DATE OF DISPOSAL: 13.03.2019
Mr. Karuna Kar Nayak, President:
The complainant Smt. Swetalina Rath, has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in service and unfair trade practice against the Opposite Parties (in short the O.Ps) and for redressal of her grievance before this Forum.
2. Briefly stated the complainant’s husband got the complainant admitted into the Patro Hospital situated at Utkal Ashram Road, near Pani Tanki, Berhampur, Ganjam (Private Nrusing Home being owned and managed by Dr. Sankarshan Patro, on 20.08.2008 at about 8.30 P.M. for delivery of a child. At the time of admission of the complainant into the Patro Hospital, Dr. Sankarshan Patro demanded a sum of Rs.15,000/- towards clinical expenses and treatment of the complainant which was given by her husband. On 21.08.2008 at 7.30A.M. the complainant was taken to the labour room for delivery where the O.P. insisted and advised the delivery to be done by way of scissoring operation. In the labour room cum operation theatre another doctor Nihar Behera was pressed into service and a nurse Smt. Sakuntala Mohapatro was also present. When the operation started the complainant was administered anesthesia twice, for which she was tortured and sustained abnormal pain in her spine. Thereafter, a scissoring was done on the patient and a healthy baby boy was born in the forenoon. The O.P. had earlier assured the complainant and her husband that all facilities are available including the routine visit of a pediatrician for check up of the new born baby at the time of receiving the deposit of a sum of Rs.15,000/- towards the fees as well as clinical expenses and treatment. But the O.P. did not call a pediatrician for the check up of the new born baby. The staff of the Patro Hospital administered injections to the patient through they do not have require qualifications. Though as per rule a family planning operation is to be done after three months of a scissorian delivered baby but in order to extract money the O.P. compelled the complainant and conducted the family planning operation upon her at the time of the delivery of the baby. On the same day i.e. 21.08.2008 Dr. Sankarshan Patro visited the patient and the baby boy twice and the baby was playing actively. When the staff of the nursing home administered an injection to the baby boy he became serious and at that time the O.P. was absent in the hospital for which no treatment was rendered to the baby boy and he died at 9.30P.M. The new born baby boy died due to the rash and negligent act committed by the O.P. and his staff so also the non-availability of the O.P. in his hospital at the time of emergency and the non-availability of a pediatrician in the hospital caused the unfortunate baby boy’s death. The O.P. cheated the complainant while receiving a sum of Rs.15,000/- dishonestly inducing the wife of the complainant’s husband to go for a family planning operation in order to extract money. The errant doctor did not provide the papers pertaining to the pathological tests and other prescriptions belonging to the wife of the complainant’s husband which was handed over to him at the time of admission into his hospital to cause disappearance of evidence of an offence committed by them. So also the O.P. did not provide the bed head ticket of the patient and the child to the complainant’s husband at the time of discharge. An autopsy was done upon the dead body of the new born baby at the F.M.T. Department of MKCG Medical colleges and hospital, Berhampur on the next day but the expert opinion was not communicated to the complainant’s husband in order to cause disappearance of evidence. The police arrived at the spot after receiving the written report from the complainant’s husband and took the dead body of the new born baby boy and send it for postmortem but the IIC B.Town police station did not register the case against the O.P. and instead registered a false case against the complainant’s husband and others on behest of the O.P. who is a very influential and moneyed man. On 30.08.2008 when the complainant’s husband demanded the bills, prescriptions, other papers and the name of the injection administered to the baby boy to the O.P. he scolded him in filthy language and threatened him to kill and call the police for his arrest. The patient was discharged on 30.08.2008 from the hospital of O.P. The complainant files the death certificate issued by the O.P. in his hospital pad on 21.08.2008. The O.P. had neglected to discharges his service and due to his deficiency in his service the complainant sustained huge mental agony and lost her new born baby boy and till date she is in a state of mental shock. The complainant is not suppose to beget another child as a family planning operation was conducted by the O.P. as such the mental agony of the complainant is many fold for which the complainant seeks a sum of Rs.15,00,000/- (Rupees fifteen lakhs) as compensation to be paid by the O.P. for his negligence as well as deficiency in service. The complainant filed photocopies of following documents in support of her case are given below:
A. Photo copy of the death certificate issued by the O.P. in his hospital pad on 21.08.2008.
B. Photocopy of the discharge certificate issued by the O.P. on 30.08.2008.
C. The photocopy of the written complaint (F.I.R.) given by the husband of the complainant to the IIC, B.Town police Station, Berhampur, Ganjam.
D. Photocopy of certified copy of the FIR given by the O.P. against the husband of the complainant and others.
E. Photocopy of the cognizance order in 1. CC 08/09 filed by the husband of the complainant in the court of the SDJM, Berhampur, Ganjam against the O.P. and another for the commission of an offence punishable U/S 304-A/201 IPC.
F. The photocopy of postmortem report conducted upon the new born baby.
2. Upon notice the O.P. filed version through his advocate. It is stated that all the allegations made in the complaint are not true and the complainant is put to strict proof of such allegations which are not admitted herein. The complainant was admitted into the private hospital run by the O.P. at Utkal Ashram Road, Berhampur on 20.08.2008 for delivery is not disputed. The allegation that the O.P. demanded Rs.15,000/- towards clinical expenses and treatment of the complainant which was given by her husband is not true and correct. The averment that on 21.08.2008 the complainant was taken to the labour room for delivery where the O.P. insisted and advised that the delivery to be done through caesarean operation one Dr. Nihar Behera was pressed into service in presence of the Nurse Sakuntala Mahapatro, when operation started, the complainant was administered anesthesia twice for which she was tortured and sustained abnormal pain in her spine and there after a healthy baby was born are all not true. The complainant had undergone caesarean operation earlier and she disclosed that her physician is Dr. N.Behera who has been treating her earlier therefore the O.P. on the strength of the version of the complainant and husband got admitted the complainant into his hospital without demanding any money from them in advance with a definite understanding that the fees and expenses shall be paid later. Thus nothing is paid by the complainant and her husband to the O.P. at the time of admission into his hospital. Anesthesia was administered once and not twice as alleged by the complainant. At the time of admission she had previous caesarean and suffering from C.P.D. (Cephalo Pelvic Disproportion) and was in Labour she was extreme obese. Therefore the Gyenic specialist Dr. N.Behera advised for L.S.C.S. (Lower Segment Cesarean Section Operation) to avoid any unwanted event of the child and mother. As per advise of Dr. Nihar Behera on 21.08.2018 in the morning the complainant has taken to the O.T. for delivery by L.S.C.S. At the time of operation the Gyenic Specialist Dr. Nihar Behera, Anesthesia specialist Dr. K.E.P.Subudhi and experienced nurse Smt. Sakuntala Mahapatro were present. Dr. Subudhi administered Anesthesia prior to operation conducted by Dr. Behera. The operation was conducted by Dr. Behera and a normal active baby was born and the treating doctor advised her for exclusive breast feeding. The averment that the O.P. assured the complainant and her husband that all facilities are available including routine visit of a Pediatrician for check up the newly born baby at the time of receiving the deposit of Rs.15,000/- towards fees, clinical expenses and treatment but the O.P. did not call a pediatrician to check up the newly born baby. The staffs of the O.P. do not posses requisite qualification who administered injection to the patient and to extract money family planning operation was done at the time of delivery of the baby though as per rule it is to be done after three months of caesareans operation are not all correct. All the facilities are available for delivery in the hospital of O.P. and the hospital has got qualified nurse to administer injection. The Tubal sterilization can be performed at the time of cesarean section. Most sterilization performed concurrently with cesarean section require no separate anesthesia and involved partial salpingectomy as the method of tubal occlusion. Family planning operation is usually done at the time of Cesareans Sections. Since the operating surgeon felt that the family planning in this particular case would be proper it is done at the time of cesarean, therefore no separate anesthesia is required. The complainant and her husband are well educated persons and both are maintaining a Coaching Centre and the complainant has abnormal obese body and suffering from high B.P. and prior to the said delivery she has previous I.S.C.W. therefore both the complainant and her husband decided to avoid third operation and desire for Tubectomy operation at the time of cesarean. The Tubal sterilization performed with the written consent of the complainant and her husband. The O.P. once again reiterate that neither the complainant nor her husband at the time of admission paid the alleged advance of Rs.15,000/- to him. The allegation that when the staff nurse of the Nursing Home administered an injection to the boy baby, he became serious at which time the O.P. was absent in the hospital for which no treatment was rendered and the baby died at 9.30P.M. Therefore, the new baby died due to race and negligent act committed by the O.P. and his staff and non-availability of a pediatrician in the Hospital caused the unfortunate baby boy’s death is false, fabricated and motivated. On the same day this O.P. alongwith Dr. Behera and the staff of O.P. were periodically visited and checked up the mother (complainant) and her baby and they found that till 9.30 P.M. the complainant and her baby were OK and advised for exclusively breast feeding to the baby. At about 9.40 P.M. one attendant of the patient reported that forth and some liquid are coming out of nose and mouth of baby and therefore this O.P. rushed to the patient and found the baby was suffering from Dyspnea after artificial feed. This O.P. attended the case and found the patient cyanotic, the baby was gasping and resuscitation was done, milk was coming out from nostril and mouth, therefore the O.P. directed to one of his staff for calling upon a pediatric specialist. But in the meanwhile the patient could not be survived and declared dead at about 10 P.M. But on enquiry it is learnt that one Tara Das who was attending the complainant and her child, fed some boiled water mixed with cerlac powder to the 12/`13 hours old baby which resulted in asphyxia of air passage causing the death of the child. The said fact is confirmed from the post-mortem report. Thus the complainant to prevent her responsibility and the responsibility of her relation, who attended the claimant and her child, wants to throw the blame with the O.P. with a malafide intention to cause wrongful loss to the O.P. and wrongful gain to her and her husband. The overweight complainant and her husband desired family planning operation as they do not like to undergo third time caesarean operation therefore insisted for the sterilization at the time of cesarean operation and both of them have given written consent of the same. It is never the intention of the O.P. to extract money induced the complainant and her husband for sterilization at the time of cesarean operation but obliged to the whims of the complainant and her husband. The allegation that errant doctor did not provide papers pertaining to the pathological tests and other prescriptions related to the wife of the complainant’s husband which was handed over to him at the time of admission in to the hospital with a view to cause disappearance of evidence of an offence committed by them. The O.P. has also not supplied the
bed head ticket to the complainant of her husband at the time of discharge are all not true and correct. The prescriptions and other papers were taken forcibly by the husband of the complainant and his henchmen on 21.08.2008. The allegations made in the complaint petition that on 30.08.2008 when the complainant’s husband demanded the Bills, prescriptions and other papers and the name of injection administered to the baby to the O.P. he scolded him in filthy language and threatened him to kill and call the police for his arrest is not true and correct. The complainant was admitted on 20.08.2008 and discharged on 30.08.2008 from the Hospital of O.P. in good condition when the staff of O.P. asked for medical expenses neither the complainant nor her husband paid a single pie in the other hand they threatened to kill him and if he will demand for expenses and fees O.P. would face the dire consequences. The O.P. was remaining absent in the Hospital as he was busy in performing funeral ceremony of his father, so the allegations made by the complainant are false and baseless. On police requisition the P.M. examination was conducted as per rule and the same was sent to proper forum and this O.P. is no way related to the aforesaid affairs. The allegations made in the complaint petition that the expert opinion was not communicated to the complainant’s husband in order to cause disappearance of evidence is not true and correct. The henchmen of the complainant and her husband not only destroyed the valuable articles of the hospital but also destroyed the car of the O.P. parked inside the hospital. The henchmen of the complainant not only threatened the O.P. with dire consequences but also out regard the modesty of the attending nurse. The father of the Opposite Party was also admitted in the hospital for his ailments. When the husband, his two brothers alongwith muscle men supporters of the complainant ransacked the hospital and threatened its authority with led consequence the old father of the O.P. succumbed to death due to manhandling. The O.P. reported the matter to the Berhampur Town Police Station which assigned case No. 92 dated 22.8.2008 U/S 452/323/427/354/506/379/34 I.P.C. against the husband of the complainant and others and now the matter is pending before the SDJM, Berhampur vide GR No. 708/08. The husband of the complainant has also reported the matter to the Berhampur town P.S. and the Town P.S. registered a case vide U.D.F.I.R. No. 7/08 dated 22.08.2008 and the Town PS staff visited the spot examined the witnesses and conducted inquest over the dead body of the new kid in the presence of the parties and their relatives of the dead kid and sent for P.M. examination to F.M. & T Department of MKCG Medical Hospital Berhampur. A team of doctor conducted P.M. examination over the dead body and they in their opinion stated that death of the baby was due to Asphyxia resulting from chocking of air passage by regurgitated stomach contents. Therefore on the basis of the said report the Town P.S. submitted final report on 03.02.2009 before the Sub-collector, Berhampur. Knowing fully well the consequences the complainant has filed 1 C.C. No.08/09 through her husband before the SDJM Berhampur for commission of an offence punishable U/S 304(A)/201/34 IPC. Against the order of the SDJM Berhampur the O.P. has moved the Hon’ble High Court of Odisha and their Lordships have been pleased to stay further proceedings by the Learned SDJM Berhampur in CRL MC No. 3124/09. Thus the matter is pending before the Hon’ble High Court. The allegation that the O.P. has neglected to discharge his service and due to the alleged deficiency in service of the O.P. the baby died and the complainant has sustained huge mental agony and shock. The complainant is not supposed to beget another child due to family planning. Therefore she claims compensation to the tune of rupees fifteen lakhs. The death of the newly born baby is due to feeding of Cerelac powdered with water by one of the relative attends of the complainant and not due to any negligence or any deficiency in service on the part of the O.P. Thus when the cause of death is not due to the negligence of the O.P. he can not be called upon to compensate the complainant. Further the complainant shall be prevented from raping dividend out of their own latches. Further the complainant and her husband informed in writing for family planning knowing fully well that there would be no child after family planning. Thus the claim put forth is highly vexatious and deserves no consideration and therefore liable for cost and penal action as contemplated U/S 26 and 27 of the C.P.Act. The complainant has put forth her claim for mental agony etc. at Rs.15,00,000/- which is not at all true and correct. The basis of which the claim put forth is vague and therefore deserves no consideration. If the doctors are punished for no fault of their own no doctor will take the risk of treating a patient which may cause much harm to the society in general. There is no cause of action against the O.P. to file the above case only for the purpose of harassing and defaming the reputation of the O.P. the complainant has filed the above case. Hence the O.P. prayed to dismiss the false and vexatious claim put forth by the complainant and adequate compensation may be awarded against the complainant for vexatious claim in favour of the O.P. in the best interest of justice.
3. On the date of hearing both parties are absent on call. This is a year old case since 2009. We have gone through the case record and also perused the written version, written argument, citations and documents available on the case record. We perused the order dated 9.12.2014 passed in R.P. 77/13 of Hon’ble State Commission, Odisha, Cuttack and orders passed on 23.07.2015 in R.P. 883/15 of Hon’ble National Commission, New Delhi. The Hon’ble National Commission while disposing the Revision petitions No. 883 of 2015 directed both the parties as follows: “Arguments heard. The witness can not be summoned in consumer court. The order passed by the District Forum and the State Commission are hereby modified. Witnesses will not be summoned, but their lies no rub in producing their affidavits and examine them on interrogatories. The case is disposed of accordingly. As directed by the State Commission, petitioner/opposite party is directed to produce relevant documents”.
4. Dr. Nihar Ranjan Behera, Asst. professor of O & G, MKCG MCH, Berhampur by supporting affidavit stated that Mrs. Swetalina Ratha w/o Sisir Kumar Dash of Gandhinagar 9th lane, Berhampur was undergoing antenatal check up during her second pregnancy. Her previous delivery was by C.S. and her weight was more than 100 Kgs. Apart from this there was no other antenatal problems. She had chosen Patra Hospital for her confinement and was admitted to Patra Hospital on 20.08.2008.Ceasarian section was planned for her considering the fact that she was a case of previous C.S. with obesity with big baby. On 21.8.2018 I operated on her. Dr. K.E.P. Subudhi who is a senior and experience anesthetist gave spinal anesthesia to her and I performed C.S. A healthy male baby was delivered. The baby was examined and found to be normal. As per the wish and request of the patient, her husband and relatives bilateral tubectomy was also done and the patient and her husband also given consent in writing for the same. The operation was successfully completed without any complications. Following the procedure I had examined the mother and baby and found them normal. I had advised exclusive beast feeding to the baby. In my evening round at 6.30P.M. I had examined the mother and her baby and found them healthy without any problem. But at 10pm I got a call from Patra Hospital that the baby of Swetalina has become serious and I immediately rushed. I found the baby dead. It was totally unexpected and unfortunate. In this context I should say that performing tubectomy was not wrong decision and was absolutely necessary for the patient.
5. Dr. K.E.P. Subudhi, retired Asst. professor, Anesthesia by supporting affidavit stated as per request of Dr. Sankarsan Patro, Proprietor of Patro Hospital on 21.08.2008 I attended the O.T. of Patro Hospital, examined the patient Swetalina Rath for fitness to undergo surgery administering anesthesia in presence of Dr. Nihar Ranjan Behera and Dr. Sankarsan Patro. I have administered spinal anesthesia and surgery was successfully done. After surgery the patient recovered fully from the impression of anesthesia and was shifted to the ward.
6. The husband of the complainant also out of grudge reported the matter to Berhampur, Town P.S. and the same was registered vide U.D.F.I.R. No. 7/08 dated 22.08.2008 and the police visited the spot, examined the witnesses and conducted inquest over the dead body of new kid in present of the parties and other relatives of the said kid and sent for PM examination to F.M. & T Deptt. Of MKCG MCH, Berhampur. A team of doctor conducted PM examination over the dead body and they have in their opinion stated that the death of the baby was due to Asphyxia resulting from chocking of air passage by regurgitate stomach contents. Therefore on the basis of the said report the B.Town P.S. submitted final report on 03.02.2009 before the Sub Collector, Berhampur and the said report is accepted by the Sub Collector, K Berhampur. Knowing fully well the consequences the complainant has filed ICC Case No. 08/09 through her husband before the SDJM, Berhampur for commission of offence punishable U/s 304(A)/201/34 of IPC. Against the order of the SDJM, Berhampur, the O.P was moved to the Hon’ble High court vide order dated 19.01.2010 pleased to allow the prayer of the O.P. and quashed the impugned order and remitted the matter to the court of SDJM, Berhampur with the specific direction to refer the matter to a committee of doctors specialized in the field relating to which the matter of taking cognizance a fresh. The CDMO formed a committee of doctors consisting of Medicine specialist, Pediatric specialist and O.G. Specialist and directed them to investigate into the matter. After obtaining the opinion report from the committee of doctor, the CDMO, Berhampur forwarded the same to the SDJM Berhampur vide letter No. 7 dated 01.01.2011. The opinion of the committee runs as follows:
“Under the above mentioned circumstances, it is our opinion that the death of the baby is due to ‘Aspiration’ of stomach contents to respiratory system due to artificial feeding of starch containing food, instead of breast feeding and the committee did not find any negligence in the treatment of baby by the doctor or staff of Patra Hospital’.
7. In the instant cases all the issues are complicated. The jurisdiction of this Forum is limited. Hence, for the interest of justice and in view of the citation of National Commission, New Delhi in Megna Nand versus Haryana Urban Development Authority Through Estate Officer Another 2012(3) CPR 92 such as:-“Consumer Forum has discretion to direct complainant to approach civil court for appropriate relief in case of complicated issues”.
8. Considering the factual position of the case, the complainant’s case is dismissed against the O.P. and the complainant is at liberty to file his complaint before any other Forum having competent jurisdiction for redressal of her grievance and she may avail the benefits under Section 14 of the Limitation Act, 1963 in the best interest of justice.
The order is pronounced on this day of 13th March 2019 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet and thereafter the file be consigned to record room.
