State Consumer Disputes Redressal Commission
Dr. M.C. Pratihar vs Sri Laltu Bijali on 6 June, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/627/2014 (Arisen out of Order Dated 21/03/2014 in Case No. CC/365/2013 of District South 24 Parganas) 1. Dr. M.C. Pratihar Pratihar Nursing Home, 1, Suren Roy Road, Behala Tram Depot, P.S. Behala, Kolkata -700 034. ...........Appellant(s) Versus 1. Sri Laltu Bijali S/o. Raghunath Bijali, 3, Chanditala Branch Road, P.S. Behala, Kolkata -700 053. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Barun Prasad Mr. SubrataMondal Mr. Sovanlal Bera , Advocate For the Respondent: Mr. Biswajit Karmakar, Advocate ORDER
06/06/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, South 24-Parganas in CC 365 of 2013 allowing the complaint with cost of Rs.4,000/- and directing the OP to pay Rs.1,20,000/- to the Complainant as compensation within 15 days from the date of order failing which the amount will carry interest @ 10% p.a. from the date of default till realisation.
The case of the Complainant/Respondent, in short, is that his wife Pallabi Bijoli was under the treatment of the OP Doctor for her pregnancy. On 17/03/13 at about 10.20 a.m. his wife was admitted at Pratihar Nursing Home. On that date there was leakage of amniotic fluid and the Complainant requested the OP Doctor to go for caesarean section, but the doctor assured him not to be worried. On 18/03/13 at about 10.10 a.m. caesarean section was done by the OP and a male baby was born. There was no Child Specialist at the said Nursing Home. After the birth baby was suffering from breathing problem and there was no arrangement for ventilation treatment. On 18/03/13 the baby was transferred to Ramkrishna Mission Seva Prathisthan, but due to no vacancy in the ventilation system the Complainant shifted the baby on 19/03/13 to Park Clinic. Under the treatment of Dr. Sabyasachi Mukherjee the ventilation system was provided to the new born baby. But on 20/03/13 at about 4.50 p.m. the baby died and his death occurred due to the negligence on the part of the OP Doctor. For the said reason, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that the wife of the Complainant was admitted in the OP Nursing Home for delivery and a male baby was born on 18/03/13. It is contended that a criminal case has also been filed by the Complainant/Respondent. It is submitted that the complaint case has been filed by the husband, but he is not a consumer as he was not authorized by his wife to file this complaint case. It is contended that the baby was actually treated at Ramakrishna Mission Seva Prathishthan and Park Clinic and those institutions are the necessary parties in this case. It is submitted that the bed head tickets of those institutions have not been produced to show what treatment was done to the baby for his breathing trouble. It is contended that except the evidence of the Complainant no expert evidence was adduced. It is contended that the OP Dr. M. C. Pratihar did not treat the baby as he only did the caesarean section and the baby was born. It is contended that the baby was immediately referred to the Hospital for better management. It is submitted that the baby was born at 11 a.m. and at 11.30 a.m. the reference was made to the Hospital.
The Learned Counsel for the Respondent has submitted that the baby belonged to both the father and the mother and the wife of the Complainant was under the treatment of the OP all along. It is contended that there was leakage of amniotic fluid and she was admitted in the morning and on the next day the caesarean section was done and some filthy water entered into the mouth and nose of the baby for which the respiratory problem started. It is contended that the baby was at first referred to Mahananda Nursing Home, but as the doctor was not present there reference was made to the Ramakrishna Mission Seva Prathishthan. It is submitted that the baby could have been referred to other higher centre much earlier. It is contended that at Park Clinic ventilation facilities were there, but the baby expired on 20/03/13. It is submitted that the patient party recorded that there was delayed caesarean section and, as such, the respiratory problem started.
We have heard the submission made by both sides and perused the papers on record. As to the question of maintainability of the complaint the Learned Counsel for the Appellant has referred to the decision of the Hon'ble National Commission in RP 3021 of 2013 decided on 10/08/15 [Dr. K. Patra vs. Ghanashyam Das (Ruidas) & Anr.]. In the said case the patient was aged 24 years and his elder brother filed the complaint. In the instant case medical negligence has been alleged due to the death of the new born baby on 20/03/13. The wife of the Complainant at that time still remained admitted in the Nursing Home. Under such circumstances, we are of the considered view that the aforesaid decision is not applicable in the different facts and circumstances of the instant case. The present complaint filed by the father for the death of the new born baby is maintainable.
It appears from the materials on record that the wife of the Complainant was admitted in the Nursing Home on 17/03/13 and on 18/03/13 the caesarean section was done and a male baby was born. In paragraph 6 of the complaint it has been stated that the Complainant requested the OP Doctor to do caesarean section on 17/03/13 as there was leakage of amniotic fluid. In paragraph 8 of the W.V. it has been stated that the amniotic fluid was adequate and clear. From the medical papers filed there is no mention that there was leakage of amniotic fluid. It appears from the treatment sheet that on 18/03/13 at 10 a.m. the doctor discussed about the planning for caesarean section as there was no 'show', prematurity of baby was explained and the associated complication. It was also mentioned that at 10.25 a.m. a male baby was born weighing 2.9 kg, cried well after birth, colour of liquor was clear. It is the specific contention of the OP that since it was premature baby there might be possibility of respiratory problem and the baby was referred to the higher centre for better management as per averment made in paragraph 8 of the W.V. It has been held in the decision reported in I (2016) CPJ 70 (NC) [Mukhthyar Singh vs. Kasturi Devi Munshi Lal Mahila Evam Shishu Charitable Hospital] that referring the patient to higher centre does not amount to negligence. Moreover, it appears that the baby remained admitted at Ramakrishna Mission Seva Prathishthan from 18/03/13 to 19/03/13 and it was noted in the discharge certificate that there was no ventilatory support and, as such, the baby was referred to higher centre where ventilation was available. From the papers on record it appears that ventilation was available at Park Clinic and the baby was admitted therein, but afterwards expired. It has been held by the Hon'ble National Commission in the decision reported in 2011 (2) CPR 372 (NC) [Baljinder Singh Vs. National Insurance Co. Ltd. & Ors.] that medical negligence cannot be presumed and has to be proved by the Complainant. It is not a case where the principle of res ipsa loquitur can be invoked.
Having heard the Learned Counsel for the parties and on careful perusal of the materials on record, we are of the considered view that the Complainant failed to establish the case of medical negligence or deficiency in service on the part of the OPs. The Learned District Forum was not justified in allowing the complaint.
The Appeal is allowed. The impugned judgment is set aside. The petition of complaint is dismissed. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER