By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite parties to pay Rs.20,00,000/- as compensation for the deficiency of service from their part.

2. Complaint in brief:- The Complainant was under the treatment of 2^nd Opposite Party who is a doctor working in the 1^st Opposite Party's Hospital. On 10.02.2012 at 8 months pregnancy, the Complainant consulted 2^nd Opposite Party and undergone scanning. The 2^nd Opposite Party informed the Complainant that the health condition of the Complainant and Foetus are good and there is no problems. The 2^nd Opposite party also informed that the date of delivery will be on 08.04.2012. On 17.09.2011, when the Complainant undergone scanning at Mother Mery Hospital at Thamarassery, it was informed by them that the date of delivery will be on 06.04.2012. The Complainant handed over this report to the Opposite Parties. When the Complainant felt labour pain, she went to the Opposite party's Hospital at 9 AM on 05.04.2012. At that time, the Complainant was suffering from cold and cough and treatment was done after admitting the Complainant in the hospital. The Complainant was informed by 2^nd Opposite Party doctor that the Complainant need not care the pain since time of delivery not come and the date will be on 08.04.2012. The pain become severe to the Complainant by 8 pm on the same day and informed it to the nurse of the Hospital. The nurse admitted the Complainant in the labour room. On 8.30 PM, bleeding started to the Complainant and there was no doctors or Gynecologist in the Hospital at that time. The nurses informed that the 2^nd Opposite Party doctor went to her house due to Maundy Thursday. At 4.30 AM the pain become severe and heavy bleeding started to the Complainant. But the nurses not informed it to the 2^nd Opposite party doctor. At 6 AM, the delivery was over and after delivery, the 2^nd doctor came to the labour room and examined the child. 2^nd Opposite Party started suturing and entrusted it to the nurse. The 2^nd Opposite Party doctor informed that the Complainant's baby consumed Meconium and there was no ventilator facility in Opposite party's Hospital and have to be shifted to Medical College Hospital. There was no ambulance in the hospital and the Opposite party's hospital not helped the Complainant to get an ambulance from out side also. Later the Complainant's husband hired a Maruthi Omni Van and taken the baby to Kozhikode. The Opposite party's hospital gave an oxygen cylinder to the Complainant's husband for giving oxygen to the baby. The Opposite Parties not provided either the help of a nurse or the help of a doctor in the vehicle along with the baby to Kozhikode. The baby died when it reached at Kozhikode. The Complainant got discharged from Opposite party's Hospital on 09.04.2012. There was gross negligence and deficiency of service from the part of Opposite parties which leads to the consumption of meconium and subsequent death of Baby. The Complainant was ready for a cesarean but the 2^nd Opposite Party not done it. The Complainant sustained heavy mental agony and financial loss. Aggrieved by this the complaint is filed.

3. On receipt of complaint, notices were issued to Opposite Parties and Opposite parties appeared before the Forum and filed version. In the version of 1^st Opposite party, 1^st Opposite party denied all the allegations in the complaint. The Complainant not demanded the assistance of a doctor or nurse to take the baby to Medical College Hospital , Kozhikode along with them in a vehicle. More over, the doctors and nurses in the hospital are on duty to care other patients admitted in the hospital. The allegations that water in the oxygen cylinder is also false. There is no unfair trade practice or deficiency of service from the part of Opposite Parties. In the version of 2^nd Opposite party, 2^nd Opposite Party stated that the Complainant in check up with 2^nd Opposite party from 23.01.2012, it was found that her expected date of delivery was on 08.04.2012. The Complainant came to the 1^st Opposite Party's hospital on 13.03.2012 with complaints of severe back ache but on examination, she was not in labour and foetal heart sound was good, she was admitted for one day and discharged and relieved of back pain on 14.03.2012. On 02.04.2012 at 8.50 PM the Complainant was brought to the 1^st Opposite Party hospital with fever, head ache and cough of 2 days duration. The Complainant was attended by the duty medical officer and started on medicines for fever and cough but was not admitted. On 05.04.2012, the Complainant brought to the hospital at 10.30 AM with complaint of severe cough wheezing and respiratory discomfort. The 2^nd Opposite party examined the patient and found that the complainant was not in labour. The Complainant was admitted and made close observation. The patient was not to have developed signs of labour pain by 2.30 AM on 06.04.2012 and as per vaginal examination cervix was 2.3 cm deleted and she was progressing in labour. She was closely attended by the duty medical officer and nursing staff on duty. Labour progressed well without any contra indication for vaginal delivery. FHS was assessed and checked periodically as per protocol and found to be good. The 1^st stage of labour was uneventful and progress of labour was steady with stable vital signs and normal foetal heart rate.  The 2^nd Opposite party had conducted the delivery of the Complainant at the right time and she delivery a male baby. The baby was found have respiratory distress due to passing of meconium during labour. The child was immediately seen by pediatrician and attention given. Since the baby required the support of ventilator, the baby was refered to higher centre with oxygen support and IV line in an omini van. The 2^nd Opposite party attended the Complainant with due care and caution as per accepted medical practice and there was no negligence. Hence the complaint is liable to be dismissed.

4. On perusal of complaint, version and documents the Forum raised the following points for considerations.

1. Whether there is deficiency of service from the part of Opposite parties?

2. Relief and cost.

5. Point No.1:- The complainant filed proof affidavit and the Complainant is examined as PW1 and documents are marked as Ext.A1 to A5. The Complainant's witness is examined as PW2 and 3. The 1^st Opposite party also filed proof affidavit and 1^st Opposite party is examined as OPW1 and MO1 series marked. 2^nd Opposite party also filed proof affidavit and 2^nd Opposite Party is examined as OPW2 and Ext.X1 is marked. 1^st Opposite Party's witness is examined as OPW3. Ext.A1 is Card issued by the K.J. Medical Trust Hospital to the petition dated 23.01.2012. Ext.A2 is the discharge Summary issued by the 1^st Opposite party's Hospital to the Complainant, Ext.A3 series are the Ultra sound scan report issued by the 1^st Opposite party's hospital to the Complainant. Ext.A4 series are the medical bills, Ext.A5 is the copy of reference letter issued by the 1^st Opposite Party's Hospital while referring the baby to Kozhikode. Ext.X1 documents are the case sheet from K J Medical Trust Hospital with regard to the admission and treatment of Complainant. MO1 series are the Oxygen mases produced by 1^st Opposite Party. As per complaint, the Complainant underwent scanning test at Mother Mery Hospital Thamarassery on 17.09.2011 and got a result stating that the date of delivery will be on 06.04.2012. On 8^th months pregnancy, the Complainant underwent scanning test at Opposite Party's Hospital and reported that the date of delivery will be on 08.04.2012. According to the Opposite Parties, on 02.04.2012, the Complainant came to the 1^st Opposite party's Hospital with fewer, headache, and cough of 2 days duration and consulted the Medical Officer and started medicines for cough and fever and left the hospital. On 05.04.2012 the Complainant was brought to the Hospital at 10.30 AM with complaints of severe cough, wheezing and respiratory discomfort. The 2^nd Opposite Party examined and found that the Complainant was not in labour. The Complainant got admitted and given treatment for the ailments under close observation, monitoring of vital signs and foetal heart sound. On 2.30 AM on 06.04.2012, the Complainant had developed signs of labour. The 2^nd Opposite party conducted delivery of the Complainant at the right time and was delivered a baby. On perusal of Ext.X1 case sheet, the Forum found that on 05.04.2012, the Complainant was admitted with complaint’s of cough, expectoration and wheezing and was taken treatment. On the same day at 10.30 PM there is Complainant of labour pain and was attended. At 3 AM on the next day, the patient reported no heavy pain. At 5 AM pain increased and at 5.45 AM Dr. Alice was informed and at 6 AM, the Complainant delivered a baby. As per records, it was a vaginal delivery and was also normal delivery. The complainant delivered on 06.04.2012 itself as stated in the complaint that Mother Mery Hospital, Thamarassery reported the date of delivery on 06.04.2012. Immediately after delivery the baby was found to have respiratory distress due to passing of meconium during labour. The baby was attended by a pediatrician and started resuscitative measures and was kept warm under supportive care. Since the baby required ventilator support, the pediatrician advises to refer the baby to higher centre having NICU facility. According to the Opposite party, the baby was referred to higher centre with oxygen support and IV line in an omini van. The allegation of the complainant is that the baby died due to the negligent act and omission on the part of 2^nd Opposite Party in giving proper care and attention to the Complainant which resulted the passing of meconium during labour. Admittedly, there is meconium aspiration by the baby which resulted respiratory distress to the baby. Here the question is whether the meconium aspiration is due to negligence and carelessness of 2^nd Opposite party or any other reasons. Dr. Sajith, a pediatrician from Kalpetta who attended the baby at Opposite Party's Hospital is examined as OPW3 and OPW3 deposed before the Forum that there are 5 reasons which causes the passing of meconium during labour by the baby. The 1^st one is that the baby gets hindrance in getting oxygen, 2^nd one is that the mother gets diseases like fever, infection, 3^rd one is the High BP of mother, 4^th one is the genetical problem of baby, 5^th one is the delay in delivery. OPW3 also deposed that there are reasons which are unknown to medical science for meconium aspiration. OPW3 deposed that even if cesarean operation is done, there is chance for meconium aspiration by the baby. OPW3 again deposed that the actual reason for the death of baby will be found out only by conducting postmortem. In the cross examination, the OPW3 deposed that the meconium aspiration may not be due to the negligence of gynecologist and he did not find any negligence of gynecologist in this case. OPW3 again deposed in cross-examination that in cases were the mother is having fever and cough and chances of meconium aspiration, the doctors are normally advice for cesarean operation and not in all such cases. OPW3 again deposed that he did not get any instruction to accompany the baby in the vehicle to Kozhikode. On analysing the evidence of OPW3, it is found that there are 5 reasons for the meconium aspiration and the 5^th reason is the delay in delivery. Here the Forum found that there is no delay in delivery in this case. The complainant delivered on the expected date of delivery ie on 06.04.2012 as per scan report from Thamarassery. More over, the delivery is a normal vaginal delivery without much problem. As per case records, the Forum found that no situation arised to the Complainant to have a cesarean operation. Passing of meconium can be happened even in case of cesarean operation. Cesarean operation is done only in case where normal delivery is impossible. Here normal delivery is happened. Hence passing of meconium may be due to other four reasons which is out of control of gynecologist and passing of meconium due to delay in delivery is totally ruled out. The actual reason for the death of the baby is not scientifically proved and no postmortem is conducted on the body of baby. Another allegation of the Complainant is that the 1^st Opposite Party hospital not arranged ambulance or not deputed any doctor or nurse to accompany the baby to Kozhikode. 1^st Opposite Party had no case that 1^st Opposite Party had arranged the vehicle to the Complainant and deputed nurse or staff to accompany the baby. The Forum is of the opinion that in 1^st Opposite party's Hospital, the doctors are doing surgery, delivery cases etc, the 1^st Opposite party should be well equipped to meet emergency situations. 1^st Opposite Party failed to arrange an ambulance and to depute a doctor or nurse to accompany the baby. Regarding the seriousness of baby, the 1^st Opposite Party should make arrangements to depute a doctor or nurse to accompany the baby even if no request is there from the side of Complainant. Merely providing an oxygen cylinder to those who have no acquaintance with it is not sufficient. Since the baby is referred to higher centre in critical situation, 1^st Opposite party should be more vigilant and more responsible. If such a facility was provided, the situation would have been different. The death of the baby caused much mental agony to the Complainant. On an over all evaluation of the evidences and documents, the Forum found that there is no negligence or carelessness happened from the side of 2^nd Opposite Party doctor in treating the Complainant. The Forum found that 1^st Opposite Party's hospital is negligent in providing sufficient facility to the Complainant to take her baby to higher centre as early as possible in an ambulance with medical care. In a ruling reported in CPR 2016(2) Part-6 Page 233, the Hon'ble National Commission verdicted that the hospital must forsee obvious medical complications and make necessary arrangements. Point No.1 found accordingly

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the 1^st Opposite party is directed to pay Rs.1,00,000/- (Rupees One Lakh) only as compensation to the Complainant and Rs.10,000/- (Rupees Ten thousand) only as cost of the proceedings. The 1^st Opposite Party shall comply the order within 30 days from the date of receipt of this order failing which the Complainant is entitled to get 12% interest for the compensation amount.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 27^th day of January 2017.

Date of Filing:22.02.2014.

PRESIDENT : Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the Complainant:

PW1. Shibina. K.K Complainant.

PW2. Shiju. Accountant in Private Firm.

PW3. Devaki. House Wife.

Witness for the Opposite Parties:

OPW1. Dr. K. J. Abraham. M.D, K.J Hospital Kalpetta.

OPW2. Dr. Alice. Gynecologist, K.J. Medical Trust Hospital,

Kalpetta.

OPW3. Dr. Sajith. Pediatrician, Kalpetta.

Exhibits for the Complainant:

A1. Card issued by the K.J Medical Trust Hospital. dt:23.01.12

A2. Discharge Summary.

A3 series Ultra Sound Scan Report.

A4 series Medical bills

A5. Copy of Letter.

MO1 series (2 Nos) Oxygen Mases.

Exhibits for the Opposite Parties:

X1 Case sheet.