After 21 years, the Mumbai Doctor gets a judgment absolving him from Medical Negligence and Rs.20 lakhs compensation. : Adv. ROHiT ERANDE . ©

After 21 years, the Mumbai Doctor gets a judgment absolving him from Medical Negligence and Rs.20 lakhs compensation. 

A Case worth reading, especially by the Gynaecologists. 

Adv. ROHiT ERANDE

Pune. ©

Case Details

FIRST APPEAL NO. 933 OF 2015

 (Against the Order dated 29/10/2015 in Complaint No. 269/2001 of the State Commission Maharashtra)

SURLATA HOSPITAL, MUMBAI-& ANR V/s. SARASHEEJ SAHEBRAO SHATE & 2 ORS.

BEFORE:  

  HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

  HON'BLE DR. S.M. KANTIKAR,MEMBER

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F933%2F2015&dtofhearing=2022-06-21

Short facts : 

1.       This is the case which was decided on 21st June, after 21 years !!.  The state commission allowed the original compliant  and the Appellant herein was directed to pay compensation of Rs. 20,00,000/- with interest at 9% p.a., failing which the interest will be 12% p.a. and the Appellant was also directed to pay Rs.25,000/- as costs.

2.      The Compliant was filed by the husband -complainant (alongwith his minor daughter)  who lost his wife -Sunita (deceased patient) in her second delivery alongwith the baby in the womb. It was alleged that the patient was enrolled on 13.06.2000 during pregnancy. She regularly visited the Opposite Party No. 1 for ante-natal check-up (ANC). It was alleged that the Dr. Sharad Gogte - Opposite Party No. 2 advised that the child in the womb was overweight and may require caesarean section and the delivery would be on 01.10.2000. 

3. On 21.09.2000, the patient -34 weeks pregnant,  experienced unusual pain in abdomen and immediately she was admitted to the Opposite Party No. 1 Hospital,  but inspite of labour pains, Dr. Gogte did not pay proper attention to perform caesarean section, but he left the patient to the care of nurses and ‘Aayas’ and was told to wait for normal delivery. On the next date i.e. 22.09.2000, the patient was shifted to delivery room, accompanied by one ‘Aaya’ only and without a doctor. 

4. It was further alleged that at about 4.30pm, the patient started vomiting and her condition got deteriorated. The ‘aaya’ was requested to call the doctor but to no avail. She told there was no need to call the doctor. It was alleged that though Dr. Gogate was staying on the second floor of the same building, he refused to come down, saying that the delivery would be normal. At his usual time, he came at 6.30pm but till then the patient became critical and had suffered irreparable loss.

5. it was further alleged that at 7.30pm, to help Dr. Gogate, two doctors namely Dr. Sunil Gokhale - the Physician (Opposite Party No. 3, who expired during the pendency of the case) and Dr. Prakash Ambardekar – the Anaesthetist (Opposite Party No. 4) came to the hospital but the patient had her last breath. However, the Opposite Parties kept on telling that they were trying their level best. At about 8.00pm, Dr. Gogate informed the Complainant that the patient and the baby in the womb had passed away. Being aggrieved, the Complainant No. 1 filed a police complaint against the treating doctor for the alleged negligence, causing death of his wife and baby. Also, filed a Consumer Complaint against the Opposite Parties in the State Commission for the alleged medical negligence vis-à-vis deficiency in service and sought compensation of Rs. 20 lakh with interest @ 15% per annum.

Defence of the Doctors and Hospital. 

3.  The Opposite Parties Nos. 1 and 2 filed their written statement and denied any negligence during the patient care. Dr. Sharad Gogate submitted that he is a practicing gynaecologist for 28 years and performed more than 5500 successful deliveries. His hospital had adequate nursing care with qualified nurses and ‘aayas’ / ‘bais’. 

     The patient’s family was known to him and previously she took the treatment from his hospital. The Complainants suppressed various facts. The Complaint is false and frivolous without any merit.

4.       He further submitted that when the patient came in the hospital with alleged pains, on examination it was found that she was not in active labour, therefore he advised to monitor her throughout the night and review in the morning. On the next day morning at 7.00 a.m. and 10.00 a.m., the Opposite Party No. 2 checked the patient and informed the Complainant -husband that the patient could be discharged as her due date for delivery was 02.10.2000. However, as the Complainant requested Opposite Party No. 2 to try for increasing the labour pains, as they were residing at Mulund, it’s far off from the hospital.  On such clear instructions, the Opposite Party No. 2 gave tablet Primiprost one hourly to increase her labour pains. The nursing staff was instructed to monitor the labour and observe the partograph for the condition of baby. As a standard dose, the patient was given six tablets from 10.00 am to 3.00 pm.  The Opposite Party No. 2 at 3.30 pm examined her and found that she was not getting any pains, therefore, Artificial Rupture of Membrane (ARM) was performed and started IV glucose with Pitocin to increase her pain. He also informed the patient and her relatives that the medication may cause vomiting and nothing to worry. Thereafter, the Opposite Party No. 2 went to his residence on 2nd floor. At about 5.45 pm, the Opposite Party No. 2 examined the patient, found her progressing with labour pain and informed the Complainant about expected delivery within ½ to 1 hour.  After 10 minutes, at about 5.55pm, the patient suddenly developed convulsions. 

Immediately, resuscitation steps were started including head low position, suction of throat & nose, 100% oxygen through bag & mask, injection Diazepam 2cc IV, injection Effcorlin 2 cc IV. The Opposite Party No. 2 gave artificial respiration by bag and mask as well as external cardiac massage. Patient was given injection Atropine, intra cardiac injection of Adrenaline. Endotracheal intubation was done, started IV Dopamine drip; administered Injection Sodabicarb 50 cc, but there was no improvement in the condition of the patient. In the meantime, the anaesthetist Dr. Sunil Gokhale (Opposite Party No. 3) and the physician Dr. Prakash Ambardekar (Opposite Party No. 4) were called. Both joined for intensive resuscitation. At the same time, the Opposite Party No. 2 told the patient’s husband and other relatives about the patient's critical condition. The intra cardiac injection of Adrenaline, IV aminophylline and Lasix were repeated. The Opposite Party No. 2 further stated that the patient had no previous history of fits and did not have any heart or respiratory problem. During the ANC period, she never had high blood pressure or urine albumin or swelling of the body. 

The onset of sudden convulsions, fall of blood pressure and breathlessness during labour pains indicated to the possibility of Amniotic fluid embolism (AFE) which was likely cause of her sudden cardio-respiratory failure. Despite intensive efforts from all three doctors along with their nursing  staff, the condition of patient deteriorated and she expired at 7.50 pm.

Both the  the Physician and Anaesthetist filed their written version in consonance with Dr. Gogte's version and denied the allegations of negligence. 

The State commission, relying of expert opinion of one Dr. M. D. Gupta who performed the PM of the patient’s dead body, came to the conclusion that there was medical negligence on part of Doctors and allowed the compliant with Rs.20 lakhs compensation with interest and hence this Appeal.

In the meantime, Dr. Sharad Gogte was acquitted    was acquitted from the offence under Section 304(A) of the IPC.

Held by the Hon. National Commission :

1. The Commission after going through the record and arguments, allowed the Appeal of the Doctor and Hospital. 

2. The Commission framed two issues , whether the death was Cardiac Tamponade or AFE and secondly whether there was deficiency / failure to treat the medical emergency to hold the Opposite Parties liable for medical negligence.

3.  The Complainant presented expert testimony that the patient died due to Cardiac Tamponade and Pulmonary embolism, whereas the Opposite Parties presented expert testimony of Dr. Harish M. Pathak that death was from an amniotic fluid embolism (“AFE”), an unpredictable “obstetrical catastrophe” befalling a pregnant woman. 

4. Dr. Harish M. Pathak, the Prof. & Head of Dept. of Forensic Medicine & Toxicology at Seth GS Medical College and KEM Hospital, Mumbai, filed an affidavit dated 5.8.2015 wherein he cotnended that  "Dr. M. D. Gupta has not done residency post in Obstetrics and Gynaecology. He does not possess post-graduate degree or diploma in Obstetrics and Gynaecology. From his affidavit it is clear that he has merely studied the said subjects but has no practical experience in the said field. Considering the said position the observations made by him in his note as well as affidavit like “Wilful Gross Negligence” in managing a Labour Patient who developed rare and almost invariably fatal complication of labour by a senior and experienced Obstetrician like Dr. Gogate." 

5. As there were contrary medical opinions,   the Commission sought another opinion from the expert Medical Board from AIIMS. The relevant paragraphs of the said opinion from AIIMS dated 02.02.2017 are reproduced as below:

“The Histopathological report provided to the medical Board was examined and was found to be inconclusive as the tissues showed autolysis. However, the gross findings are compatible with Pulmonary edema.

The Medical Board is of the opinion that Cardiac Tamponade stated as the cause of death by the Autopsy Surgeon was infact misinterpretation of cardiac resuscitation.

The cause of death could be asphyxia due to seizures. Seizures in peripartum period can lead to sudden death and can have multiple causes such as electrolyte imbalance, Amniotic Fluid Embolism, Epilepsy, pregnancy Induced Hypertension etc. and may not be predictable. There is no evidence of wilful negligence as stated by the autopsy surgeon.”

6.  It was held that On careful perusal of PM findings, we note that Dr. M. D. Gupta mentioned weight of lungs, left lung 300 gms and right lung 500 gm and cut surface showed edematus fluid oozing out. As per the standard Forensic Medicine text book, the weight of lung was normal. If there is pulmonary oedema, the weight should be still on higher side. Moreover, he described findings of heart as puncture marks of needle on the heart and blood infiltration in the pericardial wall, approximately 150 ml of clotted blood. In our view, it was resuscitation artefact but not a Cardiac Tamponade. It is known that administration of intra-cardiac Adrenaline injection during CPR, will not cause such collection of blood (about 150 ml)[1]. Moreover, the patient had no history of hypertension or any cardiac disease or uraemia which may cause cardiac tamponade. Dr. M. D. Gupta gave the cause of death as “respiratory failure due to  pulmonary edema was cardiac tamponade’’.  

7.     The opinion of Dr. M. D. Gupta is not acceptable because he was not an expert in Obstetrics &/or Gynaecology to comment on AFE. It is surprising to note that he had directly concluded that it was due to gross carelessness (willful negligence) of the Opposite Party No. 2. It should be borne in mind that the duty of forensic expert is to perform post-mortem to find out / arrive to cause of death. The PM findings are helpful to the Courts/Tribunals, while deciding the cases. He has no duty to judge or make any comment on the alleged negligence. We further note that the PM reporting was not as per standards though the weight of lungs was normal but he stated that it was pulmonary edema. Secondly, without taking actual measurement of blood volume, ‘approximately 150 ml’ appears a vague and it cannot be taken as a gospel truth. It appears that the PM report was prepared based on the history, clinical notes. Moreover, the patient had no history of hypertension or uremia or trauma to cause cardiac tamponade.  

Importance of Artefact : 

8. The Commission took reference from book on Forensic Medicine and Toxicology by Mr. Anil Aggrawal (APC Publication) to know about weight of organs, the Cardiac Tamponade and pulmonary edema.  It also mentioned that ‘Artefact’ is any change caused or feature introduced in a body after death (accidental or physiologically unrelated finding to the natural state of the body), that is likely to lead to misinterpretation of medico-legally significant ante-mortem findings. Artefact is a structure or substance not normally present but produced by some external agency or action. Misinterpretation may lead to wrong cause and manner of death and miscarriage of justice. The responsibility of autopsy pathologist is very great. Often the doctor is the chief source of evidence upon which legal decisions are made, and the freedom or imprisonment, or the life or death of any accused person depends on his evidence. Therefore, the doctor should learn to draw conclusions logically and correctly, instead of forming hasty judgement. The autopsy pathologist should be able to distinguish them from the significant ante-mortem changes. Further, if the doctor misinterprets the artefacts, he will have a tough time in the Court during cross-examination, for a lawyer, aware of these pitfalls, may attempt to discredit his evidence. In the instant case the pericardial blood/clots were one of the Resuscitation Artefacts   i.e. the injection marks of resuscitation are usually found in the cardiac region or on the extremities. 

9. The Commission relying on Medical literature observed that  Amniotic fluid embolism i.e. AFE is an unpredictable, arises from the entry of amniotic fluid into the maternal circulation. In fact, it usually occurs during labor and delivery or in the postpartum period, but it can also happen with amniocentesis, abortion, abdominal trauma, removal of placenta, cervical suture removal and ruptured uterus or intrapartum amnio infusion. it was held that 

 AFE is an unfortunate condition that was not within the control of any doctor to anticipate or prevent. This condition was the root cause of the pulmonary edema that led to hypoxic encephalopathy, brain damage. AFE is a diagnostically challenging type of pulmonary embolism that occurs when amniotic fluid enters maternal circulation during delivery or postpartum. 

The pulmonary edema is also one of the  sign of  AFE and its mortality rate is up to 60% to 80% and it relied upon the literature produced by the Opponents. 

10.   Lastly it was held that  any judgment as to the liability, must be cantered on the quality and speed of any diagnostic and therapeutic response when facing a potential AFE case. AFE is hard to diagnose with certainty. The Hon'ble Supreme Court in Kusum Sharma & ors V Batra Hospital & Med Research Centre[(2010) 3 SCC 480]  held that the breach of expected duty of care from the doctor, if not rendered appropriately, it would amount to negligence.  It was observed that:

if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence.

But, in the instant case we don not find any lapse to breach in duty as the standard of care was identified from immediate resuscitation steps taken by the Opposite Parties like external cardiac massage, artificial respiration and administration of oxygen to the patient. 

11.    It is pertinent to note that the AIIMS Board report dated 02.02.2017 stated that gross findings are compatible with pulmonary edema. However, it clearly mentioned that Cardiac Tamponade stated as the cause of death by the Autopsy Surgeon was infact misinterpretation of cardiac resuscitation. The cause of death could be asphyxia due to seizures. Seizures in peripartum period can lead to sudden death and can have multiple causes such as electrolyte imbalance, Amniotic Fluid Embolism, Epilepsy, Pregnancy Induced Hypertension etc. and may not be predictable. There is no evidence of wilful negligence as stated by the autopsy surgeon. Therefore, on combined reading of all three expert opinions, in our view, it was the case of AFE and not cardiac tamponade. The HPE report provided to the Medical Board was examined and was found to be inconclusive as the tissues showed autolysis. The AIIMS report further stated that the cause of death could be asphyxia due to seizures. Seizures in peripartum period can lead to sudden death and can have multiple causes such as electrolyte imbalance, Amniotic Fluid Embolism, Epilepsy, Pregnancy Induced Hypertension etc. and may not be predictable. The report concluded that ‘there is no evidence of wilful negligence as stated by the autopsy surgeon’.

26.     The commission relied  upon the judgment of the Hon’ble Supreme Court in Dr. Harish Kumar Khurana v. Joginder Singh and Others[(2021) 10 SCC 291], wherein it has been held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case, death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at the conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be the medical negligence.

27.     Recently, in another judgment, in the case Dr(Mrs) Chandarani Akhouri & Ors V Dr.M.A.Methusethupathi & Ors [2022 LiveLaw (SC) 391], it was held in para (27) that;

27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

Based on the above discussion, the Hon. national Commission allowed the Appeal and absolved the Doctor from the allegations of Medical Negligence. 

This case of very importance. It has touched many aspects which any Gynaecologist may face in daily practice. It is indeed unfortunate for any one to lose his/her dear one and in this case wife with the baby in womb. However, as it has been rightly held, for every death it cannot be presumed that the Doctor is the cause of death. Further the Hon. commission has also expressed its view on Expert opinion and in particular the Forensic Expert and what he/se should do and should not do. 

Another aspect is the delay in court matters, which is unjust for both the parties to the litigation. 21 is the age of But a system has become so callus that it will take more time to change. Till that time, we advise our clients in these days to amicably settle the matter whenever possible. 

Thanks and Regards

Adv. ROHiT ERANDE

Pune. ©