State Consumer Disputes Redressal Commission
State Of West Benagal vs Sri Akul Pandit on 8 August, 2013
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/112/2012 (Arising out of order dated 02/11/11 in Case No.21/2006 of District Consumer Disputes Redressal Forum, Alipurduar, Jalpaiguri) DATE OF FILING:20/03/12 DATE OF FINAL ORDER:08/08/13 APPELLANTS : 1) State of West Bengal Represented by D.M., Jalpaiguri P.S. Kotwali, Dist. Jalpaiguri 2) Superintendent Alipurduar Sub Divisional Hospital P.O. & P.S. Alipurduar District-Jalpaiguri RESPONDENT : 1) Sri Akul Pandit S/o-Late Lalit Pandit P.O. Chalnirpak P.S. Alipurduar Distict-Jalpaiguri PROFORMA RESPONDENTS : 2) Dr. S. Bera attached to Sub Divisional Hospital Purulia P.O. & Dist. Purulia 3) Dr. S. N. Bhar attached to Sub Divisional Hospital P.O. & P.S. Alipurduar District-Jalpaiguri 4)Metron Female Maternity Ward Alipurduar Sub Divisional Hospital P.O. & P.S. Alipurduar District-Jalpaiguri 5) Smt. Joyeeta Sarkar On Duty Nurse S. D. Hospital P.O. & P.S. Alipurduar District-Jalpaiguri 6) Smt. Sadhana Laskar On Duty Nurse S. D. Hospital P.O. & P.S. Alipurduar District-Jalpaiguri 7) Department of Health & Family Welfare represented by D.M.O.H., Jalpaiguri P.S. Kotwali, Dist. Jalpaiguri BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANTS : Mr. Atin Kr. Mukherjee Ld. Advocate Mr. Anjan Kr. Dutta Ld. Advocate FOR THE RESPONDENTS : Ms. Priyanka Sensarma Ld. Advocate Mr. Sadhan Ch. Debnath Ld. Advocate Mr. Manik Ch. Ghosh Ld. Advocate Mr. Avishek Mondal Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Alipurduar, Jalpaiguri allowing the complaint on contest with cost of Rs.5,000/- and directing the OP No.9 to pay Rs.3 lakh to the complainant as compensation for the mental agony and harassment of the complainant and his wife within 45 days from the date of this order in default a penal interest @ 10% p.a. shall be levied on the unpaid amount till realization.
The case of the respondent/complainant, in short, is that his wife was admitted in the Alipurduar Sub-Divisional Hospital on 31st May, 2006 at 8.05 a.m. under Dr. S. Bera, OP No.2 in connection with delivery. On the same day at about 8.30 a.m. the OP No.3 examined the patient and asked the complainant to bring some medicines and asked the complainant as to why the patient was not admitted in any Nursing Home. At about 1 p.m. the condition of the patient was serious and the mother-in-law of the complainant requested the Duty Nurses, that is, OP Nos.5 to 7, but to no effect. Meanwhile, the head of the baby came out of the womb and at that time the mother-in-law of the complainant again rushed to the OP Nos.5 to 7 and they gave direction to the attending maid (ayah) to bring the patient to the labour room and accordingly the said two ayahs caught hold of the hands of the patient and somehow dragged her to the labour room without providing any stretcher. The said two ayahs closed the door of the labour room and the mother-in-law and other patients who were admitted on the relevant day as indoor patient witnessed the entire episode. The wife of the complainant somehow gave birth to a male child with the help of the two ayahs without any help from the doctors as well as the Duty Nurses. The child specialist OP No.4 Dr. S. N. Bhar examined the child and prescribed some medicines, but the condition of the baby was serious and the OP No.4 referred the baby to North Bengal Medical College & Hospital (NBMCH). The baby was admitted there on 02/06/06 at 1.45 p.m. The baby could not survive and ultimately on 03/06/06 at about 7.15 a.m. expired. It has been alleged that the OPs displayed lack of knowledge and handled the matter carelessly and, as a result, the baby expired. For the said reasons, the complaint was filed before the Learned District Forum claiming compensation of Rs.5 lakh.
The OP Nos.1, 2, 8 and 9 filed W.V. denying all the material allegations raised in the complaint. It is the case of the OPs that it was a case of birth asphyxia which is frequently seen during normal delivery. In this case baby was resuscitated by on duty GNM and the Bed In-charge who were present in the ward at the material time. A paediatrician was called in immediately. There was no birth trauma (head) found as it was not an instrumental or unattended delivery. Dr. S. Choudhury, a paediatrician, examined the baby on 2.52 p.m. The baby was examined twice by Dr. Bhar, a paediatrician, on the next day in the morning as well as in the evening. As the condition of the baby was deteriorating gradually in spite of rendering best medical care and since there was no advanced Neonatal Care Unit in the Hospital, the baby was referred to NBMCH for better management on 01/06/06 at 7.50 p.m. But the relatives of the baby requested not to write the referral card as they were not prepared to transfer the baby before the next morning. At about 11 p.m. an approach was made to Dr. Bhar to write the referral card as the patient party wanted to shift the baby to NBMCH.
The OP No.3 Dr. S. N. Bhar has filed a separate W.V. denying all the material allegations raised in the complaint. It has been averred that he is a paediatrician having medical qualification of MBBS, DCH. He is not a surgeon. The baby was examined by Dr. S. Choudhury, Paediatrician in the labour room and necessary management was provided including oxygen inhalation of the baby. On 01/06/06 the OP No.3 examined the baby on call twice in the morning and in the evening at about 7.50 p.m. The OP No.3 asked the patient party to transfer the baby to NBMCH for better management as even after 24 hours of last possible management available at the Alipurduar Sub-Divisional Hospital, there was deterioration of the babys condition. But the relatives of the baby requested the OP not to write the referral card as they were not prepared to transfer the baby before the next morning. At about 11 p.m. the patient party approached the OP to write the referral card as they wanted to shift the baby to NBMCH.
Accordingly, the baby was referred to NBMCH as there was no proper infrastructure for such patient in Alipurduar Sub-Divisional Hospital. The OP attended on the patient with due care, skill and diligence and he never acted carelessly.
The Learned Counsel for the appellant has submitted that the baby died at the NBMCH which is not a party in the instant proceeding.
It is contended that DM cannot represent the State of West Bengal. It is submitted that there was an enquiry report from which it would be clear that there was no negligence or deficiency in service on the part of the Alipurduar Sub-Divisional Hospital. It is contended that the allegation of unattended delivery has not been proved. It is contended that on 03/06/06 the baby expired at NBMCH. It is submitted that no written objection was filed by the complainant challenging the report submitted by the body of experts. It is contended that the patient party was not agreeable to shift the baby and could not arrange the vehicle and there was contributory negligence on the part of the patient party. The Learned Counsel has referred to the decisions reported in (2009) 7 SCC 130 [C. P. Sreekumar (Dr.) MS (ortho) Vs. S. Ramanujam]; II (2013) CPJ 396 (NC) [Ram Niwas Soni Vs. Vaish Model Sr. Sec. School & Ors.].
The Learned Counsel for the respondent/complainant has submitted that the presence of doctor/nurse at the material time could not be proved by the OPs/appellants. It is submitted that no child specialist was called in and the baby was not provided with oxygen. It is submitted that asphyxia was detected and on 02/06/06 the patient was referred to NBMCH and on 03/06/06 the baby expired. It is submitted that it is a case of unattended delivery and there is utter negligence on the part of the hospital authorities. The Learned Counsel has referred to the decisions reported in AIR 1996 SC 550 [Indian Medical Association Vs. V. P. Shantha & Ors.]; (2010) 5 SCC 513 [V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr.]; AIR 1969 SC 128 [Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole & Anr.]; AIR 1989 SC 2039 [Pt. Parmanand Katara Vs. Union Bank of India & Ors.]; AIR 2004 SC 5088 [Smt. Savita Garg Vs. Director, National Heart Institute]; AIR 1996 SC 2377 [Achutrao Haribhau Khodwa & Ors. Vs. State of Maharashtra & Ors.].
We have heard the submission made by both sides and perused the papers on record. The allegation of the complainant/respondent, in short, is that there was unattended delivery of the patient and, as a result, there was asphyxia; no oxygen was provided and no child specialist was called in by the hospital authority. It is contended by the complainant/respondent that at the time of delivery there was no doctor or nurse complied with the inaction on the part of the hospital authorities at Alipurduar and lack of proper care and treatment on their part which resulted in the death of the baby at NBMCH. The patient was admitted in the Alipurduar Sub-Divisional Hospital on 31st May, 2006 at 8.05 a.m. and the patient gave birth to a male baby at 1.45 p.m. The discharge certificate by Alipurduar Sub-Divisional Hospital shows that the patient was admitted on 31/05/06 and discharged on 02/06/06. The referral card shows that the baby was referred to NBMCH on 01/06/06 at 11.20 p.m. and the patient was admitted at NBMCH on 02/06/06 at 1.45 p.m. and on the next date, that is, 03/06/06 at 7.15 p.m. the baby expired and the cause of death was Hypoxic ischemic encephalopathy, stage-III. It appears that an Enquiry Committee was constituted by the Superintendent, Alipurduar Sub-Divisional Hospital vide order dated 07/06/06 comprising of the Chairman and four members. The enquiry report dated 26/06/06 shows that the baby was delivered at 1.45 p.m. by sister Joyeeta Sarkar, GNM after giving episiotomy with the assistance of on duty GDA, Rama Biswas. It has been mentioned in the enquiry report that birth asphyxia is frequently seen during normal delivery and in this case asphyxia was properly managed by the on duty nursing staff and bed in-charge who were present in the ward at that time.
It has been mentioned that without any delay the paediatrician was called in and there was no question of birth trauma (head) as it was not an instrumental or unattended delivery. The report further shows that the baby was subsequently examined by Dr. S. Choudhury, paediatrician at 2.52 p.m. and managed accordingly. It has been mentioned in the report that the baby was subsequently examined twice by Dr. S. N. Bhar on the next day in the morning and in the evening and he referred the baby to higher centre (NBMCH) as the condition of the baby deteriorated on the next morning (01/06/06) in spite of full medical care. The comment of the Chairman was that the asphyxiated baby was resuscitated and the subsequent treatment was given by the paediatrician and as there was no advanced Neo Natal Care Unit in the hospital, the deteriorating baby was referred to NBMCH. The final opinion was that the alleged negligence on the part of the on duty nursing staff and attending doctors did not stand.
In Paragraph-8 of the complaint it has been averred that the complainant hopelessly failed to arrange vehicle or ambulance for taking the baby to NBMCH and on the next morning the complainant somehow managed the vehicle and hired the oxygen cylinder and the baby was ultimately taken to NBMCH on 02/06/06 at 1.45 p.m. The referral card shows that the baby was referred on 01/06/06 at 11.20 p.m. The inability of the complainant to arrange for the vehicle for shifting the baby from Alipurduar Sub-Divisional Hospital to NBMCH is a circumstance which goes against the contention of the respondent/complainant. We are of the considered view that it speaks of contributory negligence on the part of the respondent/complainant. The complainant did not file any written objection before the Learned District Forum against the report of the expert committee. Under such circumstances, we hold that there is nothing to disbelieve the expert report. Moreover, the appellant, that is, State of West Bengal represented by District Magistrate had no role to play in the matter and the Learned District Forum was not justified in passing the impugned judgment and order.
We are of the considered view that the respondent/complainant is not entitled to get any relief.
The appeal is allowed. We set aside the impugned judgment and order. The petition of complaint is dismissed. We make no order as to costs.
MEMBER(L) PRESIDENT