The complainant’s case in a precise form gathered from the petition, W/V and other material in record can be reproduced as herein under.
The complainant lady is pregnant women came to the O.P. nursing home for treatment under O.P. No.3 who is connected with O.P. No.1 & 2. Almost after completion of 40 weeks the complainant came to O.P. No.3 and admitted under O.P. No.1 nursing home. After formal check up the complainant was taken to the O.T. and gave birth of a male child at 5.24 A.M. on 24.12.2015 by way of normal delivery under supervision of O.P. No.3 and other associate of O.P. No.1. Expert of O.P. No.1 completed primary check up and baby was given to his mother i.e. the complainant, to be fed the first mother’s breast milk.
Dr. of O.P. No.1 & 3 assured that the baby was perfect alright.
On 26.2.2015 after final check up both the mother and baby, O.P. No.3 gave her consent to discharge the complainant. So, O.P. No.2 the RMO and O.P. No.1, nursing home after complying all subsisting condition and perusing the report of the complainant discharge the baby on 26.12.2015 signed by O.P. No.1 with RMO seal. The complainant was given medical certificate and medical advice and told her to feed the baby with breast milk. The complainant paid the bill of Rs.4000/- under receipt No.277 dated 26.12.2015.
The mischief incident started from this point that baby was feeling uncomfortable and was crying continuously.
It is to be borne in mind that baby was born on 24.12.2015 at 5.24 AM and baby was given to the mother by discharge on 26.12.2015 i.e. after two days. But when the complainant took the baby away the baby felt uncomfortable with a crying continually. On that day evening i.e. on 26.12.2015 the swollen abdomen was noticed by family member and they contacted Dr. Amitabha Chowdhury on 26.12.2015 at evening. Dr. Chowdhury after clinical examine the new born baby diagnosed ‘imperforate anus’. Dr. Chowdhury in his prescription advised for admission to Burdwan Medical College & Hospital. So, on the same date the mother and husband of the baby went to Burdwan Medical College & Hospital i.e. on 26.12.2015. The said authority told the complainant for treatment in Medical College and Hospital. Finding no alternative the new born baby and her mother and father went to Medical College & Hospital, Kolkata and booked the emergency ticket No.8135 dated 26.12.2015 at 10 PM. The paediatrician examined the baby and referred the patient baby to NRS Hospital on the same day and same night.
Under compelling circumstances, the complainant/mother and her husband with a new born baby went to NRS Hospital, Kolkata and admitted the baby to Paediatric Surgery ward on 26.12.2015 at about 11.21 PM under the supervision of Dr. A. Saha and Dr. D. Ghosh. The said two doctors examined the patient and opined for artificial opening of anus by installation of foreign body for the survival of the baby. The doctors by their opinion adopted temporarily relief. On 17.12.2015 Sigmoid Loop Colostomy was done in NRS Hospital and on same day the baby was discharged with dressing up loop colostomy. Thereafter, said loop colostomy was being done at Sefa Nursing Home at Burdwan with a cost of Rs.8265 per sitting. Deplorable financial condition of the husband of the complainant is passing through hardship because of carelessness of the O.Ps.
From above chronologically date of treatment as per complaint is;
- Date of admission is 24.12.2015 at 4 to 5 P.M.
- Date of discharge on 26.12.2015
- Examination of Dr. Amitava Chowdhury on 26.12.2015 at evening
- Kolkata Medical College ticket at 10 PM on 26.12.2015 and ticket No.8135.
- Admission in NRS Hospital on 26.12.2015 at about 11.21 P.M.
- 27.12.2015 Sigmoid Loop Colostomy was done in NRS Hospital.
From the morning of 24.12.2015 till the morning of 27.12.2015 the complainant moved from O.P.No.1 Nursing Home via Burdwan Medical College & Hospital via Kolkata Medical College to NRS Hospital. The husband and mother of the new born baby was not spared from facing trouble with the new born baby. Hence, the complainant filed this case U/s.12 of the C.P. Act, 1986.
The complainant filed some documents like money receipt dated 26.12.2015 issued by Dhaniakhali Gramin Nursing home, discharge certificate dated 26.12.2015, Prescription of Dr. Amitabha Chowdhury, General emergency ticket issued by Medical College and Hospital on 26.12.2015, Bed Head Ticket issued by NRS Medical College & Hospital, Kolkata, Medical Bill from Sefa Nursing Home dated 12.1.2016, Discharge certificate from NRS Hospital and Birth certificate issued by Dhaniakhali Gramin Panchyat.
The O.P. No.1 & 2 jointly contested this case by filing written version denying all the material allegations as leveled against them. These O.Ps. submit that O.P. No.2 is the RMO of O.P. No.1 nursing home but it is not true that he is responsible for all the activities of the O.P. No.1. The complainant gave birth a male child in the O.P. No.1, Nursing Home at 5.24 A.M. The expert of the O.P. No.1, Nursing Home examined and checked up the newly born baby primarily. It is not known to the O.P. No.2 whether the complainant and her family members enquired anything about the new born baby to the nursing staff of the O.P. No.1 and O.P. No.3 doctor, no body inform or intimate anything about the query of the complainant and her family members. The O.P. No.2 issued discharge certificate and also handed over written medical advice for mother and new born baby. After discharge the complainant along with her new born baby, the complainant and her family member never came to the O.P. No.2 and further that he did not give any advice regarding feeding of breast milk to the complainant because the medicine written in the medical advice was prescribed as per instruction of the treating doctor and treating doctor O.P. No.3 has done all the relevant facts with the new born baby. But admitted fact is that O.P. No.2 issued the certificate to the complainant as per instruction of O.P. No.3, who is gynecologist.
The O.P. No.3 also contested the case by filing written version denying all the material allegations as leveled against her. This O.P. submits that prior to 24.12.2015 the O.P. No.3 never treated or examined the complainant. Under supervision of O.P. No.3 the complainant gave birth a male child at Dhaniakhali Gramin Nursing Home. This O.P. further submits that being refused by the Dhaniakhali Rural Hospital, the complainant contacted with the O.P. No.3 at her chamber. O.P. No.3 checked the complainant and her medical papers and advised for admission at nursing home according to the choice of the husband of the complainant. Accordingly, the husband and family members of the complainant admitted her at O.P. No.1 Nursing Home on 24.12.2015. So, this O.P. being a doctor considering the situation and also considering the duty of a doctor started treatment of the complainant to save the complainant and her baby from any unwanted situation. The complainant gave birth a male child. The O.P. No.3 examined and checked up the new born baby. After delivery and before leave the nursing home the O.P. No.3 informed the husband of the complainant that his baby has been born with low birth weight along with ‘Imperforate anus’ and also advised to visit peadiatric surgery department. On 25.12.2015 the husband of the complainant contacted with O.P. No.3 and informed that for the treatment of the baby he wants to discharge the complainant and her baby on 26.12.2015 and accordingly the complainant was discharged on same day and the O.P. No.3 has issued the discharge certificate on 26.12.2015. Accordingly, the O.P. No.3’s case is that she is not any way connected with the alleged allegation of negligence as raised by the complainant. The contention of O.P. No.3 is that she is a gynecologist not peadiatric expert. The birth defect is the act of the god. So, a man can not responsible for imperforate anus. Accordingly, the O.P. prays for dismissal of the instant complaint.
Both parties field evidence on affidavit. O.P. files questionnaire and complainant gave answer of the questionnaire.
POINTS FOR CONSIDERATION
1. Whether the complainant is a consumer or not ?
2. Whether complainant gave birth a son in the O.P. No.1 nursing home under care of O.P. No.3, where the RMO is O.P. No.2?
3. Whether O.P. No.1 to 3 are negligent in discharging their duties to the complainant and complainant’s new born son?
4. Whether the complainant and her male child are entitled to get compensation from O.P. No.3 for their negligence to the new born baby and his mother?
DECISION WITH REASONS
Point No.1: The complainant was admitted in O.P. No.1 under the supervision of O.P. No.3. It is admitted that complainant paid money for getting service and it is also admitted that O.P. No.1 to 3 gave service to the complainant wherein the complainant gave birth of the child. Accordingly the complainant is a consumer under the C.P. Act, 1986.
Point No.2: It is reflected in the statement of both sides in their petitions as well as in their evidence in chief and their questionnaire and reply that complainant admitted in the nursing home of O.P. No.1 under O.P. No.3 and gave birth a male child at 5.24 A.M. on 24.12.2015 by way of normal delivery under supervision of O.P. No.3 and other associates like OP No.2 & others in the nursing of O.P. No.1. So, this point is go for the complainant.
Point No.3: To prove this point the complainant in his evidence in chief has stated the case in toto. That complainant came to the O.P. No.3 and was under the treatment of O.P. No.3 during pregnancy she had followed all the instructions of O.P. No.3. Later on after passing time she felt labour pain and as per instructions of O.P. No.3 she admitted in the O.P. No.1 nursing home on 24.12.2015. The complainant also stated on oath that on 26.12.2015 after final check up O.P. No.3 discharged her and accordingly O.P. No.2 RMO of O.P. No.1 after complying all diligence and perusing the reports issued discharge certificate on 26.12.2015 duly signed by O.P. No.2 with RMO seal. The complainant also paid Rs.4000/-. After coming home on that date complainant found that the abdomen of the new born baby was swollen then complainant went to Dr. Amitabha Chowdhury’s chamber on 26.12.2015. Then Dr. Chowdhury detected imperforate anus of the new born baby. Dr. Chowdhury prescribed for admission at Burdwan Medical College & Hospital. Burdwan Medical College & Hospital advised for admission of the baby in Medical College & Hospital, Kolkata. The baby was admitted under ticket No.8135 dated 26.12.2015 at 10 P.M. but the medical authority again transfer the baby to NRS Hospital wherein the baby was admitted to peadiatric surgeon on 26.12.2015 at 11.21 PM under supervision of Dr. A.Saha and D. Ghosh. After proper observation on 27.12.2015 Sigmoid Loop Colostomy was done in NRS Hospital and on the same date the baby was discharged and the dressing of the loop colostomy was being done at Sefa Nursing Home at G.T. Road, Burdwan with payment of Rs. 8265/- and since then this is being done. This complainant has replied to the questionnaire of O.P. No.3. In serial No.4 the complainant stated ‘it is only suggested that after delivery, the O.P. No.3 at a time of check up of a new born baby had detected imperforate anus of the baby and advised the husband of the complainant to meet and consult with renowned peadiatric surgeon’. It is further stated by this complainant that nowhere in the discharge certificate there is no mention regarding imperforate anus of the body’.
The Dr. O.P. No.3 in her evidence in chief stated and admitted the fact of admission of the complainant in the nursing home of O.P. No.1. The doctor stated ‘I being a doctor considering the situation started treatment of the complainant to save the complainant and her baby’. On 24.12.2015 the complainant gave birth a male child by way of normal delivery. Dr. also stated she informed the complainant regarding imperforate anus and doctor also stated that she informed the matter to the husband of the complainant. But there is no evidence that the doctor, O.P. No.3 narrated the statement of imperforate anus of the son.
O.P. No.1 & 2 have also filed evidence in chief. They have admitted the case of the complainant. O.P. No.2 frankly said that he does not examine and treated the complainant. But admitted that complainant was admitted in the nursing home on 24.12.2015 and gave birth a male child. The complainant and the baby was discharged on 26.12.2015 and this RMO issued the discharge certificate to the complainant. This O.P. No.2 also stated at page No.3 of last part, ‘as soon as birth defect of new born baby came to the notice of the doctor the doctor verbally informed the complainant and her husband and gave necessary advice to meet with a peadiatric surgeon’. So, the evidence of O.P. No.2 & 3 concurrently support that O.P. No.3 had knowledge regarding the physical condition of the new born baby of the complainant. The O.P. No.2 issued discharge certificate. In the discharge certificate (Annexure-B) which is very clear and show that issuing doctor PW-2 has issued the same. In his evidence it is stated he issued birth certificate as per advice of O.P. No.3. But in her evidence she has knowledge of imperforate anus on the body of the baby. But doctor PW-2 did not mention any condition of the baby in the discharge certificate. In the last portion of the discharge certificate some printed word appears to loose the bowel (if necessary) syrup Laxit plus may be taken three times two spoons. In the discharge certificate only the name of certain medicines laid down and it has also been written that rest for four weeks.
We have gone through this discharge certificate very carefully. But nowhere it appears that this writer (PW-2) did not mention regarding any ill health condition of the baby and more clearly there had been imperforate anus. Perhaps, it will not be out of place to mention that this O.P. No.2, Residential Medical Officer hardly had any time to see the baby. In the written notes of argument and written version these O.P. No.1 & 2 categorically shifted the burden of nursing and treatment on the O.P. No.3, even he did not hesitate to say in his argument (page-2) ‘as because he had not any authority to advise anything without asking O.P. No.3, Doctor’(1st line of page-2 argument) of O.P. No.1 & 2. Again in the argument the O.P. No.1 stated that ‘O.P. No.1 nursing home in no way or manner related with the treatment of the baby of the complainant rather being a medical establishment it provided its OT for proper delivery of the complainant and O.P. No.1 has taken money as charge of establishment against receipt.
Now, we again turn our attention to the poor, helpless, painful complainant and her husband. On that very day i.e. after two days of delivery of child the complainant ran pillar to post to save the life of her new born baby. The complainant went to Dr. Amitabha Chowdhury, then Burdwan Medical College & Hospital then went to Medical College & Hospital (Ticked No.8135, Annexure-D at night 10 on 26.12.2015) and then went to NRS Hospital.
The doctors of peadiatric department in Medical College & Hospital examined the patient and referred to NRS Medical College & Hospital. In the NRS Hospital patient was admitted at 23.21 PM under Dr. Ghosh in peadiatric surgery ward and surgery was done on 27.12.2015 (Sigmoid Loop Colostomy) and the patient was discharged with advice as shown in the ticket. The patient was again advised to attend after two weeks (as appears from the discharge certificate) Annexure-F shows that the baby was treated on 12.1.2016. The others paper filed by the complainant shows that the baby was treated in NRS Medical College and Hospital till 12.5.2017 and 10.8.2018.
So, from the above documents filed by the both sides it is air like clear that complainant has filed this case with clean hand regarding her total case starting from the birth of the child to till date when the baby is under treatment.
It is admitted position that baby was born under the care and protection of O.P. No.3 and O.P. No.2 in the institution of O.P. No.1. The O.P. is a gynecologist. She must have duty to the child and its health as soon as the child takes birth. O.P. No.3 has greater responsibility towards the helpless baby of one or two hour age to be meticulously examined by the O.P. No.3 or by his staff under direct control of O.P. No.3 and O.P. No.2. But this case in our hand, the oral evidence of O.P. No.2 shows the finger towards O.P. No.3 and O.P. No.1 also has taken such plea showing his finger to O.P. No.3. But this cannot be allowed. The O.P. No.1 and the O.P. No.2 of course is liable jointly and O.P. No.3 who did not discharge her duty with due care and attention towards the baby of one hour old, it is expectation of the common man like ours that the operating doctor shall divot his time to the welfare of the mother and baby in a nursing home where the lay man comes for delivery. But we utter surprise after travelling the whole record from starting the morning of 24.12.2015 till 12.9.2017 and on wards it is again and again reflected in the record that the O.P. No.1 to 3 are making work for profit not for service of the common people by taking license of offering service. So, this point goes for the complainant and against the O.Ps.
Point No.4: As per discussion above considering the evidence of both sides and documents of treatment and discharge certificate and discharge certificate of NRS Hospital and considering the nature and circumstances of the act and omission on the part of the O.P. No.3 and O.P. No.2 and also O.P. No.1 we are of strong conviction that the O.P. No.3 did not act with due care and attention to observe the physical condition of the baby after birth and without applying mind the O.Ps. discharge the baby in the care of mother who had just given birth of the baby. The conducts of O.P. No.1 to 3 are full of negligence and want of due care and attention. There is deficiency in service of O.P. No.1 to 3 towards performing duty of the new born baby of the complainant on 24.12.2015 (morning). Accordingly, they must pay compensation.
Now let us fix the quantum of compensation.
The O.P. No.1 is the owner of the nursing home. He is conducting his business. He should be more vigilant in providing service to the people who purchase service by giving money. O.P. No.2 is also RMO who’s duty is supervise the child but he did not discharge his duty. He is doing the work of issuing discharge certificate without knowing the subject matter, although he attributes all the responsibility of the O.P. No.3. But he cannot get rid of his responsibility in a service hospital. The O.P. No.3 is the main person on whose total responsibility is concentrate.
Due to the negligent work of O.P. No.1 to 3 that very unfortunate baby and his mother and his father had to sacrifice, great sufferings from the date of birth of that unfortunate child till unknown date. The father and mother and that baby had to suffer not only physical pain but also mental pain and sufferings, coupled with financial sufferings and the negligent act of the O.P. No.1 to 3. This Forum after giving deliberation of pros and cons of the financial condition reflected in the record and considering the future of the baby is of strong conviction that the O.P. No.1 to 3 should give adequate compensation of Rs.19,00,000/- and this sum will be kept in a bank in FD. The interest which will be given by the bank shall be used for the welfare of the baby and for treatment. Hence, it is
ORDERED
that the complaint case being No. C.C. 15/2016 be and the same is allowed on contest against the Opposite Parties with a litigation cost of Rs.75,000/-.
That Opposite Party No.1, 2 & 3 are found guilty for not performing duty towards new born baby and towards the mother of the baby. The Opposite Party No.1, 2 & 3 are directed to pay jointly or severally a sum of Rs.19,00,000/- as compensation to Marzina Bibi, the mother of the baby for the future prospect of the ill fated baby.
All the payments are to be made within 45 days from the date of passing this order.
In the event of failure to comply the order the OPs are directed to pay cost @ Rs.50/- for each days delay.
