BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 251 of 2016.
Date of Institution : 21.09.2016
Date of Decision : 14.05.2019.
Manoj Kumar son of Shri Narender Kumar, resident of Kalanwali, Tehsil Kalanwali, District Sirsa.
……Complainant.
Versus
1. Khurana Child Health Care & Neonatology Centre, Dabwali Road, Sirsa, through its authorized person.
2. Dr. Ashish Khurana, M.D. (Pediatrics), Khurana Child Health Care & Neonatology Centre, Dabwali Road, Sirsa.
3. The Oriental India Insurance Company Ltd. having address at 4E/14, Azad Bhawan Jhandewalan Ext. New Delhi – 110055, vide professional Indemnity bearing Insurance Policy no.272200/48/2016/14682, w.e.f. 22-10-2016 (it should be 22.10.2015) to 21-10-2016.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.R.L.AHUJA………………. ……PRESIDENT
SH. ISSAM SINGH SAGWAL ………MEMBER
MRS.SUKHDEEP KAUR……………….MEMBER
Present: Sh. Abhinav Sharma, Advocate for complainant.
Sh. J.D. Garg, Advocate for opposite parties No.1 & 2.
Sh. A.S. Kalra, Advocate for opposite party No.3.
ORDER
The case of the complainant in brief is that on 16.4.2016 at about 2.03 p.m., the wife of complainant had given birth to a child through surgical operation and the said delivery was conducted at Talwar Nursing Home and at the time of delivery and thereafter the health condition of baby boy was fine. Thereafter on 18.5.2016, the complainant took his child to the ops’ hospital for the purpose of vaccination. At that time, the health of the child was very much normal, but the doctor stated that the child is suffering from jaundice. Thereafter, the op no.2 advised for the admission of the son of complainant in the nursery for the purpose of further treatment and on the suggestion of the doctor, the complainant agreed for the same and got admitted his son in the nursery. It is further averred that for the next two days, the complainant and his family member were not allowed to meet with the new born child, rather whenever the complainant and his relatives came to the hospital, they stated that the health of the child is good and he is recovering from the jaundice. Thereafter the son of complainant was discharged after two days and complainant was charged accordingly as per the bills and demand raised by the op. At the time of the relieving from the hospital, the doctor opined that the son of complainant has been completely recovered from the jaundice and also it was informed to the complainant that some vaccination has also been done and on that the complainant paid accordingly. It is further averred that thereafter the complainant and his wife were stunned to see that condition of their son again became critical and on 23.5.2016 for the follow-up treatment the complainant again took his son before the ops and at that moment of time the ops again got admitted the baby in nursery by saying that he is not recovered from the jaundice and he was admitted up to 30.5.2016. During this time period, the complainant and his family members were not allowed to meet with son and also not allowed mother to feed. At the time of discharge on 30.5.2016, there were big knots on both hands. When the complainant enquired about the same, it was disclosed that during the admission some drip was given to the child and due to that reason, these knots developed. The ops also gave assurance that within one or two days, it will become recoverable, but it was not recovered. During this period, the complainant was asked two times for the arrangement of the blood and the same was arranged from Shiv Shakti Blood Centre but the same was neither needed nor it was dripped to the child. Moreover, at the time of discharge, no detail prescription was given and also no detail diagnose was given to the complainant. Even in the prescription which was given on 30.5.2016, there is no mention of the blood dripped to the patient. It is further averred that upto 5.6.2016 the knots were not recovered and there was lot of pain in the same and the new born child was crying badly due to the pain and when the complainant came to consult with doctor alongwith child, he was again admitted upto the period 5.6.2016 in the Nursery. On 5.6.2016, the complainant was asked to arrange for the blood again but it was not dripped. On 6.6.2016, when the complainant came to see the child, the staff and the doctor assured that the child is fine but even at that time, they did not allow the complainant and his family members to meet with the child. That thereafter, on 7.6.2016, complainant received a telephone on his mobile to come in the hospital as the doctor wants to meet the complainant, as such, the complainant went to the hospital and when he contacted with the op, the op accompanied the complainant to the nursery. After reaching there, the complainant saw that complete left leg of the son of complainant was dressed with a bandage, from the below knee portion. When the complainant asked to remove said bandage the doctor stated that it cannot be opened now and upto the period of 8.00 p.m., it was not opened and during this period, some injection applied. On 8.6.2016, the doctor informed the complainant that the life of the child cannot be saved and he called some surgeon for consultation but upto the evening, no surgeon came. Ultimately in the evening, one surgeon came and he directly went to the nursery and after seeing the son of complainant stated that there is no treatment in Sirsa. When the son was handed over to the complainant he was having bed soles on the back upto 60-70%. At the time of discharge, it was told to the complainant that the leg was blackout due to the reason of some clots, but there were clots on the leg. Thereafter, as per the opinion of the doctor, the complainant also conducted the ultrasound of the son, but no clots were found and the reason of the blackness of the leg was not the clots but was due to some wrong treatment. It is further averred that thereafter, the complainant took his son to the PGI Chandigarh on urgent basis where he was admitted on 9.6.2016. On enquiry, it was orally explained by the doctor that due to wrong treatment, the condition of the baby child is deteriorated. It was also opinion of PGI doctor that some wrongful treatment was given due to which the condition of the leg so much deteriorated and during treatment of knots which were on both hands puss was found, as a result of which, the doctor of PGI with no alternative had done the surgery and in that surgery the leg of minor child had been amputated. The surgery was done on 14.6.2016 and ultimately he was discharged on 28.6.2016. It is further averred that it is clear that op has negligently treated the son of complainant and further did not declare the position of the son of complainant to him and rather did not disclose even the infections which further caused the problem and the infection persisted continuously causing a continuous pain to the son of complainant and danger to the health and leg. The son of complainant had to undergo a lot of pain and suffering and agony on account of negligent act and omission of the ops in conducting the treatment of son of complainant. That on account of the unethical tactics adopted by the op in treating the son of complainant, by not declaring the position of son of complainant to him and also by not revealing the actual negligence committed by him during his treatment, the complainant has suffered a lot and on account of delayed proper treatment, the condition of son of complainant had become worsened and now has become totally handicapped child unable to lead a normal life which was possible if the ops disclosed the position to the complainant on time and he definitely would have approached some higher center for expertise treatment. But on account of the delay in proper treatment, the son of the complainant had suffered a lot and became permanent physical handicap and disabled with which he will have to live throughout life. On account of the act and omissions on the part of op, the son of complainant has suffered physically as well as economically and still undergoing treatment. It is further averred that son of complainant remained on bed for a long period and complainant had to spend more than Rs.4-5 lacs on treatment besides a lot of prolonged pain and sufferings. The son of complainant has lost his all future prospectus and is unable to take care of himself and requires continuous services of the attendant. His physical personality has been totally lost and in future, he requires to spend extra transportation as now he is unable to drive any vehicle through his life. The marriage prospectus of the son of complainant has also been badly affected due to amputation and his life has become miserable. It is further averred that complainant approached the ops and asked him about the negligence in the treatment and thereafter acting against the medical norms in not revealing the actual position and by keeping the complainant under dark and by declaring that everything was fine, but the ops openly stated that he can do what he wants. Hence, this complaint seeking direction to the ops to pay a sum of Rs.15 lacs as compensation.
2. On notice, opposite parties no.1 and 2 appeared and filed joint written statement taking certain preliminary objections regarding cause of action and maintainability. It is also submitted that complaint is bad for non-arrangement and mis-arrangement of parties. The op is insured with the Oriental Insurance Company through its Professional Indemnity Policy No.272200/48/2016/14682 effective from 22.10.2015 to 21.10.2016. The op no.2 is well qualified, reputed and respected doctor. On merits, it is submitted that baby of Babita came to the ops’ hospital on 18th May, 2016 in OPD as a 3 day old male child with history of Billirubinemia (jaundice) with Rh incompatibility as Baby was A+ve and mother was AB – ve. The blood test initially was done at a different hospital and the doctor from that hospital advised them to get admitted in NICU for phototherapy but the patient came to the ops and got admitted to NICU for which the proper treatment was phototherapy which was started immediately, the baby responded to the treatment and was discharged on 28th May 2016. As the mother was not brought to the ops’ hospital, the baby was spoon fed and showed to relatives every day from the window and was advised follow up after 3 days for any rebound jaundice. The patient came to the op on 23rd May 2016 and was advised for a serum billirubin test as the baby looked icteric, the relatives, then showed the ops the report done elsewhere in Kalanwali. After which, he was advised to get admitted again as it is very common in patient with incompatibility to have a rebound increase in jaundice due to nature. Reports done here showed 24 mg/dl with conjugated serum bilirubin as 3.2 mg/dl and unconjugated serum bilirubin as 21.2, subsequent reports suggested improvement in condition, on 26th May 2016 on daily routine rounds, the baby was found to be pale and reports suggested severe anemia with HB of 6 gm which was very low, cause was thought of hemolytic anemia which is very common with this disease (Rh incompatibility) for which, the relatives were advised to arrange packed cells (blood) and it was transfused to the bady, the proof of which is the tickets from Shiv Shakti blood bank which are stuck to the indoor file and the subsequent rise in hemoglobin from 6 to 9 and 10.6. After which the baby was discharged on 30.5.2016 with reports of HB 11gm %, serum bilirubin 13.5 mg/dl, conjugated 5.1 mg/dl and unconjugated 8.4 mg/dl. It is further submitted that at the time of discharge, there were no knots and the baby was showed to the father/ relatives everyday, although allowing of man staff personals in the NICU can cause an increase in sepsis in the NICU. The patient was advised for follow up on Thursday, but the patient came on Sunday i.e. 5th June 2016 and complained of difficulty in breathing, the baby was found to be in shock with respiratory distress and was admitted in NICU for the third time for shock with septicemia with anemia. The reports suggested septicemia with ketonamia with anemia for which he was started on blood transfusion, antibiotic, fresh frozen plasma, oxygen and IV fluids. Further investigation to know the cause of anemia and septicemia was done. During this course on 6.6.2016 blackening of the toe of left leg was noticed for which, local application of heparin with dressing was started but it did not respond and it started to spread for which alongwith heparin tropical dressing IV heparin was started and the condition was fully explained along the course both on 6.6.2016 and 7.6.2016 and was advised that the patient should be shifted to a higher centre for which, the parent initially stated that he cannot because he is poor and he will go back and consult with his relatives and never came back. On 7.6.2016, as the condition worsened and a phone call was made to him for the response, so he came on 8.6.2016 in the ops’ OPD, op showed and told him the condition and asked him if he has decided or something and he was still unsure. So, the op decided to get a opinion from a surgeon and get a Doppler done which showed DVT (deep vein thrombosis) which could be due to sepsis and the surgeon also was in the same opinion. Even till this time, the relatives were not sure what to do. Initially they told the op that they will take the baby to the PGI but then they stated that they will take him home and they did not even take the discharge card. Everything the ops no.1 and 2 has done was done diligently, prudently with utmost due care and caution in treating the said patient and there was no negligence at least from their side. It is further submitted that the resultant gangrene and amputation was due to DVT and not due to treatment given by ops no.1 and 2. Remaining contents of complaint are also denied and prayer for dismissal of complaint has been made.
3. Opposite party no.3 filed separate written statement in which, it is submitted that present complaint is not maintainable before this Forum as matter needs elaborate enquiry, evidence, cross-examination of witnesses and only thereafter finding can be arrived at with regard to the allegations leveled by complainant, more particularly when there is no report/opinion of any expert, Board of doctors, supporting the allegations leveled by complainant against op no.2/ doctor. It is further submitted that without admitting any liability, it is submitted that a bare perusal of treatment record and written statement filed by doctor coupled with the record produced by complainant, it is a clear case of the management and efforts by the specialized expert doctor, who adopted the line of treatment in accordance with the expertise, skill gifted to him by way of qualification, God and it is not necessary that in the facts and circumstances, as are of the blood group history of mother and baby and subsequent development. As per law laid down by the courts “doctor is not a God and ensure the best treatment according to his knowledge, skill and render the services to the patient to his best” and doctor undertake to treat and not to cure. There is not even a single document, opinion of expert, higher institution giving any kind of inference, reference that doctor/ op no.2 insured with answering op opted wrong course of action while attending and treating the baby and as per law laid down by the Hon’ble Apex Court and Hon’ble National Commission funds in the hands of insurance company are the public fund and same cannot be ordered to be given merely on the oral assumption or presumption or on the basis of pleadings, on account of sympathy, without any proof of negligence on the part of doctor, who treated the patient. Except the oral submissions there is no record, evidence showing any deficient and negligent act on the part of doctor, thus matter needs elaborate enquiry which cannot be adjudicated in summary manner. In this case, no intimation regarding alleged incident has been given to company by the doctor and it came to know about this complaint in the March, 2017, therefore, the delay in reporting any case against replying OP, it should not be burdened with any liability on account of interest for the pre-appearance period, if any is ordered to be paid by this Forum and Op no.2 should be burdened with the same as terms and conditions of the policy clearly state that in the happening of any event or receipt of summons from any court law, insured-doctor will immediately intimate the company but in the present case Op No.2 has not done so. The maximum indemnification from 22.10.2015 to 21.10.2016 for the sum of Rs.10,00,000/- only subject to compliance of terms and conditions of the policy that also where the court gives a finding that doctor committed the medical negligence. False assertion of the complainant regarding medical negligence on the part of Op No.2 is not sufficient enough to hold the doctor liable for medical negligence rather in view of peculiar facts and circumstances of the case, complainant should adduce bring and prove the medical negligence by way of expert evidence, otherwise complaint is liable to be dismissed and should be dismissed as it has become a trend to move the courts with the pleadings instead of leading authenticated reliable expert evidence, so either complainant be directed to produce on record the report of experts or let the entire record be sent suo-moto by this Forum for examination and giving report thereof by the expert committee of the doctors, report of which is essential for holding the doctor negligent in attending the treating patient baby without taking decree of reasonable care as required under the Rules. It is a clear case of management and efforts by the specialized expert doctor, who provided the line of treatment in accordance with the expertise, skill gifted to him by way of qualification. Other contentions have been contoverted and prayer for dismissal of the complaint has been made.
4. Thereafter, the parties have led their respective evidence.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Learned counsel for the complainant has contended that it is a proved case of the complainant that on 16.05.2016 his wife had given birth to a male child at Talwar Nursing Home. The complainant had taken his child to the respondent’s hospital for the purpose of vaccination where the doctor told that the child is suffering from jaundice and advised for the admission of the child. The son of the complainant remained there admitted time and again from 18.05.2016 onwards. He and his wife visited the hospital on 23.05.2016 for the follow up treatment of their son but after seeing the critical condition of their son, they remained stunned and again was got admitted and discharged on 30.05.2016 and it was fund that there were big knots on both hands and when they enquired about the same, it was disclosed that during the admission some drip was given to the child and due to that reason, these knots developed. No detail of prescription has been given and also no detail of diagnose was given to the complainant. There is no mention of blood dripped to the patient. Son of the complainant did not recover upto 05.06.2016 and ultimately he received a call on 07.06.2016 to come to the hospital, thereafter, they reached there and they saw the complete leg of the son of the complainant was dressed with a bandage from the below knee portion. On 08.06.2016, the doctor informed that the life of the child cannot be saved and he called some surgeon for consultation and ultimately referred the son of the complainant to PGI, Chandigarh. At the time of discharge, the leg was black due to the reasons of some clots. The son of the complainant was admitted in PGI on 09.06.2016 and it was told by the doctor of PGI that due to wrong treatment, the condition of the baby child has become deteriorated and ultimately left leg of the son of the complainant was amputated. This all happened due to grave negligence on the part of treating doctor/OP No.2. The complainant has spent lot of money on the treatment of his son and he has claimed the compensation of Rs.15 lacs. During the course of arguments learned counsel for the complainant has relied upon the judgment reported as V.Kishan Rao Vs. Nikhil Super Specialty Hospital & Another 2010 (5) SCC 513 (SC), Minor Marghesh K.Parikh Vs. Dr.Mayur H.Mehta 2011 (1) SCC 31 (SC), Dr.Rakesh Jain Vs. Rakesh Kumar Khare & ors. 2003 (1) CPJ 27 (MPSCDRC), Nabhan Farhan Sah and others Vs. Latha Sharma 2007 (2) CPJ 392 (KSCDRC, Banglore) and Care Hospital, The Heart Institute Vs. Surisetty Sannibabu & Ors. 2013 (4) CPJ 18 (APSCDRC).
7. On the other hand, learned counsel for the Ops No.1 & 2 has contended that there is no negligence on the part of the treating doctor. It is a concocted version of the complainant in order to grab money from the doctors. The doctor had given the best available treatment as per the medical guidelines and medical norms. The doctor has not committed any act of negligence. Even the complainant has failed to prove any act of negligence against the Ops No.1 & 2. The doctor of the PGI has not mentioned any act of negligence against the Op No.1 & 2. The complainant is not entitled for any amount of compensation of alleged act of negligence. No cause of action has arisen to the complainant to file the present complaint. The complaint filed by the complainant is duly based on concealed facts. The patient came to the respondent on 23.05.2016 and was advised for a serum billirubin test as the baby looked icteric. After the test report, he was found to be suffering from jaundince. At the time of discharge, there were no knots. The baby was admitted in NICU for the third time. During the course on 06.06.2016, blackening of the toe of left leg was noticed for which local application of heparin with dressing was started but it did not respond and it started to spread for which along with heparin tropical dressing IV heparin was started and the condition was fully explained along the course both on 06.06.2016 and 07.06.2016 and it was advised that the patient should be shifted to a higher centre. On 07.06.2016, the relatives were called as the condition was going to be deteriorated. The respondents No.1 & 2 have attended the patient diligently, prudently, with utmost care and caution in treating the said patient. Learned counsel for the Ops No.1 & 2 have relied upon the judgments reported in Dr.Shrikant V.Mukewar Midas Hospital Vs. Vimal & 2 others 2016 (4) CPR 190 (National Commission) and Jaspal Singh and another Vs. Post Graduate Institute of Medical Education and Research (PGIMER) through Medical Superintendent 2008 (1) CLT 229 (Chandigarh SCDRC).
8. Learned counsel for the Op No.3 has also contended that from the record and written statement filed by doctor coupled with the record produced by the complainant, it is a clear case of the management and efforts by the specialized expert doctor, who adopted the line of treatment in accordance with the expertise, skill gifted to him by way of qualification, God and it is not necessary that in the facts and circumstances, as are of the blood group history of mother and baby and subsequent development. As per law laid down, the doctor is not a God and ensure the best treatment according to his knowledge, skill and render the services to the patient to his best and the doctor undertake to treat and not to cure. There is no evidence on record which prove the negligence on the part of doctor in treating the baby except the oral contentions. In the present case, there is no matter, the Op No.2 failed to abide by the terms and conditions of the policy and due to this deliberate and willful breach of term and conditions of the policy, the answering respondent should not be burdened with any liability and the respondent No.2 was insured with the maximum indemnification from 22.10.2015 to 21.10.2016 for a sum of Rs.10 lacs only subject to compliance of term and conditions of the policy.
9. We have considered the rival contentions of the parties and gone through the material available on the case file as well as the citations relied upon by learned counsel for the parties very carefully.
10. The complainant in order to prove his case has tendered his affidavit Ex.CW1/A, in which, he has reiterated the averments made in the complaint and also documents such as birth certificate Ex.C1, aadhar card of baby child Ex.C2, ration card Ex.C3, aadhar card of Babita Ex.C4, aadhar card of complainant Ex.C5, discharge and follow up card Ex.C6, test reports Ex.C7 to Ex.C11, receipts of Shiv Shakti Blood bank Ex.C12, Ex.C13, discharge summary Ex.C14, out-patient card Ex.C15, referral slip Ex.C16, prescription slip Ex.C17, test report Ex.18 to Ex.C28, bills of medicines Ex.C29 to Ex.C58 and disability certificate Ex.C59. On the other hand, ops No.1 and 2 produced affidavit of OP No.2 Ex.R2 wherein he has reiterated all the facts mentioned in the written statement and also tendered documents such as certificate of registration Ex.C3, degree Ex.R4, treatment chart Ex.R5 to Ex.R10, form Ex.R11, test reports Ex.R12, Ex.R13, prescription slip Ex.R14, treatment chart Ex.R15 to Ex.R21, form Ex.R22, test reports Ex.R23 to Ex.R29, treatment chart Ex.R30 to Ex.R36, progress notes Ex.R37, form Ex.R38, test reports Ex.R39 to Ex.R45, x-ray report Ex.R46 whereas Op No.3 has produced affidavit of Sh.Sushil Kumar, Divisional Manager Ex.R1, in which he has deposed in terms of the lines made in the written statement and also produced document Ex.R2/A.
15. It is undisputed fact between the parties that a minor baby of the complainant was taken to Ops No.1 & 2 on 18.05.2016 for the purpose of vaccination where after investigations, it was found that he was suffering from jaundice. On the advice of the Op No.2, the minor baby was got admitted in the hospital of Op No.1 and the required treatment was given by Op No.2 and he was kept in nursery and discharged on 20.05.2016. Again on 23.05.2016, the complainant approached the Ops No.1 & 2 for the follow up treatment of his son and they again got their son admitted in the hospital and nursery on the ground that still he is not recovered from jaundice and in this way, remained there till 30.05.2016. As per the contention of the complainant, they were not allowed to meet their son and further not allowed mother feed to their son. Further, there are allegations that at the time of discharge on 30.05.2016, there were big knots on both hands and when the complainant enquired about the same, it was disclosed that during the admission, some drip was given to the child and due to that reason, these knots developed. Further, there are allegations that no detail of prescription and detail of diagnosis were given to the complainant and there is no mention of blood dripped to the complainant. On 05.06.2016, the knots were not recovered and there was lot of pain in the same and new born child was crying badly due to the pain and when the complainant came to consult the OP No.2, complainant was asked to arrange blood again but it was not dripped. Again when the complainant came to see the child in the hospital, they did not allow them to see minor child. On 07.06.2016, they received a call from hospital as the doctor want to see the complainant. After reaching there, they saw the complete leg of the son of the complainant was dressed with a bandage from the below knee portion and on 08.06.2016, the doctor informed that the life of the son of the complainant cannot be saved and he called some surgeon for consultation but the surgeon did not come and he referred the son of the complainant to PGI. It was noticed by the complainant that there are bed soles on the back of their child and leg was also black out, due to reasons of some clots.
16. As per allegations of the complainant that son of the complainant got admitted in PGI Chandigarh on 09.06.2016. It was explained by the doctor that due to wrong treatment the condition of the baby child is deteriorating, as a result of which, the doctor of PGI had with no alternative and done the surgery and in that surgery the leg of minor child had been amputated.
17. Though the Ops No.1 & 2 have taken their specific defence plea in their written statement that baby of complainant was brought to their hospital on 18.05.2016 in OPD as a 3 day old male child with history of Billirubinemia (Jaundice) with Rh incompatibility as baby as A+ve and mother was AB–ve. The blood test initially was done at a different hospitals and the doctor from the hospital advised them to get admitted in NICU for phototherapy but the patient came to the respondents and got admitted in NICU for which the proper treatment was phototherapy which was started immediately, the baby responded to the treatment and was discharged on 20.5.2016. Again the patient came to their hospital on 23.05.2016 and was advised for a serum bilirubin test as the baby looked icteric, the relatives, then showed the respondents the report done elsewhere in Kalanwali. After which he was advised to get admitted again as it is very common in patient with incompatibility to have a rebound increase in jaundice due to nature. Reports done here showed 24 mg/dl and unconjugated serum bilirubin is 3.2 mg/dl and unconjugated serum bilirubin as 21.2, subsequent reports suggested improvement in condition, on 26th May, 2016 on daily routine rounds the baby was found to be pale and reports suggested severe anemia with HB % of 6 % which was very low, cause was thought of hemolytic anemia which is very common with this disease (Rh incompatibility) for which the relatives were advised to arrange packed cells (blood) and it was transfused to the baby, the proof of which is the tickets from Shiv Sakti Blood bank which are stuck to the indoor file and the subsequent rise in haemoglobin from 6 to 9 and 10.6. After which the baby was discharged on 30.05.2016 with reports of HB 11 gm %, serum biliruhin 13.5 mg/dl, conjugated 5.1 mg/dl and unconjugated 8.4 mg/dl. At the time of discharge of discharge, there were no knots and the baby was showed to the father/relatives everyday, although allowing of man staff personals in the NICU can cause an increase of sepsis in the NICU. The patient was advised for follow up on Thursday, but the patient came on Sunday with complaint of difficulty in breathing. The baby was found to be in shock with respiratory distress and was admitted in NICU for the third time for shock with septicemia with anemia. The reports suggested septicemia with kleptomania with anemia for which he was started on blood transfusion, antibiotic, fresh frozen plasma, oxygen and IV fluids. Further investigation to know the cause of anemia and septicemia was done. During this course on 06.06.2016 blackening of the toe of left leg was noticed for which local application of heparin with dressing was started but it did not respond and it started to spread for which along with heparin tropical dressing IV heparin was started and the condition was fully explained along the course both on 06.06.2016 and 07.06.2016 and was advised that the patient should be shifted to a higher centre. On 07.06.2016, the condition worsened and a phone call was made to him for the response so he came on 08.06.2016 in the OPD and thereafter he referred the minor child to PGI. As per contentions of Ops No.1 & 2, they have done everything diligently, prudently with utmost due care and caution in treating the said patient.
18. The perusal of the reference letter dated 08.06.2016 reveals that patient was referred to PGI, Chandigarh with history of DVT lt Gangrene below knee, incompatibility, conjugated hyper bilirubinenia, anemia hemolytic, neonatal septicemia, thrombocytokema. The perusal of the discharge summary issued by the PGI Ex.C14 reveals that there was left leg gangrene upto mid portion of leg. The perusal of tests reports, by which the test of serum bilirubin was got conducted in Ex.C14, Ex.C20, Ex.C24 and Ex.C27 show that the same was increasing from time to time, but however, Op No.2 did not make his best efforts in order to control the same. It is further proved fact on record that septicemia was developed in the body of the minor son of the complainant and there was problem of gangrene in the left leg, but however, no specific effort was made by to control the same by OP No.2, which is evident from the discharge summary Ex.C14. The Op No.2 has not assigned any specific reason for knots which developed on the hands of the minor son of the complainant and further has not explained the cause of blackening of the left toe of minor baby.
19. Since there are specific allegations of act of negligence against the Ops No.1 & 2 regarding treatment given to the minor son of the complainant, but it was the legal obligation of the Ops No.1 & 2 to discharge that onus since the principle of Res ipsa loquitur is applicable but in this case, it is a proved fact on record that the Ops No.1 & 2 have failed to discharge their onus by leading cogent and convincing evidence that Ops No.1 & 2 were not negligent in discharging their duties towards the minor son of the complainant while giving him the proper treatment, which they were required to give in proper time in order to control the higher ratio of jaundice and to prevent from suffering the problem of gangrene and septicemia, which resulted in the amputation of his left leg. We have find force from the judgment reported in Dr.Rakesh Jain Vs. Rakesh Kumar Khare & ors. 2003 (1) CPJ 27 (MPSCDRC) and Nabhan Farhan Sah and others Vs. Latha Sharma 2007 (2) CPJ 392 (KSCDRC, Banglore) relied upon learned counsel for the complainant whereby it has been observed that Medical Negligence-Wrongful handling of new born baby-Res ipsa loquitur- Applicability- Baby admitted in neonatal intensive care unit of Ops hospital- OP No.2 made several attempts to extract blood from baby- Blood drawn indiscriminately from vein and artery without taking care to distinguish vein from artery- In this amputation of hand; onus was on Ops to prove that thrombosis did not occur on account of their negligence- onus not discharge- Principle of res ipsa loquitur applicable- Medical negligence proved- Rs.1,05,000/- awarded. So,it appears from the evidence of the complainant that the Ops No.1 & 2 are negligent and deficient in providing service to the complainant in treating his son. The judgment relied upon by learned counsel for the Ops No.1 & 2 are not applicable to the present case as the facts of the present case are distinguishable from the facts of the reported judgment.
20. Since the Op No.3 has appeared in the present complaint being insurer of Ops No.1 & 2 as Op No.2 had purchased professional indemnity policy from Op No.3 in order to get the claim to the tune of Rs.10 lacs reimbursed only subject to terms and conditions of the policy and this fact finds corroboration from the defence plea of Op No.3 taken in the written statement. So, the Op No.3 appears to be liable to reimburse the loss, if any, suffered by the Ops No.1 & 2, being negligent in discharging of their duties.
21. In view of the above discussion, we allow the present complaint and direct the OPs No.1 & 2 to pay a sum of Rs.3 lac to the complainant as compensation on account of amputation of left leg of minor son of the complainant. We further direct the ops No.1 & 2 to pay a sum of Rs.50,000/- in lumpsum on account of expenditure incurred by the complainant on medicines and treatment of his minor son. We also direct the Ops to pay a sum of Rs.10000/- as litigation expenses to the complainant. Order be complied within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @ 7% per annum from the date of filing of present complaint till actual payment. The Op No.3 is directed to reimburse the awarded amount, if the same is payable, as per terms and conditions of policy purchased by Op Nos.1 & 2. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 14.05.2019 District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
