This complaint coming up before us for hearing on 13-03-12              in the presence of Sri D.V. Ramana Reddy, advocate for the complainant and of Sri E. Rama Rao, advocate for opposite parties, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint under section 12 of Consumer Protection Act seeking Rs.5,00,000/- as damages for the death of her female  baby in the hospital of the opposite parties due to their negligence.

2.   In brief the averments of the complaint are hereunder:

        During her ninth month of pregnancy the complainant on                15-10-10 got admitted in the hospital of the opposite parties for delivery.  The 1^st opposite party assured normal delivery.  Contrary to the assurance the complainant delivered a female baby under caesarian operation.   The 1^st opposite party informed that the baby was healthy and active and accordingly the 2^nd opposite party prepared clinical notes with daily endorsements.   The 2^nd opposite party on 20-10-10 advised the complainant to get bio-chemistry report for newly born child.   After examining clinical reports the second opposite party advised that baby should be kept in an incubator and took the baby from the complainant and kept the baby in the incubator.   From there after till 9.00 pm., on 20-10-10 whereabouts of the baby and opposite parties 1 and 2 were not known to the complainant.   The hospital staff of the opposite parties did not permit the complainant to see the baby in the incubator.   Mr. Chand Basha, compounder of the hospital at late night informed the complainant that the baby was in serious condition and she should be shifted to super Speciality hospital. The complainant there upon called the            ambulance, 108.   As soon as the ambulance reached the hospital the opposite parties 2 and 3 also rushed to the hospital premises.   The opposite parties 2 and 3 then informed the complainant that the baby died.  The opposite parties did not prepare clinical notes regarding observation of the baby in incubator.  Close observation of maintaining temperature in incubator is very much required.   The clinical reports revealed the health condition of the newly born baby till 7.00 p.m., only on 20-10-10.   The opposite parties 2 and 3 did not check the health condition of the baby after shifting to incubator and thus committed deficiency of service and caused death of the baby.   Exchange of notices took place between the parties.   The complainant was put to mental agony on account of death of her baby and estimated the damages at Rs.5,00,000/-.   The complaint therefore be allowed.

3.   The contention of the opposite parties in brief is hereunder:

The complainant came to the opposite parties on 15-10-10 at 9.30 pm for second opinion regarding her delivery.  The opposite parties informed that normal delivery was not possible as informed by her previous doctor.   The complainant insisted for normal delivery.  On such insistence the opposite parties advised her to admit herself in the hospital for observation.   The opposite parties informed that caesarian section was the safe way of delivery rather than normal delivery.   The opposite parties conducted caesarian operation on the complainant as their attendants gave consent.   The complainant gave birth to a baby at 9.20 am on 16-10-10.    The mother and baby were healthy after delivery.   On 17-10-10 at 10.30 am the opposite parties observed that the baby was not taking the feed on account of retracted nipples of the complainant.   The opposite parties advised the complainant to feed the baby with paladi by expressed breast feeds.   The opposite parties explained the complainant how to extract the nipples.    The complainant and baby were found doing well on       18-10-10 and 19-10-10. The opposite parties advised the complainant regarding burping of the baby.    At 10. 20 Am., on 20-10-10 the opposite parties found the baby with yellowish discoloration of eyes and skin.    The opposite parties suspected the baby with jaundice.   The baby was taken to ICU and given photo therapy at 12.30 pm.   The baby was given to the mother every two hours for feeding.   At 9.15 pm the complainant gave the baby for phototherapy.   When the baby was taken to phototherapy Mr. Chand Basha, attender of the hospital brought to the notice of the opposite parties that the baby was throwing out the milk through the nostrils and mouth.  The               3^rd opposite party found that milk was aspirated by the baby due to wrong feeding by the complainant and her attendants.   Immediately the 3^rd opposite party called for assistance as a second person is needed for resuscitation.   The opposite parties 2 and 3 started treatment in ICU itself and informed the same to the complainant and her grand mother.   The opposite parties 2 and 3 continued their treatment to the best of their ability.  Unfortunately the baby succumbed at 10.30 pm on 20-10-10 inspite of best efforts by the opposite parties.    The opposite parties took utmost care in treating the complainant and the baby.   Father of the complainant gave a complaint against the opposite parties to the District Collector, Guntur.   On such complaint the District Medical & Health Officer, Guntur appointed an expert committee consisting of additional                D.M.&H.O., Guntur, Senior OBG and Gynecologist and senior pediatrician of Government General Hospital, Guntur for enquiry.   The committee after enquiry came to an opinion that there was no medical negligence on the part of the opposite parties while treating the case.   As against said report the complainant and her father approached the Chief Minister of Andhra Pradesh and the matter was again enquired into by the Regional Director of Medical & Health Services, Guntur and the enquiry was over.   Rest of the allegations contra mentioned in the complaint are all false and are invented for the case. 

4.   Exs.A-1 to A-19 and Exs.B-1 to B-4 on behalf of the complainant and opposite parties were marked respectively.[[

5.  Now the points that arose for consideration in this complaint are:

1. Whether the opposite parties treated the complainant’s baby negligently and thereby committed deficiency of service?
2. Whether the complainant is entitled to compensation and if so, to what amount?
3. To what relief?

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6.   As seen from rival pleadings the following points emerged as undisputed.

1.  The opposite parties 2 & 3 are husband and wife and they are running the hospital under the name and        style of M/s Venkateswara Mother and Child Hospital.

                2.  The complainant on 15-10-10 approached the

                        Opposite parties for delivery.  

                   4.   The complainant delivered a baby on 16-10-10 under                              caesarian section.

                5.   The complainant and the baby were healthy soon after                       delivery.

1. The baby was taken to ICU on 20-10-10 for keeping either in incubator or phototherapy unit.
2. The baby died on 20-10-10.
3. Father of the complainant gave a report to the District Collector, Guntur on 21-10-10 (ExB-4).

9.    The District Medical & Health Officer submitted a              report to the Collector, Guntur district (EX.A-19)

7.  POINT No.1:-       In Nizam Institute of Medical Sciences vs. Prashanth S. Dhananka and others 2009 (2) CPJ 61 (SC) held that in a case involving medical negligence the initial burden is on the complainant, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or a doctor concerned the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy that there was no lack of care or diligence.

8.     In Kusum Sharma and others v. Batra Hospital & Medical Research Centre and others, (2010) (I) CPJ 29 (SC) the Hon’ble Supreme Court laid down guidelines for deciding negligence or deficiency of service in medical profession and they are reproduced under:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence.   The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.   Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.   
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.   Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”

9.   What constitutes medical negligence differs from case to case.   Medical negligence complained/alleged has to be gathered from the averments made in the complaint and/or in the correspondence if any made between the parties to the complaint.  

10.    The allegation against the opposite parties as mentioned in  page 2 of the complaint is extracted below for better appreciation

          “It is further submitted that the baby died only due to the negligence of the opposite parties 2 & 3, since nobody was attended to check the health condition of the baby after she was shifted to the incubator till she died.   This is a clear cause of negligence on the part of the opposite parties which ultimately leads to the death of the infant.  It is further submitted that for attributing negligence on the part of the opposite parties 1 & 2.

                The clinical note reveals that the health condition of the newly born child is good till 7.00 p.m. on 20^th October, 2010.   There after there were no clinical notes about the observation of the  baby till the information about the death of the child that is late night on 20^th October, 2010, since the close observation of the maintaining the temperature in the said instrument is very much warranted but there is no such observation.  There by the opposite parties 2 and 3 are failed to take duty of care for which the complainant and the newly born child entitled”.  

11.   The above averments lead us to draw an inference that the opposite parties did not treat the female baby properly in incubator or phototherapy unit.   The same also can be gathered in the report given to the District Collector (Ex.B-4). The relevant portion in Ex.B-4 for deciding this case is extracted below for better appreciation:

12.    The averments in Ex.B-4 revealed that the complainant and her newly born baby were healthy till 20-10-10.   It is also the case of the opposite parties that on 20-10-10 the newly born baby was infected with jaundice.   The treatment given in phototherapy or incubator or ICU was within the special knowledge of the opposite parties. Therefore the burden in this case shifted to the opposite parties to prove that they treated the complainant’s baby as per established procedure and followed standards.  

13.   In order to prove that they acted prudently and followed the standard norms in treating the baby the opposite parties relied on the enquiry report (Ex.A-19). The said report revealed that the complainant and her father were examined by the doctors who constituted the committee.   Dr. P. Yasodhara, M.D., Pediatrics in charge professor and HOD of Pediatrics, GGH, Guntur opined

    “As per the information available and the evidence gathered,  I am of the opinion that there was no medical negligence on the part of the doctors and staff of the hospital while treating the  baby in that emergency situation.   I am of the opinion that the baby might have died of asphyxia due to aspiration of milk.”      

14.   As against the said report the complainant did not adduce any other evidence to prove medical negligence and deficiency of service said to have been committed by the opposite parties.   It is not the case of the complainant that the 3^rd opposite party is not competent to practice as a pediatrician and the 1^st opposite party is not equipped with sufficient infrastructure to treat neonates.   Under those circumstances the decisions reported in Dr. V. Srinath and others vs. Gaurav Lamba 2011 (3) CPR 312 (NC); Nunjappa hospital vs. Karnataka 2011 (3) CPR 484 (NC); Ashok Kumar Upadhyaya vs. D.N. Misra and others 2011 (2) CPR (NC) (213);  Jaswinder Singh vs. Neeraj Sud 2011 (3) CPR (NC) 406 are not applicable to the facts of the case.

15.   The recitals in page 2 of Ex.B-4 dated 21-10-2010 revealed that the complainant and her  baby were keeping good health till                     20-10-10, polio and BCG injections were administered besides conducting blood tests and took the  baby at 2.00 pm., on 20-10-10 on the pretext of keeping the  baby in room meant for solar treatment.   But in the complainant it was mentioned that the baby was kept in incubator. 

16.   In the complaint it was mentioned that whereabouts of the baby and the opposite parties 1 and 2 were not known to the complainant and the hospital authorities did not permit the complainant to see the baby in the incubator.  The third opposite party in his cross examination admitted that the details of treatment given to the baby on 20-10-2010 did not find place in clinical notes of their nursing home.   The 3^rd opposite party in his cross examination admitted that the scope of development of jaundice is high in premature babies when compared to term babies.   The 3^rd opposite party in his cross examination admitted that he could not say whether the complainant’s child suffered from gastro esophageal reflex disease due to less span of time.  

17.   It is not the case of the complaint that the newly born baby developed some illness or defects or faced problems soon after birth.  Any pediatrician is expected to know the condition of the babies on seeing them as they could not express as rightly contended by the learn counsel for the complainant.  At the same time mother of a baby or her attendant can notice the difficulties experienced by babies on seeing their physical condition.  It is not the case of the complainant that her baby experienced/ faced some problems to struggle for life soon after delivery.  The complainant in his complaint as well as in her affidavit mentioned that the 1^st opposite party informed that baby was healthy and active and accordingly the clinical notes was prepared by the 2^nd opposite party.  It is the contention of the both the parties that newly born baby suddenly developed some problem on 20-10-2010.

18.   In Nelson Text book of Pediatrics 19^th Edition (1^st reprinted in India, 2012) Sudden Infant Death Syndrome was discussed at chapter 367 at page 1421

                “The sudden, unexpected death of an infant that is unexplained by a thorough postmortem examination, which includes a complete autopsy, investigation of the scene of death, and review of the medical history, constitutes Sudden Infant Death Syndrome (SIDS).  An autopsy is essential to identify possible natural explanations for sudden, unexpected death such as congenital anomalies or infection and to diagnose traumatic child abuse (tables    367-1, 367-2, 367-3).  The autopsy typically cannot distinguish between SIDS and intentional suffocation, but the scene investigation and medical history may be of help if inconsistencies are evident………………………………………………...

…………………. SIDS victims have several identifiable changes in the lungs and other organs and in brainstem structure and function.   Nearly 65% of SIDS victims have structural evidence of pre-existing chronic low-grade asphyxia, and other studies have identified bio-chemical markers of asphyxia.  SIDS victims have higher levels of vascular endothelial growth factor (VEGF) in the cerebrospinal fluid (CSF). These increases may be related to VEGF polymorphisms (see genetic risk factors) or might indicate recent hypoxemic events, because VEGF is up regulated by hypoxia. 

                Chapter 367-2 at page 1423 laid conditions that can cause apparent life-threatening events are sudden deaths among them aspiration is one such condition. 

19.   In Ashok K. Deorari & Vinod K. Paul text book of Neonatal Equipment, 3^rd edition, Radian Warmers was discussed at page 17,

“Lack of attention to thermoregulation continues to be a cause of unnecessary deaths in the neonatal population.   Maintaining a stable body temperature is essential to ensure optimal growth. If temperature is maintained caloric expenditure and oxygen consumption would be minimal.   New born babies, in particular, the preterm and the low birth weight or exquisitely predisposed to hypothermia.   No other equipment is identified more with the special care of new born babies than the radiant warmers.  

Radiant warmers provide intense source of radiant heat energy.  They also reduce the conductive heat losses by providing a warm microenvironment surrounding the baby.  The radiant warmer (also called open care system) was developed as an “open incubator” that ensures ready access to the baby.   The over head quartz heating element produces heat which is reflected by the parabolic reflector on to the baby on the bassinet.   The quantity of heat produced is displayed in the heater out put display panel.   Temperature selection knobs select the desired skin temperature.   This information is processed by the micro processor inside the control panel and matched against the actual temperature of the baby.   If the temperature of the baby is lower than the said temperature, the micro processor will send feed back to the quartz rod heater to increase the heat output till the baby’s temperature reaches the said temperature.   At this point, the heater output will be reduced.   The system in which the heater output is determined automatically based on skin temperature information is called servo system.  Servo System is the preferred method of running the open care system.   The heat output from the quartz heating rod could also be increased or decreased manually.   This is done by the heater output control knobs.   This is called the manual mode of operation.    In the Servo mode, whenever the baby’s temperature raises by more than 0.5⁰‘C’ above the set temperature, a visual/audible alarm is activate.  Caregiver must pay attention to sought out the fault.  Often this occurs when the temperature probe comes off the baby’s skin.        

20.   It is the case of the complainant as seen from Ex.B-4 that the newly born baby was taken to phototherapy unit.  In her affidavit the complainant mentioned at page 2 as detailed infra:

                “The clinical note reveals that the health condition of the newly born child is good till 7.00 pm on 20-10-10.   Thereafter there were no clinical notes about the observation of the baby till the information about the death of the child that is late night on 20-10-10, since the close observation of the maintaining the temperature in the said instrument is very much warranted but there is no such observation.   There by the opposite parties 1, 2 and 3 are failed to take duty of care for which I and the newly born child entitled”.

21.   The complainant filed copy of statement said to have been given to the authorities on 26-10-10 (Ex.A-8) by Sk. Chand Basha, compounder of the hospital of the opposite parties and it reads as follows:

It is the case of both the parties that the baby was taken to phototherapy unit on 20-10-10.  But the date mentioned in it was               19-10-10.  Therefore the date mentioned in Ex.A-8 can be construed as 20-10-10 instead of 19-10-10.   But none of the parties produced the affidavit of the said Chand Basha.  Ex.A-5 is contrary to the contention of the complainant and it disproved her case.

22.   Decisions of constitutional courts by themselves do not amount to proof of allegations/contentions made by any party to a proceeding before judicial authority.  If any party proves his allegation/contention in any judicial proceeding he can take support/rely on decisions of constitutional authorities having binding force. In this case the complainant failed to adduce any other cogent evidence to rebut the expert report.   Therefore, the decisions relied on by the complainant reported in B. Jagdish vs. State of AP & another 2009 (1) CPJ SC (18); Jayendra Maganlal Padia vs. Dr. Lalit P. Trivedi and others 2011 (3) CPR 326 (NC); Dr. K.M. Madappa & another vs The President and Members of Karnataka State Consumer Disputes Redressal Commission & another 2011 (1)_ CPR 235 (NC); P.K. Sinha vs. Mani Bhargava 2011 (3) CPR 240 (NC); Jaswinder Singh & another vs. Dr. Neeraj Sud 2011 (3) CPR 406 (NC) are not applicable to the facts of the present case.   We therefore, opine that the complainant failed to prove that the opposite parties committed deficiency of service in treating her baby.   We therefore answer this point against the complainant. 

23.  POINT No.2:-   In view of above findings, the complainant is not entitled to any compensation and we answer this point also against the complainant.

24. POINT No.3:-   In view of above findings, in the result the complaint is dismissed without costs.

        Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 27th day of March, 2012.

MEMBER                                  MEMBER                                  PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties :

                                                                                                                        PRESIDENT