Expert Opinion by Dr. J.

Shankar

PAGE NO-1
Fact No.1: Dr. Bannale Shakuntala has voluntarily and honestly documented "Baby not 'cried
after birth" and sent for neonatal care/ consultation, dated 13-11-2002.
Fact No.2: Dr. H. Veerabhadrappa & Dr. N.G. Gachinamani at Neonatal Intensive care unit
have diagnosed Birth Asphyxiapaediatricians), dated 14-11-2002) (Both
Fact No.3: Dr. Gachinamani authentically opines/diagnoses Birth Asphyxia with cerebral
palsy and Infantile colic, (17-01-03)
PAGE NO.2
Fact No.4: Dr. Sulochana, Professor of Pediatrics finds Neurological deficity, delayed mile
stones and refers baby to Dr. Swarna Rekha (09-04-03). She again re-affirms cerebral palsy.
Fact No.5: Dr. Swarna Rekha documents miid spasticity and Myoclonic Jerks suggesting
cerebral palsy due to Birth asphyxia.) (Dt:30-05-03) Baby is referred to Physiotherapy,
occupational therapy and speech therapy & suggests help of Karnataka Spastic Society.
Fact No.7: Dr. Rajendra Duggani, Neurologist agrees "cerebral palsy with seizure disorder" as a
sequelae to Birth asphyxia and asks for MRI scan (Dt:26-05-2006).)
PAGE NO.3
Fact No.10: Neurologist attributes MRI findings to Perinatal Birth injury (dt:27-04-07)

Cross Examination by Sri. A.S. Chinde Advocate for O.P.

Page 2, Para 1: The common cause for Cerebral palsy is birth asphyxia.I disagree to the
suggestion baby developed infection in the womb of the mother which is resulted in the aspixia
because if that was so. again it is the responsibility of Doctor Banale attending the delivery to
take care of same before delivery in the womb. Witness volunteers that no documented proof of
investigation was done to prove this before delivery as the patient was under the care of Doctor
for one month before delivery.
Page 3, Para 1: I agree with the author of Ex.P.141 at page No.4 that in many cases the cause of
CP is to be found during pregnancy rather than during the birth, Witness volunteers provided
relevant investigation like ultrasound had been done before birth.According to me scanning is to
be done all pregnant women during ninth month in indicated cases.
Page 3, Para 2: If cerebral palsy is due to birth asipexia. L.SC.S operation can definitely
prevent it
Page 3, Para 3: According to me in this instance, the most probable cause for birth aspixia is
delayed delivery in second stage.

SUPPORTING EVIDENCE IN MEDICAL LITERATURE BY DR.J SHANKAR

Recent advances in Obstetrics & Gynecology Ed John Bonnar No 17, 1992.

(Ref.1: Cerebral palsy, Epilepsy, Speech disorder are linked to Perinatal Brain injury (Page
3 Para 2)- A number of neurological impairments have been linked to perinatal brain injury; the
list includes cerebral palsy (CP), mental handicap, sensorineural/ hearing loss, vision defects,
epilepsy, speech and language disordere hydrocephalus, and minimal brain dysfunction (MBD).
(Ref.2: Most Familiar Form of cerebral palsy are spastic and athetoid type (Page 3, para
4)-The most familiar forms of CP are the spastic and athetoid types, characterized by increased
muscle tone and unwanted writhing movements respectively. Nomenclature is complicated by
the use by some authors of the term CP to describe other movement disorders, notably ataxia and
hypotonia. Children with these problems often have different distribution of other associated
impairments and the pathogenesis is different from that of the spastic and athetoid types.
(Ref.3: Cerebral palsy (CP) is Most likely adverse outcome of Asphyxia (Page 6 para 2)-
Nelson & Ellenberg (1981) followed the progress of 99 infants with low Apgar scores. Eighty
were normal, and 12 had cerebral palsy, of whom 11 were mentally handicapped. In this study, 5
children had mild or moderate learning problems, a proportion that did not differ from the
incidence in the contro! population. These observations suggests that CP is the most likely
adverse outcome of significant asphyxial and that asphyxial damage is an all-or-none
phenomenon. Apgar scores provide a useful clinical means of documenting an infant's clinical
condition at birth.
(Ref.4: Best Indicator of asphyxia appears to be state of Infant during first few days of life.(
Page 6 para 5)- The best indicatorof clinically significant asphyxia appears to be the state of the
infant during the first few days of life (Nelson 1988a). Asphyxial injury leads to a characteristic
series of neurological signs, which have been called asphyxial or hypoxic-ischaemic
encephalopathy (HIE).
(eg. Dr. Gachhinamani has clearly recorded cerebral palsy with Birth asphyxia in First few days
of baby's life.)Fact No.3:Dr. Gachinamani authentically opines/diagnoses Birth Asphyxia with
cerebral palsy and Infantile colic, (17-01-03)Recorded in Expert Opinion

Ref.5: CT Scan/MRI Findings described in Birth Asphyxia / Hypoxic Ischemic

encephalopathy (HIE) are noted (Page 12, para 2-4)- Skull fractures are rare and in most
cases the infant's progress is good,.unless there has also been injury to the brain. The fracture is
often attributed to a forceps delivery, but the association is not so obvious as might appear;
fractures can occur in infants born by spontaneous vaginal delivery without instrumental
assistance, suggesting that other factors such as pressure on the maternal pelvic brim might be
responsible (Levene et al 1988)

PAGE NO 12, PARA NO. 3-Intracranial haemorrhage can be identified by CT scan.

Subarachnoid haemorrhage (SAH), either focal or diffuse, occurs most commonly. Focal SAH
tends to be associated with cerebral infarction while diffuse SAH occurs with either traumatic
delivery or severe HIE, and causesseizures on the first day of life. Many infants with
intraventricular and cerebellar haemorrhage have a history of traumatic delivery. Haemorrhage
into the
PAGE NO 12, PARA NO. 4-cerebral hemispheres often occurs without any obvious risk factors
(Fenichel et al 1984). Cerebral infarction is defined as a disorganization and often a complete
disruption of the grey and white matter architecture by embolic, thrombotic or ischaemic events.
Neonatal strokes with discrete areas of infarction have been reported more commonly in full-
term than in preterm infants.

SUPPORTING EVIDENCE IN MEDICAL LITERATURE BY COMPLAINANT

Detecting and Treating Newborn Asphyxia- Maternal & Neonatal Health

Detecting and Treating Newborn Asphyxia, https://pdf.usaid.gov/pdf_docs/Pnacy993.pdf

Page No 1, Para 2- Often caused by health conditions in the mother or complications during
labor or childbirth, newborn asphyxia is treatable if women and their newborns receive skilled
healthcare during labor and childbirth. Basic, effective resuscitation can save the majority of
newborns who develop asphyxia.
Detecting Birth Asphyxia: The Role of the Skilled Provider- Page 1
Skilled providers can use simple techniques to monitor labor and evaluate the health of the
woman and the newborn before, during and after the birth.
Using a partograph can significantly decrease the likelihood of prolonged labor and other
complications that can lead to newborn asphyxia.
Page No. 2
As part of the process of monitoring labor, providers should monitor and record the fetal heart
rate. Monitoring the fetal heart rate, especially during the Second stage of labor, can help
diagnose fetal distress and signal the need for intrapartum intervention or postpartum
resuscitation of the newborn. A fetal heart rate that is very slow or very rapid suggests that the
fetus is in distress and may need further intervention.
2)
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT
GULBARGA:
C.C.No.124/2007
Date of filing: 13/07/2007
Date of disposal: 25/11/2010
COMPLAINANT:Smt. Anita W/o Dr. Veeresh,
1)Whetherthe complaint filed by the complainant-mother in respect of injury caused to the health
of her new born baby at the time of delivery due the alleged medical negligence or deficiency of
service on the part of the OP is maintainable?Page No 12, Question 2
When the new born baby of the complainant has suffered injury at the time of delivery of the
complainant, because of the alleged negligence of the OP, the complainant-mother can very well
maintain the complaint against the OP, particularly when her new born baby has become disabled
and mentally retarded. Hence, we answer Point No:1 in the Afirmative"- Page No. 15- 1stline
2)Whether the complainant has proved that there is medical negligence or deficiency of service
on the part of the OP at the time of delivery of the complainant, which has resulted in causing
injury to the health of her new born baby?- Page No 12, Question 2
Therefore, we are of the opinion that, the OP, who is running a hospital has been found to be
deficient with regard to the maintenance of proper records. Therefore, in the absence of such best
possible documentary evidence, the contention of the OP that, it was a normal vaginal delivery
and that she had taken all due care and caution, in conducting the delivery personally and none of
the complications stated by the complainant have occurred at the time of delivery and the birth
asphyxia was prenatal one as there was malformation and there was no proper growth of the
brain of the baby in the womb itself cannot be accepted. Page 48, 12thline
Therefore, we are of opinion that, the OP has defaulted in exercising an ordinary degree of
profession al s kill, so there is negligence and deficiency of service on her part, which has
resulted in irreparable injury to the baby of the complainant- page number 55, 1st line
Therefore, taking into consideration from any angle, we are of the opinion that, the complainant
has proved that, there is deficiency in service and negligence on the part of the OP in treating her
before the delivery as well as at the time of delivery, which has resulted in damage caused to the
health of the baby of the complainant. Hence, we answer Point No:2 in the Affirmative.- page
number 55, 15th line
Though, we have recorded finding on Point No:2 in the Affirmative, holding that, the
complainant has proved the medical negligence or the deficiency of service on the part of the OP.
But, un fortunately, in the light of the finding on Point No:3 the complaint is liable to be
dismissed as barred by limitation. So, the question of assessing the quantum of compensation
does not arise. Accordingly, we proceed to pass the following: page number 60, 1st Para, 27th
point

STATE COMMISSION
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESAL COMMISSION,
BANGALORE.
Filed on: 04.01.2011
Disposed on: 26.0 2013
26/04/2013
Appeal No. 100/2011
Anita, W/O Dr. Veeresh – Complainant
3. Whether the DF is justified in holding that the respondent/OP are negligent in providing
treatment to the appellant while she admitted for delivery? If so, what order? - Page No.193, 3 rd
Question
They came to know about the deficiency of service i.e., medical negligence after obtaining MRI
report as per the advise of Dr. Rajendra Dugani. Therefore, the plain reading of the decision of
Hon'ble Supreme Court in the case of V.N.Shrikande, the appellant/complainant discovers the
harm, injury caused due to medical negligence/act of the Doctor. The discovery rule was evolved
by Courts in United States because it was found that the claim lodged by the complainant in
cases involving acts of medical negligence were getting defeated by strict adherence to statutes
of limitation. Therefore, taking into consideration the strict rules of procedural law in deciding
the matters falls within the ambit of C.P Act is dismissed. Therefore, in our considered opinion,
the DF has erroneously come to the conclusion holding that the complaint filed by the
appellant/complainant is barred by limitation which is liable to be dismissed. Page no 203, 13th
line
An observation was made by the DF at page-45 of its order which clearly indicates that the
respondent/Of was negligent in taking proper care and precautions, the respondent/Of might
have allowed the appellant in the labour room so that the other staff like nurses may take care of
the appellant which amounts to a deficiency of service. Page no 208, 19th line
Therefore, the DF rightly observed that because of the negligence on the part of respondent/OP,
the baby was removed with force at the time of delivery and she suffered birth asphyxia/ cerebral
palsy, for which the appellant as well as her husband compelled to take private treatment from
various hospitals at Gulbarga, Bellary, Bangalore and Mumbai, consequently they might have
spent huge sum to save their baby. Page no 209, 1st line

ORDER- Page 211

Appeal is allowed in part. The order of dismissal passed by the District Consumer Forum,
Gulbarga dated 25.11.2010 in Complaint No. 124/2007 is hereby set aside.

The complaint filed by the appellant/ complainant is allowed in

part. The respondent/Or is directed to pay a sum of Rs.8,00,000/- as compensation together with
interest at 6% p.a from the date of filing of the complaint till its realization. The
appellant/complainant is also entitled for a sum of Rs.2,00,000/- towards the medical expenses
incurred for the treatment of the female child. The appellant as well as her husband are entitled
compensation of Rs.1,00,000/- for mental agony suffered by them. Further respondent/OP is
directed to pay the litigation expenses of Rs. 10,000/-. The respondent/OP is directed to comply
the order within 30 days from the date of receipt of this order.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2813 OF 2013 (Against the order dated 26.04.2013 in First Appeal
No. 100/2011 of the State Consumer Disputes Redressal Commission, Karnataka, Bangalore)
WITH
IA/4832/2013
IA/6584/2013
IA/2190/2014

Dr. (Mrs.) Shakuntala BanaleGynaecologist-Petitioner

Smt. Anita W/o Dr. Veeresh- Respondent
8)It is pertinent to decide whether the child suffered birth asphyxia? The OP during her cross
examination before the District Forum submitted that in the month of November, 2002 there
were four trainee doctors working under her, one was M.B.B.S. and one was B.H.M.S., and two
were B.A.M.S. The OP also accepted that, if a doctor attending the patient in the labour room
does not handle the patient properly, it may lead to various damages to the baby in case of
vaginal delivery. In the instant case, it is doubtful that who had conducted delivery and who
monitored the Fetal heart sounds. It was an admitted fact that, child did not cry after birth,
certainly it suffered birth asphyxia. Page No.5, Para 2, 8thpoint

The medical literature on birth asphyxia, also explains, the cause ofcorpus callosal hypogenesis
and encephalomalasia occur due to birth asphyxia. Page No.5, Last Para

10)We also cannot ignore the evidence/opinion of PW-3, Dr.J.Shankar, Professor in OBG of
Vijayanagar Institute of Medical Sciences (VIMS) at Bellary that, the birth asphyxia in that baby
was perinatal. His opinion Ex.P. 138, is based on medical book of recent advances in OBG by
John Bonnear. Therefore, we do not accept the objection raised by the counsel for OP that, PW-3
was an interested expert witness, as he was complainant's friend working in VIMS. The OP was
given liberty for cross examination of PW-3, it was not done. Even the OP has not produced any
expert evidence to counter the opinion of PW-3, but at belated stage OP made vain attempt to
call Dr. Girish Kamthekar from Solapur as an expert witness)Page No.6, 1st Para, 10th Point
14) The Discovery Rule serves an important purpose in protecting patientswho are victims of
medical negligence. The discovery rule creates an exception so that, the statute of limitations
does not begin to run until the patient discovers the injuries resulting from the alleged
negligence. The rule is particularly important in medical negligence cases because the patient
often will not discover the negligence or injuries until years after the act of negligence. In this
instant case, the complainant was suffering from the time of birth of her child and subsequently
noticed defects during developmental stage. The complaint was filed after 5 years, but it was a
continuous cause of action; hence we are of considered view that, it will be just and proper to
award compensation from the date on which child was born i.e. from the time of deficiency
committed by OP. Page No 8, point 14, 2nd para.