J U D G E M E N T
1. The complaint is filed by the complainant against the OPs U/sec.12 of Consumer Protection Act, 1986.
2. The complaint in brief is that, the complainants are the husband and wife. The complainant No.2 was admitted in the hospital of the OPs on 20.1.2012 for delivery. Due to carelessness and negligence in the use of forceps by the OPs, both the eyes of the delivered baby were damaged. On that day, the OPs expressed their inability in giving treatment to the delivered baby. As per the instructions and guidelines of the OPs, the baby was taken to Hyderabad for further treatment. The medical report of the said hospital clearly speaks that due to carelessness and negligence in the use of forceps by the OPs, the eyes of the baby were damaged. Due to this, the complainants were not only put to mental shock, but also put to great hardship and monetary loss. Hence, they are entitled to claim medical expenses and compensation from the OPs. Therefore, the complaint seeking reliefs as prayed for.
3. The OPs filed the written version stating that the contents of the complaint are false and misleading. The complainant No.2 was admitted to Basaveshwar Teaching & General Hospital, Gulbarga on 20.01.2012 at 10:11 a.m. for delivery with complaint of labour pains since one day. After examination, she was found to be in 2nd stage labour. Because for poor maternal efforts labour was augmented with oxytocin drip which increases the uterine contractions. In spite of waiting for one and half hour the complainant No.2 had not delivered as her maternal efforts were poor. Hence, the complainant No.2 was advised for vacuum/outlet forceps delivery. Thereafter, in the first instance vacuum delivery was tried and when it failed, outlet forceps were applied and the baby was delivered and handed over to pediatrician and according to pediatrician notes the baby cried immediately after birth and there were no external congenital anomalies or injuries noted. Since the baby was doing well it was shifted to mother’s side. The complainant No.2 with her baby was discharged after two days as their condition was good. All these things are evident from the case sheet maintained in the hospital. The outlet forceps delivery was essential to deliver the baby as maternal efforts were poor and vacuum delivery failed. All prerequisites for forceps delivery were fulfilled. If the above process was not done, the baby would have been born with birth asphyxia sometimes birth anoxia, cerebral palsy, mental retardation or death after prolonged labour. There was no negligence on the part of the staff and doctors working in the said hospital and more particularly by the OPs during the course of delivery by the complainant No.2. The OPs are consultants which is evident from the discharge sheet produced by the complainant. The OPs are in no way responsible for defects found in the eyes of the baby. The delivery by the complainant No.2 has been conducted properly with all due care and caution by the doctors who attended the said delivery by the complainant No.2. There was no defect of any kind in conducting the delivery by the doctors. The complainants have not stated as to what kind of negligence was there on the part of the doctors who conducted the delivery. Bald statements used not enough to say the OPs were negligent in conducting delivery. The OPs are in no way liable to pay compensation claimed in the complaint. So far as defects found in the eyes of the baby may be due to sub conjunctive and retinal hemorrhage with vacuum extract etc. The same is supported by Williams Text Book of Obstetrics on page 524 and 521. The report also does not speak of any defect on the part of the OPs in conducting the delivery. The report speaks only right eye is effected and the left eye was within limits. The contents of the said report are not correct. The complication of outlet forceps decision leading to descement membrane injury is very rare which will be evident only after one week of delivery when the baby had watering of eyes. This rare complication cannot be detected at birth. Since the complainant no.2 came to the hospital late in labour i.e second stage of labour and after giving uterine stimulants and failure of vacuum extraction, the outlet forceps application was done for the well being of both mother and baby. Since the complainant No.2 was attended to with due care and the procedure performed being standard prescribed, there cannot be negligence of attendants and doctors. The complaint is not supported by the opinion of expert doctors. Hence, the complaint is not tenable. This forum has no jurisdiction to entertain the complaint. Therefore, the complaint be dismissed with heavy costs.
4. The complainants to prove their case, as their evidence, filed one affidavit, which is marked as PW-1 and got marked 04 documents as Exh.P-1 to P-4. The OPs, as their evidence, filed one affidavit, which is marked as RW-1 and not produced any documents.
5. Heard the oral arguments on both sides.
6. The points that arise for our consideration are;
1) Whether the complainants have proved deficiency in service on the part of the OPs towards them, as alleged in the complaint?
2) Whether the complainants are entitled for the reliefs prayed for in the complaint?
3) What order?
7. The findings on the above points are as under;
1) In the negative.
2) In the negative.
3) As per final order for the following;
:: REASONS ::
8. POINT NO.1 :-
It is the case of the complainants that at the time of the delivery by complainant No.2, due to carelessness and negligence in the use of the forceps by the OPs, who attended on to the delivery process, both the eyes of delivered baby were damaged and therefore the baby was taken to Hyderabad for treatment and the medical report obtained there clearly speaks that due to carelessness and negligence in the use of forceps by the OPs, the eyes of the baby were damaged.
9. However practically there is no evidence which supports the case of the complainants. On perusal of the medical report given by the LV Prasad Eye Institute Hyderabad in it there is nothing which shows that due to carelessness or negligence on the part of the OPs in the use of forceps the eyes of the baby were damaged. In the said report it is mentioned thus:
“The anterior segment exam revealed that in both eyes lids were flat, conjunctiva in right eye showed mild sub conjunctiva hemorrhage with presence of a vertical descemet’s tear in right eye with surrounding edema, while the left eye anterior segment was found to be within normal limits. The horizontal and vertical corneal diameters measured 10.5 mm each in both eyes. The pupils were round and regular in both eyes. The lens was clear in both eyes. Refraction reveled – 8.00D CylX20° in right eye and left eye- 1.50D cylx180° in left eye. Intraocular pressure measured 12mm Hg in both eyes by Perkin’s tonometry. Dilated fundus examination attached retina foveal reflex with cup disc ratio of 0.2 with healthy neuroretinal rim in both eyes”.
10. The above observations do not reveal that the problem of the right eye was due to carelessness and negligence on the part of the OPs in the use of forceps at the time of delivery of the 2nd complainant. The same may be birth defect that developed with the baby was conceived in the womb of the mother.
11. The OPs in their written version stated that the outlet forceps delivery was essential to deliver the baby as maternal efforts was poor and vacuum delivery failed and if the above process was not done, the baby would have born with birth asphyxia sometimes birth anoxia, cerebral pasly, mental retardation or even death and therefore the outlet forceps application was done for the well being of both the mother and baby.
12. As contended by the counsel for the OPs that unless expert opinion is produced which shows that the baby was born with defective eyes due to negligence on the part of the OPs during delivery by the 2nd complainant, the OPs cannot be held liable for any negligence or deficiency in service. In this regard he relied on the decision reported in 2013 (1) SCC (Civil) 1253 and 2013(1) SCC (civil) 1054. Accordingly, we answer Point No.1 in the negative.
13. Point No.2 :
In view of our finding on Point No.1, the complainant Nos.1 and 2 are not entitled for any one of the relief’s as prayed in their complaint. Besides this, on perusal of the complaint, it is found that, this Forum has no territorial jurisdiction to entertain the complaint and to adjudicate upon the same as OPs are all residing at Gulbarga and cause of action arose there itself and on this point also the complaint is liable to be dismissed. Accordingly, we answer Point No.2 in the negative.
14. Point No.3 :
In view of our findings on Point Nos.1 and 2, we proceed to pass the following order;
ORDER
The complaint filed by the complainants is dismissed.
There is no order as to cost.
Intimate the parties accordingly.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in the open Court on this the 22nd day of February 2014)
