BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                           C.C.No.94/2010

Dated this the 18^th day of March 2016

Priya, wife of Arumugam,

No.16, 2^nd Cross, Iyyanar Koil Street

Veeman Nagar,

Puducherry – 605 009.

                                       ….     Complainant

Vs.

Jawaharlal Institute of Post Medical Education

And Research Hospital (JIPMER),

Dhanvanthri Nagar,

Puducherry – 605 006.

  ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L.,

MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  Tvl. U. Mohan Ilayaraja and A.K. Saravanan

                                                          Advocates

FOR THE OPPOSITE PARTY   : R. Balasubramanian, Advocate

                                                        Additional Central Government Standing

                                                          Counsel.

O R  D  E  R

(Thiru V.V. Steephen, Member)

This is a complaint praying to direct the opposite party to furnish the complete records for the still born child on 22.08.2009 to the complainant with autopsy report;  a sum of Rs.5.00 lakhs as damages for the mental agony suffered by her due to the opposite party's negligence and insufficiency of service with interest at the rate of 12% per annum from the date of petition as compensation and for costs of this complaint. 

2.  The case of the complainant is as follows:

          The complainant had conceived and taken regular treatment from 18.4.2009 with the Opposite Party hospital with a hope that the individual patient in the hospital was ensured for providing intensive nursing care and she had regular review check up and also followed all necessary prescriptions of medicines and diet.  On 19.08.2009 when the complainant came for routine check-up on 19.08.2009 she was admitted as in-patient on the same day for delivery by the Opposite party physician's advice and paid a sum of Rs.300/- to the opposite party.  From the date of admission, the Opposite Party physicians are not taking due care towards the complainant which made complication.  On 21.08.2009 the complainant had paid a sum of Rs.500/- as per the instructions of the hospital authorities.  On 22.08.2009 the pain has been increased enormously and so the complainant had informed about it but due to lack of trained resident doctors and inadequate staff nurse kept on duty to help during delivery of the patient and there is no duty of care in deciding what treatment to give and a duty of care in the administration of that treatment and thus no steps were taken at the time of severe paid where the patients are to be closely monitored and care taken to ensure that they are constantly observed.  The complainant further stated that due to lack of basic resuscitative equipment to revive the child, and lack of minimum reasonable degree of care and skill the condition has became worse which created rigor mortis, mummification of the child and so the complainant was forced to give still born child with Lanugo which clearly revealed that the child was in a healthy condition before the time of birth but died during the process of birth, since the opposite party hospital were acted in negligent manner which doubts the death is natural or unnatural.  On the same day i.e. on 22.08.2009 the complainant had approached the hospital authorities to make autopsy of the female stillborn child since there is suspicion and to know the reason for the death of the child.  The opposite party authorities had taken several signatures in papers and taken the stillborn child to make autopsy.  The complainant discharged on 24.08.2009 and from the day one when the complainant handed over the stillborn child to the opposite party, she had insisted the status of the autopsy but the opposite party turn deaf ear and concealed the matter which once again an obvious illustration of the deficiency of service and negligence of the opposite party and further the act has deteriorated the health condition of the complainant.  Hence, the complainant issued a legal notice on 28.12.2009, though it was received by the opposite party, but did not chosen to reply.  Hence, this complaint.

3.       The reply version of the opposite party is as follows:

          The complaint  is not maintainable either in law on or on facts and bad for non-joinder of necessary party, i.e. the doctor who gave treatment to her.  The opposite party stated that she had come for routine check up on 19.08.2009 and she was admitted as in patient on the same day for delivery by the opposite party.  This opposite party submits that the complainant a  27 year old primi gravid married since 9 month was brought to the outpatient department of O & G by her own mother who is a retired staff Nurse of JIPMER Hospital and that the complainant was accompanied by her mother at each visit and was giving the die antenatal care by the consultant and unit head of OG II.  This opposite party further submits that at each visit the complainant enquired about any possible and was given advice regarding proper nutrition, rest and hemantinics and immunization and further fetus was monitored clinically as well as by the ultrasonography and the complainant was told that the fetus has been growing at 'smaller pace' and was stressed on the importance of proper rest and nutrition and even advised admission if she same is not possible at home. But this opposite party does not know about the compliance of this advice and the patient was working till the day of admission to the Hospital.

4) The complainant was a known case of Bronchial asthma diagnosed one year back and did not have any attacks in the recent past and was not on any medication and that the complainant did not suffer from any other problems like hypertension and anemia and complainant had a congenital vestibular anus/ imperforate anus at her birth and had undergone repair at that time after which the complainant did not suffer from any problems. And the pelvis of complainant was adequate for vaginal delivery.

5)   The complainant was brought by her mother on 19.08.2009 (Wednesday) not to OPD by directly to the antenatal ward (ward 12) with complaints of blood stained discharge per vaginum of 2 hrs duration and the complainant was immediately seen by the consultant OG II unit. This opposite party further submits that the complainant was diagnosed to be in preterm labour and was admitted in antenatal ward and was given a general bed a special ward was not immediately available  and  further the complainant was given the treatment to arrest the preterm labour and was again told that the baby was small  and the amniotic fluid volume and repeated ultrasound and electronic fetal monitoring examinations were performed to diagnose if there was any evidence of teal asphyxia.

6)  The complainant was seen each and every time along with all other patients whenever the complainant had complained of pain abdomen and the pain subsided on the same day of admission. This opposite party further submits that on 22.08.2011, the pain did not increase and this opposite party had taken decision to deliver the baby as the complainant's amniotic fluid started decreasing further which if not intervened may result in problems (like fetal asphyxia due to cord compression) to the fetus in the uterus and the complainant was explained regarding the induction of labour and the problem during the vaginal delivery because of the small size of the fetus and decreased amniotic fluid. This opposite party further submits that the complainant was again subjected to ultrasound examination, which showed a good fetal heart rate and activity and less amniotic fluid index (2.9 cm) and the electronic fetal heart monitoring (Non Stress test) was normal. The complainant and her another were assured for the presence of consultant availability at the time of delivery vaginal/caesarean if necessary.

7)  The complainant and her mother were very well aware of the of the patient care at JIPMER and the complainant mother was a staff nurse and worked for 30 years in this institute and witnessed many such clinical situations where the fetus can suddenly expire in the uterus.

8)  Lot of attention was given to the complainant when she had labour pains and the complainant was examined by a qualified Gynecologist who has M.S degree in Obstetrics and Gyneclogy67 (senior Residents) and whom is skilled and competent and not by the post graduates. Further the complainant had been given a pain relieving drug at 2.40 pm and the complainant had delivered at 4.35 pm. The opposite party humbly submits that the delivery was conducted by a qualified had Obstetrician in the presence of complainant mother and the petitioner and her mother had been informed that the fetal heart could not be localized half an hour prior to the delivery.  Further each and every day, about 50 delivers occur and all the patients have to be monitored who are in various stages of labour and one cannot expect one doctor to one patient and one nurse to one patient care, but during the conduct of delivery, there are at least more than two qualified doctors and a nurse to help the particular patient.  Hence, the allegations of the petitioner that there is no duty of care and no steps were taken at the time of severe pain are totally baseless and unwarranted.  The opposite party further stated that the detus was fresh still born and did not show any signs of mummification or rigor mortin and that this is not a case of an infant death; it is death of the fetus inside the uterus during the labour (Intrapartum death) and all are working to reduce the same to minimum to reach the standard of developed countries.  This is a sudden fetal death which may have resulted due to strong uterine contraction or cord compression or occult cord prolapsed or some congenital disorder in the fetus which may not have been possible to be diagnosed with the present day equipment and there is no deficiency of service or negligence.  Further, the fetus was stillborn female and weighed 1.8 k.  The placenta was small and infarctions were present grossly.  The complainant fetus and placenta were examined by the consultant OG II soon after the delivery and given necessary instructions.  Further due patient care had been rendered to the complainant and the fetus lost is life due to some intrinsic problem as she has not grown appropriately in the uterus for unknown reasons as in 50% of the growth restricted fetuses it is not possible to find out the cause.  Hence, there is no negligence or deficiency of service on the party of the Institute or doctors (O&G Consultant).  Further the autopsy was not carried on the stillborn neonate as the baby was taken by the relatives from the institute on the same day i.e. 22.8.2009 at about 11.45 p.m. according to the records maintained by the reception and mortuary.  The complaint does not placed any material facts or documents in the complaint to prove there is negligence on the part of the opposite party.  Hence, prayed for dismissal of the complaint with costs.

8. The complainant was examined asCW1 and Exs.C1 to C7 were marked. The Opposite Party examined Dr. Dasari Pappa as RW1 and Exs.R1 to R3 were marked.

9.       Points for determination are :

          1. Whether the complainant is a consumer?

2. Whether there is any negligent act or deficiency of service attributed by the opposite party?

3. Whether the complainant is entitled for any relief?

            10. Point No.1:

          The complainant being conceived was admitted in the OP hospital on 19.08.2009 on the advise of the physician of the OP hospital concerned since the complainant was diagnosed to be in a pre term labour.  The complainant paid a sum of Rs.300/- and Rs.500/- by way of cash Exs.C1 and C2 respectively towards the admission charges in the hospital for treatment and hence, the complainant is deemed to be a consumer to that of an Opposite Party. 

11. Point No.2:

          It is submitted by the complainant that the complainant being conceived was under regular treatment of OP from 18.4.2009 and on 19.08.2009 the complainant was admitted in the OP hospital on the advise of the physician of the OP since the complainant was diagnosed to be pre term labour.  The complainant alleged that from the time of admission in the OP hospital, the complainant was not provided with adequate care and treatment and it consequence of which, the complainant delivered a still born baby for which the complainant demanded the autopsy report of the still born baby to know the cause of death, but the OP denied the allegations leveled against it by stating that the complainant was attended to by the qualified doctors and nurses and states that the sudden fetal death was due to birth asphyxia.  The OP further submits that since the still born baby was handed over to the relative of the complainant, the autopsy was not conducted and the opposite party asserts that there is no negligent act or deficiency of service attributed by the OP. 

          12. On the perusal of the records and evidence of the complainant and the Opposite party, this Forums observes as follows:

           It is observed by the Forum that on the perusal of Case sheet Ex.R1 of the complainant issued by the OP, it is pertinent to note that the time-wise observation recorded in the case sheet about the treatment and condition of the patient / complainant, is of no doubt that the patient was attended by the experienced doctors and nurses regularly and the allegation that the complainant was not provided with adequate care and treatment cannot be taken into consideration. 

            13. The complainant submits that she delivered a still born baby with signs of rigor mortis and Mummification due to the lack of reasonable care and treatment by the Opposite Party, but as per medical jurisprudence, the signs of rigor mortis and mummification will occur only in dead born child and the fact that whether it is a "Still born baby" or "Dead born baby" can be ascertained only with the detailed analysis of autopsy report and hence, in the absence of autopsy report, it is hard to believe the version of the Opposite Party that child delivered is a still born baby. 

          14. It is submitted by the Opposite Party that since the body was handed over to the relative of the complainant, autopsy was not conducted - but this submission of the OP was not proved by any documentary evidence.  From the evidence of the RW1, it is observed by the Forum that the Opposite Party has a practice of issuing the still birth report to the Attender for handing over the body.  But, no such report was filed or produced by the Opposite party to prove that the body was received by the complainant.  The evidence of RW1 as follows "We will give still birth report to the Attender for handing over the body".  It can be inferred from the above fact that the body was not handed over to the complainant and intentionally suppressed the cause of death to the complainant by not conducting the autopsy and disposed the body without adhering to proper procedure.  The above act of the Opposite Part would have definitely caused mental agony to the complainant and deprived the complainant from performing the last rites to the body. 

          15. It is submitted by the Opposite Party during the cross-examination that Ex.R3 is the document to prove the handing over of the body.  On the perusal of Ex.R3, it is found that the document does not contain any description of the document and does not bear any signature or neither the complaint nor the opposite party for proof of handing over the body to the complainant and it is not the appropriate record for handing over the body to the complainant.  Moreover the endorsement is made only by the OP concerned and no proof to show that the body was received by the complainant and these facts that attributes the negligent act of the Opposite Party. 

          16. In view of the discussions made in aforementioned paras, it is held that the OP is liable for mental agony suffered by the complainant due to the OP's negligent and deficiency in service.  Since the complainant and his Counsel has withdrawn the first relief claimed by the complainant and endorsement made to that effect in the complaint, the citation reported in the State Consumer Disputes Redressal Commission, Chandigarh in First Appeal No. 211 of 2011 [JUG JEEVEN PAL AND ANOTHER VS 1. POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH AND OTHERS] filed by the complainant's counsel cannot be taken into consideration.  This point is answered accordingly.

          17. Point No.3:

In the result, the complaint is allowed and the Opposite party is directed to

1. Pay a sum of Rs. 25,000/-  as compensation for mental agony, negligent Act and for deficiency of service done by the OP.

2. Pay a sum of Rs.5000/- towards the cost of the litigation.

The  Opposite Party is directed to comply with the directions aforesaid within two months from the date of receipt of this order.

Dated this the 18^th day of March 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           24.10.2013           Priya          

OPPOSITE PARTY'S WITNESS: 

RW.1          05.03.2014           Dr. Desari Papa                   

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

    MEMBER