BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.

C.D.NO.43 OF 2006

Between:

Pinninti Anitha W/o P.Srinivas Reddy
Aged about 26 years, Occ: Housewife
R/o H.No.2-2-1093/55/B, Golnaka
Bhagyanagar, Amberpet, Hyderabad
Complainant
A N D

1. Sita Maternity Nursing Home,
(A unit of Infertility Centre Pvt.Ltd.,)
And Infertility Center, @ Sai Kiran
Infertility and Test Tube Baby Hospital
Rep. by Dr.Kiran Dwarkanath Shekar, M.D.
6-2-966/4, Opp: Hindi Prachara Sabha
Near Nirmala School, Khairatabad
Hyderabad

2. Dr.Kiran Dwarkanath Shekhar, M.D.,
W/o Dr.T.Naresh Kumar Shekar,
Age 54 years, Occ: Sita Maternity Nursing
Home @ Sai Kiran Infertility and
Test Tube Baby Hospital
R/o 6-2-966/4, Opp: Hindi Prachara Sabha
Near Nirmala School, Khairatabad
Hyderabad

3. Dr.Muneeza W/o Dr.Mir Baktiar Ali,
Age 30 years, Occ: Doctor in Sita Maternity
Nursing Home @ Sai Kiran Infertility and
Test Tube Baby Hospital
6-2-966/4, Opp: Hindi Prachara Sabha
Near Nirmala School, Khairatabad
Hyderabad

4. Vimala Sugana D/o Pramod
Age 30 years, Occ: Nurse in
Sita Maternity Nursing Home
@ Sai Kiran Infertility and Test Tube
Baby Hospital 6-2-966/4,
Opp: Hindi Prachara Sabha
Near Nirmala School, Khairatabad
Hyderabad Opposite parties



Counsel for the Complainant: Sri S.Bharat Kumar

Counsel for the Opposite parties No.1&2 Sri V.Sankara Rao
Counsel for the Opposite party No.3 Served
Counsel for the Opposite party No.4 Served







QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
&

SRI R.LAXMINARSIMHA RAO, MEMBER



MONDAY THE TWENTY THIRD DAY OF MARCH

TWO THOUSAND NINE



Oral Order ( As per Sri R.Laxminarsimha Rao, Member)
***



This complaint is filed seeking direction to the opposite parties No.1 to 4 to pay compensation of Rs.20 lakhs , expenses of Rs.one lakh and Rs.50,000/- towards other incidental charges.

The brief averments of the complaint are that the complainant was got married in the year 2001and could not conceive for which she approached the opposite party no.2 for fertility treatment. The opposite party no.2 charged Rs.35,000/- and conducted several medical tests for which the complainant and her husband had incurred in addition to the amount of Rs.35,000/- paid to the opposite party no.2. The complainant was under the treatment of the opposite party no.2 ever since she became pregnant in the month of February 2005 and paid consultation fees of Rs.1000/- each time she consulted the opposite party no.2. The opposite party no.2 insisted on the complainant to get admitted in their hospital in spite of protest by the complainant that her husband and she could not bear the expenses that were charged in private nursing home. On 30.9.2005 the complainant was admitted in the nursing home of the opposite party no.2 for delivery and she was compelled to pay Rs.10,000/- towards hospital expenses. The opposite partyno.2 entrusted the responsibility of attending on the complainant to unqualified persons and the nurse who was on duty made arrangement for conducting cesarean section and during the operation she plucked the child from the womb of the complainant due to which the child received injuries on his head and died immediately after his birth.

It is further stated that the opposite party no.1 informed the complainant about the death of her child only after she requested him for several times and he has not informed her the reason and cause of the death of the child. The opposite parties no.1 and 2 demanded for Rs.4,500/- towards their fee and threatened the complainant that in case she does not pay the amount they would lodge a complaint against her and her husband. The opposite parties lodged complaint before the Mirchowk PS on false allegations and the opposite parties had thrown out the complainant from their hospital and handed over the dead body of her son only after she lodged a complaint before Mirchowk PS against the opposite parties no.1 to 3 and the opposite party no.1, the staff nurse. The police subjected the dead body for postmortem examination by the doctors in Osmania General Hospital. The child died due to negligence of the opposite parties. Hence prayed to allow the complaint.

The opposite partyno.2 has filed his counter affidavit denying the material averments of the complaint and stated that the amounts paid by the complainant was towards the charges for registration, Colour Doppler scanning, Ultra Sonography and towards investigation charges. The complainant had not informed the opposite party no.2 that she had two abortions earlier and she had not furnished the records except stating history thereof. On 14.3.20054 her pregnancy was confirmed and by that time she was seven weeks pregnant. There is no negligence on the part of the opposite parties no.1 and 2 and the complainant cannot attribute any motive of medical negligence on their part i.e., on the part of the opposite parties no.1 and 2. No cesarean section was done on the complainant. On 2.10.2005 at about 1 p.m. the complainant and her husband created a scene and damaged hospital properties and assaulted the staff of the opposite party no.1. The injury to the head of the newly born child has been created by the complainant and her husband. The complainant and her husband had taken away the dead body of their son at 2 p.m. and they refused for autopsy of the baby to find the cause of death. The delivery was conducted by the opposite party no.3. The clinical findings were very clear that there was no injury after delivery. The postmortem examination was done on 3.10.2005 at Osmania General Hospital. The injury to the head of the deceased child was manipulated injury and the opposite party no.2 as unaware of the same.

It is further stated that the police registered a case against Dr.Kiran Shekar, Opposite party no.3 and the staff nurse Smt Vimala Suguna. The opposite parties no.1 and 2 had not treated the complainant at Sita Maternity Nursing Home. Dr.Kiran Shekar had no concern with Sita Maternity Nursing Home. As per the case sheet the complainant was treated by the opposite party no.3. Even as per the records there is no negligence nor any attribution that the staff of the nursing home and staff of the opposite partyno.1 misbehaved with the complainant. The head injury to the child was created and as per the case sheet no such injury was found. The Pediatrician from Princes Dureshawar Hospital examined the child and found no injury. As per the case sheet it was the case of spontaneous normal vaginal delivery and after his death the baby was weighed 2.3 kgs, and airways cleaned and cleared, cord clamp cleared. The baby died due to congenital anomalies. The opposite party no.2 is a qualified doctor and one of the board members for infertility center. He had written books and he has been a member of many organizations. His advise is being taken by many organizations. The opposite parties no.3 and 4 left the nursing home of opposite party no.1. The opposite partyno.3 is not an employee of opposite partyn.1. The opposite party no.3 was invited by the complainant and her husband to attend on her in the opposite partyno.1 nursing home. There was no deficiency in service on the part of the opposite parties no.1 and 2. Hence prayed to dismiss the complaint.

The documents filed on behalf of the complainant were not marked at the time of hearing. Hence they are marked now as Exs.A1 to A7.

The point for consideration is:

1. Whether there has been any medical negligence on the part of the opposite parties no.1 to 4 ?

2. To what relief?



Point No.1: The facts not in dispute are that the complainant had approached the opposite party no.2 for infertility treatment and she gave birth to a male child on 2.10.2005 in the opposite party no.1 hospital. The complainant submits that due to negligence in treatment of the opposite parties no.2 and 3 she lost her child where as the opposite party no.2 contends that there was no deficiency on his part or on the part of the opposite partyno.1. Discharge Card Ex.A1 shows that the complainant was admitted in the opposite party no.1 hsopital on 30.09.2005 and she gave birth to a male child on 2.10.2005. The child was weighing 2.3 kgs and his airways were cleaned. He was suffering from congenital cataract and episiotomy. The complainant was discharged on 2.10.2005. The other medical record such as prescription dated 2.8.2005 Ex.A2 discloses that foetal movement on 2.8.2005 was normal and all the vital organs were found to be normal. Thus the complainant was under the treatment of the opposite party no.2 and on his advice she was admitted to opposite party no.1 hospital.

The opposite party no.2 contends that opposite partyno.3 attended on the complainant whereas the complainant states that no doctor had taken care of her at the time of delivery and opposite party no.4, a staff nurse had treated her who forcibly pulled the baby out of the womb of the complainant resulting injury to his head and consequently to which the child died. FIR and Remand Case Diary (Ex.A5), and the statements of witnesses recorded u/s 161 of Cr.P.C. clearly show that the complainant was not treated properly and the opposite parties no.1 to 3 neglected in giving proper treatment to the complainant which is also manifest by the entrustment of duties to the opposite party 4 who is not a qualified doctor but only a staff nurse in the opposite partyno.1 hospital. The contention of the opposite party no.2 that the complainant had normal delivery can be accepted as the same is evident by discharge card. However, the submission of opposite party no.2 as to the injury on the head of the newly born baby was created by the complainant for the purpose of harassing them cannot be accepted in the light of Postmortem examination Report Ex.A7 which shows that there were no anomalies of scull bone, the cause of death of the son of the complainant was head injury and time of death is 24 to 36 hours prior to PME. No satisfactory explanation is forthcoming from the opposite party no.2 for the injury to the child who was born in the opposite party no.1 hospital run by his wife and him and deputed a nurse instead of a doctor to attend on the complainant and this is sufficient to hold that the opposite parties negligent and deficient in giving treatment to the complainant.

The opposite partyno.2 submits that the opposite party no.3 was not an employee in the opposite partyno.1 hospital and the opposite partyno.3 came to their hospital for giving treatment to the complainant only on request of the complainant and they had never engaged the services of opposite party no.3 as their employee. This contention holds no water in the light of admission of opposite epartyno.2 that the opposite partyno.3 is a qualified doctor and gave treatment to the complainant in the opposite party no.1 hospital. The opposite party no.1 hospital run y the opposite parties no.2 and 3 by employing opposite parties no.3 and 4 are jointly and severally liable to pay compensation to the complainant for the negligent treatment given by them and in this regard we are fortified by the judgment of Hon’ble Supreme Court in Savita Garg (Smt) v. Director, National Heard Institute reported in 2004 CTJ 1009 (SC)(CP) – (2004) 8 S.C.C. 56 in which it is held as follows:

“ Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent and that as a result of such negligence the patient died, then in the case the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence. It is the hospital which engages the treating doctor, thereafter it is their responsibility. The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it is responsible to provide efficient service and if in discharge of its efficient service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.”



In Jacob Mathew v. State of Punjab reported in III (2005) CPJ 9 (SC), the Apex Court has held in para 48(3) as follows:

“ A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession”.

In the instant case for the aforementioned reasons and in the light of the decisions of the Supreme Court we are of the considered view that this duty in tort or reasonable care as per standard medical parlance was not exercised.

Therefore in the circumstances of the case we are of the view that a sum of Rs.one lakh will be reasonable amount if awarded as compensation to the complainant on all counts.

In the result this complaint is allowed in part directing the opposite parties no.1 to 4 jointly and severally to pay an amount of Rs.one lakh towards compensation together with costs of Rs.2000/- to the complainant within one month from the date of receipt of this order.



PRESIDENT MALE MEMBER
23.03.2009



APPENDIX OF EVIDENCE

WITNESSES EXAMINED
NIL



EXHIBITS MARKED

For complainant

Ex.A1 Discharge Card dated 2.10.2005
Ex.A2 Medical prescription dated 2.8.2005

Ex.A3 Central Blood Bank report of complainant dt.27.7.2005
Ex.A4 Publication in the Newspaper ‘Vaartha’ dt.3.10.2005
Ex.A5 FIR & Remand report dated 2.10.2005
Ex.A6 Charge Sheet in Crime No.177/2005
Ex.A7 Postmortem certificate and opinion of
doctor dated 3.10.2005



For opposite parties
NIL





PRESIDENT MALE MEMBER