Passed by Shri Atul D. Alsi, Hon’ble President
1. The complainants have filed complaint case in respect of medical negligence for the treatment of deceased -Afsana Parveen and thereby claiming compensation of Rs. 17,00,000/- for mental torture along with interest and cost of litigation.
2. The story in short is as under,
i. The complainant No. 1 is father and complainant No. 2 is mother and complainant Nos. 3 & 4 are twin new born babies through their guardians have filed the present complaint case against the O.P.- Daga Memorial Government Hospital, Nagpur having 500 beds with qualified doctors and equipments. Deceased - Afsana Parveen was under treatment in the hospital of O.P.No. 1 for delivery of her twin child from 12/10/2017. Her tests were done from time to time and she was taking all the prescribed medicines regularly. As per Sonography Report dated 20/01/2018 it was revealed that she was bearing twin babies. It further revealed in her test that she was HIV positive and however, she was prescribed medicines and was assured of safe delivery of the babies. Due to severe pain in her abdomen, she was brought at Daga Hospital with O.P. for treatment and on 03/03/2018 she gave birth to the twin child. After delivery, the deceased continued with unbearable pain and excessive bleeding and her health condition became serious. The Placenta was not removed in the body of deceased for considerable period of time and her condition became critical due to non handling of patient by the O.P. staff and nurses properly , the deceased Afsana Parveen was died.
ii. The O.P. has never assigned the reasons of death nor submitted the medical papers to the complainant. The complainant could obtain the papers through Right to Information Act. Inquiry Committee dated 15/03/2018 constituted for the reason of death of Afsana Parveen has given clean chit to the doctor, staff and administration without going in to details of Inquiry and the statements of staff and doctors. The Committee falsely stated that there is no excessive bleeding after delivery which is contrary to the medical record provided by the Hospital itself. If the O.P. doctor had given standard medical care and treatment the life of Afsana Parveen could have been saved. All possible care was not taken. Therefore, for the professional misconduct of doctor of government hospital the O.P. liable to pay compensation for medical negligence. The omission to take precaution constituted medical negligence on the part of the O.P. The complainant further submitted that the deceased - Afsana Parveen was declared as HIV positive, hence, for that the O.P. has not prescribed life saving medicines and failed to remove the placenta which needed to be removed which resulted into death of Afsana Parveen. The cause of action arose on 03/03/2018 when Afsana Parveen was admitted for delivery of twin child and for the negligence, the O.P. is liable to pay compensation as prayed.
3. The O.P. submitted the reply and denied all the allegations and further submitted that the complainant is not a Consumer for the services rendered by the O.P. as the government hospital under the Consumer Protection Act, 2019. The complainants failed to visper about the negligence on the part of the O.P. The allegations leveled in the complaint are baseless, false and without any support of evidence. As per medical papers filed on record by the complainant itself shows that there is no negligence on the part of the O.P. while treating deceased - Afsana Parveen. The O.P. has submitted that in normal delivery some pain is expected and medical papers filed by the complainant itself shows that there is some pain and not excessive pain. As per medical papers there is no bleeding after delivery till the death of deceased. The placenta was not expelled automatically even after using all methods then the operation was suggested and the O.P. has after using all methods for automatic expulsion of placenta, prepared for operation and for that blood was also arranged by sending blood requisition form. Therefore, O.P. has taken all care to save the patient, however, since deceased - Afsana Parveen is HIV patient and in such type of patients resistance power is always low which leads to sudden death due to cardiac arrest, therefore, there is not fault in the treatment and medical services on the part of the O.P. Therefore, the complaint is liable to be dismissed with cost.
4. The counsel for the complainant argued that for category of O.P. hospital it is submitted that Daga Hospital rendered services on payment of charges as well as free of charges. In case of Indian Medical Associations Vs. V.P. Shantha and others 1996 AIR 550, Supreme Court of India held that the definition of service under the Consumer Protection Act, has to be understood on broad parameters and it cannot exclude service rendered by medical practitioner free of charges. The service rendered by government hospital and services rendered on payment of charges with free of charge would fall within the definition of service under the Consumer Protection Act. The negligence is clear as per the doctrine of Res Ipsa Loquitur. As per the judgment passed by the Hon’ble Supreme Court in Krishnarao Vs. Nikhil Super Specialty Hospital, (2010)5 SCC 513 to arrive at medical negligence the standard of care has not been taken by the O.P. doctor. As per rule led down in Bolam Test must be followed when the negligence is evident, no expert opinion of other doctor is necessary. Therefore, the O.P. is liable for compensate to the complainant.
5. The counsel for the O.P. argued that the present complaint is not tenable as the service rendered by the O.P.-Government hospital is not covered under the Consumer Protection Act-2019. The present complaint is filed by the complainants is based on false and misleading facts and circumstances, therefore, liable to be dismissed with cost. There is no evidence, of expert doctor in respect of medical negligence. The O.P. has given all requisite treatment and proper care in treating to deceased - Afsana Parveen. The deceased was HIV patient and such types of patients have less resistance power; therefore, it leads to sudden death. There is no fault in treatment of O.P. The record shows that the O.P. had given continues treatment and tried is level best . Therefore, there is no negligence on the part of the O.P.
REASONING
6. The complainants have filed the present case of medical negligence against the O.P.-Government Hospital but has failed to file any evidence of payment of full charges for the treatment given to the deceased for delivery of two children when the services are rendered free of cost by the Government Hospital. In that case the services rendered by the Government Hospital does not come under the definition of the services under the Consumer Protection Act,2019. Therefore, the complainant is not a consumer within the meaning of the definition under the Consumer Protection Act, 2019 and hence, the complainant has no jurisdiction to invoke the jurisdiction of the Consumer Commission under the Consumer Protection Act. The complainants certainly has right to agitated the claim of damages before Competent Civil Court or any other Competent Authority to reiterate the grievance for that the pendency of the present complaint case is not barred for admission of the case before the competent jurisdiction of Court. Therefore, the complainant case is dismissed for want of jurisdiction with liberty to file fresh with appropriate Court or before Authority as per following order.
ORDER
i. Complaint Case No. CC/18/592 is dismissed with liberty to file fresh on
same cause of action before Competent Court of jurisdiction and for that
purpose the period of pendency of case before the Commission shall not
be hurdle for the period of limitation.
ii. No order as to costs.
iii. Copy of order be furnished to both the parties, free of cost.
