National Consumer Disputes Redressal
Masih Hospital & Ors. vs Kuldeep & Anr. on 1 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 685 OF 2013 (From order dated 26.11.2012 in First Appeal No.1173 of 2011 of the State Consumer Disputes Redressal Commission, HARYANA, PANCHKULA) 1. Masih Hospital Through its Incharge, Dr.R.Masih 1, Sarojani Colony, Phase-I, Yamuna Nagar 2. Dr.R.Masih, Masih Hospital 1, Sarojani Colony, Phase-I, Yamuna Nagar 3. Dr.Suman Masih, Masih Hospital 1, Sarojani Colony, Phase-I, Yamuna Nagar Petitioners Versus 1. Kuleep, S/o. Sh.Mam Chand 2. Miss Kitu (Minor) D/o Sh. Kuldeep Both R/o Village Karerakhurd, Post Office Karerakhurd Tehsil Jagadhri, District Yamuna Nagar 3. United India Insurance Co.Ltd. Through its Divisional Manager 54, Janpath, Connaught Place, New Delhi Respondents BEFORE: HONBLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the petitioner s : Mr. Naveen Pandey, Advocate PRONOUNCED ON 01.04.2013 O R D E R JUSTICE J.M. MALIK 1. In this revision petition, we are dealing with the allegation of medical negligence on the part of the petitioners/OPs, i.e. Masih Hospital through its Incharge, Dr. R.Masih, Yamuna Nagar, No.1, Dr.R.Masih, No.2 and Dr.Suman Masih, No.3. For the purpose of reimbursement of any compensation amount, United India Insurance Co.Ltd. has been arrayed as Respondent No.3, in this case. 2. The facts germane to the present case are these. Smt.Geeta Devi, since deceased, was the wife of Sh. Kuldeep, complainant No.1. Smt.Gita Devi was in a family way. The patient was a primigravida (pregnant with first child) She felt labour pains. She was admitted in the hospital/OP1 on 16.12.2007. The Doctor assured her that the delivery would be normal. Subsequently, she was told that cesarean operation was required. The patient was asked to deposit a sum of Rs.12,000/- on account of operation fee and hospitalization. The said amount was accordingly deposited. 3. On the same day, cesarean operation was conducted and Smt.Geeta Devi gave birth to a female child. However, the condition of Smt.Geeta Devi did not improve. As per advise given by the OPs, Smt.Geeta Devi got the ultrasound of whole abdomen and X-Ray Ultrasound from Dr.Mehtas X-Ray & Ultrasound, on 24.12.2007. After perusing the ultrasound report, the OPs referred Smt.Geeta Devi to Government Medical College & Hospital, Sector-32, Chandigarh, for further treatment. She was admitted in the Chandigarh Hospital where operation was conducted again. However, the condition of Smt.Geeta Devi did not improve and ultimately, she unfortunately, passed away on 28.12.2007. 4. The Autopsy of the dead body was conducted and it transpired that the death was caused due to puerperal sepsis. The Doctors at Chandigarh Hospital informed them that Smt.Geeta Devi was suffering from septic due to the negligence of the OPs while conducting operation on her at the time of delivery of the child. They also explained that the she was referred to them at a very late stage. 5. The complainants spent an amount of Rs.24,000/- at the Hospital of the OPs and incurred a sum of Rs.30,000/- at Chandigarh Hospital. A complaint was filed by her husband Sh.Kuldeep and her minor daughter, Baby Kitu, with the District Forum that the OPs were negligent and deficient in discharge of their duty. 6. The OPs enumerated the defences as follows. The patient was attended by a mid-wife who was trying to deliver her baby, but failed. On 23.12.2007 at 11.00PM, she was recovering, when she started having abdominal cramps, vomiting and loose motions after eating paneer, at night, from a Dhaba. Immediately, decision for LSCS was given to the patient. Moreover, the Husband of the patient wanted a normal delivery and so refused for cesarean operation and took away the patient for 2nd opinion and came back after one hour, agreeing for the surgery as the other doctor also had given the same opinion. 7. District Forum, after hearing the parties, allowed the complaint and granted compensation in the sum of Rs.9,11,000/-, jointly and severally against all the four OPs. 8. Aggrieved by that order, OPs preferred an appeal before the State Commission. The State Commission too, dismissed the appeal vide order dated 26.11.2012. 9. We have heard the learned counsel for the petitioners at the time of admission of this case who made the following submissions. He stressed that Doctors were not negligent. The above said incident took place because the deceased had taken paneer from a Dhaba, which resulted in infection. It is contended that the delivery was normally affected. The deceased herself spoiled her condition which caused all the problems. The mid-wife had further increased the problems. She handled her by doing multiple aseptic per vagina examination while trying to deliver her and immediate decision for LSCS was given. A female baby was delivered at 1.29 PM weighing 1.75 Kgs. It was argued that the wound was sutured, uterus sutured in two layers and visceral peritonisation was done. The abdomen sutured in layers and skin sutured with barber cotton thread. LSCS operation was performed by Dr.Suman Masih and Dr.R.Masih with the help of Anaesthetist Dr.Shubham and other qualified and trained staff of the hospital. The baby was seen by Dr.Sachin Garg, Paediatrician. The post-operative condition of the patient was stable with BP 118/76, Pulse 114/minute and SPO2-99%, patient was alright and recovering well till 23.12.2007, 11.00PM, when she started having abdominal cramps, vomiting and loose motion after eating paneer at night from Dhaba. All the treatment was given. Since the patient did not recover, she was referred to the Government Medical College Hospital, Chandigarh. 10. All these arguments lack conviction. This is an admitted fact that in the record produced before the District Forum by the OPs, nowhere it is mentioned that the patient was carrying any genito urinal infection or bad pelvic hygienic and it is not mentioned in the record that Smt.Geeta Devi was examined by a mid-wife, before she was admitted in the OPs Hospital. The cesarean operation was conducted on the same day. A healthy female child was delivered. The treatment record shows that the patient was recovering normally till 23.12.2007, but suddenly became serious. It is not understood why the patient was allowed to take paneer from a Dhaba. The patient was not still discharged. She was supposed to take the food from the Hospital itself. There is no proof that she had consumed paneer as alleged. There is no such report. In case the allegation made by the OPs is correct, then they should have shown to the Fora that the paneer contained same bacteria, which was found in the body of the deceased. The pieces of paneer should have been examined and preserved, in order to save their own skin. As per the orders passed by the Fora below, it is also difficult to understand as to how paneer can cause frank pus in the abdominal cavity, in such a short period. It is clear that the deceased suffered post-operative excessive bleeding resulting into septicemia shock, resulting into renal functional impairment along with liver damage. The record from the Government Hospital reveals that the patient was diagnosed as acute peritonitis/post LSCS and septic shock. The deceased was transferred to surgery department for exploratory laparotomy. She was operated on 27.08.2007 and approximately 700 ml pus was drained from abdominal cavity and inter bowel loops pus was also present. She had been bleeding post-operatively for which she was operated again and bleeding was stopped. On 27.12.2007, she was shifted to ICU and put on ventilator. Her condition gradually deteriorated and she expired on 28.12.2007. Such a big quantity of pus cannot crop up in a jiffy. 11. The District Forum has placed reliance on the Honble Apex Courts authority reported in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 (5) SCC, 513. The facts speak for themselves and there is no need to call for an expert evidence. 12. Res Ipsa Loquitor is one form of circumstantial evidence that permits a reasonable person to surmise that the most probable cause of an accident was the OPs negligence. Negligence is a breach of duty to take care resulting in damage to ones person or property. However, the Blacks Law Dictionary defines negligence as under:- Negligence per se Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes. 13. The District Forum has meticulously kept in mind that the patient died when she was young. She left behind her, a small baby who was just 3 months old, at the time of filing of this complaint. Keeping all the facts and circumstances of the case, the compensation was rightly granted. 14. The State Commission has also placed reliance on Achutrao Haribhau Khodwa & Ors. Vs.State of Maharashtra & Ors. 1 (1996) CLT 532 (SC). 15. The revision petition is without merit and the same is dismissed with costs in the sum of Rs. 10,000/-, to be deposited with the Consumer Welfare Fund established by the Central Government under Section 12 (3) read with Rule 10 (a) of the Consumer Protection Act, 1986, of the Central Excise Act, 1944, within one month from the date of the order, otherwise, it will carry interest at the rate of 10% p.a. ...
(J. M. MALIK,J.) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER dd/11