This complaint coming up before us for final hearing on 18-06-14 in the presence of Sri B.B. Das, advocate for complainants and of Sri N. Vijaya Baskar, advocate for OP1; Sri N. Kiran Bhanu, advocate for OP2 and OP3 remained absent and set exparte, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri A. Hazarath Rao, President:-       This complaint was filed under section 12 of Consumer Protection Act, 1986 by the complainants claiming sum of Rs.5,00,000/- towards compensation for mental agony, pain and suffering and legal expenses of Rs.5000/-  from opposite parties on the ground of medical negligence/professional negligence committed by them in respect of child delivery.

 2.   The brief facts of the case are that :

          A. The complainants are the husband and wife residents of Khaza Village, Mangalagiri Mandal, Guntur District.  In due course of their marital life they begot a female child by name Tadiboyina Deepika, who is now 1½ years.  Subsequently, the 2^nd complainant Siva Parvathi got pregnancy and used to visit Government General Hospital, Guntur for regular checkup.  The opposite parties were providing medical care in the course of treatment.  She was admitted in labour ward in room No.10 vide OP No.721609 under the supervision of 1^st opposite party for the purpose of delivery.  Both opposite parties started treatment to 2^nd complainant, as they diagnosed and found it as breech delivery.  The 1^st opposite party also noted it in antenatal follow up sheet.  Subsequently, the 1^st complainant admitted the 2^nd complainant in labour room as per the advice of doctors from the period 21-07-06 to                      06-08-06.  After thorough examination and testing, the opposite parties 1 and 2 have suggested the complainants that an operation is just and compulsory or else, there would be risk for the infant.  The opposite parties 1 and 2 also demanded Rs.2000/- for conducting operation on 07-08-06 at about 9 am.  As the complainants are poor and eking out their livelihood by doing cooli work expressed their inability to meet the demand of opposite parties 1 and 2.  Thus they are having knowledge about nature of pregnancy and delivery of 2^nd complainant.

B.      That on 07-08-06, the 2^nd complainant got frequent pains but she was neglected to provide any medical care by the opposite parties 1 and 2.  On the same day at about 8.45 am, it was also informed to 1^st opposite party who is the Chief and Head of the Department of Obstetrics and Gynecology.  Thereafter the 2^nd complainant was sent to operation theatre from labour room on the directions of 1^st opposite party to 2^nd opposite party to take care of the same.  But the 2^nd opposite party who is Assistant Professor and Gynecologist incharge at that time neglected  2^nd complainant to her fate without attending on her and failed to discharge her legitimate duty.  The 2^nd complainant gave birth to a male child at about 11.15 am on the same day i.e., on 07-08-06.  After delivery the baby was alive moving limbs and raised cries.   Even at that time also the opposite parties 1 and 2 have not taken sufficient care for survival of child.   Due to their carelessness and negligence in not attending the child died at about 3.20 pm.  This is all happen due to negligence in not providing medical care to the mother and child having sufficient knowledge about nature of pregnancy and type of delivery of child.  After the death of child the  2^nd complainant was shifted to MLC ward where PTS attendar also deposed and admitted in writing in case sheet that the death of child was caused due to negligent act of doctors.  The opposite parties 1 and 2 have forcibly obtained in writing from 1^st complainant that the death of child was natural but not otherwise.  Whereas incharge Superintendent, Government General Hospital, Guntur managed all medical authorities and concocted documents in order to save the opposite parties 1 and 2.  He also managed the police not to take any action against opposite parties 1 and 2.  He did not take any action against opposite parties 1 and 2 for the negligence act committed by them.  Due to negligence and careless act of opposite parties 1 and 2, the complainants have lost their male child and suffered lot physically, mentally and financially. It cannot be compensated in terms of money.  This incident was also published in Telugu leading news papers on 08-08-06.  Thus there is deficiency of service by all the opposite parties herein.  Hence, the complaint.

3.      The 1^st opposite party who is the Head of Obstetrics and Gynecology in Government General Hospital, Guntur has filed its version stating that the 2^nd complainant was admitted in Antenatal Ward of Unit I of Department of Obstetrics and Gynecology on 21-07-06.  It was stated that she came for delivery and she is second gravida with previous history of uncomplicated normal vaginal delivery in private hospital at Guntur.  Earlier she gave birth to a female child of 3 kg weight normally, as per the history revealed.  After she joined the hospital, on examinations and conducting tests, expected delivery was on 07-08-06 but the 2^nd complainant requested concerned Assistant Professor looking after the Antenatal Ward to discharge her in the last week of July but she was counseled as it is a case of mal-presentation and she may have problems like cord prolapse and it may take some time to come to Government General Hospital from her village and she may require an operative delivery, if necessary.  Then she agreed to stay back and all the relevant investigations were carried out.  As a matter of fact, this opposite party in the course of taking classes to final year MBBS students also discussed about this case.  The 2^nd complainant being a second gravida and as there is good amount of liquor AFI : 14 and the estimated Wright of baby was 3.25 kg. plus or minus of 0.25 kg., it was decided that the route of delivery can be decided on the expected date of delivery or at the onset of labour pains.

          B.      As per the system in the Government General Hospital, Guntur antenatal patients will be shifted to labour rooms when she is expected to deliver and as she complained pains to Dr.Sandhya and that she was having pains since 4 am on 07-08-06 she was asked to go to labour room immediately and as a matter of fact she was reprimanded for not going to labour room though she was having pains since four hours and the Assistant Professor of Obstetrics and Gynecology was also informed of the same by Dr.Sandhya.  On 07-08-06 at about 9.45 am the Antenatal Ward Assistant examined her and found out that the uterus was contracting well and on pelvic examination, cervix is 4 cm. dilated and the presenting part, breech was at ‘O’ station Pelvis was found to be gynaecoid and adequate for vaginal delivery.  Dr.Sandya informed this opposite party about findings, when he was with Dr.Venugopala Rao, who is the Professor and Head of the Department of Anesthesia, with whom he was discussing regarding the arrangements in the make shift gynic operation theatre and he instructed for a short trail and if necessary perform LSCS and the patient was shifted to labour room accordingly.  The case was received by Dr.Suguna (2^nd opposite party) in the labour room at about 10 am and it appears she found on examination that the cervix was 4-5 cms. dilated and clear liquor was draining.  The woman progressed very fast and delivered vaginally at about 11.10 am a live male baby of 3.8 kg. with cord round the neck once with Apgar 2-4-6.  It appears that there was some difficulty in delivery after coming head and necessary resuscitation was done after delivery of the baby.  The delivery was attended by Dr.Suguna along with Dr.Tulasi and Dr.Vijayalakshmi  as the baby was born with low Apgar, the baby was shifted to NICU, but unfortunately the baby passed away at about 3 pm on the same day i.e., on 07-08-06.

          C.      This opposite party further submits that the 2^nd complainant was an active labour at the time of examination in the morning and the labour progressed very well and there was no cause for concern to interfere and the woman delivery vaginally in the labour room and as there was delay of delivery of after coming head compounded by cord round the neck once the baby was born with birth asphyxia. Ideally trail labour should have been conducted in the operation theatre under double set up, however the 2^nd complainant gave little time to the doctors and other staff to shift the patient to theatre to conduct the delivery and only informed after pains very late and she was immediately sent to labour rooms and while the trail delivery was conducted she gave delivery and there is no difficulty in delivering the child, as the child was having birth asphyxia it appears the child passed away due to asphyxia.

          D.      There is no negligence whatsoever on the part of any of the doctors and normally any doctor would first try for normal delivery and in an uncomplicated case during the course of labour they would decide, if necessary to cut at short the labour in caesarean section.  In this case, there is no difficulty and it is only after the head came out there was some delay, but nevertheless she delivered normally but subsequently on account of fact that the child is having birth asphyxia at the time of birth, the child passed away due to asphyxia.

          E.       The allegation that this opposite party and 2^nd opposite party suggested that operation just and compulsory and there will be risk if the same is not conducted as such they demanded Rs.2000/- for conducting operation and the complainants, their relatives expressed their inability for the same is absolutely false and hereby denied.  Further it is denied that the opposite parties 1 and 2 have taken under taking from the complainants fraudulently that the death of child is natural but not otherwise.  It is also further denied that the complainants are entitled for sum of Rs.5,00,000/- towards mental agony and suffering.

          F.       It is learnt that on the complaint given by 1^st complainant, postmortem was conducted which reveal that the child died of birth asphyxia due to the congestion of neck in the presence of cord round the neck and there is no negligence on the part of doctors.  Further it is admitted that the child was born normally and had cry but subsequently passed away.  In the aforesaid circumstances, it is prayed to dismiss the complaint with cost.

4.      The 2^nd opposite party filed her version denying all the allegations made in the complaint.  It is submitted that she is working as Assistant Professor of Ob & Gynaec, Guntur Medical College, Guntur since 10-03-06 and posted to work in labour rooms for a period of 3 months i.e., from 03-07-06 to 02-10-06 on rotation by the Professor & Head of the Department of Obst & Gyn, Guntur Medical College, Government General Hospital, Guntur vide his orders dt.01-07-06.

          B.      It is further submitted that it is her duty to conduct deliveries and looking after Ob & Gynaec emergencies with the team of PG’s, house surgeons, and staff under the guidance of concerned Unit Chief.  This opposite party is not aware about the 2^nd complainant till she has seen her on 07-08-06 at about 10.15 am and she has handed over to labour room by 1^st Unit Asst. Professor Dr.M.Sandya Rani with an instruction written in case sheet i.e., delivery vaginally (vide IP Regd No.A.895921/1-T.Siva Parvathi).  Therefore, it is utter false to say that the 2^nd opposite party is having knowledge about the 2^nd complainant prior to 07-08-06.  The 2^nd opposite party absolutely have no knowledge about place of admission and treatment given to 2^nd complainant prior to 07-08-06 and the 2^nd opposite party do not know what was happened between 21-07-06 to 07-08-06.

          C.      It is further submitted that by the time case is handed over at 10.15 am on 07-08-06 the patient is in active labour.  By 10.45 am she worked about to deliver, so the patient had been shifted from waiting beds in labour ward to labour room.  There is difficulty in delivery of baby and delivery is completed by 11 am.  Baby is asphyxiated with delayed cry.  So immediately their team resuscitated the baby with the help of Neonatologist and shifted to NICU for better care.  Subsequently, the 2^nd opposite party has no knowledge what happened afterwards as their team is busy with other case on that day.

          D.      The question of lack of proper treatment does not arise and it is further false to say that she demanded an amount of Rs.2000/- along with 1^st opposite party to conduct the operation.  The complaint is filed with unclean hands without revealing the real facts and falsely implicated the 2^nd opposite party even though she has no knowledge what had happened prior to 07-08-06.  It is submitted that there is neither negligence nor deficiency of service on her part.  There is no fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance that is required to be maintained by the doctors.  Therefore, it is prayed to dismiss the complaint with costs.

5.      Though the 3^rd opposite party who was Incharge Superintendent of Government General Hospital, Guntur had received notice from this Forum and appeared through government pleader by filing a memo of appearance, he did not choose to file version despite of giving sufficient time nor his affidavit.

6.      The 1^st complainant has filed his affidavit in support of his case.  The opposite parties 1 and 2 have also filed their affidavits in support of their respective contentions.  The complainants have relied upon the documents marked as vide Ex.A1 to A5.  During the course of enquiry, the opposite parties 1 and 2 also got examined themselves before this Forum and submitted for cross examination by the complainant counsel.  The 1^st opposite party has filed case sheet of one Esther Rani, Female patient, which is marked as Ex.B5 in order to show the procedure followed in labour room in case of emergency and wanted to cross examine Dr.Suguna (2^nd opposite party) on this aspect.  Whereas the 2^nd opposite party rely upon the proceedings dt.01-07-06 issued by Professor and Head of the Department (1^st opposite party) posting her to work in labour room for a period of 3 months from 03-07-06 to 02-10-06 vide Ex.B3 and her personal explanation with reference to the allegation made in the complaint which marked as Ex.B4.  In pursuance of order made in IA No.30/09, the Superintendent of Government General Hospital, Guntur has produced postmortem report and enquiry report in respect of child who died on 07-08-06 and the same are marked as Ex.B1 and B2.               

7.  On the basis of above pleadings this Forum framed the following points for determination:

1. Whether the opposite parties have committed medical negligence/professional negligence in giving treatment, conducting delivery of the child and post delivery care of the child of 2^nd complainant, as alleged in the complaint?
2. Whether the complainants are entitled for compensation as claimed in the complaint?
3. To what relief?

8.  This Forum on 09-02-10 passed the following order allowing the complaint in part as indicated below:

1. The opposite parties 1 to 3 are jointly and severally liable to pay compensation of Rs.2,00,000/- to the complainants for the medical and professional negligence committed by them.      
2. The opposite parties are also directed to pay legal expenses of Rs.5000/- to the complainants.
3. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of this order failing which they shall carry interest @ 9% p.a. till the date of realization.

9.  Aggrieved by the said order the opposite parties 1&3 filed FA 520/10 while the 2^nd opposite party filed FA 212/12 before the A.P. State Consumer Disputes Redressal Commission.  The A.P. State Consumer Disputes Redressal Commission on 06-07-12 in FA Nos. 520/10 & 212/12

“In such circumstances, we are unable to come to a conclusion in the said context to hold that whether the services rendered to second complainant by opposite parties 1 to 3 falls under sec.2(1)(O) of C.P.Act or not and hence we are of the opinion to set aside the impugned orders and to remit back the consumer complaint to the District Forum for disposal according to law after giving opportunity to both sides for their pleadings/further pleadings and evidence, if any.  When jurisdiction point is involved and on that count the case is remitted back it is not desirable to discuss about the merits of the case touching deficiency in service and negligence on the part of the opposite parties.  Jurisdiction point can also be agitated before the Appellate court and simply because opposite parties did not take such a plea they are not barred to take such an objection in the appellate stage.  In view of the above discussion, both the appeals are liable to be allowed setting aside the impugned orders. 

In the result, both appeals in FA 520/10 and FA 212/12 are allowed and impugned orders are set aside.  The case is remitted back to the District Forum for fresh disposal according to law keeping in view of the observations made by this Commission after giving opportunity to both sides. 

The parties shall appear before the District Forum on 06-08-12 without insisting fresh notice”.

10.  That is how this case again came before this Forum for deciding limited point “whether the complainants are consumers with in the purview of The Consumer Protection Act”.   

11.    After remand the complainants and the 1^st opposite party filed additional pleadings.  Counsel for 2^nd opposite party reported no additional pleading and evidence.   The 3^rd opposite party even after remand did not evince any interest to contest the case and remained exparte. 

12.    The complainants filed additional written arguments cum pleadings on 09-01-13 contending that services rendered at Government Health Centers/dispensaries where services are rendered on payment of charge to some and rendered free of charge to others fall under the purview of Section 2(1)(o) of the Consumer Protection Act, the opposite parties demanded Rs.2,000/-.   The rejoinder filed by the 1^st opposite party did not relate to the point of remand.  On the other hand, the 1^st opposite party filed rejoinder to the effect that there was no negligence on his part.

13.    After remand this Forum framed the following additional points for consideration:

1. Whether the complainants are consumers within the ambit of the Consumer Protection Act?
2. To what relief?

14. ADDITIONAL POINT No.1:-  

          After remand Exs.A-6 to A-10 were marked on behalf of the complainant.  Original lab report was marked as Ex.B-6 on behalf of the                    3^rd opposite party which was produced before this Forum in pursuance of orders in IA 138 of 2014.  After remand the petitioner filed IA 139 of 2014 seeking permission of the Forum to serve interrogatories on the 3^rd opposite party and the same was allowed on 11-04-14.   The 3^rd opposite party answered the interrogatories on 13-05-14. 

15.    Hospital/Primary Health Centre Development Societies came into existence by virtue of GO of G.O.Ms.No.874 dated 27-12-06.   When the patient took treatment in Government Hospital, Guntur hospital development societies were not existence.   Exs.A-7 to A-10 dated 28-02-14 are not relevant to consider and as such they do not render any assistance in deciding this point.    Ex.A-6 is attested copy of laboratory report with PID No.3810 (dated 21-07-06) wherein Rs.210/- was written.   The learned counsel for the complainants contended that the complainants filed original of Ex.A-6 along with the complaint itself and it was marked as Ex.A-5.   In its judgement this Forum described Ex.A-5 as lab report with regard to HIV test.   But Ex.A-5 was styled as USG report.   The learned counsel for the contesting opposite parties questioned the genuineness of Ex.A-6 now filed after remand.  The 3^rd opposite party filed original of Ex.A-6 into this Forum.  In all aspects Exs.A-6 and B-6 tallied except in mentioning ‘Rs.210/-’ against ‘COMB AIDS’.  The enquiry being summary in nature this Forum cannot decide the genuineness of Ex.A-6. 

16.       The relevant questions and answers are extracted below for better appreciation (Q4 and 5):

“Q4: Whether patients paid payment  

of laboratory tests like HIV, CT Brain scanning, X-ray etc., if so as being 3^rd opposite party, one maintaining bill book or not, if so submit the bill booking parties to the present case.

A.  Most of the Lab tests, HIV test, X-ray are done free of cost to the patients.   However if the patient wants scan film patient is charged Rs.200/- per case after remitting the same to HDS account for the amount.  In the present case no charges were collected from the patient for any tests or for any services.

Q5.  Whether the services rendered at Government General Hospital, Guntur is separate paying wards on collection of money for rooms and medicines? If so produce the documents to support your answer.

A.   Yes there are separate paying wards “B” class and “C” class are available.   Room rent and nominal charges for surgery are collected from the patients and the receipt for the same will be provided to them.”

17.    The above answer to the question No.5 submitted by the opposite parties revealed that the Government General Hospital, Guntur is collecting room rent and nominal charges for the surgery from the patients admitted in wards classified as B and C.

18.    In Indian Medical Association vs V.P. Shantha & Ors (1995 (6) SCC 651) the apex court held:

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered under a 'contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1) (o) of the Act. (4) The expression 'contract of personal service' in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act.

(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.

(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1) (o) of the Act.

(8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.

(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1) (o) of the Act.

          The answer given to question No.5 by the 3^rd opposite party in our considered opinion squarely falls under the classification (10) of the above judgement. 

19.  ADDITIONAL POINT No.2:-   In view of our findings on additional point No.1, the order passed by this Forum on 09-02-10 as detailed infra holds good and we therefore answer this point against the opposite parties. 

1. The opposite parties 1 to 3 are jointly and severally liable to pay compensation of Rs.2,00,000/- to the complainants for the medical and professional negligence committed by them.      
2. The opposite parties are also directed to pay legal expenses of Rs.5000/- to the complainants.
3. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of this order failing which they shall carry interest @ 9% p.a. till the date of realization.

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 23^rd day of June, 2014.

Sd/-XXX                                                                                            Sd/-XXX       MEMBER                                                                               PRESIDENT   

APPENDIX OF EVIDENCE

No oral evidence is adduced on either side

                                        DOCUMENTS MARKED

For Complainant:

After remand:

For Opposite Parties:

                                                                                                                                                                                                                   Sd/-XXX                                                                                                    PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.