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  • Jitendra
    Nath v. Dr.(Mrs.) Manju Geeta Mishra
    & Ors


    1995 (2) CPJ 96 (Bihar SCDRC)

      

    The complainant’s wife Mrs. Bibha
    Nath was taken to Dr. Mrs. Manju Geeta
    Mishra’s Nursing Home on 13.8.91
    with labour pains. Considering her
    history of two previous abortions,
    breech presentation of present
    pregnancy, rupture of membrances and
    EDD (expected date of delivery)
    11.9.91, after taking consent,
    Caesarean was done within 2 hours of
    admission. After 10 to 12 hours of
    birth the child developed breathing
    difficulty and was referred to a
    paediatrician – Dr. Kumar’s Nursing
    Home – where the child died after 2
    days.

     

    It was alleged that Dr.(Mrs) Mishra
    had not called any child specialist to
    attend the baby after delivery,
    despite knowing that the delivery of
    the child was premature by about three
    weeks. Child was underweight (2.3 kg)
    and after delivery Dr.(Mrs) Mishra
    took up another Caesarean instead of
    attending to the child. Child was
    wrapped in an unsterilized towel. She
    failed to clean the tongue and the
    throat of the child and also failed to
    make the child cry, which she should
    have done due which the child had
    respiratory difficulty and deficiency
    of oxygen resulting in asphyxia. The
    complainant also filed criminal cases
    against Dr. (Mrs.) Mishra u/s.304,
    304-A IPC and against Dr. Kumar u/s.
    304, 304 A and 504 IPC. The Judicial
    Magistrate after examining the
    complaint and two more witnesses
    recorded that no prima facie case is
    made out and there is no sufficient
    ground for proceeding and hence
    dismissed both the cases. The
    complainant has filed revision before
    the Hon’ble High Court, Patna
    against this order. State Commission
    held that as a matter of policy and
    principle where the subject matter of
    the complaint is subjudice before
    ordinary courts, a concurrent
    adjudication in respect of the same
    should not be conducted under the Act,
    as held by the National Commission in
    Special Machines v. Punjab National
    Bank and Santosh Sharma v. State Bank
    of India. For these reasons the
    complaints were dismissed.

     

    1.
    1991(1) CPJ 78:1991(1) CPR 52(NCDRC)

     

    2. 1991(2) CPJ 262:1991(1) CPR 103 (NCDRC)

      

    3. The decision of the State
    Commission in this case is not in line
    with the National Commission’s
    decision in Punjab National Bank v.
    K.B. Shetty, 1991(2) CPR 633: 1991 (2)
    CPJ 639 (NCDRC) wherein it was held
    that where the case is subjudice in a
    criminal court it cannot be maintained
    that the complaint could not be
    entertained by the State Commission on
    the ground that the case was subjudice
    and under investigation by the
    Metropolitan Magistrate.

      

  • LALLURAM
    MEENA v. DR. S. MATHUR


    III (2001) CPJ 200

     

    (i) Consumer Protection Act, 1986 -
    Section 14(1)(d) – Medical Negligence
    – Irreparable mental handicap caused
    to the child – Compensation -
    Allegation, child suffered jaundice
    right from the time of its birth -
    Illness not checked, condition of
    child became serious after discharge -
    Discrepancy in statement – Complainant
    and his witnesses stated wrong date of
    discharge in order to support the
    claim – No cogent evidence produced to
    establish negligence in treatment of
    child – Complainant and his wife
    neither took appropriate precautions
    after discharge, nor consulted any
    qualified physician, themselves
    responsible for mental handicap of
    child – Opposite parties cannot be
    held responsible for any alleged
    deterioration in the health of child
    after discharge from hospital -
    Complaint false and frivolous,
    dismissed.

     

    Held : It is thus evident that if any
    deterioration in the condition of the
    child started, it started either late
    night on 20.1.1994 when they were
    discharged from the opposite parties’
    hospital or in the morning of
    21.1.1994 but neither the complainant
    nor his wife took appropriate
    precautions nor consulted any
    qualified physician.   (Para
    8)

     

    Held further : Thus, to us it appears
    that the complainant and his wife are
    themselves responsible for the state
    of mental handicap of the child, since
    they themselves have been negligent
    and inattentive about the seriousness
    of the child’s illness.  
    (Para 9)

      

    Held further : Be that as it may from
    the analysis of the records made
    available by both the parties it is
    apparent that at no point of time
    there has been any negligence or
    deriliction in the duties and
    obligations of clinical doctor on the
    part of the opposite party No. 1. Dr.
    S. Mathur who has given treatment to
    the child as per her best skills and
    that the mother and the child in
    question were discharged from the
    opposite parties’ hospital on
    20.1.1994 itself and not on 21.1.1994.
    After discharge from the opposite
    parties’ hospital on 20.1.1994 the
    opposite parties cannot be held
    responsible for any alleged
    deterioration in the health of the
    child of his mental capabilities.
    Accordingly issue No.2 framed above is
    also answered in the negative and in
    favour of the opposite parties. 
    (Para 10)

     

    (ii) Limitation – Complaint filed
    after two years from the date of
    accrual of cause of action, barred by
    limitation.   (Para 11)

     

    Result : Complaint dismissed.

     

    ORDER

     

    Mr. Ratan Prakash, Member –
    This order disposes of a complaint
    which has been filed by one Sh. Lallu
    Ram Meena husband of Smt. Kaushalya
    against Dr. S. Mathur and another to
    claim an amount of Rs. 19,31,500/- as
    compensation for negligence and
    causing irreparable mental handicap to
    a child delivered by Smt. Kaushalya on
    17.1.1994.

      

    2. Facts as stated by the complainant
    are that he admitted his wife Smt.
    Kaushalya in the hospital of opposite
    party No. 2 on 17.1.1994 having labour
    pains. Smt. Kaushalya gave birth to a
    male child on 17.1.1994 at 10.40 pm.
    the child weighed 3 kg. and both the
    mother and the child were under
    treatment in the hospital of opposite
    party No. 2 where opposite party No. 1
    Dr. S. Mathur attended and treated her
    till they were discharged from the
    hospital on 21.1.1994. The complainant
    alleged that though the child suffered
    with jaundice right from the time of
    its birth, the mother and the child
    were discharged on 21.1.1994 by the
    opposite parties assuming them that
    both of them are fit to be discharged.
    It is further the case of the
    complainant that immediately reaching
    the home after two or three hours
    after the condition of the child
    became serious. They brought the child
    to the opposite party’s hospital the
    same day but they refused to render
    any treatment on the plea that unless
    Rs. 500/- are paid as their fees they
    will not examine the child. The child
    thereafter was admitted in J.K. Lon
    Hospital on 21.1.1994 where he was
    kept under treatment for almost 11
    days i.e. from 22.1.1994 to 1.2.1994
    during which a number of clinical
    tests were got done. After discharge
    from J.K. Lon Hospital the child
    remained under the treatment of one
    Dr. Ashok Gupta and medicines were
    administered to the child as is
    evident from Annexures 11 to 20. The
    complainant alleging that the illness
    of jaundice to the child reached the
    limit of 18% mg. and had this illness
    could have been checked right from the
    time of the birth, the child would not
    have become serious. The complainant
    did not sit idle and got the child
    examined through a Psychiatrist Dr.
    Shiv Gautam who told him that the
    mental handicap of the child has
    increased because of jaundice and that
    there are no chances of his recovery;
    though the child was treated and given
    medicines as is evident from Annexures
    21, 22 and 23.

      

    3. The grievance of the complainant is
    that he got a mental shock when one
    Dr. Sanjay Pamecha, Medical Officer
    Incharge of the Primary Health Centre,
    Chandwaji (Jaipur) gave a report
    (Annx.24) on 9.12.1996 that it is a
    mental handicap of the child which is
    incurable. That neither the child
    speaks nor is able to manage his neck
    nor he is able to walk and that the
    life of the child has been spoiled.
    The complainant accordingly approached
    the opposite parties complaining about
    the consequences of their negligence
    but he and his wife were thrown out
    which gave him a cause of action to
    approach this Commission to advance a
    claim against the opposite parties
    amounting to Rs. 19,31,500/- as
    detailed in para 20 of the complaint.

      

    4. The opposite parties were summoned
    who have contested the complaint by
    filing a written reply. The stand of
    the opposite parties has been that
    though the complainant’s wife Smt.
    Kaushalya was admitted in opposite
    parties’ Sharad Hospital, Jaipur and a
    child was born to her yet the patient
    was discharged on 20.1.1994 and not on
    21.1.1994 as asserted to by the
    complainant. It has been urged that
    the complainant has fabricated the
    documents relating to the admission
    and discharge of the patient and as
    such the complaint should be dismissed
    only on this ground. It has also been
    urged that neither the complainant nor
    his wife brought the child to their
    hospital on 21 or 22 of Jan., 1994 nor
    that demanded Rs. 500/- for
    consultation as averred to by the
    complainant. It has also been stated
    that as according to the complainant
    himself the child was admitted in J.K.
    Lon Hospital, Jaipur on 22.1.1994 at
    1.40 pm. i.e. almost after 48 hours of
    discharge from their hospital on
    20.1.1994; no treatment seem to have
    been taken by them for patient, and it
    is possible that the child must have
    been under the treatment of some
    spiritual doctor. It has also been
    averred that as per medical science
    “at the time or soon after birth
    most of the children have
    physiological jaundice which does not
    require any form of intervention. With
    the passage of time, generally 7 days
    it subsides. Anything serious like
    convulsions has to be immediately
    reported to the medical doctor for
    proper treatment…” It has also
    been the stand of the opposite parties
    that when the mother and the child
    were discharged from opposite party’s
    hospital on 20.1.1994 they were hale
    and hearty but it appears that the
    alleged illness of jaundice developed
    only after discharge from their
    hospital which may be for various
    reasons as also negligence on the part
    of the complainant or his wife. The
    opposite parties in support of their
    version have also reproduced a portion
    of a text from the text book entitled
    “Essentials of Paediatrics by O.P.
    Ghai” pertaining to the
    management of physiological jaundice
    to the newly born. It has, therefore,
    been urged that since the complainant
    has fabricated the discharge ticket
    issued by the opposite parties
    hospital; to exhibit that the child
    was discharged on 21.1.1994 and not on
    20.1.1994 as is evident from the
    written application signed by the
    complainant himself mentioning that
    the child was discharged on 20.1.1994
    (Annx. R/2); the complaint deserves
    dismissal with costs.

      

    5. We heard the learned Counsel for
    the complainant Mr. S.K. Taylor as
    also Mr. Ashok Mehta for the opposite
    parties at great length and have
    examined the record carefully.

     

    6. It is necessary to mention in the
    beginning that not only the
    complainant and his witness have filed
    their affidavits in support of the
    complainant’s contentions but they
    have been cross-examined as prayed for
    by the opposite parties and allowed by
    the Commission vide its order dated
    12.11.1999. The opposite parties in
    turn have also filed their affidavits
    as also the copy of the indoor ticket
    of the Sharad Hospital (Annx. R1) and
    the application presented in the
    opposite parties’ hospital on
    20.10.1996 to obtain a duplicate copy
    of the discharge ticket etc. (Annx.
    R2).

     

    On the basis of the pleadings and the
    documents tendered by the parties two
    issues are made out :

      

    (1) Whether Smt. Kaushalya wife of the
    complainant and the newly born child
    were discharged from the opposite
    parties’ hospital on 21.1.1994 or
    20.1.1994 ?

     

    (2) Whether there has been any
    negligence whatsoever on the part of
    the treating doctor opposite party No.
    1 Dr. S. Mathur and for that matter of
    Sharad Hospital opposite party No. 2
    resulting in the alleged mental
    handicap of the child in question ?

       

    7. There is no dispute that Smt.
    Kaushalya was admitted in opposite
    parties’ hospital on 17.1.1994 and
    that she delivered a male child on the
    same night at about 10.40 pm. The
    allegation of the complainant is that
    the mother and the child were
    discharged from the hospital by the
    opposite parties on 21.1.1994. To
    support it the learned Counsel for the
    complainant has relied upon the
    affidavits of himself, his wife Smt.
    Kaushalya and also of one Smt. Barji
    Devi and Smt. Keshar Devi and of one
    Bajrang Lal Sharma s/o Ram Swaroop
    sworn on 8.12.1997. On the basis of
    these affidavits it has been urged
    that the over-writing on the date
    20.1.1994 in the Discharge Certificate
    at three places marked A, B and C by
    the Commissioner who recorded the
    cross-examination of complainant’s
    witnesses has been done by the doctor
    of the opposite parties, who issued
    the Discharge Certificate and that the
    complainant’s wife and the child were
    in fact discharged from the opposite
    parties’ hospital Sharad Hospital on
    21.1.1994 and not on 20.1.1994. A
    careful examination of the marking A,
    b and C on the Discharge Ticket which
    has been produced by the complainant
    in support of his allegations indicate
    that numeral ‘1’ has been over written
    on the numeral ‘0’ at place s marked A
    and C under the signature of S.Mathur
    and at place B an effort has been made
    to block the zero of ’20’ by drawing a
    straight short line below the blocked
    ‘zero’. The version of the complainant
    that his wife and the child were
    discharged on 21.1.1994 is not borne
    out on the record. There is marked
    discrepancy in the statement which has
    been given on oath on an affidavit by
    the person Sh. Bajrang Lal Sharma who
    states that the complainant handed
    over him a blank paper after putting
    his signature on 20.10.1996; to obtain
    a duplicate of the Discharge Ticket of
    his son Surya Prakash (newly born
    child) to be submitted in the opposite
    parties’ Sharad Hospital and that he
    himself went to Sharad Hospital on
    20.10.1996 and delivered the aforesaid
    paper (application) which was got
    written by Bajrang Lal and signed by
    himself. On the contrary the
    complainant Lallu Ram Meena asserts in
    his cross-examination (recorded by Mr.
    M.L. Vyas, Advocate on 27.11.1999)
    that he himself brought the duplicate
    Discharge Ticket i.e., filed by him
    with the complaint. Besides these
    contradictions, from the perusal of
    the photo-copy of the application
    filed by the opposite parties as at
    Annx. R-2 and the photo-copy of the
    indoor ticket filed at Annx. R1 of the
    opposite parties’ Sharad Hospital; it
    is clearly made out that the
    complainant’s wife and the child were
    discharged on 20.1.1994 and not on
    21.1.1994. The contents of the
    application presented by the
    complainant to obtain the duplicate
    Discharge Certificate repeatedly
    mentions that the complainant’s wife
    who gave birth on 17.1.1994 to a male
    child remained in the Nursing Home of
    the opposite parties from 17.1.1994 to
    20.1.1994 and that he may be issued a
    duplicate copy of the Discharge Ticket
    about the birth of the child on
    17.1.1994 and that they remained in
    the opposite parties’ hospital from
    17.1.1994 to 20.1.1994. We, therefore,
    are of the firm opinion that the
    complainant and his witnesses are
    stating a wrong date in order to
    support a false and frivolous claim of
    the complainant. The evidence,
    therefore, produced by the complainant
    in support of issue No. 1 is
    disbelieved and rejected and it is
    held that the complainant’s wife Smt.
    Kaushalya was admitted in the Sharad
    Hospital on 17.1.1994, delivered a
    male child on the same date at 10.40
    pm. and was discharged on 20.1.1994
    and not on 21.1.1994. The first issue
    accordingly is decided against the
    complainant and in favour of the
    opposite parties.

     

    8. The next question relates to the
    aspect of negligence in the treatment
    by the opposite party Nos. 1 and 2 of
    the child born to Smt. Kaushalya on
    17.1.1994. The complainant has not
    produced any cogent evidence about any
    negligence with regard to the
    treatment of the child who is alleged
    to have been suffering from jaundice
    since the time of the birth of the
    child except oral version of the
    complainant and his witnesses there is
    nothing on record which can establish
    that the child was suffering from
    jaundice when he was discharged on
    20.1.1994. Even if for argument sake
    it is believed (to which we do not
    acceed) according to the complainant
    himself the child was taken to J.K.
    Lon Hospital on 22.1.1994 in the
    afternoon and before being taken to
    J.K. Lon Hospital he was taken to
    Santokba Durlabhji Memorial Hospital (SDMH)
    on 22.1.1994 itself from where he was
    discharged at 12 pm. since the
    relation (uncle) of the complainant
    has desired to take the child at home
    on their own risk. This is evident
    from the record of the SDMH which has
    been filed by the complainant along
    with his application dated 20.1.1998.
    From a perusal of the bed head ticket
    it is made out that the child weighed
    2.6 kg. at the time of examination in
    S.D.M. Hospital and has been indicated
    six days old child. The diagnosis has
    also been indicated a “GC n/s
    sitenus +++ signs of Kernicterus
    +”. This bed head ticket also
    indicates that the child accepted
    breast feeds on 2nd, 3rd and 4th day.
    This record maintained by the SDM
    Hospital on 22.1.1994 coupled with the
    observations made in the Discharge
    Ticket prepared in Sirpadmawat Mother
    and Child Institute, S.M.S Medical
    College, Jaipur (J.K. Lon Hospital)
    indicates under the column of
    complaints and history; convulsion one
    day, GTC C URE fever one day
    undocumented. This Discharge Ticket
    filed by the complainant at Annx. 2
    indicates the date of admission as
    22.1.1994 and if the entries made
    under the heading ‘complaints and
    history’ are read together it is made
    out that the complainant’s wife and
    child were at their home on 21.1.1994.
    Else the complainant may not have
    narrated in his complaint and the
    affidavit that immediately two or
    three hours after his discharge from
    the opposite parties’ hospital on
    21.1.1994 the child’s condition became
    serious. Moreover according to the
    record of the SDM Hospital the child
    appears to have been taken first to
    the SDM Hospital in the morning itself
    and immediately thereafter the child’s
    treatment started but the
    complainant’s relatives thought it
    proper to take the child at home at
    their risk on 22.1.1994 itself around
    12 pm. and thereafter they took the
    child to J.K. Lon Hospital around 2
    pm. It is thus evident that if any
    deterioration in the condition of the
    child started, it started either late
    night on 20.1.1994 when they were
    discharged from the opposite parties’
    hospital or in the morning of
    21.1.1994 but neither the complainant
    nor his wife took appropriate
    precautions nor consulted any
    qualified physician. It is in this
    background that the opposite party No.
    1 Dr. S. Mathur who has been treating
    doctor of the complainant’s wife has
    stated in her reply that on the date
    and time of admission of the child in
    J.K. Lon Hospital, Jaipur on 22.1.1994
    at 1.40 pm. the child was having
    convulsions (written as GTC) meaning
    generalised Tonic clonic convulsions
    since one day. According to her
    “occurrence of convulsions cannot
    be attributed to rise of bilirubin
    alone. It can occur because of various
    other reasons also. Serum bilirubin of
    unconjugated type is generally found
    increased in the newborns and this is
    called “Physiological jaundice of
    the newborn”. In the text book -
    Essentials of Paediatrics by O.P. Ghai,
    in the description of management of
    physiological jaundice of the newborn,
    it is written that “Management is
    essentially symptomatic. No specific
    therapy of physiological jaundice is
    required. The infant should be watched
    for any complicating illness or sudden
    rise of bilirubin levels”. This
    goes to show that physiological
    jaundice of newly born child normally
    requires no treatment. That in the
    same text book of O.P. Ghai, it has
    also been mentioned that “The
    main objective of the treatment is to
    prevent elevation of serum bilirubin
    to toxic levels to avoid development
    of Kernicterus.

     

    The first indication of complication
    came to be known when the child had
    convulsions for the first time i.e.
    2-3 hours after discharge as has been
    alleged. If the child would have
    received expert medical care at the
    very spur of the moment, the elevation
    of bilirubin to toxic levels
    sufficient to produce Kernicterus
    could have been avoided….”

     

    9. Thus, to us it appears that the
    complainant and his wife are
    themselves responsible for the state
    of mental handicap of the child, since
    they themselves have been negligent
    and inattentive about the seriousness
    of the child’s illness.

     

    10. This is not all. It appears that
    to file a complaint against the
    opposite parties is an after thought.
    The reason is : firstly the
    complainant obtained a note alleged to
    have been prepared by one Dr. Sanjay
    Pamecha, Medical Officer Incharge of
    Primary Health Centre, Chandwaji (Jaipur)
    who has opined that the real cause for
    the state of mental health of the
    child has been that the child was not
    treated properly at the earliest state
    by the treating doctor, otherwise it
    could have been prevented. This doctor
    appears to have issued this note on
    10.12.1996 and that too on the basis
    of some record made available by the
    complainant. The concerned doctor does
    not appear to be an expert on any
    specialised branch of medicine. He has
    not indicated his medical
    qualifications as well under his
    signature. He does not appear to have
    examined the child even in person.
    This is a very irresponsible conduct
    on the part of a Medical Officer of
    the Govt. Hospital and no evidentiary
    value can be attached to it. Besides
    this anomaly the child appears to have
    remained under the treatment of one
    Dr. Ashok Gupta right from the date of
    his admission in J.K. Lon Hospital
    i.e. 22.1.1994 as is evident from the
    various prescriptions filed by the
    complainant alongwith his complaint.
    Even Dr. Shiv Gautam, Prof. of
    Psychiatry appears to have examined
    the child on 3.11.1995; when the child
    remained under his treatment till
    June, 1998. Be that as it may from the
    analysis of the records made available
    by both the parties it is apparent
    that at no point of time there has
    been any negligence or deriliction in
    the duties and obligations of clinical
    doctor on the part of the opposite
    party No. 1 Dr. S. Mathur who has
    given treatment to the child as per
    her best skills and that the mother
    and the child in question were
    discharged from the opposite parties’
    hospital on 20.1.1994 itself and not
    on 21.1.1994. After discharge from the
    opposite parties’ hospital on
    20.1.1994 the opposite parties cannot
    be held responsible for any alleged
    deterioration in the health of the
    child of his mental capabilities.
    Accordingly issue No. 2 framed above
    is also answered in the negative and
    in favour of the opposite parties.

      

    11. One more aspect which appears to
    have skipped the notice of the
    opposite parties is that the complaint
    has been filed by the complainant
    before this Commission on 19.12.1996
    whereas the child in question and Smt.
    Kaushalya, the wife of the complainant
    were discharged from the opposite
    parties’ hospital on 20.1.1994. In
    other words if any cause of action
    arose to bring this complaint against
    the opposite parties it could have
    been on 20.1.1994 when they were
    discharged or when they were admitted
    and examined in SDM Hospital as also
    in J.K. Lon Hospital, Jaipur on
    22.1.1994 itself. The complaint has
    decidedly been filed after two years
    from the date of accrual of cause of
    action i.e. 20.1.1994/22.1.1994 and,
    therefore, deserves dismissal on this
    ground as well.

       

    12. Consequently we are of the firm
    view that the complainant has not
    approached this Commission with clean
    hands. It is not only baseless,
    frivolous but appears to have been
    filed with some ulterior motive to
    cause harm to the reputation of the
    opposite parties and to project an
    inflated claim of Rs. 19,31,500/-. It
    is to check and dissuade a tendency of
    such persons that Hon’ble the Supreme
    Court in para 26 of the judgment in
    Morgan Stanley Mutual Fund v. Kartik
    Dass & Ors., II (1994) CPJ 7 (SC),
    observed “there is an increasing
    tendency on the part of litigants to
    indulge in speculative and vexatious
    litigation and adventurism which the
    Fora seem readily to oblige. We think
    such a tendency should be
    curbed”.

     

    13. This view of Hon’ble the Supreme
    Court has further been reiterated by
    Hon’ble the National Commission in the
    case of Brij Mohan Kher v. N.H. Banka
    (Dr.) & Anr., III (1994) CPJ 140
    (NC), wherein while dismissing a
    complaint seeking to recover a
    compensation of Rs. 55,90,000/- from
    the opposite parties, Hon’ble the
    National Commission observed that
    “the motive of the complainant is
    only to indulge in speculative
    litigation taking undue advantage of
    the fact that no Court fee is payable
    for institution of a case under the
    Consumer Protection Act”. Hon’ble
    the National Commission accordingly
    while awarding a sum of Rs. 10,000/-
    as costs to each of the opposite
    parties observed that “such
    indulgence in speculative litigation
    and adventurism by the complainant, a
    tendency which must be put down with
    heavy hand.

      

    14. In the instant case also as the
    lead given by Hon’ble the Supreme
    Court and followed by Hon’ble the
    National Commission also applies with
    full force. The complaint herein
    deserves dismissal and is dismissed
    accordingly.

      

    15. Consequently in the facts and
    circumstances of the case and as held
    by Hon’ble the Supreme Court and the
    National Commission, we consider it
    appropriate to award of sum Rs.
    5,000/- as costs to each of the
    opposite parties for having to contest
    a false and frivolous complaint which
    appears to us to have been made mainly
    to tarnish the image and reputation of
    the opposite parties’ hospital.

      

    Complaint dismissed.

        


         


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  • Jitendra Nath v. Dr.(Mrs.) Manju Geeta Mishra & Ors
    1995 (2) CPJ 96 (Bihar SCDRC)
      
    The complainant’s wife Mrs. Bibha Nath was taken to Dr. Mrs. Manju Geeta Mishra’s Nursing Home on 13.8.91 with labour pains. Considering her history of two previous abortions, breech presentation of present pregnancy, rupture of membrances and EDD (expected date of delivery) 11.9.91, after taking consent, Caesarean was done within 2 hours of admission. After 10 to 12 hours of birth the child developed breathing difficulty and was referred to a paediatrician – Dr. Kumar’s Nursing Home – where the child died after 2 days.
     
    It was alleged that Dr.(Mrs) Mishra had not called any child specialist to attend the baby after delivery, despite knowing that the delivery of the child was premature by about three weeks. Child was underweight (2.3 kg) and after delivery Dr.(Mrs) Mishra took up another Caesarean instead of attending to the child. Child was wrapped in an unsterilized towel. She failed to clean the tongue and the throat of the child and also failed to make the child cry, which she should have done due which the child had respiratory difficulty and deficiency of oxygen resulting in asphyxia. The complainant also filed criminal cases against Dr. (Mrs.) Mishra u/s.304, 304-A IPC and against Dr. Kumar u/s. 304, 304 A and 504 IPC. The Judicial Magistrate after examining the complaint and two more witnesses recorded that no prima facie case is made out and there is no sufficient ground for proceeding and hence dismissed both the cases. The complainant has filed revision before the Hon’ble High Court, Patna against this order. State Commission held that as a matter of policy and principle where the subject matter of the complaint is subjudice before ordinary courts, a concurrent adjudication in respect of the same should not be conducted under the Act, as held by the National Commission in Special Machines v. Punjab National Bank and Santosh Sharma v. State Bank of India. For these reasons the complaints were dismissed.
     
    1. 1991(1) CPJ 78:1991(1) CPR 52(NCDRC)
     
    2. 1991(2) CPJ 262:1991(1) CPR 103 (NCDRC)
      
    3. The decision of the State Commission in this case is not in line with the National Commission’s decision in Punjab National Bank v. K.B. Shetty, 1991(2) CPR 633: 1991 (2) CPJ 639 (NCDRC) wherein it was held that where the case is subjudice in a criminal court it cannot be maintained that the complaint could not be entertained by the State Commission on the ground that the case was subjudice and under investigation by the Metropolitan Magistrate.
      

  • LALLURAM MEENA v. DR. S. MATHUR
    III (2001) CPJ 200
     
    (i) Consumer Protection Act, 1986 - Section 14(1)(d) – Medical Negligence – Irreparable mental handicap caused to the child – Compensation - Allegation, child suffered jaundice right from the time of its birth - Illness not checked, condition of child became serious after discharge - Discrepancy in statement – Complainant and his witnesses stated wrong date of discharge in order to support the claim – No cogent evidence produced to establish negligence in treatment of child – Complainant and his wife neither took appropriate precautions after discharge, nor consulted any qualified physician, themselves responsible for mental handicap of child – Opposite parties cannot be held responsible for any alleged deterioration in the health of child after discharge from hospital - Complaint false and frivolous, dismissed.
     
    Held : It is thus evident that if any deterioration in the condition of the child started, it started either late night on 20.1.1994 when they were discharged from the opposite parties’ hospital or in the morning of 21.1.1994 but neither the complainant nor his wife took appropriate precautions nor consulted any qualified physician.   (Para 8)
     
    Held further : Thus, to us it appears that the complainant and his wife are themselves responsible for the state of mental handicap of the child, since they themselves have been negligent and inattentive about the seriousness of the child’s illness.   (Para 9)
      
    Held further : Be that as it may from the analysis of the records made available by both the parties it is apparent that at no point of time there has been any negligence or deriliction in the duties and obligations of clinical doctor on the part of the opposite party No. 1. Dr. S. Mathur who has given treatment to the child as per her best skills and that the mother and the child in question were discharged from the opposite parties’ hospital on 20.1.1994 itself and not on 21.1.1994. After discharge from the opposite parties’ hospital on 20.1.1994 the opposite parties cannot be held responsible for any alleged deterioration in the health of the child of his mental capabilities. Accordingly issue No.2 framed above is also answered in the negative and in favour of the opposite parties.  (Para 10)
     
    (ii) Limitation – Complaint filed after two years from the date of accrual of cause of action, barred by limitation.   (Para 11)
     
    Result : Complaint dismissed.
     
    ORDER
     
    Mr. Ratan Prakash, Member – This order disposes of a complaint which has been filed by one Sh. Lallu Ram Meena husband of Smt. Kaushalya against Dr. S. Mathur and another to claim an amount of Rs. 19,31,500/- as compensation for negligence and causing irreparable mental handicap to a child delivered by Smt. Kaushalya on 17.1.1994.
      
    2. Facts as stated by the complainant are that he admitted his wife Smt. Kaushalya in the hospital of opposite party No. 2 on 17.1.1994 having labour pains. Smt. Kaushalya gave birth to a male child on 17.1.1994 at 10.40 pm. the child weighed 3 kg. and both the mother and the child were under treatment in the hospital of opposite party No. 2 where opposite party No. 1 Dr. S. Mathur attended and treated her till they were discharged from the hospital on 21.1.1994. The complainant alleged that though the child suffered with jaundice right from the time of its birth, the mother and the child were discharged on 21.1.1994 by the opposite parties assuming them that both of them are fit to be discharged. It is further the case of the complainant that immediately reaching the home after two or three hours after the condition of the child became serious. They brought the child to the opposite party’s hospital the same day but they refused to render any treatment on the plea that unless Rs. 500/- are paid as their fees they will not examine the child. The child thereafter was admitted in J.K. Lon Hospital on 21.1.1994 where he was kept under treatment for almost 11 days i.e. from 22.1.1994 to 1.2.1994 during which a number of clinical tests were got done. After discharge from J.K. Lon Hospital the child remained under the treatment of one Dr. Ashok Gupta and medicines were administered to the child as is evident from Annexures 11 to 20. The complainant alleging that the illness of jaundice to the child reached the limit of 18% mg. and had this illness could have been checked right from the time of the birth, the child would not have become serious. The complainant did not sit idle and got the child examined through a Psychiatrist Dr. Shiv Gautam who told him that the mental handicap of the child has increased because of jaundice and that there are no chances of his recovery; though the child was treated and given medicines as is evident from Annexures 21, 22 and 23.
      
    3. The grievance of the complainant is that he got a mental shock when one Dr. Sanjay Pamecha, Medical Officer Incharge of the Primary Health Centre, Chandwaji (Jaipur) gave a report (Annx.24) on 9.12.1996 that it is a mental handicap of the child which is incurable. That neither the child speaks nor is able to manage his neck nor he is able to walk and that the life of the child has been spoiled. The complainant accordingly approached the opposite parties complaining about the consequences of their negligence but he and his wife were thrown out which gave him a cause of action to approach this Commission to advance a claim against the opposite parties amounting to Rs. 19,31,500/- as detailed in para 20 of the complaint.
      
    4. The opposite parties were summoned who have contested the complaint by filing a written reply. The stand of the opposite parties has been that though the complainant’s wife Smt. Kaushalya was admitted in opposite parties’ Sharad Hospital, Jaipur and a child was born to her yet the patient was discharged on 20.1.1994 and not on 21.1.1994 as asserted to by the complainant. It has been urged that the complainant has fabricated the documents relating to the admission and discharge of the patient and as such the complaint should be dismissed only on this ground. It has also been urged that neither the complainant nor his wife brought the child to their hospital on 21 or 22 of Jan., 1994 nor that demanded Rs. 500/- for consultation as averred to by the complainant. It has also been stated that as according to the complainant himself the child was admitted in J.K. Lon Hospital, Jaipur on 22.1.1994 at 1.40 pm. i.e. almost after 48 hours of discharge from their hospital on 20.1.1994; no treatment seem to have been taken by them for patient, and it is possible that the child must have been under the treatment of some spiritual doctor. It has also been averred that as per medical science “at the time or soon after birth most of the children have physiological jaundice which does not require any form of intervention. With the passage of time, generally 7 days it subsides. Anything serious like convulsions has to be immediately reported to the medical doctor for proper treatment…” It has also been the stand of the opposite parties that when the mother and the child were discharged from opposite party’s hospital on 20.1.1994 they were hale and hearty but it appears that the alleged illness of jaundice developed only after discharge from their hospital which may be for various reasons as also negligence on the part of the complainant or his wife. The opposite parties in support of their version have also reproduced a portion of a text from the text book entitled “Essentials of Paediatrics by O.P. Ghai” pertaining to the management of physiological jaundice to the newly born. It has, therefore, been urged that since the complainant has fabricated the discharge ticket issued by the opposite parties hospital; to exhibit that the child was discharged on 21.1.1994 and not on 20.1.1994 as is evident from the written application signed by the complainant himself mentioning that the child was discharged on 20.1.1994 (Annx. R/2); the complaint deserves dismissal with costs.
      
    5. We heard the learned Counsel for the complainant Mr. S.K. Taylor as also Mr. Ashok Mehta for the opposite parties at great length and have examined the record carefully.
     
    6. It is necessary to mention in the beginning that not only the complainant and his witness have filed their affidavits in support of the complainant’s contentions but they have been cross-examined as prayed for by the opposite parties and allowed by the Commission vide its order dated 12.11.1999. The opposite parties in turn have also filed their affidavits as also the copy of the indoor ticket of the Sharad Hospital (Annx. R1) and the application presented in the opposite parties’ hospital on 20.10.1996 to obtain a duplicate copy of the discharge ticket etc. (Annx. R2).
     
    On the basis of the pleadings and the documents tendered by the parties two issues are made out :
      
    (1) Whether Smt. Kaushalya wife of the complainant and the newly born child were discharged from the opposite parties’ hospital on 21.1.1994 or 20.1.1994 ?
     
    (2) Whether there has been any negligence whatsoever on the part of the treating doctor opposite party No. 1 Dr. S. Mathur and for that matter of Sharad Hospital opposite party No. 2 resulting in the alleged mental handicap of the child in question ?
       
    7. There is no dispute that Smt. Kaushalya was admitted in opposite parties’ hospital on 17.1.1994 and that she delivered a male child on the same night at about 10.40 pm. The allegation of the complainant is that the mother and the child were discharged from the hospital by the opposite parties on 21.1.1994. To support it the learned Counsel for the complainant has relied upon the affidavits of himself, his wife Smt. Kaushalya and also of one Smt. Barji Devi and Smt. Keshar Devi and of one Bajrang Lal Sharma s/o Ram Swaroop sworn on 8.12.1997. On the basis of these affidavits it has been urged that the over-writing on the date 20.1.1994 in the Discharge Certificate at three places marked A, B and C by the Commissioner who recorded the cross-examination of complainant’s witnesses has been done by the doctor of the opposite parties, who issued the Discharge Certificate and that the complainant’s wife and the child were in fact discharged from the opposite parties’ hospital Sharad Hospital on 21.1.1994 and not on 20.1.1994. A careful examination of the marking A, b and C on the Discharge Ticket which has been produced by the complainant in support of his allegations indicate that numeral ‘1’ has been over written on the numeral ‘0’ at place s marked A and C under the signature of S.Mathur and at place B an effort has been made to block the zero of ’20’ by drawing a straight short line below the blocked ‘zero’. The version of the complainant that his wife and the child were discharged on 21.1.1994 is not borne out on the record. There is marked discrepancy in the statement which has been given on oath on an affidavit by the person Sh. Bajrang Lal Sharma who states that the complainant handed over him a blank paper after putting his signature on 20.10.1996; to obtain a duplicate of the Discharge Ticket of his son Surya Prakash (newly born child) to be submitted in the opposite parties’ Sharad Hospital and that he himself went to Sharad Hospital on 20.10.1996 and delivered the aforesaid paper (application) which was got written by Bajrang Lal and signed by himself. On the contrary the complainant Lallu Ram Meena asserts in his cross-examination (recorded by Mr. M.L. Vyas, Advocate on 27.11.1999) that he himself brought the duplicate Discharge Ticket i.e., filed by him with the complaint. Besides these contradictions, from the perusal of the photo-copy of the application filed by the opposite parties as at Annx. R-2 and the photo-copy of the indoor ticket filed at Annx. R1 of the opposite parties’ Sharad Hospital; it is clearly made out that the complainant’s wife and the child were discharged on 20.1.1994 and not on 21.1.1994. The contents of the application presented by the complainant to obtain the duplicate Discharge Certificate repeatedly mentions that the complainant’s wife who gave birth on 17.1.1994 to a male child remained in the Nursing Home of the opposite parties from 17.1.1994 to 20.1.1994 and that he may be issued a duplicate copy of the Discharge Ticket about the birth of the child on 17.1.1994 and that they remained in the opposite parties’ hospital from 17.1.1994 to 20.1.1994. We, therefore, are of the firm opinion that the complainant and his witnesses are stating a wrong date in order to support a false and frivolous claim of the complainant. The evidence, therefore, produced by the complainant in support of issue No. 1 is disbelieved and rejected and it is held that the complainant’s wife Smt. Kaushalya was admitted in the Sharad Hospital on 17.1.1994, delivered a male child on the same date at 10.40 pm. and was discharged on 20.1.1994 and not on 21.1.1994. The first issue accordingly is decided against the complainant and in favour of the opposite parties.
     
    8. The next question relates to the aspect of negligence in the treatment by the opposite party Nos. 1 and 2 of the child born to Smt. Kaushalya on 17.1.1994. The complainant has not produced any cogent evidence about any negligence with regard to the treatment of the child who is alleged to have been suffering from jaundice since the time of the birth of the child except oral version of the complainant and his witnesses there is nothing on record which can establish that the child was suffering from jaundice when he was discharged on 20.1.1994. Even if for argument sake it is believed (to which we do not acceed) according to the complainant himself the child was taken to J.K. Lon Hospital on 22.1.1994 in the afternoon and before being taken to J.K. Lon Hospital he was taken to Santokba Durlabhji Memorial Hospital (SDMH) on 22.1.1994 itself from where he was discharged at 12 pm. since the relation (uncle) of the complainant has desired to take the child at home on their own risk. This is evident from the record of the SDMH which has been filed by the complainant along with his application dated 20.1.1998. From a perusal of the bed head ticket it is made out that the child weighed 2.6 kg. at the time of examination in S.D.M. Hospital and has been indicated six days old child. The diagnosis has also been indicated a “GC n/s sitenus +++ signs of Kernicterus +”. This bed head ticket also indicates that the child accepted breast feeds on 2nd, 3rd and 4th day. This record maintained by the SDM Hospital on 22.1.1994 coupled with the observations made in the Discharge Ticket prepared in Sirpadmawat Mother and Child Institute, S.M.S Medical College, Jaipur (J.K. Lon Hospital) indicates under the column of complaints and history; convulsion one day, GTC C URE fever one day undocumented. This Discharge Ticket filed by the complainant at Annx. 2 indicates the date of admission as 22.1.1994 and if the entries made under the heading ‘complaints and history’ are read together it is made out that the complainant’s wife and child were at their home on 21.1.1994. Else the complainant may not have narrated in his complaint and the affidavit that immediately two or three hours after his discharge from the opposite parties’ hospital on 21.1.1994 the child’s condition became serious. Moreover according to the record of the SDM Hospital the child appears to have been taken first to the SDM Hospital in the morning itself and immediately thereafter the child’s treatment started but the complainant’s relatives thought it proper to take the child at home at their risk on 22.1.1994 itself around 12 pm. and thereafter they took the child to J.K. Lon Hospital around 2 pm. It is thus evident that if any deterioration in the condition of the child started, it started either late night on 20.1.1994 when they were discharged from the opposite parties’ hospital or in the morning of 21.1.1994 but neither the complainant nor his wife took appropriate precautions nor consulted any qualified physician. It is in this background that the opposite party No. 1 Dr. S. Mathur who has been treating doctor of the complainant’s wife has stated in her reply that on the date and time of admission of the child in J.K. Lon Hospital, Jaipur on 22.1.1994 at 1.40 pm. the child was having convulsions (written as GTC) meaning generalised Tonic clonic convulsions since one day. According to her “occurrence of convulsions cannot be attributed to rise of bilirubin alone. It can occur because of various other reasons also. Serum bilirubin of unconjugated type is generally found increased in the newborns and this is called “Physiological jaundice of the newborn”. In the text book - Essentials of Paediatrics by O.P. Ghai, in the description of management of physiological jaundice of the newborn, it is written that “Management is essentially symptomatic. No specific therapy of physiological jaundice is required. The infant should be watched for any complicating illness or sudden rise of bilirubin levels”. This goes to show that physiological jaundice of newly born child normally requires no treatment. That in the same text book of O.P. Ghai, it has also been mentioned that “The main objective of the treatment is to prevent elevation of serum bilirubin to toxic levels to avoid development of Kernicterus.
     
    The first indication of complication came to be known when the child had convulsions for the first time i.e. 2-3 hours after discharge as has been alleged. If the child would have received expert medical care at the very spur of the moment, the elevation of bilirubin to toxic levels sufficient to produce Kernicterus could have been avoided….”
     
    9. Thus, to us it appears that the complainant and his wife are themselves responsible for the state of mental handicap of the child, since they themselves have been negligent and inattentive about the seriousness of the child’s illness.
     
    10. This is not all. It appears that to file a complaint against the opposite parties is an after thought. The reason is : firstly the complainant obtained a note alleged to have been prepared by one Dr. Sanjay Pamecha, Medical Officer Incharge of Primary Health Centre, Chandwaji (Jaipur) who has opined that the real cause for the state of mental health of the child has been that the child was not treated properly at the earliest state by the treating doctor, otherwise it could have been prevented. This doctor appears to have issued this note on 10.12.1996 and that too on the basis of some record made available by the complainant. The concerned doctor does not appear to be an expert on any specialised branch of medicine. He has not indicated his medical qualifications as well under his signature. He does not appear to have examined the child even in person. This is a very irresponsible conduct on the part of a Medical Officer of the Govt. Hospital and no evidentiary value can be attached to it. Besides this anomaly the child appears to have remained under the treatment of one Dr. Ashok Gupta right from the date of his admission in J.K. Lon Hospital i.e. 22.1.1994 as is evident from the various prescriptions filed by the complainant alongwith his complaint. Even Dr. Shiv Gautam, Prof. of Psychiatry appears to have examined the child on 3.11.1995; when the child remained under his treatment till June, 1998. Be that as it may from the analysis of the records made available by both the parties it is apparent that at no point of time there has been any negligence or deriliction in the duties and obligations of clinical doctor on the part of the opposite party No. 1 Dr. S. Mathur who has given treatment to the child as per her best skills and that the mother and the child in question were discharged from the opposite parties’ hospital on 20.1.1994 itself and not on 21.1.1994. After discharge from the opposite parties’ hospital on 20.1.1994 the opposite parties cannot be held responsible for any alleged deterioration in the health of the child of his mental capabilities. Accordingly issue No. 2 framed above is also answered in the negative and in favour of the opposite parties.
      
    11. One more aspect which appears to have skipped the notice of the opposite parties is that the complaint has been filed by the complainant before this Commission on 19.12.1996 whereas the child in question and Smt. Kaushalya, the wife of the complainant were discharged from the opposite parties’ hospital on 20.1.1994. In other words if any cause of action arose to bring this complaint against the opposite parties it could have been on 20.1.1994 when they were discharged or when they were admitted and examined in SDM Hospital as also in J.K. Lon Hospital, Jaipur on 22.1.1994 itself. The complaint has decidedly been filed after two years from the date of accrual of cause of action i.e. 20.1.1994/22.1.1994 and, therefore, deserves dismissal on this ground as well.
       
    12. Consequently we are of the firm view that the complainant has not approached this Commission with clean hands. It is not only baseless, frivolous but appears to have been filed with some ulterior motive to cause harm to the reputation of the opposite parties and to project an inflated claim of Rs. 19,31,500/-. It is to check and dissuade a tendency of such persons that Hon’ble the Supreme Court in para 26 of the judgment in Morgan Stanley Mutual Fund v. Kartik Dass & Ors., II (1994) CPJ 7 (SC), observed “there is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the Fora seem readily to oblige. We think such a tendency should be curbed”.
     
    13. This view of Hon’ble the Supreme Court has further been reiterated by Hon’ble the National Commission in the case of Brij Mohan Kher v. N.H. Banka (Dr.) & Anr., III (1994) CPJ 140 (NC), wherein while dismissing a complaint seeking to recover a compensation of Rs. 55,90,000/- from the opposite parties, Hon’ble the National Commission observed that “the motive of the complainant is only to indulge in speculative litigation taking undue advantage of the fact that no Court fee is payable for institution of a case under the Consumer Protection Act”. Hon’ble the National Commission accordingly while awarding a sum of Rs. 10,000/- as costs to each of the opposite parties observed that “such indulgence in speculative litigation and adventurism by the complainant, a tendency which must be put down with heavy hand.
      
    14. In the instant case also as the lead given by Hon’ble the Supreme Court and followed by Hon’ble the National Commission also applies with full force. The complaint herein deserves dismissal and is dismissed accordingly.
      
    15. Consequently in the facts and circumstances of the case and as held by Hon’ble the Supreme Court and the National Commission, we consider it appropriate to award of sum Rs. 5,000/- as costs to each of the opposite parties for having to contest a false and frivolous complaint which appears to us to have been made mainly to tarnish the image and reputation of the opposite parties’ hospital.
      
    Complaint dismissed.
        

         

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By |2022-07-20T16:43:51+00:00July 20, 2022|Uncategorized|Comments Off on Doctor’s Favour / Paediatrics

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