Advise for abortion

Advise for abortion

REVISION PETITION NO. 2398-2399 OF 2018 DAKSH HOSPITAL & ANR.  Versus MANJU SAINI & ANR pronounced by the Hon’ble National Consumer Disputes Redressal Commission on  18 March, 2020        

"Pregnancy isn't always easy, but, just knowing your baby is growing inside of you is one of the most rewarding experience a woman can enjoy. Life's biggest miracle is the gift of having life growing inside of you.  Moreover, any woman who has felt a baby stir inside her and any man, who has seen the tiny heart pulsating on an ultrasound screen, know that abortion is about ending a life."

FACTS:On 04.07.2011 Smt. Manju Saini approached Dr. Monika Gupta, Gynecologist at Daksh Hospital. After examination, the Urine Pregnancy Test (UPT) was positive and Ultrasonography (USG) was performed at OP-1 Hospital. It was alleged that, USG was reported as the fetus was dead. There was danger to patient's health also. The OP-2 gave advice to undergo Dilatation and Curettage procedure (D&C), but the complainant denied for the D&C. Therefore, for aborting the fetus OP-2 gave medicines (tablets).  The complainant was under fear and stress due to advice of OP-2, therefore for her further treatment she got admitted in Rajkia Mahila Hospital at Alwar. Again on 05.07.2011, USG was got done at Cure well Diagnostic Centre and reported as healthy fetus of 6 weeks 2 days. The complainant got scared   because of the error made by OP-2 and under apprehesion that if she   continued the medicines for aborting the child she might have suffered more serious problems. She would have lost her life as well as the fetus.  Thereafter, she continued her pregnancy and gave birth to a healthy male child on 18.02.2012. Being suffered by physical and mental agony due to the careless duty of OP-2, the complainant filed a consumer complaint before the District Forum, Alwar, for seeking compensation of Rs. 75,000/- along with Rs. 10,000/- as cost of litigation. The District Forum on hearing the parties, allowed the complaint and directed the OPs to pay Rs. 75,000/- alongwith cost of litigation of Rs. 5,000/- within one month failing which the entire amount of Rs. 80,000/- shall carry interest @ 9% per annum thereafter.    Being aggrieved, the OPs-1 & 2 filed first appeal no. 87/2017 and the United India Insurance Co. (OP-3) filed first appeal no. 103/2017 before the State Commission Rajasthan at Jaipur.   The State Commission dismissed the appeal filed by the hospital and doctor, whereas allowed the appeal of the insurance co and the claim against the insurance co. was set aside.

FINDINGS: The prescription of the OP-1 hospital dated 04.07.2011 revealed that 22 years patient - primi-gravida with history of two month's pregnancy and occasional bleeding PV.  The UPT was positive. The USG done at OP-1 hospital revealed the gestational age 5 week 6 days and reported as "products in uterine cavity". The OP-1 suggested  D & C procedure for evacuation of products but not opted  by the patient, therefore   OP-1 prescribed  medicines  namely Tab  Anofer SP10 tablets and Prestakind 200 mg  4 tablets.  We further note the patient on next day (05.07.2011), got done another ultrasound at Cure Well Diagnostic Centre on advice of Dr. Uttara Aggarwal for fetal well-being. It was reported as Embryonic heart is positive, " single live uterine pregnancy of 6 weeks 2 days size". The USG was performed by qualified radiologist.   In our view, it was glaring failure of duty of care and negligence on the part of the OP-2 who merely on the symptoms of bleeding PV concluded that it was a case of miscarriage. Moreover, the USG report performed at OP-1 is unsigned and whether it was done by qualified radiologist. The report is devoid of findings of fetal heart and stated to be 5 weeks 6 days of pregnancy. In our view, directly advising D&C  to  the patient  is the failure of duty of care on the part of the OP-2.   We further note that the OP-2 advised 4 tablets of  Prestakind 200mg for abortion of the fetus.   On the next day only,  2nd USG   was done at Curewell Diagnostics, it was performed by a qualified Radiologist Dr. Rajesh Chandak  who confirmed a single live uterine pregnancy. We note the complainant was 22 years and primi gravida i.e. first pregnancy. The treating doctor OP-2 should be more  careful and cautious to decide D & C. In our view, advising either D&C or  abortifacient   drug Prestakind was unwarranted to the primi.  Certainly such advise creates a fear and agony in the mind of primi having a precious pregnancy.  We have gone through the Pharmacology and the drug literature on Tab. Prestakind 200 mg.  The OP-2 prescribed Tab. Anofer SP (elemental iron, folic acid, cyanocobalamin and zinc) used for anemia. The drug Prestakind Tablet is a Misoprostol - an abortifacient is used for pregnancy termination and legal abortion. The drug Misoprostol is likely to harm an unborn baby, can cause birth defects and premature birth. The drug can also harm the pregnant woman, causing uterine rupture, uterine bleeding, miscarriage, or an incomplete miscarriage.   Despite the fear the patient continued her pregnancy and delivered healthy baby on 18.02.2012. In the instant case admittedly from the hospital pharmacy the patient purchased the Tab. Anofer SP and   Prestakind four tablets on the advice of OP-2. However, the complainant is silent on whether she has consumed those tablets or not. In our considered view the advice of D & C and prescribing Prestakind certainly a cause of mental agony to the primi- gravida. 

HELD:      Based on the foregoing discussion and in the obtaining facts, in our considered view, it was not an error of judgment, but it was failure of duty of care, negligence per se.   We find no misappreciation of evidence, or jurisdictional error, or a legal principle ignored, or miscarriage of justice, in the impugned Order of the State Commission. The Order dated 15.05.2018 of the State Commission is affirmed. The Award made by the State Commission is confirmed. The revision petition is dismissed.