By Smt. PREETHI SIVARAMAN.C, MEMBER

1.The complaint in short is as follows: -

Complainant was regularly consulting the opposite party No.2 who is working

as part of opposite party No.1 hospital as Gynaecologist. Complainant approached opposite party No.2 for medical check up in the earlier stage of pregnancy of her second child. The first pregnancy also was under first opposite party hospital by Dr.
Krishna Veni. Complainant got care and attention at that time, hence she again approached first opposite party hospital expecting the same treatment. The treatment under second opposite party in first opposite party hospital was smooth and well till the last stage of pregnancy. Complainant regularly attempted for check up and accepted and act upon the direction of second opposite party. No complication was reported by second opposite party and she assured normal delivery of complainant. Complainant had paid the consulting fee regularly at first opposite party hospital.

2. In the last stage of pregnancy, complainant visited opposite party No.1 hospital and second opposite party informed that the approximate date of delivery would be on 17/01/2015. Complainant continuously visited opposite party No.2 every week in order to avoid complication if any at the time of delivery. It is a usual practice to visit for getting better advice before one week of delivery, on 13/01/2015 complainant visited second opposite party for a regular check-up and for getting a mental peace and satisfaction. Then opposite party informed complainant that her expected delivery date is 17/01/2015, but on that day she would be on leave to attend marriage. Thereafter complainant was taken labour room and gave some medicine to have delivery pain and to have speedy delivery.

3. Complainant again stated that she was not felt any kind of symptoms of delivery at that time. Actually the complainant shocked from the attitude and behaviour and the rough words that “You would be trouble for me”. Thereafter opposite party No.2 directed her assistants to check the blood pressure and ECG of complainant and directed the complainant to go to the labour room. Opposite party No.2 directed to clean the stomach of complainant and for putting drips to complainant. But thereafter also no labour pain felt by complainant and opposite party No.2 behaved in a rude manner to complainant. Then opposite party No.2 and two nurses gave pressure to complainant’s stomach for early delivery. The further actions of opposite party No.2 made much discomfort to the complainant in labour room. By exerting pressure by opposite party No.2 and her assistants complainant had labour pain and she gave birth to a child at 7.30 in the evening.

4. The baby was not shown to her only informed the complainant that she had a baby boy. Moreover the child was not shown to the relatives of the complainant. At that time of exerting pressure on complainant for early delivery, complainant requested for caesarean section for her delivery to opposite party No.2. Thereafter complainant overheard that the baby boy aspirated meconium. But the seriousness of the situation not informed the complainant and her relatives by opposite party No.1 and 2. Complainant again stated that it was informed that there was no paediatrician in opposite party No.1 hospital that is a deficiency on the part of opposite party No.1. Immediately after delivery the child was shifted to ICU. Complainant stated that she did not hear the sound of crying of the baby. Thereafter at 9 O’clock opposite party No.1 and 2 informed the relatives of complainant that the paediatrician will not come on that night so it is good to shift the child to the NIMS hospital, Wandoor for the service of paediatrician. Thereafter child was shifted to NIMS hospital, Wandoor and the paediatrician, the opposite party doctor informed the relatives of complainant that child is in a serious condition because of Meconium aspiration. The child in a critical condition was taken to opposite party No.3 hospital because there was no paediatrician at opposite party No.1 hospital. The opposite party No.4 doctor has the duty to treat the patients at opposite party No.1 hospital because he was the paediatrician in both hospitals. Hence it is a clear deficiency in service from the side of opposite party No.2 doctor. The child was in NIMS Hospital, Wandoor on 13/01/2015 midnight to 14/01/2015, 15/01/2015, 16/01/2015. Complainant was also shifted to opposite party No.3 hospital. On 15/01/2015 opposite party No.4 also not allowed the complainant to feed her baby or even to show her the baby she delivered. The refusal to breast feed the baby is also a deficiency in service.

5. On 16/01/2015 opposite party No.4 informed the complainant and her relatives that the child had epilepsy and directed them to shift to the child to Medical College hospital, Calicut and in Ambulance child was shifted to Calicut Medical College with two nurses of opposite party No.3 hospital. The complainant also accompanied the child and on 16/01/2015, the complainant saw the face of her baby at first in ambulance. At that time the child was weak and moveless and admitted at the intensive care unit of medical college. The doctors informed the complainant that the condition of the child is serious and in danger. At last on 17/01/2015 at 11.25 pm the child was no more. The reason for death of the baby was the unscientific and hasty steps taken by opposite party No.2 in opposite party No.1 hospital for speedy delivery. Moreover the negligence committed by other opposite parties also make the situation more worst. So all opposite parties are jointly and severally liable to compensate the complainant as prayed. Hence this complaint.

6. The poor complainant carrying the baby for the last 9 months and due to the unscientific and hasty treatment the child lost especially a boy child that expected by complainant. Thereafter complainant sent lawyer notice to opposite parties and other petitions and to Chief Minister and other Ministers of state and Police officers for the negligence on the part of opposite parties and thereby caused the death of the child. But nothing happened.

7. The prayer of the complainant is that, she is entitled to get Rs. 5,00,000/- as compensation for the deficiency of service from the side of all opposite parties

8. On admission of the complaint notice was issued to the opposite parties and

notice served on them and opposite party No.1 to 4 appeared before the Commission through their counsels and filed version.

9. In their version, opposite party No.1 and 2 denied all the allegations pertaining to them in the above complaint save those which are specifically admitted. They again stated that complaint is not maintainable either in law or on facts. There is absolutely no negligence or deficiency of service as alleged by the complainant. Hence complainant is not entitled to get any reliefs claimed from this opposite parties. They admitted that second opposite party treated the complainant in first opposite party hospital for her pregnancy and her delivery and it is true that complainant delivered a male child at opposite party No.1 hospital on 13/01/2015 at 7.35 pm. They again denied that the male child born to the complainant in her second delivery had died due to the negligent treatment and deficiency in service on the part of opposite party No.1 and 2. The second opposite party also advised medicines which was essential for complainant during pregnancy and for lab tests and other special investigation including ultrasound scanning for evaluating the progress of the pregnancy. The expected date of delivery was on 17/01/2015 and this information was revealed to the complainant well in advance. Complainant come for routine review of 02/01/2015 detailed examination were done and found normal and she was scheduled to review on 09/01/2015. But she did not come on that day and only came on 13/01/2015. On examination she had mild pain, per abdomen examination done and it was seen that foetal heart sound was good. Per vaginal examination was done and found that cervix was fully effaced 4 cm, membrane intact, head was at brim not engaged pelvis normal. Since she was in impending labour and she may go for labour at anytime and she was offered an admission. Complainant was accompanied by a female relative and she was informed and about the condition of patient. The second opposite party admitted the patient only after discussing with the patient and since they agreed.

10. Though her expected date was on 17/01/2015 only 1% of women will go in for labour on date, rest will go in for labour either one week prior or one week late. Since she was found to have signs of impending labour admission was offered and she was admitted at 2.45 pm on 13/01/2015. If she was not offered admission she might have gone in for labour and have a water breaking (rupture of membrane). If the amniotic fluid breaks and if the head is still high and not engaged there is chance that umbilical cord may prolapsed and there is high chance that baby may die inside the uterus unless emergency is done. Then planned to give enema and to start oxytocin augmentation after admission. After giving enema complainant started having spontaneous leaking as expected around 3.30 pm examination done foetal heart was good, mild contractions was there, vaginal examination done cervix 4cm dilated membrane absent, clear liquor no meconium staining, head descended to -3 station. Decision was made to start Pitocin. At 6.30 pm examination done she was having regular contraction, foetal heart was good, per vaginal examination was done cervix was 7 to 8cm dilated liquor was clear, no meconium staining, head has descended to 0 station. No indication of LSCS was noted at the time since she has progressed well in labour. In 3 hour time cervical dilatation was 3 to 4 cm more which is normal progress of labour. At 7.35 pm with full cervical dilatation she delivered a male baby which cried immediately after birth. Liquor which came back after baby is born had meconium staining. Meconium passing can happen any time during the course of labour. Since foetal heart was normal and labour was progressing normally no LSCS decision was taken. Baby was cleaned and shown to the mother and her relatives. Since there was meconium staining baby was taken for stomach wash. Subsequently the baby was found to have respiratory distress and informed the paediatrician and decision was made to shift the baby to nearby hospital.

11. Second opposite party is a well qualified and well experienced gynaecologist and she had followed the well accepted protocols with regard to management of pregnancy and labour in the case of complainant. The second opposite party was monitoring the progress of the labour of the complainant all the time. She had conducted detailed examination with regard to foetal heart beat sound as well as general health conditions of the complainant and also the colour of liquor discharge per-vaginam during regular intervals. The liquor was clear and in the instant case there was nothing to suggest the meconium staining prior to delivery. After the delivery and the child is born, the liquor which came behind the baby was having traces of meconium. This cannot be detected prior to delivery and the gynaecologist or the doctor attending the delivery can do nothing with this regard. As per the globally aspect protocol, with regard to the management of labour the LSCS is prescribed under certain contingencies and the gynaecologist should opt for normal delivery as far as possible. The labour was progressing very smoothly and complainant gave birth to male baby at 7.35 pm and till then there was no complaints whatsoever. There was nothing suggestive of a surgical intervention at any point of time during the management of labour. The second opposite party adhered to the globally accepted protocol regarding the management of labour. Putting a patient on the surgery table on the conducting LSCS unnecessarily without allowing her to have a normal delivery is against professional ethics and also against the globally accepted protocols regarding management of labour.

12. Immediately after delivery the baby cried and there was no symptoms of birth asphyxia. The baby was cleaned and handed over to relatives of the complainant. After the elapse of half an hour after the birth, the baby exhibited symptoms of respiratory distress. Since the care and attention of paediatrician is required for effective management of respiratory distress to new born baby, after informing this fact to the complainant and bystanders and the child was referred to paediatrician. Immediately shifted to NIMS Hospital, Wandoor and the baby was under the care of 4^th opposite party who is well qualified and well experienced paediatrician. It is learned that after five days of birth the baby died in Medical College Hospital, Kozhikode. Opposite party No.1 and 2 stated that they have no direct knowledge regarding the treatment given to baby or cause of death.

13. At the instance of the complainant, a detailed enquiry was conducted by the medical experts regarding the death of baby on 17/01/2015. After detailed enquiry and after inspected the oral and documentary evidence including the treatment records by experts and they came to a conclusion that there was no latches, negligence or lack of care on the part of 2^nd opposite party and 1^st opposite party. Opposite party No.1 and 2 denied the allegation in the complaint that, the second opposite party had rebuked the petitioners saying that “why did you came today, I will be on leave and will be back after one week after in sister- in-law’s marriage and your delivery will be a problem for me” is false and denied by the opposite parties. They again denied that the opposite party No.2 had treated the complainant in a harsh manner. The further allegation in the complainant that the 2^nd opposite party and the nursing assistants has used pressure on the abdomen of the petitioner is denied by the opposite party No.1 and 2. Opposite party No.2 again stated that, she had never uttered those sharp words stated in Paragraph 9 of the complaint, she again stated that complainant came to hospital with complaints of mild pain. Second opposite party conducted a detailed examination of the complainant, pre-vaginal examination revealed that her cervix was dilated to 4 cm which is a clear indication of onset of labour pain and definitely and she will go labour soon. Under the above circumstances any medical experts would have adopted the same procedure. They again stated that, had she not admitted in the hospital at the relevant time she would have leaking of per vaginum and there is every chance of complication including foetal death and causality to mother.

14. The allegation in the petition that the new born baby was not shown either to the complainant or to her relatives is not correct, hence opposite parties denied. Second opposite party again denied that complainant had requested the second opposite party for a caesarean and second opposite party has not cared for the request. The second opposite party has also denied allegation that the second opposite party had restricted the entry of the relatives of complainant inside the labour room. Neither the complainant nor the bystanders made a request for LSCS as far as complainant is concerned her labour was progressing smoothly without any complaints and she was heading for a normal delivery. There was nothing suggestive of a surgical intervention and there was no necessity to go for LSCS. Again opposite parties denied the allegation in Paragraph 11 of the complaint that the second opposite party and the nursing assistants has talked about the meconium aspirations soon after the delivery of the complainant is not correct and hence denied. Further allegation in the paragraph that the second opposite party had given direction to arrange the operation theatre is not correct and hence denied. Opposite party No.1 and 2 denied the allegation in Paragraph 12 as the second opposite party and her assistants attempted to speed up the delivery and that is the reason why the baby aspirated the meconium is totally false. They again stated that the allegation in Paragraph 13 and 14 are totally false and hence they denied. Baby cried after the birth and there was no birth asphyxia. They again submitted that half an hour after the delivery, developed respiratory distress for the baby. Hence baby was shifted to NIMS hospital, Wandoor for consultation of paediatrician and he examined the baby at 8.30 pm and started the treatment. They again stated that the 4^th opposite party who is well qualified and experienced paediatrician had treated the baby as per the standard procedure and globally accepted protocol. They again stated that they have no direct knowledge regarding the procedure and treatment given to the hospital from NIMS Hospital and Medical College Hospital, Kozhikode. They again denied in the Paragraph 20 and 21 of the complaint. They submitted that there was no negligence or deficiency in service on the part of first and second opposite parties and they are not liable to pay any amount as compensation to the complainant.

15. In their version 3^rd opposite party the Managing Director, NIMS hospital Wandoor denied all the averments in the complaint pertaining to them. Complaint is not maintainable either in law or on facts. In the complaint there is no allegation against this opposite party and they are unnecessary party in the complaint. They admitted that they are the Managing Director conducting a hospital at wandoor and it is true that 4^th opposite party is working under them as a consultant paediatrician. They again stated that they are not aware of the facts alleged in the Paragraph No.1 to 14 of the complaint. All the allegations stated in these paragraphs should be proved by the complainant with solid evidences. They again admitted that on 13/01/2015 at about 8.30 pm complainant’s baby admitted in their hospital with respiratory distress and shoulder dystocia and after the admission in the 4^th opposite party examined the child and given necessary treatment to the baby and admitted the baby in NICU. On continuing the treatment in their hospital the condition of the baby better and active, but later the condition of the baby become worse and the baby developed seizure and hence baby was referred to Medical College Hospital, Kozhikode for further treatment. They again stated that they had given attendance and treatment to the baby with proper care and management. There was no deficiency of service. They again stated that there was no allegation for the complainant against them about management and the treatment of the baby in opposite party No.3 hospital. They denied the allegation of complainant that opposite party No.3 not allowed the relatives of the complainant to visit the child and the complainant not allowed for breast feeding. It is also incorrect to say that the opposite party not conveyed the proper information to the complainant and her relatives regarding the condition of the baby. They stated that they acted on the proper way with a proper management and informed the complainant regarding the condition of the baby in time and proper care given to the baby in shifting the baby from their hospital to MCH Hospital, Calicut. They stated that, they had given service of one nurse and one Attender for shifting the baby to Medical College Hospital, Calicut. They again denied the allegation of complainant that the nurse of opposite party No.3 hospital accompanied the baby not allowed the complainant and her relatives to see the baby. They had given proper care and caution to avoid the infection to the baby while travelling from opposite party No.3 hospital to MCH hospital Calicut. There is no deficiency in service from their side. There is no cause of action aroused against opposite party No.3, hence there was no claim stands against this opposite party.

16. Opposite party No.4 denied all the allegations in the complaint pertaining to

them which are not expressly admitted. The complaint is not maintainable in-law or on facts. There is no deficiency of service or negligence from the side. He stated that the averments in the complaint are purposely framed by suppressing the true facts solely for the undue financial advantage of the complainant. He again stated that he is working as consultant paediatrician at the 3^rd opposite party hospital and 13/01/2015 the complainant’s baby was brought to third opposite party’s hospital at 8.30 pm as a referred case from 1^st opposite party’s hospital and he examined the baby at 8.30 pm. As per the clinical history baby was born on 13/01/2015 at about 7.35 pm with respiratory distress due to meconium aspiration and had shoulder dystocia and cried soon after birth. As per examination, the baby had signs of respiratory distress with grunting, respiratory rate 80/min, LCI + oxygen saturation 98%, heart rate 142/mt. The baby required resuscitative management under NICU and serious condition was explained to the bystanders and with their consent the baby was shifted to NICU and managed with IV fluids, antibiotics, oxygen and other supportive care. After admission to NICU and in response to medical management respiratory distress grunting was found in decreasing and same management continued. On 13/01/2015 at 13^th hours, the baby was found to be active and Moro reflex present. At the 23^rd hours the baby had shown signs of symptomatic hypoglycaemia and the same was corrected with glucose. The baby had developed signs of sepsis and became febrile with slightly increased respiratory rate, CRP and decreased platelets count. Blood was sent for culture and the sensitivity and antibiotics changed as per culture and the condition was explained to the bystanders. They were advised for a reference to higher centre in view of sepsis but the bystanders did not prefer to take the baby to higher centre and wanted to continue treatment under observation for one more day at the third opposite party hospital. Later the baby had developed seizure and the condition was managed with appropriate medication and referred to IMCH Calicut for further management. Opposite party No.4 again stated that he had attended and treated the baby with due care and caution as per accepted protocol and there was no negligence on his part in the management of the patient. The baby died due to severe post –natal disease condition and the death was caused not due to any of the act or omission on opposite party No.4.

17. He again stated that he unnecessarily arrayed as a party to the proceeding without any just or sufficient cause, solely for the undue financial gain of the complainant. He stated that, he had treated the baby of the complainant with due diligence and care as per standard procedure and accepted protocol. The bystanders were duly informed the severe disease condition of the baby and modality of management was also discussed with them. Opposite party No.4 again stated that in Para 15 of the complaint, the baby was taken to third opposite party’s hospital due to the deficiency in service of 4^th opposite party, that the 4^th opposite party not get ready to come and attend the baby at the first opposite party hospital is highly ill motivated. The baby had developed complications of shoulder dystocia and meconuim aspiration and required resuscitation in neo-natal ICU and first opposite party hospital did not have facility and hence the baby could not treat there by me. When the condition of the baby was intimated the 4^th opposite party had given the instruction for reference of the baby to any higher centre having advanced NICU facilities without referring to any particular hospital. At 8.30 pm the baby was taken to opposite party No. 3 hospital and hence opposite party No.4 had duly attended and treated the baby in NICU as per accepted protocol.

18. He again denied Para 16 of the complaint. He again stated that he did not give instruction to bring the baby to third opposite party hospital rather he had advised early reference to any higher centre having advanced NICU facility and it is well evident from the reference letter that the reference was not made to me. The bystanders took the baby to the 3^rd opposite party hospital and the opposite party No.4 had attended and treated the baby. The baby had developed hypoglycaemia and he had shown signs of thrombocytopenia and sepsis the opposite party No. 4 advised reference to higher centre but the bystanders preferred to continue management in 3^rd opposite party hospital. The complaint of complainant that baby was not shown to the bystanders is also misleading. The baby having severe respiratory distress and grunting was unable to be allowed to have breast feeding in the said circumstances. He again denied Para 17 and 18 of the complaint that he is having joint responsibility for worsening the condition and ultimate death of the baby. In the light of the above mentioned facts opposite party No.4 stated that, he is not liable to compensate the complainant because there is no negligence from his part.

19. In order to substantiate the case of the complainant, she filed an affidavit in lieu of Chief examination and the documents she produced were marked as Ext. A1 to A12. Ext.A1 series are the true copy of registered lawyer notice sent by Adv. Satheesh Poothikkad to opposite parties dated 15/05/2015 and postal receipts and acknowledgements(9 Nos.), Ext.A2 (1) is the copy of complaint filed by complainant’s husband before SI of Police , Nilambur dated 19/01/2015, Ext.A2 (2) is the copy of complaint filed by complainant’s husband before the President of IMA, Nilambur dated 19/01/2015, Ext. A2 (3) is the copy of complaint filed by complainant’s husband before District Medical Officer, Malappuram dated 19/01/2015 , Ext. A2(4) is the original receipt given from DYSP Office, Perintalmanna to complainant’s husband after receiving the complaint dated 20/01/2015. Ext.A2 (5) is the receipt given from DP Office to complainant after receiving the complaint dated 13/04/2015, Ext.A2 (6) is the original reply given to complainant’s husband by the Director of Health dated 16/03/2015, Ext. A2 (7) is the original receipt given from District Medical Officer(Heath), Malappuram to complainant’s husband on 20/01/2015, Ext. A2 (8) is the copy of the reply given to complainant’s husband by office of Health Minister dated 13/03/2015. Ext.A2 (9) is the receipt given to complainant’s husband from Circle Office Nilambur dated 19/01/2015, Ext. A2 (10) is the notice to complainant’s husband from Kerala Vanitha Commission for appearing the adalath conducted by them dated 18/02/2015. Ext. A3 is the bill provided by opposite party No.1 to complainant while paying consultation fee dated 26/08/2014. Ext.A4 is the original prescription and scanning report of opposite party No.1 dated 13/06/2014. Ext. A5 (1 to 7) series are the medical bills given to complainant from opposite party No.1 hospital & Ext.A5 (8 to 19) series are the medical bills given to complainant from opposite party No.3 hospital. Ext.A6 is the prescription given by opposite party No.4 to complainant dated 16/01/2015. Ext. A7(1) is the original discharge card given by opposite party No.1 hospital to complainant on 15/01/2015, Ext. A7 (2) is the original OP card given by opposite party No.1 hospital to complainant. Ext.8(1) is the original scanning report given from Medscan to complainant on 26/08/2014, Ext.A8(2) is the original scanning report given from Medscan to complainant on 12/12/2014. Ext.A9 is the Discharge Slip-Beneficiary copy dated 15/01/2015, Ext.A10 is the Blocking Slip –Beneficiary copy dated 13/01/2015. Ext.A11 is the original Final Diagnostic Report given by Department of Paediatrics, Kozhikode dated 13/02/2015. Ext. A12 is the Certificate given by Dr. Gokuldas P.K of Government Medical College, Kozhikode to complainant. Thereafter complainant was examined as PW1 and husband of the complainant was examined as PW2.

20. Opposite party No.1 filed affidavit and documents which are marked as Ext. B1 and B2. Ext.B1 is the original Inpatient file of complainant. Ext.B2 is the enquiry report No.A6/1830/2015 submitted by District Medical Officer (Health), Malappuram dated 22/01/2016. Thereafter opposite party No.2, 3 and 4 filed affidavits, but no documents filed. Thereafter opposite party No.2 was examined on 05/03/2018 as DW1 and opposite party No.4 was examined as DW2.

21. Heard complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration:-

1. Whether there is any deficiency in service on the part of opposite parties.

2. If so, reliefs and cost

22. Point No.1 :-

Case of the complainant is that due to the deficiency in service and negligence on the part of opposite parties during her delivery. Baby was expired within a few days. She had done all necessary pre-natal checkups including scanning during different stages of pregnancy as per the directions and advice of second opposite party. The expected date of delivery was 17/01/2015. As per the direction of opposite party No.2, complainant approached opposite party No.2 on 13/01/2015 for check-up. Opposite party No.2 scolded the complainant that her admission for delivery will create problem as she is going on leave for a week for attending the wedding of her sister-in-law. As per complainant’s case opposite party No.2 was rudely behaved towards her and opposite party No.2 and her assistants exert pressure on her abdomen excessively to have an early labour and the rude behaviour by opposite party No.2 caused mental and physical sufferings to complainant. The attempt for an early labour by the second opposite party from the first opposite party hospital in a hasty manner caused the baby went ill and it is a serious deficiency in service. Complainant again stated that the baby was taken to third opposite party Hospital only because the fourth opposite party was not ready to come to first opposite party hospital to examine the baby. Since the paediatric departments in both hospitals are under the responsibility of 4^th opposite party and it was his duty to come an examine the baby at first opposite party hospital. Moreover she stated that, third opposite party hospital did not make any attempt to breast feed the baby or even show the baby to her.

23. The opposite parties No.1 and 2 denied all the allegations levelled against them by the complainant. They admitted that complainant delivered a male child at opposite party No.1 hospital on 13/01/2015 at 735 pm. Second opposite party treated the complainant at first opposite party hospital. In their version, opposite party No.1 and 2 stated that complainant come for routine check-up on 02/01/2015 and detailed examination was done and found normal and she was scheduled to review on 09/01/2015. But she did not come for review on 09/01/2015 but came on 13/01/2015. On examination she had mild pain, per abdomen examination done it was term uterus, cephalic presentation, foetal heart sound was good, per vaginal examination done cervix was fully effaced, 4 cm dilated membranes intact, head was at brim not engaged pelvis normal. Opposite party No.2 again stated that since impending labour she may go in for labour at any time and she was offered an admission.

24. After perusing the affidavit and documents of opposite party No.1 and 2 and complainant, it is clear that complainant was admitted in opposite party No.1 hospital and she was under the treatment of opposite party No.2 at the time of conceiving till the delivery. Opposite party No.2 did not find any complication and complainant is regularly consulting with opposite party No.2 at opposite party No.1 hospital. For her first delivery also she was under the treatment of another doctor at opposite party No.1 hospital. As per complainant’s case she stated that her expected delivery date will be 17/01/2015. On 13/01/2015 as per the direction of opposite party No.2, she approached the opposite party No.1 hospital for a regular check-up. Moreover complainant stated that opposite party No.2 rudely behaved on that day. She did the procedure in such a way that the delivery should take place before she going on leave. She exerted pressure upon complainant’s abdomen and because of the exertion of pressure excessively to have an early labour and the rude behaviour by second opposite party the complainant suffered both mentally and physically. But we are on the opinion that the delivery due to exerting pressure upon the abdomen of complainant is an unbelievable statement.

25. During cross examination PW1, the complainant stated that “±do-l-©m-n« J¤-¶¢ J-j-º¢-j¤-¼¢¿, J¤-¶¢-¨i ©k-fts¥-h¢v ¨l-µ® J¤-q¢-¸¢-µ-Y¡-i¢ F-c¢-´® A-s¢-i¢¿. ±d-o-l-©m-n« J¤s-µ® J-r¢-º® J¤-¶¢-¨i d¤-s-©·´® ¨J¡Ù¤-©d¡i¢”. opposite party No.1 B-m¤-d-±Y¢i¢v -c¢¼¤« J¤-º¢-¨c 9 h-X-¢-´¡X® NIMS ©p¡-o®-d¢-×-k¢v ¨J¡Ù¤-©d¡-iY®”. The opposite party No.2 doctor was examined as DW1. As per the deposition of opposite party No.2, she stated that “records of the first treatment is OP book. OP book is not produced by me. it given to the lawyer." Then she stated that “the second page of Ext.B1 is subsequently inserted. It is for the purpose of producing the court, I have written all these things." She again stated that “I am the custodian of Ext. B1 file”. Further she stated that “if the weight of baby is more than 4 kg, we can anticipate complications. In this matter the weight of the baby is not a cause of any complications." She again deposed that “the baby had cried after the delivery. We showed the baby to the mother. Then she stated that “ordinarily after delivery the baby will be taken to a paediatrician. In our hospital no paediatrician and so the baby was sent to another hospital.'' “Opposite party No.4 is the visiting paediatrician of our hospital. Opposite party No.4 not examined the baby from my hospital. Immediately after delivery seeing that there was no problem to the baby. I had done suturing and left the hospital. Distress of the baby is not noted by me. It was noted by RMO and he referred the child to another hospital on my advice.'' From records, cannot be seen that the baby was referred by RMO. In my affidavit also it is not stated. The complications detected in the baby were found after half an hour of the delivery. “I did not find any meconium aspiration. Mecomium has not enter into the baby. If it is aspirated, baby may not be cried. In this case baby cried immediately after the delivery. Immediately after delivery I have seen mecomuim. I did not call the paediatrician, because there was no complication”. The anticipated date of delivery was 17/01/2015. I was having engagement on 18/01/2015. The actions and depositions of opposite party No.2 is also suspicious.

26. In the version and affidavit of opposite party No.2 she stated that, there is no symptom of birth asphyxia. In Ext B1 opposite party No.2 clearly noted that “ the baby cried after birth’’. As per Ext. B1 page No.2 opposite party No.2 noted that “complaining of mild pain gravida 2, G₂P₁L₁. First normal delivery (FTND) male baby weighing 2.71 kg 3½ years old. P/A (per abdomen), uterus term, cephalic, FHS good. EDC : 17/01/2015. Per vaginm Cx taken up, 4 cm membrane present, Vx at brim pelvis normal. Opposite party No.2 again noted that at 3.30pm P/A uterus, Cephalic acting FH good, P/v Cx taken up , 4 cm, membrane absent, Clear liquor , Vx at - 3 , Pelvix normal. As per page No.3 of Ext.B1 opposite party No2 doctor stated that at 6.30 pm on 13/01/2015 noted the progress of labour which is normal. At that time she noted that P/v Uterus acting cephalic. Per vaginal cervix taken up 7-8 cm membrane absent, clear liquor, vertex at 0, Pelvic normal. From the document, it is clear that at 6.30 pm the progress of labour is normal. On that page itself the progress of labour at 7.15 pm opposite party No.2 noted that per abdomen uterus term, cephalic acting, FH good. P/v, Cx fully dilated, membrane absent, clear liquor, vertex at 0, pelvis normal. As per that explanation that complainant delivered the baby within 15 minutes. In the reverse side of page No.3 of Ext.B1 there mentioned that “ delivered male baby 3.84 kg at 7.35 pm on 13/01/2015 Apgr 1’9. Hind water meconium grade 2 MSAF( Meconium staining amniotic fluid), baby cried immediately after birth. Placenta and membrane expelled in Toto. Right medio lateral episiotomy closed in layers. In that page opposite party No.2 prescribed three medicines Taximo twice daily , Rantac twice daily, lycer twice daily for three days. In Ext B1page No4 , opposite party No.2 noted that on 14/01/2015 , “baby shifted to NIMS yesterday night for respiratory distress”

27. From the above matters stated by opposite party No.2 in Ext. B1 document, it is seen that the delivery of the complainant was normal. Child cried soon after birth. Referred to NIMS, but the condition of the baby is not noted in that document which is crucial in this case. Moreover opposite party No.2 did not mention the time she referred the baby to NIMS hospital. As per Ext. B2 document the enquiry report submitted by District Medical Office dated 22/01/2016 , they stated that “±do-l« c-T-´¤-©Ø¡w meconium stained Bi¢ J-Ù-Y¢-¨c Y¤-Tt¼® ©V¡-Jét J¤-º¢-¨c ©l-L« f-ܤ´-¨q J¡-X¢µ® Fu.¨F.o¢. i¤l¢v B-´¤-Ji¤« ¨O-i®-Y-Y¡-i¢ h-c-oæ¢-k¡-J¤¼¤.J¤-º® J-j-º¢-j¤-¼¤-¨l-¼® ©V¡-Jé-s¤«, o®-סe¤« d-s-i¤-¼¤-¨Ù-Æ¢k¤« fܤ-´w ©J-¶-¢¶-¢¿ F-¼¤ d-s-i¤¼¤. ¨V-k¢-¨l-s¢i¡-i J¤-¶¢-¨i ©c¡-´¡u J¤-¶¢-J-q¤¨T ©V¡-Jét l-j¢-J-i¤-Ù¡-i¢¿. 7.35 pm c® ±d-o-l¢-µ J¤-¶¢´® d¢-¼£-T® m§¡-o-YT-oæ« ±m-Ú-i¢v¨d¶-©¸¡w J¤-¶¢-¨i d£-V£-i¡-±T£nu D-¾ NIMS l-Ù¥-j¢-©k-´® s-et ¨O-i®-Y¤. The statements in the report submitted by the District Medical Officer, Malappuram is completely opposite and contradictory to that of the versions submitted by opposite party No.1 and 2.

28. In the version and affidavit of opposite party No.2, she stated that on 13/01/2015 after giving enema complainant started having spontaneous leaking as expected around 3.30 pm. On examination foetal heart sound was good, mild contraction was there, vaginal examination done. On vaginal examination cervix 4 cm dilated membrane absent, clear liquor, no meconium staining , head descended to -3 station . Decision was made to start pitocin. At 6.30 pm examination done she was having regular contraction, foetal heart sound was good, per vaginal examination was done, cervix was 7 -8 cm dilated, liquor was clear, no meconium staining, head was descended to 0 station. In 3 hour time cervical dilation was 3- 4 cm more which is normal progress of labour. “At 7.35 pm with full cervical dilation she delivered male baby which cried immediately after birth. Liquor which came after baby was born had meconuim staining. Baby was cleaned and shown to the mother and her relatives. Subsequently the baby was found to have respiratory distress and informed the paediatrician and decision was made to shift the baby to nearby hospital. She stated that, she adhered to the globally accepted protocol regarding the management of labour. Putting a patient on the surgery table and conducting of LSCS unnecessarily without allowing the patient to have a normal delivery is against professional ethics and also against the globally accepted protocols regarding management of labour. She again stated that, immediately after delivery the baby cried and there was no symptom of birth asphyxia. Baby was cleaned and shown to the mother and relatives and handed over to relatives of the complainant. It is respectfully submitted that after the elapse of half an hour after birth the baby exhibited the symptoms of respiratory distress.

29. All the statements made by opposite party No.2 is contradictory to one another. Moreover while cross examining, she admitted before the Commission that “the second page of Ext.B1 is subsequently inserted. It is for the purpose of producing the Court, I have written all these things. I am the custodian of Ext.B1 file. From that deposition of opposite party No.2 it is clear that she had inserted the details on one day in Ext.B1 document for the purpose of conducting case. In Ext.B1 document she wrote all the matters which shows that the delivery of complainant is normal and baby cried and baby washed and given to the relatives of complainant. But during cross examination she stated that “the baby was not shown to the relatives. I have no direct knowledge whether the nurses shown to the baby to the bystanders”. From the beginning itself the complaint of the complainant is that the baby was not shown to her. In the complaint and while cross examining PW1 and PW2 both parties deposed that baby was not shown to her and PW2 and their relatives. Opposite party No.2 normally and casually saying that “ordinarily after delivery the baby will be taken to a paediatrician. In our hospital, no paediatrician and so the baby was sent to another hospital. From the statements of opposite party No. 2 we think that she had sent the baby to NIMS hospital, Wandoor for a routine and normal check up of the baby by a paediatrician. No complication felt from her above words. Then she again stated that there was no problem to the baby I have done suturing and left the hospital. Distress of the baby is not noted by me. It was noted by RMO and he referred the child to another hospital on my advice. While cross examining she deposed that “In my affidavit it is not stated”. She again stated that “meconium has not enter into the baby. If it is aspirated, baby may not be cried.” “In this case baby cried immediately after the delivery, I have seen meconium. I did not call the paediatrician because there was no complication. From the deposition of opposite party No.2 doctor and from Ext. B1 document it is clear that, every statement she had delivered were contradictory.

30. The words of complainant regarding the pressure exerted by the doctor and other statements of complainant relating to that area is not taken into consideration.

Sometimes complainant may have approached opposite party No.1 hospital for a check-up due to some pain. The statements made by the complainant were also unbelievable. If there is no pain, she will not be delivered in the evening. But after delivery the actions and submissions of the doctor also were doubtful. She had transferred the child to opposite party No.3 hospital without the mother complainant. As per the deposition of opposite party No.4 , he stated that “ he first seen the baby at 8.30 pm” that means within one hour after delivery. Moreover opposite party No.1 and 2 did not mention in Ext. B1 document about the procedure and precautions they have taken while transferring the baby from opposite party No.1 hospital to opposite party No.3 hospital. Opposite party No.2 doctor clearly stated that immediately after delivery the baby cried and there was no symptoms of birth asphyxia. Then why should she transferred the baby to a hospital which is nearly 13 km away from opposite party No.1 hospital without any serious matter. Opposite party No.1 and 2 did not state the precautionary measure they had taken for transferring a new born having serious health issues from one centre to another. Moreover the complainant was in opposite party No.1 hospital and she had shifted to opposite party No3 hospital only on the next day. Complainant contended that, she did not breast feed the baby and baby not cried. But opposite party No.1 and 2 did not mention anything about that area. From the facts and circumstances it is clear that, there is gross negligence on the part of the doctor and the hospital and there is deficiency in service from their side. From the documents, it is not clear that how they shifted the baby from opposite party No.1 hospital to opposite party No.3 hospital. Whether the baby shifted from one centre to another by the hospital authorities or the relatives of the complainant is also not clear. The opposite party No.2 doctor admitted that the baby had some discomfort half an hour after delivery. But the procedure of shifting a baby with a serious condition from one centre to another is not noted anywhere in the document. If the relatives of complainant had shifted the baby, it is also a serious mistakes from the side of opposite party No.1 and 2. A laymen are not aware about the condition of the baby and the seriousness of the procedure of shifting. The shifting of a new born having serious health issues from one centre to another without a well equipped ambulance is a deficiency in service and negligence from the side of opposite party No.1 and 2.

31. In Ext.B2 the reports submitted by the District Medical Officer, Malappuram they stated that “ h¡o-·¢v G-Y¡Ù® 100 ±d-o-l-©·¡-q« c-T-·¤-¼ (GJ ¨¨L-c-©´¡-q-Q¢-o®-×® h¡-±Y-h¤-¾) d¢.Q¢. B-m¤-d-±Y¢-i¢v ©Q¡-k¢ ¨O-à¤-¼¤ ©V¡.l¢-c£-Y J-r¢-º 1 ½ lt-n-©·¡-q-h¡-i¤-¾ Y-¨Ê ©Q¡-k¢-i¢v ©J¡x-e¢VÊ® B-¨X-¼¤¾-Y® ©V¡-Jé-s¤-¨T ©J¡-dë¢-©´-nu jp¢-Y ±do-l« c-T-´¤-¼-Y¢-c¤-¾ Y£-j¤-h¡-c-·¢-¨c c¬¡-i£-J-j¢-´¤¼¤..” From that we are on the opinion that in such a hospital the service

of paediatrician is not only necessary but also compulsory. It is also a clear deficiency of service from the side of opposite party No.1 and 2. In Para 7 of the affidavit of opposite party No.2, She stated that “ she is a well qualified and well experienced gynaecologist and had followed the well accepted protocols with regard to management of pregnancy and labour in the case of complainant.” We are on the opinion that she is a well qualified doctor at the same time she has the duty to show utmost care and caution. But from the documents and from the complaint and affidavits of both parties it is seen that opposite party No.1 and 2 were hiding some facts from the Commission. She admitted that she inserted the relevant pages in Ext. B1 document for the purpose of producing before the Commission. Moreover she did not mention in detail the procedure she had taken after the complication arises. From the documents it is clear that opposite party No.1 and 2 did not follow and enquire the condition of the child after shifting the child from their hospital to opposite party No.3 hospital. They did not enquire about the procedure and treatment methods conducted by opposite party No. 4 at opposite party No.3 hospital. From the documents it is clear that there is no follow up taken by opposite party No.1 and 2 regarding the conditions of the child at opposite party No. 3 hospital. No documents produced to prove that they enquired about the condition of the child at opposite party No.3 hospital. Moreover in Para 14 of the affidavit of opposite party No.2 she stated that “opposite party No.1 and 2 had no direct knowledge regarding the procedure and treatment given to the baby from NIMS hospital and Medical college hospital, Kozhikode. Her statement regarding the meconium aspiration is also doubtful. She stated that at the time of birth the presence of meconium is grade II. It is true that it is a moderate level of meconium aspiration . So there is no need to shift the baby to higher centre. So we are on the opinion that there was some complications to the new born and opposite party No.1 and 2 transferred the child to opposite party No3 hospital and corrected the documents according to their whims and fancies.

32. Opposite party No.4 stated that on 13/01/2015 at 8.30 pm the complainant’s baby admitted in opposite party No.3 hospital with respiratory distress and shoulder dystocia and 4^th opposite party examined the baby and given necessary treatment to the baby on admitting the baby in the NICU. The 4^th opposite party stated that on 13/01/2015, the baby of the complainant bought at 3^rd opposite party hospital at 8.30 pm as a referred case from first opposite party’s hospital. As per the clinical history the baby was born on 13/01/2015 at 7.35 pm with respiratory distress with grunting, respiratory rate 80/min, LCI+, Oxygen saturation 98%, heart rate 142/mt. The baby required resuscitative management under NICU and serious condition was explained to the bystanders and managed with IV fluids, antibiotic, oxygen and other supportive care. After admission to NICU and in response to medical management, respiratory distress and grunting was found decreasing. On 13/01/2015 at 13th hour the baby was found to be active and Moro reflex present. At 23^rd hours the baby had shown signs of symptomatic hypoglycaemia and the same was corrected with glucose. The baby had signs of sepsis and became febrile with slightly increased respiratory rate, CRP and decreased platelets count. Blood was sent for culture and the sensitivity and antibiotics changed as per culture and sensitivity and the condition was explained to the bystanders. They were advised for reference to a higher centre in view of sepsis, but the bystanders did not prefer to take the baby to higher centre. Later baby had developed seizure and the condition was managed with appropriate medication and refereed to MCH, Calicut for further management.

33. From the version and affidavit of opposite party No3 and 4 and as per the oral written submission of opposite party No.3 and 4, it is seen that they had taken every step to save the baby. Opposite party No.3 is the Managing Director of NIMS hospital, Wandoor and 4^th opposite party is working in the hospital as a consultant paediatrician. The baby of the complainant was admitted in opposite party No.3 hospital with respiratory distress and shoulder dystocia and 4^th opposite party examined and given necessary treatment to the baby in NICU. But the conditions of the baby become worse and hence the baby referred to Medical College Hospital for further treatment. In the complaint, complainant had no serious allegation against opposite party No.3 hospital. She just mentioned that the child is not shown to the complainant and her relatives by opposite party No.3 hospital. Moreover she stated in the affidavit that the condition of the baby was not properly intimated to complainant and her relatives. But from the complaint and affidavit of the complainant and from the version and affidavit of opposite party No.3 and 4, it is clear that opposite party No.3 hospital had sent the complainant and the baby to Medical College Hospital, Kozhikode with two nurses of opposite party No.3 hospital in an ambulance. But opposite party No.3 and 4 not produced any documents before the Commission to prove their contentions. The treatment records and the steps they had taken were not reported any where. They just orally submitted the above matters in their version and affidavit. Like opposite party No.1 and 2, they also submitted a narrated story before the Commission as per their whims and fancies. Hospital records and procedures done by Doctor and nurses are also not submitted before the Commission for perusal. Just after delivery the child had transferred to opposite party No.3 hospital and child was under the treatment of opposite party No.4. Moreover the child is under the custody of opposite party No.3 and 4 for nearly three days. This is a crucial period regarding a child having serious discomforts. As per their oral submissions opposite party No.3 hospital had taken every effort for saving the life of complainant’s baby, they had given proper attention to the baby under the direction of 4th opposite party. But complainant contented that the baby was not shown to her and her relatives by opposite party No.3 and 4

But complainant herself admitted about the service of two nurses who accompanied the baby by travelling from 3^rd opposite hospital to Medical college. But it is the duty of opposite party No.3 and 4 to submit necessary documents, hospital records before the Commission to scrutinize the procedures they had taken from 13/01/2015 8.30 pm to 16/01/2015. The baby was treated at opposite party No.3 hospital on 13/01/2015, 14/01/2015, 15/01/2015 and 16/01/2015.

34. As per the complaint, complainant stated that there is deficiency in service from the side of opposite party No.4. Complainant alleged that opposite party No.4 is a doctor who is working in opposite party No.1 hospital also. Later it was told that the paediatrician will not come to first opposite party hospital after 9.00 pm and therefore the baby is to be taken to 3^rd opposite party hospital for consulting the paediatrician, the opposite party No.4. The baby was taken to third opposite party hospital in an ambulance only because the 4^th opposite party was not ready to come to first opposite party hospital to examine the baby. She again alleged that the Paediatric departments in both hospitals (opposite party No.1 and 3) are under the responsibility of 4^th opposite party and it was his duty to come and examine the baby at first opposite party hospital. It is a deficiency in service. But in the version and affidavit and the deposition of opposite party No.4 , it is clear that he is a consultant paediatrician at opposite party No.3 hospital only. Opposite party No.4 is examined as DW2 and he deposed that he is busy working at NIMs hospital, Wandoor. He again deposed that he had worked in opposite party No.1 hospital from 2006 till 2009. He again stated that “on 13/1/2015v S¡u P.G.Medical Trust B-m¤-d-±Y-¢ i¢v ©Q¡-k¢¨O-i®-Y¢-¶¢¿.” He again deposed that “emergency Alo-j-¹-q¢v P.G. Medical Trust B-m¤-d-±Y¢i¢-©k-´® F-¨Ê ©ol-c« B-l-m¬-¨¸-T¡s¤Ù®. 13/01/2015 Y¢à-Y¢ d-j¡-Y¢-´¡-j¢ ±d-o-l¢-µ J¤-¶¢-´® m§¡-o« h¤-¶® D-Ù¡i-©¸¡w opposite party No.2F-¨¼ l¢-q¢-µ¢-j¤¼¤.d-¨È S¡u NIMSB-m¤-d-±Y¢-i¢v duty i¢-k¡-i¢-j¤-¼-Y¤- J¡j-X« S¡u P.G.Medical Trust B-m¤-d-±Y¢-i¢v A-¼® ©d¡-i¢-¶¢¿. From the above points it is clear that opposite party No.4 is not a consultant paediatrician at opposite party No.1 hospital. Hence it is not his duty to go to opposite party No.1 hospital because he is working there at opposite party No.3 hospital at that time. Due to his hectic schedule he directed opposite party No.2 to bring the child to his hospital. He again stated that “ J¤¶¢ h-j-X-¨¸T¡u J¡j-X« h-n¢ C-s-¹¤-J F-¼ A-l-Ì-¨J¡-Ù¤-h¡-±Y-h¿ J¤-¶¢´® hypoglycaemia, hypocalcaemia, A-X-¤f¡-b, ©dë-×-¨k-×®o® J¤-s-i¤-¼ Al-Ìi¤«, h-º-d¢-·l¤« D-Ù¡-i¢-j¤¼¤. He again deposed that Cª A-o¤-K-¹-w F¿¡« D-Ù¡i-Y® h-n¢ C-s-¹¢i-Y¤ ¨J¡-Ù¡-©X¡ (Q) A¿(Ans.). Moreover he deposed that J¤-¶¢-¨i F-¨Ê A-T¤-·¤-¨J¡-Ù¤-l¼Y® serious condition –v Y-¨¼-i¡-i¢-j¤¼¤. J¤-¶¢-i®-´® ©l-Ù F¿¡ O¢-J¢-Ë¡ oªJ-j¬-¹-q¤« S¡u ©Q¡-k¢-¨O-à¤-¼ B-m¤-d-±Y¢-i¢v D-Ù¡-i¢-j¤-¼-Y¤-¨J¡-Ù¡-X® J¤-¶¢¨i admit ¨Oi®-Y DT¨c refer ¨O-à¡-Y¢-j¤-¼Y®. J¤-¶¢-i®´® breast feeding c-T-·¢-i¢-¶¢¿ J¡j-X« m§¡-o«-h¤-¶® D-Ù¡i¢j¤-¼-Y¤-¨J¡-Ù¡X®. J¤-¶¢-¨i A-½-i®-´® J¡-X¢-µ¤-¨J¡-T¤-´¤-¼-Y¢-v Y-T-o¹-w D-Ù¡-i¢-j¤-¼¢¿.

35. From the above facts, it is clear that opposite party No.4 is a paediatrician at opposite party No.3 hospital. He stated that because of personal relation he sometimes goes to opposite party No.1 hospital and in some other hospital. Hence it is the duty of the complainant to prove that aspect alleged in their complaint. But in the critical period of the infant, opposite party No.4 was treated the child at opposite party No.3 hospital. Opposite party No.4 stated that the infant was in a serious condition when he first saw the infant. He again stated that “the infant is not breast feeded”. So the statements of opposite party No.1 and 2 and opposite party No.3 and 4 also contradictory. Opposite party No.3 and 4 not produced the relevant hospital records before the Commission. It is a negligence from their side. Moreover there is deficiency of service and unfair trade practice from their side. They are also deliberately hiding something from the Commission. That is why they did not produce documents regarding the treatment at the relevant period. Thereafter they transferred the child to MCH Calicut. On the very next day the infant died. So from the above it is clear that when transferring the child from opposite party No.3 hospital to MCH Calicut the child was in a critical condition. But the condition of the child is not submitted through proper documents before the Commission by opposite party No.3 and 4. They can easily produce documents because that documents were in the safe custody of opposite party No.3 and 4. Moreover opposite party No.4 stated that in Para 4 of his affidavit that “ As per clinical history baby was born on 13/01/2015 at 7.35 pm with respiratory distress due to meconium aspiration and had shoulder dystocia and cried soon after birth. While cross examining the opposite party No.4 he stated that “ As per clinical history………… cried soon after birth. F-¨¼-r¤-Y¢-i¢-¶¤¾-Y® OP.2 d-s-º¤-Y-¼-Y¢-¨Ê A-T¢-Ì¡-c-·¢-k¡X®. The treatment records from 13/01/2015 8.30 pm to 16/01/2015 till the baby transferred to MCH Calicut is very relevant and crucial about this case. What are the steps taken by opposite party No.3 and 4 while treating the infant who was in a serious condition. They orally admitted that infant was in a serious condition. The child died on the very next day that means on 17/01/2015. Non- production of the treatment records before the Commission is very doubtful. The treatment procedure and how they handle the infant during that crucial 3 days are very relevant regarding this case. The opposite party No.4 admitted that they received the child in a critical condition and the child died thereafter. After delivery, during the crucial period regarding this case the child is in the custody of opposite party No.3 and 4. Opposite party No.3 and 4 admitted that the child was in the custody of opposite party No.3 and 4 from 13/01/2015 at 8.30pm to 16/01/2015. So opposite party No.1, 2, 3 and 4 are jointly and severally liable .

36. Medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in practice, which are being practiced by an ordinarily and reasonably competent man practicing the same profession. A professional charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. Under normal circumstances the burden of proof is heavily on the patient. The standard of care expected of a medical man is neither too high nor too low. The law expect from the medical practitioner is to exercise reasonable care expected of medical practitioner. One of the do’s for a doctor is ordinary and reasonable care and skill should be applied at all times with all patient. Another factor is detailed records in respect of the entire patient should be methodically maintained. Another one is consent of the patient whenever the situation demands must be obtained in writing. Preservation and production of medical records, history chart, treatment chart and investigations etc can obviate many problems and prevent litigation. Even during the trial of cases the production or non production of document can raise presumption in the judicial mind. Sometimes the burden of proof very well be settled if all the treatment records are made available to the patient and also to the doctors referred to later, in case the treatment is given by more than one doctor. When the patient has the right to know about the treatment is actually had. Moreover if the patient is even not given the medical record or at least the summary of the treatment given by the doctor how the patient can get the opinion of another expert doctor. Thus non production of medical records takes away the opportunity of the complainant to seek an expert opinion. Dr. Shyam kumar Vs Ramesh Bhai, Harman Bhai, Kachhiya 2002(1) CPR 320. Treatment record neither given to the complainant nor produced before the Commission by the Doctor and nursing home amounts to a needle of suspicion about medical negligence held to be pointed towards treating the doctor and nursing home.

37. In Dr. Jagdish Lalwani & Dr. Sushil Acharya Vs Madan Lal Yadav and 5 others (2022) CPJ 384 NC. Poor medical record maintained by hospital itself, was deficiency in service and failure of duty of care. In that appeal the medical record is devoid of pre-operative consent, the operative details and further treatment details maintained by opposite party hospital. It should be borne in mind that the medical record is, itself , a vital document to prove the duty of care of the treating doctor or hospital. In our view good medical records is a ‘good defence’. Poor medical record is a poor defence and no medical record means no defence. In that case the appellants failed on this count, the records were poorly maintained. So non production of document before the concerned authority during the trial is a clear negligence and deficiency in service. In this matter opposite party No.3 and 4 also hiding the facts from the Commission. In the affidavit of opposite party No.4 he stated that, the serious condition of the baby was explained to the bystanders, and with their consent the baby was shifted to NICU and managed with IV fluids, antibiotics, oxygen and other supportive care. He again stated that baby had developed signs of sepsis and became febrile with slightly increased respiratory rate, CRP and decreased platelets count. Blood was sent for culture and sensitivity and antibiotics changed as per culture and sensitivity and the condition was explained to the bystanders. He again stated that the bystanders were advised for a reference to higher centre in view of sepsis. But the bystanders did not prefer to take the baby to higher centre and wanted to continue treatment under observation for one more day at the third opposite party hospital. But the above statements were not believable because opposite party No.3 and 4 did not produce the consent letter of complainant or the bystanders and other details to prove their contention. At the same time while cross examining ,he deposed that “J¤-¶¢-¨i F-¨Ê A-T¤-·¤-¨J¡-Ù¤-l¼Y® serious condition –v Y-¨¼-i¡-i¢-j¤¼¤. J¤-¶¢-i®-´® ©l-Ù F¿¡ O¢-J¢-Ë¡ oªJ-j¬-¹-q¤« S¡u ©Q¡-k¢-¨O-à¤-¼ B-m¤-d-±Y¢-i¢v D-Ù¡-i¢-j¤-¼-Y¤-¨J¡-Ù¡-X® J¤-¶¢¨i admit ¨Oi®-Y DT¨c refer ¨O-à¡-Y¢-j¤-¼Y®.” Opposite party No.4 again stated that the second opposite party had treated the complainant with due diligence and care as per standard procedure and accepted protocol. But opposite party No4 only got the child after the delivery, then how can opposite party No.4 said about the care and attention given by opposite party No.1 and 2. Moreover the condition of the baby was not noted anywhere. Opposite party No1 and 2 and opposite party No.3 and 4 only orally submitted the condition of baby .Opposite party No.4 always saying that, he had duly attended and treated the baby in NICU as per accepted protocol. Even now Commission is not aware the steps taken by opposite party No3 & 4 from 13/01/2015 8.30 pm to 16/01/2015, the crucial and important period regarding this particular case. In SQ. LDR.N.K. ARORA RETD & ANR VS ARMY HOSPITAL (R & R) & OTHERS. In that case the National Commission stated that, good medical record is good defence poor medical record is poor defence and no medical record is no defence. Once complainant had discharged initial burden, it was incumbent upon hospital authority to prove that they had done their duty without any negligence on their part which they had failed to do.

38. The death could have caused due to meconium caused due to meconium aspiration, hypoglycaemia, hypocalcaemia, neo natal seizure etc. As per Ext. A11, Dr. Vijayakumar , Department of paediatrics at IMCH, Calicut diagnosed that the baby was referred from NIMS hospital, Wandoor , Malappuram as a case of meconium stained amniotic fluid with respiratory distress with neo-natal seizure, hypoglycaemia and hypocalcaemia. But the complainant’s contention about the pressure exerted by opposite party No.2 before delivery is not believable. Some pressure exertion during the time of delivery is natural. The contention of complainant is not proved through an expert by the complainant. Without pain and other symptoms no normal delivery is possible. The delivery before the expected date of delivery and after the expected date of delivery is also common. More over while cross examining the complainant she deposed that dj¢-©m¡-b-c-i¢v ±d-o-l-kÈ-X« ±m-Ú-i¢v ¨d-¶-Y¤-¨J¡-Ù¡X® opposite party No.2 F-¨¼ A-l¢-¨T A-V®-h¢-×® ¨O-i®Y-Y® F-¼¤ d-s-º¡v m-j¢-i¡X® . But at the same time , opposite party No.2 doctor admitted that " I was having engagement on 18/01/2015. On 15^th onwards I were on leave. I had applied for leave earlier". Moreover she stated that the RMO referred the case to opposite party No.3 hospital with her advice. But she did not mention that important aspect in her version and affidavit. From the documents it is clear that opposite party No.1 and 2 did not follow the condition of the baby and mother after discharging them from opposite party No.1 hospital. They are not at all bothered about the condition of the baby and mother who delivered the baby at opposite party No.1 hospital under the treatment of opposite party No.2. The acts of opposite party No. 1 and 2 is also under suspicion. Opposite party No.3 and 4 want to suppress some material facts from the Commission and it feels that they want to help opposite party No.1 and 2 in other ways. During cross examination opposite party No.2 admitted that she had added page No.2 in Ext. B1 document. Opposite party No.1 and 2 did not produce the OP book before the Commission. Opposite party No.4 always arguing that he had intimated about the situation of the child to complainant and bystanders and he advised them to shift the child to higher centre. Opposite party No.1 to 4 did not produce the consent letter from the complainant and relatives before the Commission to prove their contentions. Opposite party No.1 and 2 also want to hide some material facts from the Commission.

39. From the above facts we are on the opinion that the actions of opposite parties No.1, 2, 3 and 4 raise some doubts about the death of child. That is why they did not produce the relevant medical records and documents before the Commission. The already marked document Ext. B1 opposite party No.2 admitted that she inserted the relevant pages. In effect she admitted that it is a concocted document. Non production of relevant documents before the Commission is an unfair trade practice. It is against medical ethics. (Dr. Shyam kumar Vs Ramesh Bhai, Harman Bhai, Kachhiya 2002(1) CPR 320).

40. The non availability of a paediatrician at opposite party No.1 hospital is also a deficiency in service from their side. Absence of a paediatrician is astonishing this Commission. In the report of Medical Officer, Malappuram, they stated that the opposite party No.2 is handling nearly 100 maternity cases in a month at opposite party No.1 hospital and she is the only gynaecologist in that hospital. But there is no emphasis on that report about the necessity of a paediatrician in opposite party No.1 hospital. They even did not mention the importance of a paediatrician in opposite party No.1 hospital. So the service of a paediatrician is very much necessary in opposite party No.1 hospital. Moreover in that report they stated some aspects which are not available in Ext.B1 produced by opposite party No.1 and 2. The aspects mentioned does not find a place in documents produced by opposite party No.1 and 2. In the middle portion of Para 2 of Ext. B2 the Medical Officer reported that “7.35 d¢.F« c® ±d-o-l¢-µ J¤-¶¢-´®d¢-¼£-T® m§¡-o -YT-oæ« ±m-Ú-i¢v¨¸-¶-©¸¡w J¤-¶¢-¨i d£-V¢-i¡-±T£-nu D-¾ c¢«-o® l-Ù¥j¢-©k-´® s-et ¨O-à¤-J-i¡-X¤-Ù¡-i¢-¶¤-¾Y®. d¢-¼£-T® J¤-º¢-c® m§¡-o-YT-oæ« hפ« D-Ù¡-l¤-Ji¤« ©V¡-Jét A-´¡j¬« f-ܤ´-¨q A-s¢-i¢-´¤-Ji¤« ¨O-i®Y¤. C-Y¢-c¢-T-i¢v J¤-º¢-c® A-o¤-K« G-s¢i¤« J¤-s-º¤« C-j¤¼¤. Y¤-Tt¼® 16/01/2015 c® ¨¨l-J¢-©¶¡¨T A-d-o®-h¡-j« D-Ù¡-l¤-Ji¤« A-Y® O¢-J¢-Ë-i¢-k¥-¨T c¢-i-±É¢µ® 07.15 H¡-T¤-J¥-T¢ ©J¡-r¢-©´¡-T® ¨h-V¢-´v ©J¡-©q-Q¢-©k-´® s-et ¨O-à¤-J-i¡-X¤-Ù¡-iY®. In the report submitted by Medical Officer, Malappuram did not mention about the name of the concerned doctor who furnished the information about the breathing difficulties of the infant to them and who informed the issue to the relatives of the infant. It appears Dr. Vineetha informed the details to the relatives. But the fact remains that the infant already shifted to opposite party No.3 hospital. Nothing has been mentioned in the report about what transfered at 3rd opposite party hospital under the supervision of opposite party No.4.

41. In this case opposite party No.1 and 3 had the duty to produce concerned medical records about the treatment of the child before the Commission. They are also reluctant to produce the medical records to prove their contentions. Moreover hospitals are vicariously liable for the acts committed by the doctors during the course of employment. Dr. Balagopal Vs K.V. Radhakrishna Menon and others 2007 CPJ (2) 244 NC. Hospitals are equally liable for the acts committed by the doctors during the course of employment vicarious liability is there. All opposite parties want to suppress some material facts from the Commission. That is why they did not produce the relevant records including the consent of complainant and bystanders before the Commission. It is clear deficiency in service and unfair trade practice from the side of opposite parties and also a clear negligence from their side. So all the opposite parties are jointly and severally liable to compensate the complainant. Hence we allow this complaint holding that opposite parties are deficient in service.

42. For quantifying the compensation, there is no specific guideline under Consumer Protection Act. In this complaint, the matter is the death of an infant. In this matter, while considering the compensation aspect, we have to consider the mother of the infant who carried the baby for the last 10 months. During all these period she underwent consultation with the concerned doctors and undergone a lot of pain and sufferings. Neo-natal death is a very difficult experience for the whole family. Considering the entire aspects we allow this complaint as follows:

43. Point No.2:-

We allow this complaint as follows:-

1. The opposite parties are directed to pay compensation of Rs. 4,00,000/-(Rupees Four lakh only) to the complainant on account of negligence from their side, deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.

2. The opposite parties are also directed to pay Rs. 50,000/-(Rupees Fifty thousand only) as cost of the proceedings.

If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.

Dated this 21^st day of March, 2023.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1 & PW2

PW1 : Complainant

PW2 : Husband of complainant ( Aneesh.M.G).

Documents marked on the side of the complainant : Ext.A1to A12

Ext.A1 : Series are the true copy of registered lawyer notice sent by Adv.M.

Satheesh Poothikkad to opposite parties dated 15/05/2015 and postal

receipts and acknowledgements(9 Nos.).

Ext.A2(1): Copy of complaint filed by complainant’s husband before SI of Police ,

Nilambur dated 19/01/2015.

Ext.A2(2): Copy of complaint filed by complainant’s husband before the President

of IMA, Nilambur dated 19/01/2015.

Ext.A2(3): Copy of complaint filed by complainant’s husband before District Medical

Officer, Malappuram dated 19/01/2015.

Ext.A2(4): Original receipt given from DYSP Office, Perintalmanna to complainant’s

husband after receiving the complaint dated 20/01/2015.

Ext.A2(5): Receipt given from DP Office to complainant after receiving the complaint

dated 13/04/2015.

Ext.A2(6): Original reply given to complainant’s husband by the Director of Health

dated 16/03/2015.

Ext.A2(7) : Original receipt given from District Medical Officer (Heath),Malappuram

to complainant’s husband on 20/01/2015.

Ext.A2(8) : Copy of the reply given to complainant’s husband by office of Health

Minister dated 13/03/2015.

Ext.A2(9) : Receipt given to complainant’s husband from Circle Office Nilambur dated

19/01/2015.

Ext.A(10): Notice to complainant’s husband from Kerala Vanitha Commission for

appearing the adalath conducted by them dated 18/02/2015.

Ext. A3 : Bill provided by opposite party No.1 to complainant as consultation fee

dated 26/08/2014.

Ext.A4 : Original prescription and scanning report of opposite party No.1 dated

13/06/2014.

Ext.A5 (1 to 7) : Series are the medical bills given to complainant from opposite

party No.1 hospital &

Ext.A5 (8 to 19) : Series are the medical bills given to complainant from opposite

party No.3 hospital.

Ext.A6 : Prescription given by opposite party No.4 to complainant dated

16/01/2015 .

Ext.A7(1) : Original discharge card given by opposite party No.1 hospital to

complainant on 15/01/2015.

Ext.A8(1) : Original scanning report given from Medscan to complainant on

26/08/2014.

Ext.A8(2) : Original scanning report given from Medscan to complainant on

12/12/2014.

Ext.A9 : Discharge slip-Beneficiary copy dated 15/01/2015.

Ext.A10 : Blocking slip –Beneficiary copy dated 13/01/2015.

Ext.A11 : Original Final Diagnostic Report given by Department of Paediatrics,

Kozhikode dated 13/02/2015.

Ext. A12 : Certificate given by Dr. Gokul Das of Government Medical College,

Kozhikode to complainant.

Witness examined on the side of the opposite party : DW1 and DW2

DW1 : Opposite party No.2 (Dr. Vanitha.M)

DW2 : Opposite party No.4 (Dr. Nazar)

Documents marked on the side of the opposite party : Ext. B1 to B2

Ext.B1 : Original Inpatient files of complainant.

Ext.B2 : Enquiry report No.A6/1830/2015 submitted by District Medical Officer

(Health), Malappuram dated 22/01/2016.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

CPR