Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The  complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 ((now section 35 of Consumer Protection Act, 2019) on the allegations that on Opposite Party No.1 Hospital  is run by Opposite Parties No.2 to 4  doctors jointly from many years.  Further alleges that Paramjeet Kaur complainant was pregnant and her  treatment was under the hands of Opposite Parties No.3 and 4. The opposite party no.3 on 18.10.2019 got clinical blood report of Paramjeet Kaur from Focus Clinical Laboratory, Ara Road Moga, and again on 19.10.2019, opposite party no.3 got ENDOCRINOLOGY report of Paramjeet Kaur from SRI Diagnostic Laboratory a branch in Moga of SRL Limited, 636-L, Upper Ground Floor, Model Town, Jawadi Road Ludhiana, and both the reports are normal.   Further alleges that  on 02.11.2019, opposite party 2 got conducted the Antenatal Ultrasound of Paramjeet Kaur, the result of the report is Normal. When the pregnancy of complainant was about 6/7 month, she went to the Hospital for ultrasound scan, but all the opposite party denied to scan and they wanted to scan in the 9th month of pregnancy. But complainant and her attendant want to know the health of the baby, then upon repeated requests, on 03.01.2020 opposite party no.2 got conducted the ultrasound scan of Paramjeet Kaur. From this report the health of baby was perfect and was in good condition. After this, on 03.03.2020 opposite party no.3 again got blood from Focus Clinical reports of Paramjeet Kaur Laboratory, which was normal, and when complainant in the 8th month of her pregnancy visited the hospital and met opposite party 3 and 4 for medicine then opposite party 3 and 4 under the excuse of Lock Down did not attend to the wife of the complainant and also denied from medicine. Again on 14.04.2020, complainant went to Opposite Party hospital for further scan and medicine, then opposite party no.2 conducted the scan and on doing this the opposite party instructed the complainant to immediate admission the complainant Paramjeet Kaur  in hospital for her delivery through caesarean operation. But the doctors did not hand over the ultra sound scan report of complainant Paramjeet Kaur   dated 14.04.2020, and also did not disclose about the result of that report. On very date after taken signatures on the various papers of Paramjeet Kaur the opposite party admitted the complainant Paramjeet Kaur  in the Hospital. At about 12:00PM on 15.04.2020, after 2 hours of caesarean operation, a male baby was born, and complainant Paramjeet Kaur  shifted to Ward from operation theatre, but about laps of other 2 hours the doctors did not hand over the baby to the complainant and that time the opposite parties narrated that the baby is under treatment and after laps of other more 2 hours, the child handed over to the complainant by opposite party no.3, at that time the head of the baby was covered by a Cap, and opposite party no.3 told that the baby has good health and in sound condition and also instructed to leave the hospital and took the baby in home alongwith another warning that the complainant and his family will not remove the cap from the head of the baby to prevent from the attack of Covid-19 and also issued baby Birth Record and Vaccination Card, but the complainant was surprised that usually after caesarean operation the patient have to remain under the observation of doctors for about 4-5 days, but the opposite party immediately instructed to leave the hospital, and the baby was also appear week and lazy, under this situation complainant requested to the opposite party to keep the patient under their supervision for some days, then on repeated requests the doctor did not discharge the complainant Paramjeet Kaur,  but opposite party no.3 instructed the complainant and her family that they will not bathe the baby and they also will not remove the cap of the baby from his head and hospital staff will look after the baby for his bathing etc. On 17.04.2020, the opposite party took the baby for check-up and after some time hold the baby back to the complainant and narrated that all is good, baby is in sound condition and patient Parmajeet Kaur also in sound condition, and therefore opposite parties after taking Rs. 30,000/- discharged the complainant Paramjeet Kaur  and her baby from the hospital, but did not issue the receipts of paid bill. When at the same time, the complainant Paramjeet Kaur and new born baby, were still in the hospital and decided to leave the hospital, then suddenly baby got fits attack. Upon this complainant took the baby to Dr Arun Aggarwal (a child specialist) practicing in front of the opposite party’s hospital, then Dr Arun Aggarwal conducted the check-up of baby after removing his cap from his head, then he disclosed that a stitched wound alongwith scalpel hair is present on the left side of the head of the baby and severe bleeding also flowed in the head of the baby. But it was surprised to the complainant that the opposite parties did not disclose about this hurt of stitched wound in the head of the baby and also did not disclose about the happening of this incident, and the opposite party kept mum all time and hide this grievous negligence by covering the head of the baby with a cap from the complainant and her family. On the same day i.e. 17.04.2020 Dr.Arun Aggerwal understand that it is emergency case and he  referred the baby to Dr. Ravi Bansal, Chandigarh Hospital, Kotakpura. Then the complainant immediately went to Kotakpura in the Hospital of above said Ravi Bansal. Dr. Ravi Bansal got admitted the baby in his hospital and start his treatment. Upto 22 April 2020 the baby remained on ventilator, which was billed about Rs.90,000/-. Then on 22^nd April 2020, Dr. Ravi Bansal again referred the baby to PGI, Chandigarh, the copies of medical reports of baby issued by Apollo Diagnostic Clinic dated 18.04.2020, 19.04.2020, 20.04.2020, 21.04.2020 and 22.04.2020 along with Referral Summary of Chandigarh Child Care Centre, Kotakpura are attached with the complaint. Then the complainant arranged a ventilator equipped ambulance for PGI for the sum of Rs.10,000/-, but the baby become sick in the way to PGI, Chandigarh, then complainant immediately got admitted the baby in the SPS, Hospital, Ludhiana. From 22^nd April, 2020 to 24^th  April 2020, the baby remained under treatment in SPS, Hospital Ludhiana. The doctor of SPS Hospital, disclosed that from the time of injury on head of the baby, the brain almost dump during the time of injury, and therefore due to this head injury the other organ of the baby also enter in critical stage, due to non approach of blood to the organs. The kidney was also affected and the doctors of SPS, Hospital started dialysis of baby. In all this treatment an amount of Rs.85,000/- was paid to SPS Hospital by the complainant.  The doctors of SPS, Hospital Ludhiana, told to the complainant that brain of baby, completely withdrawn his work and now in non-functional (idle) stage, therefore due to this the other organ of baby are also corrupted and are under shock, the baby may will not survive and it is the wish of the complainant to get  carry on treatment or not, otherwise they have no hope. Therefore, on 24th April 2020, the complainant with heavy heart and soul left the hospital and took the baby back at home, but in the way, from Ludhiana to Khukhrana, the baby become (idle) non-functional and hence died. On 25.04.2020 the complainant got recorded about this incident in Police Station City South Moga, upon this the police of City South Moga, registered Daily Diary Report No. 013 Dated 25.04.2020. The post mortem of the baby was done by Dr. Manpreet Kaur, Dalbir Gabha and Dr. Niharkia Goyal in Civil Hospital Moga and on bare perusal of the post-mortem  report, the result of death of the baby was the injury No.2 which was  the  head injury, which was inflected to the head of the baby by the negligent act of opposite parties, the copy of the Post Mortems report is Ex. C19. From this injury, the internal organ of the baby got infected and brain of the baby become (idle) non-functional due to internal flow of blood, during injury.  As such, Opposite Parties ruined the life of complainant Paramjeet Kaur  socially, mentally and monetary, as this is their first baby, and love and affection is on peak in the hearts of parents for their first baby. Doctors are termed as life savers on earth. They have been given a place next to God. There is a certain amount of trust that people repose in doctors that they will not behave negligently during the treatment. The care should be of a very reasonable nature. If the doctors act negligently then this will result in the breach of trust. That the Indian society is becoming increasingly aware about patients' right. It is the duty of the doctor to treat his patients well and with due care and if any mishap occurs then the authority and doctors will be liable to compensate. That is why, due to medical negligence, many hospitals and doctors are facing complaints regarding mismanagement, poor facilities, erroneous treatment and negligence. Negligence is the breach of a legal duty to care which a doctor owes to his every patient. The law mandates a certain amount of care which every doctor should undertake. Therefore, the breach of legal duty helps initiate action against negligence. When a person offers medical advice to another, it is impliedly understood that he has a skilled knowledge about the concerned health issue and will take care of it. Vide instant complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to pay Rs.15 lakhs as the patient and her family suffered through mental tension, loss of child, loss of love and affection of child, agony and lack of service by the Opposite Parties for their acts and conducts, medical negligence and harassment, alongwith expenditure of Rs.2,45,000/- (Rs.30,000/- paid to Opposite Party plus Rs.90,000/- paid to Delhi Child Centre Kotkapura plus Rs.10,000/- as ventilator ambulance plus Rs.85,000/- paid to SPS Hospital Ludhiana plus Rs.30,000/-  extra medicine and purchase of  blood etc) with litigation expenses of Rs.25,500/- totaling Rs.17,70,500/- alongwith interest  @ 18% per annum till actual realization or any other relief to which this District Consumer Commission may deem fit be also granted.   

Hence, the present complaint.

2.       After service of notice,  Opposite Parties No.1 to 4 appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable; that there is no deficiency in service on the part of the appellant/ Opposite Parties.  Further alleges that Opposite Party No.1 hospital is a well equipped hospital duly registered with State Government having a team of qualified and experienced consultants and super specialists. Opposite Parties No.2 to 4 are the qualified and experienced doctors. Moreover, there is nothing on record to prove that there is any medical negligence or deficiency in service on the part of the appellant/ Opposite Parties. The present complaint is not supported by any expert medical witness on behalf of the complainant.  In fact, Paramjeet Kaur complainant visited Opposite Party No.3 for her antenatal care since her pregnancy. The patient was examined and advised accordingly every time  she visited Opposite Party No.3. On 2.11.2019 and thereafter on 3.11.2020, the patient visited  Opposite Party No.3  and was advised for early pregnancy ultrasound scan and the same was done by Dr.Kanu Goyal of Focus Scan & Imaging Centre, Moga and the findings were normal. It is submitted that as per accepted medical standards ‘Ultrasonography (USG) is not routinely indicated during 6^th and 7^th month of pregnancy, unless specifically indicated.  Opposite Party No.3 advised the patient to get growth scan in the 8^th month of pregnancy, but patient did not come for the scan during her 8^th month, rather she came late for the growth scan on 14.04.2020 (during 9^th month) and on this, Opposite Party No.3 specifically asked as to why she did not come in 8^th Month as advised? then the patient replied that she could not come due to lockdown and curfew.  The scan was done on 14.04.2020 and it showed that Fetus had Asymmetrical Growth Restriction.    SEVERE Fetoplacental Insufficiency and Protective Amniotic Fluid was towards lower side. After examining the said scan, OP No.3 informed in detail to patient & her husband about serious condition of the baby, advised admission to Mrs. Paramjeet Kaur. The patient & her husband agreed and thus, the patient admitted on 14.4.2020. After admission, treatment was started and Injection Betamethasone was given so as to avoid RDS (respiratory distress syndrome). The patient was regularly examined and monitored during her stay in the hospital, and was never was neglected. On 15.4.2020, during Caesarian surgery, when incision was given on uterus, the protective amniotic fluid was towards lower side., due to which, inadvertently a very small nick/ cut occurred on baby's scalp, which was very small & superficial (skin deep) (about 1cm) and was immediately identified & without any delay, small stitch managed was applied on the cut skin. Baby's father was shown the small cut & explained that it occurred inadvertently due to less quantity of protective amniotic fluid. This fact written in medical record of the patient.  After delivery, baby cried immediately and APGAR score was 8, 9 which clearly means that there was no harm to the baby due to very superficial nick/cut on his scalp. The baby was kept under observation for one hour and then safely handed over to his father. Baby remained fine from the time of his birth, till 17.4.2020 evening. During the said period the baby was regularly observed, and he was taking the feed normally. On 17.4.2020 evening, family members informed that baby was not taking the feed properly. OP No.3 immediately advised them to consult Dr.Arun Aggarwal (MD Pediatrics), and also sent her staff alongwith the baby. It was found that baby had hypoglycemia which was treated by Dr.Arun Aggarwal and after preliminary, he referred the baby to Chandigarh Hospital, Kot Kapura for further treatments. Paramjit Kaur was discharged on 17.4.2020 in stable condition. On 17.4.2020, baby was admitted in Chandigarh Hospital, Kot Kapura and was treated there till 22.4.2020. As per record, the baby had abnormalities, which were not due to a small cut on scalp. The baby had feto-placental insufficiency, amniotic fluid was towards lower side, hypoglycemia, severely low WBC, severe thrombocytopenia, sepsis, seizures, respiratory failure and Acute Kidney injury which are not related to a small superficial cut on scalp. On 22.4.2020 at about 11:00am, father-in-law of complainant along with 20-25 persons came to answering Opposite Parties and falsely said that baby has died (however, truth is that the baby was alive at that time, subsequently died on 25.4.2020), and that they had spent Rs.5 lacs on baby's treatment. They demanded money from the answering respondents, and threatened that in case money is not paid, then they will hold illegal demonstrations/ Dharnas  & Gheraos against the Opposite Parties. They used abusive language and threatened  to defame/ harm the professional reputation of the answering Opposite Parties. The Opposite Parties immediately informed local police and gave written complaint to the Police Officer about the incident so as to avoid any further  unlawful action by the patient party. On 22.4.2020, Baby was admitted in SPS Hospital Ludhiana and on 23.04.2020, 2D Echo Color Doppler done at SPS Hospital and said hospital showed that baby  had Large Patent Ductus Arteriosus, Severe Pulmonary Artery Hypertension, Mild Left Ventricular Diastolic Dysfunction.  The patient party acted negligently and they did not get the complete treatment and they took away the baby against medical advice. Not only this, Civil Surgeon, Moga, constituted a Medical Board of Negligence to conduct enquiry upon the case, in relation to complaint filed by the patient party. The medical board conducted a detailed inquiry and considered the medical records, post mortem report, and of both parties (complainant & Respondents) and clearly stated that, "In our opinion, death of baby of Mrs. Paramjit Kaur does not seem to occur due to stitch on the head or due to fall of the baby. The post mortem report  shows that the cause of death was "multi organ failure due to sepsis". Thus, it is clear that death of the baby did not occur due to small cut on the head and hence there is no medical negligence on the part of the answering  Opposite Parties. On merits, Opposite Parties No.1 to 4 took up the same and similar pleas as taken up by them on the preliminary objections. All other allegations made by the complainant are totally wrong and specifically denied and it is, therefore, prayed that the present complaint is not maintainable and the same deserves dismissal.  

3.       Opposite Party No.5 appeared separately through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that  the complainant has got no locus standi to file the present complaint; that no deficiency in service has been attributed to the Opposite Party No.5. However, Opposite Party No.1 Hospital is insured with the appellant/ Opposite Party vide Insurance Policy number 272200/48/2020/3721 subject to insurance policy’s terms and conditions. Opposite Party No.2 alleges that he is insured  with Opposite Party No.5 vide Profession Indemnity Policy No. 272200/48/2019/14765 w.e.f. 29.11.2018 to 28.11.2019 and policy No. 272200/48/2020/5731 for the period w.e.f.19.12.2019 to 18.12.2020 on Claim Made Basis. After that this policy was not renewed with Opposite Party No.5. The incident was reported on 24.3.2021 after the expiry of the policy and as such, Opposite Party No.5 has no liability in the captioned case.  Opposite Party No.3 alleges that she is insured with appellant/ Opposite Party vide professional indemnity policy No. 272200/48/2019/14766 w.e.f. 29.11.2018 to 28.11.2019 and the alleged incident of medical negligence as mentioned in the complaint is between 17.04.2020 to 25.04.2020 and the alleged incident of medical negligence falls outside the purview of the insurance policy since the policy expired on 28.11.2019 and hence, the appellant/ Opposite Party is not liable in this case. Moreover, voluminous evidence is required in this complaint, so this District Consumer Commission has got no jurisdiction to try the complaint and the Civil Court has got jurisdiction to try such complaints. On merits, Opposite Party No.5 took up almost the same and similar pleas as taken up by Opposite Party No.5 in preliminary objections and hence, the complainant is liable to be dismissed. 

4.       Opposite Party No.6 appeared separately through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that  the complainant has got no locus standi to file the present complaint; that no deficiency in service has been attributed to the Opposite Party No.6.  The intricated questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under the Act and the appropriate remedy, if any, lies only in the Civil Court.  Further, Opposite Party No.4-Dr.Minakshi Goyal   has not treated the complainant in any manner, and as such, the complaint is liable to be dismissed qua against Opposite Party No.4 as well as appellant/ Opposite Party. In this way, the present complaint is bad for mis-joinder of parties as the complainant has wrongly impleaded Opposite Party No.4 in the instant complaint. The complainant has failed to mention that the appellant/ Opposite Party ever treated or operated the complainant or as to how Opposite Party No.4 was negligent and the complainant was not treated by Opposite Party No.4 nor prescribed any medicines. As per the reply submitted by Opposite Parties No.1 to 4, Opposite Parties No.1 to 3 treated the complainant for her pregnancy in a best manner and they also tried their level best to save the life of newly born baby, being the qualified doctors. Opposite Party No.4 is a well qualified doctor and has treated large number of patients in the area, as such, there is no negligence at all. The complainant has not produced any expert evidence to prove any alleged negligence of Opposite Party No.4. On merits, Opposite Party No.6 took up almost the same and similar pleas as taken up by Opposite Party No.6 in preliminary objections and hence, the complainant is liable to be dismissed. 

5.       In order to prove her case, the complainant has tendered into evidence  affidavit of Jagsir Singh attorney Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C41 and closed her evidence.

6.       On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 to 4 also tendered  into evidence affidavit  of Dr.Kanu Goyal Ex.OP1 to 4/1 alongwith copy of documents Ex.OPs1 to 4/2 to Ex.OPs1 to 4/25.  Opposite Party No.5 tendered into evidence the affidavit of Sh.Sukhminder Singh Ex.OP5/1 alongwith copies of documents Ex.OP5/2 to Ex.OP5/9. Similarly, Opposite Party No.6 tendered into evidence the copy of policy Ex.OP6/1 and affidavit of Sh.Roshan Mishra Ex.OP6/2 and thereafter, the Opposite Parties closed their respective evidence.   

7.       We have heard the ld.counsel for the parties  and also gone through the documents placed on record.

8.       Ld.counsel for the Complainant as well as ld.counsel for the Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties.  The first contention of the Opposite Parties is that intricated questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under the Act and the appropriate remedy, if any, lies only in the Civil Court. But we do not agreed with the aforesaid contention of the ld.counsel for the Opposite Parties because this objection of the Opposite Parties that the complaint cannot be decided in summary proceedings and the matter should be referred to Civil Court is not tenable in view of the law settled by the Hon'ble Supreme Court in the case titled "Dr.J.J.Merchant vs. Shrinath Chaturvedi III (2002) CPJ 8 (SC); and C. Venkatachalam Vs. Ajitkumar C.Shah III (2011) CPJ 33 (SC) has specifically held that remedy under the Consumer Protection Act cannot be denied because complicated question of law was involved. It reads as under:

"It should be kept in mind that legislature has provided alternative efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on the ground that complicated questions of facts cannot be decided in summary proceedings. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts required to be dealt with or decided. The Act provides sufficient safeguards,"

We feel, that in view of the law laid down by the Hon’ble Supreme Court, this District Consumer Commission can decide this matter  in summary proceedings and there is no need to send or refer the matter to the civil court. The present case is quite simple and facts and circumstances are speaking for themselves. Hence, it need not to be referred to Civil Court.    

9.       The further main contention of the complainant is that at the time of Caesarian operation of complainant Paramjeet Kaur, the baby was injured  due to the injury on the left side of the scalp of the baby and was a wound alongwith scalpel hair, which is negligence on the part of the Opposite Parties. Moreover,  it was surprise to the complainant that the opposite parties did not disclose about this hurt (wound) of stitched wound in the scalp of the baby and also did not disclose about the happening of this incident, and the opposite party kept mum all time and hide this negligence by covering the head of the baby with a cap from the complainant and her family. On the other hand,  Opposite Parties No.1 to 4 in their written reply as well as in their duly sworn affidavit Ex.Ops1 to 4/1 have admitted that on 15.4.2020, during Caesarian surgery, when incision was given on uterus, the protective amniotic fluid was towards lower side., due to which, inadvertently a very small nick/ cut occurred on baby's scalp, which was very small & superficial (skin deep) (about 1cm) and was immediately identified & without any delay, small stitch was applied on the cut skin. Baby's father was shown the small cut & explained that it occurred inadvertently due to less quantity of protective amniotic fluid. This fact written in medical record of the patient.  After delivery, baby cried immediately and APGAR score was 8, 9 which clearly means that there was no harm to the baby due to very superficial nick/cut on his scalp. The baby was kept under observation for one hour and then safely handed over to his father. Cuts inflicting a child during delivery are called fetal lacerations. These lacerations sometimes occur when a doctor or nurse, improperly uses, birth assisting instruments for the delivery of child, like a scalpel or other sharp tools to aid in the baby’s delivery. These cuts are typically found by the newborn’s ears, face, and head. Some of these cuts are not incredibly serious. They might be minor and easily treated. However, some cases require stitches or reconstructive surgery on the child. If the cut is deep enough and happens in the trouble spots like the ears, face, and head, it has the possibility of causing long-lasting damage to nerves that control senses or movement. If these damages occur due to carelessness then the complainant is entitled to compensation. A surgical site infection is the most common complication that occurs during C-sections. As per medical theory, 3 to 15 new born babies out of every 100 births are affected by an infection due to the improper closure of a wound. Each surgical team member needs to be fully aware of the risks involved with closing the wound. If the staff stays educated on the best methods to use for skin closure, wound dressing, tissue closure, aseptic and scrub techniques, and correctly performing a postoperative assessment, the chances of infections go down exponentially. But in the instant case, despite proper medical care  of the newly borne baby of complainant Paramjeet Kaur  by the Opposite Parties No.1 to 4, they forcibly discharged the complainant Paramjeet Kaur  alongwith her newly borne baby by keeping the Cap on his head and by keeping the patient and her attendants in dark  resulting into  the death of newly borne baby of the complainant Paramjeet Kaur. Moreover, we do not see such injuries too often, but they are not unheard of. The scarring and damage that may occur create risks for other internal organs to be injured. Malpractice that results in organ injury typically takes place during the postoperative period. It usually occurs when the doctor does not realize that something is going wrong, and they are not adequately listening to the patient or reacting to their condition appropriately. This type of error is hazardous as it may cause further complications.

10.     The  main contention of the Opposite Parties No.1 to 4 is that the death of newly born baby of complainant Paramjeet Kaur  is not occurred due to the cut occurred on baby's scalp, which was very small & superficial (skin deep) (about 1cm) and was immediately identified & without any delay, small stitch managed was applied on the cut skin. Baby's father was shown the small cut & explained that it occurred inadvertently due to less quantity of protective amniotic fluid. This fact written in medical record of the patient. But we do not agree with the aforesaid contention of the Opposite Parties because Post Mortem Examination Report of the new born baby which is Ex.C19, in this report under the heading General Description Physique was mentioned as ‘Well Built’. In table Examination of External Injuries at Sr. No.1 it is mentioned, “Contusion of size 2x0.5 cm, black in colour on the right foot, at injury no.3, further at Sr. No.2 it is mentioned, “Stitched wound of length 1.5cm with 2 stitches over the left parietal region about 5 cm from midline at injury no.1 which is referred to left scalp of the child. Further in Internal Examination Table at Sr. No.1 against the column of component ‘Skull’, it is mentioned, “about ‘30 ml fluid present in the cranial cavity, sutures widely open, anterior fontanelle open, clotted blood of size 5x3 cm on the cranial cavity below both cerebral hemispheres’ and against the column Brain mentioned that ‘congested and whole cerebrum sent for HPE’. Perusal of the Post Mortem report further shows that in the table under the heading Particular of total body injuries marked on above image it is mentioned at Sr. No.2 ‘stitched wound of length 1.5cm with 2 stitches over the left parietal region about 5 cm from midline and injury number mentioned as ‘1’ which is referred to left side of the head of scalp of the child.

          Thus, this Post Mortem report falsifies the stand of the opposite parties that they stitched the wound of the child which is only 1 cm and it is very nick and small but the actual fact is that they stitched the wound of length 1.5 cm with two stitches on the left parietal region about 5 cm from midline and such a wound/cut is quite sufficient to cause the brain, of the new born baby, non-functional and further failure of vital organs of the infant and ultimately resulting in his death. Moreover, the cut occurred on baby's scalp ipso-facto proves the negligence on the part of the treating doctors. In case titled as State of Haryana Vs. Smt.Santra, Hon’ble Supreme Court of India decided on 24.04.2000 has held that every doctor has a duty to act with a reasonable degree of care and skill.  In Certain cases, the Latin maxim Res Ipsa Loquitur will apply which means, the thing speaks for itself. In the case in hand and the circumstances, the complainant does not have to prove the wrong done by the doctor as the same is self-proving itself. Moreover, the burden of proof shifts on the opposite parties to disprove that the death of the child is not caused due to wound occurred on the left scalp of the child during delivery/ceaserian operation conducted by doctors of opposite parties. The opposite parties miserably failed to discharge  this burden of proof.  

11.     Perusal of the record shows that the Opposite Parties No.1 to 4 in their reply has specifically mentioned that the patient party acted negligently and they did not get the complete treatment and they took away the baby against medical advice as LAMA (Left Against medical Advice) on 24.04.2020 and on the other side, they are stating as mentioned above that they safely handed over the baby to his father. Not only this, complainant Paramjeet Kaur  was duly discharged vide Discharge Certificate Ex.C7 from Opposite Party No.1 Hospital vide duly signed Discharge Certificate and hence we are of the view that the Opposite Parties No.1 to 4 are blowing hot and cold in the same breath because on the one side, they are stating that the complainant Paramjeet Kaur  took her baby against medical advice as LAMA (Left Against medical Advice) on 24.04.2020 and on the other side, they are stating as mentioned above that they safely handed over the baby to his father and duly discharged the complainant Paramjeet Kaur  from its hospital and hence, on this point, we do not agree with the aforesaid contention of Opposite Parties No.1 to 4.  Furthermore, we are of the view that the bare admission of the Opposite Parties No.1 to 4 is sufficient to prove the negligence on their part because the Opposite Parties No.1 to 4 themselves admitted that ‘inadvertently a very small nick/ cut occurred on baby's scalp’, which was very small & superficial (skin deep) (about 1cm) and was immediately identified & without any delay. Small stitch managed was applied on the cut skin. Baby's father was shown the small cut & explained that it occurred inadvertently due to less quantity of protective amniotic fluid. It is the duty of the doctor to treat his patients well and with due care and if any mishap occurs, then the authority and doctors are liable for compensation. That is why, due to medical negligence, many hospitals and doctors are facing complaints regarding mismanagement, poor facilities, erroneous treatment and negligence. Negligence is the breach of a legal duty to care which a doctor owes to  his every patient. The law mandates a certain amount of case which every doctor should undertake and therefore, the breach of legal duty helps initiate action against negligence. When a doctor offers medical advice to another, it is impliedly understood that he has a skilled knowledge about the concerned health issue and will take care of it. In case titled as State of Haryana Vs. Smt.Santra, Hon’ble Supreme Court of India  decided on 24.04.2000 has held that every doctor has a duty to act with a reasonable degree of care and skill.  In Certain cases, the Latin maxim Res Ipsa Loquitur will apply which means, the thing speaks for itself. In the case in hand and the circumstances, the complainant does not have to prove the wrong done by the doctor. In these cases,  the thing will speak for themselves and the doctor will automatically be held liable for his negligent act and this principle also applied in case of Dr.Janak Kanthimathi Nathan Vs. Murlidhar Eknath Masane decided on 17.04.2020 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi.         

12.     Moreover, as per Post Mortem Examination Report of the new born baby Ex.C19 under the heading General Description Physique was mentioned as ‘Well Built’. In table Examination of External Injuries at Sr. No.1 it is mentioned, “Contusion of size 2x0.5 cm, black in colour on the right foot, at injury no.3, further at Sr. No.2 it is mentioned, “Stitched wound of length 1.5cm with 2 stitches over the left parietal region about 5 cm from midline at injury no.1 which is referred to left scalp of the child. Further in Internal Examination Table at Sr. No.1 against the column of component ‘Skull’, it is mentioned, “about ‘30 ml fluid present in the cranial cavity, sutures widely open, anterior fontanelle open, clotted blood of size 5x3 cm on the cranial cavity below both cerebral hemispheres’ and against the column Brain mentioned that ‘congested and whole cerebrum sent for HPE’. Perusal of the Post Mortem report further shows that in the table under the heading Particular of total body injuries marked on above image it is mentioned at Sr. No.2 ‘stitched wound of length 1.5cm with 2 stitches over the left parietal region about 5 cm from midline and it is mentioned as injury number ‘1’ which is referred to left side of the head of scalp of the child.

          Thus, this Post Mortem report falsifies the stand of the opposite parties that they stitched the wound of the child with only one stitch as it is very nick and small just 1 cm but the actual fact is that they stitched the wound of length 1.5 cm with two stitches on the left parietal region about 5 cm from midline and such a wound/cut is quite sufficient to cause the brain, of the new born baby, non-functional and further failure of vital organs of the infant and ultimately resulting in his death.

 13.    Further contention of the Opposite Parties No.1 to 4 is that  Civil Surgeon, Moga, constituted a Medical Board of Negligence to conduct enquiry upon the case, in relation to complaint filed by the patient party and the  medical board conducted a detailed inquiry and considered the medical records, post mortem report, and of both parties (complainant & Respondents) and clearly stated that the cause of death was "multi organ failure due to sepsis". Firstly, the report of Medical Board Constituted by Civil Surgeon, Moga dated 06.01.2021 cannot be taken into account because none of the Members of “Medical Board’ filed his affidavit to that effect or otherwise proved it on file in any manner as required to be proved under Consumer Protection Act, 2019. Secondly, it is generally observed that Doctors who are members of ‘Medical Board’ have tendency and they try to protect the other doctors against whom complaints are filed. Thirdly, in this report, there is nothing mentioned about the fact that during the course of  caesarean surgery on complainant Paramjeet Kaur,  inadvertently a very small nick/ cut occurred on baby's scalp and  it occurred inadvertently due to less quantity of protective amniotic fluid. Fourthly, Medical Board failed to report that opposite parties ever take consent of the parents/guardians before conducting constructive surgery on the head of the newly born child after inflicting cut on the scalp of the infant. Fifthly, the members of Medical Board instead of giving their opinion are giving their decision that opposite parties are not negligent which proves their favouritism towards their colleagues. Last but not the least, the members of the Medical Board did not give due weightage to the post mortem report and HPE report which are  very valuable documents.  Moreover, we are of the view that the said report can not be taken into consideration for the very simple reason that none of the members of the Medical Board has filed his/her affidavit to that effect nor proved it on file in any manner. Hence medical report can not escape the treating doctors from their bounden duties during the course of  operation and with regard to cut/wound inflicted on baby's scalp during the course of caesarean operation conducted upon complainant namely Paramjeet Kaur. Hon'ble Supreme Court of India in various authorities have explained as to what actually constitute medical negligence i.e. “Negligence is the breach of duty caused by the 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. As per law of Torts, Ratanlal & Dhirajlal Twenty-fourth Edition 2002 at P. 441-442, ‘Negligence’ means “either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstances have to be taken into account.”(Municipal Corpn. Of Greater Bombay Vs. Laxman Iyer (2003) 8 SCC 731 para 6). Negligence is strictly non-feasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.  Hon'ble Supreme Court recently in “Martin F.D.'Souza V. Mohd. Ishfaq 2009 CTJ 352 (SC)(CP)=(2009) 3 SCC 1”, has laid down certain precautions which are required to be taken by Hospitals/Doctors in the following terms :

 A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.

(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.

(e) An expert should be consulted in case of any doubt.,

With regard to obtain the mandatory consent of the patient before surgery, nothing is placed on record by the Opposite Parties No.1 to 4 that they ever obtained any such mandatory consent from the patient before the surgery.  Moreover, the complainant has strenuously denied  to ever given any consent in this regard. It is the primary duty of the treating doctor to take  the written consent of the patient (if he/ she remains in his/ her  good sense) or otherwise from his/ her attendant in which they should be informed about the risk of the occurrence of fetal lacerations during caesarean delivery in order to avoid legal complications. In a case titled as Dr. Ramcharan Thiagarajan Facs versus Medical Council of India, decided on 3^rd April, 2014, Hon’ble Karnataka High Court has awarded disciplinary action  to the surgeon for not taking a proper informed consent for the entire procedure of kidney and pancreas transplant surgery from the patient.   In exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, the MCI has framed the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, inter alia, prescribing the inclusive definition of 'professional misconduct', the appropriate council for dealing with cases of professional misconduct, provisions of appeal etc. The relevant portion of the Ethics Regulations, 2002 relevant for the present controversy is quoted hereunder:

"7. MISCONDUCT:

The following acts of commission or omission on the part of a physician shall constitute professional misconduct rendering him/her liable for disciplinary action:

...

7.16 Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be.

14.     In the instant case, as mentioned above, at the time of arriving and admission of the patient in the hospital of the Opposite Parties,  there was nothing on record that the patient was not in a sense to sign on the consent form, but the Opposite Parties did not bother to take the consent of complainant/ patient herself and hence committed the offence of 'professional misconduct' as mentioned supra under Section 20A read with Section 33(m) of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. In order to enable the patients to play a significant role in decision-making, they must be provided with adequate information. In the Samira Kohli vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC), the Hon’ble Supreme Court of India observed:

          Moreover, when during the delivery of the child, the scalp of the new born child was wounded due to cut-injury on the scalp of the child by the staff of the opposite parties then opposite parties performed reconstructive surgery by way of sticthing the wound without obtaining the consent of the parents/guardians of the child. Performance of reconstructive surgery on the scalp of the child without the consent of the parents/guardians amounts to deficiency in service and opposite parties are liable for the same.

15.     Taking into consideration the settled position of law, as referred to here in above, it is also required to take into consideration the standard of duty to care in medical services which is expected from the hospitals and doctors. The premium stature of services available to the patient certainly raises a legitimate expectation. The deficiency in service emanates from conduct in which the patients are dealt with in the hospital by the doctors. The Hon'ble Supreme Court in “Smt. Savita Gar Vs. The Director National Heart Institute 2004 CTJ 1009 (SC)(CP)=(2004) 8 SCC 56”, has held that :-

“It is the common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the Hospital authorities. It is not possible for the patient to know that which doctor, will treat him. When a patient is admitted to a private clinic/hospital, it is hospital/clinic which engages the doctors for treatment., They charge fee for services rendered by them and they are supposed to bestow the best care.”

Hon'ble Supreme Court has settled the law on the subject in case titled “Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors 1009(2) CPC 402 (SC)” wherein it has been held that :-

“Once complainant had discharged initial burden, it was incumbent upon hospital authorities to prove that they had done their duty without any negligence on their part which they have failed to do.”

After going through the clear position of law, as has been enunciated by the Hon'ble Supreme Court, as to what actually constitute medical negligence, in the facts and circumstances of a particular case, as has been referred to herein above, if we take the facts and circumstances of the present case, the Opposite Parties have operated upon the patient without taking any preventive precautions and due to carelessness and negligence on the part of the Opposite Parties, the newly born baby of complainant Paramjeet Kaur suffered injury on the scalp of the infant and conducted reconstructive surgery on the scalp of the new born baby boy by way of stitching the scalp without the consent of his parents/guardians and thereafter he died after some days. This is nothing but the height of 'carelessness' and 'negligence' on the part of Opposite Parties, and therefore, the point raised by the learned counsel is devoid of factual as well as legal aspects of the case.

16.     Moreover, a patient approaches a doctor expecting medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The relationship takes the shape of a contract retaining the essential elements of tort. A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor. The services of the doctors are covered under the provisions of the Consumer Protection Act, and a patient can seek redressal of grievances from the Consumer Redressal Agencies.  

17.     Further, as per the requirement of Consumer Protection Act, 2019, compensation can be awarded to the complainant in the event, if injury/or death  is caused to the patient due to negligence of the Opposite Parties, this is a clear cut case of causing scalp injury (wound) to the newly born baby boy during the delivery of the child which ultimately resulted into his death after some days. Hence, the complainant is entitle to the suitable compensation.   To support their contention, Opposite Parties No.1 to 4 has cited some rulings, but these rulings are not applicable to the facts of the present case and the same are distinguished.  

18.     In view of the facts, circumstances and legal position, as has been discussed herein above, we have no hesitation to conclude that the Opposite Parties are liable for rendering deficient professional service to the complainant  and causing wound injurty on the left scalp of the infant which ultimately resulting into his death of the newly born baby of complainant Paramjeet Kaur by negligent act and conduct of the opposite parties no.1 to 4 and accordingly we partly allow the complaint of the complainant against opposite parties no.1 to 4. Complaint against opposite parties no.5 & 6 stands dismissed.

19.     Now come to the quantum of compensation. The complainant has prayed before this District Consumer Commission to direct the Opposite Parties to pay Rs.15 lakhs as the patient and her family suffered through mental tension for the loss of the child, loss of love and affection of child, agony and lack of service by the Opposite Parties for their acts and conducts, medical negligence and harassment, alongwith expenditure of Rs.2,45,000/- (Rs.30,000/- paid to Opposite Party plus Rs.90,000/- paid to Delhi Child Centre Kotkapura plus Rs.10,000/- as ventilator ambulance plus Rs.85,000/- paid to SPS Hospital Ludhiana plus Rs.30,000/-  extra medicine and purchase of  blood etc) with litigation expenses of Rs.25,500/- totaling Rs.17,70,500/- alongwith interest  @ 18% per annum till actual realization or any other relief to which this District Consumer Commission may deem fit be also granted.    

20.     Hence, keeping in view the facts and circumstances of the case,  the complaint is partly allowed and we direct Opposite Parties No.1 to 4, jointly or severally, to pay  lump sum compensation of Rs.5,00,000/- (Rupee Five Lacs only) alongwith interest  @ 8% per annum from the date of filing the present complaint i.e. 08.06.2020 till its actual realization. Any application pending before this District Consumer Disputes Redressal Commission stands disposed off accordingly. Compliance of this order be made by Opposite Parties No.1 to 4 within 60 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to  get the order enforced through the indulgence of this Commission.  Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

          Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not  appointed any of the Whole Time Member in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.