Dr. Ashwini M.S vs Malini A.N.

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Sudhanshu Prakash, Advocate, for the petitioner. No body appeared, for the respondent.

Above revision petition has been filed against the order of State Consumer Disputes Redressal Commission, Karnataka, dated 21.04.2014, passed in First Appeal No. 1831 of 2013 (arising from the order of District Consumer Disputes Redressal Forum, Shimoga, dated 23.11.2013 passed in CC No.384 of 2012), whereby District Forum has partly allowed the complaint with cost of Rs.3000/- and directed the petitioner (opposite party-1) to pay Rs.50000/- as the compensation and State Commission has dismissed the appeal.

The petitioner has filed IA/3746/2014 for placing additional evidence on record. No objection has been filed. Additional documents are taken on record.

Malini A.N. (the respondent) filed Consumer Complaint No. 384 of 2012, claiming compensation of Rs.10/- lacs, for alleged medical negligence committed by the petitioner at the time of her caesarean delivery on 02.04.2012, in Mc.Gann Hospital Shimoga,  fracture was caused in right arm of new born baby. It has been stated in the complaint that the complainant experienced labour pain and went to Mc.Gann Hospital Shimoga on 02.04.2012 at 10:30 hours for delivery of the child. The complainant was firstly registered as outdoor patient and referred to Dr. Shobha U.N. (opposite party-2), who examined her. Thereafter, a nursing student present there also examined her. By that time labour pain was started as such the complainant requested to give a room. She was informed that room was not available and she was asked to walk in corridor, where a bed was arranged. The nurse on duty asked the complainant to meet Dr. Ashwini M.S. (opposite party-1). The complainant met Dr. Ashwini M.S., who after examining her medical papers, asked her to obtain a scan report. Dr. Shobha U.N. gave a slip for obtaining scanning report from Malnad Diagnostic Centre, which was outside the hospital. In spite of severe pain, the complainant obtained scanning report and gave to the nurse. Who gave it to Dr. Ashwini M.S., who after examining it, advised to caesarean delivery immediately. The complainant signed the consent form for caesarean delivery. But Anaesthetist was not available at that time as such, the complainant was taken to labour ward and attempt was made for normal delivery, which failed. At about 4:10 PM, signature on the consent form for caesarean delivery was obtained from the parent of the complainant and thereafter, surgery for delivery was performed. After delivery of the child, the family members were informed that mother and child both were healthy. After some time, they were shifted to the ward. In the morning of 03.04.2012, swelling was noticed in the right arm of the complainant’s child. When the doctors came to round in morning, he was informed in this respect, who advised for X-ray. On X-ray, it was found that bone of right hand was broken. Thereafter, treatment of the child was started. The complainant along with baby remained in the hospital till 09.04.2012. On the allegations that Dr. Ashwini M.S. had committed negligence at the time of her surgery due to which, right arm of the new born baby was fractured, the complaint was filed for compensation.

The petitioner filed her written version in the complaint and contested the case. The petitioner stated by that the complaint was not maintainable as the service has been provided to the complainant by the government hospital, free of charge. The facts that the complainant came to Mc.Gann Hospital Shimoga on 02.04.2012 at 10:30 hours for delivery of the child, her registration as outdoor patient, examination by Dr. Shobha U.N. have not been denied. She examined the medical papers including the scanning report of the complainant on 02.04.2012 at 1:30 pm. After examination, she was advised to caesarean delivery as the baby was healthy and normal delivery did not appear probable. The relatives of the complainant delayed, signing the consent form for caesarean delivery. At about 4:10 PM, signature on the consent form for caesarean delivery was obtained from the relatives of the complainant and thereafter, surgery for delivery was performed. The baby did not sustain any injury at the time of caesarean delivery. After delivery, the mother and baby were found in good condition. However, the complainant was advised to show the baby to paediatrician and she made a noting in this respect in the case sheet. Opposite party-1 visited the ward in night round on 02.04.2012 and found that mother and baby were in good sleep. Final Investigation Report of the Hospital was not based upon actual examination of papers and statement of the concerned persons. On the application of opposite party-1, the report has been reviewed on 19.07.2012 and no negligence at the time of caesarean delivery was found.

Before the District Consumer Forum, the complainant filed her Affidavit of Evidence and adduced documentary evidence.  The Opposite party filed Affidavits of Evidence of Dr. Ashwini M.S., Dr. Shobha U.N. and Dr. Lepakshi B.G. and documentary evidence. District Consumer Forum, by its judgment dated 23.11.2013, held that the complaint was maintainable in view of judgment of Supreme Court in Indian Medical Association Vs. V.P. Shantha, AIR 1996 SC 550. In the Inquiry Report dated 07.07.2012, conducted by the Hospital, negligence of opposite party-1 at the time of caesarean delivery was found proved. Review Report dated 19.07.2012 was not reliable inasmuch as without any other material, the previous report had been reviewed. On these findings, the complaint was partly allowed and opposite party-1 was directed to pay Rs.50000/- as the compensation and Rs.3000/- as the cost. The petitioner filed Appeal No.1831 of 2014, from the aforesaid order. State Commission, vide judgment dated 21.04.2014, dismissed the appeal, holding that from evidence on record, negligence on the part of opposite party-1 was proved. Hence this revision has been filed by opposite party-1.

I have considered the arguments of the counsel for the petitioner and examined the record. In Final Investigation Report of the Hospital dated 07.07.2012, statements of the doctors and the nurses attending the patient from the time of her coming to hospital till her caesarean delivery were recorded. On the basis of these evidences, it has been found that at the time of surgery, head of the child was dropped at the bottom of uterus, which was a difficult delivery and there was possibility of the bone of child’s hand could be fractured at the time of its bringing out. If these situations are co-related with the statement of the complainant that Dr. Ashwini M.S., examined her at 1:30 pm and advised for caesarean delivery immediately; she signed the consent form for caesarean delivery; but Anaesthetist was not available at that time as such, she was taken to labour ward and attempt was made for normal delivery, which failed, are fully corroborated and proved. At about 4:10 PM, signature on the consent form for caesarean delivery was again obtained from her parent and thereafter, surgery for delivery was performed. Due to attempt for force delivery, head of the child might have fastened at the bottom of the uterus. The petitioner was required to handle the case more carefully as she had attended the patient at all the relevant time and every fact was in her knowledge but she committed negligence and due to her negligence, the fracture was caused in right hand of the child. The complainant might be under delusion of anaesthesia on 02.04.2012. If on that day, she could not notice the fracture in the hand of the child, then it was normal for her. The review report does not record any reason for reviewing the previous report. In such circumstances, Foras below have not committed any illegality in holding that the petitioner has guilty of committing negligence. Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Company Ltd. (2011) 11 SCC 269 and Loudres Society Snehanjali Girls Hostel Vs. H & R Johson (India) Ltd. (2016) 8 SCC 286, held that National Commission has no jurisdiction to set aside concurrent findings of facts recorded by two foras below, in exercise of revisional jurisdiction. The counsel for the petitioner relied upon the judgments of Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, Martin F D’Souza Vs. Mohd. Ishaq, (2009) 3 SCC 1, C.P. Sreekumar (Dr.) Vs. S. Ramanujam, (2009) 7 SCC 130 and S.K. Jhunjhunwala Vs. Dhanwanti Kaur, (2019) 2 SCC 282, which have no application in the fact of this case as in this case negligence of the petitioner was proved from the Investigation Report of the hospital itself.

O R D E R

In view of the aforesaid discussion, the revision petition has no merit and is dismissed.