State Consumer Disputes Redressal Commission
Sushil vs Dr. Poonam Bawa on 24 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No.936 of 2013 Date of Institution: 19.12.2013 Date of Decision: 24.03.2014 Sushil son of Shri Bharat Lal, Resident of Village Sui, Tehsil Bawanikhera, District Bhiwani. Appellant Versus Dr. Poonam Bawa, Maternity Specialist, Malika Bawa, Maternity Nursing Home and Ultra Sound Centre, Jalan Nagar, Neham Gate, Bhiwani. Respondent (Opposite Party) CORAM: Honble Mr. Justice Nawab Singh, President. Mrs. Urvashi Agnihotri, Member. Present: Sh. M.P.S. Chandel, Advocate for appellant. Sh. Kuldeep Khandelwal, Advocate appearing for Sh. Amit Arora, Advocate for respondent. O R D E R
Justice Nawab Singh, President (ORAL):
Challenge in this appeal is to the order dated November 13th, 2013, passed by District Consumer Disputes Redressal Forum (for short District Forum), Bhiwani, whereby complaint bearing No.228 of 2010 filed by Sushil-complainant (appellant herein) alleging medical negligence and deficiency in service on the part of Dr. Poonam Bawa-opposite party (respondent herein), was dismissed.
2. Smt. Anita-wife of the appellant was admitted in Bawa Maternity and Nursing Home, Bhiwani, that is, the hospital of respondent on November 26th, 2009 at 8.20 A.M. with pregnancy of six months and 12 days in the stage of full dilate with the history of LPs since 6.00 A.M. She delivered a child at 8.56 A.M. It was a pre-mature delivery. She was discharged on November 27th, 2009.
3. The appellant-complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 alleging that at the time of delivery, the respondent-doctor told the appellant, his wife and other family members that child born was a male and since it was a premature delivery, he was to be kept in Incubator. The Medical Officer suggested that the child be taken to Dr. Verma Hospital, Bhiwani. On the advice of the Medical officer, the child was admitted in Vermas Hospital. He was informed by the Medical Officer on duty that the female child was very weak. The complainant was amazed to know that child born was female whereas he was informed by Bawa Maternity Nursing Home, that the child born was a male. D.N.A test was conducted in Civil Hospital, Bhiwani on the directions issued by the Deputy Commissioner, Bhiwani on the complaint made by the complainant. In the D.N.A. test it was found that Anita had given birth to a female child. On account of giving wrong information by Bawa Nursing Home that male child was born to Anita, the family became perturbed for which the respondent was sought to be penalized. It was also pleaded that on account of negligence on the part of Bawa Nursing Home, the female child, while admitted in Vermas Hospital, died on account of negligence on the part of Medical Officers of Bawa Nursing Home.
4. The respondent contested the complaint by filing written statement wherein the allegations levelled by the appellant were denied.
5. District Forum vide its order dated March 18th, 2010 directed the Civil Surgeon to constitute a Medical Board consisting of two specialists and to report as to whether the respondent was negligent or not?
6. The Medical Board comprised of Dr. N.K. Garg, (Paed.) Medical Officer, CHC, Tosham and Dr. Meena, Lady Medical Officer, General Hospital, Bhiwani, submitted report dated May 19th, 2010, as under:-
As per letter No.65 dated 05.04.2010 complaint No.228 of 2010 received from President District Consumer Disputes Redressal Forum, Bhiwani titled as Sushil Vs. Dr. Poonam Bawa, Committee as constituted by Civil Surgeon Bhiwani enquired the case/complaint file of patient Anita w/o Sh. Sushil, aged 22 years (F) resident of village Sui, Distt. Bhiwani.
As per record available, patient Anita w/o Sh. Sushil, aged 22 yrs (F) resident of Village Sui, Distt. Bhiwani was admitted at Bawa Maternity and Nursing Home, Bhiwani on 26.11.2009 at 8.20 AM with pregnancy of 6 months and 12 days in the stage of full dilate with the history of LPs since 6.00 AM. She delivered a baby on 26.11.2009 at 8.56 AM as premature delivery; baby cried immediately after birth, baby was shifted to Nursery due to prematurely. No PPH, no tear. She was discharged on 27.11.2009.
After going through the case file, we are of the opinion that it is true that the sex of baby told by Dr. Poonam Bawa was male and actual sex of baby was female.
Although the treatment given at Bawa Maternity and Nursing Home, Bhiwani was genuine and actually required for the patient and there is no negligence committed on the part of treating doctor during the treatment/delivery of the above said patient.
7. It is well settled principle of law that to prove a case of medical negligence, the onus to prove the same lies upon the claimant. In Indira Kartha and others versus Dr. Mathew Samuel Kalarickal and another, S.C. & NATIONAL COMMISSION CONSUMER LAW CASES (1996-2005) PAGE 24 (N.C.), it has been held by Honble National Commission that burden of proving that the doctor was negligent, rests with the complainant and it is not for the doctor to show that he was not negligent.
8. Honble National Commission in Mohd. Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:-
The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.
9. In Revision Petition No.1311 of 2013 titled Rajiv Navath Versus Dr. Shajahan Yoosaf Sahib and others (N.C.), it has been observed that:-
12. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Honorable Supreme Court of India and by several orders of this Commission. In the Bolams case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582). The locus classicus of the test for the standard of care in law, required of a doctor, developed from this landmark case.
Mr Justice McNair, in his direction to the jury, said:
[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.
10. To clinch the issue as to whether the Medical Officers of Bawa Nursing Home were negligent in any manner, the report of the Medical Officers referred to above, is the best piece of evidence. Therein, it is stated that there was no negligence on the part of the Medical Officers of Bawa Nursing Home.
11. In this view of the matter, this Commission does not find any reason to interfere with the well-reasoned order passed by the District Forum. The appeal is, therefore, dismissed Announced 24.03.3014 (Urvashi Agnihotri) Member (Nawab Singh) President CL