State Consumer Disputes Redressal Commission
Sevayatan Hospital Through Manging ... vs Smt. Sonal Metha W/O Vikas Metha on 2 January, 2018
Daily Order BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1 FIRST APPEAL NO: 179/2017 Sevayatan Hospital, Ajmer Road, Sodala, Jaipur. Through Manager/Director & ors. Vs. Smt.Sonal Mehta w.o Vikas Mehta r/o 10 Mahadev Nagar, Gandhi Path, Vaishali Nagar, Jaipur & ors. FIRST APPEAL NO: 157/2017 Smt.Sonal Mehta w.o Vikas Mehta r/o 10 Mahadev Nagar, Gandhi Path, Vaishali Nagar, Jaipur Vs. Sevayatan Hospital, Ajmer Road, Sodala, Jaipur. Through Manager/Director & ors. Date of Order 2.1.2018 Before: Hon'ble Mrs. Justice Nisha Gupta- President 2 Mr. U.K.Pradhan counsel for the Sevayatan Hospital Mr.J.P.Sharma counsel for the complainant Sonal Mehta BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):
Both these appeals are preferred against the single order hence, are decided by this common order.
The Forum below has allowed compensation and cost of proceedings in favour of the consumer Sonal Mehta.
The facts of the case are that the complainant was under the treatment of Dr.Vinay Suren who is proprietor of Sevayatan Hospital from the initiation of pregnancy. On 17.1.2007 she admitted in the hospital at 11.20 p.m. On 18.1.2007 the Dr.Vinay Suren left the patient unattended and went to Ajmer at about 10.00 a.m. Thereafter the patient was not taken care and even the fetus was not monitored and at about 11.25 a.m. she delivered a male child which was died only after five minutes. During labour the heart beat of the fetus was not monitored with fetal megnitor even the 3 sonography was not done. The cord was around the neck of child and he died due to asphyxia. Even the sonography machine and fetus monitoring machine were not available in the hospital. The further contention of the complainant was that Dr.Vinay Suren is not specialist in Gynae & Obstt. She is only MBBS doctor but she represents herself as specialist in the above subject which is unfair trade practice and claim for compensation was filed.
Per contra the contention of the respondents was that the patient was left in the hands of competent doctor Dr. Rama Sabu who is specialist in Gynae & Obstt. and child specialist was also there. The delivery was normal and it was a mere accident that the child has died . All precautions were taken to save the child. The heart beat of the fetus was monitored through stethoscope and through fetal megnitor also and there is no negligence on the part of the doctor or the hospital. It has been further contended that the complainant is even not a consumer as the services were provided free of cost and Dr.Vinay Suren was authorized to perform treatment as regard to Gynaecologist and Obstetrics.
4The contention of the appellant hospital is that they are not negligent hence the claim should have been dismissed.
Per contra the contention of the consumer is that the Forum below has rightly held the appellants negligent and prayed for enhancement of compensation as well as a direction to the effect that Dr. Vinay Suren should not represent herself as specialist in Gynae & Obstt.
Heard the counsel for the parties and perused the impugned judgment as well as original record of the case. During appeal documents were also submitted which were also looked in. The hospital has also submitted written arguments.
The first contention of the appellant hospital is that complainant is not a consumer but no objection to this effect is ever taken in reply to the main complaint and even it is not the contention of the hospital that treatment was given free of cost and there is no endorsement of free on the prescription prepared by the hospital. I is not the case of the hospital that it is a charitable hospital. Hence, this contention has no legs that 5 the complainant is not a consumer and the Forum below has rightly held so.
The other contention of the appellant hospital is that Dr.Vinay Suren has undergone training in Gynaecology and Obstetrics and she was specialist in that and referred Anx. A 9. The bare perusal of Ex. A 9 clearly shows that Dr.Vinay Suren was under taken training under rule 4 of the Medical Termination of Pregnancy Rules, 1972 and she was designated as registered Medical Practitioner under the Act and she cannot be said to be specialist in the same stream and today the appellant hospital has submitted a letter written by Rajasthan Medical Council to Additional Police Officer dated 13.1.2010 in which it has been made clear that MBBS doctor could work in Gynaecology and Obstetrics but she cannot say herself to be an specialist and it has been made clear that as per Medical Council of India (Professional conduct Etiquette & Ethics) Regulation 2002 chapter 7 para 7.20 a Physician shall not claim to be specialist unless he has special qualification in that branch and further it has been made clear that in MBBS studies there are number of subjects and there is no need to write Gynaecology and Obstetrics separately. In view of the above it 6 is more than clear that Dr.Vinay Suren was only MBBS doctor having training in Gynaecology and Obstetrics as specified in rule 4 of the Medical Termination of Pregnancy Rules and as per the communication of Rajasthan Medical Council, Jaipur dated 13.1.2010 she was not authorized to show herself as specialist in the field of Gynaecology and Obstetrics. Inspite of this on the prescription of Sevayatan Hospital she has specifically mentioned Gynaecology and Obstetrics which is prohibited as per the communication of Rajasthan Medical Council and it can be concluded that Dr.Vinay Suren is guilty of unfair trade practice as she has represent herself as specialist in the subject. The mentioning of Gynaecology and Obstetrics on the prescription gives an impression to the patient that she is specialist in the same whereas she is not.
The facts of the case goes to show that the patient complainant admitted in the hospital on 17.1.2007 at 11.30 p.m. She was under labour pains when the doctor left her in the hands of other doctors as claimed by the hospital. The contention of the hospital is that she was left under the charge of Dr. Rama Sabu but no affidavit of Dr. Rama Sabu is submitted. Further more on the prescription of Sevayatan 7 Hospital Ex. 1 and other prescriptions there is no narration of the fact that Dr. Rama Sabu is working in the Sevayatan Hospital. No documentary evidence has been submitted to show that at the relevant time Dr. Rama Sabu was working in Savayatan Hospital and complainant was left in safe hands.
The contention of the complainant is that as fetus has not been monitored the heart beat decreased. The cord was around the neck of the fetus and due to pressure the child died.
The contention of the hospital by way of affidavit of Dr. Vinay Suren is that the fetus was monitored through Fetal Megnitor but no such report is submitted hence, it can safely be concluded that affidavit of Dr.Vinay Suren is false on this fact. During the course of arguments it has been stressed that through dropller test the heart beat was monitored but even report of dropller test has not been submitted which shows that the hospital is arguing in air only. It is also admitted that on the relevant date no sonography was conducted and even sonography machine was not available with the hospital as it was seized and complainant has submitted Ex. 23 by which registration of sonography was suspended.
8Apart from it the complainant has relied upon the enquiry report of Joint Director, Medical & Health alongwith Dy.Director and other doctors of Gynaecology , Child and Chief Medical & Health Officer, Jaipur where it has been opined that recording of heart beat was essential and if had there been fetal megnitor the heart beat should be ascertained. Further the Dy.Director, Medical & Health was of the opinion that Dr.Vinay Suren is responsible for the death of the child. Ex. 16 the enquiry report by Professor & Head, Department of Gynaecology and Obstetrics & Superintendent, Zanana Hospital alongwith other members has given the conclusion that prima facie fault lies with concerned hospital since a good USG by a specialist could have accurately diagnosed "Cord around neck". Further it has also been concluded in Ex. 16 that there was lack of electronic foetal monitoring facility which could have tackled the catastrophy. It is solely within the purview of hospital management. Rajasthan Medical Council have also given the opinion that the doctors were careless and vide Anx. 24 Dr. Vinay Suren was restricted from the practice for a period of six months. Medical Council of India has also held Dr.Vinay Suren guilty of medical negligence and professional misconduct. Medical Council of 9 India has also issued notice to the concerned doctor that why punishment should not be enhanced.
The appellant hospital has submitted Anx. A 37 where the Medical Board was of the opinion that fetal monitoring during antenatal period and during labour is recommended. If fetal distress is detected in time than timely intervention by caesarian section may improve outcome. Anx. A 34 the information given by Principal & Head of Department & Superintendent of Zanana Hospital to Station House Officer, Sodala shows that sonography could detect the situation of cord around the neck whereas no documentary evidence has been submitted by the hospital which could show that fetal was monitored.
Per contra the indoor ticket Anx. A 31 submitted by the hospital clearly shows that heart beat was monitored only upto 8.30 a.m. which shows that Dr.Vinay Suren left the patient unattended and thereafter fetus distress was not monitored, heart beat of the child was decreased and ultimately he died and as per opinion of the Medical Board the cause of death was asphyxia.
10The contention of the hospital is that as per consent letter Ex. A 29 the patient's husband has consented to have the services of another doctor in case Dr. Vinay Suren was not available. This argument is very unfortunate on the part of the hospital. Admittedly the complainant was under the treatment and supervision of Dr.Vinay Suren from inception of her pregnancy. She was admitted in the hospital on the night of 17.1.2007. She was under labour pains inspite of this she was left unattended on 18.1.2007 and due to casual manner of treating the patient she lost her first male child. Vide Anx. A 29 the patient has agreed to have the services of other doctor in absence of Dr.Vinay Suren but this cannot be given shelter to the negligent doctor who has left the patient on the mercy of untrained staff.
The hospital has submitted Anx. A 39 the statement of the assets held by the hospital and tried to show that they are having dropller machine. Be that may be the case when there is no dropller report on the record and even there is no contention of the hospital that fetus was monitored through dropller. This contention has no bearing on the present case.
11The hospital has relied upon the indoor ticket Ex. R 15 and contention of the counsel was that condition of the patient was normal and expected date of delivery was on 16.1.2007 and it was a case of normal delivery. Admittedly the indoor ticket was prepared at the time of admission of the patient i.e. on 17.1.2007 at 11.20 p.m. but the history of the fetus shows that till 8.30 a.m. only heart beat was monitored and it may be noted that on 18.1.2007 from 6.00 a.m. the heart beat was monitored hourly and after 8.00 a.m. it was monitored half hourly but thereafter abruptly there is no monitoring of the heart beat which resulted into death of the child. Hence, in view of the above the facts of the case goes to show only one conclusion and i.e. negligence on the part of the appellant hospital and doctor.
The counsel for the hospital submitted various medical literature but no argument has been raised as regard to this literature and even nothing has been made out that how this literature helps them.
The appellant hospital has relied upon the judgment passed by the National Commission in Revision Petition No. 12 1971/2007 S.Sujata Vs. General Manager, Southern Railway where no negligence was found on the part of the respondents as all care and precautions were taken during the labour and later to save the life of the petitioner but here in the present case during labour no precautions were taken and the contention of the hospital is that after delivery of the child they have taken steps to save the life of the child for about half an hour but this contention is false on the face of it as the child has died only after five minutes of delivery i.e. on 11.30 a.m. Further reliance has been placed on the judgment passed by the Hyderabad State Commission in First Appeal No. 196/2005 Nalgonda Vs. Dr.A.Prabhakar where the cord was around the neck but it was made clear that all corrective measures were given by blood transfusion and injections. Here in the present case there is no evidence to show that any precautions were taken by the hospital.
The hospital has further relied upon III (2005) CPJ 9 (SC) Dr. Jacob Mathew Vs. State of Punjab & ors. where the apex court has held as under:
13" The test is the standard of the ordinary skilled man exercising and professing to have that special skill.... A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
There is no dispute about the above preposition but here in the present case the hospital and the concerned doctor has not exercised the ordinary skill of the profession.
Further reliance has been placed on 2009 NCJ 193 (SC) Martin F.D'souza Vs. Mohd.Ishfaq where the case was of error of judgment which are not the facts of the present case. Here in the present case the doctor and the hospital were grossly negligent by leaving the patient in the hands of unqualified persons and even minimum standard of monitoring were not observed.
Further reliance has been placed on 2010 NCJ 449 (SC) Kusum Sharma Vs. Batra Hospital where the Hon'ble Supreme Court has held that one professional doctor cannot be held negligent merely because his conclusion differs from that of 14 other professional doctor which are not the facts of the present case hence, could not help the hospital.
Further reliance has been placed on 2017 NCJ 400 (NC) Garlapati Kameshwara Rao Vs. Kinnera Super Speciality Hospital where no negligence was proved by doctor and nursing staff which is not the case here.
Hence, in view of the above the appeal of the hospital and doctor is totally meritless and liable to be rejected.
The contention of the consumer is that she suffered mental, physical as well as financial loss. She lost her first child and that too male child hence, compensation should have been enhanced and looking at the negligence of the hospital punitive damages should have been awarded. The contention of the complainant that she asked for Rs. 15 lakhs as compensation which should have been awarded. The hospital has opposed the same.
A bare perusal of the complaint goes to show that Rs. 10 lakhs were asked as compensation and Rs. 5 lakhs are 15 asked for mental agony and physical pain and the Forum below has fairly allowed Rs. 8 lakhs for physical pain and Rs. 3lakhs for mental agony and there seems to be no ground for enhancement of compensation. Further more there is no pleading of the consumer which could justify the imposition of punitive damages.
The complainant has further asked that u/s 14 (1) (f) of the C.P. Act the unfair trade practice of showing Dr. Vinay Suren as specialist should be discontinued.
The contention of the hospital and doctor is that on the prescription no where it has been mentioned that Dr. Vinay Suren is specialist in Gynaecology and Obstetrics. A bare perusal of prescription Ex. 1 shows that below the name of Dr. Vinay Suren there is mentioning of "Gynae & Obst." and it is proved that Dr. Vinay Suren is not specialist in Gynaecology and Obstetrics and communication of Rajasthan Medical Council dated 13.1.2010 which is already been considered made it clear that MBBS doctor should not write only one subject i.e. Gynaecology and Obstetrics and a physician cannot claim herself to be a specialist. The composite reading 16 of above goes to show that mentioning of Gynae. & Obst. on Ex. 1 could mislead the patient that Dr. Vinay Suren is specialist in Gynaecology and Obstetrics. Hence, it is directed that Dr. Vinay Suren and hospital should not write Gynae. & Obst. on her prescriptions or any medical record as it could mislead the patients.
In view of the above the appeal of the hospital is dismissed and the appeal of the consumer is partly allowed and it is directed that Dr. Vinay Suren and hospital should refraining from writing or showing "Gynae. & Obst." with the name of Dr. Vinay Suren on the prescriptions or any other medical record.
(Nisha Gupta) President nm