Patient Dies after MTP at 26 Weeks: NCDRC slaps Rs 1 crore compensation on Moolchand Hospital, Gynaecologist
New Delhi: The National Consumer Disputes Redressal Commission recently held Shri MoolChand Khairati Ram Hospital and Ayurvedic Research Institute and its Gynecologist guilty of medical negligence for conducting Medical Termination of Pregnancy (MTP) during the 26th week of pregnancy of a patient, who died during the procedure in 2003.
Although the top consumer court noted that the patient and her relatives wished for the abortion due to possible abnormalities of the fetus, it observed that "Even if the patient or her attendants or relations were insisting on medical termination of pregnancy, the hospital was bound by the provisions of the MTP Act, 1971 and ought not to have undertaken termination at the 26th / 28th weeks of pregnancy."
With this opinion, the bench directed the Hospital and the Gynecologist to pay a lumpsum compensation of Rs 1 crore to the daughter of the deceased.
The case concerned Dr. Rupa Dutta, who during her 2nd Pregnancy during 2003 was under Ante Natal Care (ANC) of Gynaecologist Dr. Raj Bokaria in Shri Mool Chand Khairati Ram Hospital and Ayurvedic Research Institute.
Except for some history of Asthma, the patient was healthy. After conducting Foetal Echo-Cardiography (ECHO), the reports revealed obliterated umbilical artery, but there was no developmental anomaly and no signs of intra-uterine growth retardation (IUGR) of the foetus.
On the basis of the ECHO report the concerned Gynecologist had advised foetal chromosomal test from Sir Ganga Ram Hospital. It was performed without delay and its report was available after two weeks. Consequently, 3rd USG was performed by Radiologist Dr. Khurana and it reported as "the umbilical cord shows a single umbilical artery, no Dysmorphic Development anomaly delineated and parameters correspond to a mean gestational age of 26 weeks and 2 days +_3 days".
As per the allegations made by the complainants, the Gynecologist jumped to the conclusion that the finding of chromosome 22ps+ in fetus and Single Umbilical Artery with foetal IUGR warranted drastic measure of immediate termination of pregnancy.
Therefore, the patient got admitted to Moolchand Hospital on 06.10.2003 for preterm induction of delivery. However, the placenta was not expelled out and therefore, in order to perform Manual Removal of Placenta (MRP), she was shifted to Operation Theatre (OT)
However, before induction of anesthesia, the patient suffered bronchospasm with vomiting and aspiration. Although the resuscitative measures were initiated on an immediate basis, the patient could not survive.
The complainants alleged that because of the alleged illegal abortion and lack of care and expertise of treating doctors, the complainants had to lose two lives i.e. the young mother of 32 years along with the new born baby.
With these allegations, the husband of the deceased patient, along with his minor daughter and the in-laws of the deceased approached the NCDRC bench seeking a total compensation of Rs 3 crore.
Separately, they had also filed a complaint before the Delhi Medical Council (DMC) in 2004 and another appeal before the erstwhile Medical Council of India (MCI). Besides, an FIR was also lodged in 2012 against the treating doctors under Section 304A/34 IPC at P.S. Lajpat Nagar, New Delhi.
Denying all allegations of negligence, the doctors and the hospital further questioned on the maintainability of the complaint since they had not charged any fees from the patient, who was a professional colleague.
In their defence, the gynecologist Dr. Bokaria submitted the patient was irregular in her ANC follow-up, did not follow the advise for undergoing Karyotyping test, and also submitted that the patient was unwilling to continue the treatment for IUGR foetus to endanger her life.
The doctor submitted that termination of the pregnancy was a conscious decision of the couple and they had been explained about the risks and complications associated with the desired discontinuation of pregnancy at 26th week. Considering the mental condition of the patient, the doctor became constrained to admit her in the Hospital. It was further submitted that the patient had been informed about the adverse effects of asthma and the possible danger to her life. However, the couple had consented for the entire procedure.
The doctor stated that the couple was adamant and not willing to continue the pregnancy. At that time, clinically she was 24th -26th weeks and by date 27th -28th weeks.
Referring to the medical procedure, the doctor submitted that the complainants including the patient had insisted on the discontinuation of the pregnancy and they had urged not to save the fetus.
However, during the procedure, the patient developed severe bronchospasm. Despite several efforts to stabilize the patient, she developed respiratory distress, and severe infection like high Total Leucocyte Count (TLC) 40300/cmm and high grade fever (101oF). Further the doctor submitted that the Bed side X-ray showed infiltration consistent with Aspiration Pneumonitis / Aspiration Syndrome due to acute chemical reaction known as 'Mendelson's Syndrome'. Despite all the efforts, the patient died, claimed the doctor.
It was further claimed by the doctor that the relatives had been given an option for Post Mortem to know the exact cause of death and to confirm Mendelson's Syndrome, but in writing, patient's husband denied his willingness for Post Mortem. This fact was acknowledged by another Dr. Alka Gujral.
The Hospital and the anesthetist also submitted that the couple had taken a conscious decision for discontinuing the pregnancy. It was further submitted that no anesthesia was given and there is no such evidence on record.
Taking note of all the submissions, the top consumer court took note of the two main issues in the concerned case- first, if the treating doctors were negligent in their treatment and second whether the violation of the statute in that termination of pregnancy was undertaken at the 26th week itself amounts to an act of 'commission' and as such 'negligence'.
After perusing the entire medical record, the NCDRC bench confirmed that no anesthesia was given to the patient, she had developed Acute Mendelson's Syndrome and the relatives of the deceased had expressed their unwillingness for Post mortem.
However, at this outset, the top consumer court also noted, "We may note that the Opposite Party No. 1 hospital was dutybound to duly conduct the post-mortem and it cannot take a defence that the attendants or relations of the deceased wanted otherwise. Nor can there be any mitigation for not treating the death on the operation table as a medico-legal case and informing the local police, which it was dutybound to do irrespective of what may have been desired or not desired by the attendants or relations."
The bench also perused the MCI report where the Ethics Committee had discussed several issues. The Ethics Committee had also taken legal opinion from its Retainer Advocate Mr. J. S. Bhasin on the various provisions of the MTP Act, 1971, to discuss if MTP at 28 weeks of pregnancy was permissible under the law.
After going through the order of the Supreme Court in the case of Suchita Srivastava vs. Chandigarh Administration, the concerned advocate concluded that "the MTP / Induction of Labour at 28 weeks of pregnancy is strictly prohibited and not permissible under the statutory conditions of the Act and the same is also not permissible under the law and is a punishable offence under Indian Penal Code (IPC)".
Taking note of the opinion of the Retainer advocate, the Ethics Committee had opined that "...Dr. Raj Bokaria should be punished and his name be removed from the India Medical Register for a period of 03 (three) months. Dr. Alka Gujaral and Dr. Veena Bhatt were a part of the team of Dr. Raj Bokaria which handled the patient...However, in view of the minor nature of role of these two doctors i.e. Dr. Alka Gujaral and Dr. Veena Bhatt, the Committee feels that the punishment of warning should be sufficient and hence recommended that a warning should be issued to both of them that they should be more careful in future while assisting someone."
Therefore, the erstwhile MCI had held the treating doctors liable for medical negligence for illegally aborting 28 weeks of pregnancy in gross violations of the provisions of the MTP Act and for not giving any treatment to the newborn live baby, resulting into deaths of both the newly born baby as well as the patient (mother).
The Apex consumer court also referred to the expert opinion of Dr. Ashutosh Halder, Department of Reproductive Biology, AIIMS, New Delhi. Dr. Halder had opined, "…Detailed scan at 26 weeks did not find any other detectable malformations, hence fetus was isolated case of single umbilical artery. There was no intra uterine growth restriction (IUGR) or amniotic fluid abnormality….The decision for termination at 26 weeks was taken on the basis of single umbilical artery, IUGR and prominent satellite of short arm of chromosome 22 (22ps+)……Isolated single umbilical artery case (i.e., finding of 22ps+ in fetus) does not warrant any drastic measures like termination as in this case… Three ultrasound scans (14, 24 & 26 weeks) did not detect any evidence for IUGR. Clinically size of uterus is subjective and less sensitive than ultrasound examination. …It seems that interpretation of karyotype result by the treating doctor was unclear. Should have consulted a geneticist including Dr. I.C. Verma from where test was carried out…. Furthermore there was no record of terminated fetus. One should follow up their action so that in future they can correct/refine their actions or justify their actions…"
While considering the question of maintainability of the complaint, the consumer court noted,
"...it is a settled position that in case a hospital is charging fee in the normal course to its patients at large, then even if (due to any reason) it provides free treatment to one particular patient this by itself does not extinguish the service provider – consumer relationship or absolve its liability regarding 'negligence' or 'deficiency'."
Referring to the illegal abortion in 28 weeks of pregnancy, the bench noted,
"Even if the patient or her attendants or relations were insisting on medical termination of pregnancy, the hospital was bound by the provisions of the MTP Act, 1971 and ought not to have undertaken termination at the 26th / 28th weeks of pregnancy. The violation of the statute per se constitutes an act of 'commission' and as such 'negligence'. There are glaring lapses like not having followed the mandatory requirements of Section 5 (1) of the MTP Act, 1971 and of Rule 3 (1) of the MTP Regulations, 2003. Reasons for MTP were not recorded in Form 1, informed consent was not taken in the prescribed format and opinion of two gynecologists was not taken before MTP."
"Pertinently, from the evidence of the Opposite Party No. 2 doctor and from the expert opinion of Dr. Haldhar from AIIMS, it is clear that single umbilical artery and minor chromosomal abreaction (pq22+) does not warrant any drastic measures to terminate the pregnancy," it further noted.
Further holding the hospital negligent in its duty, the NCDRC bench noted,
"The patient's death on the Operation Table itself was unarguably a medico-legal case, but the police was not informed and the Post Mortem was not performed. It was the responsibility of hospital authorities, but they failed to do so. Denial of PM by the patient's attendants is not an acceptable defense. The PM would also have thrown light on the cause of death. Not doing PM in MLC case creates more doubts about the cause of death and the real happenings in the OT. The hospital authorities failed in their duty."
Referring to the case to be a "Therapeutic Misadventure", the bench observed,
"In addition, the instant case appears to be Therapeutic Misadventure, which can be defined as an injury or an adverse event caused by medical management rather than by an underlying disease. As per the MTP Act, it is mandatory to take opinion from one more specialists before performing MTP procedure beyond 20th week that may have an adverse effect on the patient's condition. The Courts don't view such absence favourably, as this case shows. Sticking to standards is the best care. The new Medical Termination of Pregnancy (Amendment) Act 2021, is, now, a move towards safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds to ensure universal access to comprehensive care, which would also contribute towards ending preventable maternal mortality."
Observing that a lumpsum compensation of Rs 1 Crore would be just and adequate, the Apex Consumer Court also held the hospital responsible and noted,
"The Opposite Party No. 1 hospital, which permitted the act of performing medical termination of pregnancy in violation of the MTP Act, 1971, and which did not get the post-mortem conducted and did not inform the local police of the medico-legal case, is undoubtedly liable. The Opposite Party No. 2 doctor is also clearly liable. We deem it appropriate that the Opposite Party No. 1 hospital shall pay Rs. 90 lakh and the Opposite Party No. 2 doctor to pay Rs. 10 lakh to the Complainant No. 2 i.e. the daughter of the deceased Dr. Rupa within 6 weeks from today, failing which the amount shall carry interest at the rate of 9% per annum till its realisation...Additionally, the Opposite Party No. 1 hospital shall pay Rs. 1 lakh towards cost of litigation to the Complainant No. 1 i.e. the husband of the deceased Dr. Rupa within 6 weeks from today, failing which the said amount shall also carry interest at the rate of 9% per annum till its realisation."
To read the order, click on the link below:
https://medicaldialogues.in/pdf_upload/ncdrc-mool-chand-hospital-negligence-184241.pdf
