State Consumer Disputes Redressal Commission
The Director Health & Family Welfare ... vs Mrs.Vibha Aggarwal on 25 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 472 of 2013 Date of Institution 29.10.2013 Date of Decision 25.02.2014 1. The Director Health & Family Welfare Services, General Hospital, Sector 16, Chandigarh. 2. Govt. Block Civil Hospital, Sector 22, Chandigarh, through its CMO/SMO, Chandigarh. .Appellants/Opposite Parties V E R S U S Mrs.Vibha Aggarwal, aged 28 years, wife of Rashit Aggarwal, resident of House No.2038, Sector 21-C, Chandigarh. ...Respondent/Complainant BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Sh.Jatinder Singh, Govt. Pleader for the appellants alongwith Sh.Rajesh Khurana, Advocate.
Sh.Amar Vivek, Advocate for the respondent.
---
PER PADMA PANDEY, MEMBER This appeal is directed against the order dated 06.09.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant and directed the Opposite Parties (now appellants) as under:-
15. For the reasons recorded above, we find merit in the complaint and the same is allowed. OPs are directed :-
i) To make payment of a compensation of Rs.2 lacs to the complainant on account of physical and mental agony.
ii) To make payment of an amount of Rs.29,900/- paid by the complainant to Jindal IVF and Sant Memorial Nursing Home as per bill No.6238 on record.
iii) To make payment of an amount of Rs.11,000/- to the complainant towards litigation expenses.
The liability of the OPs shall be joint and several.
16. This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with interest @9% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. In brief, the facts of the case, are that the complainant, who was having a one month pregnancy in the month of December, 2011, contacted the Gynaecology Department in the Govt.
Block Civil Hospital, Sector 22, Chandigarh for further check up. She was examined from time to time by the Gynaecologist, on duty, in Civil Hospital, Sector 22, Chandigarh.
The names of the doctors could be found out from their signatures mentioned on the OPD cards of the said hospital. It was stated that in the beginning, the Gynaecologist, advised the complainant for conducting some blood tests and ultrasound. She also advised some tablets of folic acid (iron). Thereafter, the said tests were got conducted and the reports were found to be normal and the pregnancy was confirmed by the doctor. The OPD card dated 23.12.2011 and the reports of ultrasound and blood tests were attached as Annexure C-1. It was further stated that as per advice of the doctors, the complainant visited Gynae Department on 3.1.2012 for consultation as she was having a minor fever. The doctor advised her to conduct all the tests of TLC-DLC and urine and advised to consume tablets Dolo 650 BD for 2 days. The report of ultrasound was produced, which was normal and the doctors mentioned the period of pregnancy as 10 weeks and asked the complainant to come after 15 days. It was further stated that the complainant visited the Gynae Department on 19.1.2012 and the doctor after examination found her to be normal. The doctor also advised her to undergo ultrasound and to come after one month. The complainant approached the doctor on 4.2.2012 as she was having stomach pain. The doctor advised some medicines and a dual test was conducted on 13.2.2012, which was normal. It was further stated that the complainant contacted the Gynae Department on 21.2.2012 and submitted the dual test report, which was normal and two syrups were prescribed for the problem of throat and she was advised to come after one month for conducting the triple test and ultrasound level-11. It was further stated that the complainant visited the Gynae Department on 29.3.2012 and the reports of ultrasound and triple test were submitted to the doctor, who told that the reports were normal and some iron and calcium medicines were prescribed. The complainant again visited the Gynae Department on 19.4.2012 as she was facing swelling on her body and the pregnancy of 23 weeks was completed but at that stage the doctor did not exercise care and showed negligence regarding the development and growth of the foetus in the uterus of the complainant, and told that the pregnancy was normal. In fact, the growth had stopped and the doctors were noticing the same, but no treatment was given. They suggested some tests of thyroid, RA factor and RFT. It was further stated that the reports of the tests were shown to the doctors and they told that the same were normal and prescribed medicines and asked the complainant to come after one month. Though a period of 24 weeks of pregnancy was completed but still no treatment for the growth of foetus was given to the complainant. It was further stated that on 14.5.2012, the complainant was having some infection and the doctors advised her some antibiotic and anti allergy medicine for 3 days and told her to come after one month. The complainant again visited the hospital on 2.6.2012 and the doctors observed that there was no growth of foetus in the uterus but still they referred the complainant for the blood sugar test. Thereafter, the complainant again contacted the Gynaecologist for having severe stomach pain, but the doctor never conducted any ultrasound for this problem and showed their negligence in attending her. Even a look of the stomach of the complainant, proved that there was a little growth of the foetus in the uterus. It was further stated that the complainant contacted the doctor on 8.6.2012 and produced the reports of blood sugar but the doctor told that the report was normal and the test of GTT was not required. It was further stated that the complainant lastly contacted the doctor on 30.6.2012, for having some rashes and allergies, on the body, but she instead of checking the pregnancy of 33 weeks (8 months) and without conducting any ultrasound referred her to the skin OPD prescribed some medicines. It was further stated that the complainant noted the negligence of the doctors and immediately approached Sector 32 hospital for check up. The Gynaecologist present there, checked her and conducted ultrasound. She told that she was having a crimpled foetus in the uterus and all this happened, due to the negligence of the doctors because no ultrasound was conducted, in time and no investigation was done at the stage of 8th month foetus, in the uterus, and no proper treatment was given in time. It was further stated that the condition of the complainant was deteriorating, in the hospital, but the doctors were not caring for the delivery of the crimpled foetus because of heavy rush. On 1.7.2012 the condition of the complainant became more serious and, ultimately, she decided to consult Umesh Jindal Nursing Home in Sector 20, Chandigarh. The Gynaecologist conducted the abdominal examination, and observed that the growth of the foetus was of 26 weeks, in the completion period of 33 weeks, but she could not find this fact as to why the foetus was not growing in the uterus and this fact was never brought to the knowledge of the complainant. The Gynaecologist removed the dead foetus by normal vaginal delivery in the late night hours and also lot of fungus (infecting organism) was removed due to old foetus in the uterus.
3. It was further stated that the cause of death of foetus, in the uterus, was due to the negligence of the doctors, who examined her, during the period of 7th and 8th (month) and were not giving the treatment of the growth of foetus in the womb. It was further stated that when the complainant consulted the Gynaecologist in Civil Hospital, Sector 22, Chandigarh, for having some skin problem on her body, the same was, in fact, arising because of dead foetus in the uterus due to the negligence of the doctors, but they advised her to conduct the LFT test and did not bother to investigate the pregnancy of 33 weeks (8 months). So, it was crystal clear that a gross medical negligent act causing the death of the foetus, was done, by the doctors in the Gynae Department of Civil Hospital, Sector 22, Chandigarh. It was further stated that the complainant spent heavy amount, on her treatment due to the negligence of the doctors posted in Civil Hospital, Sector 22, Chandigarh and further treatment was required as per the advice of Jindal Nursing Home. It was further stated that the Opposite Parties were negligent, in rendering service.
When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
4. In their written reply, the Opposite Parties stated that the complainant did not approach the Forum with clean hands and tried to mislead it . There was no medical negligence as well as deficiency, in service, and the complaint was frivolous and deserved to be dismissed with cost. It was stated that the complainant visited the Gynae OPD in the Govt. Block Civil Hospital, Sector 22, Chandigarh for the first time on 23.12.2011, for her antenatal checkup. She was found to be having 6 weeks pregnancy and the doctor, on duty, advised her some routine investigations, which she got done, from the hospital, and all the reports were found normal. It was further stated that the complainant showed all the reports including the USG report, which were normal as it was evident from the OPD card dated 23.12.2011 and test reports attached by the complainant as Annexure C-1. On 3.1.2012 the complainant as a routine checkup visited the hospital, with a complaint of having mild fever for one day for which the doctor advised her tablet Dolo-650 BD and certain investigations i.e. TLC, DLC, urine test etc were prescribed for the fever. It was further stated that on 18.1.2012, the complainant came with investigation reports, which were within normal limits (WNL) and she was relieved of her complaint i.e. fever Annexure C-2. The complainant again visited the hospital on 4.2.2012 with a complaint of stomach pain. She was given tetanus for the same and advised some medicines and to get conducted her dual test in GMCH-32. A report was given on 14.2.2012 as it was evident from Annexure C-3. It was further stated that on 21.2.2012 the complainant showed the reports of ultrasound, which she had got conducted on 8.2.2012 from some laboratory outside the hospital and the report of dual test which showed low risk. Both the reports were found normal. The complainant was prescribed syrup for her sore throat and then she was advised to come after one month for follow up (Annexure C-2). On 29.3.2012 when the complainant came up for routine check up, her per abdomen examination (P/A) was found equal to period of gestation (POG) that was 20+ weeks and level-II USG report was also found normal. The complainant was advised urine complete examination and was prescribed tablets of iron & calcium as was evident from her OPD card and test reports Annexure C-2. It was denied that the doctor did not care and showed negligence regarding development and growth of foetus since the complainant, when came on 19.4.2012 with complaint of swelling on body and increased sleepiness, the POG at that time, was reported to be of 23 weeks which was equal to per abdomen examination, which clarified that there was no disparity of growth as compared to POG. It was further stated that the complainant was then advised RFT, TSH, RA factor, which were relevant to her complaint and there was no growth retardation found on examination. The complainant showed her report on 21.4.2012, which was normal and was advised B-Complex alongwith iron & calcium (Annexure C-3). It was further stated that on 14.5.2012 the complainant came at 26+ weeks of pregnancy and this time also, POG was reported to be of 26 weeks, which was equal to her abdomen examination. The complainant also complained of sore throat, for which the doctor on duty prescribed her medicine (Annexure C-3). The complainant again came on 2.6.2012 and was examined thoroughly.
It was further denied that there was no growth of foetus in uterus. There was no disparity of growth as compared to POG. The complainant was asked to get the blood sugar checked, which was a routine investigation. The complainant showed her report of blood sugar, which was normal, hence Glucose Tolerance Test (GTT) was not required (Annexure C-3). On 30.6.2012, the complainant visited the hospital with a complaint of skin rashes, and allergy on body. This was also the time for the routine checkup i.e. after 3 weeks and the complainant knew the protocol of the hospital. She went for blood pressure and weight check-up in room No.45. It was evident from her OPD record card Annexure C-4, that she was advised Liver Function Test (LFT) and skin opinion but she left even without getting her per abdomen (P/A) examination done which she knew as per protocol recommended on every visit. The complainant left the hospital with her card for the reasons, best known to her. It was further stated that no doctor could come to know about the condition of the foetus without P/A examination. It was further stated that the complainant went to GMCH-32 Annexure C-4 on 30.6.2012 and complained only about rashes for the last two days. The diagnosis of PAPPs, cholestasis was made. The doctor prescribed medicine on first page and after P/A examination, they came to know about condition of foetus which was P/A 26+ wks; POG 33 + wks means disparity of more than 6 weeks Annexure C-7. USG was conducted to know about the condition of foetus and she was prescribed investigations, which were very essential, before removing foetus but the complainant again was not satisfied and left the hospital for some private Nursing Home. It was further stated that if the foetus of the complainant had grown only upto 26 weeks, it then, on examination, would have shown 18-20 wks only because after IUD (intra-uterine death), liquor gets decreased and foetus gets crimpled and the height of uterus decreases but in her case, height of uterus was 26 weeks at the time of IUD. It showed that growth of foetus at the time of IUD might be 30 to 32 weeks, which was made clear in a literature by MUNRO KERRS in Operative Obstetrics, tenth edition, copy of which was Annexure OP-1. It was further stated that the pregnancy of the complainant upto 2nd June, 2012 was perfectly alright, as it was corresponding to her period of gestation. It may be during 25 days i.e. from 2nd 30th June, 2012 that some complications occurred, which may be because of the rashes she developed, which led to IUD. The rashes could be associated with normal pregnancy due to cholestasis. It was further stated that the complainant never gave history of loss of movements of foetus. No reassurance regarding the growth of the foetus was given to her on the last visit as the reassurance would have been given if she had her per abdomen examination and other investigations done for which she had gone to GMCH, Sector 32, Chandigarh. The complainant went to Private Nursing Home on her own for her comfort. It was further stated that fungal infection was not evident from her discharge slip at Jindal Nursing Home Annexure C-5. It was further stated that the IUD appeared to have taken place in about a weeks time, as evident from the weight gain of the complainant. On 2nd June, maternal weight was 74 kg and on 30th June, maternal weight was noted to be 77 kg, as documented on OPD card of the complainant Annexure C-4 and C-5. In this context the relevant extract from the publication of Williams Obstetrics, 20th edition, page 33 Annexure OP-2 was produced. Since autopsy of the foetus was not carried out, the cause of IUD could not be ascertained. It was further stated that the complainant was given adequate antenatal care in CHC-22 throughout her pregnancy and as per the literature Annexure OP-3 the sound antenatal care had much to offer but could not prevent all cases of intra-uterine death. It was further stated that the complaint, being false and frivolous, was liable to be dismissed.
5. In her additional evidence-cum-rejoinder, by way of affidavit, the complainant stated that the Opposite Parties neither got any examination of her done, nor got any significant tests done, nor gave any treatment at all to her, despite her repeated complaints for lack of growth of the foetus. It was further stated that they did not even get any ultrasound done on 19.4.2012, 21.4.2012, 14.5.2012, 2.6.2012, 8.6.2012 etc. even though she made grievances about the lack of growth of foetus/baby. It was further stated that the Opposite Parties miserably failed to exercise reasonable care and prudence, in every respect. It was further stated that the foetus was macerated dead as on 30.6.2012 as found out and thus even a person with little intelligence could have made out this aspect through oral and bare examination of the state of the complainant, instead of recommending the complainant to the skin OPD.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the complainant, Govt. Pleader for the Opposite Parties and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9. We have heard the Govt. Pleader for the appellants alongwith Sh.Rajesh Khurana, Advocate, Counsel for the respondent and have gone through the evidence, written arguments and records of the case, carefully.
10. The Govt. Pleader, duly assisted by Sh.Rajesh Khurana, Advocate for the appellants/Opposite Parties, submitted that there was no medical negligence, as well as deficiency in service, on the part of the treating doctors, and as such the complaint was liable to be dismissed. It was further submitted that the complainant visited the Gynae OPD in the Govt. Block Civil Hospital, Sector 22, Chandigarh for the first time on 23.12.2011 for her antenatal checkup. She was found to be having 6 weeks pregnancy and doctor, on duty, advised her some routine investigations, which she got done from the hospital and all the reports were found normal. It was further submitted that the complainant showed all reports including the USG report, which were normal as it was evident from the OPD card dated 23.12.2011 and test reports, Annexure C-1. On 3.1.2012 the complainant as a routine checkup visited the hospital with a complaint of having mild fever for one day for which the doctor advised her tablet Dolo-650 BD and certain investigations i.e. TLC, DLC and urine test etc were prescribed for the fever. It was further submitted that on 18.1.2012 the complainant came with investigation reports, which were within normal limits (WNL) and she was relieved of her complaint i.e. fever Annexure C-2. The complainant again visited the hospital on 4.2.2012 with a complaint of stomach pain. She was given tetanus for the same and advised some medicine and to get conducted her dual test in GMCH-32. A report was given on 14.2.2012 as it was evident from Annexure C-3. It was further submitted that on 21.2.2012 the complainant showed the reports of ultrasound, which she had got conducted on 8.2.2012 from some laboratory outside the hospital, and the report of dual test which showed low risk. Both the reports were found normal. The complainant was prescribed syrup for her sore throat and then she was advised to come after one month for follow up (Annexure C-2). It was further submitted that on 29.3.2012 when the complainant came up for routine check up, her per abdomen examination (P/A) was found equal to period of gestation (POG) that was 20+ weeks and level-II USG report was also found normal. The complainant was advised urine complete examination and was prescribed tablets of iron & calcium as evident from her OPD card and test reports Annexure C-2. It was further submitted that the doctor took due care regarding the development and growth of foetus since the complainant, when came on 19.4.2012 with complaint of swelling on body and increased sleepiness, the POG at this time, was reported to be of 23 weeks, which was equal to per abdomen examination, which clarified that there was no disparity of growth as compared to POG. It was further submitted that the complainant was then advised RFT, TSH, RA factor, which were relevant to her complaint and there was no growth retardation found on examination and at that time the complainant was advised B-Complex along with iron & calcium (Annexure C-3). It was further submitted that on 14.5.2012 the complainant came at 26+ weeks of pregnancy and this time also, POG was reported to be of 26 weeks which was equal to her abdomen examination. The complainant also complained of sore throat, for which the doctor on duty prescribed her medicine (Annexure C-3). The complainant again came on 2.6.2012 and was examined thoroughly. It was further submitted that there was growth of foetus in uterus and there was no disparity of growth as compared to POG. The complainant was asked to get the blood sugar checked, which was a routine investigation and since the same was within the normal parameters, hence she was advised not to go for Glucose Tolerance Test (GTT). On 30.6.2012 the complainant visited the hospital with complaint of skin rashes and allergy on body. It was further submitted that since the complainant knew the protocol of the hospital, she went for blood pressure and weight check-up in room No.45. The complainant was also advised Liver Function Test (LFT) and skin opinion but she left even without getting her per abdomen (P/A) examination done which she knew as per protocol recommended on every visit. The complainant left the hospital with her card for the reasons best known to her. It was further submitted that no doctor could come to know about the condition of the foetus without P/A examination. It was further submitted that the complainant went to GMCH-32 on 30.6.2012 and complained only about rashes for last two days. The diagnosis of PAPPs, cholestasis was made. The doctor prescribed medicine on first page and after P/A examination, they came to know about condition of foetus, which was P/A 26+ wks; POG 33 + wks means disparity of more than 6 weeks, Annexure C-7. It was further submitted that the doctors at GMCH-32 conducted USG and came to know about condition of foetus and she was prescribed investigations, which were very essential before removing foetus from body but the complainant again was not satisfied and left the hospital for some Private Nursing Home. It was further submitted that if the foetus of the complainant had grown only upto 26 weeks, it then on examination would have shown 18-20 wks only because after IUD (intra-uterine death), liquor gets decreased and foetus gets crimpled up and the height of uterus decreases, but in her case, height of uterus was 26 weeks at the time of IUD. It showed that growth of foetus at the time of IUD might be 30 to 32 weeks. The Govt. Pleader for the appellants strengthened his arguments by referring to a literature by MUNRO KERRS in Operative Obstetrics, tenth edition, copy of which was Annexure OP-1. It was further submitted that the pregnancy of the complainant upto 2nd June, 2012 was perfectly alright as it was corresponding to her period of gestation. It might be during 25 days i.e. from 2nd 30th June, 2012 that some complications occurred, which may be because of the rashes she developed, which led to IUD. The rashes could be associated with normal pregnancy due to cholestasis. It was further submitted that the complainant never gave history of loss of movements of foetus. No reassurance regarding the growth of the foetus was given to her on the last visit since reassurance could have been given if she would got her per abdomen examination and other investigations done for which she had gone to GMCH-32, Chandigarh. The complainant went to private nursing home on her own for her comfort. It was further submitted that fungal infection was not evident from her discharge slip at Jindal Nursing Home Annexure C-5. It was further submitted that the IUD appeared to have taken place in about a weeks time, as was evident from the weight gain of the complainant. On 2nd June, maternal weight was 74 kg and on 30th June, maternal weight was noted to be 77 kg, as documented on OPD card of the complainant Annexure C-4 and C-5. To support their arguments, reliance was placed upon the relevant extract from the publication of Williams Obstetrics, 20th edition, page 33 Annexure OP-2. Since autopsy of the foetus was not carried out, the cause of IUD could not be ascertained. It was further submitted that the complainant was given adequate antenatal care in CHC-22 throughout her pregnancy and as per the literature, Annexure OP-3, the sound antenatal care has much to offer but could not prevent all cases of intra-uterine death. It was further submitted that Dr.Rashmi Bagga, Professor, PGIMER, Chandigarh, was examined as a witness by the District Forum on 01.08.2013, and she deposed that foetal growth restriction was probable on 8.6.2012, and in this way , there was no evidence that the treating doctors of the appellants were negligent in any manner. Dr.Rashmi Bagga further deposed that the complainants antenatal record showed regular supervision and normal investigation and ultrasound reports. It was further submitted that the complainant had an intra-uterine death (for short IUD) which was diagnosed on 30.06.2012 at 33+wks POG (period of gestation) in the Civil Hospital, Sector 22, Chandigarh. It was further submitted that there was no medical negligence on the part of the treating doctors and as such the order of the District Forum, being illegal, is liable to be set aside.
11. On the other hand, the Counsel for the respondent/complainant, submitted that the complainant visited Gynaecology Department in the Govt. Block Civil Hospital, Sector 22, Chandigarh initially in November, 2011 and after confirmation of her pregnancy, she was visiting the said hospital from time to time in the months of January, February and March, when the routine tests of ultrasound and other tests were prescribed to her during the initial visits and all the reports showed normal signs of pregnancy and foetal growth. He further submitted that when the complainant visited the Gynaecology Department in the Govt. Block Civil Hospital, Sector 22, Chandigarh on 19.04.2012, she was facing swelling on her body and the pregnancy of 23 weeks was completed, but at that stage the doctor did not care and showed negligence regarding the development and growth of the foetus in her uterus, and told that the pregnancy was normal. He further submitted that the complainant felt that the growth had stopped and the doctors were noticing this phenomenon, but no treatment was given and instead suggested some tests of thyroid, RA factor and RFT but the doctors told that the reports of the tests were normal and prescribed some medicines and advised the complainant to come after one month. He further submitted that on 14.5.2012, the complainant was having some infection and the doctors advised her some antibiotic and anti allergy medicines for 3 days and asked her to come after one month. The complainant again visited the hospital on 2.6.2012 and the doctors observed that there was no growth of foetus in the uterus but still they referred the complainant for the blood sugar test. He further submitted that, thereafter, the complainant again contacted the Gynaecologist for having severe stomach pain but the doctor never conducted any ultrasound for this problem and showed their negligence in attending her. Even a look of the stomach of the complainant proved that there was a little growth of the foetus, in the uterus. He further submitted that the complainant contacted the doctor on 8.6.2012 and produced the reports of blood sugar but the doctor told that the report was normal and the test of GTT was not required. He further submitted that the complainant lastly contacted the doctor on 30.6.2012 for having some rashes and allergies on the body but the doctor instead of checking the pregnancy and womb having a period of 33 weeks (8 months) and without conducting any ultrasound referred the complainant to the skin OPD and medicines were prescribed. He further submitted that the complainant noted the negligence of the doctors and immediately approached Sector 32 hospital for check up. The Gynaecologist present there checked her and conducted ultrasound and told that she was having a crimpled foetus in the uterus and this happened due to the negligence of the doctors because no ultrasound was conducted in time and no investigation was done at the stage of 8th month of foetus in the uterus and no proper treatment was given in time. He further submitted that the condition of the complainant was deteriorating in the hospital but the doctors were not caring for the delivery of the crimpled foetus because of heavy rush. On 1.7.2012 the condition of the complainant became more serious and ultimately she decided to consult Umesh Jindal Nursing Home(Private Nursing Home) in Sector 20, Chandigarh. The Gynaecologist conducted the abdominal examination and observed that the growth of the foetus was of 26 weeks in the completion period of 33 weeks of PoG but she could not find this fact as to why the foetus was not growing in the uterus and this fact was never brought to the knowledge of the complainant. The Gynecologist removed the dead foetus by normal vaginal delivery in the late night hours and also lot of fungus (infecting organism) was removed due to old foetus in the uterus. He further submitted that the cause of death of foetus in the uterus was due to the negligence of the doctors, who examined her during the period of 7th and 8th (month) and were not giving the treatment of the growth of the foetus in the womb. It was further stated that when the complainant consulted the Gynaecologist in Civil Hospital, Sector 22, Chandigarh for having some skin problem on her body, the same was in fact arising because of dead foetus in the uterus due to the negligence of the doctors, but they advised her to conduct the LFT test and did not bother to investigate the pregnancy of 33 weeks (8 months). So, it was crystal clear that a gross medical negligent act causing the death of the foetus was done by the doctors in the Gynae Department of Civil Hospital, Sector 22, Chandigarh. He further submitted that the complainant spent heavy amount on her treatment due to the negligence of the doctors posted in the Govt. Block Civil Hospital, Sector 22, Chandigarh and further treatment was required as per advice of Jindal Nursing Home. He further submitted that the Opposite Parties were negligent, in rendering services and, as such, the order of the District Forum was legal and liable to be upheld.
12. In Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others, 2010(2) Civil Court Cases 015 (S.C.), Honble Supreme Court observed as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal ( edited by Justice G.P.Singh), referred to hereinabove, holds good Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three duty breach and resulting damage.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession . It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that can not be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
13. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable skill, in that branch of profession, which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill, with reasonable competence.
14. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Honble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether, to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.
15. In applying the principles mentioned above to the facts of the present case, it is to be seen, whether the doctors on duty of the appellants/Opposite Parties , who attended the complainant from 23.12.2011 to 30.6.2012 and prescribed medicines and investigations were guilty of any medical negligence or not. After giving our thoughtful consideration, to the rival contentions, raised by the Govt. Pleader alongwith Sh.Rajesh Khurana, Advocate for the appellants, Counsel for the respondent and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the following reasons:-
a) The appellants/Opposite Parties have falsely stated that the respondent/complainant was not treated on 08.06.2012. In the appeal at page 17 para 4(x), the appellants have wrongly relied upon the ANC records to contend that the complainant never visited for treatment on 08.06.2012. In fact Dr.Rashmi Bagga clearly mentioned in her expert opinion that IUD could have happened on 08.06.2012. The said expert-Dr.Rashmi Bagga were not cross-examined and confronted by the appellants to this effect. The complainant categorically stated in the complaint that she contacted the doctor on duty ( Govt. Block Civil Hospital, Sector 22, Chandigarh) on 08.06.2012 and produced the reports of blood sugar but the doctors told that the reports were normal and test of GTT was not required. May be, it might be so, that the doctor concerned did not make any entry in her card as the complainant visited the doctors on 2nd and 5th June, 2012 as well but the fact remained that it was not specifically denied in the written statement that the complainant visited the doctors on 08.06.2012.
b) That the perusal of the written statement of the appellants/Opposite Parties shows that it was nowhere stated, that the complainant never came on 08.06.2012. Leave alone medical negligence on the part of the treating doctors of the appellants, it is also evidently clear that the appellants have not approached the District Forum as well as this Commission with clean hands by trying to set up a new plea that the complainant never came up for treatment on 08.06.2012.
c) That there is factual evidence available, on record, that the complainant visited the hospital on 19.04.2012 with the complaint of swelling on her body and since then she had been making complaints of various complications i.e. fever, stomach pain, rashes and allergy and last such complaint on her visit made to the treating doctors of the appellants on 30.06.2012. The appellants misstated the fact regarding the ultrasound having not been done by them even on 30.06.2012. It is further observed from the fact that the P/A (Par abdomen) examination was also not conducted by the doctors in the case of the complainant. Had the proper diagnosis been made, the complainant would have been saved of this life time scar and ignominy of losing her child because of sheer negligence of the appellants.
d) That on going through various documents and expert opinions on IUD (intra-uterine death), it has been underlined and emphasized that it is essential to have the ultrasound examination coupled with other examinations to check the foetal growth. It is the admitted case of negligence on the part of the treating doctors of the appellants that they never ever conducted any ultrasound upon the complainant to know the status of the growth, and development of the foetus. This clearly shows and establishes the gross negligence and lack of reasonable care on the part of the appellants.
e) That loss of maternal weight is considered to be one of the very important symptoms that lead to intra-uterine death (IUD) by medical experts. The appellants have been negligent and careless in every aspect as regards the treatment of the complainant. They did not conduct any ultrasound upon the complainant right from 19.04.2012. Secondly, they did not have any proper diagnosis on their own. It is crucial to be noticed that on 14.05.2012 the weight of the complainant (mother) was 75 kgs. However on 02.06.2012, there was hardly any increase in the weight of the complainant and the weight was 75 kgs. On 05.06.2012, again the weight of the complainant had reduced to 74 kgs which was an alarming sign as per the experts, whose opinions have been relied upon by the appellants themselves. This was highly disturbing sign which had been completely ignored by the treating doctors of the appellants. The experts are of the unanimous view that one of the significant signs of the foetal uterine retardation is the loss of weight or non-gain of weight by the mother(complainant). The weight loss of the complainant was observed on 05.06.2012, but the treating doctors of the appellants took no steps to find out the reasons for the weight loss and there was every possibility that the foetus had been macerated. The observations of Dr.Rashmi Bagga are quite significant, when she mentioned in her expert opinion that it was likely that foetal growth restriction might have been present at the antenatal visit on 08.06.2012. Under these circumstances, the lack of reasonable care on the part of the treating doctors of the appellants is more than writ large on the face of it. In fact, this finding holds good even qua the earlier two dates namely 2nd June and 5th June, 2012 respectively, as even on these two dates, the foetal growth restriction was not detected.
f) That the perusal of the hospital chart reveals that there is no continuity in the treatment given to the respondent/complainant. On 12 different occasions, the treating doctors of the appellants had been different, than the one who examined the complainant on the previous date. In the instant case, there being no continuity in the treatment of the complainant, rather the approach of the treating doctors of the appellants have been tardy, sloppy and extremely casual.
g) In Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, one of the important questions, asked was, as to whether, the Doctor adopted the practice of clinical observation, diagnosis including diagnostic tests in the case, that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. In the instant case, the concerned doctors of the appellants failed in their duties to conduct USG of the complainant inspite of her repeated complaints of swelling in the body, abdominal, pain, rashes and allergies during the months of April, May and June 2012 respectively. By not conducting the USG, an ordinary degree of professional skill and competence was not exercised by the concerned doctors of the Govt.
Block Civil Hospital, Sector 22, Chandigarh.
16. The foregoing findings clearly prove that there was negligence, on the part of the treating doctors of the appellants, for the reason that the treating doctors of the appellants did not conduct any ultrasound on the complainant, never prescribed any rest, nutritious diet for the pregnant lady(complainant) for the foetal growth, never ascertained the position of foetal growth through ultrasound and no foetal growth restriction was detected through any diagnostic test on 08.06.2012 when PoG was at 31st weeks.
17. In view of the foregoing discussion, the District Forum was right in holding that the Intra-Uterine Death of the foetus of the complainant resulted on account of the negligence of the doctors on duty with the appellants/Opposite Parties. Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion Pronounced. Sd/-
25.02.2014 [JUSTICE SHAM SUNDER[RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER cmg APPEAL No. 472 of 2013 ARGUED BY:
Sh.Jatinder Singh, Govt. Pleader for the appellants alongwith Sh.Rajesh Khurana, Advocate.
Sh.Amar Vivek, Advocate for the respondent.
---
Dated _25th __ February, 2014
-.-
On 16.01.2014, the appeal was reserved for orders after hearing the Govt. Pleader for the appellants and the Counsel for the respondent. Thereafter, an application dated 28.01.2014, on behalf of the appellants was moved for grant of opportunity to submit the oral arguments with the assistance of the expert doctor, and to advance the written submissions in support of the case.
2.
Another application for permission to produce additional evidence, by way of the record relating to the visits of the patients on 08.06.2012, on behalf of the appellants, was also moved. It was stated, in the application, that in the order impugned, a categorical finding had been given that the complainant visited the hospital on 08.06.2012 for her routine check and this fact was also mentioned in the complaint. It was further stated that the record was scanned and it was found that the complainant never visited the hospital on 08.06.2012 and did not undergo medical check up on that date. It was further stated that the appellants be permitted to place, on record, the documents, which were submitted alongwith the application on 28.01.2014. It was further stated that these documents are very essential for the proper adjudication of appeal.
3. Notice of the said applications was issued to the respondent/complainant.
4. Reply to the application, was filed by the Counsel for respondent /complainant. It was stated that the application was not maintainable more particularly, when the case had already been reserved for order, after the appellants aided by their functionaries, had not only addressed oral arguments but also submitted written arguments. It was further stated that at no point of time, the issues now sought to be raised were ever raised by the appellants. It was further stated that the fact of visit of the complainant on 08.06.2012 was admitted by the appellants in their reply, by stating that the complainant showed her report on that date. It was further stated that the appellants are seeking to reargue their whole case after the judgment in this case was already reserved, after granting due opportunity of hearing to the parties, and, as such, the leading of additional evidence was totally impermissible at this stage.
5. We have heard the Govt. Pleader for the appellants alongwith Sh.Rajesh Khurana, Advocate, Counsel for the respondent and have gone through the record carefully.
6. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, and, on going through the contents of the application and the documents, we are of the considered opinion, that the application is liable to be rejected for the reasons to be recorded hereinafter. The documents, sought to be placed on record, by way of additional evidence, were very much in possession of the appellants/Opposite Parties. Had, due diligence been exercised by the Opposite Parties, at the relevant time, then the same would have been produced before the District Forum. No party can be allowed to fill in lacunae, in its case, at the appellate stage, especially when the case was already reserved for orders. If these documents are admitted into evidence, at this stage, further delay shall be caused in the disposal of appeal, thereby, defeating the very purpose of the provisions of the Consumer Protection Act, 1986. No ground is, therefore, made out, for allowing the application, and the same deserves to be dismissed. Accordingly, the same is dismissed.
7. Further arguments, in pursuance of the application, referred to in para 1 of the instant order, have been heard.
8. Vide our detailed order of the even date recorded separately, the appeal is dismissed, with no order as to costs. The order of the District Forum is upheld as per the directions contained therein.
9. Copy of the order be sent to the parties, free of costs Sd/-
[DEV RAJ] MEMBER Sd/-
[JUSTICE SHAM SUNDER (RETD)] PRESIDENT Sd/-
[PADMA PANDEY] MEMBER cmg