Mrs.Sharmila Banu, W/o Azarudeen v. 1) Dr.M.Mumtaj, M.D.D.G.O, S.A.M. Hospital & one another

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Hospital. Hence as advised by the first opposite party, the complainant was admitted in the said Hospital.

ii.The complainant was admitted for delivery on 26.09.2021 in the hospital under the care of the first opposite party. She was advised by the first opposite party for a caesarean. She was given spinal anaesthesia on 26.09.2021 at 7:41 PM by the second opposite party. On the same day, a little girl baby was born. Subsequent to the delivery, the complainant had problems with passing urine, weakness, and loss of sensation in her right leg. This matter was informed to the first opposite party immediately. The first opposite party checked up and informed the husband of the complainant that she had a problem because of anaesthesia given to her prior to delivery and it would be alright after medication. The complainant was given some medicines. But there was very little improvement. She was discharged on 08.10.2021. Till 08.10.2021, the complainant was given IV medicines and tablets for painkilling and for voiding urine. Since she could not void urine in the normal course, a catheter was inserted and a bag was also provided for collecting urine. Because of the urine bag, she was suffering from pain and she could not move her right leg and could not walk even a small distance. M.R.I. scan was taken on 01.10.2021 and 04.10.2021. From the M.R.I. report, it could be easily inferred that there was a disc bulge in the portion between L4-L5 and L4-S1 spine levels. The spinal anaesthesia process is applied in the L4-L5 portion prior to the delivery. Because of the wrong application of the injection, the disc bulge between the portions L4-L5 and L5-S1 occurred. This in turn affected the urinary of the complainant and right leg mobilising nervous roots. The complainant was affected with urinary infections and she finds it difficult to void urine. There is a loss of sensation in the right leg and mobility also. Till date, she is not able to squat or sit on the floor. The complainant could not walk normally. She has to drag her right leg while walking. Because of this condition, she finds it difficult

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even to feed her child. All these difficulties have occurred only because of the wrong and nerve root application of the anaesthesia injection given to the complainant by the second opposite party. The complainant had been informed by doctors that she could not get back to normalcy even if further treatment was given and it would be dangerous for her if she goes for a normal delivery next time, due to the above said complication. The complainant is just 26 years old and she has lost a good enjoyable life even at this young age because of medical negligence. The opposite parties are bound to compensate the complainant. The complainant has spent about Rs.1,00,000/- so far for her treatment after her delivery in the hospital of the first opposite party. She would be constrained to spend huge sums of money for her further treatment. Though the damage caused to the complainant as a result of the negligence on the part of the first opposite party could not be compensated in terms of money, yet, the complainant modestly estimates the damage in a sum of Rs.50,00,000/- which the first opposite party is liable to pay. setting forth all the circumstances, the complainant issued a notice to the first opposite party through her lawyer on 03.062022 calling upon her to pay a sum of Rs.50,00,000/- to the complainant for the loss of the predominant happy life and for the mental organic suffered by her as a result of the negligence on the part of the first opposite party along with the sum of Rs.1,00,000/- spent by her for medical treatment post-delivery. Upon receiving the notice, the first opposite party issued a reply dated 09.06.2022. In her reply notice, the first opposite party pleaded innocence as if the complainant was not her patient and the complainant herself got treatment in S.A.M. hospital. The first opposite party tries to disown her own patient. The first opposite party issued a reply dated NIL with false and fraudulent allegations and it has not disclosed the entire facts. The first opposite party would say in her reply notice that in paragraph 9 the complainant had already devolved a disk bulge in the Lumbar and Sacral Vertebra and a Degenerative process had commenced. The first opposite party would turn to mention in the same

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paragraph after the reply notice that the first opposite party did not know about the compression in L4-L5-S1 and because of that only, the complainant got admitted with their present situation and not because of spinal anaesthesia. This itself would show how lethargic and negligent the first opposite party was in treating her patient. There is no document to show whether the doctor, namely, the first opposite party had engaged the complainant and underwent only pain or discomfort which is about from the usual delivery-related pains. Apart from that, after delivery also when she complained about discomfort in the urinal and other problems, the first opposite party/doctor had gone through the MRI scan reports, but the first opposite party had not gone for any decompression therapy even after the MRI. Knowingly, in the reply, the first opposite party has spoken about the decompression to be given for the disc bulge. The entire replay of the first opposite party is only evasive and tries to shirk away her responsibility and liability from her duties. The theories from the medical books will not absorb the medical practitioner when she has not done her duties in full. The experts from the medical books are only to justify the negligent act of the first opposite party who tries to cover her arthritis. In the reply notice sent by the first opposite party, no date has been mentioned. Since the first opposite party is not prepared to compensate the complainant, the complainant has no other go except to find this complaint. The action on the part of the opposite parties amounts to deficiency in service and hence seeks appropriate compensation and other reliefs from this Commission. Hence this complaint.

2. The objections raised by the first opposite party are as follows: -

i. All the allegations in the complaint are denied as false, frivolous, and vexatious to the knowledge of the complainant, except those that are specifically admitted herein by this opposite party. There is no bonafide or merit in the complaint and intended to extort money from this opposite party and the same is liable to be dismissed in limine.

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ii. This opposite party admitted that the complainant said to have a periodical check-up in the Government Primary Health Centre at Puthanatham village and with Dr. Parveen Kasim, Manapparai verified the notebook given by PHC. The complainant was admitted on 26.09.2021 by herself at S.A.M Hospital, Thillai Nagar, and informed through phone by a nurse that this opposite party's service was required by the patient (complainant) and this opposite party rushed to S.A.M Hospital at 06:15 p.m. This opposite party examined the case around 06:20 p.m. for the first time and the patient was having labour pain with a mobile head. For a case of primifutal head must be engaged four weeks prior term. After a thorough clinical and pelvic capacity examination, this opposite party advised caesarean section of the mobile head and it indicates CPD II (Cephalo pelvic disc proportion) i.e., a problem in delivering the oversized child. After getting the consent both for spinal anaesthesia and LSCS, a caesarean was done, and delivered girl baby by 7:41 p.m. iii.The complainant delivered the female baby with an Apgar score of 8/10 and after 5 minutes the Apgar score was 10/10 with a 3.5 kg weight. The complainant and the child were healthy without any complications or complaints. The patient was shifted to the post-operative ward and was carefully monitored with I.V. fluids antibiotics anti-inflammatories, and sedatives. After 24 hours of surgery pillow was provided under started oral fluids. On 27.09.2022 one unit of blood was given and catheter was removed. iv.The complainant was treated for post-LSCS care in the SAM hospital till she voluntarily got discharged against medical advice. The complainant was given I.V. iron sucrose and an injection of Neurobion for alleged weakness. After getting the Neuro Physician's opinion, an injection of Methylprednisolone was also on the 4th POD given to the complainant. Later, she had a problem with voiding urine, and the catheter was inserted to urinate she was normal and there was good bowel movement. Further, it was informed that still she had weakness

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in the right leg. This opposite party suggested getting the opinion of a Neuro. The complainant chose by herself on Dr.Syed Ali, M.B.B.S., D.N.B., (Neuro) M.N.A., of Maruti Hospital. The scan was taken to study the lumbosacral spine with a screening of the brain and there was a small posterior disc bulge at the L4-L5 level. Again another (5th POD) MRI scan was taken on 04.10.2021 (8th POD) with contrast.

v. The second opposite party, a qualified Senior Anaesthetist Dr.Sivakumar injected SA Bupivacaine 2ml (0.5%) in the sub-arachnoid space vertebra, and the LSCS procedure was adopted with utmost care. The alleged complaint of numbness in the right leg and unable to walk etc are false. vi.Most cases involving bulging or herniated discs will heal within 2 to 4 months normally and it depends upon the overall health and severity L4 and L5 disc bulge is curable without even surgical intervention. The MRI Scan taken at the instance of a physician revealed that degenerate diseases had set in the spinal column, was due to the pregnancy (Weight of the foetus in the womb 3.5 kg) and the increased pressure in the abdomen causing pain in the vertebra.

vii. No anaesthetics drug, as alleged in the complainant will cause pain or numbness in the right leg. The patient was kept in the ward for 12 days. The patient's attendees wanted discharge on the 12th POD. Further, it is regrettable without paying the fees to the doctors and the S.A.M. hospital charges, the patient's relations created a ruckus and left the hospital. In considering the reputation, no police complaint was preferred. They denied that the complainant could not get back to normalcy. After 20 days, the patient came for Catheter removal and the catheter was removed and patient passed urine and she was having normal walking and she was referred to Neuro doctor for review. Later, this opposite party enquired and the patient's husband replied by saving saying 'பரவாயில்லல'.

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viii. This opposite party further denied that it would be dangerous for the complainant, if she went for a normal delivery next time and no doctor would opine due to the anaesthesia injection and the complainant has lost her good enjoyable life even at this young age. There is no medical negligence as alleged by the complainant the alleged negligence is without any material particulars and the allegations are bald. The S.A.M. hospital does not belong to this opposite party. The complainant is not a consumer as defined in the Consumer Protection Act, 2019. She did not pay any single pay to this opposite party for her humanitarian service timely needed by the complainant. Therefore, the complaint is not maintainable against this opposite party.

ix. The alleged damage caused to the complainant by the wrong application of anaesthesia injection is specifically denied. The allegations that the complainant would be constrained to spend huge sums of money etc or pure fertile imagination. This opposite party is not liable to pay the alleged sum of Rs.48,00,000/- as compensation. The patient has not realized the situation in which she was treated and efforts taken by doctors and the opinion taken by Neuro Surgeon. Neuro physician to treat her and thankless service had been performed by this opposite party.

x. She was an un-booked case and further, it is relevant to submit, that the MRI scans prove that even before spinal anaesthesia was given to the complainant on 26.09.2022, she had Degenerative process in the Lumbar and Sacral vertebra and she had disc bulge and not thereafter and in any event the complaints alleged are curable and not permanent.

xi.The opposite parties do not gain anything by acting with negligence or by omitting to do an act. The first opposite party has been rendering valuable medical assistance to the public at large for the past 35 years; therefore, it seems that someone in the Puthanatham village area has suggested this opposite party's name as she holds a master's degree in Medicine (M.D) and the Diploma

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in Gynaecology and served in several hospitals across Tamil Nadu and has retired from Government Services and has done commendable services. This Commission has been abused and the opposite parties have been unnecessarily forced to undergo the ordeal of this complaint by wasting their precious time. xi.To top it all, it is relevant to state that under Section 2(42) 'service' is defined

"……but does not include the rendering free of charge or under a contract of personal service". Therefore, the complaint should have been thrown out at the threshold. The claim of Rs.48,00,000/- as compensation and cost of medical treatment is baseless and unjust and liable to be rejected. Therefore, the first opposite party prayed this Commission to dismiss this complaint with costs.

3. The objections raised by the second opposite party as follows: -

i. All the allegations set out in the complaint are false, frivolous, and vexatious. This complaint is devoid of merits and it is liable to be dismissed in limine. This opposite party admitted that the complainant was admitted in S.A.M. Hospital on 26.09.2021 at 6:15 pm at the instance of the first opposite party Dr. Mumtaj M.D., D.G.O. for delivery. The further allegation that the first opposite party had admitted the complainant for delivery only and the antenatal follow- up was carried out by Government Primary Health Centre, Puthanatham village from 31.12.2020 onwards till 26.09.2021 may be true and this opposite party had no personal knowledge. This opposite party admitted that Spinal Anaesthesia was given on 26.09.2021 at about 7:30 pm by this opposite party as per the informed consent for anaesthesia given by the complainant in the presence of the first opposite party in the subarachnoid space of L4-L5. The anaesthetics drug Bupivacaine 2 ml (0.5%) was given in the lumbar region of the complainant. A female baby was delivered with an Apgar score of 8/10 and after 5 minutes Apgar score was 10/10, with 3.5 kg weight. The complainant and the child were healthy without any complaints.

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ii. The first opposite party had taken post-LSCS care in the S.A.M. hospital till her discharge or thereafter. The treatment that the complainant was given I.V. iron sucrose and injunction, Neurobion for alleged weakness in her right may be true and after getting Neuro Physician's opinion, Inj. Methyl Prednisolone was also given as per the advice of the first opposite party. Further, it was informed that the one Dr. Syed Ali of Maruti Hospital had also treated her and an MRI study of the lumbosacral spine with the screening of the brain was also done on 01.10.2021. This opposite party, as per medical protocol, injected SA Bupivacaine 2 ml (0.5%) in the subarachnoid space of the vertebra and the LSCS procedure went on very well without any untoward event. The MRI scans taken on 01.10.2021 and 04.10.2021 to the complainant revealed a Disc bulge narrowing canal, retrolisthesis of L5 over vertebra, and abuts bilateral L5 traversing nerve roots. It also abuts bilateralL4 exiting nerve roots. The disc bulge while pregnant can be even more painful and this condition is common in pregnant women due to their expected weight gain and increased pressure on the spinal cord. The symptoms may not be known, in some cases, during the pregnancy and may surface after the delivery. This can cause permanent neurological deficits. The disc herniation compresses the entire spinal canal including all the nerves. A conservative management followed by emergency surgery may be required in some cases.

iii. Most cases involving bulging and herniated discs will heal within 2 to 4 months normally and it depends upon the overall health and severity and L4 and L5 disc bulge is curable without even surgical intervention. This opposite party further submitted that the intervertebral discs are composed of 2 essential parts, the annulus fibroses on the outer rim and the nucleus pulposus in the inner portion. However, constant axial loading of the spine or weakness of the lower back muscles can cause the inner part to protrude through the outer ring. This can result in different types of slipped discs such as disc bulge or disc

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herniation, prolapsed disc, or fragmented disk. The slipped disc can cause impingement on the Exiting Nerve Roots. An L4 disc herniation can impinge multiple traversing nerve roots in nerve severe cases. Treatment like exercise relaxation positioning.

iv. The further allegations in the complaint that the anaesthetics drug injected by this opposite party before the LSCS surgery done by the first opposite party resulted in the urinary complaint and nerve root disorder are all false and denied and the alleged disabilities pleaded are all denied as false. Even if any nerve disorder, after delivery, would have been cured once the delivery was over, and after one or 2 months of physical exercise / therapy with oral medicines and pain killers' physical therapy will alleviate the pain of the leg or numbness. The MRI scan reports taken on 01.10.2021 and 04.10.2021, disc bulging and spinal canal narrowing were noticed due to the degenerative disease changes in the spinal cord during the pregnancy, and the spinal anaesthesia given during the LSCS surgery on 28.09.2021 did not cause any such disc bulge or herniated disk.

v. This opposite party denied that subsequent to the delivery, the complainant had problems with passing urine, weakness, and loss of sensation in her right leg is denied as false. Neither the first opposite party nor the complainant ever informed about the alleged complaints to the second opposite party. The allegation that the first opposite party immediately checked up and informed the husband of the complainant that the problem was because of spinal anaesthesia given to her before LSCS is denied as false. The first opposite party never informed anything to the complainant or her husband with regard to the administration of anaesthesia, as the first opposite party is a qualified doctor knowing about the anaesthetic's complications. The allegation in the complaint that the complainant was under the treatment of the first opposite party at

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S.A.M. hospital till 08.10.2021 may be true and the second opposite party was not called to provide any treatment.

vi. The allegations in the complaint that due to the wrong application of spinal anaesthesia, the disc bulge occurred in L4-L5 and L5-S1 are emphatically denied. The allegations or mischievous, malafide invented for the purpose of filing a fictitious claim against the second opposite party, a well-qualified senior anaesthetist with richer experience in the field of anaesthesia, over and above 35 years. In fact, the pain if any would have been subsided after the delivery and in the post-operative period. The first opposite party had referred the complainant to a neurosurgeon Dr. Syed to ascertain the root cause of the pain the MRI scans taken at the instance of the neurodoctor revealed that the degenerative diseases had set in the spinal column, due to the pregnancy and the increased pressure in the abdomen, causing pain in the vertebra.

vii. The treatment given to the complainant by the first opposite party or Dr. Syed is not personally known to this opposite party. Urinal retention or voiding urine may be the cost of the LSCS inherent complications and the same would be cured on medication of the mother and the foetus, which would be relieved after some surgical management or physical exercises. No anaesthetics drug as alleged in the complaint will cause any such pain or numbness of the leg before and after the LSCS surgery procedure and the minimum dosage of Bupivacaine, anaesthetics drug will not cause such complaints stated in the complaint. Such bald allegations were made in the complaint even without understanding the medical complications of aesthetic drugs and the allegations are half-backed besides malicious and he had given local, spinal/regional anaesthesia, and general anaesthesia to several thousands of patients without any complaints whatsoever.

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viii. As a matter of fact, any foreign liquid/drug/body will cause inherent complications in the human body including cardiac arrest despite effective care. There was no vomiting, nausea, or any complaints / or cardiac complaints to the complainant, till her delivery or thereafter. The pain in the leg or weakness in the muscle might be due to the degenerative changes in the spinal cord during her pregnancy due to the increased weight.

ix. The averment that the first opposite party has to compensate the complainant with Rs.50,00,000/- as compensation has to be answered by the first opposite party and the second opposite party does not make comments. The complainant is not entitled to get any compensation from any of the opposite parties. There is no cause of action for the complaint. Therefore, the second opposite party prayed this Commission to dismiss the complaint with cost.

4.Points for consideration:

1. Whether the Complainant is a consumer?

2. Is there any deficiency in service due to medical negligence on the part of the Opposite Parties?

3. Whether the Complainant is entitled for compensation as prayed for and if so, what relief the Complainant is entitled?

5.Submissions:

Complainant:Proof affidavit with Exhibits A1 to A13; and written argument.

Opposite party No.1:Proof affidavit with Exhibit B5; and written argument.

Opposite party No.2:Proof affidavit with Ex.B1 to B4; and written argument.

6. Point No.1: -

i. The first opposite party has pleaded that the complainant did not pay any single pay to this opposite party for her humanitarian service timely needed by the complainant. She is not a consumer as defined in the Consumer Protection

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Act, 2019. Therefore, their contention is to dismiss the complaint as it is not maintainable against this opposite party. The second opposite party has pleaded that under Section 2(42) of the Act, 'service' has been defined as "……but does not include the rendering free of charge or under a contract of personal service".

Therefore, the second opposite party contended that the complaint should have been thrown out at the threshold. Since the opposite parties have raised their objections with regard to the maintainability of this complaint, the duty of the Commission is to decide this issue first.

ii. The opposite parties did not plea that they were doing their respective service free of cost, therefore, admittedly, the S.A.M. Hospital, the first opposite party, and the second opposite party are providing their medical services on receiving consideration from all groups of people. The Hon'ble Supreme Court has held in "Indian Medical Association Vs. V.P. Shanta and Others" reported in 1996 AIR (SC) 550 that even if a hospital offers free services to patients unable to pay, the income derived from paying patients supports the overall functioning of the institution. Thus, these services would still be considered within the Act's purview. Admittedly, the complainant was admitted in the hospital from 26.09.2021 to 08.10.2021, therefore, it is not reliable to believe that the opposite parties did not receive any payment for the treatment for 13 days from the complainant. However, the complainant is entitled to the right to access quality services and redressal of grievances.

iii. As far as the second opposite party's contention is concerned as per Section 2(42) of the Consumer Protection Act, 2019, 'service' has been defined as

"……but does not include the rendering free of charge or under a contract of personal service". A contract of service and a contract for service are both agreements for the provision of services, but they differ significantly in their nature and implications. A contract of service creates an employer-employee relationship, with the employer exercising significant control over the

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employee's work and the employee receiving employment benefits. A contract for service, on the other hand, is a contract between a client and an independent contractor, where the contractor works independently, with minimal control from the client, and usually doesn't receive the same employment benefits. The doctors are engaged under a "contract for service" (e.g., working as an independent consultant) where they agree to provide specific services. The Hon'ble Supreme Court clarified in V.P. Shanta's case that the relationship between a doctor and a patient does not constitute a contract of personal service; rather, it is a contract for service, thus falling outside the exclusionary provisions. In the light of the above facts and the law, the complainant falls within the ambit of a 'consumer' under the Act. Hence, this Commission holds that the complainant is a consumer and competent to maintain the present complaint. This point No. 1 is decided accordingly.

7. Point No.2: -

i. The complainant has alleged that she was admitted for delivery of her first baby in S.A.M. Hospital, as the first opposite party has a personal clinic/bed for her patients in S.A.M. Hospital as advised by her on 26.09.2021. She was advised by the first opposite party for a caesarean. She was given spinal anaesthesia on 26.09.2021 at 7:41 PM by the second opposite party. On the same day, a little girl baby was born. Subsequent to the delivery, the complainant had problems with passing urine, weakness, and loss of sensation in her right leg. The first opposite party checked up and informed the husband of the complainant that she had a problem because of anaesthesia given to her prior to delivery and it would be alright after medication. Till her discharge on 08.10.2021, the complainant was given IV medicines and tablets for painkilling and for voiding urine. Since she could not void urine in the normal course, a catheter was inserted and a bag was also provided for collecting urine. Because of the urine bag, she was suffering from pain and she could not move her right

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leg and could not walk even a small distance. M.R.I. scan was taken on 01.10.2021 and 04.10.2021. From the M.R.I. report, it could be easily inferred that there was a disc bulge in the portion between L4-L5 and L4-S1 spine levels. The spinal anaesthesia process is applied in the L4-L5 portion prior to the delivery. Because of the wrong application of the injection, the disc bulge between the portions L4-L5 and L5-S1 occurred. This in turn affected the urinary of the complainant and right leg mobilising nervous roots. The complainant was affected with urinary infections and she finds it difficult to void urine. There is a loss of sensation in the right leg and mobility also. Till date, she is not able to squat or sit on the floor. The complainant could not walk normally. She has to drag her right leg while walking. Because of this condition, she finds it difficult even to feed her child. All these difficulties have occurred only because of the wrong and never root application of the anaesthesia injection given to the complainant by the second opposite party. The complainant had been informed by doctors that she could not get back to normalcy even if further treatment was given and it would be dangerous for her if she goes for a normal delivery next time, due to the above said complication. The complainant is just 26 years old and she has lost a good enjoyable life even at this young age because of medical negligence. She would be constrained to spend huge sums of money for her further treatment.

ii. The first opposite party admitted that the complainant was admitted on 26.09.2021 by herself at S.A.M Hospital. The first opposite party examined the patient and advised caesarean after a thorough clinical and pelvic capacity examination indicated CPD II (Cephalo pelvic disc proportion) i.e., a problem in delivering the oversized child. After getting the consent both for spinal anaesthesia and LSCS, a caesarean was done and delivered girl baby by 7:41 p.m. The complainant delivered a female baby with an Apgar score of 8/10 and after 5 minutes the Apgar score was 10/10 with a 3.5 kg weight. The

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complainant and the child were healthy without any complications or complaints. The patient was shifted to the post-operative ward and was carefully monitored with I.V. fluids antibiotics anti-inflammatories, and sedatives. After 24 hours of surgery, a pillow was provided under started oral fluids. On 27.09.2022 one unit of blood was given Catheter was removed. The complainant was treated for post-LSCS care in the SAM hospital till she voluntarily got discharged against medical advice. After getting the Neuro Physician's opinion, an injection of Methylprednisolone was also on the 4th POD given to the complainant. Later, she had a problem with voiding urine, and the catheter was inserted to urinate she was normal and there was good bowel movement. Further, it was informed that still she had weakness in the right leg. This opposite party suggested getting the opinion of a Neuro. The complainant chose by herself on Dr.Syed Ali, M.B.B.S., D.N.B., (Neuro) M.N.A., of Maruti Hospital. The scan was taken to study the lumbosacral spine with a screening of the brain and there was a small posterior disc bulge at the L4-L5 level. Again another (5th POD) MRI scan was taken on 04.10.2021 (8th POD) with contrast. The second opposite party, a qualified Senior Anaesthetist Dr.Sivakumar injected SA Bupivacaine 2ml (0.5%) in the sub-arachnoid space vertebra, and the LSCS procedure was adopted with utmost care. The alleged complaint of numbness in the right leg and unable to walk etc is false. Most cases involving bulging or herniated discs will heal within 2 to 4 months normally and it depends upon the overall health and severity L4 and L5 disc bulge is curable without even surgical intervention. The MRI Scan taken at the instance of a physician revealed that degenerate diseases had set in the spinal column, which was due to the pregnancy (Weight of the fetus in the womb 3.5 kg) and the increased pressure in the abdomen causing pain in the vertebra. No anaesthetics drug, as alleged in the complainant will cause pain or numbness in the right leg. They denied that the complainant could not get back to normalcy. After 20 days, the patient came for Catheter removal and the catheter was

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removed and the patient passed urine. She was able to walk normally and she was referred to Neuro doctor for review. There is no medical negligence as alleged by the complainant.

iii. The second opposite party admitted that Spinal Anaesthesia was given to the complainant on 26.09.2021 at about 7:30 pm by him as per the informed consent for anaesthesia given by the complainant in the presence of the first opposite party in the subarachnoid space of L4-L5. The anaesthetics drug Bupivacaine 2 ml (0.5%) was given in the lumbar region of the complainant. A female baby was delivered. The complainant and the child with a 3.5 kg weight were healthy without any complaints. The first opposite party had taken post- LSCS care in the S.A.M. hospital till her discharge or thereafter. Further, it was informed that the one Dr. Syed Ali of Maruti Hospital had also treated her and the MRI scan reports taken on 01.10.2021 and 04.10.2021, disc Bulging and spinal canal narrowing was noticed due to the degenerative disease changes in the spinal cord during the pregnancy, and the spinal anaesthesia given during the LSCS surgery on 28.09.2021 did not cause any such disc bulge or herniated disk. The disc bulge while pregnant can be even more painful and this condition is common in pregnant women due to their expected weight gain and increased pressure on the spinal cord. The symptoms may not be known, in some cases, during the pregnancy and may surface after the delivery. This can cause permanent neurological deficits. The disc herniation compresses the entire spinal canal including all the nerves. A conservative management followed by emergency surgery may be required in some cases. Most cases involving bulging and herniated discs will heal within 2 to 4 months normally and it depends upon the overall health and severity and L4-L5 disc bulge is curable without even surgical intervention. This opposite party further submitted that the intervertebral discs are composed of 2 essential parts, the annulus fibroses on the outer rim and the nucleus pulposus in the inner portion. However,

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constant axial loading of the spine or weakness of the lower back muscles can cause the inner part to protrude through the outer ring. This can result in different types of slipped discs such as disc bulge or disc herniation, prolapsed disc, or fragmented disk. The slipped disc can cause impingement on the existing nerve Roots. An L4 disc herniation can impinge multiple traversing nerve roots in severe cases. Treatment like exercise relaxation positioning. The second opposite party denied further allegations that the anaesthetics drug injected by him before LSCS surgery resulted in the urinary complaint and nerve root disorder are all the alleged disabilities. Even if any nerve disorder, after delivery, would have been cured once the delivery was over, and after one or 2 months of physical exercise/therapy with oral medicines and pain killers' physical therapy will alleviate the pain of the leg or numbness. The allegations in the complaint that due to the wrong application of spinal anaesthesia, the disc bulge occurred in L4-L5 and L5-S1 are emphatically denied. The second opposite party is a well-qualified senior anaesthetist with richer experience in the field of anaesthesia, over and above 35 years. No anaesthetics drug as alleged in the complaint will cause any such pain or numbness of the leg before and after the LSCS surgery procedure and the minimum dosage of Bupivacaine, anaesthetics drug will not cause such complaints stated in the complaint.

iv. The admitted facts in this case are as follows: The complainant was admitted for delivery in S.A.M. Hospital as advised by the first opposite party on 26.09.2021. She was advised by the first opposite party for a caesarean. She was given spinal anaesthesia on 26.09.2021 at 7:41 PM by the second opposite party and the first opposite party performed LSCS surgery procedure and a little girl baby was born. After delivery, the patient felt weakness in her right leg & loss of sensation. The complainant has filed and marked the discharge summary as Ex.A1. In the MRI scan reports taken on 01.10.2021 and 04.10.2021, disc

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Bulging and spinal canal narrowing were noticed. The MRI scan reports have been filed and marked as Ex.A3 and Ex.A7.

v. The complainant contended that there is a disc bulge in the portion between L4-L5 and L4-S1 spine levels, because of the wrong application of the injection, disc bulge between the portions L4-L5 and L5-S1 has occurred. The opposite parties pleaded that disc bulge is common in pregnant women due to their expected weight gain and increased pressure on the spinal cord. The symptoms may not be known, in some cases, during the pregnancy and may surface after the delivery. This can cause permanent neurological deficits. The disc herniation compresses the entire spinal canal including all the nerves. The intervertebral discs are composed of 2 essential parts, the annulus fibroses on the outer rim and the nucleus pulposus in the inner portion. However, constant axial loading of the spine or weakness of the lower back muscles can cause the inner part to protrude through the outer ring. This can result in different types of slipped discs such as disc bulge or disc herniation, prolapsed disc, or fragmented disk. The slipped disc can cause impingement on the existing nerve Roots. An L4 disc herniation can impinge multiple traversing nerve roots in nerve severe cases. A conservative management followed by emergency surgery may be required in some cases. Most cases involving bulging and herniated discs will heal within 2 to 4 months normally and it depends upon the overall health and severity and L4-L5 disc bulge is curable without even surgical intervention. Treatment like exercise relaxation positioning. The second opposite party denied further allegations that the anaesthetics drug injected by him before LSCS surgery resulted in the urinary complaint and nerve root disorder are all the alleged disabilities. Admittedly, the complainant had a periodical checkup for her pregnancy with the Primary Health Centre, Puthanatham, and the record maintained by the Health Centre has been filed and marked as Ex.A2. It has not been mentioned in Ex.A2 as the complainant suffered from back pain. If at all

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she felt any pain or discomfort she would have informed the doctors who were in the Health Centre. She did not feel any discomfort until the LSCS was performed. Subsequent to the delivery only, she had problems with passing urine, weakness, and loss of sensation in her right leg. Till her discharge on 08.10.2021, the complainant was given IV medicines and tablets for painkilling and a catheter was inserted for voiding urine.

vi. It has been stated in the note prepared in the operation theatre and annexed in the case sheet which has been marked by the opposite parties as Ex.B1 and Ex.B5 that Spinal anaesthesia was administered in the space between L3-4. Contra to this, the opposite parties pleaded and all the records of the hospital stated that anaesthesia was administered between L4-L5. This has proved that the opposite parties were negligent even in writing the note in the operation theatre for the purpose of documentation. Documentation is one of the important duties of the hospital. It is difficult to say where the anaesthetics drug Bupivacaine 2 ml was given in the lumbar region of the complainant. The legal doctrine of 'Res ipsa loquitor' can be applied in this case. It allows courts to infer negligence in certain cases, even without direct evidence of a negligent act.

vii. The opposite parties did not record the prior medical history of the patient having these complications. In conditions like LSCS, it was an elective surgery held in P.D. Hinduja National Hospital and Medical. Research Centre, Dr. Sanjay Agarwala v. Veera. Rohinton Kotwal and Anr. and reported in 2018 (II) CPJ 342. (NC), the elective surgery should be done with diligent care. In such a case, prior medical history cannot be taken as a defence as the complainant had the problems.

viii. Even after the LSCS procedure, if the patient develops complications not due to anaesthesia, the patient has to recover from neural damage caused over a period. In this case, the LSCS was done on 26.09.2021. Even after 3 years of

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surgery, the patient has not recovered from the complications that occurred during the surgery. The Hon'ble National Commission held in the case of Baburao Vithal Lohakpure vs Smt. Suniti Devi Singhania Hospital on 16 August 2007 and reported in II (2008 CPJ 104(NC) that the anaesthetist did not record and maintain the prior history of the patient before surgery is negligence. In this case, there is no pleading or documents to prove the prior medical history of the patient. Recording of prior history is a must for elective surgery to get informed consent.

ix. The second opposite party pleaded that even if any nerve disorder, it would be cured once the delivery was over, and after one or 2 months of physical exercise/therapy with oral medicines and pain killers' physical therapy will alleviate the pain of the leg or numbness. The counsel for the complainant argued that the complications, which occurred at the time of delivery, have not been cured and they continue to date. She is not able to squat or sit on the floor and she cannot walk normally. She has to drag her right leg while walking. Since the complainant has the problem of loss of sensation, urine passes without her senses. Therefore, she has to void urine by using a catheter always because of the loss of sensation. Even after more than three years from the date of surgery, the complainant is suffering from these complications.

x. The learned counsel for the complainant argued that the complications had occurred only because of the wrong nerve root application of the anaesthesia injection given to the complainant by the second opposite party. It is clear that the second opposite party has done his duty in applying the anaesthesia in a negligent manner and the first opposite party has not performed her duty during the surgery and post-operative care to her patient. Therefore, both the opposite parties are responsible for their negligence as far as this complainant is concerned.

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xi. In applying the Bolam test, the Court determined that medical practitioners must exercise a reasonable standard of care, skill, and judgment in their practice. Failure to do so could result in liability for damages due to negligence, thereby allowing patients to seek recourse under the Act. Under those circumstances and records placed before us, we are of the view that the LSCS was not performed in a diligent manner. Maintenance of prior medical history and administration of anaesthesia considering previous conditions of the present forms a vital part of the surgery performed. The opposite parties have committed a deficiency in service due to medical negligence against the complainant. This point is decided accordingly.

8. Point No.3: -

i. As we have answered Point No. 2 in favour of the complainant holding that the opposite parties are guilty of deficiency in service due to medical negligence by administering the spinal anaesthesia in a negligent manner without diligent care to the complainant, the opposite parties are liable to compensate the complainant. As far as the quantum of compensation is concerned, the complainant has prayed this commission to direct the opposite parties to pay Rs.45,00,000/-. It could be understood that the complainant is only 26 years old and she could not even sit, stand, or squat properly she has lost her happiness in the early part of life, and with these complications, she is having. It will be really difficult to bring up her first child. It was heartbreaking for a mother as it was even difficult to feed her newborn baby. It is sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the deficiency in service and negligence of the opposite parties. Once the said conditions are satisfied, the Consumer Commission shall decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable, and commensurate to the loss or injury. There is a duty cast upon this Commission

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to take into account all relevant factors for arriving at the compensation to be paid on the basis of accepted legal principles, and moderation. The first opposite party is liable to pay Rs.10,00,000/- and the second opposite party is liable to pay as compensation Rs.20,00,000/- due to the deficiency in service committed against the complainant and to pay Rs.15,000/- as the cost of this litigation to the complainant. This point is decided accordingly.

In result, the complaint is allowed with cost.

i. The first opposite party is directed to pay the complainant a sum of Rs.10,00,000/- (Rupees ten lakhs only) with interest at the rate of 9% p.a. from the date of filing of this complaint till realization as compensation for deficiency in service due to her medical negligence as well as for the pain, suffering, and mental agony endured and further treatment.

ii. The second opposite party is directed to pay the complainant a sum of Rs.20,00,000/- (Rupees twenty lakhs only) with interest at the rate of 9% p.a. from the date of filing of this complaint till realization as compensation for deficiency in service due to her medical negligence as well as for the pain, suffering, and mental agony endured and further treatment.

iii. The opposite parties are directed to pay jointly or severally to the complainant a sum of Rs.15,000/- (Rupees fifteen thousandonly) towards the cost of the litigation.

The above order shall be complied with within a period of 45 days from the date of this order and failure in compliance with this order would attract interest on the aforesaid sum @ 12% per annum from the date of complaint till the date of payment.

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This order is dictated by the president to the Steno-Typist, transcribed, typed by her and corrected, signed and pronounced by us in open Commission, today on this 22nd day of May' 2025.

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MEMBER I MEMBER I PRESIDENT

1.Complainant side Evidence: Mrs.Sharmila Banu. 2.Opposite Party No.1 side Evidence :Dr.M.Mumtaj. 3.Opposite Party No.2 side Evidence:Dr.G.Sivakumar. List of the documents filed and marked by the Complainant: -

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List of the documents filed and marked by the Opposite Party No.2: -

3 ----- B3 Educational qualifications of the Attested

second opposite party Copy

4 ----- B4 Bupivacaine literature &Disc- Print Out

Bulging in pregnancy Copy

List of the documents filed and marked by the Opposite Party No.1: -

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MEMBER I MEMBER I PRESIDENT