LALLURAM MEENA vs S.MATHUR

THIS order disposes of a complaint which has been filed by one Sh. Lallu Ram Meena husband of Smt. Kaushalya against Dr. S. Mathur and another to claim an amount of Rs. 19,31,500/- as compensation for negligence and causing irreparable mental handicap to a child delivered by Smt. Kaushalya on 17.1.1994.

FACTS as stated by the complainant are that he admitted his wife Smt. Kaushalya in the hospital of opposite party No. 2 on 17.1.1994 having labour pains. Smt. Kaushalya gave birth to a male child on 17.1.1994 at 10.40 p.m. the child weighed 3 kg. and both the mother and the child were under treatment in the hospital of opposite party No. 2 where opposite party No. 1 Dr. S. Mathur attended and treated her till they were discharged from the hospital on 21.1.1994. The complainant alleged that though the child suffered with jaundice right from the time of its birth, the mother and the child were discharged on 21.1.1994 by the opposite parties assuming them that both of them are fit to be discharged. It is further the case of the complainant that immediately reaching the home after two or three hours after the condition of the child became serious. They brought the child to the opposite party''s hospital the same day but they refused to render any treatment on the plea that unless Rs. 500/- are paid as their fees they will not examine the child. The child thereafter was admitted in J.K. Lon Hospital on 21.1.1994 where he was kept under treatment for almost 11 days i.e. from 22.1.1994 to 1.2.1994 during which a number of clinical tests were got done. After discharge from J.K. Lon Hospital the child remained under the treatment of one Dr. Ashok Gupta and medicines were administered to the child as is evident from Annexures 11 to 20. The complainant alleging that the illness of jaundice to the child reached the limit of 18% mg. and had this illness could have been checked right from the time of the birth, the child would not have become serious. The complainant did not sit idle and got the child examined through a Psychiatrist Dr. Shiv Gautam who told him that the mental handicap of the child has increased because of jaundice and that there are no chances of his recovery; though the child was treated and given medicines as is evident from Annexures 21, 22 and 23. The grievance of the complainant is that he got a mental shock when one Dr. Sanjay Pamecha, Medical Officer Incharge of the Primary Health Centre, Chandwaji (Jaipur) gave a report (Annx. 24) on 9.12.1996 that it is a mental handicap of the child which is incurable. That neither the child speaks nor is able to manage his neck nor he is able to walk and that the life of the child has been spoiled. The complainant accordingly approached the opposite parties complaining about the consequences of their negligence but he and his wife were thrown out which gave him a cause of action to approach this Commission to advance a claim against the opposite parties amounting to Rs. 19,31,500/- as detailed in para 20 of the complaint.

The opposite parties were summoned who have contested the complaint by filing a written reply. The stand of the opposite parties has been that though the complainant''s wife Smt. Kaushalya was admitted in opposite parties'' Sharad Hospital, Jaipur and a child was born to her yet the patient was discharged on 20.1.1994 and not on 21.1.1994 as asserted to by the complainant. It has been urged that the complainant has fabricated the documents relating to the admission and discharge of the patient and as such the complaint should be dismissed only on this ground. It has also been urged that neither the complainant nor his wife brought the child to their hospital on 21 or 22 of Jan., 1994 nor that demanded Rs. 500/- for consultation as averred to by the complainant. It has also been stated that as according to the complainant himself the child was admitted in J.K. Lon Hospital, Jaipur on 22.1.1994 at 1.40 p.m. i.e., almost after 48 hours of discharge from their hospital on 20.1.1994; no treatment seem to have been taken by them for patient, and it is possible that the child must have been under the treatment of some spiritual doctor. It has also been averred that as per medical science "at the time or soon after birth most of the children have physiological jaundice which does not require any form of intervention. With the passage of time, generally 7 days it subsides. Anything serious like convulsions has to be immediately reported to the medical doctor for proper treatment..." It has also been the stand of the opposite parties that when the mother and the child were discharged from opposite party''s hospital on 20.1.1994 they were hale and hearty but it appears that the alleged illness of jaundice developed only after discharge from their hospital which may be for various reasons as also negligence on the part of the complainant or his wife. The opposite parties in support of their version have also reproduced a portion of a text from the text book entitled "Essentials of Paediatrics by O.P. Ghai" pertaining to the management of physiological jaundice to the newly born. It has, therefore, been urged that since the complainant has fabricated the discharge ticket issued by the opposite parties hospital; to exhibit that the child was discharged on 21.1.1994 and not on 20.1.1994 as is evident from the written application signed by the complainant himself mentioning that the child was discharged on 20.1.1994 (Annx. R/2); the complaint deserves dismissal with costs.

WE heard the learned Counsel for the complainant Mr. S.K. Taylor as also Mr. Ashok Mehta for the opposite parties at great length and have examined the record carefully. It is necessary to mention in the beginning that not only the complainant and his witnesses have filed their affidavits in support of the complainant''s contentions but they have been cross-examined as prayed for by the opposite parties and allowed by the Commission vide its order dated 12.11.1999. The opposite parties in turn have also filed their affidavits as also the copy of the indoor ticket of the Sharad Hospital (Annx. R1) and the application presented in the opposite parties'' hospital on 20.10.1996 to obtain a duplicate copy of the discharge ticket etc. (Annx. R2). On the basis of the pleadings and the documents tendered by the parties two issues are made out : (1) Whether Smt. Kaushalya wife of the complainant and the newly born child were discharged from the opposite parties'' hospital on 21.1.1994 or 20.1.1994 ? (2) Whether there has been any negligence whatsoever on the part of the treating doctor opposite party No. 1 Dr. S. Mathur and for that matter of Sharad Hospital opposite party No. 2 resulting in the alleged mental handicap of the child in question ?

THERE is no dispute that Smt. Kaushalya was admitted in opposite parties'' hospital on 17.1.1994 and that she delivered a male child on the same night at about 10.40 p.m. The allegation of the complainant is that the mother and the child were discharged from the hospital by the opposite parties on 21.1.1994. To support it the learned Counsel for the complainant has relied upon the affidavits of himself, his wife Smt. Kaushalya and also of one Smt. Barji Devi and Smt. Keshar Devi and of one Bajrang Lal Sharma s/o Ram Swaroop sworn on 8.12.1997. On the basis of these affidavits it has been urged that the over-writing on the date 20.1.1994 in the Discharge Certificate at three places marked A, B and C by the Commissioner who recorded the cross-examination of complainant''s witnesses; has been done by the doctor of the opposite parties, who issued the Discharge Certificate and that the complainant''s wife and the child were in fact discharged from the opposite parties'' hospital Sharad Hospital on 21.1.1994 and not on 20.1.1994. A careful examination of the markings A, B and C on the Discharge Ticket which has been produced by the complainant in support of his allegations indicate that numeral ''1'' has been over-written on the numeral ''0'' at places marked A and C under the signature of S. Mathur and at place B an effort has been made to block the zero of ''20'' by drawing a straight short line below the blocked ''zero''. The version of the complainant that his wife and the child were discharged on 21.1.1994 is not borne out on the record. THERE is marked discrepancy in the statement which has been given on oath on an affidavit by the person Sh. Bajrang Lal Sharma who states that the complainant handed over him a blank paper after putting his signature on 20.10.1996; to obtain a duplicate of the Discharge Ticket of his son Surya Prakash (newly born child) to be submitted in the opposite parties'' Sharad Hospital and that he himself went to Sharad Hospital on 20.10.1996 and delivered the aforesaid paper (application) which was got written by Bajrang Lal and signed by himself. On the contrary the complainant Lallu Ram Meena asserts in his cross-examination (recorded by Mr. M.L. Vyas, Advocate on 27.11.1999) that he himself brought the duplicate Discharge Ticket i.e., filed by him with the complaint. Besides these contradictions; from the perusal of the photo-copy of the application filed by the opposite parties as at Annx. R-2 and the photo-copy of the indoor ticket filed at Annx. R-1 of the opposite parties'' Sharad Hospital; it is clearly made out that the complainant''s wife and the child were discharged on 20.1.1994 and not on 21.1.1994. The contents of the application presented by the complainant to obtain the duplicate Discharge Certificate repeatedly mentions that the complainant''s wife who gave birth on 17.1.1994 to a male child remained in the Nursing Home of the opposite parties from 17.1.1994 to 20.1.1994 and that he may be issued a duplicate copy of the Discharge Ticket about the birth of the child on 17.1.1994 and that they remained in the opposite parties'' hospital from 17.1.1994 to 20.1.1994. We, therefore, are of the firm opinion that the complainant and his witnesses are stating a wrong date in order to support a false and frivolous claim of the complainant. The evidence, therefore, produced by the complainant in support of issue No. 1 is disbelieved and rejected and it is held that the complainant''s wife Smt. Kaushalya was admitted in the Sharad Hospital on 17.1.1994, delivered a male child on the same date at 10.40 p.m. and was discharged on 20.1.1994 and not on 21.1.1994. The first issue accordingly is decided against the complainant and in favour of the opposite parties. The next question relates to the aspect of negligence in the treatment by the opposite party Nos. 1 and 2 of the child born to Smt. Kaushalya on 17.1.1994. The complainant has not produced any cogent evidence about any negligence with regard to the treatment of the child who is alleged to have been suffering from jaundice since the time of the birth of the child except oral version of the complainant and his witnesses there is nothing on record which can establish that the child was suffering from jaundice when he was discharged on 20.1.1994. Even if for argument sake it is believed (to which we do not acceed) according to the complainant himself the child was taken to J.K. Lon Hospital on 22.1.1994 in the afternoon and before being taken to J.K. Lon Hospital he was taken to Santokba Durlabhji Memorial Hospital (SDMH) on 22.1.1994 itself from where he was discharged at 12 p.m. since the relation (uncle) of the complainant has desired to take the child at home on their own risk. This is evident from the record of the SDMH which has been filed by the complainant along with his application dated 20.1.1998. From a perusal of the bed head ticket it is made out that the child weighed 2.6 kg. at the time of examination in S.D.M. Hospital and has been indicated six days old child. The diagnosis has also been indicated as "GC n/s sitenus +++ signs of Kernicterus +". This bed head ticket also indicates that the child accepted breast feeds on 2nd, 3rd and 4th day. This record maintained by the SDM Hospital on 22.1.1994 coupled with the observations made in the Discharge Ticket prepared in Sirpadmawat Mother and Child Institute, S.M.S. Medical College, Jaipur (J.K. Lon Hospital) indicates under the column of complaints and history; convulsion one day, GTC C URE fever one day undocumented. This Discharge Ticket filed by the complainant at Annx. 2 indicates the date of admission as 22.1.1994 and if the entries made under the heading ''complaints and history'' are read together it is made out that the complainant''s wife and child were at their home on 21.1.1994. Else the complainant may not have narrated in his complaint and the affidavit that immediately two or three hours after his discharge from the opposite parties hospital on 21.1.1994 the child''s condition became serious. Moreover according to the record of the SDM Hospital the child appears to have been taken first to the SDM Hospital in the morning itself and immediately thereafter the child''s treatment started but the complainant''s relatives thought it proper to take the child at home at their risk on 22.1.1994 itself around 12 p.m. and thereafter they took the child to J.K. Lon Hospital around 2 p.m. It is thus evident that if any deterioration in the condition of the child started, it started either late night on 20.1.1994 when they were discharged from the opposite parties'' hospital or in the morning of 21.1.1994 but neither the complainant nor his wife took appropriate precautions nor consulted any qualified physician. It is in this background that the opposite party No. 1 Dr. S. Mathur who has been the treating doctor of the complainant''s wife has stated in her reply that on the date and time of admission of the child in J.K. Lon Hospital, Jaipur on 22.1.1994 at 1.40 p.m. the child was having convulsions (written as GTC) meaning generalized Tonic clonic convulsions since one day. According to her "occurrence of convulsions cannot be attributed to rise of bilirubin alone. It can occur because of various other reasons also. Serum bilirubin of unconjugated type is generally found increased in the newborns and this is called "Physiological jaundice of the newborn". In the text book - Essentials of Paediatrics by O.P. Ghai, in the description of management of physiological jaundice of the newborn, it is written that "Management is essentially symptomatic. No specific therapy of physiological jaundice is required. The infant should be watched for any complicating illness or sudden rise of bilirubin levels". This goes to show that physiological jaundice of newly born child normally requires no treatment. That in the same text book of O.P. Ghai, it has also been mentioned that "The main objective of the treatment is to prevent elevation of serum bilirubin to toxic levels to avoid development of Kernicterus. The first indication of complication came to be known when the child had convulsions for the first time i.e. 2-3 hours after discharge as has been alleged. If the child would have received expert medical care at the very spur of the moment, the elevation of bilirubin to toxic levels sufficient to produce Kernicterus could have been avoided..." Thus, to us it appears that the complainant and his wife are themselves responsible for the state of mental handicap of the child, since they themselves have been negligent and inattentive about the seriousness of the child''s illness.

THIS is not all. It appears that to file a complaint against the opposite parties is an after-thought. The reason is : firstly the complainant obtained a note alleged to have been prepared by one Dr. Sanjay Pamecha, Medical Officer Incharge of Primary Health Centre, Chandwaji (Jaipur) who has opined that the real cause for the state of mental health of the child has been that the child was not treated properly at the earliest state by the treating doctor, otherwise it could have been prevented. THIS doctor appears to have issued this note on 10.12.1996 and that too on the basis of some record made available by the complainant. The concerned doctor does not appear to be an expert on any specialised branch of medicine. He has not indicated his medical qualifications as well under his signature. He does not appear to have examined the child even in person. THIS is a very irresponsible conduct on the part of a Medical Officer of the Govt. Hospital and no evidentiary value can be attached to it. Besides this anomaly the child appears to have remained under the treatment of one Dr. Ashok Gupta right from the date of his admission in J.K. Lon Hospital i.e. 22.1.1994 as is evident from the various prescriptions filed by the complainant alongwith his complaint. Even Dr. Shiv Gautam, Prof. of Psychiatry appears to have examined the child on 3.11.1995; when the child remained under his treatment till June, 1998. Be that as it may from the analysis of the records made available by both the parties it is apparent that at no point of time there has been any negligence or deriliction in the duties and obligations of clinical doctor on the part of the opposite party No. 1 Dr. S. Mathur who has given treatment to the child as per her best skills and that the mother and the child in question were discharged from the opposite parties'' hospital on 20.1.1994 itself and not on 21.1.1994. After discharge from the opposite parties'' hospital on 20.1.1994 the opposite parties cannot be held responsible for any alleged deterioration in the health of the child of his mental capabilities. Accordingly issue No. 2 framed above is also answered in the negative and in favour of the opposite parties.

ONE more aspect which appears to have skipped the notice of the opposite parties is that the complaint has been filed by the complainant before this Commission on 19.12.1996 whereas the child in question and Smt. Kaushalya, the wife of the complainant were discharged from the opposite parties'' hospital on 20.1.1994. In other words if any cause of action arose to bring this complaint against the opposite parties it could have been on 20.1.1994 when they were discharged or when they were admitted and examined in SDM Hospital as also in J.K. Lon Hospital, Jaipur on 22.1.1994 itself. The complaint has decidedly been filed after two years from the date of accrual of cause of action i.e. 20.1.1994/22.1.1994 and, therefore, deserves dismissal on this ground as well. Consequently we are of the firm view that the complainant has not approached this Commission with clean hands. It is not only baseless, frivolous but appears to have been filed with some ulterior motive to cause harm to the reputation of the opposite parties and to project an inflated claim of Rs. 19,31,500/-. It is to check and dissuade a tendency of such persons that Hon''ble the Supreme Court in para 26 of the judgment in Morgan Stanley Mutual Fund v. Kartik Dass & Ors., II (1994) CPJ 7 (SC), observed "there is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the Fora seem readily to oblige. We think such a tendency should be curbed".

This view of Hon''ble the Supreme Court has further been reiterated by Hon''ble the National Commission in the case of Brij Mohan Kher v. N.H. Banka (Dr.) & Anr., III (1994) CPJ 140 (NC), wherein while dismissing a complaint seeking to recover a compensation of Rs. 55,90,000/- from the opposite parties, Hon''ble the National Commission observed that "the motive of the complainant is only to indulge in speculative litigation taking undue advantage of the fact that no Court-fee is payable for institution of a case under the Consumer Protection Act". Hon''ble the National Commission accordingly while awarding a sum of Rs. 10,000/- as costs to each of the opposite parties observed that "such indulgence in speculative litigation and adventurism by the complainant, a tendency which must be put down with heavy hand.

IN the instant case also as the lead given by Hon''ble the Supreme Court and followed by Hon''ble the National Commission also applies with full force. The complaint herein deserves dismissal and is dismissed accordingly. Consequently in the facts and circumstances of the case and as held by Hon''ble the Supreme Court and the National Commission, we consider it appropriate to award a sum of Rs. 5,000/- as costs to each of the opposite parties for having to contest a false and frivolous complaint which appears to us to have been made mainly to tarnish the image and reputation of the opposite parties'' hospital. Complaint dismissed.