Balkees Begam v. Dr. Rajakumari, Rasi Clinic

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Pronounced by the President Thiru.R. GANDHI, B.A., B.L., The Complaint is filed under section 12 of the Consumer Protection Act 1986,

This complaint is filed under section 12 of The Consumer Protection act 1986, to direct the opposite party to make payment of Rs. 10,00,000/- to the complainant as compensation for opposite parties deficiency of service.

1. The brief averments of the complaint affidavit as follows:-

The complainant's delivery of her first child was conducted by the opposite party at her Rasi Clinic. The complainant has also taken her pre-natal check-up and since 01.12.2010 treatment at the opposite party' Rasi Clinic, when she was pregrant in second time. The opposite party had assured that every thing was normal. The complainant's second delivery was conducted by the opposite party on 07.09.2011 at her Rasi Clinic.

ii) The complainant was admitted in opposite party's Rasi clinic for her second delivery on 07.09.2011 and a male child was born to the complainant on the same day at about 05.45pm. The said delivery was a normal delivery. At the time of her delivery and after the delivery the complainant was in good conscious and the baby did not cry immediately after his birth. The opposite party, who attended the delivery did not take any effort to make the baby to cry. The baby did not cry even, when it was washed in hot water after 15 minutes of his birth and given to the complainant. Then also the child had not cried, even before the delivery from the initial stage, the complainant taken check up from the opposite party. The opposite party assured that the baby was normal.

iii) After 4 days of his birth, the baby who was named as Mohammed Muzammil was suffering from diarrhea. Since, the complainant was informed that the doctor of the opposite part's hospital had gone to Bangalore, she took the baby to Krishna Clinic, Trichy and consulted with Dr.Satheeskumar. The Baby was not recovered from diarrhea, even after continuous 6 months treatment by Dr. Satheeskumar. Then, the complaint went to the clinic of Dr. Srivatsan,

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and he examined the baby by using the "Feeding Test" and found that, there was no defect. That he could not detect the reason for the diarrhea. But, the diarrhea stopped automatically, after 2 months of the consultation with Dr. Srinivatsan. But, the head of the baby was not standing properly over his neck, even after the normal period (stipulated period). Hence, the complainant took the baby to Vasan Medical Center at Thillai Nagar on 14.03.2012 and consulted with Dr.Ramanathan.

iv) Even after the month treatment given by Dr. Ramanathan, the boy was not recovered from the problem. Hence, Dr. Ramanathan has referred for further treatment of the baby to Dr.A.V.Subramanian, M.D., Neuro at Vasan Medical Centre. After the continuous 6 months treatment given by the Dr. A.V. Subramanian, the head of the baby stood over his neck. After 9 months, the complainant tried to be sit the baby on the floor. But, the baby could not sit normally by bending back. The legs are not in normal condition. fhy;fs; #k;gp Ngha ; kpfTk; eype;J ,Ue;jJ. Thereafter the complainant took the baby for consultation with Dr. Sundarajan, at Thillai Nagar, on 13.08.2012 for the bad position of the baby's legs and back. But he suggested to undergo

"physiotherapy treatment". Even after the physiotherapy treatment given by the physiotherapist, there was no improvement. Hence, the complainant took the baby to Jipmer Hospital, Pondicherry on 28.05.2013.

v) On perusing the said blood test report, the doctor at Jipmer Hospital, Pondicherry confirmed to the complainant that her baby has not cried immediately after his birth and no effort was taken to make it cry immediately after his birth by the doctor who had conducted the delivery in the sole reason for the deformation caused to the hands, legs and back of the baby and therefore the baby could not sit, stand or walk as a normal baby. The baby was affected by

"Spastic Diplegia" due to the carelessness and negligence of the opposite party. This could had been surely avoided, if the opposite party was reasonably and carefully acted and has taken steps to make the baby cry, immediately after his

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birth. The same is mentioned in the "History Examination Treatment" and

"Progress Record" given by the "Jipmer Hospital", Pondicherry. At present the baby has been given treatment by Dr. Muthukumar at ABC Hospital, Trichy. Apart from great mental of agony and suffering so far the complainant his spent Rs.3,50,000/- for the treatment of the baby.

vi) The opposite party is liable to pay compensation for her medical negligence and deficiency in service. The complaint sent a lawyer notice to the opposite party on 11.12.2013 calling upon her to pay a compensation of Rs.10,00,000/- and the notice was received by her. The opposite party has given a reply notice dated 09.10.2011 with false and frivolous allegations.

2) The written version filed by the Opposite party are as follows:-

The complaint is hopelessly barred by limitation and the complaint has to be dismissed in limine.

ii) The complainant has abused the Welfare legislation to a larger extent and maliciously maligned the opposite party for no fault of her and there by denigrated the medical profession. This complaint deserves a flat dismissal with exemplary costs provided under section 26 of the Consumer Protection Act.

iii) This opposite party is a qualified medical professional having passed her MBBS course in the year 1973 in Tirunelveli Government Medical college, and did her Diploma course in Thanjavur Government Medical college in the year 1986 and since then she has been practice obstetrics and gynecology in Trichirappalli under the name and style "Rasi Clinic". She has adequate knowledge skill and experience in the field of her practice.

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iv) From the records, available in her hospital, the complainant delivered a male baby in Rasi Clinic at about 05.45pm on 07.09.2011 and the male baby cried immediately and that was the sign of normal delivery and the same was noted in the case sheet of the complainant. The Baby and mother had no complications whatsoever and were discharged in good condition on 09.09.2011 itself.

v) The allegations that at the time of delivery and after the delivery the child did not cry immediately after his birth are specifically and emphatically denied as false, malicious and motivated. The same and was rejoicing.

vi) That the case sheet produced as doc.no.1 contains all the events that had taken place from 2.00pm /07.09.2011 till the discharge on 09.09.2011. The case sheet is self evident and thereafter the complainant took her child to various doctors for treatment of Diarrhea.

vii) The congenital defects or infections had developed subsequent to the discharge from the hospital of the opposite party are not known to this defendant.

viii) That the allegation in para no.5 of the complaint that the root cause of the sub sequent ailments is "non-crying" of the baby is emphatically denied as false.

ix) It is also denied that Jipmer Hospital Doctor informed that baby was not crying after delivery. No prudent doctor would have expressed such bald opinion after a period of 2 years. This is nothing

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a figment of futile imagination invented for the purpose of filing this vexatious, frivolous and fake claim against this opposite party.

x) The expenses allegedly incurred has no relevance to this opposite party as she had treated the complainant only for 2 days and had not committed any negligence in diagnosis, investigation and treatment.

3) The points to be decided in this complaint are:

1. Is there consumer relationship between the parties?

2. Is there any consumer dispute prevailing between the parties?

3. Is there any deficiency of service on the part of the opposite party?

4. Whether the complainant is entitled for the relief sought for?

5. To what relief?

6. Point no.1:-

The complainant had delivery of two childs in the opposite party clinic. The delivery of complainants first child was conducted by the opposite party herein. Subsequent that the complainant has also taken her pre-natal check- up since 01.12.2010 with the opposite party for her second pregnancy. The Second delivery of the complainant also conducted by the second opposite party and accordingly on 07.09.2011, the complainant delivered a male child.

7) The complainant had availed the medical service of the opposite party and delivered second child on 07.09.2011. There by a consumer relationship is prevailing between the parties. Hence the point no.1 is decided accordingly.

8) Point no 2 :-

The case of the complainant is that at the time of the delivery the baby did not cry immediately after his birth. Therefore the child got several

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complications and the condition of the baby is that the babies legs and back are in the bad position. The baby good not walk and stand without support. The complainant alleges that the condition of the baby is due to the negligent act of the opposite party only, and further alleged as the act of the opposite party is amount to deficiency of service.

9) But, on the other hand the opposite party states that the allegations made by the complainant as against the opposite party is belated one, and it is barred by limitation. It is further stated immediately after birth the child cried well. It is recorded in the medical record of complainant's delivery and it is also alleged that the delivery of the child was normal delivery. That term normal delivery includes the crying of the child and therefore there is no deficiency or negligence on the part of the opposite party. The averments of parties shows that there is dispute arising between the party is in respect of service rendered by opposite party. Hence, it amounts to consumer dispute. The point no. 2 is decided accordingly.

10)Point no.3:-

The complainant got delivery of male child on 07.09.2011 at 5.45 p.m. The type of delivery was normal delivery and episiotomy. The baby was alive it got weight of 3.400 kilograms. The post-mortem period was and even full and the baby and the mother got discharged on 09.09.2011 in a good condition with advice to come for review after 15 days. It is evident from the Exhibit A1. That the complainant states that after 4 days of his births the baby was suffering from diarrhea. Further stating that immediately she took the baby to the opposite party hospital for treatment. But, since the complainant was informed as the doctor of the opposite parties hospital had gone to Bangalore she took the baby to Krishna Clinic.

11) The complainant was discharged with the advise to come for review after 15 days by the opposite party. But, it is alleged that on very next 4^thday the child was suffering from diarrhea. But at the time the opposite party

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doctor was not available in the clinic. But, the above allegation is not evidenced from any kind of document it is just an averments made by the complainant. The baby was taken to Krishna clinic on 13.12.2011 only. That is nearly after a period of 3 months. The complainant alleges that she had consulted with doctor Sathish Kumar at Krishna clinic for a period of 6 months. But the baby was not recovered from diarrhea.

12) Then the complainant went to the clinic of Dr.Srivatsan. But, the date of consulting with said doctor is not disclose by the complainant. The complainant further alleges that even the doctor could not diagnose the reason for diarrhea. It is stopped automatically after 2 months.

13) The complainant has stated that the baby was suffering from diarrhea after 4^thday of his birth i.e from 11.09. 13.12.2011. But, she had took the baby to Krishna clinic, Trichy on 13.12.2011 only. If it is true it shows the negligent act of the complainant. Because, the complaint is silent about the steps taken between this period. Further, in para 4^thcontinuation of second part it is stated as the child got treatment for a period of 6 months with the doctor Sathish Kumar. And further treatment for a period of 2 months with doctor Srivatsan. But continuous to says that the child was taken to Vasan Medical Centre at Thillai Nagar on 14.3.2012 for complaint of the head of the baby was not standing properly over this neck. The averment made by the complainant itself has some discrepancies. Whether it is made intentionally or by mistake is not known to us.

14) If the child got treatment at Krishna clinic for a for a period of 6 months and continued a treatment with Srivatsan another 2 months it would have got continues treatment of 8 months from December 2011. But, it is alleged that during the month of March 2012 the child was taken to Vasan Medical Centre at Thillai Nagar. That, according to the complainant they have consulted with one Dr.Ramanathan at the age of 7 months. That, according to the complainant they have got treatment for the child for a

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period of 1 month with the Dr. Ramanathan. The said Dr.Ramanathan had send the complainant to consult with a Neuro Dr.A.V. Subramanian. That, they had a continued treatment for 6 months and after period of 6 months the head of the baby stood over his neck. That the further averment is that at the age of 9 months, the complainant tried to sit the baby on the floor. But the baby could not sit normally and was bending back. The legs of the baby are not in normal condition. Therefore, the complainant took the baby for consultation with one Dr. Sundarajan, on 13.8.2012. As per the advice given by the doctor the child has undergo be physiotherapy treatment. But, even after the physiotherapist treatment the legs could not be recovered to normal position. Hence, the complainant took the baby to Jipmer hospital Pondicherry.

15) The prescription given by the Dr. R. Sundarajan, Thillai Nagar, Trichy of Neuro centre is marked as ExA6. In which the doctor recorded as c:- breast fed on the 3^rd day due to delay in the suction. Artificial fed given. until 6 months. Multiple frequent loose stools noted. Past 2 months weight loss also noted. Even, now head control not contained fully, not able to turn sit stand while standing with support, legs go crossed. "The complainant does not disclose this details in her complaint averments. From, the above observation of the doctors we are able to understand that the artificial feed was given for period of 6 months to the child. It would have created multiple frequent loose tools. And due to that the weight loss also happened.

16) The medical records of Dr. A.V. Subramanian, was marked as Exhibit A4. The doctor in its medical record noted no birth Hypoxia. Born by full time natural delivery". The doctor also noticed that mild cesarean of legs. The medical records of Jipmer hospital was marked as Exhibit A5. The doctors of Jimper Hospital diagnosised the problem of the child as 'motor developmental delay'. Raised the question of 'white matter diseased and Spastic Diplegia'.

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17) The child was attended by the doctors at Jipmer hospital Pondicherry at his age of 1 year 8 months. The doctors have suggested the problem of child may be white matter disease and Spastic Diplegia. Generally the Spastic Diplegia could be affected the child which is born in pre-matured delivery. But in this case there is no pre-mature delivery. Therefore, the doctor at Jipmer had noted as, 'not cried at birth probably the cause. But the doctors had not concluded this is the definite cause for the problem of the child. No medical records are supporting the suggestion made by the doctors. We can understand what made the doctors to suggest like so. The legal notice issued on behalf of the complainant is marked as Exhibit A10. In para 3 of the said legal notice it is stated that the complainant was in conscious during delivery of baby. The baby had not cried immediately after the birth. The baby washed in hot water after 15 minutes of the birth and given to the complainant. Then also the child had not cried. The same allegations are made in the para 4 of the complaint also.

18) The Exhibit A6 is a medical prescription dated 13.08.2012. It is written by the Dr.R.Sundarajan. In which it is written as, "born to non- sanguineous parents. FTND and delivered at hospital some delay 5 minutes in birth cry. No neo natal seizures'. The doctor who is attending the child will not know what happened at the time of delivery. They can written the history of the patient as informed to them only. It is pertinent note that at the time of visiting the Dr.R.Sundarajan, it was informed that there was 5 minutes delay in birth cry. But, in the legal notice as well as in the complaint averment it is stated as child was not cried up to 15 minutes. It is nothing but an after thought and development made by the complainants for the reasons well known to them only. In this way we are able to understand that the suggestion recorded by the doctors at Jipmer also could be based on the information given by the complainant only. It is not the definite conclusion of the doctors of Jipmer. When, there is no definite proof for the allegations

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made by the complainant as against the opposite party we could not see any deficiency of service on the part of the opposite party.

19) In para 5 of the complaint it is alleged that on perusing the blood test report the doctor at Jipmer hospital Pondicherry confirmed to the complainant that her baby has not cried immediately after his birth and no effort was taken to make it cry immediately, after his birth by the doctor who had conducted the delivery is the sole reason for the deformation caused to the hands legs and the back of the baby and therefore the baby could not sit stand or walk as a normal baby.

20) But the ExhibitA5 is not reflecting the allegations made by the complainant as above. The Exhibit B1 is medical record related to the delivery of the child. It is not disputed by the complainant anywhere. During the pleadings or in the proof of affidavit. It is also pertinent to say that the doctor was cross examined by the complainant, during this cross examination also no suggestion was made by disputing the Exhibit B1 medical records. In the Exhibit B1 medical record it is noted as below "at 5:45 p.m. patient delivered alive male child after giving episiotomy, baby cried well. passed meconium placenta expelled c entire membranes. Episiotomy wond closed in layers". By referring this the opposite party categorically stating that it is false to say that the child did not cry at the time of birth. The medical records clearly shows that the child cried well immediately after birth.

"The learned counsel appearing for the complainant relaied upon the following citations:

1, National Consumer Dispute Redressal

Baby Geetha and Others.

-Vs-

Cosmopolitan Hospitals (p) Ltd.,

On 18. May 2006, reported in Indian Kanoon

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2. State Consumer Disputes Redressal Commission, Delhi. Baby Mahima

-Vs-

Maharaja Agersan Hospital,

Dated.07.11.2006.

3. State Consumer Disputes Redressal Commission F.A No. 335/2012 State Consumer Disputes Redressal Commission, Chennai Dated:12.10.2011.

M.S. Raman, Appellant/complainant

-Vs-

G.V. Krishnan, Respondent/opposite party.

 In the citations first referred the fact of the case is that the 1^st appellant baby Geetha (Naveen) is the son of Mrs. Geetha Shibu Thomas and Mr. Shibu Thomas. The appellant no.1 was born at the Cosmopolitan Hospitals (p) Ltd., Thiruvanathapuram. As the appellant no.2 did not develop any labour pain till 10^thDec, on 11^th Dec the doctor induced labour by administering pitocin trip. Inspite of pitosin trip the appellant no.2 did not devlop labour pain. As such on 13^thDec pitosin trip was repeated at 06.30 AM and 08.15AM. At about 12.35 pm on the 13^thDec appellant no.2 delivered the child.  It is the contention of the appellant that after the birth of the child, even though the mother complaint about the incessant crying of the baby, tremors and terks of the baby, baby not sucking etc., to the doctor no attention was paid. On the 3^rdday of delivery i.e on 16^th, and mother and the child were discharged. Noting in the cash sheet as it is normal delivery. However, within 16 hrs after discharge from the hospital i.e., on the 17. Dec 1989, The child had to be

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rushed back to the hospital with high fever, convulsion and breathing difficulties.

 It is needless to say that the fact of the 1^streferred case and the case before us is completely different. In the case of the 1^streferred judgment the mother of the child got delivery after administering pitocin trip several time and after the birth of the child it is alleged that the mother of the child made complaint about several problem of the child to the doctors and the doctors without notice kycit discharged the mother and child by noting as normal delivery. But, it is not the case of the complainant before us: admittedly, the complainant delivered the child normally without any problem. After a period of 2 years only. the complainant alleges that the child was not cried at the time of birth. As already discussed after several month it was informed by the complainant to the doctor as there was 5 minutes delay of cry after birth of the baby. Later on developed it to 15 minutes delay.

 In the case referred above it is contended that the mother of the child made complaint to the doctors about the difficulties faced by the child. But in the case before as it is not so. The complainant never turn back to the opposite party hospital, after delivery of the child. In the case before us though it is alleged that the child was suffering from diaherra on the 4^thday, it is evidenced that the child was taken to treatment for complaint of diaherra after 3 months only. Therefore, the judgement 1^streferred by the complainant is not relevant to the case before us.  In the judgement 2^ndcited the case in brief is that mother of child delivered the child through a caesarean procedure. The child was shown to the parents only on 3^rdday of delivery. Subsequently the

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child was identified as it has hypoglycemia that is loss of sugar. The allegation of the parents in this case is that after the birth of the child, the opposite party did not take proper care of the child with respect to the diet and oxygen to the complainant. Due to the lake of oxygen the complainant suffered from birth anoxia with resulted in the damage to the brain. The allegation in brief in this case is that the doctors failed to take proper care after the birth of the child. But, in the case before us the child was never taken back to the opposite party doctor where the complainant delivered the child. Therefore, the question of taking care of the child after birth does not arise in the case before us. Hence, the findings of the above two judgments has no relevancy to decide the case before us .

 The 3^rdjudgement cited by the learned counsel for complainant has no relevancy to the fact of this case and nature of this case also. Because the dispute decided in the case is regarding the builders agreement.

21) If the child was not cried at the time of birth the parent particularly the complainant would have raised query with the doctors immediately. The complainant never went to the opposite party doctor after delivery. The complaint averments silent about periodical vaccination of child. It has any relevancy for the problem of child is not stated by either parties. In these circumstances we could not find any fault on the opposite party doctor. Therefore the point no. 3 is decided as there is no deficiency of service on the part of the complainant.

22)Point No.4:-

The complainant is claiming compensation amount of Rs.10,00,000/-. It is stated by the complainant as they have spend Rs.3,50,000/- towards the treatment of the baby and were suffering mental agony and claimed the

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damages of Rs.6,50,000/- for the same. Since, in the previous point it is decided as there is no deficiency of service on the part of the opposite party. The complainant is not entitled for the relief as prayed for.

23) Point No. 5:-

The point no. 3 and 4 are decided as against the complainant. Therefore the complainant is not entitled to get any other relief in this complaint. In the result the complaint is dismissed without cost. This order was dictated by the President to the Steno-typist, typed by her, corrected, signed and pronounced by us in open Commission, today on this 12^th day of June, 2023.

Sd/- Sd/- Sd/-

MEMBER II MEMBER I PRESIDENT

1) Complainant side Evidence : Balkees Begam

2) Opposite party side Evidence : Dr. Rajakumari, MBBS., DGO.,

1) List of the Documents filed by the complainant:-

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II) List of the Documents filed by the opposite party:-

III) Any Other Documents:-

-Nil-

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MEMBER II MEMBER I PRESIDENT