HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The Appellants / Opposite Parties No. 1 & 2 have preferred this appeal against the order dated 12/10/2018 passed by the District Consumer Disputes Redressal Forum, Hooghly    ( in short, ‘the District Forum’) vide Consumer Case No. CC/15/2016 for issuance of directions to the Appellants and the Respondent No. 2 to pay a compensation of Rs.15,00,000/- (Rupees fifteen lakh) only for medical negligence and to pay an award of Rs.3,00,000/- (Rupees three lakh) only for mental agony, was allowed.

2. Brief facts of the Consumer Case are that the Complainant / Respondent No. 1 was a pregnant woman who came to the Opposite Party Nursing Home for treatment under the Opposite Party No. 3 / Respondent No. 2 who was connected with the Opposite Party No. 1 Nursing Home. After completion of 40 weeks, the Complainant came to the Opposite Party No. 3 and was admitted under Opposite Party No. 1 Nursing Home. After formal check up, the Complainant was taken to the Operation Theatre and gave birth to a male child at 5.24 a.m. on 24/12/2015 by way of normal delivery under supervision of Opposite Party No. 3 / Respondent No. 2 and other associates of Opposite Party No. 1 Nursing Home.  Expert of Opposite Party No. 1 Nursing Home completed primary check up and the baby was given to his mother i.e. the Complainant, to be fed first mother’s breast milk. The Doctor of Opposite Party No. 1 and Opposite Party No. 3 assured that the baby was perfect and alright. On 26/02/2015 after final check up of both the mother and the baby, the Opposite Party No. 3 / Respondent No. 2 gave her consent to discharge the Complainant. So, the Opposite Party No. 2, the RMO and the Opposite Party No. 1 Nursing Home after complying all subsisting conditions and perusing the report of the Complainant, discharged the baby on 26/12/2015 signed by the Opposite Party No. 2 with RMO seal. The Complainant was given medical certificate and medical advice and told her to feed the baby with breast milk. The Complainant paid the bill of Rs.4,000/- ( Rupees four thousand) only under receipt No. 277 dated 26/12/2015. The baby was feeling uncomfortable and was crying continuously. On 26/12/2015 swollen abdomen was noticed by the family members and they contacted with Dr. Amitabha Chowdhury on 26/12/2015 at evening. Dr. Chowdhury after clinical examination, the new born baby was diagnosed ‘Imperforate anus’. Dr. Chowdhury in his prescription advised for admission to Burdwan Medical College & Hospital. So, on the same date, the mother and father of the baby went to the Burdwan Medical College & Hospital on 26/12/2015. The said authority told the Complainant for treatment in Medical College & Hospital. Finding no other alternative, the new born baby and his parents went to the Medical College  & Hospital, Kolkata and booked the emergency ticket being No. 8135 dated 26/12/2015 at 10.00 p.m. The Pediatrician examined the baby and referred the patient baby to NRS Medical College & Hospital on the same day and at same night. Under compelling circumstances, the Complainant and her husband with the new born baby went to NRS Medical College & Hospital, Kolkata and admitted the baby to Pediatric Surgery Ward on 26/12/2015 at 11.21 p.m. under supervision of Dr. A. Saha and Dr. D. Ghosh. The said two Doctors examined the patient and opined for artificial opening or anus by installation of foreign body for survival of the baby. The Doctors by their opinion adopted temporary relief. On 27/12/2015 ‘Sigmoid Loop Colostomy’ was done in NRS Medical College & Hospital and on the same day the baby was discharged with dressing up ‘Loop Colostomy’. Therefore, the said ‘Loop Colostomy’ was being done at SEFA Nursing Home at Burdwan with cost of Rs.8265/- per sitting. The deplorable financial condition of the husband of the Complainant is passing through hardship because of the carelessness of the Opposite Parties.

3. Further case of the Complainant is that from the morning of 24/12/2015 till the morning of 27/12/2015, the Complainant moved from Opposite Party No. 1 Nursing Home via Burdwan Medical College & Hospital via Kolkata Medical College & Hospital to NRS Medical College & Hospital. The parents of the new born baby was not spared from facing trouble with the new born baby. Hence,  the present Consumer  Case was filed against the Opposite Parties.

4. The Opposite Parties No. 1 & 2 filed joint written version. They averred therein that Opposite Party No. 2 is the RMO of the Opposite Party No. 1 Nursing Home but it is not true that he is responsible for all the activities of the Opposite Party No. 1. The Complainant gave birth to a male child in the Opposite Party No. 1 Nursing Home at 5.24 a.m. The expert of the Opposite Party No. 1 Nursing Home examined and checked up the new born baby primarily. It is not known to the Opposite Party No. 2 whether the Complainant and her family members enquired anything about the new born baby to the Nursing Home and the Opposite Party No. 3 Doctor, nobody informed or intimated anything about the query of the Complainant and her family members. The Opposite Party No. 2 issued discharge certificate and also handed over written medical advice for the mother and the new born baby. After discharge, the Complainant along with her new born baby, the Complainant and her family members never came to the Opposite Party No. 2 and further that he did not give any advice regarding feeding of breast milk to the Complainant because the medicines written in the medical advice were prescribed as per the instruction of the treating Doctor and the treating Doctor i.e. Opposite Party No. 3 has done all the relevant facts with the new born baby.  The Opposite Party No. 2 RMO issued the certificate to the Complainant as per the instruction of the Opposite Party No. 3 who is a Gynecologist.

5. The Opposite Party No. 3 also contested the case by filing written version separately denying all the material allegations as levelled against her. Her specific case is that prior to 24/12/2015 she never treated or examined the Complainant. Under supervision of her, the Complainant gave birth to a male child at the Opposite Party No. 1 Nursing Home. The Opposite Party No. 3 further submits that being refused by the Dhaniakhali Rural Hospital, the Complainant contacted with her at her chamber. She checked the Complainant and her medical papers and advised for admission at Nursing Home, according to the choice of the husband of the Complainant. Accordingly, the husband and the family members of the Complainant admitted her at the Opposite Party No. 1 Nursing Home on 24/12/2015. So, the Opposite Party No. 3 being a Doctor considering the situation and also considering the duty of a Doctor started treatment of the Complainant to save the Complainant and her baby from any unwanted situation. The Complainant gave birth to a male child. The Opposite Party No. 3 examined and checked up the new born baby. After delivery and before leaving the Nursing Home, the Opposite Party No. 3 Doctor informed the husband of the Complainant that his baby has been born with low birth weight along with ‘Imperforate anus’ and also advised to visit Pediatric Surgery Department. On 25/12/2015, the husband of the Complainant contacted with the Opposite Party No. 3 and informed that for the treatment of the baby he wanted to discharge the Complainant and her baby on 26/12/2015 and accordingly, the Complainant was discharged on the same day and the Opposite Party No. 3 had issued the discharge certificate on 26/12/2015. She is not in any way connected with the allegation of negligence. She is a Gynecologist, and not a Pediatric expert. The birth defect is an act of God. So, a man cannot be responsible for ‘imperforate anus’. The Opposite Party No. 3 has prayed for dismissal of the Consumer Case.

6. The Parties in support of their respective averments produced evidence before the District Forum, which after going  through the same and hearing the Learned Counsel on their behalf allowed the Complaint vide aforesaid order.

7. We have heard Learned Counsel for the Parties and have carefully gone through the record of the case.

8. It was submitted by the Learned Counsel appearing for the Appellants that the order passed by the District Forum is not proper and not according to law. He further submitted that Learned District Forum passed the order mechanically and without applying judicial mind. He has further submitted that Learned District Forum erred to consider that the Complainant was patient of Opposite Party No. 3 who treated the patient since beginning of the pregnancy and the Opposite Party No. 3 conducted the operation and delivered the child till discharge. The Complainant was under the supervision of the Opposite Party No. 3 Doctor and according to her advice the patient was discharged and, as such, the Appellants had no scope of interference of the said treatment and, as such, the order passed by the Learned Forum making guilty of the Appellants had no basis at all.

9. Learned District Forum has not decided that the duty and obligation of the Opposite Parties No. 1 & 2 only to provide infrastructure and to follow the advice of the Opposite Party No. 3 Doctor and they had no personal interference in the treatment of the Complainant and the supervision of the mother and child which was beyond the scope of advice of the treating Doctor i.e. the Opposite Party No. 3. He has further submitted that the Opposite Party No. 1 being the Nursing Home is not liable for the acts of the Opposite Party No. 3 Doctor. So, the instant appeal should be allowed and the impugned judgment dated 12/10/2018 should be set aside.

10. On the other hand, Learned Advocate appearing for the Respondent No. 1 has submitted that the appeal is not maintainable at all and it should be dismissed. He has further submitted that the Opposite Party No. 3 Doctor being a Gynecologist and herself had operated upon the new born baby who was having no anus or at least she was required to disclose about the fact to the Complainant at the time of discharging the child from the Nursing Home. The act of omission on the part of the Opposite Parties amounts to negligence and deficiency in service for which the Opposite Parties are liable to pay compensation as claimed in the complaint. It was on account of that act of omission on the part of the Opposite Party No. 1 Nursing Home that the child was tortured and the parents suffered mental torture. Had that fact been disclosed by the Opposite Party No. 3 at the time of discharge, the Complainant must have taken the child to some child specialist for performing of the operation. So, the appeal should be confirmed.

11. As per the book ‘Principles of Obstetrics’ by Bryan M. Hibbard, a detailed examination of the new born infant should be conducted as it is reasonable after birth and in any case within first 24 hours. The same is done by the pediatrician but often is undertaken by the obstetrician or general practitioner. A detailed examination is required for clinicians’ approaches to the routine examination of the infant vary. Some make standard organ assessment as in adult examinations. Another method which has much to commend it is the so-called top-to-toe method. Under the heading ‘Anal atresia’, the following is mentioned :-

“If an infant shows signs of intestinal obstruction with an even marked distension of the abdomen, but the anus itself appears patent, a soft rubber catheter should be passed through the anal canal to exclude lower rectal or anal atresia.

Imperforate anus is obvious. It is often associated with a fistula between the blind colon and bladder”.

12. It is the case of the Complainant pleaded in the complaint that after birth of the male child at 5.24 a.m. on 24/12/2015 by way of normal delivery under supervision of Opposite Party No. 3 and other associates of Opposite Party No. 1, expert of Opposite Party No. 1 completed primary check up and the baby was given to his mother i.e. the Complainant to be fed first mother’s breast milk. Doctor of Opposite Party No. 1 and Opposite Party No. 3 assured that the baby was perfect and alright. On 26/12/2015 after final check up of both the mother and the baby Opposite Party No. 3 has given her consent to discharge the Complainant. So, the Opposite Party No. 2 the RMO and Opposite Party No. 1 Nursing Home after complying all subsisting conditions and perusing the report of the Complainant discharged the baby on 26/12/2015 signed by Opposite Party No. 2 with RMO seal. The Complainant had been given medical certificate and written medical advice and told her baby to be fed with breast milk. The baby was feeling uncomfortable and was crying continuously.

13. It is the admitted case of the Parties that the Complainant was admitted in the Opposite Party No. 1 Nursing Home on 24/12/2015 and was discharged on 26/12/2015. By way of normal delivery she delivered a child on 24/12/2015 at 5.24 a.m. Neither the Complainant nor the Opposite Parties in their written version have mentioned the time when the Complainant was discharged from the Nursing Home on 26/12/2015. Discharge certificate issued by the Opposite Party No. 1 Nursing Home and signed by the Opposite Party No. 2 dated 26/12/2015, discloses that there is no whisper in the said certificate that the baby has been born with “imperforate anus” and there is also no whisper in the said discharge certificate that the Opposite Parties No. 1,2 & 3 advised the parents of the baby to visit Pediatric Surgery Deptt. for the treatment of the said alleged “imperforate anus”. The Opposite Parties No. 1,2 & 3 have also not filed any papers to prove that the Opposite Parties No. 2 & 3 prescribed medicines at  the time of her discharge on 26/12/2015 for the treatment of “imperforate anus”. Along with this appeal the Appellant i.e. Opposite Party No. 3 filed one prescription which was allegedly issued on 24/12/2015 to prove that the said child was born with low birth weight along with “imperforate anus”. But the record goes to show that all the Opposite Parties did not file the said medical prescription before the Learned District Forum at the time of hearing of the Consumer Case being No. CC/15/2016. Along with this appeal the said prescription has been filed. Therefore, it may be concluded that the said documents was created for the purpose of this appeal and as such the said prescription dated 24/12/2015 cannot be accepted at all. Moreover, the said prescription is a contradictory one. For argument’s sake, if we consider the alleged prescription which has been issued by the Appellant on 24/12/2015, then surely in the discharge certificate issued two days later i.e. on 26/12/2015 by the RMO would be mentioned about the “Imperforate anus”. But in the said discharge certificate, there is no whisper about it. So, the alleged prescription was not issued on 24/12/2015 after examination of the Complainant. The Appellant also has failed to establish that proper treatment and care was taken after detection of the birth deformity, rather the Appellant or other Opposite Parties even failed to produce any document or treatment file, which was being maintained by the Opposite Parties No. 1 to 3 from which it can be ascertained that the new born baby was examined by the Pediatric Doctor and that the child has ‘Imperforate anus’ was brought to the notice of the Complainant which is adequate enough to prove collective negligence of the Opposite Parties of Consumer Case No. CC/15/16.

14. The discharge certificate dated 26/12/2015 goes to show that from the four corners of the discharge certificate it cannot be found out that the birth deformity was detected and any precaution / treatment had been initiated for the new born baby. As per medical norms and practices in case of referral, concerned Doctor or RMO in the discharge certificate advice column has to mention the reason for such referral is given. But in the instant case in the said discharge certificate no such advice is given. In order to cover their collective negligence we think that the Appellant and other Respondents No. 2 & 3 have created the false prescription dated 24/12/2015 which is not acceptable.

15. Moreover, the Appellant and the Respondents No. 2 & 3 have failed to give proper explanation as to why they kept the new born baby endangering his life even after alleged detection of the birth deformity. In case, if the patient party ignoring the referral given by the Doctor and wants to stay with the present treatment, in that event, the Nursing Home authorities must take a bond from the patient party, but surprisingly, no such document has been produced neither before this Commission nor before the Learned District Forum below.

16. From the evidence produced on record, it also stands proved that Complainant has duly proved about the negligence on the part of the Opposite Parties and that they were medically negligent in not examining the child and recovering the non-formation of anus.

17. Learned Lawyer appearing for the Appellants has urged that the Opposite Party No. 1 Nursing Home is not at all liable and responsible for the acts of the Opposite Party No. 3.

18. We are of the view that the said submission as made by the Learned Lawyer appearing for the Appellants cannot be accepted at all. Being the Opposite Party No. 1 Nursing Home and Opposite Party No. 2 RMO are liable and responsible for the acts of the Respondent No. 2 /Opposite Party No. 3.

19. From our above discussion, we conclude that the Complainant has been able to prove her case and that there was medical negligence on the part of the Opposite Parties. Corrected findings were recorded by the District Forum and the same are upheld. We do not find any merit in this appeal.

20. Learned Lawyer appearing for the Appellants has argued that the compensation amount awarded by the Learned District Forum was beyond pleadings. The Complainant claimed compensation of Rs. 15,00,000/- (Rupees fifteen lakh) only and Rs. 3,00,000/- (Rupees three lakh) only and no litigation cost has been claimed whereas Learned Forum below travelled beyond the pleadings awarded compensation to the tune of Rs.19,00,000/- (Rupees nineteen lakh) only along with litigation cost of Rs.75,000/- (Rupees seventy five thousand) only which is beyond law and not permissible. We find that there is substance in the submission as made by the Learned Advocate appearing for the Appellants.

21. From the prayer portion of the Consumer Case, it appears to us that the Complainant has prayed for direction upon the Opposite Parties to pay compensation award amounting to Rs.15,00,000/- only for the medical negligence and Rs.3,00,000/- only for mental agony and harassment suffered by the Complainant.

22. Under the circumstances, we are of the view that it would be justified if the said amount is modified to the sum of Rs.15,00,000/- as compensation and Rs.3,00,000/- for mental agony and harassment suffered by the Complainant. The Appellants and Respondent No. 3 are, therefore, directed to pay a sum of Rs.15,00,000/- (Rupees fifteen lakh) only towards compensation and Rs.3,00,000/- (Rupees three lakh) towards mental agony and harassment jointly or severally to the Complainant.

23. It is further directed that the Respondent No. 1 i.e. the Complainant shall deposit the entire amount in a fixed deposit in any nationalized bank, in the name of the child and regular periodic interest accrued on it, be made to the mother, till the baby attains 18 years.

24. The order shall be complied with within four weeks, from the date of receipt of this order, otherwise, it will carry interest   @ 9% per annum from today ( i.e. on the date of pronouncement) till realization.

25. There will be no orders as to costs.

26. The appeal is thus disposed of accordingly.

27. A copy of this order as per statutory requirements be forwarded to the party free of charges.