S.C. CASE NO.: FA/2009/282 DATE: 10.11.2009



DATE OF FILING: -29.07.2009



APPELLANT : Smt. Rita Mondal, W/o Sri. Dulal Mondal,

P.O. & Village-Barekashiara, P.S.-Burdwan,

Dist-Burdwan.





RESPONDENTS : 1. Dr. Swapan Ghosh,

M/s. Sebalaya Nursing Home, Kotaldhat,

Burdwan-713104.



2. Dr. Sunil Kumar Roy, Gynecologist,

422, Khanpukur, Kanla Gate, Burdwan, Dist-Burdwan.



3. Dr. Ramananda Mondal, Surgeon,

Sankharipukur Sadarghat Road, Burdwan-713103.



4. Proprietor/Manager/RMO, M/s.

Sebalaya Nursing Home, Kotalhat,

P.S.- Burdwan, Dist- Burdwan-713104.




BEFORE: HON’BLE MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.



FOR THE APPELLANT : Sri. Subhasish Saha &

Sri. Tapan Chakraborty Advocate.

FOR THE RESPONDENTS : 1-4 Sri. Debdas Rudra, Advocate.


-ORDER-


S. Majumder, Member.



This appeal has been directed against the judgment passed by the District Forum on 30.09.2009, in its case no-349/2003, wherein the Ld. Forum has dismissed the complaint on contest without any cost.



The brief facts of the case of the Complainant before the Forum below were that being an expected mother the Complainant was brought to the Burdwan Hospital by her husband where pain for child birth was started and as per the advice of the OP-1 she was admitted at Kalibazar Nursing Home. Thereafter she was transferred to Sevalaya Nursing Home by the OP-1 and on 25.03.2002 at about 11 a.m. she was checked by the OP-1 who opined that there would be caesarian operation due to some difficulties of the Complainant and OP-2 was called for by the OP-1. The OP-3 the surgeon entered in the labour room at 7.30 p.m. on the same day and the operation was done by the OP-3 and the baby was brought out from the womb of the Complainant. At the time of operation there was excessive blood loss but there was no arrangement for blood transfusion. The Nursing Home also had no arrangement for treatment of a newborn baby. As per instruction of the OP-1, 2 and 3 Dr. Kripasindhu Chatterjee of Burdwan Nursing Home was consulted and the baby was admitted to Burdwan Nursing Home but on 27.03.2002 the baby died. The Complainant was discharged from the Nursing Home and thereafter she was admitted in Appolo Nursing Home of Burdwan. As the condition of the Complainant was not improving she was sent to Christian Medical College and Hospital at Vellore. According to the Complainant the Op-1, 2 and 3 were fully responsible for the death of her baby and for sufferings of her. Hence she filed the complaint before the Forum below alleging medical negligence and deficiency in service of behalf of the OPs and for this reason compensation has been prayed for.



Being aggrieved by the above-mentioned judgment the Complainant-Appellant has preferred the present appeal before this Commission contending the same facts as stated by her in the complaint petition before the Forum below. According to the Appellant the judgment passed by the Forum below is erroneous, illegal and liable to be set aside and she has prayed for allowing the present appeal.



For adjudication of this appeal moreover when this appeal is related with the medical negligence, we have called for the LCR from the Forum below.



On careful perusal of the LCR and and several documents it is seen by me that it is an admitted fact that the Complainant-Appellant was admitted in the Sebalaya Nursing Home for delivery and was under the treatment of OP-2 since her conceived and the OP-3 did caesarean operation. The allegation of the Complainant-Appellant is that the OP-1 misinterpreted him as a gynae and treated her till her admission in the Nursing Home. But in this context the Appellant has failed to adduce any evidence that medical treatment was provided by the OP-1 or the OP-1 received any fees for such treatment. Without any document we are unable to believe such allegation against the OP-1. As the Complainant has made no payment to the OP-1 for providing treatment, the Complainant cannot be termed as a consumer of the OP-1 within the purview of the Consumer Protection Act, 1986.

The Complainant has made out the case alleging medical negligence against the doctors and the Nursing Home as the baby died due to perimetal asphyxia and the Complainant had puperal sepsis. According to the Complainant there was delay in caesarean operation and for this reason the baby had trouble of oxygen and ultimately the baby died. Further case of the Complainant is that there was no arrangement of posting pediatric in the Nursing Home and due to negligence of the Nursing Home she was attacked by septicemia. Regarding the above-mentioned allegation I have noticed upon scrutiny of the prescription of the Nursing Home that the Complainant was admitted in the Hospital at 7 p.m. on 24.03.2002 and mild pain has been occurred at about 2.30 p.m. on the next day i.e. 25.03.2002 and on the said day preparation was started for operation and ultimately operation was done at 6 p.m. on the said day and the baby was taken out from the womb of the Complainant. The question is that whether due to such delay of three hours performing the operation asphyxia of the baby may caused or not. The Ld. Forum below has rightly dealt with such question and I am fully agreed with the view taken by the Forum below. It is true that if there was acute pain it was the duty of the Nursing Home to take steps for quick delivery and it is also true that in medical science regarding operation some important process are existing and every doctor and surgeon is under obligation to abide by the said rules and process.

The Complainant has failed to adduce any evidence from the expert doctor that due to delay in operation for three hours asphyxia affected her baby in any way. The Complainant has made some allegations against the doctors and the Nursing Home, but has failed to produce any single evidence in favour of her allegations and contention, In my opinion such allegations of medical negligence have to be supported by expert evidence or medical literature as per settled position Law and even no particulars have been given. In this context I may refer to a decision passed by the Hon'ble National Commission, reported in 2004 CTJ, 175, (CP) (NCDRC), where their Lordships have held that 'As per settled law on medical negligence, it has to be alleged as to which action of the doctor was not as per accepted medical practice and what was done should not have been done or what was not done should have been done, this has to be supported by expert evidence or available medical literature on the subject.’ Therefore, the Complainant's allegations have not been proved. In the instant case the Complainant filed an opinion from the expert doctor, who opined that there was no negligence or deficiency in service in providing treatment to the Complainant and her newborn baby on behalf of the doctors as well as the Nursing Home. I have noticed from the prescription that Dr. Kripasindhu Chatterjee was called and as per his advice the baby was shifted to Burdwan Nursing Home, so the Nursing Home cannot be held responsible for the death of the baby. Regarding septicemia of the Complainant, it is stated by the Expert doctor that puperal sepsis is a complication of delivery and it may be increased following caesarean section. According to the expert doctor any operation may have infection, it cannot be pinpointed how the infection was caused.



Therefore, in connection of the allegations made by the Complainant-Appellant that due to mal-treatment and negligence of the OPs-Respondents towards the Complainant and her newborn baby, but in the context the Complainant has failed to produce any expert’s opinion in support of her contention. The Appellant also failed to show me any medical authorities/books in support of her allegations that due to maltreatment of the OPs their her baby expired and she has suffered for a long period and therefore she is not entitled to get any amount towards compensation and other reliefs as prayed for in her complaint as well as in the memorandum of appeal.



Having regard to the entire discussion made above we are constrained to hold that the charge of negligence or deficiency in service against the OPs has not been substantiated from the materials on record. Along with the Forum below I do not find out any merit in the complaint and in the memo of appeal and I am inclined to dismiss the same on contest. Hence it is ordered that the appeal be dismissed on contest and the judgment passed by the Forum below is hereby affirmed. However, considering the circumstances there is no order as to cost. The office is directed to send down the LCR along with a copy of this judgment to the Ld. Forum below and issue the copy of this judgment upon the recorded Advocates/parties immediately free of cost.