MASTER NEIL MENDONSA Vs. EGBERT SALDANHA

JUDGEMENT

(1.) Heard Ms. Radhika Gautam, Advocate, for the complainants and Ms. Sukruta A. Chimalkar, Advocate, for the opposite parties.

(2.) Neil Mendonsa (minor), Mrs. Indu Mendonsa and Noel Mendonsa have filed above complaint, for directing the opposite parties, jointly and severally to pay (i) Rs. 30560000.00, as the compensation, for committing medical negligence; and (ii) any other relief which is deemed fit and proper in the facts of the case.

(3.) The complainants stated that Dr. Egbert Saldanha (OP-1) claimed to be a Gynaecologist, Infertility Expert and Obstetrician by profession and was running Shreeji Hospital (OP-2). Dr. Lokesh Banodkar (OP-3) was an attending paediatrician at Shreeji Hospital, at the relevant time. Mrs. Indu Mendonsa (complainant-2) conceived in February, 2011 and took regular antenatal care from OP-1 at Shreeji Hospital, which was close to her residence. OP-1 checked up complainant-2 on 18/2/2011, 14/5/2011, 28/5/2011, 11/6/2011, 23/6/2011, 6/7/2011, 23/7/2011, 8/8/2011, 22/8/2011 and 1/9/2011 and all the time told that everything was fine. As advised by OP-1, first ultrasound sonography (USG) was done on 14/5/2011, which showed normal single live intrauterine pregnancy with gestational age of 12.3 weeks. Second USG was done on 2/7/2011, which showed everything normal. OP-1 also obtained Blood and Urine test reports of complainant-2, in respect of CBC, Blood Sugar, Serum Creatinine, VDRL, HIV, HbsAg, Blood Group and Urine routine test on 4/6/2011 and 25/6/2011, in which, also everything were normal. Complainant-2 was admitted at Shreeji Hospital for delivery on 4/11/2011 at 20:45 hours. Progress in labour pain was slow, therefore, initially OP-1 tried induction of labour pain but could not succeed. Then OP-1 did caesarean delivery on 5/11/2011 at 15:00 hours. Dr. Lokesh Banodkar (OP-3) attended new born baby after delivery and after check-up, informed that condition of the baby was fine and normal. Complainant-2 was discharged from the hospital on 8/11/2011. In discharge slip of the baby (complainant-1), OP-3 noted 'Icterus on Face and Chest' and advised to 'Expose to early morning sunlight daily for 1/2 hours, for 7 days. On the next day of discharge, complainant-1 noticed that the baby was looking severely yellow and jaundiced and sensed something was wrong. Complainant-2 consulted OP-1, who called OP-3 on 10/11/2011 at 19:30 hours, who examined the baby and suspected development of jaundice. He advised complainant-2 to admit the baby to another hospital for diagnostic test and further management. Then Complainant-1 was admitted to Bakul Parekh Children's Hospital on 10/11/2011, where treating doctor obtained various test report, in which, Bilirubin was found to be 48.5 mg/dl (as against referral range of 2/5/15 mg/dl). Complainant-1 remained in Bakul Parekh Children's Hospital for treatment of jaundice for 10 days and discharged on 20/11/2011. After some time, complainants-2 and 3 noticed something unusual in the baby, then they approached OP-3, who after examination noticed that the baby was able to hold his neck partially and there was loss of hearing and prescribed some medicines. Even at this stage, OP-3 could not diagnose real disease nor informed complainants-2 and 3 about the actual damage caused to the baby. After several months, when there was no improvement and the child could not hold his neck and started showing 'delayed milestones' then complainants-2 and 3 approached Dr. Neelu Desai, a Paediatric Neurologist on 16/8/2012, who obtained report of MRI Brain and informed that irreparable damage was caused to the bairn of the baby, due to jaundice. Complainants-2 and 3 took second opinion of Dr. Alok Sharma, who also obtained report of MRI Brain on 28/9/2012 and noted that symmetric signal alteration in the globus pallidi suggestive of kernicterus, Leucomalacic changes in bilateral parieto-occipital periventricular white matter. Symmertic linear signal alteration in dorsal pons, suggestive of central tegmental tract hyper-intensity. Mild prominence of the lateral ventricles. The complainants took advice and medicines from various doctors, one after one, but of no result. As per AIIMS-NICU Protocol, 2007, any new-born discharge prior to 72 hours of life should be evaluated again in next 48 hours for adequacy of breast feeding and progression of jaundice. Clinical judgment should be used on determining follow up. Earlier or more frequent follow up should be provided for those who have risk factors for hyperbilrubinemia. The protocol provides for inter alia the following risk factors for development of severe hyperbillrubinemia i.e. (i) Pre-discharge TSB or TcB level in high risk zone; (ii) Jaundice observed in the first 24 hours; and (iii) Blood group incompatibility with positive direct antiglobulim test. The OPs committed gross negligence in discharging before 72 hours of the birth of complainant-1. During 5/11/2001 to 8/11/2011, the OPs did not test Serum Bilirubin. At the time of discharge from the hospital on 8/11/2011, OP-3, noticed 'Icterus on Face and Chest' even then he did not test Serum Bilirubin. Bilirubin was found 48.5 mg/dl on 10/11/2011, which cannot reach at such a high level in a single day. Due to negligence committed by the OPs, complainant-1 suffered from kernicterus (damage of vital part of the brain). If proper diagnosis and treatment of jaundice had been done at the initial stage, the baby could have been saved from incurable disease and permanent disability. In order to take care of complainant-1, complainant-2 left her job of Senior Executive in Birla Sunlife Insurance Company, from where she was earning Rs. 4.93 lacs per year. Complainant-1 had to undergo for mandatory physiotherapy due to the impairments resulting from brain damage due to kernicterus, the cost of which as on the date of the complaint was Rs. 800.00 per session. The complainants claimed Rs. 41.60 lacs, for the cost of physiotherapy for 20 years. Rs. 20.00 lacs, for future medical expenditure. Rs. 30.00 lacs, for mental trauma, Rs. 80.00 lacs, for permanent disability of complainant-1, Rs. 13.00 lacs for the cost of Cochlear implants, Rs. one crore for loss of income of complainant-2. The complaint was filed on 17/9/2013.