1- Vivek Chhabra son of Sh. Om Parkash resident of House No.77-A, Ward No.18, Kundra Street, Khanna-141401.

2- Pooja Chhabra wife of Sh. Vivek Chhabra resident of House No.77-A, Ward No.18, Kundra Street, Khanna-141401.



….Complainants.

Versus



1- M/s Mittal Maternity Hospital and Nursing Home, Peerkhana Road, Ludhiana.

2- Dr. Mrs. Raksha Mittal c/o M/s Mittal Maternity & Nursing Home, Peerkhana Road, Khanna.

3- Dr. Devenderpal Singh, Pediatrician, Pal Maternity & Nursing Home, Amloh Road, Ludhiana.

….Opposite party.


O R D E R



1- For death of their new born baby boy, due to negligent treatment by opposite party, present complaint under section 12 of the Consumer Protection Act, 1986, stands instituted by the complainants being parents and have sought compensation of Rs.10 lacs alongwith Rs.5000/- as litigation costs.



2- Case of the complainants is that opposite party no.2, a Gynecologist, is running a maternity hospital in the name and style of opposite party no.1. Opposite party no.3 is a Pediatric doctor, running a nursing home at Khanna. Smt. Pooja Chhabra, complainant no.2, for birth of a child, took admission on 20.8.2004 at 12.30 p.m. in maternity hospital of opposite party no.1. Upto 4.20 p.m., both mother and child in the womb, were declared by opposite party no.1 to be normal. But then she advised birth through caesarian and thereafter, a health male child at 5.35 p.m. was born. But opposite party no.2 without consulting the complainant and without her consent, called doctor opposite party no.3 and handed over the child to him, who consequently, took the child to his nursing home. This was done by handing over the baby to opposite party no.3, to extract money and that too without her consent. Opposite party no.3 after checking the baby on 20.9.2004, found the same to be normal, hemoglobin 13.08 gms., weighing 3.200 kgs. Child remained normal and healthy upto 3.00 a.m. on 21.9.2004. But thereafter, at 3.00 a.m. on 21.9.2004, opposite party no.3 administered fridged stored milk in a plastic bottle with a spoon to the baby, despite protest by the complainants. Immediately, the child developed serious complications after taking fridged mile and his condition became serious, due to infection. The child then vomited blood 4-5 times and the fridged milk caused swelling in intestine. The blood of the baby became thin due to vomiting blood. This happened due to negligence of opposite parties no.1 to 3. They did not give treatment to stop vomiting of the blood by the child. Hence, knowing such serious condition of the baby, they got him discharged on 22.9.2004 and got admitted in DMC & Hospital, Ludhiana. Even opposite party no.3 mentioned wrong blood group and HB in the discharge summary, showing male child to be female child. On 22.9.2004, the baby was admitted in DMC and declared in serious condition, due to careless and negligent acts of opposite parties no.1 to 3. Operation of swollen intestine of the baby was suggested and conducted on 25.9.2004. The child was kept in ventilation for one week and thereafter, expired on 30.9.2004. Death of the baby was caused, due to negligence and deficiency of service on part of opposite parties no.1 to 3. Because the child was born and developed complications, after taking fridged milk stored in plastic bottle. This caused mental agony, torture to both the complainants, as it was their first issue.



2- Opposite parties no.1 & 2 in reply, pleaded that complainant has failed to disclose what ought to have been done and what was not done to the baby. There is no justification of claim of any damages, which is on higher side. The case is of complicated nature, requiring elaborate evidence. Also this Fora has no jurisdiction to try the same. However, it is admitted that complainant no.2 got admitted in the hospital and through caesarian, gave birth to a male child on 20.9.2004. But allegations that caesarian was conducted negligently or no proper care was taken on the baby, are controverted and claimed that such allegations are false to the knowledge of the complainants. There was no negligence or deficiency in their services. Opposite party no.2 is a renowned Gynecologist of the area, running a nursing home. Death of the baby never occurred due to negligent services or wrong treatement on their part. Opposite party no.3 is claimed to be Pediatric doctor. Denied that mother and the child were declared normal upto 4.20 p.m. on 20.9.2004. The baby was born at 5.33 p.m. There was no question of declaring the same normal. Complainant no.2 took admission in the nursing home of opposite party no.1, with history of 9 months pregnancy with hydramios with labour pains. Relevant tests were conducted, intravenous dextrose was started. Height of the uterus was over distended. Fetal heart sound was present. PV of the uterus revealed two fingers diliatation. Scanning showed backbone of the baby on the left side. Her condition was closely monitored. Abnormal uterus contractions from time to time, were brought to notice of complainant no.2, after her admission in the nursing home and that uterus contractions were not showing uniformity and that delivery has to be done through caesarian section. Caesarian was advised at 4.30 p.m. and through caesarian, birth of the baby took place on 5.33 p.m. Averred that opposite party no.3 is pediatric doctor and such specialized skilled doctor was required to be present at the time of delivery. After delivery, the baby required resuscitation and the baby was taken by opposite party no.3 to his nursing home, to provide resuscitation care. The procedure adopted was for welfare of the child. But denied that baby was taken to nursing home of opposite party no.3, without consent of the complainant, out of greed, to extract illegal money. Hence, complainants are entitled to any compensation, as there is no deficiency in service on their part.



3- Opposite party no.3 has also taken similar objections, as taken by opposite party no.1 & 2 in their separate reply. In addition, he claimed that complaint has been filed out of greed, to harass him. Because brother of complainant no.1, is an agent of insurance company and the complainants had obtained a policy from New India Assurance Company, Khanna for the unborn child, in the name of complainant no.2. After death of the child, complainants contacted him, to write on the claim form that the child had died due to congenital malformation, so that they may get claim from the insurance company. But he refused to oblige them, as the child had not died due to congenital malformation, due to which, they got annoyed and threatened him with dire consequences. Claim of the complainants was rejected by the insurance company. Therefore, on false and frivolous grounds, present complaint is instituted by them, which deserves dismissal. He had given best medical treatement to the child and there is no deficiency in service on his part. He admitted birth of the baby to complainants on 20.9.2004 through caesarian section in hospital of opposite party no.1. He was called by opposite parties no.1 & 2, being a trained person in neonatal resuscitation, which was required at the time of delivery. He claimed to be MBBS, MD(Pediatric), having certificate from American Academy of Pediatric. But denied that he was associated by opposite party no.2, without consulting the complainants. The child after birth, was handed over to him, as required in circumstances and provided by medical literature. Complainant has concealed material facts. During initial examination, the baby was found limp and after initial stabilization, suction of oropharys and nasopharynx was done. Attempts were made to stimulate the baby, to breathe, by flicking the soles of the baby. But there was no spontaneous respiration. Was given artificial respiration with ambubag with 100% oxygen. But without response. Then immediately, a tube was passed in the respiratory pipe of the baby and the artificial respiration continued for three to four minutes. So, with his efforts, good respiration started and the baby showed improvement and became pink. Heart rate became more than 120 per minute. Therefore, tube was removed. The baby was treated to the best of his medical professional ability, as provided in medical literature. The baby was shifted to his hospital with consent of close relatives of the complainants on 20.9.2004 at 6.20 p.m. Complainant had also consented for it and necessary consent form was signed by elder brother of complainant no.1. The baby was kept under observation and proper chart of treatment was maintained. The baby passed urine and stool during night and there was no vomiting. Vowel sounds were normal. During examination on morning of 21.9.2004, baby showed good sucking, so oral feeding was planned and baby accepted the feeding. At 4.15 a.m. on 22.9.2004, opposite party no.3 was called by paramedical staff, as the child vomited some red coloured material (blood). The baby was examined. Feeding was stopped. Complete stomach washing of baby was done and nasogartric tube was put in stomach and kept opened to prevent further progression of the problem. Treatement for abdominal bleeding was started. So, attendants were apprised the conditions of the baby and then advised to shift him to higher centre for sake of further investigation and management. At 8.45 on 22.9.2004, baby was referred to DMC. At that time, condition of the baby was stable. During stay of the baby in the hospital of opposite party no.3, best possible treatment was given. Baby remained admitted in DMC from 22.9.2004 to 30.9.2004. It is denied that he gave fridged milk stored in the plastic bottle with a spoon to the baby at 3.00 a.m. on 21.9.2004, despite protest of the complainants. Allegations qua it, are wrong. Also denied that after taking fridged milk, baby vomited blood 4-5 times. Also denied that female child in place of male child was mentioned by him on test report. The tests were got done by the complainant from the laboratory of their own choice, who mentioned the baby as female, on the test report. Allegations that in DMC, operation of swollen intestine was suggested, stand denied. Rather baby was operated by the DMC on 25.9.2004 on 4th day of his admission in DMC. It is consequently denied that baby was absolutely normal at the time of delivery. Because, it required resuscitation at the time of birth. So, there is no negligence or deficiency in service on his part and complaint deserves dismissal.



4- Parties in support of their claims, adduced evidence by way of affidavits and documents. We have heard ld. counsel for the parties and have also gone through the record carefully.


5- We shall take up allegations of the complainant separately against opposite parties no.1 & 2 from opposite party no.3. First of all, coming to negligence on part of opposite party no.2 while complainant no.2 was admitted in the hospital of opposite party on 20.9.2004 at 12.30 p.m. It is admitted that due to caesarian operation, birth of a baby boy took place. At the time of such caesarian, opposite party no.2 had called opposite party no.3, a pediatric doctor, to be present. Grouse of the complainants is that he was called by opposite party no.2 of her own, in order to foot illegal bill for delivery against them. Consequently, question is whether was it necessary for a gynecologist to have called a pediatric doctor at the time of conducting caesarian operation.


6- In text book of Neonatal Resuscitation (4th Edition), by Editor John Karrwinkel, MD, it is recorded that “at every delivery, there should be at least one person whose primary responsibility is the baby and who is capable of initiating resuscitation. So, either that person or someone else, who is immediately available, should have the skills required to have done complete resuscitation”.


7- Now, adverting to Ex.R9, copy from admission file of complainant no.2, maintained in the hospital of opposite party no.1. The caesarian for delivery of the baby, was done with consent of complainant no.2. Whatever is defence of opposite parties no.1 and 2 as mentioned while referring their written statement, stands recorded in this admission file. Also mentioned that at 4.30 p.m. on 20.9.2004, a pediatrician surgeon was called and a male baby was born at 5.35 p.m., who was handed over to pediatrician.


8- So, it means that caesarean was done because of complications of the contractions. The urine contractions were monitored from time to time. But it was not in uniformity. It was then that caesarian section was preferred.


9- Consequently, it can not be stated that opposite party no.2 wrongly advised delivery through caesarian section and by doing so, was guilty of negligence. Also, she would not be negligent, by calling a pediatric doctor at the time of delivery. Rather, it was done with best intention, to safeguard interest of the baby. Hence, we can not hold opposite parties no.1 & 2 guilty of rendering negligent services to complainant no.2.


10- Adverting to negligence against opposite party no.3, main plea taken by complainants is that he was negligent, by feeding the born baby with fridged milk kept in a plastic bottle, with the help of a spoon, due to which fridged cold milk, condition of the baby boy deteriorated. Such act on part of opposite party no.3 was negligent and consequently, would be liable for causing death of the baby boy by his negligent act and treatement.



11- Now question is whether such allegations of the complainant are born from the record. To bring home such point, complainant placed reliance on the principles of “Res-ipsa-loquitur”, and contended that when such milk was administered, mother of the infant, was admitted in the hospital of opposite party no.1. There was none from the family of complainant, to care for the baby, who was under care and custody, control and management of opposite party no.3. It was opposite party no.3 alone, who at those odd early hours of the day around 3.00 a.m. on 21.9.2004, administered fridged milk stored in a plastic bottle with a spoon to the child.



12- In support that in case of medial negligence, principles of res-ipsa-loquitur are attracted, reference was made to cases reported in G.D. Jiladia Vs Minor Dharmisttha Chhotubhai Goswami & Anr. 2003(3)CLT-339(Gujarat State Commission); Janak Kantimathi Nathan & Ors. Vs Murlidhar Eknath Masane & Ors. 2002(3)CLT-523(NC) and Shakila Sathanandam Vs Dr. S.S. Kodmani & Ors. 2005(2)CLT-567(Tamil Nadu State Commission).



13- We have no fight with the preposition of law, as enunciated by the complainant and states that principles of res-ipsa-loquitur are applicable in case of medical negligence. But question is whether this principle is attracted in the instant case and can be followed by us blindly. We would have accepted and applied principle of res-ipsa-loquitur, had there been no evidence, touching the subject. We shall now come to the relevant evidence, to know whether opposite party no.3 treated the baby negligently.



14- Ex.RW3/2 is the complete indoor record of the baby boy, maintained by opposite party no.3, since his admission in the hospital on 20.9.2004 at 6.45 p.m. Be it stated that the baby was taken to opposite party no.3 with consent of brother of complainant no.1. Mentioned above first page of admission file that baby received limp and needed resuscitation for 3-4 minutes and then heart rate became 120/minute. At the time of admission, heart rate was 70/per minute. Then spontaneous respiration started. At the time of admission on 20.9.2004 at 6.45 p.m., written that HB was 13.5 gms., general condition was stable, heart rate 136 per minute. At 8.00 a.m. on 21.9.2004, condition was stated stable. Baby shown to have cried at night for feeding. Sucking recorded very good. So, given 5 ml distilled water. Had no vomiting. Some medicines were also prescribed and administered on 20.9.2004 after admission.



15- Then on 22.9.2004 at 4.15 a.m., recorded that baby vomited blood. Medicines of injections were prescribed. His condition was explained to parent. The baby was referred to DMC at 8.45 a.m. on 22.9.2004 and condition recorded, is stable. Alongwith record, is appended chart maintained between 20.9.2004 to 22.9.2004 during which, baby remained admitted in hospital of opposite party no.3. In the chart, his pulses, temperature etc. are recorded alongwith passing of stool, urine and vomiting. On 21st September, 2004, opposite party no.3 had referred to a lab., for certain blood report of the infant. Ex.A81 is the laboratory report of Namrita’s Diagnostic Laboratory dated 21.9.2004. Platlets counts of the blood is shown 80000. Though required platlet counts was 1.50 and 4.0 lacs cmm. So, it means platlets counts in the blood of the baby, were about half of the minimum requirement. Mentioned in the report that platlets counts decrease was seen singli, re-active proteins was positive. Plasma protein was found in low concentration in normal individuals. Detection of the activity of inflammatory arthritis in the acute phase while in the chronic, was also recorded. In this laboratory report Ex.A81, sex of the baby, is mentioned female. This made complainant to argue that such error was committed by opposite party no.3, showing him negligent. However, opposite party no.3 had only sent blood of the baby for analyses, to outside laboratory and if error was committed by them regarding wrong sex of the baby, opposite party no.3 can not be faulted.



16- Now, we shall go to summary record of treatment of baby in DMC & Hospital, Ludhiana. Ex.A82 is the coy of LAMA summary and Ex.RW2/1 is the summary of treatment in that hospital. As per entry in Ex.A82, the baby was admitted on 22.9.2004 and date of LAMA recorded, is 30.9.2004. Mentioned in the history of illness that the baby was brought with chief complaint of hematemesis- 3 episodes; was given cow milk feeding. On examination, bay was found sick, looking with poor cry.



17- Thus, history of illness was provided by attendants of the baby, to the doctors in DMC, Ludhiana. They mentioned that the baby had vomited blood thrice and earlier, was given cow milk. At page no.12 of Ex.RW2/1of history of the baby, recorded that birth was through caesarian section, in a private hospital. Baby passed meconium at 6-8 hours, urine at 18 hours. Against pre lacteli feeding, mentioned is mineral HO(water). Against entry of first milk, mentioned after 12 hours of cow’s milk. This history what was feeded to the baby, was also given by attendants of the baby.



18- Now question is who gave cow milk to the baby after 12 hours of the birth on 21st September, 2004. The baby was born on 20.9.2004 at 5.33 p.m. So, it means cow milk was given after 5.30 a.m. on 21.9.2004. This belies allegations of the complainant that milk was administered by opposite party no.3 at 3.30 a.m., to the baby. In the hospital of opposite party no.3, a private room was taken for admission of the baby, as mentioned in admission file Ex.RW3/2. If baby was admitted in private room, so there must have been some attendant with the baby in that private room. Of course, mother was not such attendant, as she was admitted in maternity home of opposite party no.1. Record of opposite party no. 3 shows that first of all, he feeded the baby with distilled water and thereafter, had advised feeding the baby with milk. Naturally, in such scenario, milk would have been provided by attendants of the baby and not by the hospital. There is no proof adduced by the complainant that fridged milk stored in a plastic bottle, with the help of spoon, was feeded by opposite party no.3 or his staff to the baby. After administering distilled water, when there was no complication and no vomiting, had advised to administer cow milk. So, we have to take that in private room, that milk must have been provided, as advised by attendants of the baby and not by the hospital. In coming to such conclusion, we are fortified from record of opposite party no.2 Ex.RW3/2 as well as summary Ex.RW2/1 of the DMC, where baby was admitted on 22.9.2004. In history of DMC, history of the ailment or what was given to the child, was provided by the attendants of the baby.



19- In the history, also recorded that after birth, incubated resuscitation was done for 3-4 minutes and there after, spontaneous respiration started. Child for the first time, at 4.30 a.m., vomited blood and such episodes happened thrice. Consequently, pediatric of DMC recorded in the chart that at birth, the baby has asphyxia and now admitted, due to complaint of vomiting blood. At 12.00 p.m., recorded in the record that baby was sick with septicemia and poor progress was explained. Report of platelet counts was recorded to be collected and fresh blood provided, if required. Then recorded giving of blood transfusion and platelets if required.



20- So, it appears that problem of the baby got complicated, due to less presence of platelet counts in the blood. Ultrasound of the baby was also got done and the report (Page 338 of the file) which is part of the summary Ex.RW2/1, goes to show that there was no free fluid in peritoneal cavity.


21- It is in such scenario that we have to adjudge allegations of the complainant, touching negligence of opposite party no.3, who according to complainants, provided fridged milk to the infant at 3.30 a.m. on 21.9.2004. With the risk of repetition, may state that there is not an iota of evidence qua such allegations. Principle of res-ipsa-loquitur help of which was sought to be derived, by the complainants, would not be available to them. Because the is clear material on the record, reflecting what treatement, medicines or feeding was advised by opposite party no.3. Feeding, if any, was not given by opposite party no.3, but by attendants of the infant. Even otherwise, platelets counts could not have been reduced, due to providing of milk. Such platelets counts got reduced after vomiting blood by the baby. But for such unfortunate death of the first baby of the complainants, opposite party no.3 can not be made a scapegoat. Because he is not proved to have administered wrong medicines or given wrong treatement, which wasn’t required to be given to such like patient.



22- Question of medical negligence has been dealt by the Hon’ble Supreme Court in the latest authority reported as Martin F. D’Souza Vs. Mohd. Ishfaq 1 (2009) CPJ 32 (Supreme Court). Hon’ble Apex court in that case has led general principles of medical negligence. In the words of their Lordships “A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & Others Vs, State of Maharashtra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.”


23- In another case titled as State of Punjab Vs. Shiv Ram & Ors. 2005 (3) Apex Criminal 268 (Supreme Court), their Lordships have held that “A professional may be held liable for negligence on one of the two findings: (i) either he was not possessed of the requisite skill which he professed to have possessed, (2) or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. Further their Lordships concluded that unless negligence is established, primary liability can not be fastened on the medical practitioner.


24- It is not the case of the complainants that opposite party doctor was not a qualified or experienced doctor in his own line. Rather, he was a qualified pediatrician and had also attended Post Graduate Training Centre in Saudi Arabia, in March, 2004, as recorded in certificate Ex.RW3/1. The qualified doctor to the best of his wisdom and in circumstances, treated the baby. There was no wrong treatement given by opposite party no.3 at his hospital, where the child was taken after discharge from hospital of opposite parties no.1 & 2. Is also found no fault with treatement meted out to the baby by opposite party no.3. Consequently, negligence against him, is also not established in any manner.


25- The sum and substance of the discussion consequently, is that the complainants have not been able to connect unfortunate death of their baby with any negligent treatment on part of any of the opposite parties. Hence, finding no merits in the complaint, the same is dismissed.