O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Ops in brief is, that the Op is running a Maternity and Surgical Home called Srinivas Maternity and Surgical Home without necessary equipments for surgery. That she was a pregnant and was regularly visiting first Op hospital for regular checkup. On the suggestion of the first Op she used to visit her hospital often and take medicines as prescribed. The first Op assured her that herself and her child are in healthy condition and nothing to worry. As per the advice of first Op, all tests and scans were also done. On 18/12/2006 she had fever. Then visited first Op hospital for check up, then the first Op after checking her, assured her that there is no problem for herself and child & everything was normal. Again on 20/12/2006 she had stomach pain, immediately went to the first Op hospital who told her that pain was not a delivery pain. Then the first Op prescribed some tablets and injection and told her to go and admit to the hospital on 22/12/2006. On 21/12/2006 at night she again had stomach pain then at 5.00 am she called the first Op and when informed about pain through phone Op No.1 shown carelessness and told her to go to her after 8.00 am. Then when she got herself checked up with Op No.1 who told her that may be having kidney stone due to that she is feeling pain and to take scanning, accordingly abdominopelvic obstetric ultrasound scanning was done and that Op No.1 told her that the child had consumed motion and immediately operation has to be done then only the child will be safe. Then the first Op along with one Radha did operation on that day at 11.35 am and that Op No.1 did laparoscopy without her consent. As the result, she lost opportunity of becoming pregnant. Then the first Op suddenly told her that the child should be in ICU and they do not have ICU unit in their hospital and told her to take the child to other hospital. Then when they requested Op No.1 to arrange for ambulance and referred to good hospital she refused and that first Op folded the new born baby in the cloth and gave it to her husband to go to Kempegowda hospital or any other hospital without arranging ambulance to shift the child. When the child was taken to Kempegowda hospital by her husband they told him that there was no vacancy of bed and directed to take the child to Victoria Hospital but by the time the child was taken to Vani Vilass Hospital it was dead and stated that the child died due to negligence of Op No.1. The first Op had assured her that she would get treatment in Gunasheela hospital at her expenditure and she would again conceive within six months. Dr. Gunasheela also told her that she would conceive again but she has not conceived till date and stated that the first Op did not have any facilities had the facility like child specialist and equipments, as the result caused death of her child negligently and has prayed for awarding compensation of Rs.10.00 lakh.<br /> <br /> Op No.1 has appeared through an Advocate and filed version. Complaint against Ops No.2 and 3 is dismissed since no step was taken against them to serve notice.<br /> <br /> Op No.1 in the version has contended that the complainant did not fulfill the requirement section 2(0) of the act and same is liable to be dismissed denying the allegation of Para 4, the first Op has admitted running of her Nursing Home and admitted further that the complainant was under her treatment during antenatal period. OP No.1 further contending that allegations made in Para 6 to 12 are all totally false and manipulated for unlawful profits. It is stated that the complainant was VDRL Positive and was treated by her and the same could have infected the fetus with Congenital Syphilis. Admitting that the complainant was referred to ultrasound scanning on 08/12/2006 stated that condition of fetus was good and that complainant had approached her on 18/12/2006 for cold and cough was treated. Further complainant had approached her on 21/12/2006 with body pain and therefore treated her. Op has further admitted that on 22/12/2006 at about 9.30 am complainant approached her with false labour pain and on investigation she found that the complainant was undergoing Braxton Hicks Contraction. As she was in her term of pregnancy and stated that there were no symptoms of pre-term labour such as vaginal discharge, vaginal bleeding, spotting increase in the pressure in the pelvic area or any pain in the lower back but being diligent and extra careful she insisted and referred for ultrasound scan on priority and the complainant returned with scan report on 22/12/2006 around 10.30 am. That on studying the ultrasound report it was found that the fetus was under severe fetal distress and Bio-physical profile test was done which rated 4/8 as the breathing rate was absent and also the Amniotic Fluid surrounding the baby had depleted to a dangerous level, she by sensing the emergency immediately summoned a Gynecologist namely Dr. Triveni who advised the complainant to undergo “Cesarean Section Surgery” as she could not shifted elsewhere for delivery for which the complainant agreed. The facts proved that fetus was sinking and immediate medical intervention was to be not done, it would have lead to death of fetus in the womb and life of the complainant would also be in the danger. That after delivery the child was put in incubator by providing oxygen it was examined by pediatrician namely Dr. Sharath Chandra who found the baby was suffering from severe respiratory distress and then complainant’s husband was advised to shift the baby to nearest hospital i.e K.R. Hospital which was one KM away but father refused to take the baby to that hospital on the ground i.e. costly there and it was not within his means. Then at his instance baby was referred to Kempegowda Institute of Medical Science but the complainant’s husband wasted time by taking the baby to Kempegowda Institute of Medical Science where they refused to receive the child for want of vacant bed and when he further took the baby to Vani Vilas Hospital the baby collapsed and have stated further that tubectomy was done on the complainant on her and on the consent of her husband as they had already three children. Then complainant husband with some people threatened her to waive the entire hospital bill and the complainant never cleared outstanding bills stating that pediatric and surgery were presented at the time of delivery and all the procedure were followed and stated that the death of the baby was due to massive respiratory distress in womb of the complainant and denying that Op No.2 and 3 were parties to this treatment and process of delivery has prayed for dismissal of the complaint.<br /> <br /> In the course of enquiry into the complaint, the complainant and the Op No.1 have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The first Op has also got the affidavit evidence of Dr. Triveni, Gynecologist who did the cesarean to the complainant and that of Dr. Sharath Chandra Pediatrician who attended the child after the delivery. The counsel for the complainant has subjected the first Op to cross examination. The counsel for the first Op has subjected the complainant to cross examination. The complainant along with complainant has filed copies of prescription, copy of ultrasound scanning report, burial ground, certificate copy of the complaint she had given to the concerned police, copies of treatment given to the complainant after delivery in Gunasheela Nursing Home with copies of medical bills. Op No.1 has not produced any documents. The counsel for the first Op has filed his written arguments and relied on three decisions reported in I (2001) CPJ page 554 of Uttara Pradesh State Commission, II (2002) CPJ page 329 of West Bengal State Commission and IV (2003), CPJ page 589 of UT Chandigarh State Commission and also produced a copy of Willliam’s book on Obstetrics. We have heard the counsel for the complainant, perused entire records and written arguments of counsel for Op.<br /> <br /> On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that first opponent was negligent in treating the complainant prior to the delivery and in treating the new born child after delivery and has caused death of the child by not taking care of the situation as required to be done by an ordinary and prudent medical professionist and thereby has caused deficiency in her service?<br /> 2. Whether the opponent proves that Tubectomy on the complainant was alone with consent of the complainant or her husband?<br /> 3. To what relief the complainant is entitle to?<br /> <br /> Point No.1 : In the affirmative<br /> Point No.2 : In the negative<br /> Point No.3: See the final order<br /> <br /> Answer on point No.1 & 2: We have by referring the contentions of the parties as canvassed by them through their complaint and version found that there is no dispute between the parties that Op No.1 is running a surgical home in the name and style as Sri Srinivasa Maternity and Surgical Home and that this complainant who was a pregnant was consulting first Op throughout during antenatal period until she delivered a child through caesarean section.<br /> <br /> The learned counsel appearing for the Op besides filing his written arguments argued that the complainant has not paid any consultation charges or hospital charges as such she is not a consumer and therefore the complaint is not maintainable. Then argument of the counsel for the Op does not stand to the reason, because the Op neither in her version nor in her affidavit evidence has contended so. In the cross examination by the counsel for the first Op, the complainant has categorically stated to have paid hospital charges to the first Op but the first Op has not issued receipt. This witness has not been further cross examined by suggesting that the complainant has not paid hospital charges. The first Op has also when she was subjected to cross examination has not stated that the complainant has not paid hospital charges. Therefore, the arguments of the counsel for the first Op that the complainant did not pay hospital charges cannot be believed as there is no specific stand taken by the Op in the version and affidavit evidence and it cannot be permitted and considered only at the stage of arguments.<br /> <br /> The counsel for the first Op further submitted that complainant has not filed this complaint within the period of two years after the cause of action arouse, therefore the complaint is barred by limitation. It is again necessary to refer to the version filed by the first Op and also to the affidavit evidence of the first Op wherein they have not taken that point of limitation and that the complaint is barred by limitation as such the complainant is estoped from taking such contention in the arguments. Counsel for the first Op in his argument has stated that cause of action for filing the complaint arouse on 22/12/2006 i.e the date on which the baby was extracted through caesarean section and stated that complaint is filed before this forum on 02/04/2009 after a period of two years three months 13 days therefore there is a delay of 3 months 13 days, the delay is not explained and the complaint is liable to be dismissed and in this regard he has relied upon the first decision he has referred to above. But we should bear in mind that though delivery was done through caesarean section on 22/12/2006, the complainant was discharged from the Ops hospital on 25/12/2006 and then the complainant was taken to Guna Sheela IVF Centre by the first Op with an assurance to the complainant for getting her treatment for conceiving again and that the complainant was admitted to that hospital on 01/04/2007 and was discharged on 08/04/2007 therefore it is found that the complainant was under the facts and circumstance of the case underwent untold suffering and terminal could not be expected to look for litigation and file a complaint immediately after cesarean was done to her as expected by this first Op, therefore it appears, in our view is further a cruel thinking of the first Op to take such a contention in the light of certain facts we are going to revel from the records which reflect on Op No.1<br /> <br /> Before we go to the facts on merits it is relevant to go to the qualification of Op No.1 and her competency in attending the serious cases of delivery like this. The first Op in her cross examination has admitted that she is a graduate in science has done 5 years degree course in Ayurvedic Medicine and also done Integrated medicine and she is running Maternity and Surgical Home and the complainant was consulting her from day of her pregnancy till delivery. Therefore keeping in mind this professional qualification of this first Op, we shall refer to other evidence on record.<br /> <br /> The complainant in her complaint and also in the affidavit evidence stated that on 18/12/2006 she had fever and approached the 1st Op for check up, at that time the 1st Op told her that everything is normal and gave some tablets. She has further stated again on 20/12/2006 she had stomach pain, immediately approached Op No.1 who told her that pain was not a delivery pain and gave some tablets and injection and told her to get admitted to the hospital on 22/12/2006 and on the same day the complainant got abdominopelvic and obstetric ultrasound scan done and got report. That on 21/12/2006 night she had once again stomach pain and contacted the first Op around 5.00 am through phone but she shown carelessness and told her to go at 8.00 am. Then she approached Op then the first Op checked her and told her that pain may be due to kidney stone and advised her to take scanning then after scanning was got done report was shown to the first Op who told her that child has consumed motion and she was operated at 11.35 am. To this allegation of the complainant, the first Op in a casual way denied those allegations as false but has not specifically denied as to what the complainant has stated in her complaint and affidavit about the casual remarks of the first Op, her diagnoses and opinion given. Op No.1 further in Para 9 of her version and in Para 7 of her affidavit evidence stated as if there were no symptoms of delivery and she referred the patient for scanning on the same day at 10.30 am and after receipt of scanning report she noticed that fetus was under severe distress, bio-physical profile test was done which reached 4/8 breathing rate of fetus was absent and Amniotic Fluid had depleted to a dangerous level. Scanning report dated 22/12/2006 also discloses that liquor is grossly reduced, no measurable pockets seen, liquor was zero, breathing of fetus was zero and score was shown as 4/8. The first Op therefore by referring to the scan report has admitted that the conditions of the fetus was under severe distress needing immediate medical attention but her clinical examination of the complainant as spoken to by her is quite contrary. If the Op was really qualified or exercised care like an ordinary and prudent qualified medical professionist had diagnosing capacity she would have definitely understood the plight of the complainant, her abdominal pain and would not have told the complainant that she might be having kidney stone. The statement of the complainant that right from 18/12/2006 till 22/12/2006 she had abdominal problem and suffering the Op was not in a position to explore clinical diagnose and to take appropriate measure at the earliest point of time to prevent what has happened. <br /> <br /> As admitted by the first Op after going through the ultrasound scanning report she found that fetus was under severe distress as its breathing rate was absent and Amniotic Fluid was also absent needing immediate caesarean section surgery. Of course, Op No.1 has stated she immediately summoned a gynecologist namely Dr. Triveni who advised cesarean section surgery as the complainant could not be shifted elsewhere for the birth of the baby. Op No.1 has further admitted that the condition of the complainant particularly the fetus in the womb was sinking and if immediate medical intervention was not done it might have led to the death of fetus in the womb and also the life of the complainant too would be in danger. Op No.1 in Para 9 of her affidavit evidence also has spoken to this critical condition of the baby and mother which needed immediate medical intervention. That means to say the life of the complainant was also in danger and stated that the complainant could not be shifted elsewhere. Her witness Dr. Triveni, Gynecologist who did caesarean section surgery on the complainant has also by referring to the condition of the fetus has stated that fetus in the womb was sinking and if immediate medical intervention was not done it would have lead to the death of the fetus and the life of the complainant could have also be in danger. Even this witness has stated, the complainant could not be shifted elsewhere for delivery. The first Op has also got examined that pediatrician by name Dr. Sharath Chandra who has in his affidavit evidence stated that he after finding the stress of the baby which was put in the incubator, oxygen was provided but still it was suffering from sever respiratory distress and he advised the husband of the complainant to shift the baby to K.R. Hospital. On going through the version and affidavit evidence of first Op and her witness beyond doubt prove that the condition of the baby was critical and life of the complainant was also in danger if immediate surgery was not done. Of course, the first Op has stated she immediately called the Gynecologist Pediatrician and surgery was done and the baby was extracted. But the condition of the baby even after delivery through cesarean was not safe. It is stated that the baby was kept in the incubator where oxygen was provided but there was no ICU facility and other facility to treat the baby in that condition, was to be immediately shifted to a nearest hospital which had Neo Natal Intensive Care facility. If that were to be the condition of the fetus in the womb, the mother condition of the baby after delivery and facilities in the Op hospital we find it would have been wise and diligent for this Op No.1 who should have advised the complainant to a well equipped hospital or to shift her to another hospital. OP No.1 and her witness have stated as if the complainant could not be shifted elsewhere. why they could not shift the complainant to any other hospital is not explained. <br /> <br /> Undisputedly, the complainant went to Op No.1 hospital on 22/12/2006 at 9.30 am this has been admitted by the Op in Para 9 of her version. Op clinically examined her and advised for scanning. Then the complainant after getting scan done returned to Op with scanning report at 10.30 am. Thereafter, Op who had seen that scanning report at 10.30 am realized that condition of the fetus and the condition of the complainant if immediate surgery was not done were in danger. But stated to had contacted the Gynecologist who comes to Op No.1 hospital and undertakes caesarean section surgery at 11.30 am and the baby was extracted. It is admitted by Op No.1 and her witness that K.R. hospital to which they had advised the complainant’s husband to take the child for treatment after delivery is situated 1 Km away from Op No.1 hospital. It is not their case that K.R. hospital did not have Gynecology section with the assistance of Gynecologist to do cesarean section surgery then why did they not advised or shifted the complainant to KIMS or at least to Vani Vilas Hospital from 10.30 AM till 11.30 am. Op No.1 who was not even a qualified doctor attended this kind of serious case who was not readily having Gynecologist, Surgeon and Pediatrician and did not have Ambulance facility, ICU facility and other specialized person and infrastructure Op instead of taking the risk of conducting caesarean section surgery who should have forwarded the patient to a well equipped hospital in the interest of the child and the mother. Op No.1 in her affidavit evidence has admitted, that despite that condition of the baby and the mother she took the risk of conducting cesarean surgery in her hospital itself but stated as if on the advice of her surgeon who told her that they could manage the patient in Op No.1 hospital itself. But she has not examined that surgeon who advised her on the contrary it is proved that Op No.1 but it is proved that Op No.1 and her doctors have failed to save the complainant’s child. In this regard, we find it necessary to refer to certain admissions of Op No.1 elicited in the cross examination by the counsel for the complainant which explicitly prove the negligence of Op No.1 and her doctors.<br /> <br /> Op No.1 in her cross examination admitted that the complainant from day one of her pregnancy period till delivery was under her treatment. Further admitted that caesarean was done at 11.30 am and she had come to know the body condition of the child before it was delivered and to a question by the counsel for the complainant that even after knowing the condition of the child prior to the delivery why she did not chose to refer the patient to a major she hospital has stated that her surgeon told her that they can manage. She has further admitted that pediatrician advised the child to be referred to any of the hospital which is equipped to treat its condition and the child should have been referred to KIMS hospital after ascertaining availability of bed in the hospital but admitted that they did not ascertain, did not even assist the husband of the complainant in taking the child. It is further admitted by the Op that the child after delivery was in severe breathing distress. They did not arrange to refer that child to any equipped hospital and did not arrange any ambulance, she admitted to had not ascertain the availability of facilities and bed and they simply after seeing the critical conditions of the baby had given it to the father of the child after covering it with cloth leaving to his option. Op No.1 in the course of cross examination has admitted that child was not sent in an ambulance it was covered with cloth and was handed over to the father to take it to KIMS. It is stated by the complainant that father of the child in that helpless condition took the child wrapped with cloth to KIMS hospital where they refused to admit without prior intimation and for lack of bed and they directed to Vani Vilas hospital and by the time the father took the child to Vani Vilas Hospital it was dead. Op No.1 in the course of examination has denied her further knowledge as to what happened to the child that was given to its father wrapped in cloth. The Op has not denied that the child of the complainant met with its fate due to this kind of negligence. Therefore, we find it the Op even before the delivery had referred the complainant to a well equipped hospital, the child could have been saved and the complainant would not have gone to such a pathetic condition and suffer agony. Even otherwise after cesarean delivery if Op had arranged for ambulance, oxygen, contacted some major hospitals ascertain the availability of bed and arranged to send the baby with that facility, the child could have been save. It is highly in human for any doctor or any hospital to behave in the way the Op has done in this case in handing over the child to the father wrapped with a cloth despite the fact that its life was under threat if immediate required medical attention was not given. Therefore, the facts admitted by the Op and her witness themselves prove that the Op No.1 was totally negligent in treating the complainant prior to delivery and also her child after delivery and she has become responsible for death of the child. This is not all the thing that the Op has committed but has committed another wrong in doing tubectomy to the complainant without anybody’s consent.<br /> <br /> Complainant has alleged that Op No.1 has done tubectomy without her knowledge. Though Op No.1 and her Gynecologist have stated that tubectomy was done with the consent of complainant and her husband but they have not proved it. Op No.1 has stated that tubectomy was done with the consent of the complainant whereas her witness the Gynecologist stated as if tubectomy was done with the consent of the complainant and her husband but both of them have admitted that they have not produced the consent form or consent letter they had taken. Op No.1 in the cross examination categorically admitted that consent letter is not produced. Even thereafter they have not proved the tubectomy was done either with the consent of the complainant or her husband. Therefore, we have no option but to say that tubectomy was done without the consent of either complainant or husband. It is stated that the complainant has lost the chance of conceiving again. Though Op No.1 has stated that she at her expenditure got the complainant treated with a Gynecologist in Gunasheela Nursing Home to enable the complainant to conceive again and the documents are produced in this regard but the fact as stated by the complainant she has not conceived till date is not controverted. Therefore, it is proved that Op No.1 has done tubectomy without the consent of the party are attendant and that has prevented the complainant to conceive again and to have a child. Though it is stated that the complainant is having already three children but that cannot become a defense for this Op in the matter of this type. We therefore, on considering the entire materials placed before us, we are of the view that the admission of the Op NO.1 and admissions of her witness as made in the affidavit prove that Op No.1’s hospital was ill-equipped to treat cases this type and Op NO.1’s doctor was also not qualified in the field but still took the risk of cesarean delivery in her hospital and then neglected to take care of the child after delivery despite it was in distress condition and allowed it to the fate of the parents and child. <br /> <br /> Counsel appearing for the first Op argued that the complainant has not proved the medical negligence of the first Op by examining any expert or by producing any expert evidence and in this regard he has relied upon the second and third decision we have referred to above. But we are of the humble view those decisions have no application to the facts of this case, in view of the fact that material placed before us and admission of the Op themselves establish the negligence of Op No.1 in treating the child and mother. Hence, we hold that Op No.1 was negligent and she is liable to compensate the complainant. Complainant has claimed the compensation of Rs.10.00 lakh which is in our view is baseless. But having regard to the fact that the Op was grossly negligent in treating the cause of the complainant, caused the death of the child and did tubectomy without her consent and in both way has caused great loss to the complainant and therefore bearing in mind this agony, we find this as a fit case to award a total compensation of Rs.3.00 lakh. With the result, we answer point No.1 in the affirmative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed. Op No.1 is ordered to pay compensation of Rs.3.00 lakhs to the complainant within 60 days from the date of this order failing which she shall pay interest @ 10% p.a from the date of this order till the date of payment.<br /> <br /> Op shall also pay cost of Rs.3,000/- to the complainant.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 26th May 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />