Decided on October 13,2014

State of Punjab and Ors. Respondents


Gurcharan Singh Saran, Presiding Member (J) - (1.) THE appellant/complainant (hereinafter referred as "the complainant") has filed the present appeal against the order dated 18.1.2012 passed by the District Consumer Disputes Redressal Forum, Faridkot (hereinafter referred as "the District Forum") in consumer complaint No. 69 dated 17.3.2011 vide which the learned President had partly allowed the complaint with a direction to OP No. 1 to pay a sum of Rs. 2 lacs as compensation to the complainant for causing mental tension and harassment and for deficiency in services whereas OP No. 4 was directed to pay Rs. 10,000 as compensation for not providing the information under Right to Information Act (in short 'RTF) and violation of PNDT Act along with interest @ 9% per annum from the date of order till realization whereas two Members of the District Forum had dismissed the complaint. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents on the allegations that she was pregnant and was diagnosed so by respondents Nos. 3 and 4. She visited Civil Hospital, Kotkapura under CR No. 4180 dated 28.10.2009 with respondent No. 3 for Ultra Sound test. After depositing the necessary fee, she had undergone Ultra Sound test on 29.10.2009 done by Dr. S.K. Malik and its report was given by respondent No. 3, who stated that the report does not disclose about the Hydrocephalus abnormities of the fetus nor any genetic counselling was done by the respondent and she was advised to visit Dr. Sneh Prabha. She had been taking treatment from Dr. Sneh Prabha from the date of conceiving to the date of delivery but these Doctors did not disclose about the fact of Hydrocephalus. The respondents even said that her delivery was normal and despite having knowledge that the child was having Hydrocephalus, she was discharged on 7.1.2010. After 10 -12 days, the child did not stop crying. She took the child to Chandigarh Hospital from where she came to know the fact of Hydrocephalus and MRI was advised. Respondent No. 5 Dr. Ram Deep Singh Dang after consultation advised for admission of the child in Guru Gobind Singh Medical College and Hospital, Faridkot (in short 'GGS Medical College') and, accordingly, the child was got admitted there on 15.4.2010 where respondent No. 5 conducted two wrong operations duly knowing that the child will not survive due to the deficiencies on the part of the respondents. It was alleged that respondent Nos. 3 and 4 concealed the fact of Hydrocephalus of the child and by not doing genetic counselling were medically negligent and deficient in their services towards the treatment of the child. In case the factum of Hydrocephalus was disclosed to her she might not had conceived the child. Even respondent No. 4 did not give the medical record of the complainant demanded under RTI. Notice under Section 80, CPC was given by the complainant to the respondents on 28.8.2010 through Mr. Jatinder Marria, Advocate of Faridkot and then the complaint with a direction to the OPs to pay compensation to the tune of Rs. 5 lacs.
(2.) RESPONDENT Nos. 1, 2 and 6 did not appear despite service, therefore, they were proceeded ex parte. Whereas the complaint was contested by respondent Nos. 3, 4 and 5. Respondent No. 3 in its written reply had taken the preliminary objections that the complaint was not maintainable and that the District Forum did not have the jurisdiction to entertain the complaint. On merits, it was admitted that the complainant visited Civil Hospital, Kotkapura under CR No. 4180 for ante -natal checkup, at the time she had Amenorhea of 7 months with no previous checkup or any investigation at Civil Hospital, Kotkapura. She was clinically examined thoroughly by respondent No. 3 on 28.10.2009 and had prescribed certain medicines and advised Ultra Sound (USG). She had no knowledge whether the patient had purchased the medicines or consumed the same. The USG was done by Dr. S.K. Malik and the report did not disclose him Hydrocephalus abnormities of the fetus, rather, the report was about Hydramnious, therefore, the question of any genetic counselling did not arise. This respondent never advised to contact Dr. Sneh Prabha, who was just MBBS whereas this respondent was MBBS and MS and maintain a highest standard of professional conduct. The complainant was never advised to visit again after 15 days but she did not turn up. This respondent was not concerned with respondent No. 4. The complainant was properly examined and diagnosed and treated according to prescribed medical standards. The USG revealed gestation of 29 weeks + 1 day. Since the report of Dr. S.K. Malik never revealed Hydrocephalus so the question of disclosing the same to the complainant did not arise. There was no negligence or deficiency on the part of this respondent. Complaint qua her is without merit and it be dismissed. Op No. 4 in its written reply had taken the preliminary objections that there was no report of any Medical Board or Expert to say that respondent No. 4 was in any way negligent and deficient in rendering the services and that the complicated questions of law and facts were involved and the same cannot be decided in summary way. On merits, it was denied that respondent Nos. 3 and 4 jointly diagnosed that the complainant was pregnant, however, the complainant had visited the hospital of this Op first time when she was pregnant of about 20 to 22 weeks. She had no knowledge of any Ultra Sound Test. Respondent No. 3 never asked the complainant to visit this Op. The delivery of the child had taken place in the hospital of this respondent and at that time there was no abnormality. The complainant was admitted on 6.1.2010 at 9 p.m. and delivered the normal female child at 11.20 a.m. on 7.1.2010. The baby cried immediately and there was no complication either to mother of the baby and she was discharged on 7.1.2010. She was advised to come for B.C.G. injection on 31.1.2010. There was no clinical proof/evidence of Hydrocephalus during antenatal checkup and in Ultra Sound report of the Civil Hospital. It was denied that the child was Hydrocephalus at the time of delivery. In the case of Hydrocephalus, size of the Head becomes abnormally big and delivery through vaginal route was not possible and that caesarean section should have been done. In case there would have been any abnormality to the child, the case would have been referred to the Paediatrician but everything was normal, therefore, the patient was discharged on 7.1.2010. This Op did not have any knowledge about the checking of the baby by Chandigarh Hospital and did not have any knowledge about the report given by that hospital. There was no deficiency in services or knowledge in conducting the delivery. Complaint was without merit against her, therefore, it be dismissed.
(3.) OP No. 5 in its written reply had taken the preliminary objections that the complaint against this OP is not maintainable as no element of negligence and carelessness was attributed on the part of this OP. This OP is M.Ch. Neuro Surgery and was working as Assistant Profession and Incharge of the Department of GGS Medical College and Hospital, Faridkot. He regularly attended the Conferences in abroad and India; the complainant was not a consumer as OP No. 5 had not charged anything from the complainant while performing surgery; the complaint was totally misconceived, groundless, frivolous and scurrilous; the complaint was not supported by any medical expert evidence; the complainant had not produced any material that this Op was not competent to conduct the operation or method adopted by him was not acceptable in the medical science, although the condition of the patient was such that such method was not favourable for her. Simply because the death has taken place it cannot be presumed that there was any negligence on the part of this OP. The patient was suffering from Alobar Holoprosencephaly, a diagnosed MRI report produced by parents of the deceased before admission for conducting the surgery. To elaborate the things that it was a birth defect, which took place in first few weeks of intra uterine (foetal life) and was disorder in which the foetal brain does not normally work. Moreover, this OP had taken the consent of father of the deceased and he was clearly told before conducting the operation that even after conducting the operation, nothing sure could be said about the mental state of the child and on 10.5.2010, post operative position was told to the guardian/relatives and the prognosis was very well brought to the knowledge of the relative of the patient and it was repeatedly told to them. So much so before admission and taking up the deceased for surgery, the attendants of the deceased had consulted with Mangla Hospital, Rampura Phool where also the attending Doctor had diagnosed the disease of the patient as Hydrocephalus, therefore, there was no negligence on the part of this OP. In the factual matrix, it was stated that the patient was so admitted on 12.4.2011 through OPD, the admission and surgery was advised and Baljinder Singh father of the child gave a written consent for his daughter's operation under Anesthesia on 19.4.2010 and complete preoperative meticulous investigation was done and patient was taken for surgery on 19.4.2010, which was conducted on the same day. It was successful under which the extra fluid in the brain (hydrocephalus) was drained into the abdomen of the patient using a VP shunt, which was from the house of Surgiwear an ISO certified company. Surgery was conducted and shunt was placed as per established medical protocol. Post operatively the patient was nursed in critical care unit (ICU) of the Hospital, which is fully equipped with ultra modem gadgets. The patient while indoor had started improving and accepted the oral intake but later on the patient had developed abdominal distension for which she was managed initially conservatively along with the help of Paediatrics Department of the Hospital. Even needful blood transfusion was also given. The complications including shunt migration, infection and it is an established fact that complications can occur at any time despite giving best medical treatment. During post -operative care, the child's condition was regularly monitored' with blood investigations and Sonography and X -rays. The patient was taken for second surgery, shunt revision of the abdominal end. After taking appropriate consent and explaining of the condition to the attendants of the patient, second surgery was also successful and the patient was again put to post -operative care (ICU). However, in the post operative phase, the patient had developed chest related problems for which required consultation and treatment, help was sought from the Department of Paediatricts and best treatment was given on the advice of Paediatrics Department, therefore, respondent No. 5 was medically competent to deal with such type of cases and the patient was treated as per the established medical practices. On merits, the allegations as alleged in the complaint were denied. This respondent had performed the surgery, which was done according to the established medical practice. There was no negligence on the part of this OP. Complaint against him is without merit and it be dismissed.;

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