PER SHRI S.M.SHEMBOLE, HON’BLE PRESIDING MEMBER.
This appeal impugn the judgment and order dated 06/09/1999 passed by the District Consumer Forum, Nagpur in Consumer Complaint No.CC/96/380 partly allowing the complaint, directing the appellants/original opponents No. 1 to 4 jointly and severally pay compensation at Rs.50,000/- and Rs. 5000/- more towards the cost of proceeding.
(For the sake of brevity Appellants are hereinafter called as “the Opponents” and Respondent Nos. 1 & 2 as “the Complainants”).
Brief facts giving rise to this appeal are that,
1. Both the complainants are practicing doctors. Complainant No.1- Dr. Swati Bajaj is the wife of complainant No.2- Dr. Sanjay Bajaj. Opponent No.1- Dr. P Bhattacharya is practicing as obstetrician & Gynaecologist, opponent No.2 – Dr. Nandita Sanyal is practicing along with opponent No.1- Dr. P. Bhattacharya. Opponent No.3- Dr. Mangala Ghisad is practicing in opponent No.4- Sankalp Hospital, Nagpur.
2. Complainant No.1- Dr. Swati was under treatment of opponents No. 1 to 3 during the period of her second delivery. On 15/04/1994 as per advice of opponent No.1- Dr. P. Bhattacharya complainant No.1- Dr. Swati got examined by opponent No.3- Dr. Mangala Ghisad who advised her for separation of membranes in opponent No.4- Sankalp Hospital, Nagpur and on 10/10/1994, her membranes were separated and she was discharged from the Hospital though her expected date of delivery was 10/10/1994 only. It is alleged by the complainants that due to separation of membranes there was excessive depletion in amniotic fluid, which resulted in deterioration of condition of the complainant No.1 and the foetus. According to the complainants after the separation of membranes complainant No.1- Dr. Swati contacted opponent No.1- Dr. P. Bhattacharya but instead of taking her proper care the opponent No.1 directed her to inform her when the labour pains would start.
3. In the early morning of 14/10/1994, at about 5.15 a.m. complainant No.1- Dr. Swati started feeling labour pains and thereafter immediately complainant No.2- Dr. Sanjay Bajaj informed to opponent No.1- Dr. P. Bhattacharya on phone who advised him to take his wife Dr. Swati immediately to opponent No.4- Sankalp Hospital, Nagpur and to admit her there. Accordingly, complainant No.1- Dr. Swati was taken to opponent No.4- Sankalp Hospital, Nagpur and was admitted there at 5.30 a.m. Where, as per the advice of opponent No. 1&2 on phone, the opponent No.3- Dr. Ghisad examined complainant No.1- Dr. Swati and she was immediately put on a drip and opponent No.3- Dr. Ghisad informed the complainant No.2- Dr. Sanjay Bajaj that everything is fine and normal, etc. Thereafter, at about 8.30 a.m. opponent No.2- Dr. Nandita Sanyal came there and examined complainant No.1- Dr. Swati and opponent No.2 & 3 told complainant No.2- Dr. Sanjay that there was nothing to worry.
4. However, thereafter, at 10.00 a.m. opponent No.1- P. Bhattacharya came there and by calling complainant No.2- Dr. Sanjay inside told him that his wife needed immediate operation and Dr. Sahay, the Anaesthetist is being called. It is alleged by the complainants that though the complainant No.2- Dr. Sanjay Bajaj asked the opponent No.1- Dr. P. Bhattacharya as to what had happened to his wife suddenly, the opponents did not tell him anything and did caesarean by obtaining his consent. However, though he asked the opponents to perform operation without delay, they caused delay and performed operation at about 12.30 noon. It is further alleged that by caesarean delivery, male baby was born and thereafter opponent No.1- Dr. P. Bhattacharya told complainant No.2- Dr. Sanjay Bajaj to call any paediatrician immediately as the new born baby was cyanosed. Complainant No.2- Dr. Sanjay Bajaj requested the opponents to call any paediatrician attached to their hospital as he did not know any paediatrician living nearby, but opponents refused. Therefore, one of his friends, who happened to be there, went in search of some paediatrician and contacted Dr. Vinay Waikar and requested him to save his son. Thereafter, on the advice of Dr. Vinay Waikar, his newly born son was admitted in intensive care unit for the acute problem alleged to have developed due to delay in operation and also delay in attending the new born child who sucked lot of maconium and was in severe respiratory distress. Thereafter, as per advice of Dr. Vinay Waikar, the new born baby was shifted to Nursing Home of Dr. Deopujari. However, the condition of baby was deteriorated and after two days i.e. 16/10/1994 baby expired. Therefore, the complainants lodged the consumer complaint alleging medical negligence on the part of opponents No.1 to 3 and claimed compensation at Rs. 1,00,000/- from the opponent No.1- Dr. P. Bhattacharya and also claimed refund of amount of all the fees emerged by the hospital from the opponent No.4 and Rs.5,000/- from opponent No.1.
5. By reply opponents resisted the complaint on the following among other grounds:-
i. They did not dispute that complainant No.1- Dr. Swati was under their treatment and on 10/10/1994 her membranes were separated and further submitted that they did her caesarean delivery on 14/10/1994 but they denied all other adverse averments and submitted that there was no negligence whatsoever on their part but there was delay for caesarean and complainant- Dr. Sanjay Bajaj was responsible for causing such delay. According to them the complainants were reluctant for caesarean operation though the decision for caesarean operation was taken by them and they were prepared for caesarean by calling Dr. Sahay, Anaesthetist at about 9.00 a.m only, complainant No.2- Dr. Sanjay Bajaj was not ready to give consent. It is submitted that on 10/10/1994 after separation of membranes the complainants were adviced to get the complainant No.1- Dr. Swati, admitted to the hospital but the complainant No.2- Dr. Sanjay Bajaj declined to admit and told that he would manage to get the patient admitted to the hospital immediately if emergency would arise. It is submitted that complainant No.2- Dr. Sanjay Bajaj reiterated that he is an M.B.B.S. Doctor and he would not only be able to understand emergency, but also handle the situation, etc.
ii. It is further submitted that on 14/10/1994 when the patient complainant No.1- Dr. Swati was admitted in the hospital she was immediately examined and after due examination the complainants were informed that since the expected date of delivery was crossed by four days, caesarean operation might be required, etc. It is denied that the complainants were told that everything is fine and normal for having normal delivery and normal baby as alleged by the complainants. It is submitted that every reasonable care was taken for delivery of the complainant No.1- Dr. Swati but the advice of the opponents was not fully and properly followed by the complainants. The complainants were always reluctant to undergo tests as and when advised by them and always expressed dissatisfaction about the advice for different tests. It is further submitted that complainant No.1- Dr. Swati was patient of diabetic and blood pressure. She was a base weighing 75 Kg. on 05/10/1994 with tendency for rise in Blood Pressure and with history of paternal diabetes. Therefore, taking into consideration these factors besides others, great care was taken by them in treatment of complainant No.1- Dr. Swati. It is specifically denied that opponent No.1- Dr. Bhattacharya came late in the opponent No.4- Hospital. It is also denied that no Paediatrician was called by the opponents. It is submitted that complainant No.2- Dr. Sanjay Bajaj himself insisted on calling the paediatrician of his own choice only. It is contended that the complainants themselves are responsible for the death of their baby.
iii. It is submitted that opponent No.1- Dr. Bhattacharya is M.D. (Ob. & Gy) retired as Professor from the Government Medical College, Nagpur. She had been instrumental in developing the Department of Obstetrics and Gynaecology, Government Medical College, Nagpur and also career of about 4,000 to 5,000 Doctors from the institution, about 1000 of which are now practising as Gynaecologists and Obstetricians in all the parts of the country and abroad. She is one of the most recognised and respected Authorities of the field of Gynaecology and Obstetrics, due to her achievements and calibre. Likewise respondent No.2- Dr. Nandita Sanyal, M.D. (Ob.& Gy.) is also an expert and experienced specialist , who passed M.D. from the Government Medical College, Nagpur and received Gold Medal at her M.D. She has also worked abroad. Respondent No.3- Dr. Mangala Ghisad also has done her M.D. (Ob.& Gy.) from the Government Medical College, she is also recipient of Gold Medal in the same subject and she has her own clinic and hospital named Sankalp Hospital i.e. respondent No.4.
iv. It is further submitted that after caesarean operation of complainant No.1 – Dr. Swati, the baby was examined by the opponents and found that the cord was twisted around neck of the baby and it was short in length measuring only 16, placentas was also infracted extensively and liker was moconium stained. One loop cord around the neck, uterus retracted over the baby and there was difficulty in delivery of shoulder and, accordingly it is shown in the clinical notes. Further as per the clinical notes, the baby did not cry immediately after birth. The baby cried after suction and oxygen inhalation and was stable. The baby was immediately examined by Dr. Waikar, Paediatrician and as per the advice of Dr. Waikar, Paediatrician, the baby was shifted to the hospital of Dr. Deopujari but the complainants neither made party to the Dr. Mr. Waikar as well as Dr. Deopujari though the are necessary party to the complaint and it is contended that in the absence of necessary party the complaint is not tenable. It is submitted that the complainants have filed false complaint that to after more than 2 years and therefore, the complaint is barred by limitation. It is submitted to dismiss the complaint.
6. On hearing both the sides and considering the evidence on record the District Consumer Forum, Nagpur held that the opponents acted negligently while giving treatment to complainant No.1- Dr. Swati and also committed deficiency in service, etc. The District Consumer Forum, Nagpur negativated the contention of the opponents that the complaint is barred by limitation and further suffers by non-joinder of necessary parties, etc. In keeping with this finding the District Consumer Forum, Nagpur partly allowed the complaint as noted above.
7. Feeling aggrieved by the impugned judgment and order the opponents have filed this appeal.
8. We heard Ld. Counsel for both the sides at length, perused the written notes of arguments submitted by them and also perused the copy of impugned judgment and order, copies of complaint, written version and also affidavit adduce before the District Consumer Forum, Nagpur.
9. From the submission made by Mr. Damle, Ld. Counsel for the complainants/respondents following events of alleged medical negligence can be culled out:-
i. Because of separation of membranes of complainant No.1- Dr. Swati there was loss of amniotic fluid, which led to respiratory distress in the baby.
ii. On 14/10/1994 there was delayed decision of caesarean operation and due to that, baby suffered respiratory distress.
iii. No diagnostic test like ultra sound test was advised so that condition of foetus could be verified.
iv. When the patient, Dr. Swati was admitted in the hospital, she was not examined by opponent No.1- Dr. Bhattacharya and Dr. Bhattacharya came late i.e. about 10.00 a.m.
v. After delivery when the complainant No.1- Dr. Swati was admitted in the hospital proper care was not taken by qualified person. It is also alleged that stitches were applied to complainant No.1- Dr. Swati in such manner that she was required to take treatment for about two months thereafter. There was also no electricity in the hospital at the relevant time.
vi. Paediatrician was not called at the time of caesarean, etc.
10. Before adverting to the evidence on record, we would like to point it out here the settled law pertaining to establish the medical negligence or deficiency in service. It should be noted here that in the case of Dr. Kunal Saha Vs. Sr. Sukumar Mukherjee & ors. 2012(1) CPR 154 (NC) the Hon’ble National Commission, relying on the decision of Hon’bel Apex Court in the case of Smt. Savita Garg Vs. National Heart Institute (SCC page 61) observed that there cannot be, however, any doubt or dispute that for establishing medical negligence or deficiency in service the court would determine the following factors:
i. No guarantee is given by any doctor or surgeon that the patient would be cured.
ii. The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.
iii. Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.
iv. Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
v. In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability.
11. Further relying on the decision of the Hon’bel Apex Court, the Hon’ble National Commission, in the case of Suresh Nanda Vs. Anup Kumar gave account of legal position and pointed out the legal principal culled out by the Hon’ble Apex Court in the case of Kusum Sharma & others Vs. Batra Hospital, I (2010) CPJ 29 (SC) as follows:-
“i) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
iii) The medical profession is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
iv) Medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”
12. Bearing in mind the above principles and applying the same to the facts and circumstances of the present case we would like to proceed to points involved in this matter.
13. At the outset we may point out it here that except bare contention of the complainants there is no expert’s evidence to support their contention. Now it is well settled law that in case of medical negligence when the medical negligence is not apparent from the facts of the case, it is necessary to establish the medical negligence by the expert’s evidence. But in the present case though it is not apparent from record that the opponents acted negligently, no efforts appears to have been made by the complainants to support their contention by adducing expert’s evidence. They have also not taken any pains to lead the evidence of Dr. Waikar and Dr. Deopujari who treated the newly born baby. On the contrary opponents No.1 to 3 adduced their evidence producing their affidavits and also affidavit of Mrs. Molly Chacko a senior staff nurse from the opponent No.4- Sankalpa Hospital. Further on the request of the complainants they were allowed for cross examination and their evidence is recorded. Thus, the Forum has given full opportunity for cross examination, to the complainants.
14. Let us proceed to first consider the complainant’s allegation about separation of membranes of complainant No.1- Dr. Swati and its consequence loss of amniotic fluid, which led to respiratory distress in the baby. Except such bare contention, there is no evidence to substantiate the same. On the contrary the opponents placed on record the text book reference on Obstetrics and Gynaecology by M.K. Krishna Menon and others and pointed out that, in case of crossing or attaining the expected date of delivery, necessitates induction of labour, out of many methods of which separation of membranes is one of the best method. It is also pointed out from the same reference book that the separation of membranes is chosen even in case of presence of other factors like hyper-tension, anaemia, hydramnios, paternal diabetes and chances of having a heavy weight baby. All these factors were present in the complainant No.1- Dr. Swati. It also manifests from the case papers on record. Therefore, the allegation of the complainants that the opponents wrongly did separation of membranes, etc., cannot be sustained.
15. Further it is alleged that on 10/10/1994 after separation of the membranes of complainant No.1-Dr Swati the opponents declined to get her admitted in the hospital and discharged her from the hospital. This allegation of the complainant’s prima-facia appears to be false and not at all sustainable, because no Doctor or medical practitioner would discharge the patient from the hospital. On the contrary, it is our general experience that the medical practitioners insists to get the patient admitted and to continue there as long as possible unless there is insufficient accommodation or in the event of rush of patients in the hospital. In the present case it is not the case of the complainants that on 10/10/1994 after separation of membranes of complainant No.1-Dr. Swati there was rush in the opponent No.4- Hospital. Therefore, on any count, allegations of the complainants on this point are not sustainable. On the contrary the submission put by the opponents that complainant No.1- Dr. Swati was asked to stay in the hospital after separation of membranes, but her husband complainant No.2- Dr. Sanjay Bajaj told them that he would take care as he himself is M.B.B.S. etc. appears to be more probable. Therefore, the opponents cannot be held liable for loss of amniotic fluid after separation of membranes of complainant No.1- Dr. Swati. Even if it is considered that there was depletion of amniotic fluid during the period from 10/10/1994 to 14/10/1994 it was not informed to the opponents by the complainants though they were asked by the opponent No.1- Dr. P. Bhattacharya to inform her whenever there would be any problem.
16. Now coming to the second grievance of the complainants about delay in taking decision for caesarean operation by the opponents and due to that, baby suffered respiratory distress. It is not disputed that on 14/10/1994 complainant- Dr. Swati was admitted in opponent No.4- Sankalp Hospital in the morning at about 5.30 a.m. and thereafter immediately she was examined by opponent No.3- Dr. Ghisad and thereafter by opponent No.2- Dr. Nandita Sanyal. It is also not disputed that early in the morning at about 5.15 a.m. when complainant- Dr. Swati started feeling of labour pains, her husband complainant No.2- Dr. Sanjay informed to opponent No.1- Dr. Bhattacharya and as per her advice, he carried his wife complainant- Dr. Swati and admitted in the opponent No.4- Sankalp Hospital. It is also not disputed that complainant- Dr. Swati was examined by opponent No.2- Dr. Nandita Sanyal and opponent No.3- Dr. Mangala Ghisad as per advice of the opponent No.1- Dr. Bhattacharya. From the affidavits of opponent No.2- Dr. Nandita Sanyal and opponent No.3- Dr. Mangala Ghisad it reflects that they had taken decision at about 9.00 a.m. for caesarean as till then there was no normal delivery though complainant – Dr. Swati was feeling pains since 5.15 a.m. However, it is alleged by the complainants that the opponents had not taken decision till 11.30 a.m. If really the opponents would not have taken decision for caesarean at 9.00 a.m. there could be no reason for calling Anaesthetist- Dr. Sahay. Undisputedly at 10.00 a.m. Anaesthetist- Dr. Sahay as well as opponent No.1- Dr. Bhattacharya were present in the opponent No.4- Sankalp Hospital. It also reflects from the affidavits of opponents’ No. 1 to 3 as well as senior nurse- Molly Chacko. It is submitted by Mr. Sirpurkar, Ld. Counsel for the opponents that, after taking decision for caesarean, at list one hour is required for calling the Anaesthetist and also preparation of caesarean. According to him at 10.00 a.m. the operation theatre as well as all equipment and Doctors including opponent No.1- Dr. Bhattacharya and Anaesthetist- Dr. Sahay were ready. This fact is also not disputed by the opponents. On the contrary, it has been brought on record during the course of examination of the opponents and senior nurse- Smt. Molly Chacko. Therefore, we have no hesitation to accept the arguments advanced by Mr. Sirpurkar, Ld. Counsel for the opponents that the decision for delivery by caesarean was taken by the opponents at about 9.00 p.m.
17. However, it is tried to bring on record on behalf of the complainants that opponent No.1- Dr. Bhattacharya herself was late and she came there at 10.00 a.m. and therefore the contention of the opponents that the decision for caesarean was taken at 9.00 a.m. cannot be accepted. But since it is obvious from the record that as per the instructions of the opponent No.1- Dr. Bhattacharya complainant- Dr. Swati was admitted in opponent No.4- Sankalp Hospital and she was being treated there by opponent Nos. 2 & 3 that too under guidance of opponent No.1- Dr. Bhattacharya, it cannot be accepted that the decision for caesarean operation was not taken at about 9.00 a.m.
18. Now question arises as to why the caesarean operation was done at about 12.00 noon when the opponents had decided to do so at about 9.00 a.m. It is specifically submitted by the opponents in their written version as well as their affidavits that though they had taken decision for caesarean operation at about 9.00 a.m. they could not do it till 12.00 noon as the complainants were reluctant for caesarean and complainant No.2- Dr. Sanjay refused and avoided to give consent, they could not perform the operation immediately. It is specifically submitted by the opponents that the complainants themselves are responsible for delay for caesarean operation as for their obsession of a normal delivery. It is submitted that complainants were asking the opponents that the first delivery of complainant- Dr. Swati was normal without caesarean and therefore, second delivery also should be normal, etc. Moreover, it is also specifically pleaded and stated in the affidavit of opponent No.1- Dr. Bhattacharya that at about 11.30 a.m. when she found that the condition of patient- complainant No.1 Dr. Swati was deteriorating more and more she scolded complainant No.2- Dr. Sanjay and asked him to give consent immediately and thereafter he gave consent. Considering the undisputed facts that the operation was performed at about 12.00 noon though patient-complainant No.1- Dr. Swati was feeling labour pains since at about 5.15 p.m. the submission of opponents that complainant No.2- Dr. Sanjay was avoiding to give consent appears to be more probable and reliable. In such circumstances there could be no reason for the opponents- Doctors to cause such delay in performing the caesarean operation. But it appears from the copy of impugned judgment and order that the District Consumer Forum without considering all these facts and affidavits on record with proper perfection, committed error in discarding the submission of the opponents that the complainants were reluctant to give consent. It is wrongly observed that if the opponent No.1- Dr. Bhattacharya would have scolded complainant No.2- Dr. Sanjay at about 11.30 p.m. she could have scolded him earlier, etc. But this observation of the District Consumer Forum is not being proper cannot be sustained. At the initial stage there could be no reason for opponent No.1- Dr. Bhattacharya to scold complainant No.2- Dr. Sanjay. She scolded complainant No.2- Dr. Sanjay when the things became serious, deteriorating the patient complainant No.1- Dr. Swati. Considering all these facts the contention of the complainants that complainant No.2- Dr. Sanjay requested the opponents to perform caesarean operation without any delay, cannot be accepted.
19. It is alleged by the complainant that no diagnostic tests like ultra sound test was advised by the opponents so as to verify the condition of fetus, etc. But when both the complainants are doctors and medical practitioners by profession, such allegation can not be expected from them. Therefore, we find no substance in such allegation to hold the opponents negligent.
20. Now coming to the next allegation of the complainants about calling pediatrician. It is alleged by the complainants that no pediatrician was called by the opponents and when complainant No.2 asked the opponents to call pediatrician, the opponents asked him to call any pediatrician from the near by locality, etc. Therefore, he sent his friend namely Mr. Ramesh Potdar who contacted Dr. Waikar but initially Dr. Waikar refused to come as he was not called by the opponents. Therefore, complainant No.2- Dr. Sanjay himself contacted Dr. Waikar and thereafter on his request Dr. Waikar came and on examining the newly born child, advised to admit him in ICU for acute problem, etc. Whereas according to the opponents they had called their regular pediatrician, but complainant No.2- Dr. Sanjay himself insisted to call his friend Dr. Waikar and at his insistence Dr. Waikar came there, etc. However, during the cross examination opponent No.2 – Dr. Nandita Sanyal admitted that the regular pediatrician was on leave that day and therefore, Dr. Jaiswal was called. Giving much emphasis on this admission, the District Consumer Forum observed that cat came out of bag and discarded the defense of the opponents. But the District Consumer Forum neglected the further evidence of Dr. Nandita Sanyal that Dr. Waikar was called as per the suggestion of Dr.Sanjay Bajaj. Therefore, such finding of the District Consumer Forum can not be sustained. When undisputedly Dr. Waikar is a friend of complainant No.2- Dr. Sanjay, the defense of the opponents that Dr. Waikar, pediatrician was called there on the say of the complainant No.2- Dr. Sanjay can not be discarded.
21. It is not disputed that after delivery by caesarian the baby was kept in ICU as per the advice of Dr. Waikar and, thereafter the baby was shifted to the hospital of Dr. Deopujari where the baby was under treatment of Dr. Deopujari till his death after 2 days. Considering all these undisputed facts it can not be accepted that the opponents are responsible for the death of baby. However, it appears from the impugned judgment that the Forum observed that due to delay in caesarian operation and non availability of pediatrician at the time of operation, resuscitation of baby is wrongly done by Anaesthetist, etc. But this observation of the District Consumer Forum is being contrary to the facts on record, can not be sustained. It is obvious from the undisputedly facts that Pediatrician Dr. Waikar was called there and Dr. Waikar was present at the time of caesarean operation and immediately after operation he examined the baby and advised for shifting in ICU, etc. Even otherwise it is submitted by the Ld. Counsel for the opponents that as per the medical science the job of resuscitation is done only by Anaesthetist and not by anybody else. It also reflects from the reference book of critical care by Stephen M Ayres and others. We have gone through the same reference book and fully satisfied that the job of resuscitation is done only by Anesthetist and not by a Pediatrician.
22. Further it is merely alleged by the complainants that there was no electricity supply in the opponent No.4- Sankalp Hospital during the period when complainant No.1- Dr. Swati was admitted, etc. and her proper care was not taken, stitches were not properly applied and, therefore, she was required to take treatment for further two months in other hospital. But except bare contention, there is no evidence to substantiate it. It is not specifically disclosed as to when electricity was not available in the opponent No.4- Sankalp Hospital. It is also not disclosed as to where she took medical treatment for two months after the discharge from opponent No.4- Sankalp Hospital. On the contrary it is admitted fact that after her discharge from opponent No.4- Sankalp Hospital on 19/10/1994 she has again visited the same hospital on 22/10/1994 and 24/10/1994. It is also obvious from the medical case papers produced on record. Therefore; on any count such bare allegation made by the complainants can not be sustained.
23. For the forgoing reasons we are of the firm opinion that the opponent doctors have taken all reasonable degree of care while giving treatment and also while conducting caesarean operation of complainant No.1- Dr. Swati and, therefore, negligence can not be attributed to them. But it appears from the facts and evidence on record that the complainants made false and frivolous allegations against the opponent doctors that too after lapse of more than 2 years period with the intention to extract money. It also appears from the impugned judgment that due to ignorance of medical science, the District Consumer Forum jumped to the wrong conclusion holding that the opponents are liable for medical negligence and deficiency in service. Such erroneous findings cannot be sustained.
24. In the result the appellants/opponents succeed and appeal deserves to be allowed. Hence, the following order.
ORDER
1. Appeal is allowed and impugned judgment and order is set aside.
2. Consequently, the complaint stands dismissed.
3. Considering the facts of the case, we direct the parties to bear their own cost.
Dated:- 12/12/2012.
