Haryana

Kurukshetra

126/2015

Piyus - Complainant(s)

Versus

Varun Clinic - Opp.Party(s)

S.P.Sharma

26 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION KURUKSHETRA.

Consumer Complaint No.126 OF 2015

Date of Instt.:10.06.2015

Date of Decision:26.02.2021

 

1.Piyush aged about 7 years (minor) son of Sh.Rinku.

2.Lattika aged about 11 months(minor) d/o Sh.Rinku, adopted daughter of Duli chand son of Sh.Jaman Lal.

                   Both resident of Sadar Bazar, Karnal now resident of Gandhi Nagar, Kurukshetra through their grand maternal grandmother (Nani)Sheela Devi wd/o  Sh.Duli Chand son of Sh.Jaman Lal, resident of Gandhi Nagar, Kurukshetra, being guardian and  next friend.                                                                                

                                                              …….Complainant.  

                                             Versus

 

1.Varun Clinic near Patta Sahab Gurudwara, Jhansa Road, Kurukshetra through its Proprietor/Owner Dr.Uma Gaur.

2.Dr.Uma Gaur, Varun  Clinic, near Patta Sahab Gurudwara, Jhansa Road, Kurukshetra.

3. Rinku son of Sh.Ram Sarup resident of Sadar Bazar, Karnal.

4. United India Insurance Co.Limited,  Railway Road, Kurukshetra, through its Branch Manager.

                ….…Opposite parties.

 

                Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                     

 

Present:     Sh.S.P.Sharma Advocate for the complainant.

                Sh.Rajan Chawla Advocate for the OP No.1 and 2.

                Sh.R.K.Singhal Advocate for OP no.4.

                OP No.3 ex parte.

 ORDER

              This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainant Piyush etc Varun Clinic etc.  - opposite parties.

 

2.             The brief facts of the complaint are that the OP No.2 is a G.A.M.S. Doctor and running the aforesaid clinic under the name and style of OP N.1.  and propagated in the area that she is competent doctor to do delivery and having every facility to meet out any emergency situation during delivery/treatment of the patient.  It is averred that the OP No.2 has left the agents to  Anita Rani (Dai) and others to mislead the poor patients like complainant. Mother of the complainant namely Babita aged 23 years was pregnant from the loins of OP no.3 and came to the hospital of OP No.2 for delivery on 23.6.2014.   She started pain at 10:30 AM on 23.06.2014 and said Anita came to her house  and took her  to the hospital of OP No.2. It is averred that on the same day at about 2/2:15AM, Babita delivered a female child in the hospital of OPs by normal delivery which was conducted by Op No.2. The delivery of the said Babita was conducted by OP No.2 negligently, carelessly and without adopting the proper normal delivery procedure/treatment protocol, due to which immediately after delivery, the bleed was started to her.  On asking of the complainant’s family including Duli Chand regarding bleeding, OP No.2 told that you should not worry and she would  cure and it is a normal bleeding and stated that she will give injection to her.  Condition of Babita started deteriorating but the OP No.2  took the case casually and no proper attention was given towards her. She could not diagnose the cause of ailment of  bleeding properly.  The  OP No.2 referred the patient  at 6:30/7 PM to Cygnus or the LNJP Hospital, Kurukshetra.  The complainants immediately shifted  her to LNJP Hospital, Kurukshetra  where doctor after seeing  declared her brought dead.  No treatment record was given by the OP No.2 relating to Babita patient.  She closed down her clinic immediately and went away.   OP No.2 was  a doctor in Ayurvedic Medicine and cannot practice in Allopathic. Moreover, she was not having any type of facilities required for delivery case and thus she treated Babita negligently and carelessly  due to which bleeding started and Babita died due to this negligence on the part of OP No.2. Thus, the complainants have filed the present complaint alleging deficiency in services on the part of the OPs and prayed for payment of compensation of Rs.15.00 lakhs alongwith litigation expenses.

 

3.             Notice of the complaint was given to the OPs. OP No.1 and 2 filed their joint written statement disputing the claim of the complainant.  It is submitted that the patient delivered a female baby. Suddenly patient’s started to bleed and her blood pressure also started to decrease. The patient has suffered postpartum hemorrhage for which the OP no.1 and 2 gave symptomatic treatment. The patient was given intravenous fluids to increase the blood pressure. But despite of all the efforts bleed could not be stopped  and patient’s blood pressure did not come back to normal, hence OP No.1 and 2 referred the patient to a higher centre for further management. Everything the OP No.1 and 2 has done was done diligently, prudently, with utmost due care and caution in treating the said patient. The OP No.1 and 2 cannot reply about Anita Rani for want of knowledge but as per OP No.2 is concerned, she is a GAMS doctor but she never claims all the facilities to deal with the delivery and  its  complications are available with her. The OP no.2  does only normal cases and refers the patient with any complicated problems.   It is averred that the patient died of natural death and there is no medical negligence on the part of OP No.1 and 2. While denying all other allegations made in the complaint, preliminary objections regarding maintainability,  and non joinder of the parties have been raised and prayed for dismissal of the complaint.

 

4.             OP NO.3 was duly served upon, but  the OP No.3 failed to appear and contest the present complaint. Therefore, OPNo.3 was proceeded against ex-parte.

 

5.              OP No.4 filed its written statement disputing the claim of the complainant. It is submitted that the complainant has not produced any opinion of the medical board and as such the present complaint is not maintainable at all and the same is liable to be dismissed. The Hon’ble Supreme Court has held that complaint against a medical professional is not maintainable unless and until, the negligence is proved by the medical board. It is submitted that there is no  medical negligence of OP no.2.  Moreover, no intimation was given by the complainants to the answering OP regarding treatment of Babita by OP no.2 and regarding the negligence, if any, on the part of the OP No.2. All other allegations made in the complaint have been denied and preliminary objections regarding maintainability, cause of action and mis joinder and non joinder of the parties have been raised. It is submitted that the complainant had not produced any opinion of the medical board and as such the present complaint is liable to be dismissed.  It is further submitted that there was no  negligence  on the part of the OP No.2. Moreover, no intimation was ever given by the complainants to the answering OP regarding the  treatment of Babita by OP No.2. Thus, it is prayed that the present complaint may kindly be dismissed.

 

6.             In this case  the complainants had moved an application on 11.10.2017   for giving directions to the CMO, LNJP, Hospital, Kurukshetra  for constituting the board of doctors for giving medical opinion regarding ascertaining the medical negligence of doctors but the said application was dismissed by this Commission vide order dated 10.11.2017. The complainants went in revision before the Hon’ble State Commission and the Hon’ble State Commission vide order dated 25.5.2018 was pleased to allow the said application of the complainants and thereafter as per directions of the Hon’ble State Commission,  opinion of the medical board was sought, who give its report dated 31.10.2019 which is marked “A”.

 

 

7.             The complainants in support of their case have filed affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-7 and closed their evidence.

 

8.             On the other hand, learned counsel for OP No.1 and 2 filed affidavit Ex.RW2/A in their evidence and closed the evidence.

 

9.             We have  heard the learned counsel for the parties and gone through the case file very carefully.

 

10.            Learned counsel for the complainant has argued that Smt. Babita mother of the complainant was belonging to a very poor family and she was taken by Smt.Anita Dai, to the hospital of OP No.2 on 23.6.2014 at 10:30 AM for delivery of child.  At 2.15 PM Babita delivered a female child.   Immediately after the delivery she suffered Postpartum hemorrhage (in short called as PPH) but the OP No.2 kept assuring the attendants of the Babita that the disease would be cured and need not worry. Learned counsel for the complainant has emphasized that at 3.00 PM, Babita’s. B.P. was 104/70 whereas at 4.00 PM her B.P. was 100/64 and not improving but she was not referred by OP No.2 to a higher centre so that her life could be saved. He has further argued that it is clear from Ex.P-2, mild bleeding started but even then despite repeated requests patient was not referred to the higher centre and ultimately when condition of the patient was deteriorated she was referred to LNJP and  this delay on the part of OP No.2 resulted into the death of patient Babita and thus OP No.1 and 2 have committed grave medical negligence in the treatment of Babita.  Learned counsel for the complainant has further argued that the alleged report of Medical Board is not as per actual position and same has been manipulated by the OP No.2 to save her skin from the compensation in this case. The learned counsel for the complainant has also argued that the OP No.2 is only a GAMS doctor and her hospital is not supported with life saving  management infrastructure to save the life of a patient. She was not transmitted blood in the emergency. He has also argued that as per report Ex.P-2 the patient was having 8.5Gm blood and when the blood transmission system or blood was not available, then OP No.2  should have refer the patient at the earliest stage of PPH. The learned counsel for the complainant has placed reliance on the law laid down in case  Dr. Sathy M.Pillay and another Vs. S.Sharma and Ors. 2018(1) Civil Court Cases , 247, Mrs. Anuja Chaudhary Vs. Shgivam Hospital and Research, decided on 18.3.2020 by Hon’ble National Commission.

 

11.            On the other hand, learned counsel for OP No.1 and 2 while reiterating the contentions made in the written statement has argued that after the birth of female child, when PPH started, the patient Babita was referred to LNJP Hospital immediately and the OP No.2 has not committed any type of medical negligence. He has argued that the Babita patient was referred to the higher centre immediately starting of PPH and she was not  taken to LNJP in time  because as per medical report the attendants  did not care to reach at the earliest to LNJP Hospital and thus no liability of any medical negligence can be fastened on the part of the OP No.1 and 2. He has also argued that the matter in question has been investigated by the Medical Board and as per report of medical board, no medical negligence is made out on the part of OP No.1 and 2. The Learned counsel for OP No.1 and 2 has further contended that  as per report of Medical board, there is no medical negligence on the part of OPs and no liability for medical negligence can be fastened on the part of OP No.1  and 2. It is also argued that Postmortem finding reveal that patient had infection of right side lung as  the right pleurae and lung found adherent. The patient was anemic with HB 8.5gm % only.

 

12.            After hearing the learned counsel for the parties, we are agreed with the arguments advanced on behalf of the complainants.  As per admitted case of both the parties, Babita patient was admitted by Anita Dai in the hospital of OP No.2 at Varun Clinic on 23.6.2014 at 10.30 AM.  At 2.15 PM Babita delivered a female child. As per the case of complainant, Babita started PPH immediately after the birth of female child.  The OP No.2 in para no.8 of factual matrix and medical facts, has admitted that suddenly patient’s started to bleed and her blood pressure also started to decrease.  The patient has suffered postpartum hemorrhage for which the respondent no.1 and 2 gave symptomatic treatment.  The patient was given intravenous fluids to increase the blood pressure.  A careful perusal of Ex.P-2 shows  that Babita’s B.P. was 104/70 whereas at 4.00PM her B.P. was 100/64 and not improving but she was not referred by OP No.2 to a higher centre so that her life could be saved. And mild bleeding started but the patient was not referred to the higher centre and thus it is proved that ultimately when condition of the patient was deteriorated she was referred to LNJP at 05:30 PM and  this delay on the part of OP No. 2. Perusal of  post mortem report Ex.P-5 shows that blood clots were present in vagina. But perusal of treatment  record Ex.P1, Ex.P-2 and Ex.P-3 shows that no such type of treatment was given by OP No.2 to the patient Babita, therefore, the bleeding i.e. PPH could not be controlled and she further committed grave negligence  not referring the patient to higher centre for its treatment.  She committed grave medical negligence firstly she had no life saving management in her hospital, secondly, she not provided the proper treatment in case of emergency and thirdly she failed to refer the patient at proper stage to the higher centre when the complication i.e.  BP of the patient at  3.00PM was 104/70 and OP No.2 only referred the patient to LNJP at 6.00PM.  Therefore, grave medical negligence is made out on the part of the OP No.2. 

 

13.            Regarding the medical negligence of the OP no.1 and 2, there is sufficient proof in document Ex.P-1 because she has not been referred to the higher center immediately. The medical board in its report has mentioned that the patient was anemic with HB 8gm % only. The patient had generalized pallor of organs. From the examination of her genitalia only positive finding was presence of clots (approximately 600ml).  The medical board has also observed that the committee cannot find the cause of shock, the shock may be due to septicemia due to infection or PPH or   both or any other reason.  When the medical board is not certain about the cause of death then the report of medical board cannot be believed  and we discard the same because it seems that the medical board has given such report in order to save their colleague doctors and it shows that Babita patient has died due to PPH  because  the immediate management of developing PPH is medical management and not surgery, that means it was the duty of OP No.2 to refer the patient to higher centre immediately, which has not been done by OP No.2. If  the patient does not respond to medical management, then surgery is required. Therefore, we are of the opinion that Babita patient died due to sole medical negligence of the OP No.2.

 

14.                          We are not agree with the contention of the learned counsel for the OP No.1 and 2 because  the OP No.2 had already committed grave negligence in not  referring the patient to the higher centre especially  when the patient’s BP at 3.00PM was 104/70 and  at 4.00PM  her BP was 100/64 and not improving and OP No.2 was not having any life saving system in her hospital. As discussed above, she has not given proper treatment to  control the PPH. Medical board has not considered the facts mentioned in Ex.P2 properly.  Therefore, report of Medical Board is not based on factual facts and cannot be believed at all.  Therefore, relying upon the authority Dr.Sathy M.Pillay and another’s case supra, wherein it is held “Medical negligence- Administration of Anesthesia- Rejection of evidence of medical expert- Consumer Forums/Courts are at liberty to reject evidence of medical expert on scrutinizing and evaluating relevant evidence and other circumstances in order to adjudicate  the appropriate standard of care required in cases of medical negligence arising from administration of anesthesia.” In Mrs. Anuja Chjaudhary’s case (Supra) Hon’ble National Commission has held that if bleeding does not stop in spite of treatment with uterotonics, other conservative interventions ( e.g. uterine massage), and external or internal pressure on the  uterus, surgical interventions should be initiated and blood transmission was required, but it has not been done by OP No.2 in this case. In this case Hon’ble National Commission has also held that “ the maternal outcome greatly depends upon the time decision, the surgical skill and the speed of performing the  surgery.  But in the case in hand, no timely decision has been taken by OP No.2 which ultimately resulted into  death of Babita.

 

                Therefore, relying upon the law laid down in the authorities given on behalf of the complainant, we accept the present complaint on the ground of medical negligence on the part of OP no.1 and 2.

 

15.            In these facts and circumstances of the case, we are of the considered view that OP no.1 and 2 have not treated the patient Babita properly and acted in a gross negligent manner by not providing proper treatment and failure on their part in referring the patient at the proper time to the higher centre. Hence, OP No.1 and 2 are deficient in providing the services to the complainant. Since, the OP No.1 and 2 are insured with OP No.4,  therefore, OP No.4 is also severally and jointly liable to be awarded amount to the complainant as per terms and conditions of the policy.

 

16.            Now, the question which arises for consideration is what should be the quantum of indemnification.  In the complaint, the complainants have demanded Rs.15,00,000/- as compensation on account of death of their mother Smt.Babita due to medical negligence on the part of the OP No.1 and 2. As the minor complainants have lost their mother in their early childhood, therefore, we are of the view that Rs.10,00,000/- would be just and proper compensation to the complainants.

 

17.            In view of the aforesaid discussion, we hereby allowed the  complaint against OP No.1,2 and 4 jointly and severally  and direct them in the following manner:

 

        i)      To pay Rs. 10,00,000 to the complainants.

        ii)      To pay Rs.20,000/- as compensation for mental agony and physical harassment suffered by the complainants alongwith litigation expenses.

                It is made clear that out of amount of Rs.10,00,000/-, Rs.4.00 lacs in the name of each minor complainants, be deposited in the shape of
FDRs with some nationalized bank and be released to them only after attaining majority. Remaining Rs.2.20,000/- lacs be given to  Sheela Devi , guardian of the minors for daily needs and requirements of the minors.

                        The OP No.1,2 and 4  are   further directed to make the compliance of this order within a  period of  45 days from the date of preparation of certified copy of this order, failing which the amount of Rs.10,00,000/- shall carry interest @ 6% per annum from the date of institution of the present complaint i.e. 10.06.2015 till its realization and the amount so  to be incurred as interest in that event, shall also be deposited in the shape of FDRs in the name of minors as mentioned above.  The complainants will be also at liberty to initiate proceedings under Section 25/27 of the Act against the OPs.  The complaint qua OP No.3 stands dismissed. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open commission:

Dt.: 26.02.2021                                              (Neelam Kashyap)                                                                               

                                                                          President.

 

 

(Issam Singh Sagwal),         (Neelam)       

 Member                              Member.