Rohit Erande.

Pune.©