Chandigarh

DF-II

CC/142/2018

Veena Julmaria - Complainant(s)

Versus

Post Graduate Institute of Medical Education & Research (PGIMER) - Opp.Party(s)

S.K Choudhary Adv.

13 Jan 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	142/2018
Date of Institution	:	07.03.2018
Date of Decision	:	13.01.2022

 

                                       

                       

 

Veena Julmaria w/o Sh.Vikas Pankaj Sharma r/o VPO Jasrota, Tehsil and District Kathua, A/p H.No.N-11, Sector 4, Upper Roop Nagar, Janipur, Jammu.

                                ...  Complainant.

Versus

1.     Post Graduate Institute of Medical Education & Research (PGIMER), through Medical Superintendent, Sector 12, Chandigarh -160012.

 

2.     Dr.Rashmi Bagga, Unit No.1 (HOD), Department of Obstetrics & Gynecology, Post Graduate Institute of Medical Education & Research (PGIMER, Sector 12, Chandigarh -160012.

 

3.     Dr.J.K.Kalra, Department of Obstetrics & Gynecology, Post Graduate Institute of Medical Education & Research (PGIMER, Sector 12, Chandigarh -160012.

 

4.     Dr.V.Suri, Clinician Incharge, Department of Histopathology, Post Graduate Institute of Medical Education & Research (PGIMER, Sector 12, Chandigarh -160012.

 

5.     Dr.Rajiv, Prosectors, Department of Histopathology, Post Graduate Institute of Medical Education & Research (PGIMER, Sector 12, Chandigarh -160012.

 

(OPs No.4 and 5 deleted vide order dated 07.06.2019).

 

6.     Dr.N.Kakkar, Professor of Histopathology, Post Graduate Institute of Medical Education & Research (PGIMER, Sector 12, Chandigarh -160012.

…. Opposite Parties.

BEFORE:
		SHRI RAJAN DEWAN,	PRESIDENT
		SHRI B.M.SHARMA	MEMBER
Argued by:-
	Sh.Vikas Pankaj Sharma, husband of the complainant, in person.
	Ms.Niharika Goel, Advocate for OPs.

 

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the facts of case as alleged by the complainant are that  she started taking treatment in the OPs hospital in the first week of December, 2015 carrying six months of pregnancy and after necessary tests/investigations, she was diagnosed to be suffering from Polyhydramnios (increase Amniotic fluid) and due to this, the fetus in her womb suffered from duodenal atresia. After necessary tests and investigations, she was admitted in the OPs-Hospital on 22.02.2016 for surgery for delivery of the child, which was scheduled to be performed on 24.02.2016 but the same was postponed to 25.02.2016 and then to 26.02.2016 but C-section to deliver the fetus was not performed by the doctors despite the fact that there was leakage in the amniotic fluid and unfortunately due to non-performing of the surgery to deliver the child within right time, her fetus died in her womb on 28.02.2016. After IUD, the situation become grave as the complainant, who was already suffering due to complication in the pregnancy from mental trauma, shock and pain, also subjected to mistreatment and rude behavior of the doctors and ultimately, she was discharged on 02.03.2016 carrying a dead fetus in her womb with a advise to come on the hospital when the labour pain starts. She was again admitted in the OP-Hospital on 04.03.2016 due to labour pain and on the next day i.e. 05.03.2016, a dead male baby was delivered. It has further been averred that the complainant was carrying dead fetus in her womb for seven days from 28.02.2016 to 05.03.2016.  Besides this, the postmortem of the dead child was conducted on 05.03.2016 and after more than one year i.e. 21.03.2017, the post mortem report was prepared by Dr.N.Kakkar but he had not mentioned the date on the PMR and on asking of the complainant’s husband to mention the date on the PMR, OP No.6 again changed the PMR and mentioned the date as 21.03.2017 with the observations that “Totally Autolyzed Organs” meaning thereby that the organ of the fetus decomposed and in the PMR, the date of death of the fetus was also wrongly mentioned i.e. 05.03.2016 whereas the fetus has died on 28.02.2016.     Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to medical negligence as well as deficiency in service, the complainant has filed the instant complaint.
2.         In their written statement, OPs No.1 to 3 & 6 took numerous preliminary objections. It has been pleaded that level 2 scan was conduct in Jammu in 6^th month of pregnancy (at 24 weeks and 5 days) and this was late as a level 2 scan is conducted in 5^th month of pregnancy (usually by 18-19 weeks) so that if any problem is detected during that scan, there is time to do further tests to investigate for a cause before 20 weeks of gestational age.  It has further been pleaded that the finding of polyhydramnious with duodenal atresia would have been followed by an amniocentesis to gest for the presence of Down’s Syndrome ( a chromosomal abnormality) which may be associated in 25 to 40% of such cases (Annexure 1, Shahwani etal, 2013) but her pregnancy was too far advanced for such tests as she first visited the hospital at 26 weeks of gestation.  It has further been pleaded that on her second visit, she was explained that the baby had only 50% chances of survival and the baby may need surgery soon after birth and she was advised to have regular check ups in the OPD and institutional delivery. It has further been pleaded that during her follow up visit on 15.02.202016, she was 34+ weeks pregnancy and advised to come for next check up after one week at which time, she was planned to be admitted to the hospital for safe confinement and delivery between 37 to 38 weeks of gestation.  It has further been pleaded that the complainant was admitted in the hospital on 22.02.2016 and her pregnancy was 35+ weeks because she had a previous caesarean section and polyhydramnious in the pregnancy and her repeated caesarean section was planned after she had completed 37 weeks by which time the fetus was expected to be matured.  After admission, she was found to have low platelet count which was re-checked and found to be low on multiple occasions and hence there was need to arrange platelets (single donor plasma aphaeresis) when she was planned for caesarean section between 37 to 38 weeks (i.e. in first week of March) and as such a donor was screened for the same and she was also asked to arrange voluntary donors for at least 2 units of blood as delivery or caesarean in a woman with low platelet count is associated with excessive bleeding. It has further been pleaded that the case record of 25.02.2016 (36 weeks and 2 days) does not mention any complaint of leakage and her ultrasound done on 26.02.2016 showed the fetus was showing good movements, fetal biophysical profile was normal and polyhydramnious was present as before.  It has further been pleaded that on 28.02.2016 (36 weeks and 5 days), the fetal heart was not heard with a stethoscope by the Junior and Senior Residents during morning rounds and the same was also confirmed by one more ultrasound performed by a radiologist. The same may be attributed to the association of the existing malformation of duodenal atresia in the fetus with some other underlying condition like a chromosomal abnormality.  It has further been pleaded that many of such fetuses die in the womb due to spontaneous mortality which is high in fetuses with congenital malformations likely to be associated with aneuploidies.  After the fetal death in the womb (IUD), the complainant was observed in the hospital for 4 days and she was doing well and her platelet count was rechecked and on 29.02.2016, one day after fetal death, it had increased to 78000 and further increased to 2.8 lakhs.  The remaining allegations have been denied, being false. Pleading that there is no medical negligence or deficiency in service on their part, a prayer for dismissal of the complaint has been made.
3.         The complainant filed rejoinder to the written reply of the Opposite Parties controverting their stand and reiterating her own.
4.         We have heard the Counsel for the parties and have gone through the documents on record as well as written arguments.
5.         At the time of arguments, the Counsel for the OPs has vehemently contested that the complaint filed by the complainant, who was treated in a government hospital qua hospital and the doctors attending to her, is not maintainable before this Commission in view of the ratio of law settled in the latest judgment  of the Hon'ble Supreme Court of India passed in Civil Appeal No.103 of 2012-Nivedita Singh Vs. Dr.Asha Bharti  & Ors., decided on 7.12.2021. 
6.         In view of the aforesaid submission of the Learned Counsel for the OPs, the first question to be determined before us is as to whether the present complaint filed by the complainant before this Commission is maintainable qua the OPs or not?
7.         The Hon'ble Supreme Court of India in the judgment aforesaid has held as under:-

The present appeal is directed against an order passed by National Consumer Disputes Redressal Commission (for short, ‘NCDRC’) on 26.05.2010 affirming the order passed by the District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission, dismissing the complaint filed by the appellant inter alia on the ground that the appellant was not a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 (for short, ‘the Act’).

 Learned counsel for the appellant relies upon a receipt dated 27.08.2004 of payment of Rs.266/- as service charge to the District Women Hospital, Ghazipur. It is admitted by learned counsel for the appellant that no consideration was paid to the doctors who were in fact the Government servants.

In terms of Section 2(1)(d)(ii) of the Act, a consumer is the one who hires or avails of any services for a ‘consideration’ which has been paid or promised or partly paid or partly promised.

Since the admitted case of the appellant is that the appellant has not paid any consideration for availing the services of the respondents - doctors and the nurses, she would not be covered under the definition of consumer to avail the remedies under the Act. In fact, in a common written statement filed, an objection was raised that the appellant should file a suit in a competent Civil Court by depositing proper court fee and not in Consumer Court as the suit is not maintainable before the Consumer Court.

Learned counsel for the appellant relies upon a judgment of this Court reported in (1995) 6 SCC 651 titled “Indian Medical Association Vs. V.P. Shantha & Ors.” to contend that payment for service availed is not a necessary ingredient to file a complaint under the Act. However, we find that the said argument is not tenable in view of the following findings recorded:-

“45. In respect of the hospitals/nursing homes (government and non-government) falling in category (i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) (o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).”

A reading of the above para shows that a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the Hospital does not fall within the ambit of 2(1)(0) of the Act being free of charge, the same service cannot be treated as service under Section 2(1)(0) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. It was thus concluded that the services rendered by employee-medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(0) of the Act.

In view thereof, we do not find any merits in the present appeal and the same is dismissed.

Pending application(s), if any, also stand disposed of.

 

………..…………J.

[HEMANT GUPTA]

 

 ……………………………J.

 [V. RAMASUBRAMANIAN]

New Delhi:

7th December, 2021”

 

                The ratio of the law settled in the aforesaid judgment of the Hon'ble Apex Court is squarely applicable to the facts and circumstances of the case in hand. In view of the ratio of law settled by the Hon’ble Apex Court in the judgment aforesaid, we have no hesitation to conclude that the services rendered by the hospital and the doctors who are governments servants to the complainant would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(0) of the Act. We are, therefore, of the considered view that the complaint filed by the complainant is not maintainable qua the hospital and the doctors of the hospital before this Commission.

8.             In view of the above discussion, the present complaint is dismissed with no order as to costs. However, the complainant is at liberty to file a civil suit before the competent court of jurisdiction.  The complainant may take advantage of the ruling of the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of time spent before this Commission. 

8.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 13/01/2022
	Sd/- (RAJAN DEWAN) PRESIDENT   Sd/-
	(B.M.SHARMA) MEMBER