Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Subhash Chandra, Presiding Member and Dr. Sadhna Shanker, Member
Soni Bharti and Anr. – Appellants
versus
Dr. Prabha Sinha of Manas and Anr. – Respondents
First Appeal No.1098 of 2018
(Against the Order dated 16/03/2018 in Complaint No. 8/2007 of the State Commission Bihar)
Decided on 10.10.2024

Counsel for the Parties:
For the Appellants:Mr. Rahul Sharma, Mr. Kshitij Goel and Mr. Rishab Sharma, Advocates
For the Respondents:Mr. F. K. Rai and Mr. Gaurav S., Advocates

IMPORTANT POINT
Principle of res ipsa loquitur.

Headnote:
Consumer Protection Act, 1986 – Section 19 – Medical Negligence – Amputation of left leg below knee due to gangrene – Res ipsa loquitur – Compensation – Patient was in the care of respondents ever snce birth since respiratory distress at birth required admission to NICU which was not available in Nursing Home of respondent No.1 – Newborn was admitted to hospital of respondent No.2 – Child was found to have blue colouration of left leg on 6th day after birth – Doppler Test was done as per medical reports on 10th day – Patient was referred to Sir Ganga Ram Hospital – By delaying recording of fact of Perpheral Cyanosis & conduct of Doppler test including consultation with another expert, duty of care was breached by respondent No.2 – This breach caused harm to & led to damage suffered by patient – Case is eminently covered under principle of res ipsa loquitur – Damage/harm (amputaion of left leg) would not have occurred without negligence of respondent No.2 – Respondents 1 and 2 had exclusive control over circumstances that led to damage that was suffered & there was no contributory negligence on part of patient/attendants – Respondents Nos.1 and 2 jointly & severally liable for medical negligence & deficiency in service in treatment of patient (new born child of appellant) – Respondents 1 & 2 are directed to pay appellant sum of Rs.50 lakhs within 8 weeks & litigation cost of Rs.50,000/-. (Paras 17, 18, 25, 26, 28, 29)
Result: First Appeal allowed.

ORDER

Subhash Chandra, Presiding Member.—This Appeal under Section 19 of the Consumer Protection Act, 1986 (for short, the “Act”) assails the order dated 16.03.2018 in Complaint No.08 of 2007 of the Bihar State Consumer Disputes Redressal Commission, Patna (for short, “the State Commission”) whereby the State Commission dismissed the Complaint filed by the Appellant/Complainant with the finding that the Appellant has failed to establish medical negligence as alleged against the Opposite Parties on the ground that no expert opinion was brought on record.

2. We have heard learned Counsel for the parties and perused the records.

3. For the reasons stated in IA No.11368 of 2018 seeking condonation of delay, the delay of 57 days was condoned in the interest of justice.

4. The relevant facts of the case, in brief, are that the Appellant had delivered a baby boy on 11.02.2007 in the Nursing Home of the Respondent No.1. The baby was found to be suffering from chest infection and breathing problems and needed consultation of a child specialist. Respondent No.2 was, therefore, called for advice and, thereafter, the baby was admitted to the Hospital of the Respondent No.2 in a Neonatal ICU (NICU) on ventilator on 11.02.2007. After stabilization, the baby was put on intravenous (IV) feed on the 3rd day. On the 6th day, while breastfeeding the child, the Complainant noticed that the left foot of the baby was blue in colour and brought this to the notice of the Respondent No.2. After much persuasion, Respondent No.2 conducted a Doppler test which was sent to Sir Ganga Ram Hospital, Delhi on the 10th day who advised admission in the said Hospital. Thereafter, the new born baby was shifted to Sir Ganga Ram Hospital where, despite treatment for thrombus in descending aorta and treatment for plasminogen activor, the left foot below the knee had to be amputated as it had become gangrenous. The Appellant filed a Complaint before the State Commission alleging medical negligence on the part of the Respondents No.1 and 2 in failing to provide adequate, proper and timely care to the new born baby and prayed for the following reliefs:

(i) compensation of Rs.50 Lakhs against the Opposite Parties No.1 and 2 on account of physical, mental and monetary suffering on account of the permanent loss of left leg of her child;

(ii) litigation costs of Rs.10,000/-; and

(iii) interest on the compensation @ 10% p.a. from the date of start of treatment.

5. In its order dated 16.03.2018, the State Commission, on contest, held as under:

11. It is well settled preposition of law in case of medical negligence onus to prove medical negligence lies on the complainant must be proved by adducing expert evidence or through medical literature stating the doctor concerned was not qualified or not competent to handle the case as also what he did should not have done which resulted injury to patient. In the present case no medical expert opinion on related issue as to show or suggest that the line of treatment given by OP-2 at material time to baby patient was wrong or used wrong medicine of high power and which caused further increase of infection affected the left leg of baby. Merely on grounds that there was wrong treatment and supply of wrong medicine in heavy dose by treating doctor cannot be a ground for holding negligence in treatment when there is no expert evidence has been led to show what should have been done by the doctor which was not done or that was done by the doctor which should not have been done by doctor.

12. In view of above settled law in case of medical negligence in absence of evidence, the allegations as leveled against the OP No.1 and OP No.2 are not proved and cannot be held negligent in rendering medical services.(Emphasis supplied)

6. This order is impugned before us praying that the Appeal be allowed.

7. The contention of the Appellant is that it was an admitted position, based on the record, that neither at the time of birth of the baby