Date of filing:- 05/09/2014
Date of Order:- 15/03/2017
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complainant No. 21 of 2014.
Prafulla Padhan, aged about 33yrs S/o-Trilochan Padhan R/o-piplipali P.s.Barpali Dist-Bargarh. ..... ..... ..... Complainant.
-: V e r s u s :-
Purohit General Hospital & Reaserch centre, Bargarh represented through Dr.Rama Krishna Purohit, Director, At-Shakti Nagar, N.H.6, Bargarh P.s/Dist-Bargarh.
Dr.Prafulla Kumar Patra, C/o- The Child, Bargarh, At.Bandutikra Chowk, Bargarh, P.o/P.S/Dist- B a r g a r h.
..... ..... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri S.K. Naik, Advocate with other Advocates.
For the Opposite Parties :- Sri D.Mishra, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Dt.15/03/2017. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President.
Brief fact of the Case:-
The case of the complainant is that on Date.04.08.2013 he brought his six months pregnant wife to the Opposite Party No.1(one) hospital with a complain of severe pain in her womb, and on the advice of the Opposite Party No.1(one) she was admitted therein for treatment wherein she was being treated from the very beginning of her pregnancy.
Immediately there after the allegation of the complainant is that the Opposite Party No.1(one) did not pay his wife proper attention how ever on his request the Opposite Party No.1(one) being angry sent one lady nurse to take care of her and on the next date i.e on Dt. 05.08.2013 at 11.57. she gave birth to a male child normally. The child was born being pre-matured having a lot of complication with him consequent upon his premature birth associated with very low weight of 1.3.k.g for which he was to remain admitted for more than one month till date.18.09.2013.along with his mother..As such as per the averment made by the complainant many types of treatment were administered on him to save his life and other health condition.
During these period of treatment the Opposite Party No.2(two), who is a pediatrician was treating the baby and during the course of such treatment he was kept in warmer and also oxygen therapy along with other many types of treatment was given and after the health condition of both the mother and the child was stabled they were discharged from the hospital on Date.18.09.2013.
Further case of the complainant is that subsequently there after seeing the activities of the baby, he could find that some problem might be there in the eye of his son and intimated the same to the Opposite Party No.2(two), but both of them did not pay attention to his complain still then he continued his treatment with the same Opposite Party No.2(two) regularly.
Again in furtherance to his case, he took his said child to one Dr. Rout an eye specialist and there he could know that the eye sight of his son has got some disorder there after he took him to L.V.Prasad Eye Institute Bhubaneswar for higher treatment on Date.22.04.2014. Then again took him to Dr. P.S. Hardia of an Eye Institute of Indore on Dt. 28.04.2014. And as per his complaint both of the said institute opined that his son was affected by an eye disease called R.O.P. consequent upon the oxygen therapy administered on him for which special attention should have been taken for prevention of the affect of oxygen therapy.
Hence his claim over the o.ps is that due to their negligence his son has developed with the disease called R.O.P and as such both of them are liable for compensation amounting to Rs 15,0,000/-(Rupees fifteen lakhs )only along with his expenditure incurred during the stay at the Opposite Parties hospital amounting to Rs.2,00,000/-(Rupees two lakhs)only. And in his support has filed some documents relating to the treatment under gone in the o.p.no-1 hospital and the treatment undertaken by the Opposite Party No.2(two) in his clinic namely The Child situated at- Bandutikra of Bargarh and some documents of the Dr.Hadia and L.V.Prasad Eye Institute.
Having gone through the pleading and the documents filed by the complainant and on hearing his advocate the Forum was pleased to admit the case and on being noticed the Opposite Parties appeared before the Forum and filed their version admitting the fact to the extent of the admission of the wife of the complainant on Dt. 04.08.2013 and her normal delivery of a male child, but have denied all other allegation of the complainant completely.
Rather in their version the Opposite Parties have categorically denied the allegation that on the day of admission in their hospital the Opposite Party No.1(one), he did not pay any attention and being told by the complainant, he got angry and told him to take his wife some where else .on the other hand seeing the serious condition of his wife the Opposite Party No.1(one) advised him to get her admitted in his hospital and accordingly she was admitted and immediate attention was given as a result of which she gave delivery to one male child normally on the next day i.e on Dt. 05.08.2013.
Further in their reply they have stated that special attention was given to her for which the Opposite Party No.1(one) and another Dr J.G.Sharma was also present to assist him to give a better treatment as a result of which even in spite of her serious condition she gave birth to the male child normally.
In furtherance to his averment made in their version, when the said child was born he was having a lot of problem with him like hypoxia, in the form of peripheral cyanosis tachypoenia, tachycardia and grunting so the Opposite Party No.2(two) under took all sorts of care and caution to save the life,limbs and health condition of the child as he was born premature,with a very low weight accompanied by several other said problem and also has explained the condition of the baby to the complainant and asked him repeatedly to take the child to some other higher hospital as he is a gynecologist but the complainant denied to take him any where else and insisted him to treat his baby and said to have depended on God.
There after the Opposite Party No.2(two) who is a pediatrician started treating the baby with utmost care and caution to safe the child and in the process as the condition of the Baby was very serious due to all aforesaid disease associated with a very low weight of 1.3.k.g only, he administered oxygen therapy with the consent of the complainant and during the course of such treatment he has taken all possible precaution with the use of pulse oximetre to monitor oxygen saturation and many other type of treatment ultimately the life and all the limbs of the baby was saved and when the health condition of both mother and child was found to be stable they were discharged on Dt. 16.09.2013. Further when the complainant complained about the eye sight problem of the baby the Opposite Party No.2(two) advised him to take his baby to an eye specialist And denied to have neglected in treating the baby in any manner rather he has taken all possible measure and precaution in giving oxygen therapy and also denied to have any knowledge of the averments made by the complainant that he had taken his son to different famous eye hospital as mentioned in his complaint or their opinion as regards the eye sight problem of the child and both o.p.s have denied to have acted upon in their treatment being negligent in any form even at the time of giving oxygen therapy and also have denied the allegation of the dieses called R.O.P. has occurred to their baby due to oxygen therapy as no proper precaution was taken , at the same time have opined in their version that such disease if at all has developed then it might be due to several other reason because during oxygen therapy he has taken all sorts of precaution to save the life and over all limb and other health condition of the baby and till the baby was discharged, his overall condition was stable, hence they have never neglected in performing their duty towards the baby as alleged and are not liable to pay any compensation and have prayed for dismissal of the case.
On perusal of the pleadings, documents of the parties the following points for adjudication has come up.
Whether there is any negligence committed on the parts of the Opposite Parties in treating the new born baby of the Complainant.
Whether the complainant is entitle for compensation.
While dealing with the 1st point for determination as to whether there is any negligence on the part of the Opposite Parties in giving proper treatment to the new born baby, we preferred to take of the evidence adduced by the complainant in the form of affidavit and the cross examination made by the advocate for the Opposite Parties, and it came to our notice that he has admitted that the Opposite Party No.1(one) has not asked him to take his wife some where else being angry as alleged in his complaint, he has admitted that his son was born in six months, admitted that oxygen therapy was necessary for his survival,he has also admitted that there is no children unit for Dr. Patra (Opposite Party No.2(two)) the pediatrician in the hospital of the Opposite Party No.1(one). He has admitted that both Opposite Parties are not eye specialist, he has also admitted that he has got no documents in support of his statement and allegation in the complaint that he had taken his son to different famous hospital such as L.V. Prasad, Bhubaneswar and Dr.Hatia’s Eye Hospital Indore and the doctors told him regarding the desease called R.O.P in the eyes of his son has occurred due to oxygen therapy and lack of proper care during the said treatment as such in our observation in the absence of such written opinion it ought to be discarded also has admitted that there are eight reasons for causing R.O.P. and also has admitted that premature birth with low weight is one of the reason of such disease,very important part of all his admission is that he has categorically admitted that utmost care was being taken during oxygen therapy with many other treatment.
Apart from the above analysis and going through the pleading of the complainant it is observed that he had got reliance on the Opposite Parties as such he had been treating his wife from the date of her conception and as such his allegation in his pleading that after his wife being admitted In the hospital of the Opposite Party, he did not pay proper attention and on his repeated request a lady nurse was deputed to look after her, seems to be after thought to make out a case and also it is clear from his pleading that due to the serious complicacy of his baby having being premature associated with many other complicacy, both of the Opposite Parties have repeatedly given him option to shift his son to some higher hospital for better treatment but the complainant has avoided all the time and has persueded the Opposite Parties to continue with their treatment raising hand for God and again as per his contention many types of treatment had been given to his son with utmost care which he has admitted in his evidence also before the Forum in his cross examination and also has admitted to have given his consent for all sorts of treatments those were being taken of for the survival of his child and in the process he has admitted that oxygen therapy was most necessary and has admitted to have taken utmost care while such therapy was being administered, in his cross examination and it is pertinent to mention here that he has also admitted that he was explained by the Opposite Parties regarding the serious condition and risk factor of it’s treatment and was given option for shifting him to some higher facilitated hospital but has denied saying that God would take care and insisted them to treat him. But later on the counsel for the complainant has argued and has filed his written notes of argument wherein he has interpreted the same version of the Doctor thus ‘as admittedly though given them option to shift their son to some higher hospital for better treatment but has not told them strictly’ which does not justify the allegation of negligence rather the complainant was reluctant to shift his son. Further it reveals from the pleading of the complainant that from the very beginning he has made allegation of negligence on the part of the Opposite Party No.1(one) by contending therein that after the admission of his wife he did not take proper care and on his repeated request being annoyed with him asked him to shift his wife to some where else and sent a lady nurse to her care later on to which in his cross examination has denied ,which is self contradictory with his statement in his evidence before the forum which creates a clould of doubt in our mind regarding the allegation. Further it came to our notice from the prescription of Dr Patra the Opposite Party No.2(two) filed by the complainant where in the name of the clinic is called “the child”, to which the complainant has suppressed and has merged him with the Opposite Party No.1(one), which also creates a doubt in our mind regarding the attitude of the Complainant.
In furtherance to our observation, in para No-19(nineteen) and No.20(twenty) of the complaint, the contents made therein respectively as the complainant became hopeless and frustrated & finding no other way at last reported the same to the Opposite Parties in the month of May-2014 to which they tried to subside and gave false assurance to find out a way very shortly and avoided on different pretext. Further at last in the last week of August-2014 the complainant requested the Opposite Parties to find out a way urgently so that his son will able to see, to which the Opposite Parties did not listen hence this petition, in scrutinizing the same we did not find any fairness in such an approach as have been mentioned in the complaint in the earlier paragraphs that due to the negligence of the Opposite Parties his son has been affected by the said R.O.P. And if it is a fact then again what best could be done by the Opposite Parties again at such a stage what best possible way was there for which he was expecting from them and on their denial the cause of action arose for filing this case,which act of the complainant & the reply of the Opposite Parties as alleged could not not be an occasion for cause of action to file the case especially as per the case of the complainant by the time when he approached the Opposite Parties at that time every possible acts of either parties is already over and the Opposite Parties have got nothing to do with any more as has been stated by the complainant that he has already approached the higher facilitated hospital like L.V.Prasad, Bhubaneswar and Dr Hartia of an eye institute, Indore and there already he had got negative reply as per his statement. So in view of such circumstances we do not accept his such plea.
But on the contrary while arguing out his case the counsel for the Complainant has turn down all such statements to be not considerable and has tried to prove his case as that of sere negligence of the Opposite Parties in giving oxygen therapy on their part and has reffered to a voluminous medical journal along with citation of different higher courts including the decision of the Apex court of the country V.Krishna Kumar-Vrs-State of Tamilnadu and Orissa. Reported in jt 2015(6) SC. & many other references but having gone through all through such references and taking the fact and circumstances of the case in hand ,in our humble opinion those references are not applicable to the present case.
On the contrary the advocate for the opposite parties has also vehemently objected to the allegation of the complainant with regard to the negligence in treating his son and also has strongly denied to his allegation not to have taken care and proper precaution while treating him with oxygen therapy, rather he has strongly defended both the Opposite Parties by way of his oral and written notes of arguments that utmost care and caution has been taken while treating the child of the complainant at the time of normal therapy and oxygen therapy as well,as the details of which he has mentioned in his version. And he has argued in the favor of the Opposite Parties and has submitted in his both form of arguments that if at all the child has developed with the desease called R.O.P. several other factors as mentioned in his above noted version might be the reason for such occurance, also to which the complainant has agreed in his cross examination part of evidence before the forum. Further more he has submitted before the forum that no documents or opinion of any expert as alleged by the complainant have been filed and in the absence of that it can not be ascertained as, if the baby has developed with said disease due to the negligence of the Opposite Parties in any manner and also argued that the advocate for the complainant has gone beyond his pleading and hence are to be over-looked and prayed to discard such version and in this context he has filed decision of the Honorable National Commission ‘’reported in 2007 STPL(CL)496 NC to the affect that the affect of oxygen therapy can’t be the only cause of R.O.P. and also has claimed eight types of reason might be the cause of occurance of R.O.P to which the complainant has also admitted to have knowledge of the same and has denied the allegation of not to have taken proper caution while giving oxygen therapy to safe guard the eye sight of the child and has claimed very firmly that utmost care and caution have been taken to which the complainant has also agreed in his cross examination part of evidence before the forum saying many other type of treatment was also given to the child, and also filed a catena of judgement of different higher court in his support of argument that the complainant can not go beyond his pleading that the physician should have verified the eyesight of the child after birth saying as beyond his pleading basing on Or.6, R-1& 2, C.P.C saying thus’ the settled legal position is that the court or tribunal is not permitted to decide a case going out of pleading of the parties nor the evidence led non –existing plea is permitted to be taken in to consideration, and in it’s support has filed some reported decision of the Honorable Supreme court reported I A.I.R 2009 SC1103(para 8to 10),,2013OLRSC,848,para-7 at page852 and many other decision.
So therefore having gone through all the relevant portion of such citation and the documents filed by both the parties we are of the view that no negligence in any form has been committed by the opposite parties even at the time of oxygen therapy was administered on him as such in our view no negligence has been committed by the opposite parties in treating as alleged by the complainant hence our view s goes in favor of the opposite parties , accordingly the 1’st point of consideration is answered.
Secondly regarding the point, whether the complainant is entitled for compensation, in view of the above facts and circumstances of the case and as we have already given our observation & views that the Opposite Parties are not negligent in giving treatment to the son of the complainant in any manner, the question of compensation is also answered accordingly, hence he is not entitled for any compensation. Hence ordered as follows.
O R D E R
Hence as the case of the complainant is devoid of any merit is hereby dismissed against the opposite parties and the case is disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, ( Sri Krishna Prasad Mishra)
President.
(Sri Pradeep Kumar Dash)
M e m b e r.
