Haryana

StateCommission

A/1573/2017

ASIAN INSTITUTE OF MEDICAL SCIENCES AND ANOTHER - Complainant(s)

Versus

ROHIT SINGLA - Opp.Party(s)

DR. M.C.GUPTA

18 Mar 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA, PANCHKULA

 

First Appeal No.1573 of 2017

                   Date of Institution:20.12.2017

          Date of Decision:18.03.2020

 

1.      Asian Institute of Medical Sciences Badkhal Flyover Road, Sector 21 A, Faridabad, Haryana 121001, (though its Medical Superintendent).

 

2.      Blue Sapphire Healthcares Pvt. Ltd. 152, Mandakini Enclave, New Delhi 110019.

…Appellants

Versus

 

Rohit Singla H.No.30, HIF Housing Board Colony, Palwal, Tehsil and District Palwal, PIN 121102.

…Respondent

CORAM:   Mr. Harnam Singh Thakur, Judicial Member

                   Mrs. Manjula, Member.

 

Present:-    Shri  M.C.Gupta, counsel for the appellants.

                   Shri Tanmoy Gupta, counsel for the respondent.

 

O R D E R

Harnam Singh Thakur, Judicial Member:

 

          Opposite Party Nos.1 and 2 have filed the instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as “Act”) for challenging the order dated 16.11.2017 passed by learned District Consumer Disputes Redressal Forum, Faridabad whereby complaint filed by complainant was allowed.

2.      As per version of the complainant, his wife Smt. Nidhi Singla got admitted in opposite party No.1 hospital on 10.02.2015 for child delivery.  The representative of the O.Ps. told that for entire delivery work, there was package of two days for a sum of Rs.28,050/- and package of 3 days for a sum of Rs.46,750/-.  He opted the package of 3 days and paid a sum of Rs.25,000/- to O.Ps. the complainant’s wife gave birth  to a female child.  He deposited Rs.5000/- on 10.02.2015, Rs,10,000/- each on 11.02.2015 and  16.02.2015.  The baby was shifted on ventilator for her survival but despite several requests O.Ps. did not explain to him about the treatment of the said baby.  On 18.02.2015, the ventilator was changed to high frequency but the baby in question could not cope with high frequency ventilator.  He requested OPs to allow him to see his baby and when he pressurized OPs to transfer the baby to AIIMS on 19.02.2015 then only the factum of death of said baby was disclosed to him.  Death certificate was issued to him by the OPs.  O.Ps. raised total amount of Rs.70,000/. The balance amount of Rs.45,000/- was paid on 13.02.2015.  O.P. again issued bill of Rs.1,53,479.80 upto 16.02.2015, but, on resistance by him, the OPs changed the bill to Rs.1,50,689.09 upto 17.2.2015. O.Ps. waived off all the balance payment on 19.02.2015 by admitting negligence on their part.  He took dead body of said baby.  He received demand notice dated 21.03.2015 from OPs for a sum of Rs.1,62,541/- on account of treatment of his wife. Thus there was negligence and deficiency in service on the part of the O.Ps.

3.      Notice being issued. Opposite parties appeared and filed written statement.  O.Ps. refuted claim of the complainant by raising preliminary objections about complaint was not maintainable and complainant had not come with clean hands.

4.      On merits, it was admitted that complainant’s wife admitted in the OPs hospital on 10.2.2015.  The delivery was conducted on the same day. A premature female child of 32 weeks having weight of 840 gms was born.  At the time of birth said baby had difficulty in breathing, she was shifted ventilator and remained under treatment upto 9 days.  The organs of the baby was immature, and despite sincere efforts of the team, the baby expired on 19.02.2015.  It was admitted that amount of Rs.70,000/- was deposited for complainant’s wife and Rs.25,000/- for treatment of said bady. The complainant’s wife was discharged on 13.02.2015.  O.Ps. received an amount of Rs.25,000/- for treatment of baby out of total bill of Rs.1,87,541/-.  The dead body of the baby in question was taken forcibly without paying hospital bill.  Thus there was no negligence and deficiency in service on the part of the O.Ps.

6.      After hearing learned counsel for the parties and on going through the material available on the record, learned District Forum came to the conclusion that the complaint was allowed and OPs are directed not to impose any amount on the complainant in the present case and to pay Rs.40,000/- as compensation towards mental pain, agony as well as harassment besides Rs.5100/- towards litigation expenses to him within 30 days from the date of receipt of this order.

7.      Feeling aggrieved therefrom, O.P.Nos.1 and 2 have preferred this appeal.

8.      This arguments have been advanced by Sh. Mr.M.C.Gupta, the learned counsel for the appellants as well as Mr.Tanmoy Gupta, the learned counsel for the  respondent. With their kind assistance the entire appellate record as well as the original record of the District Forum including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

9.      During the course of arguments, it is contended by the learned counsel for the appellants that learned District Forum has wrongly allowed the complaint of the complainant.  There was no negligence and deficiency on the part of the O.Ps. The child was extremely premature and weighed only 840 gm compared to the fact that, as per scientific literature, an average Indian baby weighs between 2500 gms to 2900 gms when born at full term. It is further argued by learned counsel for the appellants that necessary precautions were observed while using the HFO (High Frequency Oscillator), a type of ventilator on 17.02.2015. Since the baby was not properly grown inside the womb and was born pre-matured thus, failed to respond inspite of best efforts and ultimately expired on 19.02.2015. Affidavit of the treating doctor namely Dr. Anil Batra is  placed on record and similarly brief history patient prepared by the hospital and course of action taken is also available on record. Consent of the respondent was taken initially on 10.02.2015 as well as subsequently on 17.02.2015, when the baby was shifted from Conventional Mechanical Ventilator to High Frequency Ventilator. Respondent and his family members unnecessarily created ruckus in the hospital and forcibly took away the dead body without making the pending payment of treatment bills. A complaint was also lodged with the police regarding the incident and nonpayment of the medical bills of Rs.1,62,541/-  (Rs. One lac sixty two thousand five hundred and forty one only).

10.    It is further argued by learned counsel for the appellants that there is no expert opinion available on the record to held the appellants responsible for medical negligence and deficiency in service. In support of his arguments learned counsel for appellants has also placed reliance upon in case titled as “Jacob Mathew Vs. State of Punjab & Anr.” Reported in 2005 (6) SCC 1.

11.    Hence, it is submitted by learned counsel for the appellants that the impugned order is liable to be set aside by accepting the present appeal.

12.    On the other hand, it is contended by learned counsel for the respondent that there is no illegality in the impugned order passed by learned District Forum. Although , the baby was under weight, but no proper care and caution was taken by the doctor concerned when the baby was put on High Frequency Ventilator from Conventional Ventilator. The treating doctor was requested to refer the baby to All India Institute of Medical Science (in short “AIIMS”) for further treatment when it was not responding to the High Frequency Ventilator on 18.02.2015, but the treating doctor on duty did not pay any heed towards the request of respondent. Huge bill of Rs.1,62,541/- (Rs. One lac sixty two thousand five hundred and forty one only) was unjustifiably raised by the appellants with demand notice dated 21.03.2015 which was served upon the respondent. The High Frequency Ventilator was also not properly monitored and no medical assistant has been examined in their evidence by the appellants to show that the directions given by treating doctor namely Dr. Anil Batra were followed by the supporting staff/nursing staff in  letters and spirit. The appellants had admitted their negligence on 19.02.2015 when child died, but they raised bills of Rs.1,62,541/-(Rs. One lac sixty two thousand five hundred and forty one only) despite the fact that the death of child was on account of medical negligence and deficiency in service on the part of appellants.        In support of his arguments learned counsel for respondent has also placed reliance upon in case titled as “V. Krishna Rao Vs. Nikhil Super Specialty Hospital & Anr.” reported in III (2010) CPJ 1 SC.

13.    Hence, it is submitted by learned counsel for the respondent that there is no illegality in the impugned order passed by learned District Forum and the present appeal is liable to be dismissed with costs.

14.    After hearing both the parties and careful perusal of record of learned District Forum as well as evidence available thereupon alongwith the authorities relied upon by both the parties, we are of the considered view that there is no illegality in the impugned order passed by learned District Forum.

15.    At the outset, it is admitted fact that respondents wife Smt. Nidhi Singla was admitted in appellant’s hospital on 10.02.2015 for delivery of the child and three days package was opted by respondent. A female child was born on 10.02.2015, but it was a premature delivery of 32 weeks and baby was having weight of 840 grams. She faced difficulty in breathing and was shifted to ventilator. Later on baby was shifted to High Frequency Ventilator from Conventional Ventilator on 17.02.2015. Since, the baby was premature and under weight, therefore it could not respond properly to the High Frequency Ventilator. Learned District Forum has placed reliance upon the medical literature of Fioretto JR. Redello CM paged 96 to 103 and have placed on record Fanaroff & Martin’s Neonatal-Perinatal Medicine Volume (1) 9^th edition (Ex.RW2/1). In the said literature, it is opined that the major drawback to HFOV is the inability to monitor the baby as closely as is possible with CMV(conventional mechanical ventilator). Proper settings are verified by blood gases, the degree of lung expansion on the chest radiograph and by an assessment of chest wall movement during HFOV, referred to as the “chest wiggle factor”. Because interathoracic pressure can be high, close attention needs to be paid to cardiac output and perfusion. In addition, care must be taken to avoid gas trapping in babies requiring a high amplitude for adequate ventilation, which can result in the collapse of the smaller airways, described as “choke points” during active exhalation.

16.    In the case in hand, it is admitted fact that the baby was not properly grown up in the mother’s womb and therefore, organs including lungs were not properly developed. In these circumstances, it was incumbent upon treating doctor to be highly cautious and careful while monitoring the response of baby to High Frequency Ventilator. No doubt, the treating doctor namely Dr. Anil Batra has placed on record his affidavit, but no affidavit of supporting staff/nursing staff has been placed on record to show that the directions given by treating doctor namely Dr. Anil Batra were meticulously  followed by the supporting staff/nursing staff.

17.    It is pertinent to mention here that request was made by the respondent to the treating doctor for shifting the child to AIIMS on 18.02.2015, but no heed was paid. Although, there is no such written request on the part of respondent for shifting the child to AIIMS on 18.02.2015, but keeping in view the premature delivery as well as the baby being under weight, treating doctor should have referred the child to AIIMS for further treatment before shifting the child to High Frequency Ventilator from Conventional Mechanical Ventilator on 17.02.2015 to avoid further medical complications as mentioned above.

18.    It is worthwhile to note that appellants had served a demand notice dated 21.03.2015 for a sum of Rs.1,62,541/- (Rs. One lac sixty two thousand five hundred and forty one only) upon the respondent and the same was not paid. A complaint to the police was also written by the appellants to that effect, but no recovery proceedings were initiated by the appellants which shows that there was some element of medical negligence on the part of appellants. The authority “Jacob Mathew Vs. State of Punjab & Anr.”  (Supra) led upon by learned counsel for the appellants is not applicable to the case in hand and also not distinguishable.

19.    As a sequel to our above discussion, there is no illegality and infirmity in the impugned order passed by learned District Forum. Appeal is without merits and the same is hereby dismissed without any order of costs.

20.    Statutory amount of Rs.25,000/- (Rs. Twenty five thousand only) deposited at the time of filing of the present appeal be refunded to the appellants against proper receipt and identification as per rules, after expiry the period for filing of revision, if any.

 

18^th   March, 2020                Manjula                                 Harnam Singh Thakur                                                                  Member                                 Judicial Member                            

 

S.K

(Pvt. Secy.)