State Consumer Disputes Redressal Commission
Devi Nand vs Dr. Mrs. Neelam Bansal, Neelam Hospital ... on 16 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1327 of 2009
Date of institution : 20.11.2008
Date of decision : 16.05.2013
Devi Nand, R/o Village Uksi Jattan, Tehsil Rajpura, District Patiala.
.......Appellant- Complainant
Versus
1. Dr. Mrs. Neelam Bansal, Neelam Hospital and Maternity Home,
15-16-E, Gobind Colony, Rajpura.
2. Dr. Prem Raj Gupta, Neelam Hospital and Maternity Hospital,
15-16-E, Gobind Colony, Rajpura.
3. Neelam Hospital and Maternity Home, 15-16-E, Gobind Colony,
Rajpura through its Owner/Proprietor/Partner Dr. Mrs. Neelam
Bansal.
4. United India Insurance Co. Sai Market, Lower Mall, Patiala.
......Respondents- OPs.
First Appeal against the order dated
2.9.2008 of the District Consumer Disputes
Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Shri Abhishek Arora, Advocate. For respondents No.1-3: Shri Munish Goel, Advocate. For respondent No.4 : None.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Devi Nand, has preferred this appeal against the order dated 2.9.2008 passed by the District Consumer First Appeal No.1327 of 2009. 2 Disputes Redressal Forum, Patiala (in short "District Forum"), vide which his complaint for issuance of directions to the respondents/opposite parties to pay a compensation of Rs.1.5 lakh as expenditure incurred and to be incurred on the medical treatment of the child and Rs.3 lakh as damages, was dismissed.
2. As per the averments made by the complainant, in his complaint, he got his wife Mrs.Rajni admitted in the hospital of opposite parties No.1 to 3 on 4.12.2005 and a male child was delivered on 6.12.2005 at 11.05 P.M. through normal delivery. A sum of Rs.2650/- was paid to opposite party No.1 for the delivery of the child. He was informed by opposite party no.1 that the child was normal and both the mother and child were doing well and they were discharged from the hospital on 7.12.2005. The child appeared to be normal but gradually over a period of two days he started showing symptoms of indigestion which is quite usual with small infants. Initially the child would drink milk, would retain some and throw up the rest. Ultimately, his condition became such that he refused to accept the milk at all upon which he and his wife decided to consult some doctor. During all this period, the child did not pass any stool. Taking that to be a reason for indigestion his wife thought of applying some lubricant in the rectum of child to enable him to pass stool. She was shocked when she found that there was no rectum of the child and it was on that account that he could not pass the stool. That malformation was from the birth itself. It was for opposite party No.1 to examine the newly born properly and First Appeal No.1327 of 2009. 3 to take care of all the eventualities. Had that party been careful and disclosed the non-formation of the rectum the child would not have been tortured to that extent. Understanding the gravity of the situation, they took the child to Sadbhavna Medical and Heart Institute, Opposite State College of Education, Patiala on 10.12.2005 and at that time they were accompanied by one Mr. Rishi and their other relatives and friends. The child was immediately hospitalized and operated upon by Dr. H.S. Wealthy and before that operation the child was given an incision in the stomach for draining out the faecal matter. All that process took nearly one and a half hour. The child had to be kept in incubator for the improvement of his jaundice and other problems and he is on medication since then. The child developed all the complications as malformation had not been treated initially. He had to pay Rs.23,800/- to the hospital for the treatment of the child. On account of non-passing of the stool, the bowels of the child were got infected for which he had to spend one year of his life with drainage pipe. After the treatment from Dr. Wealthy, the child was taken to PGI, Chandigarh for further heart problem which he suffered on account of non-treatment by opposite party No.1. All the complications in the condition of the child appeared on account of the initial negligence of the attending doctor. As per the discharge slip given by opposite party No.1, she is not only a gynaecologist and also an Obstetrician undertaking obstetrical operations also. Therefore, she was required to give the requisite treatment immediately after the First Appeal No.1327 of 2009. 4 delivery. Had that been done, the child would have been saved from the subsequent sufferings, who had been struggling for survival. The child is still to undergo more surgery and prolonged treatment. He suffered mental agony, harassment and financial loss on account of the negligence and deficient services on the part of the opposite parties. In all he spent Rs.40,000/- on the treatment of the child. He served a legal notice upon the opposite parties for compensation but to no avail.
3. Opposite parties No.1 to 3 filed a joint written reply. They averred therein that it was opposite party No.1, who conducted the delivery of the patient at opposite party No.2 hospital and opposite party No.3 is in no way concern with the case, though he is working in the nursing home of opposite party No.1. There is no specific allegation made for pin-pointing negligence or deficiency in service in care or delivery. The management of the normal delivery as per the textbook and the type of treatment given was like that of any prudent doctor. There is no specific medical scientific and justified allegation levelled in the complaint regarding the negligence or deficiency in providing the service. The medical treatment was given with due care and caution. Opposite party No.1 had diagnosed imperforated anus just before the discharge and referred the child to pediatric surgeon. Otherwise the child was apparently normal. It was the complainant, who did not follow the instructions of that opposite party of referral of new born baby for operation of imperforated anus to pediatric surgeon. The complainant did not come back till 10.12.2005 and as such, First Appeal No.1327 of 2009. 5 opposite party No.1 is not responsible for not bringing the baby and keeping the same at home till that date. In fact, it was that party, who had referred the child to Dr. Wealthy on 7.12.2005 for the operation but the child was not taken and the complainant made a false story of self-diagnosis and self said referral. The complaint is baseless and flagrant abuse of process of law to harass and blackmail them. All the treatment and post operative care was given as per the approved methods. They were not responsible for imperforated anus, which was a birth defect. Negligence on their part cannot be assumed. They referred to a number of medical authoritative books in their reply on the principle of medical negligence.
4. Opposite parties No. 1 to 3 filed an application for impleading Insurance Company as opposite party No.4, which was allowed by the District Forum, vide order dated 28.3.2006 and the Insurance Company was impleaded as such. After notice was issued to this opposite party No.4, the written reply was filed by it. Similar pleas as taken by other opposite parties have been taken in that written reply. In addition to that, it pleaded that the complicated questions of law and facts are involved and, as such, the District Forum has no jurisdiction to try the complaint. The complainant does not fall under the definition of 'consumer' and has got no locus-standi to file the complaint.
5. The parties in support of their respective averments produced evidence before the District Forum, which after going through the First Appeal No.1327 of 2009. 6 same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
6. We have heard learned counsel for the parties and have carefully gone through the records of the case.
7. It was submitted by learned counsel for the complainant that opposite party No.1 being a Gynaecologist and Obstetrician should herself had operated upon the newly born child, who was having no anus or, at least, she was required to disclose about that fact to the complainant at the time of the discharge of the child from her hospital. This act and omission on the part of opposite party No.1 amounts to negligence and deficiency in service for which the opposite parties are liable to pay the compensation as claimed in the complaint. It was on account of that act and omission on the part of opposite party No.1 that the child was tortured and the parents suffered mental torture. The child could not pass any stool and his health deteriorated, as no anus was formed. Had that fact been disclosed by opposite party no.1 at the time of discharge, the complainant must have taken the child to some child specialist for performance of the operation. That nature of torture of the child and mental torture of the parents is also to be kept in mind while determining the quantum of compensation.
8. On the other hand, it was submitted on behalf of respondents No.1 to 3/opposite parties No.1 to 3 that there was no such negligence or medical negligence on the part of opposite party No.1. It was a normal delivery and after the delivery the child was examined and it First Appeal No.1327 of 2009. 7 was found that he was having imperforated anus and that facts was brought to the notice of the complainant and it was opposite party No.1 herself, who had referred the child to Dr. Wealthy to whom the child was taken. The negligence, if any, was on the part of the parents of the child in not taking him to that doctor immediately after the discharge from the hospital of the opposite parties.
9. As per the book 'Principles of Obstetrics' by Bryan M. Hibbard Ex.C-26, a detailed examination of the new born infant should be conducted as is reasonable after birth and in any case within first 24 hours. The same is done by the paediatrician but often is undertaken by the obstetrician or general practioner. A detailed examination is required clinicians' approaches to the routine examination of the infant vary. Some make standard organ assessment as in adult examinations. Another method which has much to commend it is the so-called top-to-toe method. Under the heading 'Anal atresia', the following is mentioned:-
"If an infant shows signs of intestinal obstruction with an even marked distension of the abdomen, but the anus itself appears patent, a soft rubber catheter should be passed through the anal canal to exclude lower rectal or anal atresia.
Imperforate anus is obvious. It is often
associated with a fistula between the blind colon
and bladder."
First Appeal No.1327 of 2009. 8
10. It is the case of the complainant, pleaded in the complaint, that the child from the day of his birth had not passed any stools and when his mother was trying to apply some lubricant in the rectum to enable him to pass the stools, it was found that there was no rectum at all. As per the Child Health magazine of Indira Gandhi National Open University School of Health Sciences Ex.C-28, the first stool that the new born passes is a dark, greenish black, sticky substance called meconium and the meconium is first passed within 24 hours of birth (except when it has been passed in-utero as in some fetuses). The non- passage of meconium within the first 24 hours is cause for concern and it may indicate intestinal obstruction and such children should be immediately referred for investigation and appropriate treatment. As per the Textbook of Obstetrics by Dr. D.C. Dutta Ex.C-9, delay in the initial passage of meconium for more than 12 hours after birth requires observation.
11. It is the admitted case of the parties that Rajni was admitted in the hospital of the opposite parties on 4.12.2005 and was discharged on 7.12.2005. By way of normal delivery, she delivered the child on 6.12.2005 at 11.05 P.M. Neither the complainant in his affidavit Ex.C1 nor the opposite parties in their affidavit Ex.R-1 have mentioned the time at which Rajni was discharged from the hospital on 7.12.2005. However, in the affidavit of the opposite parties it is deposed that on 7.12.2005 itself the child was referred to Dr. H.S. Wealthy for operation of imperforated anus. To the same effect is the affidavit of First Appeal No.1327 of 2009. 9 Mamta Sharma Ex.R-3, who was working as Assistant to opposite party No.1 and in whose presence, the child was so referred. It can well be assumed, from these depositions, that the mother and the child were discharged from the hospital in the morning of 7.12.2005. If there was no passing of stool during that period, that was a cause of concern for the mother and the other attendants. The oral evidence produced by opposite parties No.1 to 3 that the child has imperforated anus was brought to the notice of the complainant stands corroborated by the treatment file, which was being maintained by opposite parties No.1 to 3 and was proved on the record as Ex.R-2. It is clearly mentioned in that file that on 7.12.2005, on examination of the child, it was found that he had imperforated anus and was advised to consult Dr. Wealthy at Patiala for treatment and it was only thereafter that the patient was discharged. From this evidence, it stands proved that the fact that the child had imperforated anus was brought to the notice of his parents on the very next day of the birth of the child and at the time of discharge from the hospital they were advised to take him for further treatment to Dr. Wealthy.
12. From the above evidence produced on the record, it also stands proved that the complainant has come out with a concocted and afterthought version about the negligence on the part of the opposite parties and that they were medically negligent in not examining the child and recovering the non-formation of the anus. The complainant himself proved on record 'Child Immunization Record' of the child First Appeal No.1327 of 2009. 10 Ex.C-3, which is that of the opposite parties. As per that record, this child was vaccinated for B.C.G. and Hepatitis-B on 14.12.2005. As per the averments made in the complaint, the complainant had come to know about the alleged negligence on the part of the opposite parties No.1 to 3 after two days of the discharge of the child from the hospital i.e. on 9.12.2005. If the complainant had come to know about any such negligence, which was grave negligence, he would not have taken the child to these very opposite parties for vaccination. He would have taken the child for vaccination to them only in case he had faith in them. The prescription slip of Rajni dated 7.12.2005 has been proved on the record as Ex.C-2. The medicines described therein were prescribed at the time of her discharge on 7.12.2005 by opposite party No.1. As per this prescription slip, she again went to that opposite party on 16.12.2005. If the story, as propounded by the complainant in the complaint is correct, his wife would not have gone to the same doctor for further treatment. It is also to be noted that it is highly improbable that a mother will not herself examine, on account of non- passing of the stool, the newly born child for two days as to whether there was a passage by way of anus for passing of the stool. It cannot be believed that the complainant and his wife waited for three days in the house itself and removed the child to the pediatrician on
10.12.2005.
13. From our above discussion, we conclude that the complainant has not come out with a truthful version and that there was no medical First Appeal No.1327 of 2009. 11 negligence or negligence on the part of the opposite parties. Correct findings were recorded by the District Forum and the same are upheld. We do not find any merit in this appeal and the same is hereby dismissed.
14. The arguments in this case were heard on 9.5.2013 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
May 16, 2013 (BALDEV SINGH SEKHON)
Bansal MEMBER