ORDER
P.D. Shenoy, Member
1. This is a case pertaining to the death of the child suffering from Hirschsprung’s Disease (H.D.) after seven days of its birth due to the alleged negligence by a Pediatrician and Pediatrician Surgeon. The parents of the child have claimed compensation of Rs. 28 lakh.
Facts of the case:
2. The complainant No. 1, Mrs. Mandira Saha is the mother of the deceased child. Complainant No. 2, Shri Gopal Krishna Saha is the husband of Mrs. Mandira Saha, complainant No. 1 and father of the deceased child. Opposite party No. 1, Dr. Ujjal Chatterjee is a Consultant Pediatrician attached to the North Bengal Clinic at Siliguri, where the delivery of the child and subsequent treatment took place. Opposite party No. 2, Dr. Abhishek Biswas is a Consultant Child Surgeon.
3. Mrs. Mandira Saha conceived for the fifth time on 12.3.1999 and consulted Dr. Salil Dutta, Consultant Gynaecologist, the Family Physician on several dates after the 10th week of the pregnancy till the date of delivery. On 27.8.99, the complainant delivered a female baby at about 1.30 a.m. The baby was born after 34 weeks of gestation period (i.e. the expected date of delivery as scheduled in the prescription was 9.10.1999), weighing 2.2 kgs. Dr. Ujjal Chatterjee, opposite party No. 1 gave medical treatment to the new born child from 27.8.1999 to 3.9.1999 at the North Bengal Clinic. Dr. Abhishek Biswas, opposite party No. 2 performed a surgical operation on3.9.1999 and the child died after 11 hrs. of the operation at about 8.30 p.m. on 3.9.1999.
Case of the complainant
(a) Mr. Krishnamani, learned Senior Counsel for the complainant argued that the complainant, Mrs. Mandira Saha had suffered four mis-carriages before she became pregnant. He quoted the sequence of physician-patient interaction by giving the following flow chart:
______________________________________________________________________________
On 27.8.99 at Birth of Pre-nature Bottle feeding with Dexolac
1.30 a.m. female baby 2.2. kgs. special care
27.8.99 Evening Vomiting, non-passage of stool 5% Dextrose I.V. started
28.8.99 Baby passed stool after Provisional Diagnosis
giving flatus tube of congenital megacolon
29.8.99 Cyanosis, convulsion
Inj. Epsolin, Calcium Sandoz
30.8.99 Convulsion, Injection Epsolin,
8.30 a.m. I.V. drip changed to
Electrolyte "P" fortified with
25% dextrose
31.8.99 Respiratory Distress
1.9.99 Blood examined straight Reports collected in the even-
X-ray (abdomen done) ing no adverse comments
1.9.99 Dr. Abhishek Biswas Dr. Biswas first examined the
consulted baby on 2.9.99
A case of congenital megacolon was consulted with Paediatric
Surgeon after 5 (five) days of the provisional diagnosis.
2.9.99 Ba-enama was done by No Radiologist consulted
Dr. Chatterjee without proper
methods and failed to take
photographs.
3.9.99 Small incision on L.I.F. then No suction Rectal biopsy
again upper transverse incision No post operative biops".
and traverse colostomy done.
3.9.99 Baby Died
8.30 p.m.
______________________________________________________________________________
(b) Mr. Krishnamani submitted that ‘proctinal’ was given to the mother to suppress breast milk as can be seen from the discharge summary. When in the hospital the mother was not permitted to breast feed the baby. The baby was kept in the incubator as the birth was premature and on 27.8.1999 it was given antibiotic ‘amikasin’ by way of injection. On 28.8.1999, the baby passed stool after enema was given. The child was given Dextrose as a substitute to breast milk. The baby became blue on 29.8.99 and the doctors administered some injections. On 30th in the morning at 8.30 the child had convulsions but by 3.00 p.m. the child became normal. On 31.8.99 there was some respiratory distress. On 1.9.99, blood test was normal, there was slight distension and no normal stool. X-ray indicated no abnormality. Dr. Ujjal Chatterjee suspected that the child suffered from Hirschsprung’s disease.
(c) Hirschsprung’s disease (H.D.), according to the Oxford Concise Medical Dictionary is–
a congenital condition in which the rectum and sometimes part of the lower colon have failed to develop a normal nerve network. The affected portion does not expand or conduct the contests of the bowel, which accumulate in and distend the upper colon. Symptoms, which are usually apparent in the first week of life, are abdominal pain and swelling and sever or complete constipation. Diagnosis is by X-ray and by microscopic examination of samples of the bowel wall, which shows the absence of nerve cells. Treatment is by surgery to remove the affected segment and join the remaining (normal) colon to the anus.
(d) Dr. Chatterjee consulted Dr. Biswas who advised barium enema. According to Dr. Biswas this was done but Mr. Krishnamani submitted that this was not done as the opposite party could not produce the film. He argued that they should have conducted another test viz., Rectal suction biopsy which was not done which only can confirm the existence of the Hirschsprung’s disease. He further submitted that they should have conducted another barium test after 24 hrs. which could only further confirm the existence of this disease which they have not done. On 3.9.1999, at 10.30 a.m. Dr. Biswas performed an operation to remove the blockage. Mr. Krishnamani argued that there was no emergency for performing this operation. They could have waited for 24 hrs. for conducting second barium test and to see its results. Mr. Krishnamani further submitted that bed head ticket indicates that consent of the parents of the child was not taken before the operation was performed. The father of the-deceased was asked to sign some form. The operation was conducted at North Bengal Clinic in Siliguri. The rectal suction biopsy was not done on the plea that the facilities for the same were not available at Siliguri or at Kolkatta. At 8.30 p.m. on 3.9.99, the baby died. In the death certificate the surgical intervention is not mentioned. He submitted that such a surgical ‘ procedure, a minimum of 5 days preparation is needed.
(e) Mr. Krishnamani quoted from the report of Dr. Swapan K. Jana, Secretary, Society for Social Pharmacology, West Bengal who conducted a retrospective review of prescriptions, discharge certificates and other documents of the deceased baby.
In his analysis he has stated that–
(1) Delayed response for the confirmation of the diagnosis of the problems (P/D-Congenital megacolon) of a precious child should be accounted as careless approach health care management.
(2) Contradictory statement regarding the date of consultation with Dr. Abhishek Biswas, the use of Amikacin and preparation of death certificate of the baby are the blameworthy acts done by the doctors concerned.
(3) Unscientific approach for Radiological investigations (Barium enema, absence of Radiologist, etc.) by Dr. Ujjal Chatterjee for a case of Cong. megacolon is a case of negligency which should be considered as an offence.
(4) Irrational approach for surgical intervention by a Mch level paediatric surgeon (post surgical biopsy was not done) is considered as a criminal offence.
(f) He also quoted Nelson’s Book on Paediatrics, 15th Edition 1933
278.3 Congenital Aganglionic Megacolon (Hirschsprung’s disease):
Hirschspmng’s disease is the most common cause of lower intestinal obstruction in the neonate, with an overall incidence of 1:5.000 live births. Males are affected more often than females (4:1).
“In infancy Hirschsprung’s disease must be differentiated from meconlum plug syndrome, meconlum, ileus and intestinal atresia.
Diagnosis.
Rectal manometry and rectal suction biopsy are the easiest and most reliable indicators of Hirschsprung’s disease.
Radiological evaluation should be performed without preparation to prevent transient dilatation of the aganglionic segment. Twenty-four hour delayed films are helpful.
Treatment:
Once the diagnosis is established, the definitive treatment is operative intervention. The operative options are to perform a definitive procedure as soon as the diagnosis is established or perform a temporary colostomy and wait until the infant is 6-12 months old to perform a definitive repair. There are three basic surgical options. The first successful surgical procedure described by Swenson was to excise the aganglionic segment and anastomose the normal proximal bowel to the rectum 1-2 cm. above the dentate line.
(g) According to James A. O’Neil Junior and Ors:
A transition zone is occasionally seen in the distal ileum. A 24-hour follow up radiograph may demonstrate retrograde passage of barium into the more proximal small intestine as well as failure of evacuation of the barium. Biopsy remains the definite diagnostic technique.
(h) According to Paediatric Surgery by Dr. A K. Roy:
We should always take a Biopsy from colostomy site and see that ganglion cells are present, so that the colostomy remains functioning.
Pre-operative preparation
(1) Bowel irrigation and colonic washouts with normal saline and Betadine solution.
(2) A clean liquid for 5 days prior to operation.
(3) Antibiotic bowel preparation — Septran, Metrogyl and mannitol for 5 days prior to surgery.
(4) Antibiotic therapy
(5) Patient is placed in lithotomy position, with knees bend and feet on holder projecting from the end of the table so that abdomen and perineum may be simultaneously exposed.
Because of its potential to cause ototoxicity and nephrotoxicity concomitant administration of any other aminoglycoside or drugs like Amphotericin. Colistin, Cephakiridine, Paromomycin, Viomycin, Polymyxin B, etc. should be avoided. Also Amikacin should not be given concurrently with diuretics like Ethacrynic acid and Furosemide which are known to enhance the amino glycoside toxicity by alleging the antibiotic concentrations in serum and tissues.
Case of the opposite party No. 1
(a) Learned Counsel for O.P. No. 1, Dr. Ujjal Chatterjee submitted that the complainant, Smt. Mandira Saha has suffered four miscarriages and the child was suffering from congenital megacolon. The complaint was filed after two years after the death of the child. The hospital was not made a party and the complainant herself was not examined.
(b) Learned Counsel for O.P. 1, Dr. Ujjal Chatterjee made reference to the written submission made by Dr. Chatterjee. The records showed that complainant No. 1 had a previous history of high blood pressure, mosaicism besides she was anaemic and was suffering from Bronchiectasis. Immediately after its birth, the neonate was placed in an Incubator at around.2.00 a.m. The neonate was handled in the most hygienic manner. The opposite party No. 1 prescribed injection Mikacin (100 mg.) 30 marks of mantoux test syringe test twice daily. As the complainant did not have milk to feed, the neonate was given 5% dextrose orally to avoid hypoglycaemia, as recommended in “Nelson’s Book of Paediatrics”.
(c) Subsequently I.V. drip with 5% dextrose, fortified with 25% dextrose, was started as the baby vomited and did not pass stool. The treatment provided to the neonate from birth is recorded in the Bed Head Ticket (BHT). Due to sufficient supply of nourishments, the sugar level rose to 90 mg% on 29th August, 1999, as recorded in the BHT.
(d) He quoted Harriet Lane handbook XIV Edition by Michael A. Barone, page 377-378 justifying this regimen of fluid therapy during first few days of birth. Neonate had an attack of borderline hypoglycaemia on 28.8.99 at 3.15 p.m. and two attacks of convulsion and cyanosis on 29th and 30th August, 1999. The baby further developed respiratory and other complications and her condition further deteriorated and oxygen was given to her. Dr. Chatterjee had requested complainant No. 2 to take the baby to some other hospital at Kolkatta more than once but this was not complied with.
(e) Learned Counsel for O.P. No. 1 further submitted that the complainants themselves had brought Dr. Biswas, opposite party No. 2 to the North Bengal Clinic who had clinically examined the baby and made a preliminary diagnosis stating that baby was suffering from congenital megacolon which is known in medical terminology as Hirschsprung’s disease which was written in the BHT. A barium-enema screening was done on the baby when Dr. Chatterjee pushed the liquid through the anus of the baby. The machine was operated by the technician and viewed by Dr. Chatterjee, Dr. Biswas and complainant No. 2. The screening showed that there was a definite junction of distended and collapsed loop and the condition of the baby was clearly viewed in the screen by all present which indicted that the baby was suffering from Hirschsprung’s disease. The note for laparotomy operation was explained to complainant No. 2 and his signature was obtained on BHT. Despite all efforts, neonate unfortunately passed away on 3rd September, 2005. At the time of discharge, as the baby had died, the mother was given proctinal to avoid subsequent lactation.
(f) Learned Counsel also submitted that Dr. Chatterjee had exercised and administered necessary treatment to the premature baby by adopting required established medical process and practice, associated with many psychological and clinical hazards. This position is stated in “Essential Paediatrics” by O.P. Ghai as well as in Nelsons Text book of Paediatrics wherein it is stated that nconates have a very high morbidity rate. The opinion of Dr. Swapan Kumar Jana who is not an expert in the field of paediatrics cannot be considered as an opinion of an expert and thus is devoid of any evidentiary value.
Case of the Opposite Party No. 2
(a) Learned Senior Counsel for O.P. No. 2 quoted extensively from the affidavit of Dr. Abhishek Biswas:
At about 12.40 p.m. on 2nd September, 1999 at the request of opposite party No. 1, Dr. Biswas visited North Bengal Clinic Pvt. Ltd. Siliguri and examined the female baby of the complainant. He was reported that the baby had a Delayed Passage of Meconium, Nasogastric Suction was Bilious. The symptoms of the baby from the time of her birth was told to him by opposite party No. 1. On clinical examination of the baby he found that her abdomen was distended, visible loops of intestine were exaggerated. On rectal examination, anus was found at normal site, rectum was empty and griping on examining finger, finger stall was meconium stained. He performed the rectal wash of the baby himself. Rectal wash was returned with flatus and small amount of faecal matter. On examination of the X-ray of the abdomen of the baby which was done earlier he noticed abundance of air in bowel loops and scanty air in pelvis of the baby. His clinicial diagnosis about the baby was HD (Hirschsprung’s Disease). He advised to continue the conservative treatment given by the opposite party No. 1 and also advised to give rectal wash using warm normal saline and further advised to do a Baenema (Barium enema) X-ray under screening. He also advised barium to be dissolved in normal saline. The Baenema screening was conducted by opposite party No. 1 in his presence under C-arm control, the picture of which appeared on the T.V. Screen and he personally viewed the screening and his diagnosis was HD (Hirschsprung’s disease). It is denied that he took it for granted about the Baenema as alleged. On the evening of 2.9.1999 he re-examined the baby but found no satisfactory improvement. At that time, he indicated to the complainant No. 2 that he might have to do some surgical intervention on the baby considering her condition next morning. Save that would appear from BHT of the patient all allegations contrary thereto are denied.
(b) Dr. Biswas in his affidavit has stated that Dr. Swapan Kumar Jana is a teacher in the Department of Pharmacology and has no clinical experience. Dr. Jana has no specialization in Paediatrics Medicine or Paediatric Surgery. Therefore, his purported opinion has no value and cannot be treated as an expert opinion.
(c) It is stated that Baenema of the patient was conducted on 2.9.1999 at about 1.00 p.m. which indicated the junction of narrow and dilated segment at about 3″ from anus. Therefore, the second photograph, was not at all essential. Further due to deteriorating condition of the patient, emergency surgical intervention had to be done on 3.9.1999 which was completed at about 10.30 a.m. Therefore, there was no scope for 2nd photographs beyond 24 hours.
(d) Dr. Biswas had advised urgent operative intervention of temporary colestomy. He discussed the matter with the complainant No. 2 and explained in detail the prognosis of laparotomy and sought for his special consent which he has extended by signing the bed head ticket of the baby. He performed the temporary transverse loop colostomy on the baby which ended at about 10.30 a.m. on 3.9.1999. His operative findings were (i) collapsed, narrow sigmoid colon, (ii) caecum to transverse colons were distended, (iii) small gut loops were distended. These operative findings suggested that his diagnosis was correct. The operation was uneventful. In fact he found obstruction. He has given two incisions — first one was for assessment and was based on Ba-enema finding, the other one was for colostomy. Considering the condition of baby and to complete the operation as early as possible for taking the baby out of anaesthesia he had not taken the biopsy. The colostomy could have been possible through the first incision had there been junction between the dilated segment and narrow segment.
(e) The learned Senior Counsel for O.P. No. 2 submitted that Dr. Biswas conducted the temporary colostomy operation to watch the progress after 6-8 months. The doctor was very clear in his mind that the child suffered from H.D. which itself is a dangerous disease. Because other diseases accompanied, the child had become very weak and there was abdominal distension resulting in non-passing of stool and respiratory distress there was also selerema+ve. Medical diagnosis itself indicated clearly about the existence of the H.D. The first barium test showed that there was obstruction in the large intestine. Accordingly second one was not necessary. The rectal suction biopsy itself is a full surgical procedure. The result will come only after 2-3 days. Facilities for rectal suction biopsy were not available at Siliguri and probably not at Kolkatta. Therefore, taking the child only for diagnostic test to Delhi was not advisable. Hence temporary operation was performed after a detailed clinical examination.
(f) Bed head ticket indicated that on 29.8.1999 at 9.30 a.m. the reflexes were low. On 28.8.1999 at 3.15 p.m. blood sugar 23 mg (by glucometer) O.V. Drip charged with 1 full + 20cc 25% dextrose, Inj. 25% dextrose recommended by Dr. Chatterjee which was to be injected. On 31.8.1999 there was respiratory distress hence Lasix was given. On 31.8.1999, the father was explained the prognosis and given liberty to consult any other child specialist. Lasix was rightly given and urine was discharged till the end.
(g) It is not feasible to record everything. The mother was not permitted to give breast milk because condition of the child was precarious. No physician would deprive the child of mother’s milk.
Findings
(a) We have gone through the records of the case and heard the arguments of Mr. Krishnamani, Senior Advocate, Counsel for the complainants, Mrs. Mandira Saha and Anr. and Ms. K. Iyer and Mr. Sanjay Ghosh, Advocates for Dr. Ujjal Chatterjee and Mr. Jaideep Gupta, Senior Advocate for Dr. Abhishek Biswas.
(b) The mother of the deceased child had four miscarriages before this conception. She was taking treatment from Dr. Salil Dutta, Consultant, Gynaecologist. The complainant has no complaint against the Consultant Gynaecologist or the hospital. Their case is against the Consultant Paediatrician Dr. Ujjal Chatterjee and Dr. Abhishek Biswas, Consultant, Paediatric Surgeon. The child was born pre-mature at 34 weeks gestational period. The child did not pass stools on the first day.
(c) To support his arguments, learned Senior Counsel for the complainant has quoted the report of Dr. Swapan K. Jana, Secretary, Society for Social Pharmacology, West Bengal. It is seen from the qualifications of Dr. Jana that he is neither a Paediatrician nor a Paediatric Surgeon. He was not available for cross-examination. His report therefore does not have any evidentiary value of an expert in the concerned field, especially in the face of statement on oath by Dr. Biswas.
(d) Hirschsprung’s disease, can be diagnosed clinically or through a barium X-ray. It is true that rectal suction biopsy would doubly ensure the existence of disease but the facilities for the same were neither available at Siliguri as stated by the opposite party on oath nor was the complainant No. 2 willing to take the baby away from the hospital to Kolkatta or to any other place. As regards consent of parents for the procedure, the record shows that complainant No. 2 (father of the baby) had given his consent for the surgical procedure.
(e) The complainant claimed that the child was normal and doctors in the Nursing Home deprived the mother the opportunity to breast feed her baby. There seems to be no medical reasons to believe the arguments that the mother was kept away from the baby and the hospital authorities did not permit the mother to breast feed the baby as the baby was born pre-mature and it was kept in the incubator and from day one it was sick and had to be given several types of treatment.
In Breast Feeding in Practice — by Elisabet Helsing with F. Savage King –page 51, Clause 6.3 — it is stated that
6.3 Too little milk–
Just as some mothers have too much milk before their breasts have adjusted, so other mothers have too title milk at first. This does not necessarily mean that they will be less efficient milk producers later on. Many can produce enough milk and are able to feed a baby normally after two weeks or so.
As it is normal for some mother not to have breast milk soon after the birth of baby, it was not found necessary to record the same on the Bed Head Ticket. However, as the mother may have milk later on, to prevent inconvenience to the mother after the death of the baby Proctinal Tablet was prescribed.
(f) Learned Counsel for opposite party No. 1 argued that as regards the allegation of the complainants that opposite party No. 1 had prescribed both Amikacin and Lasix, together it is submitted that the baby was having respiratory distress on the 31st August, 1999. Hence the baby was prescribed Lasix Injection single dose (Ref : Nurses Chart annexed along with B.H.T. and Bed Chart of the baby. This gave relief to the child as it could pass urine freely.
(g) Passing stool and urine by the newly born baby on first day of the birth is a routine activity of the neonate. But in this case though the baby had passed urine and it did not pass stools on the first day and enema had to be given for that purpose. Rectal suction biopsy is also a surgical procedure which would have caused unnecessary inflictment of pain and torture to the neonate when the doctors were certain that the baby was suffering from H.D. on the basis of the clinical and X-ray test.
(h) In the Essentials of Paediatric Surgery by Marc I. Rowe, James A. O’Meill, Jr. and three Ors.. published by Mosby, it is mentioned that:
Hirschsprung’s disease often presents in newborns as low intestinal obstruction with or without sepsis. Although the incidence of enterocolitis is variable, this complication makes the diagnosis and early treatment of Hirschsprung’s disease urgent. The successful treatment of infants or children with Hirschsprung’s disease-depends on prompt diagnosis and early treatment. This generally involves a colostomy in the newborn period that is performed on an urgent or emergent basis, depending on the clinical status of the child.
(Emphasis supplied)
(i) In the text ‘Neonatal Surgery’, Third Edition by James Lister and Irene M. Irying published by Butterworths, it is stated that:
Vomiting was one of the commonest symptoms, it was recorded to have occurred at some time in 752 patients (88.4%)
Some abnormality in the passage of meconium is characteristic feature of Hirschsprung’s disease and this was observed in 85% of cases. Most often there was a delay in the passage of meconium for more than 24 hrs. after birth, in other instances only a small amount of viscid meconium was passed
(Emphasis supplied)
As a result of swallowed air, abdominal distension will be seen in most cases. Occasionally the newborn baby may present with acute severe abdominal distension, resulting in diagnostic difficulties and even to an exploratory laparotomy.
(j) In the Text on ‘Surgery of the Newborn, edited by Neill V, David M. Burge, Mervyn Griffiths and P.S.J. Malone, it is mentioned that:
If the child condition is deteriorating, operative decompression should be considered to be mandatory as an emergency.
Most surgeons prefer a routine right-sided transverse colostomy. In patients with a long-segment aganglionosis, an end colostomy just aboral to the transitional zone is often preferable as a colon-saving procedure. Corrective surgery is carried out later under protection by the earlier transverse colostomy or without in the case of a previously made end colostomy
(Emphasis supplied)
The extracts of the above texts (sic) out clearly that diagnosis and the treatment of the neonate was done correctly by Dr. Chatterjee and Dr. Biswas.
(k) Considering the age and health of the mother, several miscarriages before the birth of this baby, pre-mature birth of the baby, not passing the stools by the baby even 24 hours after the birth, visible persistent complications in the health of the baby from day one getting compounded day after day and the strenuous efforts made by the Paediatrician and Paediatric Surgeon to save the child in the hospital located in the remote corner of the country leads us to only one conclusion that the doctors had exercised due care and diligence which is normally expected from a qualified doctor exercising reasonable care.
(1) Supreme Court of India in Dr. Lax-man Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. , lays down the criteria for determination of the professional duty of a medical man in the following way:
A person who holds himself out ready to give medical advice and treatment impliedly undertaken that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
(m) In this case we find that Dr. Chatterjee and Dr. Biswas possessed skill and knowledge to handle this case and they have exercised the duty of care in undertaking the case, duty of care in deciding what treatment to give and duty of care in the administration of that treatment. They have brought to their task a reasonable degree of skill and knowledge and have exercised a reasonable degree of care.
4. Accordingly we hold that there was no negligence on the part of the opposite party Nos. 1 and 2. The complaint is, therefore, dismissed. We express our deep sympathies to the parents for the loss of the new born baby despite the best efforts of the doctors concerned.