DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JHARSUGUDA

CONSUMER COMPLAINT CASE NO. 24 OF 2015

Chumki Baiga (28 Years),

W/O: Udhab Baiga,

R/O: Beheramal, Near Durga Mandir,

PO: Industrial Estate, 

PS/ Dist: Jharsuguda,Odisha……………….….………………..……………Complainant.

Versus

1. Rabindra Pradhan,

Proprietor of Samaleswari Hospital,

At: Beherapat Chhak, Bye-Pass Road, Ekatali,

PO: Industrial Estate, PS/Dist: Jharsuguda, Odisha.

2. Dr. Rohit Kumar Patel,

S/O: Late Harish Chandra Patel,

R/O: Beheramal (In front of Hotel Shankar),

PO: Industrial Estate, PS/Dist: Jharsuguda, Odisha.

3. Dr. Tapan Gadei (BHMS),

S/o: Not Known,

C/O Samaleswari Hospital,

At: Beheramal, Bye-Pass Road, Ekatali,

PO: Industrial Estate, PS/Dist: Jharsuguda, Odisha.……………..……..Opp. Parties.

1. C.D.M.O, D.H.H, Jharsuguda,

At: Hospital Campus, Mangal Bazar, Jharsuguda,

PO/PS/Dist: Jharsuguda, Odisha.

2. Superintendent,

V.S.S Medical College and Hospital, Burla,

At: V.S.S Medical College and Hospital Campus, Burla,

PO: Burla, Dist: Sambalpur,Odisha.

3. Managing Director,

Apollo Hospital Enterprise Ltd.,

At: Plot No.251, Sainik School Road, Unit-15,

Bhubaneswar, Dist: Khordha-751 005.

                                                                                                                                                      ….2….

                                                                         -2-

4. Dr. Surya Kanta Swain,

Department of Pediatrics & Neonatology,

Apollo Hospitals Enterprisers Ltd.,

At: Plot No.251, Sainik School Road, Unit-15,

Bhubaneswar, Dist: Khorda-751 005.

5. Dr. B.K. Meher, Radharaman Hospital,

At: Talatelenga Bazar, Purighat, Dist: Cuttack, Odisha.

6. S.S Beriha, Radharaman Hospital,

At: Talatelenga Bazar, Purighat,

 Dist: Cuttack, Odisha………………….……………….…Proforma  Opp. Parties.

Counsel for the Parties:-

For the Complainant                                       Sri Abdul Zalil, Adv. & Associates.

For the Opp. Party No.1 to 3                          Sri D.K. Jain, Adv &. Associates.

For the Proforma Opp. Party No.1 to 4          Self (Ex-Parte).

For the Proforma Opp. Party No.5 & 6          Sri H.M. Dhal, Adv. & Associates.

Date of Order: 10.04.2017

Present

                                                     1. Shri S.L. Behera, President.

                                                     2. Shri S.K. Ojha, Member.

                                                     3. Smt. A. Nanda, Member (W).

Shri S.K.Ojha, Member:- In brief, the complaint’s case is that, the complainant after being conceived in her womb has started getting treatment from the O.P.No.2 at the clinic of O.P.No.1 since dtd. 01.09.2013 and was visiting time to time.  On dtd. 02.04.2014 the O.P.No.,2 suggested the complainant for LSCS (Lower Segment Caesarean Section) for bringing out the new born baby from the womb of complainant for which she was charged Rs.7000/- only. At the time of performing operation the O.P.No.2 have not taken due care by not consulted any pediatrics rather taken assistance of O.P.No.3 who is a homeopathic practitioner.  After the delivery of the new born baby when he did not cry the O.Ps. advised the complainant for taking to the Proforma O.P.No.1 where they could not handled the situation and suggested to go to Proforma O.P.No.2 where it was again referred to the higher Hospital for better treatment.  The complainant move to the Proforma O.P.No.3 where the Proforma O.P.No.4 discovered a numbers inborn medical problems with the baby and was in very critical condition.  Immediately the said baby was given different diagnosis and medicines administered for clinical development of baby.  The complainant incurred expenditure of Rs.1,67,557/- only in the said treatment.  The O.P.No.2 has performed the medical operation in very negligent manner and neither followed a reasonable degree of skill nor a reasonable degree of care by bringing forcefully the baby child from the womb of the complainant by means of forcet which ultimately extended to damage of vital veins connected to the brain of child and discharged the complainant on the very next day i.e. 03.04.2014.  The baby was discharge from the Proforma O.P.No.4 on dt.15.04.2014 and admitted before the Proforma O.P.No.6 on next day.  The said new born baby survived till near about eight months and has expired on dtd. 29.11.2014. The complainant and her husband have incurred an expenditure of Rs.10,00,000/- only towards the medical treatment of the deceased son since taken his birth.  The complainant alleges gross negligent and deficiency in service on the part of O.Ps. and filed this case with supporting documents.         

The O.P No.1, 2 and 3 appeared and filed written version jointly after being noticed so also Proforma O.P.No.5 & 6 appeared through their counsels and filed their written version jointly where the Proforma O.P.No.1 to 4 neither appeared nor filed their written version and after being providing sufficient opportunities, stand ex-parte ultimately.

The O.P.No.1, 2 and 3 jointly submitted the facts of providing treatment to the complainant but denied all the allegations imposed by the complainant.  The O.P.No.2 further submitted that the complainant was taking routine checkup and was having no problems requiring any special medical advice.  The allegation of the complainant on performing LSCS to bring out the baby from womb is strongly denied rather the complainant delivered the child through Normal Vaginal Delivery (NVD)  of which she was charged Rs.7,000/- only otherwise there is charge of Rs.20,000/- only if any case of caesarian delivery.  The Expected Date of Delivery (EDD) was 11.05.2014 but the birth of baby taken place on 02.04.2014 which is pre-matured case. After the birth taken place when the child did not cry even after draining out excessive liquor amny and preliminary resuscitation i.e. oxygen inhalation and maintaining the warmth of baby by putting in baby warmer machine the baby was referred to DHH, Jharsuguda where there is a SNCU(Sick New Born Care Unit) in the state of oxygen inhalation in the vehicle along with the nursing home staffs.  Further the baby was shifted to VSS medical College and Hospital ,Burla and as per the advice of  doctorsm the baby was referred to SCB Medical College, Cuttack and further the complainant taken the baby to the Apollo Hospital, Bhubaneswar and so on Radha Raman Hospital, Sishu Bhawan.  The allegation of the complainant is totally false as there is no need to bring the child by means of any forcet (forcep) while at the time of any caesarian operation.  The forcep method has become outdated which the O.Ps did not have the said instrument in their hospital. The allegation is also false that any vital veins connected to the brain of child has damaged as there is no any medical report or any injury found.  The complainant was discharged on the next day of delivery taken place i.e. 03.04.2014 which was not possible when any caesarian operation would happened.  The O.Ps. have not committed any deficiency in service and have prayed for dismissal of case.

The matter was heard in length from both the sides and followed up the materials of the case record very minutely.  The complainant has filed a number of documents related to his treatment in various hospitals and/or pathological clinics.  The treatment started with the O.P.No.2 since dtd. 01.04.2013. The prescription dtd.13.02.2014 indicates the LMP was dtd. 04.08.2013 and the EDD was dtd.11.05.2014 but the birth of baby child taken place on dtd. 02.04.2014 which may be treated as pre-matured birth. The diagnostics dtd. 02.04.2014 reveals normal treatment as only three medicines were prescribed and the patient was discharged on the very next day from the hospital i.e. on dtd.03.04.2014.  The Discharge Report dtd.03.04.2014 issued by the O.P.No.1 clearly indicates in the column of “Operation Note” that “NVD with MLE Done”, “Operation done/ Treatment given” shows that “IVF, Inj.T.T, Inj.Duvadilan, Inj Xylocan, Inj.Epidosin, Inj.Xone-XP 1.125, Inj. Ranitin” so also the

column of “Course in Hospital” indicated “UN-EVENTFUL”.  The “DAMA Discharge Summary Draft” issued by Department of Pediatrics and Neonatology, Apollo Hospital, Bhubaneswar dtd. 15.04.2014 also mentioned the column of “Delivery” that “Normal Vaginal Delivery” and also mentioned that “Baby was delivered in a Nursing home at Jharsuguda and did not cry after birth Baby was brought here on day 2 in a very low condition for further management”.  The complainant has filed a copy of judgment of Hon’ble Supreme Court of India reported in AIR-2009 Supreme Court 2049 between Martin F. D’Souza Vrs. Mohd. Ishfaq, wherein a lot of matters were held such as ;

1. xxxx…Medical negligence- Proof- Choice of one reasonable course of treatment to other- Not negligence.
2. xxxx….Medical negligence-doctor prescribing new course of treatment as no known method was available – death of patient – doctor cannot be held negligent.
3. xxxx….Conviction of Doctor – negligence of Doctor must be gross negligence amounting to recklessness.
4. xxx….Complaint of hearing impairment due to overdose of antibiotic – complainant not only suffering from renal failure but also had urinary track infection and blood infection – Doctor considering extremely serious conditions prescribing high dose of antibiotic to save life of complainant – cannot be said to be negligent – more so , when complainant was non-cooperative and had continued to take antibiotic despite doctor’s advise to discontinue it- order awarding damages and compensation to complainant in dis regard to opinion of experts – liable to be set aside.
5. xxxx….Procedure for trial – Consumer Fora/ Criminal Court to seek opinion of expert doctor/ committee of doctors – notice to be issued only thereafter.

In deciding this case the Hon’ble Apex Court of India has further held that, “A medical practitioner is liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.  He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.  It is no enough to show that there is body of competent professional opinion which considered that the decisions of the accused professional was a wrong decision provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances”.  (para-41,43) .

So also further held that, “The standard of Care has to be judged in the light of knowledge available at the time of incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time”. ( para-44).

If we put light on the fact of case, then it is found that the said baby in question was born / delivered through Normal Vaginal Delivery (NVD) on dtd. 02.04.2014 while the Estimated Delivery Date (EDD) was dtd. 11.05.2014 i.e. near about more than one month before of the maturity or can say pre-maturity.  Generally, If a baby is born pre-matured then there are every chances of having few deficiencies related to not only physical but also mentally but it cannot be said that a matured child shall not have any deficiency in relation to physical or mental. In this case there is no any documentary evidence in support of proving that any caesarian operation had done or any advise of any doctor on caesarian operation rather the discharge report of O.P.No.1 (Sameleswari Hospital, Jharsuguda) and the Proforma O.P.No.3 and 4( Apollo Hospital, Bhubaneswar) clearly reveal that the delivery was done through  Normal Vaginal Delivery (NVD) but the complainant tells some different stories that the delivery was done through LSCS ( Lower Segment Caesarean Section) but fails to prove or file any supporting document regarding such operation.  It is also worth noting on the allegation of complainant regarding using of forcep method at the time of LSCS was done. As the instrument of forcep (forcet) is generally applied to bring out the baby forcefully from the womb of mother at the time of NVD, there is no need to use such instrument at the time of doing caesarean operation. Thus the submission of O.Ps. has established. 

            While deciding on the point of law as per the said decision cited above of Hon’ble Apex Court of India, the Apex Court has clearly held that, “A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another”.

            On the above observations and analysis there is no any merit found on both the points of facts and law on the part of complainant, hence this Hon’ble Forum dismiss the complaint petition with no costs to either of the parties.

Accordingly the case is disposed of.

Order pronounced in the open court today on this the 10^th  day of April’ 2017, copy of this order shall be communicated to the parties as per rule.

             I Agree,                              I Agree,

S.L.Behra. President                    A.Nanda, Sr.Member                       S.K.Ojha, Member

Dictated and corrected by me,

                                                                                         S.K.Ojha, Member