Chandigarh

StateCommission

CC/101/2014

Satpal Singh Brar & anr. - Complainant(s)

Versus

Oriental Insurance Company Ltd. - Opp.Party(s)

Sh. Aftab Singh Khara Adv.

04 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint No.	:	101 of 2014
Date of Institution	:	28.08.2014
Date of Decision	:	04.02.2015

Satpal Singh Brar.
Baljinder Kaur Brar W/o Satpal Singh Brar

Both residents of #37, Telephone Exchange Colony Patiala Road, Zirakpur, District Mohali.

……Complainants.

Versus

Oriental Insurance Company Ltd. through its Branch Manager, SCO No.45, Sector 20-C, Chandigarh-160020.
M/s Raksha TPA Pvt. Ltd., 15/5, Mathura Road, Faridabad-121003.
Dr. Kamla Singh working at Institute of Reproduction & Child Cares, Site No.3, Sector 17, Panchkula.
Dr. Usha Bishnoi working at Institute of Reproduction & Child Cares, Site No.3, Sector 17, Panchkula.
Institute of Reproduction & Child Cares, Site No.3, Sector 17, Panchkula, through its authorized representative.
Fortis Hospital, Sector 62, Phase-VIII, Mohali-160062, through its authorized representative.
Inscol Hospital, Sector 34-A, Chandigarh – 160022, through its authorized representative.

....Opposite Parties.

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

SH. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER.

Argued by: Sh. Aftab Singh Khara, Advocate for the complainants.

Sh. Ram Avtar, Advocate for Opposite Parties No.1 and 2.

Sh. Sandeep Bhardwaj, Advocate for Opposite Parties No.3 to 5.

Sh. Munish Kapila, Advocate for Opposite Party No.6.

Sh. Rakesh Bhatia, Advocate for Opposite Party No.7.

PER DEV RAJ, MEMBER

The facts, in brief, are that the present complaint was filed by complainant No.1, being the husband of complainant No.2, as she (complainant No.2) is in Coma due to alleged medical negligence on the part of the Opposite Parties. It was stated that complainant No.1 took the Happy Family Floater Policy (Gold Plan) from Opposite Party No.1 – Insurance Company and timely paid the insurance premium and renewed the said Policy from time to time without any gap. It was further stated that the insurance limit under the said Policy was Rs.6 Lacs (Annexure C-2 Colly.). It was further stated that complainant No.2 (wife of complainant No.1) was equally insured alongwith other family members under the said Policy. It was further stated that complainant No.2, being pregnant, and healthy lady with no signs of complication, was regularly getting her checkup done from Opposite Parties No.3 to 5, from time to time, against consideration (Annexure C-3). It was further stated that the tentative due date for delivery, given by Opposite Party No.5 – Hospital, was 25.01.2014. It was further stated that complainant No.2 was got admitted in Opposite Party No.5 – Hospital, against payment of Rs.2,500/-. It was further stated that the doctors of Opposite Parties No.3 and 4 assured complainant No.1 that his wife was hale and hearty and the delivery would be normal. It was further stated that complainant No.2 was operated for delivery but, somehow, the doctors seemed to be worried for something and told complainant No.1 that the baby had survived, but there was some problem with complainant No.2 and they were trying to revive her. It was further stated that the doctors kept complainant No.1 and his relatives under dark by not telling the clear picture. It was further stated that Opposite Parties No.3 to 5 told that they did not have ventilator support so the patient be sent to Fortis Hospital at Mohali and after getting the ventilator support, she would be fine.

2. It was further stated that Opposite Parties No.3 and 4 did not disclose the reason for such lapse, which was not even expected out of pregnancy and kept on telling complainant No.1 different story each and every time and told him that his wife had sudden cardiac arrest and after providing ventilation support, she would be fine. It was further stated that Dr. Kamla Singh was working as Guest Doctor in Opposite Party No.5 Hospital and she was one of the operating doctors. It was further stated that the ambulance came after waiting for 2-3 hours and on reaching Fortis Hospital, it was informed that the patient had a cardiac arrest and the water had entered her lungs due to which, the brain cells had become dead, but Opposite Party No.6 (Fortis Hospital) even did not give the clear picture. It was further stated that Opposite Party No.6 charged Rs.3,34,300/- and complainant No.1 got complainant No.2 discharged from Opposite Party No.6 - Hospital. It was further stated that as the Insurance Company was not giving the insurance claim, the burden fell upon complainant No.1 to bear medical expenses of complainant No.2. It was further stated that since complainant No.1 could not bear the burden of expenditure incurred in Opposite Party No.6 – Fortis Hospital, complainant No.2 had to be shifted to Opposite Party No.7 – Inscol Hospital, as the operating doctors were the same and the daily expenditure was equally less.

3. It was further stated that from Inscol Hospital, it transpired that the patient had an Hypoxic ischemic encephalopathy Post Cardiac arrest survival. It was further stated that complainant No.2 was shifted to Inscol Hospital on 06.02.2014, and was discharged on 26.02.2014. It was further stated that complainant No.1 spent an amount of Rs.3,51,786/- (Annexure C-7). It was further stated that complainant No.1 demanded detailed documents from Opposite Parties No.3 to 5 relating to the treatment of complainant No.2 to know the reason behind failure of operation and to get the insurance claim but in order to save their skin, they took all the documents, receipts etc. from the complainant and assured him that they would pay for the expenses incurred by complainant No.1 in various hospitals. It was further stated that Opposite Parties No.3 to 5 gave a demand draft of Rs.5 Lacs on 20.03.2014 (Annexure C-8) and made complainant No.1 sign on blank papers and told that the matter should not be raised before the Medical Board. It was further stated that complainant No.1, being in need of money, under such a pressure, accepted Rs.5 Lacs to provide post-discharge facilities to complainant No.1.

4. It was further stated that the condition of complainant No.2 is very severe and the chances of her recovery have diminished. It was further stated that the Hospital failed to provide any support after the failure of operation for pregnancy and the daily expenses are rising. It was further stated that complainant No.1, in the hope that the Insurance Company shall pay for the insurance amount to the tune of Rs.6 Lacs, had taken a gold plan in which the nursing facilities are available and the Insurance Company pays for the same. It was further stated that in order to get the medical insurance claim, complainant No.1 sent all the documents available with him. It was further stated that the Insurance Company was harping that the medical treatment taken by complainant No.2 was for pregnancy and the same was not covered. It was further stated that the Insurance Company, without even considering the documents, wrongly came to the conclusion that it was a case wherein the insurance claim could not be paid being treatment for pregnancy. It was further stated that the Insurance Company was bound to pay the claim under the Insurance Policy being a cashless facility. It was further stated that complainant No.1 was shocked to receive a letter dated 29.04.2012 (Annexure C-9) wherein the Insurance Company had repudiated the claim as per the terms and conditions of the Policy. It was further stated that once it was established that the pregnancy treatment had gone beyond the normal course and there was a clear medical negligence on the part of Opposite Parties No.3 to 7 viz. doctors and Hospital, the Insurance Company was equally liable to pay the insurance amount.

5. It was further stated that Opposite Party No.6 - Fortis Hospital failed to send the ambulance well within time due to which the oxygen could not reach the brain and resulted in damage to brain cells and ultimately, complainant No.2 was in ‘COMA’ and is still in ‘COMA’. It was further stated that it was quite surprising that the Fortis Hospital kept complainant No.2 in dark regarding the procedure done by Opposite Parties No.3 to 5 and kept mum for the medical negligence. It was further stated that rather Opposite Parties No.3 to 5, acted as a mediator/medium to settle the act of negligence so that the same should remain unexposed. It was further stated that complainant No.1 is finding it difficult to cope with daily expenses and even otherwise, the fate of complainant No.2 is not known about her future medical expenses. It was further stated that medicines were being purchased and treatment was being done for her survival as depicted from treatment and medical bills (Annexure C-10 Colly.).

6. It was further stated that the act of medical negligence was proved from the act of Opposite Parties No.3 to 5 and the summary report showed that complainant No.2 had a cardiac arrest and the same (cardiac arrest) was covered under the Policy. It was further stated that complainant No.1 has filed affidavit of staff nurse, Ms. Manprit Kaur, who is regularly visiting complainant No.2, thrice a week, for her dressing as complainant No.2 is still in COMA, against payment of Rs.12,000/- per month. It was further stated that the acceptance of Rs.5 Lacs by complainant No.1 paid by Opposite Parties No.3 to 5, was mainly to continue with the treatment of complainant No.2. It was further stated that the aforesaid acts of Opposite Parties No.3 to 7 amounted to medical negligence and that of Opposite Parties No.1 and 2, of repudiating the insurance claim, not only amounted to deficiency, in rendering service, but also indulgence into unfair trade practice.

7. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking the following directions:-

Opposite Parties No.1 & 2 (Insurance Company), be directed to pay the insurance amount for medical expenses incurred by the complainants as per the Insurance Policy alongwith compensation of Rs.2 Lacs for deficiency in rendering service;
Opposite Parties No.3 to 6 be directed to pay Rs.30 Lacs over and above the amount paid as compensation for deficiency in service;
Opposite Parties No.3 to 5 be directed to pay for the future medical expenditure for getting better treatment and nursing charges, which could not be calculated at this stage;
Opposite Parties be directed to pay Rs.7 Lacs as compensation for mental harassment and physical agony;
Opposite Parties be directed to pay interest for the amount from the date of operation;
Opposite Parties be directed to pay Rs.2 Lacs as litigation expenses and engaging a Counsel.

8. Opposite Parties No.1 and 2 – Insurance Company, filed their written statement on 20.10.2014. In their written statement, Opposite Parties No.1 and 2 stated that the claim was filed on account of the medical negligence and on submission of the claim documents, the case of complainant No.2 was thoroughly examined by Opposite Party No.2 – Raksha TPA Pvt. Ltd. and after scrutinizing the documents, it was intimated to Opposite Party No.1 vide letter dated 20.03.2014 (Annexure R-2) that the patient suffered cardiac arrest during delivery and had Amniotic Fluid Embolism. It was further stated that this being the complication of pregnancy did not fall under the scope of Policy and the claim was not payable due to G2P1A1 with cardiac arrest during Lower Section Caesarean Surgery (LSCS), Amniotic Fluid Embolism. It was further stated that the claim was repudiated as the same was outside the scope and ambit of the insurance cover and conditions of Insurance Policy. It was further stated that, however, in the repudiation letter dated 29.04.2014, the Policy condition was inadvertently mentioned as 4.12 instead of 4.13. It was further stated that as per exclusion clause 4.13, the claim was not payable for “Any treatment arising from or traceable to pregnancy, childbirth, miscarriage, caesarean section, abortion or complications of any of these including changes in chronic condition as a result of pregnancy”.

9. It was further stated that the complete Policy alongwith terms & conditions, proposal form, recommendations of Opposite Party No.2 and repudiation letter dated 29.4.2014 were annexed as Annexures R-1 to R-3. It was further stated that the genesis of problem was treatment relating to pregnancy and childbirth and any subsequent development was a consequential implication of pregnancy, which was not covered. It was further stated that since the cardiac arrest, as alleged to have occurred, was direct consequence of pregnancy related complication, the insurer could not be called upon to indemnify the loss. It was further stated that Opposite Parties No.1 and 2 were only arrayed to get the amount incurred on treatment and, in the instant case, there was no question of accepting the medical claims and bills towards medical treatment as the same was not covered under the Policy of Insurance purchased by the complainants, and, the insurer was under no obligation to entertain the claim with regard to reimbursement of medical claim. It was further stated that the qualifications of the doctors, who processed the claim, were furnished through separate affidavit. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

10. Opposite Party No.3 – Dr. Kamla Singh, filed her written statement on 20.10.2014. In her written statement, she stated that she is the Additional Director General Health in Sector 6, Panchkula and did not give any treatment to the patient. It was further stated that neither she attended the patient nor referred the patient. It was further stated that the land/building of Opposite Party No.5 is in her (Opposite Party No.3) husband’s name, which has been given on rent through lease deed to other doctors, who are on the panel of Opposite Party No.5. It was further stated that she was wrongly impleaded in the case and, as such, the present complaint was liable to be dismissed against her. It was further stated that neither complainant No.2 ever visited Opposite Party No.3 nor she was given treatment against any payment. It was further stated that Opposite Party No.3 is not the doctor of Opposite Parties No.4 and 5. It was further stated that Opposite Party No.3 did not perform any operation on complainant No.2. It was further stated that Opposite Party No.3 did not inform Fortis Hospital and also did not give any discharge slip. It was further stated that Opposite Party No.3 was not the operating doctor and, as such, the question of any negligence on her part did not arise at all. It was denied that Opposite Party No.3 was working as Guest Doctor in Opposite Party No.5 Hospital. It was further stated that neither any amount was charged by Opposite Party No.3 nor signatures were taken on any papers. It was further stated that since Opposite Party No.3 was not the treating doctor, therefore, she was not aware about the expenses borne for any dressing as alleged and the treatment or complications, if any. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor she indulged into unfair trade practice. The remaining averments, were denied, being wrong.

11. Opposite Parties No.4 and 5, filed their written statement on 04.11.2014. In their written statement, Opposite Parties No.4 and 5, stated that Opposite Party No.5 had well defined the scope of services, which were displayed well in the premises; entire staff is well oriented about the scope of services available in the hospital (Annexure R-2). It was further stated that it had documented policy for uniform care to patients and emergency care is guided by documented Policy. It was further stated that Opposite Party No.5 has well defined registration and admission procedure alongwith provision of estimated bills for the treatment, initial assessment/examination, regular re-assessment/ examination, treatment procedures which are being followed in the hospital as per treating doctor’s orders. It was further stated that the hospital has framed a Policy while getting accreditation from N.A.B.H. and Opposite Party No. 5 provides free medical care to 2% of patients attending the hospital depending upon need of patients and decision of providing free treatment is taken by the Chief Medical Director/Medical Superintendent of the Hospital.

12. It was further stated that the patient Baljinder Kaur was registered in OPD as free patient vide OPD No.5607 dated 14.11.2013 and she was attending OPD regularly as and when advised by Dr. Usha Bishnoi/Dr. Mamta Chahal (RMO) or whenever she had some problem. It was further stated that the details of anti-natal checkup carried out by the doctor are as under:-

Sr No	Visit date	Findings on examination	Advice given by Dr.	Comments
1	14/11/2013	Booked ANC at Dogra Nursing home. H/o abortion at 6 weeks, 2nd miscarriage DNC was done at Noheria Nursing Home, Period of gest. 29 weeks + 5 days, EDD 25/01/2014, all investigations were already done.	To continue treatment already advised & f/up after 15 days	Patient registered poor free & to provide small room at the time of admission, marked on top of the OPD Slip
2	03/12/2013	Bp-120/70, period of gst. 32+ weeks preg., uterus-34 weeks size, FHS reg.	To continue same treatment & follow up after 15 days.	Free-
3	19/12/2013	BP-120/70, POG-34+5 wks, uterus -34-36 wks size, FHS regular, placenta fully mature	To continue same treatment & follow up 7 days.	-DO-
4	27/12/2013	BP-120/80, POG-35+6 wks, uterus-36 weeks size,	To continue same treatment & follow up 7 days.	-DO-
5	28/12/2013	BP-130/80, complaint of mild lab our pains, uterus-36 weeks size.	To continue same treatment & follow up 7 days or SOS	-DO-
6	08/01/2014	Patient was admitted at 9:35 pm vide CR No-1262/01 for observation of uterine contraction & discharged on 09/01/2014 at 09: 00 am	Advised to continue same treatment & follow up after 1 weeks & SOS	-DO-
7	09/01/2014	BP-130/70, HB-10.0, urine-albumin sugar/ nil.	To continue same treatment & follow up 7 days or SOS	-DO-
8	16/01/2014	BP-130/80, P/A uterus size term size. FHS Regular,	To come on 25/01/2014 for induction of labour.	-DO-

It was further stated that the patient was admitted on 8/01/2014 vide CR N.-1262/01 for observation and discharged on 09/01/2014 and no hospital charges were taken. It was further stated that the patient was re-admitted on 25-01-2014 at 8:40PM vide registration No.5607 for induction of labour. It was further stated that an initial assessment was carried out by Dr. Mamta Chahal, MD (Gynea & Obs.) and the patient was investigated in the hospital and as per the indoor file, her HB 10gm. Albumin & Sugar in Urine was nil, random blood sugar 95.8mg%, Blood Urea 20.86ml% serum Cretin 0.90/dl% , BT 3.10min, CT 7.22min, Blood Group B+ve, HIV I &II-NR (non reactive), HCV negative and HBSAg negative coagulation profile within normal limit. It was further stated that as per assessment, the patient was G3P0A2 having 9 months amenorrhea and her LMP was 18-04-2013 and expected date of delivery was 25-01-2014. It was further stated that she had two abortions in the past and history of Hypothyroidism and was already on medication advised by the some other gynecologists. It was further stated that her respiratory rate was 22 per minute, pulse rate 80 per minutes, afebrile & her BP was 130/180MmHg. It was further stated that there was no abnormal finding on general physical examination. It was further stated that per abdomen examination findings showed relaxed uterus and fetal heart sound was 130-138 per minute. It was further stated that pre checkup was done as per Performa and she was provisionally diagnosed as G3P0A2 with term pregnancy with BOH (Bad obestractics history).

13. It was further stated that the patient was taken to labour room for shaving & preparing and she was induced with 25 mcg of misoprostal. It was further stated that the patient was shifted to room allotted with the direction for close observation of Fetal heart rate and uterine contraction half hourly as per partograph. It was further stated that on 25-01-2014 at 9.30 PM, when the patient started getting mild contraction, it was observed that Fetal Heart Rate became irregular (varying from 160-170 to dipping down to 80-90). It was further stated that the patient was shifted to labour room immediately and Tablet misoprostal 25 mcg was removed & oxygen started. It was further stated that the patient made to lie in left lateral position and continuous monitoring of Fetal Heart Rate done, IV line made patent & IV fluids started as per treatment chart. It was further stated that conditions of the baby were explained & consent for Cesarean due to fetal distress was taken after explaining risk of fetal distress, Surgery & anesthesia. It was further stated that consent was given by the husband & patient. It was further stated that a call was sent to Dr. Usha Bishnoi, an anesthetist and pediatrician were also called who were on the panel of the hospital.

14. It was further stated that as complainant No.2 had undergone two abortions prior to the present delivery although the patient was admitted for induction of labour but it became medically necessary due to fetal distress that planning for emergency Caesarian Section was decided. It was further stated that Pre-Anesthesia checkup was done and the patient was found fit for surgery which was carried out by Dr. S. S Nain (Anesthesiologist). It was further stated that a checklist was prepared by the Staff Nurse before taking the patient into the operation theater on 25-01-2014 at 10:00 PM. It was further stated that the patient was preloaded with 1 ltr of fluid and shifted in the Operation Theater. It was further stated that all the monitors were attached to the patient including NIBP, ECG, Pulse oximeter. It was further stated that Spinal Anesthesia was given with 2 ml of 0.5% inj. Anawin under all possible aseptic conditions. It was further stated that the desired effects were obtained. It was further stated that vital parameters monitoring was continuously made. It was further stated that operation started and vitals were stable viz. pulse rate 90/min, BP-110/68, SpO2 98% & ECG WNL. It was further stated that a male healthy baby was delivered with normal respiration, heart rate and with good cry.

15. It was further stated that just after the delivery, complainant No.2 suffered a cardiac arrest. It was further stated that immediately CPR (Cardio Pulmonary Resuscitation) started with 100% O2 ventilation via endotracheal tube with cardiac massage simultaneously. It was further stated that Injection namely Atropin 0.6 mg + Adrenaline 1 ml was given simultaneously but cardiac activity did not return. It was further stated that without wasting any time, DC shock with defibrillator was given immediately and the patient revived and the cardiac activity also returned. It was further stated that the Infusion Dopamine 20mg/kg/min was started to maintain blood pressure, which was reduced to 2 mg/kg/min. It was further stated that ultimately Dopamine was replaced with Dobutamine 2 mg/kg/min. It was further stated that at around 1:00 AM, Patient reversed and extubated fully but could not maintain ventilation. It was further stated that the patient was opening eyes on verbal command and the Pupillary reaction to light was present. It was further stated that the patient again anaesthetized to facilitate proper ventilation with 100% oxygen as these patients required ventilator support for several hours to ensure proper arterial oxygen saturation to help in preventing myocardial & cerebral ischemia through providing oxygen to brain in the post resuscitation period & avoiding restlessness & coughing.

16. It was further stated that the patient would have required prolonged ventilation in ICU, therefore, on consultation with the patient attendant, the patient was referred to Fortis Hospital at around 2:20 AM. It was further stated that the status of the patient at the time of shifting was Pupil reactive to light, Prp-100/60, PR-80, SPO2 100 and Urine Output 1300 ml. (10:30-02:30). It was further stated that the most common cause of cardiac arrest just after the delivery of baby was suspected as AMNIOTIC FLUID EMOBOLISM OR PULMONARY THROMBO EMBOLISM in obstetrical cases. It was further stated that these conditions can cause sudden and unexpected cardiac arrest during labour and shortly after delivery especially during Cesarean Section, which are unpredictable, unpreventable and untreatable without any convincing identifiable risk factor in the mother or foetus. It was further stated that these present as sudden onset of dyspnea and hemodynamic collapse during labour. It was further stated that there is a 90% incident of decrease in neurological functions & survival rate is only 10% in Post Cardiac Pulmonary Resuscitation cases. It was further stated that even after adequate cerebral oxygenation restored, neurological injury appears to progress in to Hypoxic Cerebral Encephalopathy.

17. It was further stated that the patient required prolonged ventilation alongwith ICU facilities and as such, she was referred to Fortis Hospital for further management. It was further stated that Opposite Parties No.4 & 5 informed the Fortis Hospital, Mohali and requested to send their ambulance, which reached in time and the patient was referred to Fortis Hospital, Mohali on 26-01-2014 at 2:30AM for further management. It was further stated that at the time of referral, hospital had feedback Performa to be filled up by attendants of the patient discharged, referred or LAMA. It was further stated that the attendants of the patient were satisfied with the services provided by the hospital. It was further stated that in the month of March 2014, complainant No.1 alongwith some people approached the hospital and told that it was better that her wife would have died and started crying for help as he had already borrowed a lot for her treatment. It was further stated that complainant No.1 showed one Insurance Policy in which the sum assured was Rs.6,00,000/- and requested Opposite Parties No.4 and 5 to give him Rs.5,00,000/- and he agreed to refund the same after getting the insurance claim. It was further stated that on humanitarian grounds, an amount of Rs.5,00,000/- was given to complainant No.1 through Demand Draft No.023043 issued by Bank of India dated 18.03.2014 under the bonafide impression that complainant No.1 would return the same after getting the insurance claim.

18. It was further stated that Opposite Parties No.4 and 5 not only provided the free treatment but also extended financial help amounting to Rs.5,00,000/- to complainant No.1 in his troubled time. It was further stated that complainant No.1 was sure about getting the claim and Opposite Parties No.4 and 5 helped him financially under the hope of getting their money back through insurance claim. It was further stated that complainant No.1 never informed about the repudiation of claim and now filed the present complaint in order to escape from the liability to refund the amount taken from Opposite Parties No.4 and 5. It was further stated that in the present case, the Opposite Parties followed the established practice while conducting the relevant treatment and the procedure carried out was an accepted practice the World-over and, therefore, there was no question of any negligence.

19. It was further stated that the surgery was performed and the patient was referred to the Fortis hospital for proper management and for the benefit of complainant No.2. It was further stated that the evidence, on record, nowhere established or proved a case of medical negligence on the part of Opposite Parties No.4 and 5. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.4 and 5, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

20. Opposite Party No.6, filed its written statement on 04.11.2014. In its written statement, Opposite party No.6 stated that complainant No.2 underwent caesarean surgery (LSCS) at Institute of Reproduction & Child Care, Sector 17, Panchkula on 25.1.2014 and suffered sudden cardiac arrest while the baby was being delivered, as mentioned in the discharge summary of that Institute. It was further stated that CPR was started and endotracheal tube was placed. It was further stated that an ambulance was called from Fortis Hospital, Mohali. It was further stated that complainant No.1 was aware of patients’ condition. It was further stated that a call for receiving an ambulance was received at 1:08 A.M. by Fortis Hospital, Mohali. It was further stated that in pursuance of the call, a fully equipped ambulance with qualified staff and doctor was dispatched at 1:10 A.M. It was further stated that the ambulance reached the Institute of Reproduction & Child Care, Panchkula and after completion of the discharge process the patient was received at 2:15 A.M by the ambulance personnel. It was further stated that the patient was received at Fortis Hospital, Mohali at 2:45 A.M. It was further stated that at Fortis Hospital, the patient was worked up in line with her problem and the family was kept informed of her condition and the fact that the patient had Hypoxic Ischemic Encephalopathy. It was further stated that the family chose to take the patient LAMA on 6.2.2014. It was further stated that total treatment expenses in Fortis Hospital came to the tune of Rs.3,34,300/-, which were deposited with the Hospital. It was denied that the ambulance of Fortis Hospital came after long waiting of 2-3 hours and complainant No.1 was kept in dark. It was further stated that as per complainant No.1, the sole criteria for shifting the patient from Fortis Hospital, was for monetary reasons. It was further stated that complainant No.1 was informed about the patient suffering from Hypoxic Ischemic Encephalopathy only at Fortis Hospital and not at INSCOL Hospital. It was further stated that the patient was provided best possible care at Fortis Hospital and her attendants were duly informed about her condition. It was further stated that there was no delay in the arrival of ambulance at the Institute of Reproduction & Child Care, Panchkula. It was further stated that even otherwise, the dispatch or arrival of ambulance had no bearing or link with the present condition of the patient. It was further stated that the reason for stating this is that the patient was under the supervision of the previous hospital before being received by the team of Fortis Hospital. It was further stated that it was not the case of complainant No.1 that patient was not being cared for till the ambulance arrived. It was denied that the Fortis Hospital failed to send ambulance well within time due to which the oxygen could not reach in time. It was denied that the Fortis Hospital had ever acted as mediator to settle the alleged negligence committed by Opposite Parties No.3 to 5. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.6, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

21. Opposite Party No.7 – Inscol Hospital, filed its written statement on 31.10.2014. In its written statement, Opposite party No.7 stated that complainant No.2 was shifted to it (Inscol Hospital) from Opposite Party No.6 and while treating the patient, it transpired to doctors of Opposite Party No.7 that the patient had an Hypoxic Ischemic Encephalopathy Post Cardiac arrest survival. It was further stated that she remained in the Hospital from 6.2.2014 to 26.2.2014. It was further stated that there was no allegation of medical negligence against Opposite Party No.7 and no relief had been sought against it. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.7, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

22. The complainants filed replication wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written versions of the Opposite Parties.

23. The complainants, in support of their case, submitted the affidavit of complainant No.1, by way of evidence, alongwith which, a number of documents as also affidavits of Ms. Manprit Kaur, Ms. Manjeet Kaur and Ms. Paramjeet Kaur, were attached.

24. Opposite Parties No.1 and 2, in support of their case, submitted the affidavit of Sh. Mohan Singh Thakur, their Senior Divisional Manager and Dr. Rakesh Kalra working as TPA, by way of evidence, alongwith which, a number of documents were attached.

25. Opposite Party No.3 - Dr. Kamla Singh, Additional Director General (Health) Government General Hospital, Sector 6, Panchkula, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.

26. Opposite Parties No.4 and 5, in support of their case, submitted affidavit of Dr. Usha Bishnoi, by way of evidence, alongwith which, a number of documents were attached.

27. Opposite Party No.6, in support of its case, submitted the affidavit of Mr. Abhijit Singh, its facility Director, by way of evidence, alongwith which, a number of documents were attached.

28. Opposite Party No.7, in support of its case, submitted the affidavit of Mrs. Nimrat Gujral, its Director, by way of evidence, alongwith which, a number of documents were attached.

29. We have heard the Counsel for the parties, and have gone through the evidence, record of the case and written submissions, carefully.

30. The Counsel for the complainants submitted that the complainants took Happy Family Floater Policy (Gold Plan) from Opposite Party No.1 valid for the period from 10.05.2012 to 09.05.2013 and the same was renewed for the period from 10.05.2013 to 09.05.2014. He further submitted that the terms and conditions of the Insurance Policy were not supplied, and only cover note was supplied, and Opposite Parties No.1 and 2 failed to produce any evidence to this effect. He further submitted that Opposite Party No.1 wrongly repudiated the claim vide Annexure C-9 under Clause 4.13 of the Insurance Policy. He further submitted that the Insurance Company in reply to interrogatories admitted of not taking any acknowledgement from the complainants and only proposal form was provided by it. He further submitted that as per the conditions of the Insurance Policy, cardiac arrest was covered and now the Insurance Company was setting up a frivolous ground to deny the benefit of the Policy. He further submitted that as per the Insurance Policy, it gave a health benefit to the Insured and putting a clause of pregnancy being not covered, which was an important factor for a woman for giving a birth, in itself was against the Policy and Regulations. He further submitted that complainant No.2, being a pregnant woman with no sign of complication, was completely fit and she had been under treatment of Dogra Nursing Home. He further submitted that on 25.01.2014, after delivery, complainant No.2 suffered cardiac arrest leading to Hypoxic Ischemic Encephalopathy, which occurred due to lack of oxygen to the brain. He further submitted that there was clear medical negligence attributable to Opposite Parties No.3 to 5 and since Opposite Party No.5 did not have a ventilator, the patient had to be shifted to Fortis Hospital (Opposite Party No.6) and during shifting, there was delay of 2½ hours. He further submitted that cardiac arrest happened after the delivery of baby. The Counsel referred to the literature relating to embolism at pages 272 to 274 as to how is an embolism diagnosed, treated and how it can be prevented. He submitted that “High risk patients may try various embolism prevention methods, such as taking the drugs heparin of warfarin (anti-coagulants), exercising regularly, wearing anti-embolism compression stockings, and using intermittent pneumatic compression of the legs. Compression methods prevent blood clots by forcing blood into deep veins and reducing the amount of pooled blood. Thrombolytics may also be used to help the body dissolve the original clot.” He further submitted that in reply to Question No.5, Dr. Amit Kumar Mandal, Pulmonologist of Fortis Hospital, Mohali submitted that “in the situation of a cardiac arrest the blood circulation stops resulting in blood not flowing to the vital organs. Oxygen is carried in blood, hence, when there is no or poor flow of blood circulation, there is possibility of hypoxic organ injury to vital organs like brain, kidneys, heart & liver. Oxygen along with effective cardio-pulmonary resuscitation (CPR), appropriate drugs, defibrillation- based on cardiac rhythms and duration of ROSC (Return of Spontaneous Circulation) are the integral components of interventions which determine successful outcome of a post-cardiac arrest situation.” Referring to the Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), the Counsel submitted that Opposite Parties No.3 to 6 were clearly negligent. He further submitted that Opposite Parties No.1 and 2 wrongly repudiated the claim vide Annexure C-9. He further submitted that Dr. Kamla Singh (Opposite Party No.3) was in the team of Opposite Parties No.4 and 5 while operating complainant No.2. He further submitted that in the discharge slip (Annexure C-3), it was mentioned that complainant No.2 had a cardiac respiratory arrest just after baby ejection but failed to explain the reason for such situation. He further submitted that Fortis Hospital informed that complainant No.2 had Hypoxic Ischemic Encephalopathy. He further submitted that complainant No.1 paid amount to Fortis Hospital for treatment. He further submitted that since complainant No.1 could not afford medical expenses at Fortis Hospital, and, as informed, the doctors at Fortis Hospital and Inscol Hospital were the same, the patient was got shifted to Opposite Party No.7 - Inscol Hospital, for further treatment. He further submitted that the doctors at Inscol Hospital explained the reason for such lapse due to medical negligence and, accordingly, complainant No.1 approached Opposite Parties No.3 to 5 for such an act. He further submitted that to avoid such situation and since complainant No.1 was in dire need of money for further medical treatment of his wife, he accepted a demand draft of Rs.5 Lacs offered by Opposite Parties No.3 to 5. He further submitted that complainant No.2 is still in COMA and shall be in a vegetated state throughout her life and there shall be no chance of her revival. He further submitted that complainant No.1 even produced the CD recording where it was shown that Opposite Party No.3 was working in Opposite Parties No.4 and 5 Hospitals.

31. He further submitted that Opposite Party No.3 admitted the fact that the Hospital belonged to her husband. He further submitted that complainant No.1 had produced affidavits of the people, who visited the Hospital alongwith the patient at the time of the operation, to the effect that the operating doctor was Dr. Kamla Singh herself. He further submitted that complainant No.1 had produced the videography of Dr. Kamla Singh treating patients in the same hospital and she had filed a false affidavit. He further submitted that as per the reply filed by Opposite Party No.6 (Fortis Hospital), the call was received at 1.00 AM and the ambulance reached there at 2.15 A.M and by 2.45 AM, the patient reached at Fortis Hospital. He further submitted that the negligence had already been committed by Opposite Parties No.3 to 5 and it was just an eye-wash and playing with the emotions of complainant No.1 and taking advantage of the situation, they did not disclose the misconduct done by them, which led to such disastrous results. He further submitted that the fact of medical negligence was equally corroborative from the interrogatories put to Fortis Hospital, wherein while answering Question No.5, it replied the integral components of interventions, which determine the successful outcome of a post-cardiac arrest situation. He further submitted that the Hospital charged the amount on every visit but nothing was mentioned on the OPD and the complainants never bothered to ask for the receipt of the same and, as such, Opposite Parties No.4 and 5 were taking advantage of the same. He further submitted that Opposite Parties No.4 and 5 were wrong in stating that the patient was from a poor family and, therefore, no amount was charged. He further submitted that Fortis Hospital equally charged the amount from the complainants and no free services were provided. He further submitted that no document/agreement to prove the fact that the amount of Rs.5 Lacs was given on humanitarian grounds and the same was to be returned by the complainants, was placed on record by the Opposite Parties No.4 and 5.

32. He further submitted that the complication suffered by complainant No.2 was completely a case of medical negligence, which could have been avoided. He further submitted that Opposite Parties No.4 and 5, in their report, did not even mention about prognosis of the medical failure properly and simply mentioned the failure of operation due to Hypoxic Ischemic Encephalopathy, a condition in which brain does not receive enough oxygen. He further submitted that Opposite Parties No.4 and 5, in their report, failed to diagnose the very embolism caused to the patient, which could have been prevented once the patient was admitted in their hospital. He further submitted that both the Fortis and Inscol Hospitals failed to give any reason for the medical treatment given by Opposite Parties No.4 & 5.

33. The Counsel for Opposite Parties No.1 and 2 submitted that the Insurance Policy issued was valid for the period from 10.05.2012 to 09.05.2013, which was further renewed from 10.05.2013 to 09.05.2014 subject to the terms and conditions on the basis of proposal form submitted by the complainants. He further submitted that the complainants nowhere in the complaint mentioned regarding non receipt of the Policy and this plea had been taken by them subsequently. He further submitted that the Policy and the terms and conditions were collected by the complainants from the office of the company by hand. He further submitted that Discharge Slip issued by Opposite Party No.5 clearly admits cardiac arrest after delivery. He further submitted that insurance contract was binding on both the parties. He further submitted that the genesis of problem was treatment relating the pregnancy and childbirth and any subsequent development was a consequential implication of pregnancy, which was not covered, as per exclusion Clause 4.13 of the Policy condition, as per which, “Any treatment arising from or traceable to pregnancy, childbirth, miscarriage, caesarean section, abortion or complications of any of these including changes in chronic condition as a result of pregnancy”. He further submitted that since the cardiac arrest, as alleged, to have occurred was direct consequence of pregnancy related complication, the claim was rightly repudiated as per the terms and conditions of the Policy vide repudiation letter dated 29.04.2014 (Annexure R-3), duly communicated to the complainants. He further submitted that, however, inadvertently and due to printing error, exclusion clause was wrongly mentioned as 4.12 instead of 4.13. He further submitted that the proposal form also proved that the complainants had read the prospectus and understood the same and thereafter only, the Policy was accepted subject to terms, conditions and exceptions prescribed therein.

34. The Counsel for Opposite Party No.3 submitted that since the complainants failed to prove any payment to Opposite Party No.3 and no evidence was placed, on record, to prove the payment/consideration received by Opposite Party No.3, the complainants were not the consumers qua her (Opposite Party No.3). He further submitted that no case of medical negligence was made out against Opposite Party No.3 and no specific allegation of any negligence was alleged in the complaint. He further submitted that no evidence was brought, on record, in order to prove any treatment given by Opposite Party No.3. He further submitted that Opposite Party No.3 (Dr. Kamla Singh) is Additional Director General Health at Sector 6, Panchkula and neither at any stage, she referred the patient or attended her. He further submitted that perusal of Annexure C-13 pertaining to one Balbinder Kaur showed that the address on Annexure C-13 was totally different from the address on the affidavit given by her. He further submitted that while inserting the CD, the date was mentioned as 04.12.2014 whereas Balbinder Kaur and her son were mentioning the date as 21.01.2014 and 25.11.2015, as such, the evidence was false and manipulated. He further submitted that videography nowhere established that the place was of Opposite Party No.5. He further submitted that the identity of the persons shown in the videography was doubtful, as such, the same could not be relied upon. He further submitted that the Hospital does not belong to Opposite Party No.3 and her husband. He further submitted that Opposite Party No.3 specifically denied her presence and disputed her identity in the CD, intended to be placed, on record. He further submitted that Opposite Party No.3 was wrongly impleaded and, as such, complaint against her was liable to be dismissed.

35. The Counsel for Opposite Parties No.4 & 5 submitted that the patient namely Baljinder Kaur was registered in OPD as free patient vide OPD No.5607 dated 14/11.2013 and she was attending OPD regularly. He further submitted that the complainants did not place, on record, any evidence in order to prove the payment of consideration to Opposite Parties No.4 and 5. He further submitted that no expert evidence or medical evidence was brought, on record, to prove any medical negligence on the part of Opposite Parties No.4 and 5. He further submitted that both the complainants signed the consent form (Annexure OP/4-5/R-4, wherein it was mentioned in Condition No.3 that the doctors had explained to the complainants that excessive bleeding, infection, cardiac arrest, pulmonary, embolism and complication like these could arise suddenly and unexpectedly while undergoing medication/ investigation/ therapy/ procedure or anesthesia. He further submitted that as per Lama Summary (Annexure C-5), issued by Fortis Hospital dated 6.2.2014, complainant No.2 was taken up for caesarean section and she had sudden cardiac arrest while the baby was being delivered. He further submitted that the patient was resuscitated and intubated and shifted to Fortis Hospital. He further submitted that the patient remained admitted in Inscol Hospital from 6.2.2014 to 26.2.2014. He further submitted that MRI brain on 26.1.2014 revealed no significant abnormality and MRI on 30.01.2014 revealed Hypoxic Ischemic Encephalopathy. He further submitted that under the course and management, it was mentioned at the bottom that now the patient was stable and was being discharged on following recommendation. He further submitted that the evidence of Inscol Hospital also nowhere established any medical negligence. He further submitted that since the evidence placed, on record, needed detailed investigation, the matter was required to be relegated to the Civil Court.

36. He further submitted that as per the medical literature on Amniotic Fluid Embolism, it could occur during labor, caesarean section, dilatation and evacuation or in the immediate postpartum period. He further submitted that undetected and untreated it could culminate into fulminant pulmonary edema, intractable convulsions, disseminated intravascular coagulation (DIC) malignant arrhythmias and cardiac arrest. He further submitted that according to the literature on the subject, in some women AFE may lead to mild degree of organ dysfunction while in others, it may lead to coagulopathy, cardiovascular collapse and death. He further submitted that despite advances in the care of critically ill patients, no management interventions have been found to improve the survival or long term outcome of women with AFE. He further submitted that there is a 90% incident of decrease in neurological functions & survival rate is only 10% in Post Cardiac Pulmonary Resuscitation cases. He further submitted that even after adequate cerebral oxygenation restored, neurological injury appears to progress in to Hypoxic Cerebral Encephalopathy. He further submitted that since the patient required prolonged ventilation alongwith ICU facilities, so, she was referred to Fortis Hospital for further management. He further submitted that so far as amount of Rs.5 Lacs given to complainant No.1 was concerned, it was a kind of financial help under the hope of getting the same back through insurance claim. He further submitted that complainant No.1 wrongly stated that complainant No.2 was a healthy lady, rather she had already undergone abortion twice and had no child prior to present delivery. He further submitted that there was no medical negligence on the part of Opposite Parties No.4 & 5.

37. The Counsel for Opposite Party No.6 submitted that complainant No.2 underwent Lower Section Caesarean Surgery (LSCS) in the Institute of Reproduction & Child Care, Sector 17, Panchkula at 1:08 A.M on 25.1.2014, for which consent form was signed by complainant No.1. He further submitted that the patient suffered sudden cardiac arrest while the baby was being delivered, as mentioned in the discharge summary of that Institute. He further submitted that CPR was started and endotracheal tube was placed. He further submitted that it was evident from OP-6/1, which is a copy of the Ambulance Register of Fortis Hospital that the ambulance left for Panchkula at 1:10 A.M and arrived at 2:45 A.M at Fortis Hospital and there was no delay in shifting the patient. He further submitted that the patient was provided the best possible care. He further submitted that after understanding the condition of the patient, Mr. Prabhjot Singh and Mr. Paramjeet Singh signed the progress notes dated 29.1.2014. He further submitted that the patients family was also informed that in view of hypoxic brain injury, the patient would remain in persistent vegetative state. He further submitted that Annexure OP-6/4 revealed that patient’s attendants were clearly aware of her condition. He further submitted that the patient’s attendants left against medical advice and went to Inscol Hospital. He further submitted that LAMA was duly handed over to the patient’s attendant, wherein under the heading ‘Diagnosis’ it was mentioned Post LSCS, Post CPR survivor & Hypoxic Ischemic Encephalopathy. He further submitted that the complainants wrongly tried to project, as if the Fortis Hospital failed to send ambulance well within time. He further submitted that Fortis Hospital never acted as mediator to settle the alleged negligence committed by Opposite Parties No.3 to 5.

38. Counsel for Opposite Party No.7 submitted that the complainant was shifted to it (Inscol Hospital) from Opposite Party No.6, and while treating the patient, the doctors of Opposite Party No.7, found that the patient had Hypoxic Ischemic Encephalopathy Post Cardiac arrest survival. He further submitted that there was no allegation of medical negligence against Opposite Party No.7, and no relief had been sought against it. He further submitted that complainant No.2 was operated by Opposite Parties No.3 to 5. He further submitted that cardiac arrest was one of the complications from which complainant No.2 suffered. He further submitted that there was no medical negligence, but it was a complication.

39. It is evident that complainant No.2 was admitted in Opposite Party No.5 Hospital on 25.01.2014. Though complainant No.1 has submitted that complainant No.2 was admitted in Opposite Party No.5 Hospital against payment of Rs.2,500/- but no receipt/evidence to this effect has been attached. It is also evident that complainant No.2 was operated for delivery and after delivery, she suffered cardiac arrest and water entered her lungs due to which the brain cells became dead. Since complainant No.2 was required to be put on ventilator, as such, Opposite Parties No.4 and 5 referred her to Fortis Hospital at Mohali on 25.01.2014 itself where the patient reached at 2:45 A.M.

40. The discharge summary mentioned that when complainant No.2 suffered cardiac arrest, CPR was started and endotracheal tube was placed and the patient was shifted to Fortis Hospital. This fact has been clearly stated by Opposite Party No.6. Not only this, Opposite Party No.6 stated that there was no delay in shifting the patient. As per the copy of Ambulance Register (Annexure OP-6/1) produced in evidence, the ambulance left for Panchkula at 1:10 A.M and arrived at Fortis Hospital at 2:45 A.M. The delay of around 2½ hours in shifting the patient could not be attributed to Opposite Parties No.3 to 6. It is also in evidence that progress report was also signed from Mr. Prabhjot Singh and Mr. Paramjeet Singh on 29.01.2014. At Fortis Hospital, complainant No.2 was suspected to have suffered from Amniotic Fluid Embolism and for suspected Hypoxic Ischemic brain injury, complainant No.2 was subjected to MRI Brain on 29.01.2014, which as per noting on Page 241 under ‘Progress Note’s, was normal.

41. Opposite Parties No.4 and 5 have contended that complainant No.2 was treated as a free patient and no receipts of any charges have been produced and, as such, there being no consideration, the complainants did not fall within the definition of consumers qua Opposite Parties No.4&5. Perusal of OPD Card (Annexures R-4&5/3 reveals that on top, ‘Poor free’ is written. It may be stated here that Opposite Parties No.4 & 5 have also in their written statement submitted that it was Hospital Policy to provide free treatment to 2% of the patients. Since the aforesaid condition was mandatory for Opposite Parties No.4 & 5 to acquire accreditation from N.A.B.H., which is a direct benefit to them, it cannot be accepted that the complainants were not the consumers. This objection of Opposite Parties No.4 & 5, being devoid of merit, stands rejected.

42. The next question, which falls for consideration, is, as to whether, there was any medical negligence on the part of Opposite Parties No.4 and 5 or not. The case of the complainants is that Opposite Parties No.4 and 5 failed to diagnose the very embolism caused to the patient, which could have been prevented once the patient was admitted in their Hospital, whereas, on the other hand, the stand of Opposite Parties No.4 to 5, was that the most common cause of cardiac arrest just after delivery of baby was suspected as AMNIOTIC FLUID EMOBOLISM OR PULMONARY THROMBO EMBOLISM in obstetrical cases and these conditions can cause sudden and unexpected cardiac arrest during labour and shortly after delivery especially during Cesarean Section, which are unpredictable, unpreventable and untreatable without any convincing identifiable risk factor in the mother or foetus. It is evident that before operating complainant No.2 for delivery, Consent Form (at page 178 of the file) was signed by the complainants, the contents whereof are extracted hereunder:-

“CONSENT FORM

Mrs. Baljinder Kaur W/o Satpal Singh R/o #37, Telephone Exchange, Zirakpur give consent for own/relative admitted in I.R.C.C. Nursing Home, Sector 17, Panchkula vide C.R. No.1279/01 …. With diagnosis of GzPoA for Medication/Investigation/Anaesthesia/ Operation/ Therapy/Procedure/ for Induction of Labour but due to FD, decision for Em.LSCS _____.

The Necessity of Medication/Investigation/Anesthesia/Operation/Therapy/Procedure, the ill effects if this is not performed; hazards and complications in the Therapeutic Modalities other than operation have been explained to me by Doctor.
I have been explained clearly that any Medication/Investigation/Anesthesia/Operation/ Therapy is not totally safe and safe that such procedure or anesthesia can be risk to life on an otherwise healthy person also.
Doctors have explained to me that excessive bleeding, infection; cardiac arrest, pulmonary, embolism and complications like these can arise suddenly and unexpectedly while undergoing Medication/ Investigation/Anesthesia/Operation/Therapy or Anesthesia.
I also consent for any change in the anesthesia/Operative procedure as well as removal of any organ as deemed necessary by the doctors at the time of Medication/Investigation/Operation/ Therapy/Procedure.
I have been made aware that after Medication/Investigation/Operation/Therapy/ Procedure and anesthesia, instead of desired benefits, some complications may arise e.g. like post-op. hemorrhage, infection, post-anesthetic, complication, non-union, malunion etc.
I have been explained in details the advantages, the disadvantage of the procedure/treatment and also I have been explained that laproscopic procedure may have been explained that laproscopic procedure may have to be terminated under some circumstances and concerted to open surgery for which I give my consent.
I have read the above writing/the writing has been read out to me in a language understood by me.

Baljinder Kaur (Self) (Sd/-)

Signature of Patient

Date:25/01/2014

The Risk of fetal distress of baby and surgery anesthesia has been explained.

Satpal (Sd/-)

(Husband)

Signature of Attendant

Relation:

Doctor’s Declaration: I have explained all the queries of the patient to the best of my knowledge. I belief that patient has been adequately informed and has consent.

Sd/-

(Pushpa) Signature: Doctor/Sister In charge.”

Thus, complainants No.1 and 2 were made aware of the possible consequences of operation and before operation, consent in the aforesaid format was given. It is clear from Condition No.3 that cardiac arrest, pulmonary, embolism and like complications could arise suddenly and unexpectedly.

43. Amniotic Fluid Embolism, as defined in Encyclopedia of Forensic Sciences, at page 24 annexed by Opposite Parties No.4 and 5 alongwith their written arguments, is extracted hereunder:-

“Amniotic Fluid Embolism

Amniotic fluid embolism is a rare and frequently lethal complication of pregnancy characterized clinically by profound and unresponsive hypotension with tachypnea, cyanosis and abnormalities in cardiac rhythm followed loosely by the onset of DIC.

Patients may develop amniotic fluid embolism in clinical circumstances ranging from the performance of a second trimester termination of pregnancy up to instances that occur relatively late following completion of labor. The pathophysiology is not completely understood and various mechanisms have been suggested including a mechanical obstruction to pulmonary capillaries, activation of vasoactive substances, the presence and action of tissue factor within amniotic fluid, and anaphylaxis.

The diagnosis is made by the demonstration of squamous cells, mucin, meconium, and lanugo in the maternal pulmonary vasculature. Although the diagnosis has been suggested clinically from aspiration and examination of blood from pulmonary catheters, the diagnosis is generally reached after postmortem examination. Diagnostic material may be seen on conventional hematoxylin-and-eosin stained sections but is better appreciated using special stains such as the Attwood’s stain. In addition, immunohistochemical techniques are available to detect squamous cells and more importantly, mucin derived from amniotic fluid.”

44. Further, as per Forensic Pathology (Principles and Practice), ‘Amniotic fluid emboli’, at page 210 of the file, has been defined as under:-

“Amniotic fluid emboli

Amniotic fluid embolism may cause sudden and unexpected death during labor and shortly after delivery. Although it has a mortality rate approaching 80 percent, it is rare, occurring in approximately 1 in 25,000 deliveries. It is unpredictable, unpreventable, and untreatable. There are no convincing identifiable risk factors in the mother or the fetus, and it usually presents as a sudden onset of dyspnea and hemodynamic collapse during labor.”

In view of the above literature, on the subject, it is very much clear that amniotic fluid embolism is a rare and frequently lethal complication of pregnancy characterized clinically by profound and unresponsive hypotension with tachypnea, cyanosis and abnormalities in cardiac rhythm followed loosely by the onset of DIC and the patient may develop amniotic fluid embolism in clinical circumstances ranging from the performance of a second trimester termination of pregnancy up to instances that occur relatively late following completion of labor. So far as its diagnosis is concerned, the literature, aforesaid, also makes it clear that its diagnosis is made by the demonstration of squamous cells, mucin, meconium, and lanugo in the maternal pulmonary vasculature. It is further stated that although the diagnosis has been suggested clinically from aspiration and examination of blood from pulmonary catheters, the diagnosis is generally reached after postmortem examination. As per the literature, although it has a mortality rate approaching 80 percent, it is rare, occurring in approximately 1 in 25,000 deliveries. The literature further says that amniotic fluid ambolism is unpredictable, unpreventable, and untreatable and there are no convincing identifiable risk factors in the mother or the fetus, and it usually presents as a sudden onset of dyspnea and hemodynamic collapse during labor. Thus, in view of the literature relied upon by Opposite Parties No.4 and 5, no medical negligence can be attributed to them on this account. Moreover, the complainants did not anywhere, in their complaint, averred that the doctors, who treated complainant No.2, were not competent and qualified to do so or they did not possess the required skill in the field. Further, the complainants failed to bring, on record, any literature to corroborate their plea that Opposite Parties No.4 and 5 failed to diagnose the very embolism caused to the patient, which could have been prevented. There is no documentary evidence, on record, to establish any deficiency, in rendering service or any medical negligence on the part of Opposite Parties No.4 to 5, in treating complainant No.2.

45. In the medical negligence cases, the law is now well settled. The Hon’ble Supreme Court in para-94 of its judgment titled as Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors. I(2010) CPJ 29 (SC), observed as under:-

“94. On scrutiny of the leading cases of medical negligence both in our Country and other Countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence, the following well known principles must be kept in view:

I.	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.
II.	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.
III.	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.
IV.	A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V.	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.
VI.	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.
VII.	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.
VIII.	It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX.	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.
X.	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.
XI.	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.”

Their Lordships observed that the aforesaid principles, must be kept in view while deciding the cases of medical negligence. It is evident from the principle of law, laid down, in the aforesaid case, that, as long as, the Doctor performs his duties and exercises an ordinary degree of professional skill and competence, he/she cannot be held guilty of medical negligence. It is imperative that the Doctor must be able to perform his/her professional duties, with free mind.

46. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable skill, in that branch of profession, which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill, with reasonable competence.

47. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Hon’ble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.

48. In view of the law settled, in the aforesaid cases, there was, therefore, no medical negligence, on the part of Opposite Parties No.4 & 5, in giving treatment to complainant No.2. The submission of the Counsel for the complainants, in this regard, being devoid of merit, must fail, and the same stands rejected.

49. The Counsel for the complainant placed reliance on Kalpana Vs. Dr. K. Ramalakshmi & Anr., Revision Petition No.1811-1812 decided by the National Commission on 11.12.2014. Since the said case was decided, on the peculiar facts and circumstances, prevailing therein, no help can be drawn by the complainants, from the principle of law, laid down therein, to prove that there was medical negligence, on the part of Opposite Parties No.4 and 5.

50. In the final analysis, it is held that Opposite Parties No.4 and 5, exercised an ordinary degree of skill and competence in treating and taking care of complainant No.2, in the best possible manner, during the period, she remained admitted in their Hospital. Opposite Parties No.4 and 5 have stated in their written statement that they had the ventilator support but since complainant No.2 being revived required long term ventilator support alongwith ICU facility, she was referred to/shifted to Fortis Hospital. The time taken to shift the patient also did not amount to any deficiency. The complainants have not produced any cogent or expert evidence to substantiate their allegation of medical negligence. Thus, Opposite Parties No.4 and 5 were not guilty of medical negligence, in treating complainant

No.2. There was, thus, no deficiency, in rendering service, on the part of Opposite Parties No.4, 5 & 6 and the complaint is liable to be dismissed against them. As regards the role of Opposite Party No.7 – Inscol Hospital, since no relief has been sought by the complainants, the same (complaint) is also liable to be dismissed against it (Opposite Party No.7).

51. The next question which falls for consideration, is as to whether, there was any deficiency, in rendering service or any medical negligence on the part of Opposite Party No.3 (Dr. Kamla Singh) or not. The averment of complainant No.1 that Opposite Party No.3 admitted the fact that Hospital was being run by her husband is not correct. As per the written statement filed by Opposite Party No.3, no doubt she stated that the Hospital premises belonged to her husband but the same was given on lease to Opposite Party No.5. Dr. Kamla Singh has clearly stated and adduced copy of the lease deed, which proves that the Hospital during the relevant period did not belong to her husband. The evidence vis-à-vis affidavits of Smt. Balbinder Kaur W/o Sh. Baldev Singh R/o H.No.4, New Defence Colony, Zirakpur and Sh. Manpreet Singh son of Sh. Baldev Singh residing at the same address and the DVD do not conclusively prove that Dr. Kamla Singh attended the patient. As per affidavit of Smt. Balbinder Kaur and Sh. Manpreet Singh, the former got treatment from Dr. Kamla Singh on 21.11.2014 and 25.11.2014 but she (Dr. Kamla Singh) did not sign the prescription and some other doctor signed the same. No evidence has been produced that prescription was in the handwriting of Dr. Kamla Singh. Even the name of the doctor who allegedly singed the slip has not been mentioned. Not only this, Opposite Parties No.4 and 5 have also categorically denied in their written statement that Dr. Kamla Singh was working as a guest doctor with Opposite Party No.5 and they also placed list of doctors on panel of IRCC as Annexure R-6, in which, the name of Dr. Kamla Singh did not figure. Even if, it is assumed for the sake of arguments, that Mrs. Balbinder Kaur was attended to/treated by Dr. Kamla Singh in Opposite Parties No.4 & 5 Hospital on 21.11.2014 & 25.11.2014, the same did not prove that Dr. Kamla Singh attended complainant No.2 on 25.01.2014. Dr. Kamla Singh, in her duly sworn affidavit has affirmed that she is Additional Director, Health Haryana Govt. and she never attended complainant No.2. As such, no negligence/medical negligence can be attributed to Dr. Kamla Singh (Opposite Party No.3).

52. The next question, which falls for consideration, is, as to whether the claim of the complainants was rightly repudiated by Opposite Parties No.1 and 2 or not. Admittedly, the complainants took a Happy Family Floater Policy (Gold Plan) valid for the period from 10.05.2012 to 09.05.2013 which was renewed from 10.05.2013 to 09.05.2014. The claim submitted by the complainants was repudiated by Opposite Parties No.1 and 2 vide letter dated 29.04.2014 (Annexure R-3), which reads as under:-

“Kindly refer to the claim lodged to TPA i.e. M/s Raksha TPA under above policy.

On close scrutiny of the papers submitted by you in support of your claim viz-a-viz the terms and conditions of the policy issued, we regret to inform you that your claim is not tenable on the following grounds:

G2P1A1 admitted with FTP, Patient suffered from cardiac arrest during delivery and had amniotic fluid embolism. This being the complication of pregnancy does not fall under the scope of the policy. As per policy condition 4.12 this claim will not be payable. Thus, the claim is not payable due to G2P1A1 with cardiac arrest during LSCS, Amniotic fluid embolism.

However, you are being given one more opportunity to substantiate your claim in view of the grounds of repudiation mentioned above before a final decision is taken at our end. Your representation/clarification mush reach us within 1 week from the date of receipt of this letter. Please note that in case we have no response from you within 1 week from the date of receipt of this letter, the claim shall stand repudiated for the reasons indicated above without further advices from us.”

53. Reference to Policy Condition No.4.12 was made in the repudiation letter but in the written statement, Opposite Parties No.1 & 2 have specifically submitted that inadvertently Condition No.4.12 was mentioned instead of 4.13. There seems to be force in the contention of Opposite Parties No.1 & 2 as it has been mentioned that being the complication of pregnancy, the claim did not fall under the scope of the Policy and the same is the crux of Clause 4.13, which reads as under:-

“4.13 Any Treatment arising from or traceable to pregnancy, childbirth, miscarriage, caesarean section, abortion or complications of any of these including changes in chronic condition as to result of pregnancy.”

54. When the claim was repudiated, the complainants were afforded an opportunity to represent against repudiation. No evidence, as to whether, they represented against repudiation has been brought, on record, by the complainants. The complainants have contended in the rejoinder that the Policy terms and conditions were not supplied to them but as rightly argued by the Counsel for Opposite Parties No.1 & 2, no such plea was raised in the complaint. Not only this, Opposite Parties No.1 & 2 have argued that the Policy alongwith the terms and conditions was collected by complainant No.1 from the office of the Company by hand and additionally, it was mentioned in the Policy that the same (Policy) was to be regulated in accordance with the terms and conditions of the Policy. Therefore, the contention of the complainants regarding non-supply of the Policy terms when no such plea was taken in the complaint, is apparently an afterthought. Had the complainants, on receipt of repudiation letter, represented to Opposite Parties No.1 & 2 regarding non receipt of the terms and conditions, the position would have been different. Thus, Opposite Parties No.1 and 2 rightly repudiated the claim and no deficiency, in rendering service or indulgence into unfair trade practice can be attributed to them.

55. For the reasons recorded above, the complaint, being devoid of merit, is dismissed with no order as to costs.

56. The parties through their Counsel be informed accordingly.

57. Certified copies of the order be also sent to each of the parties, free of charge.

58. File be consigned to the Record Room after completion.

Pronounced.

February 04, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

STATE COMMISSION

Consumer Complaint No.101 of 2014

[Satpal Singh Brar & Anr. Vs. Oriental Insurance Co. Ltd. & Ors.)

Argued by: Sh. Aftab Singh Khara, Advocate for the complainants.

Sh. Ram Avtar, Advocate for Opposite Parties No.1 and 2.

Sh. Sandeep Bhardwaj, Advocate for Opposite Parties No.3 to 5.

Sh. Munish Kapila, Advocate for Opposite Party No.6.

Sh. Rakesh Bhatia, Advocate for Opposite Party No.7.

Dated the 4^th day of February, 2015

ORDER

On 12.01.2015, the complainants moved two miscellaneous applications, one for sending the CD (Annexure C-13) to the Forensic Expert Laboratory for opinion regarding its authenticity and the second for placing, on record, the affidavits of Smt. Balbinder Kaur and Sh. Manpreet Singh.

2. Copies of the aforesaid applications were supplied to the Counsel opposite.

3. Opposite Party No.3 i.e. Dr. Kamla Singh filed reply to the applications, aforesaid on 20.01.2015.

4. We have heard the arguments on both the applications aforesaid and have gone through the record of the case.

5. The Counsel for the complainants submitted that since Dr. Kamla Singh (Opposite Party No.3) had vehemently denied her presence in IRCC Hospital run by Opposite Parties No.4 & 5 and stated the CD to be forged and fabricated piece of evidence, and moreover, when Opposite Parties No.4 & 5 denied that Opposite Party No.3 rendered any service in their hospital, the same (CD) be sent to the Forensic Laboratory, Chandigarh to find out its authenticity. He further submitted that the additional affidavits of Smt. Balbinder Kaur wife of Sh. Baldev Singh and Sh. Manpreet Singh son of Sh. Baldev Singh to the effect that inadvertently, the date in Para 1 of the earlier affidavits was mentioned as 25.11.2013 instead of 25.11.2014 and further in Para 3, inadvertently, the date was mentioned as 21.1.2014 instead of 21.11.2014, be taken on record in addition to the affidavits dated 16.12.2014 earlier filed by these deponents.

6. On the other hand, with regard to the application for sending the CD for expert opinion, the Counsel for Opposite Party No.3, submitted that the proceedings under the Consumer Protection Act, 1986 are summary in nature and the complainants have been filing applications one after the other and trying to adopt the procedure in contravention of the Act. He further submitted that the application is totally against the provisions of the Act. He further submitted that the authenticity of the CD or the documents required a lengthy procedure and the same could not be adopted in the summary proceedings. He further submitted that the CD had no relation with the facts and circumstances of the present case and the same had been placed, on record, by manipulating just to pressurize Opposite Party No.3 in order to put pressure on Opposite Parties No.4 & 5 not to demand Rs.5 Lacs, which the complainants had to pay to Opposite Parties No.4 & 5, after receiving the claim from the Insurance Company.

7. With regard to the application of the complainant for placing, on record, the affidavits, aforesaid, the Counsel submitted that the contents of the earlier affidavits were incorrect and false. He further submitted that Sh. Manpreet Singh and Smt. Balbinder Kaur duly signed the affidavits earlier after going through the contents and, as such, the question of any mistake did not arise at all. He further submitted that the affidavits of these two persons, already placed, on record, being false and frivolous, required authenticity to be ascertained by cross examination and, as such, the present matter was required to be relegated to the Civil Court, as the same could not be adjudicated upon in the summary proceedings.

8. It may be stated here, that the complaint has already been finally argued by the parties, on merits, and, in case, at this stage, the applications, aforesaid, one for sending the CD (Annexure C-13) to the Forensic Expert Laboratory for opinion regarding its authenticity and the second for placing, on record, the affidavits of Smt. Balbinder Kaur and Sh. Manpreet Singh, are allowed, that will delay the disposal of the complaint, thereby defeating the very purpose of the provisions of Section 13 (3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of the Consumer Disputes. Thus, there is no justification, whatsoever, to allow the applications, aforesaid, at this stage. Both the aforesaid applications i.e. one for sending the CD (Annexure C-13) to the Forensic Expert Laboratory for opinion regarding its authenticity and the second for placing, on record, the affidavits of Smt. Balbinder Kaur and Sh. Manpreet Singh, are accordingly dismissed.

9. Arguments, in the complaint, already heard.

10. Vide our detailed order of the even date recorded separately, the complaint, being devoid of merit, has been dismissed with no order as to costs.

Chandigarh

StateCommission

CC/101/2014

Satpal Singh Brar & anr. - Complainant(s)

Versus

Oriental Insurance Company Ltd. - Opp.Party(s)

Sh. Aftab Singh Khara Adv.

04 Feb 2015

ORDER

STATE COMMISSION

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(JUSTICE SHAM SUNDER (RETD.))

PRESIDENT

Sd/-

(PADMA PANDEY)

MEMBER

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