ORDER
B.K. Taimni, Member
1. Petitioner was the complainant before the District Forum, where he had filed a complaint alleging deficiency in service on the part of the respondent doctor.
2. Very briefly the facts of the case are that the petitioner/complainant’s wife after getting pregnant was under the care of the respondent doctor. She went to the respondent’s Hospital on 3.3.1997 and was admitted in the Hospital on 4.3.1997 with labour pains. The doctor after seeing the outcome of the Sonography and keeping in view the situation at hand, felt the need for an emergency caesarean operation, which was done by one Dr. Nagarathinam and a child was delivered at 11.30 a.m. on 4.3.1997. She was brought to her room where she developed certain complications allegedly on account of and associated with caesarean operation. It is alleged by the petitioner that sufficient medical aid was not given as the concerned doctor, i.e., Dr. Nagarathinam was not there to attend on the patient. The surgeon was informed of the patient situation and he rushed to the spot, tried to retrieve the situation but could not do resulting in the death of wife of the complainant at 3:20 a.m., the same day. It is in these circumstances, alleging a case of medical negligence, a complaint was filed before the District Forum, who after hearing both the parties allowed the complaint and directed the respondent to pay a sum of Rs. 3,02,000 along with interest @ 18% p.a. from 18.12.1998 till the date of payment. Aggrieved by this order, an appeal was filed before the State Commission, who after extensively going through the material on record as also the medical literature, allowed the appeal and the order passed by the District Forum was set aside. Aggrieved by this order of the State Commission, petitioner/complainant has filed this revision petition before us.
3. We heard the learned Counsel for the petitioner. Respondent remained absent despite notice, hence we go on to pass the orders based on the arguments advanced by the learned Counsel for the petitioner as also material on record. As prayed by the learned Counsel for the petitioner, 5 days’ time was granted to file the written arguments along with any medical literature. That not having been done by the learned Counsel for the petitioner, we go on to pass orders on merits.
4. In the Memo of Revision as also before us two points have been raised – one that the petitioner cannot take a plea that since the treatment of the complainant was given free of charge, hence the case will not fall within the purview of the Consumer Protection Act, 1986, and secondly, the ’cause of death’ attributed to ‘Amniotic Fluid Embolism’ has not been pleaded by the opposite party. Their main allegation is that the doctor who carried out the caesarean operation was not there to take care of the patient when she was brought to the room and where she developed complications leading to her death.
5. As far as the first point is concerned, we are in full agreement with the State Commission that there is no merit in the point taken up by the respondent since they did not charge any fee, hence they are not liable. This argument advanced by the opposite party has no merit for the same reasons as spelled out in the order passed by the State Commission, hence we do not wish to pursue this.
6. Coming to the second point taken up by the petitioner, we find that before filing a complaint, a legal notice was issued on behalf of the complainant, which was replied to by the Counsel for the respondent, in which it is clearly stated that the death was due to uncontrollable “Post-Partem Hemorrhage caused by Amniotic Fluid Embolism”. Under these circumstances, the petitioner cannot take umbrage under the plea that they were unaware about the cause of death or defence to be taken by the respondent. The State Commission has reproduced extracts from four different medical literatures, namely, “The Merck Manual 15th Edition at Page 1784; Robbins Pathologic Basis of Disease, 5th Edition; Dewhurst’s Textbook of Obstetrics and Gynaecology for Postgraduate, 5th Edition and Williams Obstetrics 20th Edition”. Based on these materials, a clear finding is returned by the State Commission, with which we are in full agreement that “Amniotic Fluid Embolism’ is a complex condition characterised by abstract onset of Hypertension, Hypoxia and the like, as also it has Pulmonary Embolic Aspects, causing death from respiratory failure, which may be caused after rupture of membrane. If one sees the Hospital record brought before us by the petitioner/complainant, we see that the patient was brought back to her room at 1:00 p.m., the BP was normal till about 2:00 p.m. it was only at about 2:30 p.m. that the BP starting falling to 100/90. It was around this time, the surgeon who had gone after safe delivery and the deceased safely going back to the room, was resummoned, when for the first time low BP was noticed, the concerned doctor was summoned, who came immediately and did whatever he could do but the patient could not be saved. As per material on record, there is no complication reported from the time of delivery of child and till about 2:00 to 2:30 p.m. when the doctor was summoned. It was only after 2:30 p.m. that the symptoms like bleeding and breathlessness were noticed. Hospital records the same symptoms which are associated with the hemorrhage caused with Amniotic Fluid Embolism’. No specific cause has been made out by the complainant as to what the doctor should have done in situation and which was not done or anything wrong in the line of treatment adopted by the doctor.
7. The only point vehemently argued was that the doctor who had carried out the surgery was not present at that time when the complications arose. In our view, he was a consultant hired from outside to help the respondents to carry out the surgery. It is no one’s case, as per material, that the child was not delivered safely; child was not healthy and at the time when the deceased was brought to her room there was any problem. At least, the hospital record does not show so. It was only after 2:00 p.m. that the complications were noticed, and the doctor was summoned immediately who rushed to be by the side and to attend on the deceased and did whatever he could do. It cannot be said that when delivery is normal, the surgeon should be there with attending the patient all the time.
8. A new case is also attempted to be made before taking a plea that the Hospital record is fabricated. We are in full agreement with the argument for the simple reason that the typed copy has been produced before us by the petitioner/complainant, on which we rely and secondly, no such plea has been taken before us in the memo of revision filed before us. We have seen the handwriting in the margins in which time has been noted. This material was with the District Forum but no such plea was taken at any stage. This is a matter of fact and could/ should have been raised before the District Forum/State Commission or in the memo of revision petition before us, but not done, in the absence of which, we see no merit in this plea.
9. In view of above and the material brought on record as well as medical literature on which the State Commission has relied upon and also on the fact that no specific instance of medical negligence has been shown let alone proved, we see no merit in the revision petition filed before us.
10. There is also no expert evidence to challenge the plea taken by the respondent nor any medical literature produced to counter the view taken by the State Commission award on medical negligence on record by the respondent. The petitioner/complainant, in our view, has failed to prove the factum of medical negligence on the part of the respondents. This revision petition has no merit, hence dismissed.
No order as to costs.