State Consumer Disputes Redressal Commission
Smt. Preeti. & Ors. vs Pr. Secretary ( Health ). & Ors. on 7 May, 2024
H . P. ST AT E C ONSUMER DISPUTES R EDRESSAL
COMMISS ION SH IML A
Consumer Complaint. No.: 14/2019
Date of Presentation: 05.04.2019
Order Reserved on: 03.04.2024
Date of Order: 07.05.2024
1. Preeti Wife of Sh. Vinay Kishore, R/o 50, Ward No.8,
Diara Sector, Bilaspur, Sadar Bilaspur, H.P.
2. Master Vihaan Kishore S/o Sh. Vinay Kishore, R/o 50,
Ward No.8, Diara Sector, Bilaspur, Sadar Bilaspur,
H.P. aged about 3 years (minor) through his natural
guardian (mother) Smt. Preeti Wife of Sh.Vinay
Kishore.
3. Vinay Kishore S/o Sh. Puran Kishore, R/o 50, Ward
No.8, Diara Sector, Bilaspur, Sadar Bilaspur, H.P.
... Complainants
Versus
1. Principal Secretary (Health) Govt. Of H.P., H.P.
Secretariat, Chhota Shimla, Shimla (HP) 171002
2. Regional Hospital Bilaspur, District Bilaspur, through
its Chief Medical Officer.
3. Dr.Anupam Sharma, Sr. Gynecologist, Gyne
Department, Regional Hospital Bilaspur, District
Bilaspur, H.P.
.....Opposite Parties
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Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors
CC No.14/2019
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Mr. R.K. Verma, Member.
Whether approved for reporting?1 Yes
For Complainants: Mr. Sanjay Sharma, Advocate
For Opposite Parties: Ms.Charu Gupta, ADA.
Justice Inder Singh Mehta, President
ORDER
The complainants have filed the instant complaint seeking directions to the opposite parties to pay Rs.90.00 lacs as compensation on account of medical negligence, Rs.2.00 lacs as damages and Rs.1.00 lacs as cost of litigation. Brief facts of Case:
2. Brief facts stated are that the complainant No.1 Smt.Preeti was admitted in Regional Hospital, Bilaspur, H.P. (Opposite party No.2) with labour pains on 13.03.2016. The complainant No.1 was assured that delivery would be normal.
The complainant No.1 delivered the baby boy on 14.03.2016 in 1 Whether reporters of the local papers may be allowed to see the order? 2
Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 the morning. After the delivery, the baby boy did not cry and it raised doubt with the doctors and the baby boy was immediately moved to the operation theater and after examination, it was revealed that stool was stuck in the food pipe of the new born baby, because of which the infant was not able to breathe. Thereafter, solid waste was removed from his food pipe but the damage had already done to the infant, resultantly substantial part of the brain was damaged. On 13.03.2016 after admission of the complainant No.1, during preliminary check-up midwife on duty told the complainant that the pulse of the baby boy is abnormal. Even on intimation, no attempts were made by the opposite party No.3 on duty to find out the cause for improper pulse rate. The opposite party No.3 Dr.Anupam did not make any visit to the complainant No.1. The complainant No.1 remained admitted with the opposite party No.2/Hospital till 07.04.2016 and thereafter, both the baby and the mother discharged. At the time of discharge, the complainant No.1 was informed that the baby boy has developed some problem in his brain and it would take some 3 Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 time to become normal and medicines were also prescribed. The complainant No.2 is growing day by day physically only, but there is no mental growth right from his birth, which was due to the carelessness and negligence on the part of the opposite parties. On 07.05.2016, the complainant No.1 brought her baby boy Vihaan Kishore to Phoenix Diagnostic Centre at Bilaspur, where it was revealed for the first time that the child is suffering from "Periventricular Leukomalcia". The complainant No.2 was also taken to Sri Guru Harikrishan Sahib (C) Eye Hospital (Trust) Sohana, where it was revealed that he was suffering from "NEONATAL HYPOXIC ISCHEMIC BRAIN INJURY WITH PERIVENTRICULAR LEUKOALACIA". Thereafter, the complainants approached Dr.Jyoti Mehta, Neurosurgeon at Khalini, Shimla, who has also confirmed brain damage of child. Though, the treatment is going on but the complete recovery is not possible. The opposite parties No.2 and 3 are directly liable for the sufferings of the complainant No.2. Mental growth of the complainant No.2/baby boy has stopped as substantial damage has caused to his brain during 4 Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 delivery due to the negligence of the opposite parties, more specifically the opposite party No.3/Dr. Anupam. Hence, the present complaint.
3. The complaint is contested by the opposite parties No.1 & 2 by filing reply wherein opposite parties have taken preliminary objections regarding maintainability, cause of action, complainants are not consumer, locus standi, non- joinder of necessary parties, complaint is time barred and jurisdiction.
On merits, opposite parties No.1 & 2 have alleged that the complainant No.1 had reported with the pregnancy of 35 weeks and five days in the OPD on 26.02.2016. After her check-up some sort of infection, discharge per vaginum was observed. She was accordingly advised by the opposite party No.3/Dr. Anupam to get investigation of such infection. But, the complainant No.1 never adhered to such advice and had not factually reported back with the reports of the investigation of the Gynecologist. The complainant No.1 reported in the OPD on 29.02.2016 with the complaint of shortness of breath, for 5 Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 which she was specifically advised admission in Maternity ward on 29.02.2016, but the said advice was also not adhered to by the complainant No.1.
The complainant No.1 finally reported to the Regional Hospital, Bilaspur in emergency casualty on 13.03.2016 at 6:30 PM with complain of labour pains. As everything was going smoothly in the labour room, the opposite party No.3/Dr. Anupam, who was 2nd on duty was not called for delivery by the Staff nurse. Hence, question of negligence on the part of opposite party No.3/Dr. Anupam does not arise. Thereafter, full term normal Vaginal delivery of male child was conducted on 14.03.2016 at 7:05 AM by the Staff Nurse and Midwife (Skilled birth attendant). As per the records, it was after the delivery of baby boy that Meconium was observed in hind waters and thereafter, call was sent to the Pediatrician who attended the baby and managed him accordingly. As per Annexure C-3 and C-4, the complainants have undergone the treatment of the baby boy from the private clinics/centre at their own without reporting the matter to the opposite parties. No 6 Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 evidence of medical negligence in the treatment of complainants No.2 and 3 was found by the Committee constituted by the Director Health Services, Himachal Pradesh. Hence, a prayer for dismissal of the complaint was made.
4. Rejoinder denying the contents of the reply filed by the opposite parties and reiterating those of the complaint has been filed.
5. Thereafter the parties were called upon to adduce evidence in support of their respective pleadings. The complainants have tendered in evidence affidavit of complainant No.1 Smt.Preeti Ext.C-1 and affidavit of complainant No.3 Sh.Vinay Kishore Ext.C-2.
6. The opposite parties have tendered in evidence affidavit of Dr.Parveen Kumar Ex. OPs-1-3/1 and affidavit of Dr.Anupam Sharma, the opposite party No.3 as Ex. OPs-1-3/2.
7. We have heard the learned counsel for the parties, perused the written arguments filed on behalf of the parties and have also gone through the record of case file carefully. 7
Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 FINDINGS
8. In the instant complaint, the complainants have alleged that there was medical negligence on the part of the hospital and the doctor at the time of delivery of the complainant No.1, Smt. Preeti. The complainants have alleged that complainant No.1 delivered baby boy on 14.03.2016 in the morning. After the delivery, the baby boy did not cry and they raised doubt with the doctors and the baby boy was immediately moved to the operation theater and after examination, it was revealed that stool was stuck in the food pipe of the newly born baby, because of which the infant was not able to breathe.
9. The complainants have also alleged that solid waste was removed from food pipe of the baby boy, but the damage had already caused to the baby boy and resultantly substantial part of the brain of baby boy was damaged.
10. Per contra, the opposite parties have stated that the complainant No.1 had reported with the pregnancy of 35 8 Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 weeks and five days in the OPD on 26.02.2016 and after her check-up some sort of infection, discharge per vaginum was observed. She was accordingly advised by the opposite party No.3/Dr. Anupam to get investigation of such infection. But, the complainant No.1 never adhered to such advice and had not factually reported back with the reports of the investigation of the Gynecologist.
11. To establish the medical negligence on the part of the Doctor, the complainant has to prove three facts, (i) the practice so adopted by the doctor is usual and normal practice,
(ii) the doctor who is in medical profession must have deviated the said practices and (iii) the doctor who has adopted the said practices is one which no professional man of ordinary skill would have taken, if he had been acting with ordinary care.
12. In the instant case, it is coming on record that the normal delivery of complainant No.1 Mrs.Preeti was conducted and she delivered a baby boy on 14.03.2016. Normal delivery of woman is general/normal practice when there is no 9 Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 complication at the time of delivery. At the time of delivery, the staff nurse/midwife adopted the methodology/ procedure which is usual and general practice.
13. Therefore, no negligence can be attributed to the doctor/hospital as the methodology/procedure adopted by the staff nurse/midwife at the relevant point of time was normal/general practice.
14. Plea of the complainants that the delivery of the complainant No.1 was conducted by the midwife/nurse and not by the doctor looses its significance as complainant No.1 was admitted in the hospital with labour pains on 13.03.2016 and shifted to labour room and after normal delivery of the complainant No.1, she gave birth to a baby boy in the morning on 14.03.2016.
15. Since there was no complication at the time of delivery and normal delivery took place, therefore, there was no occasion for the nurse/midwife to call the doctor/Gynecologist. 10
Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019
16. The plea of the complainants that due to the negligence on the part of the hospital staff/doctor, newly born child suffered Periventricular Leukomalcia is not correct as the Doctor/hospital administration did not deviate from normal practice of its treatment.
17. In the instant complaint, the complainant No.1 Preeti was admitted in the hospital on 13.03.2016 with labour pains and she gave birth to a male child on 14.03.2016 at 7:15 AM through normal delivery and the baby boy alongwith complainant No.1 Preeti was discharged from the hospital on 07.04.2016 as per Annexure C-1.
18. As per the allegations of the complainants in para- 2 of their complaint, the baby boy when did not cry, he was immediately moved to operation theatre and after thorough examination, it was revealed that stool was stuck in the food pipe of the newly born child and thereafter solid waste was removed from his food pipe but the damage had already been 11 Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019 done to the infant resultantly substantial part of the brain was damaged.
19. The said allegation of the complainants is without substance as the same is without support of any medical record. The complainants did not place on record any such document to show that stool was stuck in the food pipe of the newly born boy. Moreover, the complainant No.1 Preeti was admitted in the hospital on 13.03.2016 and she gave birth to baby boy in the next morning on 14.03.2016 at 7:15 AM through normal delivery.
20. The allegation of the complainants that baby boy suffered from the brain disease i.e. Periventricular Leukomalcia from the said incident is without medical evidence and is mere an allegation, which is inconsequential in nature for want of such proof, particularly when the opposite parties in para-2 of their reply have specifically stated that the complainant No.1 Preeti did not adhere to the advice of the doctor given on 26.02.2016.
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Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019
21. Relevant portion of para-2 of the reply is reproduced is as under:-
"2....It is added that as per records of RH Bilaspur, the complainant No.1 had reported with the pregnancy of 35 weeks and five days in the OPD on 26.02.2016, where she was properly checked by the opposite party No.3. After her proper check- up since some sort of infection, discharge per vaginum, was observed, she was accordingly advised by the opposite party No.3 to get investigation for such infection done and thereafter to report with such investigations, which specific advise she did never adhere to and had not factually reported back with the reports of the investigation to the Gynecologist.."
22. In view of the above stated facts, no negligence can be attributed to the opposite parties.
23. As far as the judgment relied upon by the complainants is concerned, same is not applicable in the facts and circumstances of the instant complaint. 13
Smt.Preeti & Ors. Versus Principal Secretary (Health) & Ors CC No.14/2019
24. In view of the above discussion, we do not find any merit in the instant complaint. Consequently, complaint of the complainants fails and same is hereby dismissed.
25. Parties are left to bear their own costs.
26. Certified copy of this order be sent to the parties and their counsel(s) strictly as per rules. Complaint is disposed of. Pending applications, if any, also disposed of. File after due completion be consigned to the Record-Room.
Justice Inder Singh Mehta President R.K.Verma Member Manoj 14