SHAHEELA IMAM V DR. NAHID FATIMA
The National Consumer Disputes Redressal Commission (NCDRC) has acquitted a surgeon from charges of medical negligence in performing vacuum delivery and medio-lateral episiotomy noting that so long as the doctors follows a practice acceptable to the profession on that day he can’t be held liable for negligence merely because a better alternative course of treatment was available or a more skilled doctor would not have chosen to follow or resort to that practice which the accused followed. The case concerns a pregnant woman who delivered a male baby of 3.75 kg under the guidance of the practicing obstetrics in her maternity nursing home at Okhla, Delhi in 2014.

However, it was alleged that the surgeon instead of performing Cesarean section delivery, performed vacuum delivery with third degree perennial tear (episiotomy) without disclosing or taking consent of the patient or her husband for need of episiotomy and delivery by vacuum application which caused injury to rectal sphincter.

Later, on the patient’s parents took her to Aligarh and consulted at Jawaharlal Nehru Medical College and Hospital (JNMCH). It was further alleged that the doctors therein told about wrong procedure adopted by the surgeon during delivery and the episiotomy caused rectal sphincter injury and episiotomy wound was not properly stitched.

Alleging that the patient became disabled, unable to perform day to day activities, lost job opportunities and her matrimonial life was spoiled by the wrong treatment of the doctor, the patient filed the complaint against the doctor and the insurance company, seeking a total compensation amount of Rs. 2,27,85,000/- under different heads. The Complainant also filed one complaint before Delhi Medical Council (DMC) in April 2015. The Counsel for the complainant submitted that the doctor did not follow the standard procedure as prescribed by the Royal College of Obstetricians & Gynaecologists. He further submitted that; “In the instant case the findings of the DMC regarding the professional conduct of the doctor have great relevance to hold medical negligence leading to defiency of service”.

Meanwhile, the doctor filed her written version. She denied the allegations as false, vexatious and filed this complaint was filed in order to extract money by suppressing the material facts. She submitted “The weight of baby was 3.75 kg and it was big size baby (25% more than normal Indian standard), therefore for the safety of the baby and mother medio-lateral episiotomy was performed. As episiotomy decision to be taken on the situation and it is a part and parcel of vaginal delivery, therefore consent was not taken. The episiotomy wound was stitched as per standard procedure. The patient was discharged in good condition and advised to take antibiotics and other medicines. She was called for follow-up after a week. Therefore there was neither deficiency nor negligence while performing delivery and the post-delivery advice. Moreover the patient travelled to Aligarh which was not advised. The counsel for the defendant submitted that the delivery was conducted with ventose application and it was not a wrong decision to perform to perform episiotomy when the baby was large to avoid perineal injuries to the mother and to shorten the process of labour, also to avoid hypoxia to the new-born. The right medio lateral incision is safe and as an accepted standard which prevent perineal tear and rectal injuries. An emergency episiotomy was needed for the safety of big baby and the mother”. In the instant case the patient had no complaints after the discharge from the nursing home but after 23 days on (15.09.2014) developed the fistula. It was not due to episiotomy as it was alleged. It might be due to infection at episiotomy stich or an abscess which opens in to the rectum causing recto-vaginal fistula.”  he further argued adding that that, after discharge the patient visited the doctor twice, but on both the days she had no complaints and on examination there were no signs of fistula. Thereafter, the patient never turned up to the doctor for follow-up, but she travelled to Aligarh which increased the risk of fistula.

He filed medical literature and texts from book -William’s Obstetrics and placed reliance upon Supreme Court’s orders. Considering the arguments from both the parties. the Commission noted that at JLN Hospital no doctor has made any adverse observations or remarks with regard to the treatment or the delivery procedure adopted by the surgeon. Perusing the DMC order wherein the disciplinary committee of DMC took decision that the doctor did not exercise degree of skill, care and knowledge which was expected of reasonably prudent doctor, the top consumer court observed that the DMC did not comment on whether the doctor performed ventouse delivery wrongly and the episiotomy was not performed as per standard of practice. DMC has not given any opinion whether it was negligence of the doctor as a cause of recto-vaginal fistula. It noted: “DMC order is not in consonance with the facts & medical literature. Also, the DMC failed to consider that when patient came to surgical centre it was not possible to refer her to any other hospital because of risk involved and moreover delivery could have taken place at any time.

The DMC did not consider the four ingredients 4 ‘D’s of medical negligence viz Duty, Dereliction (breach), Direct cause (causa causens) and Damage(s). Each of these four elements must be proved by the Complainant to succeed in his claim.