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Judgment
Dr. S.M. Kantikar,Presiding Member
Heard the learned Counsel for the Petitioner.
The Petitioner was OP-3 before the District Forum. She was working as a Gynaecologist in the CHC Hospital, Dhanula.
The learned counsel submitted that the patient was pregnant, came to the hospital during intervening night of 12.08.2011 and 13.08.2011 with the history of abdominal pain. The staff nurse (OP-4) examined the patient and suspected gastritis. Her labour pain further increased and meconium stained discharge noted. As there was no facility for C-Section, the OP-3 referred the patient to the Civil Hospital, Barnala to Dr. Jasbir Singh Aulakh. The patient delivered a baby with meconium which subsequently died. Therefore, being aggrieved by the negligence of the OP-3 and the OP-4, the Complainant filed a complaint before the District Forum, Barnala, against the State of Punjab, the CMO, Barnala, Dr. Kirandeep Kaur, staff nurse and Dr. Jasbir Singh Aulakh.
The District Forum held the partly allowed the Complaint against the State of Punjab (OP-1) and Dr. Kirandeep Kaur (OP-3) and directed to pay jointly and severally the compensation of Rs.2,00,000/- to the Complainant.
Being aggrieved, Dr. Kirandeep Kaur (OP-3) filed FA 259 of 2014 and the State of Punjab (OP-1) filed FA 233 of 2014 before the State Commission. Both the appeals were dismissed and the Order of District Forum was upheld.
Being aggrieved, the OP-3 / Petitioner filed the instant Revision Petition.
Heard the learned counsel for both the side. The Complainant filed her Written Arguments.
I have carefully perused the medical record of CHC Hospital, Dhanaula and Civil Hospital Barnala. Admittedly, it was full term pregnancy and the patient approached the OP-3 in the midnight of 12-13.08.2011 with acute abdominal pain. On the instructions of the OP-3 the staff nurse prescribed antacids, some lab tests were done outside and patient was kept under observation. The patient showed meconium stained discharge, therefore, emergency caesarian delivery was needed. However, due to the strike of NRHM staff nurses at CHC, Dhanaula, the C-Section was not performed. Therefore, OP-3 referred the patient to Dr. Jasbir Singh Aulakh at Civil Hospital, Barnala in the early morning by ambulance. The C-Section was performed on 13.08.2011 at 10 a.m. As the newborn was engulfed with meconium stain, it died after few hours.
In my view, due to the strike of nurses, the OP-3 was unable to perform C-section and took prompt decision to shift the patient at Civil Hospital, Barnala. It was done in the best interest of the patient which does not constitute medical negligence. It was neither deficiency nor failure of duty of care from the OP-3.
It is pertinent to note that the CHC Hospital is a government hospital providing free services and OP-3 was working as Govt. servant. Therefore, it was a “Contract of Service” which the OP-3 was rendering in CHC. Thus, the patient was not a consumer as defined under section 2(1)(d) of the Act,1986. This view dovetails from the recent decision of Hon’ble Supreme Court in Nivedita Singh Vs. Dr. Asha Bharti & Ors [Civil Appeal No. 103 of 2021 – DOJ 7/12/2021]. Therefore, the Consumer Complaint filed before the District Forum is not maintainable.
At the end of argument, the learned counsel for the Petitioner submitted on instructions from the Sr. Gynaecologist & Obstetrician (Petitioner-OP-3) that even though no negligence was attributable her; she volunteered to pay total Rs.2,00,000/- to the Complainant, on humanitarian ground for the death of new born.
I appreciate the humanitarian gesture of Petitioner and allow to pay total Rs.2,00,000/- to the Complainant, after deducting the amount, if any, has already been paid or deposited. This direction in any case shall not be construed as a precedent.
Based on the discussion above, no medical negligence is attributed to the OP-3. The Revision Petition is allowed and the Orders of both the fora below are hereby set-aside. Consequently, the Complaint No.11/2012 filed before the District Forum, Barnala is dismissed.