National Consumer Disputes Redressal
Dr. Girja Kotha Koal vs J.K. Tripathi & Ors. on 7 January, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2387 OF 2008 (From the order dated 15.01.2008 in First Appeal No. A-26/04 of DELHI State Consumer Disputes Redressal Commission) Dr. Girja Kotha Koal, Gynaecologist Clinic at Choudhary Surgreev Singh Market, Nehru Vihar, Main Karawal Nagar Road, Delhi 110094. ... Petitioner Versus 1. J.K. Tripathi s/o S.S. Tripathi 2. Kusum Tripathi w/o J.K. Tripathi both residents of A 455, Street No. 48, West Karawal Nagar Delhi 110094. 3. St. Stephens Hospital through its Director, Tis Hazari, Delhi 110054. Respondent(s) BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mohd. Ikram, Advocate For the Respondent1 In person For the Respondent2 Mr. J.K. Tripathi, Authorised Rep. For the Respondent-3 Ms. Phaguni N. Lal, Proxy Adv. for Mr. Rajeev Sharma, Advocate PRONOUNCED ON : 7th JANUARY 2014 O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 15.01.2008, passed by the Delhi State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. 26/04, J.K. Tripathi & Ors. versus Dr. Girja Kotha Koal, vide which the order dated 11.11.2003 passed by the District Consumer Disputes Redressal Forum, dismissing the consumer complaint in question, was set aside and the appeal was allowed and the petitioner was ordered to pay a compensation of Rs.25,000/- to the complainants/respondents.
2. Brief facts of the case are that J.K. Tripathi and his wife Kusum Tripathi had been visiting the clinic of the petitioner/OP Dr. Girja Kotha Koal regarding some gynae problems of complainant no. 2 Kusum Tripathi. In October 1999, the complainant no. 2 showed indication of positive pregnancy and since then, she had been regularly visiting the said clinic along with her husband. On 22.03.2000, she felt mild pain in her stomach, whereupon she visited the clinic of the petitioner and explained the problem to the Doctor. It has been alleged that the Doctor did not apply her mind diligently as she was busy in abortion cases. She advised that there was infection in the urine and it was not a labour pain. However, on 23.3.2000 at 2:00 am, i.e., a few hours after visiting the clinic, the complainant no. 2 developed unbearable pain, but the petitioner could not be contacted and consequently, complainant no. 2 was taken to St. Stephens Hospital where she delivered a pre-mature child, after seven months of pregnancy. The child had to be kept on incubation for the next 57 days, during which the complainant suffered mental agony, harassment and emotional suffering. Their two other children also suffered due to engagement of the complainants with the hospital. The complainants demanded a sum of Rs.1,01,000/- through the consumer complaint filed before the District Forum. The petitioner on the other hand stated that pre-mature delivery is not a rare phenomena at all and its occurrence in the instant case cannot be taken as evidence of medical negligence. The pre-mature delivery can occur due to various reasons. The District Forum after taking into account the evidence of the parties, dismissed the consumer complaint, saying that the OPs had not been found guilty of any negligence. However, the State Commission allowed the appeal against the order of the District Forum and directed the present petitioner to pay a compensation of Rs.25,000/- to the complainants. It is against this order that the present petition has been made.
3. At the time of hearing before us, learned counsel for the petitioner stated that the petitioner had taken extra care to ensure that pre-mature delivery does not take place but such cases had been occurring worldwide and hence, in the instant case, it could not be stated that there was any negligence on the part of the Doctor. Learned counsel further stated that the District Forum had reached the right conclusion and dismissed the complaint in question. Further, the petitioner had been prescribing medicines to complainant no. 2 from time to time, but the complainants had not visited the clinic after 4.1.2000 for follow-up of the treatment. Learned counsel stated that the petitioner was running a clinic and not a nursing home and she had advised the complainant to get herself registered with a Government or Private Hospital for proper and regular ante-natal check-up and delivery. The learned counsel has drawn our attention to copies of medical literature in support of her version.
4. Learned counsel for the complainants/respondents, however, stated that the petitioner did not properly apply her mind to the condition of complainant no. 2, on 22.3.2000 and she stated it to be a case of urine infection only. Learned counsel has further drawn our attention to a prescription made by the petitioner on 20.12.1999, saying that the Doctor had prescribed medicines on 20.12.1999 and 4.1.2000. Learned counsel has also drawn our attention to the judgement delivered by the Honble Supreme Court in Indian Medical Association versus V.P. Shanta & Ors. [(1995) (6) SCC 651] saying that the Doctor was negligent in handling the present case and hence guilty of deficiency in service.
5. Learned counsel for the St. Stephens Hospital, respondent no. 3, stated that as per the orders passed by the State Commission, St. Stephens Hospital had not been held responsible in any manner for not giving proper treatment to the patient. The complainant had not challenged the order of the State Commission, meaning thereby that they were not seeking any relief against respondent No. 3.
6. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. The admitted facts of the case are that the complainant Kusum Tripathi has been under the treatment of the petitioner in connection with her pregnancy and she had been visiting her hospital from time to time. A perusal of copy of the prescription given by the petitioner Dr. Girja Kotha to the complainant reveals that her qualification is MBBS, DGO (Diploma in Gynaecology & Obstetrics) as stated on her letter-pad. It is clear, therefore, that the petitioner was fully qualified to deal with the case of pregnancy in hand.
The first prescription as per record has been given on 20.12.99, and at the back of said document, further prescription written on 4.01.2000 has been recorded. In reply to the consumer complaint filed before the District Forum, the petitioner has stated that in the absence of any document, it was not possible to comment on the contents of the paragraph under reply. However, in the revision petition, the petitioner has clearly admitted that she prescribed medicines to the complainant on 20.12.99 and then again on 04.01.2000. It has been categorically stated in the revision petition that the complainant had signs of threatened abortion and accordingly, the petitioner prescribed the medicines for pre-empting, pre-mature labour. All medicines mentioned on the prescription and reproduced in the petition were for preventing threatened abortion or pre-mature delivery with a view that the pregnancy should go through full term. The petitioner has further mentioned that even after diligently taking all these medicines and exercising extreme care and caution and restricting oneself to minimum physical activity, the patient in 30% to 40% of the cases do not reach the full term of pregnancy. The petitioner after referring to the medical literature on the subject has also tried to say that pre-mature delivery is not a rare phenomena.
The main ground taken by the complainant against the petitioner says that when she came to the petitioner on 22.03.2000 at 10 AM and complained of mild pain, suspecting it to be labour pain, the petitioner did not give her much attention, as she was busy in abortion cases and just asked her to go for urine test. From the stand taken by the petitioner in the petition, it is clear that being a qualified gynaecologist and fully knowing that it could be a case of pre-mature delivery, she should have examined the patient to find out whether it was a case of labour pain or not. On the other hand, she asked the patient to go for urine test. The said urine test was conducted in the laboratory of the petitioner herself and report of this test has been placed on record by the respondent/complainant alongwith their counter-affidavit to the revision petition. It is very clear, therefore, that complainant did visit the petitioner on 22.03.2000 and got her urine examination done in her laboratory. However, the petitioner has tried to say that she is not aware whether the complainant came to her on 22.03.2000, although, she has nowhere denied that the complainant came to her on that day. Further, the respondent has placed on record a copy of the expert opinion given by Dr. C.P. Rai, MBBS, MD (Obst. & Gyna.) in which he has stated that this was a case of clear-cut deficiency and negligence in service due to carelessness. Dr. Rai has clearly stated that at the stage of threatened abortion of 12 weeks, proper treatment was not given. If the diagnosis was clinched properly at that time, the pregnancy could have been pushed to full term.
7. Vide impugned order, the State Commission after applying the criteria for medical negligence, as contained in Bolams case and the judgement delivered by the Honble Supreme Court in Indian Medical Association versus V.P. Shanta & Ors. [1995 (6) SC 651], reached the conclusion that it was a case of medical negligence particularly when the Doctor happened to be a skilled person and possessed requisite medical qualification. It is clear from the facts on record as stated above that when the complainant visited the petitioner on 22.03.2000 in the morning hours, she did not make any attempt to examine her and to find out whether she was suffering from labour-pain at that time or not ?
8. From the foregoing discussion, it is clear that the impugned order has been passed after making detailed analysis and correct appreciation of the facts on record and there is no infirmity, illegality or jurisdictional error in the same for which any interference may be called for, through the present revision petition. The impugned order is, therefore, upheld and the Revision Petition is ordered to be dismissed with no order as to costs.
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(K.S. CHAUDHARI J.) PRESIDING MEMBER Sd/-
(DR. B.C. GUPTA) MEMBER RS/