Date of Filing      : 16.09.2021

                                                                                                                                       Date of Disposal : 25.09.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law)                                          .…. PRESIDENT

                 THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                              .....MEMBER-I

CC. No.40/2021

THIS MONDAY, THE 25^th DAY OF SEPTEMBER 2023

Mr.V.A.Kamesh, S/o.Anandhaiyya,

Ramalingapuram Village,

Uthukottai Taluk,

Thiruvallur District.                                                                                  ……Complainant. 

                                                                                 //Vs//

M/s.Julia Hospital,

Uthokkottai,

Uthukottai Taluk & Town,

Thiruvallur District.                                                                              …..opposite party.

Counsel for the complainant                                      :   Mr.M.Dhinakaran, Advocate.

Counsel for the opposite party                                  :  Mrs.Auxilia Peter, Advocate.

This complaint coming before us on various dates and finally on 11.09.2023 in the presence of Mr.M.Dhinakaran counsel for the Complainant and Mrs.Auxilia Peter counsel for the opposite party and upon perusing the documents and evidences of both the parties this Commission delivered the following:

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT

 1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging medical negligence against the opposite party along with a prayer to direct the opposite party to pay a sum of Rs.25,00,000/- towards compensation, not to indulge in attending any further deliveries of any other innocent women without doctors, tender unconditional apology to the complainant and his wife for the deficient service along with cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

2. Alleging medical negligence resulting in deficiency in service in the matter of delivery for his wife the present complaint has been preferred for the death of the new born by the complainant.

3. It was alleged by the complainant that he admitted his wife for delivery with the opposite party on 04.09.2020 at about 9.00am.  The opposite party Hospital Staff Nurse particularly one Sr.Maria informed the complainant that the scan report was normal and also the child was normal and the birth of the child would be by normal delivery. However, after 5 hours later at around 2.30pm it was informed by the staff nurse that the child was dead.  The complainant was shocked to know that the delivery of his wife was attended only by the staff nurses and not by the Doctors. The Hospital was responsible for the death of the child and hence a Police complaint was also given vide FIR No.1431/2020 dated 05.09.2020 against the staff nurse Sr.Maria but no action was taken by the Police.  For the legal notice issued by the complainant the opposite party sent an evasive reply stating that there was no Doctors to attend the patient during the Pandemic COVID-19 period and that only staff nurses were attending the deliveries under the guidance of one Dr. Arokiyam.  Thus claiming compensation of Rs.25,00,000/- for the death of the child along with cost of the proceedings the present complaint was filed. 

The crux of the defence put forth by the opposite party:-

4. Disputing the complaint allegations the opposite party filed written version contending interalia that the absence of Doctors in the Hospital was neither willful nor wanton but only due to the fact that she was taking treatment at another Hospital which fact was well informed to the complainant and his wife.  Further the Hospital was owned managed and administered by Catholic Religious Nuns belonging to the Society of Catechist Sisters of St. Ann, a Roman Catholic Religious congregation.  Hospital was inaugurated at Uthukottai with the sole intention to take care of the health of the patients in the Rural Area of Thiruvallur and surrounding villages of Tamil Nadu and Andhra Pradesh.  It was a 20 bedded Hospital with fully equipped operation theatre, laboratory, X-ray unit and ultra-sonography.   One Dr.Sr.Arokiam was the resident Medical Practitioner available in the Hospital and Dr.Vinod D.A.M.S. General Surgeon was the Anesthetist on call to the hospital and Dr. Kishore was a Paediatrician on call to the hositpital and the Nuns were working in Julia hospital when the alleged offence took place. Rev.Sr.Mariamma was a qualified staff nurse who obtained B.Sc. Degree in Nursing from Indira Gandhi National Open University and a Diploma in General nursing and midwifery from St. Theresa’s School of Nursing, Hyderabad. Sr.Aruna was a qualified nurse having obtained a Diploma in General nursing and midwifery (GNM) from Ann’s School of Nursing, Warangal in the year 2005 and she had registered with Telangana and her registration number was 52609 and was working as a staff nurse in Julia Hospital from 01.06.2019 to 20.10.2020. M.Ramya was an Auxiliary nurse having obtained Auxiliary nursing and midwifery certiciate from Kanniyappa College, Arani in the year 2015 and was with Julia Hospital since February 2020.  Dr.Sr.M.Arokiam was a qualified doctor and was working at Julia Hospital for nearly 21 years.  She was an MBBS, M.S. (General surgeon) and she was the registered resident medical practitioner available in the hospital. Rev.Sr.Innamma was the administrator of Julia Hospital for the past 26 years and she was a retired staff nurse with service record for 26 years.  The complainant’s wife had visited the opposite party Hospital only on 24.08.2020 and Dr.Sr.Arokiam examined her, checked her weight and prepared an OP chart.  Sr.Mariyamma after making it clear that if at all she should be admitted her delivery could be assisted only without a doctor and only with their consent they admitted her.  Another reason, why Sr.Mariyamma, decided to admit Ms.Divya was that apart from the labour pains clinically all parameters of the patient was normal. The complainant had shown a scan dated 17.08.2020 taken in Bengaluru which did not show any abnormality.  As a humanitarian gesture to save the mother and child especially during pandemic, considering the onset of labour pains Sr.Mariyamma reluctantly admitted the complainant’s wife in the hospital and also informed him about the non-availability of the Doctor and said if in case operation was required the Doctor would be called to handle the situation.  Subsequently from 1.30 pm Ms.Divya was reaching the peak of labour pain and her bag of membrane ruptured.  Subsequently around 2.00pm the fetal heart rate started decreasing and at 2.10 pm the baby was delivered.  At that time it was noted that the umbilical cord was around the baby’s neck in a tight manner. When baby was delivered the baby did not cry.  Resuscitation (CPR) was done but they could not revive the baby.  The matter was informed to the complainant’s wife and relatives who were present in the hospital. Soon thereafter the complainant went to the local Police Station at Uthokottai and filed a complaint as against the opposite party and the staffs working there. At around 9pm the Sr.Innamma met the complainant’s wife and her mother-in-law at Julia Hospital and informed that the incident was unforeseen and not intentional. On 05.09.2020 an FIR was registered in Crime No.1431/2020 under Section 174 CrPC at 4pm. Complainant’s wife got discharged at around 8pm in good health condition. Though post mortem was conducted the opposite party and the staffs were not provided the report. The opposite party and the hospital staffs and nuns fully cooperated with the investigation and the police served a questionnaire on 21.09.2020 and 23.09.2020 for which the hospital responded on 24.09.2020.  Thereafter, the Police never called any of them for enquiry. On 05.07.2021 the complainant issued a legal notice claiming Rs.30,00,000/- as damages for which the hospital authorities sent a reply.  There afterwards they received summons in the present complaint claiming compensation of Rs.25,00,000/- and to restrain the hospital from conducting further delivery. The opposite party and its staffs were having good antecedents and they had not committed any crime as alleged by the complainant and there were no previous criminal cases.  The FIR had been altered on false and bogus facts and the facts stated in the FIR were fabricated, concocted and without any basis made only at the instigation of the complainant and his relatives who had been trying all avenues to harass the opposite party.  The complainant’s wife, complainant and his mother and relatives who came to the hospital were very well aware that the Doctor was not available in the hospital.  Even when she came and gave the COVID test result she did not meet the doctor.  Only because of the above said facts, senior staff nurse who was well qualified to conduct delivery had assisted in delivery and saved the life of the complainant’s wife.  The complainant wife took treatment in a private hospital in Balgalore and elsewhere and only after the complainant moved to the village he brought her to the opposite party’s hospital. That too only after the complainant’s wife was turned down by the PHC at Katchur, she was brought to the opposite party’s hospital. The opposite party has taken reasonable care and had provided adequate medical care required at the time of delivery and after delivery. Thus they sought for the complaint to be dismissed.

5. On the side of the complainant proof affidavit was filed and documents marked as Ex.A1 to A10 were submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B28 were submitted. The Advocate Commissioner’s Report was filed and document marked as Ex.C1 as court document.

6. Points for consideration:-

1. Whether the alleged act with respect to performing delivery to the complainant’s wife in an negligent manner by the nurses of the opposite party’s Hospital in the absence of any Doctor leading to death of the child amounts to Medical negligence resulting in deficiency in service and whether the same has been successfully proved by the complainant?
2. If so to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainant in support of his contentions;

1. Admit receipt issued by the opposite party dated 24.08.2020 was marked as Ex.A1;
2. Receipt issued by the opposite party to the complainant for payment of Rs.15,000/- was marked as Ex.A2;
3. Discharge Summary issued by the opposite party dated 05.09.2020 was marked as Ex.A3;
4.  Complaint given by the complainant to the Uthukkottai Police Station dated 04.09.2020 was marked as Ex.A4;
5. Copy of FIR was marked as Ex.A5;
6. Legal notice issued by the complainant to the opposite party dated 05.07.2021 was marked as Ex.A6;
7. Reply notice given by the opposite party to the complainant dated 21.07.2021 was marked as Ex.A7;
8. Death Report was marked as Ex.A8;
9. Copy of CSR No.292/2020 was marked as Ex.A9;
10. Copy of report issued by the CCTNS was marked as Ex.A10;

On the side of opposite party the following documents were filed in proof of their defence;

11. Certificate of Registration issued to Sr.Mariyamma was marked as Ex.B1;
12. Diploma Certificate of J. Suganya dated 09.07.2010 was marked as Ex.B2;
13. Job offer letter given by the opposite party to J.Suganya was marked as Ex.B3;
14. B.Sc., Nursing Certificate of Sr.Mariyamma was marked as Ex.B4;
15. Diploma Certificate of Ramya was marked as Ex.B5;
16. Certificate of Renewal issued to Sr.Mariyamma dated 26.09.2015 was marked as Ex.B6;
17. Tamil Nadu Government Gazette Extra ordinary dated 04.06.2018 was marked as Ex.B7;
18. Certificate of Registration of Clinical Establishment of opposite party dated 26.08.2019 was marked as Ex.B8
19. Job offer letter to Ramya dated 15.02.2020 was marked as Ex.B9;
20. Scan Repot issued by Cloud Nine Hospital to complainant wife dated 17.08.2020 was marked as Ex.B10;
21. CBC, Complete Blood Court Report of Dr.Sr.Arogyam was marked as Ex.B11;
22. Government primary Health centre, Katchur- Covid test report dated 01.09.2020 was marked as Ex.B12;
23. Hitech diagnostic centre of Dr.Sr.Arogyam dated 03.09.2020 was marked as Ex.B13;
24. Electro Cardiogram Report of Dr.Sr.Arygyam dated 03.09.2020 was marked as Ex.B14;
25. CT-Chest Report of Dr.Sr.Arogyam was marked as Ex.B15;
26. Mehta’s Hospital Report of Dr.Sr.Arogyam dated 04.09.2020 was marked as B16;
1. Opposite party’s report on the complainant’s wife was marked as Ex.B17;
28. Opposite party’s report on the complainant’s wife was marked as Ex.B18;
55. Covid -19 test report of Sr.innamma was marked as Ex.B19;
82. Premier Health Centre Premier clinical lab report of Dr.Sr.Arogyam was marked as Ex.B20;
109. Covid -19 test report of Dr.Sr.Arogyam was marked as ExB21;
136. Receipt issued by opposite party hospital to Divya dated 05.09.2020 was marked as Ex.B22;
163. Discharge Summary of Divya was marked as Ex.B23;
190. Post mortem certificate was marked as Ex.B24;
217. Legal notice issued by the complainant dated 05.07.2021 was marked as Ex.B25;
244. Reply notice issued by the opposite party dated 21.07.2021 was marked as Ex.B26;
271. Certificate of P.S.Amanthi issued by Kanniyappa Community College was marked as Ex.B27;
298. Receipt issued by the opposite party was marked as Ex.B28;

7. We perused the pleadings and evidences produced by the complainant and the opposite party and also heard the oral arguments advanced by them.

8. The crux of the oral arguments adduced by the learned counsel for the complainant is that the complainant’s wife was admitted at the opposite party’s hospital for delivery was attended only by the nurses and that due to their negligent act the child died during delivery.  He also relied upon a G.O.Ms.No.206 dated 01.06.2018 issued by Health and Family Welfare Department wherein it has been stated that a Doctor should be present in an emergency period. He also stated that even in the written version filed by the opposite party they have admitted that no Doctor was present during delivery. Thus stating that the opposite party hospital had committed deficiency in service he sought for the complaint to be allowed as prayed for.

9. On the other hand the learned counsel appearing for the opposite party argued in an extensive manner that the absence of Doctor was not wilful nor wanton but due to the fact that the attending Doctor had suffered with chest infection and was admitted in Mehta Hospital and hence she was not available at the time of the disputed delivery. Further she argued that the umbilical cord was around the baby’s neck in a tight manner causing death of the child which could not be attributed as a fault on the part of the opposite party.   She also argued that the complaint filed by the father of the deceased child was not maintainable by citing a decision in support of her case.  It is also argued that no expert evidence was adduced by the complainant for the alleged death of the child.  As it was COVID -19 period the Hospital accepted to perform the delivery of the patient as the wife of the complainant was in advanced stage of labour pain.  The counsel further argued that the complainant approached this Commission only with a mala fide intention to obtain financial gain.  Thus stating that the opposite party was no way responsible for the death of the child the learned counsel sought for the complaint to be dismissed.

10. On careful perusal of the pleadings and evidences submitted by both parties, this Commission is of the view that the complaint has to be allowed for the following reasons;

1. Though it was submitted by the opposite party that at the time of admission itself it was informed that no Doctors was available and inspite of the same, only on the complusion of the complainant and his relatives the hospital admitted the patient Mrs.Divya, no evidence was submitted by way of any written consent obtained from the patient’s side making them aware that no Doctors was available.  Hence merely based on the bald statement by the opposite party that they informed the complainant and his relatives even at the time of registration that no Doctors was available and that the delivery would be carried on only by the nurses, this Commission could not arrive at a finding that the complainant accepted for the delivery to be performed by the nurses in the absence of Doctor. In the said circumstances we could not apply the Principle of Volenti non fit injuria for the present facts of the case.
2. Even as per the G.O.Ms.No.206, dated 01.06.2018 relied upon by the opposite party themselves in support of their contention that labour shall be conducted by a qualified Doctor, Staff Nurse, Auxiliary Nurse Midwife or a trained dais it was found as follows;

Staff:- Labour shall be conducted by a qualified Doctor, Staff Nurse, Auxiliary Nurse Midwife or a trained dais. Untrained persons shall not be entrusted with the job. Even if a Staff Nurse/Auxiliary Nurse Midwife conducts the delivery, a doctor shall be on call for any emergency or newborn resuscitation.  If the labour ward is in a maternity hospital and deliveries are taking place regularly, a duty doctor shall be available for all the 24 hours.  It is desirable to have a Paediatrician on call, wherever possible.

Thus even as per the GO.Ms.No.206, dated 01.06.2018 issued by Health and Family Welfare Department a Doctor was necessary on call for any emergency for newborn resuscitation.  Even in the Discharge Summary issued by the opposite party it has been clearly found that “in any emergency or operation required Doctor will come and attend the case”.

3. Even though it has been contended by the opposite party’s hospital that the hospital was running for the benefit of the Rural People and was a Charitable Institution, we could see that a sum of Rs.15,000/- has been charged and collected for the delivery from the complainant (Ex.A2) that too performed by nurses without Doctor;
4. With regard to the maintainability of the complaint as it was filed for the unsuccessful delivery by the father of the deceased child this Commission is of the opinion that the complaint is well maintainable before this Commission as the complainant being the father of the deceased child and husband of the affected person was a competent person to file a complaint.
5. Ex.B1 a Certificate of Qualification to conduct labour was filed to show that the Head Nurse was qualified to conduct delivery. This Commission is of the opinion that when the child or the mother was facing difficulty during delivery they should have called the Doctor immediately. If at all the Resident Doctor was unable to attend, any other Doctor from the nearby Hospital could have been called in emergency;
6. When it is an admitted fact that the scan report shows everything was normal before the delivery the entire burden of proof shifts on the part of the opposite party to establish what went wrong inside the labour room resulting in the death of the child;
7. In Ex.B24 the Post Mortem Report it was given as “Term live born female baby would appear to have died of asphyxia due to fetal distress”.  As per the medical literature fetal distress occurs due to inadequate Oxygen supply resulting in death of the child if not managed properly.  A prompt caesarean   delivery is necessary for the safety of child with fetal distress.  Thus when it is evident that the death of the child was due to asphyxia, the opposite party if acted prudently to arrange for caesarean operation they would have saved the child.  This shows that they failed to act in an prudent manner & failed to perform their duty in exercising the Standard Skill and knowledge;
8. When the fact is that the attending Doctor was admitted in Mehta Hospital for chest infection, the opposite party’s hospital ought not to have admitted the patient or ought to have called some other Doctors during delivery.  Merely contending that it was COVID-19 period that they admitted the patient could not be entertained as Rules has to be strictly followed by the hospital authorities which deals with human life and also that no delivery should be performed in the absence of Doctor;
9.  It was argued by the opposite party that the complainant has come up with a different version with respect to admission and delivery in complaint, Proof affidavit and in the legal notice, however, such minor discrepancies has to be ignored for the reason that the admission of the complainant’s wife, the delivery performed by nurses, death of the child and discharge of the complainant’s wife was not at all disputed by either of the parties.  In the said aspect the elaborate cross examination done by the opposite party to the complainant losses Significance which are irrelevant to determine the main issue in the complaint;
10. With regard to the responsibility of the Hospital, a Hospital has to be held vicariously liable for the damages caused to the patient by the negligent act of their staffs.  The decision rendered by the

 Kerala High Court in Joseph @ Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC)], stating that ‘persons who run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The Hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel, implies the duty and liability of the hospital. Thus, the opposite party Hospital was vicariously liable for the act of the Nurses who performed the delivery in an negligent manner in the absence of Doctors.   

11. The arguments of the opposite party’s learned counsel that the complainant had not continuously/regularly taken his wife to the same hospital, but had taken to Cloud nine hospital at Bangalore and that the complainant’s wife first delivery was carried out in St.Johns Hospital in Bangalore are irrelevant to the present facts of the case and the deficiency in service alleged.  Only the present act/delivery at the opposite party’s Hospital is relevant for determination of the issue;
12. The defence that there is no privity of contract between the complainant and the opposite party’s hospital was also to be rejected as once the complainant had paid for the services rendered by the opposite party for his wife’s delivery and had come up with a complaint with allegations with regard to the delivery and death of his child, the said defence seems unreasonable and liable to be rejected;
13. The decision relied upon by the opposite party rendered by the High Court of Judicature at Bombay Under Civil Appellate Jurisdiction in WP No.10897/2014 in Miraj Medical Centre Miraj through Medical Superintendent & ors Vs Sunil Tukaram Danane & anr in support of their defence that the baby died during delivery could not be termed as a case of medical negligence did not apply to the present case as in that decision the delivery was carried by a Doctor and the child died after a failed resuscitation.
14.  Other decisions rendered by the NCDRC in J.N.Shori Multi Speciality Vs Krishan Lal & Anr dated 23.07.2021 and by Supreme Court in Dr.S.K.Jhunjhunwala Vs Mrs.Dhanwanti Kaur & Anr also could not be applied to the present case as in those cases also surgery was attended by qualified Doctors which fact was absent in the present case.

11. Thus for the above reasons when it is an admitted fact that the delivery was performed by nurses in the absence of Doctors and no Doctor was called in during the emergery against Rules and that it resulted in the death of the child, this Commission could safely apply the Principle of res ipsa loquitor when the scan report before delivery shows that everything including the child was normal and when no satisfactory explanation was given by the opposite party for the absence of Doctor and for the death of child. Thus we hold that the opposite party’s hospital failed to perform its standard duty and care resulting in damage to the complainant which clearly amounts to medical negligence resulting in deficiency in service and that the same has been successfully proved by the complainant. The Hospital/opposite party is thus held vicariously liable for the act of its staffs.  This point is thus answered in affirmative in favour of the complainant and as against the opposite party Hospital.

Point No.2:-

12. The complaint allegations has been successfully proved by the complainant and hence we are of the view that the complainant should be adequately compensated for the damage/ death of his child.  Though no amount of money could compensate the life of a baby, we award a nominal compensation of Rs.5,00,000/- to be paid by the opposite party’s hospital to the complainant for the deficiency in service committed by them along with refunding the sum of Rs.15,000/- the cost of operation charges collected from the complainant for the untold mental agony and hardship caused to the complainant throughout his life due to the death of his baby.  All other reliefs claimed by the complainant could not be awarded as they are outside the purview of this Commission. We also award a cost of Rs.10,000/- towards litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite party directing them

a) To refund a sum of Rs.15,000/- (Rupees fifteen thousand only) the cost of operation charges collected from the complainant by the opposite party within six weeks from the date of receipt of copy of this order ;

b) To pay a sum of Rs.5,00,000/- (Rupees five lakhs only) towards compensation for the untold mental agony and hardship caused to the complainant within 6 weeks from the date of receipt of copy of this order;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

d) Amount in clause (a) & (b) if not paid by the opposite party within six weeks from the date of receipt of copy of this order the amount shall carry interest at the rate of 9% from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 25^th day of September 2023.

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  MEMBER-I                                                                                                   PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

Court document:-

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MEMBER-I                                                                                                       PRESIDENT