Medicolegal

  
  





Obstetric
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[
-: Cases in Doctor’s Favour :- ] – [
-: Cases in Patient’s Favour :- ]

 

1)   Digvijay
Sinh A.Zala v. Dr. Narendra T. Vani & Ors

     1995(1)CPJ
186 (Guj.SCDRC) 

Trupti,
wife of the complainant was 8 months pregnant and had consulted
Dr. Vani. On 24.5. 1992 Trupti developed fever but Dr. Vani
could not be contacted. Wife of Dr. Vani also a doctor,
suggested Metacin tablets. Next day in the evening Dr. Vani
prescribed Resochin and Digene. On 26.5.92 temperature shot upto
1061 F. Physician was called, who suggested certain tests.
Reports of these tests were given to Dr. Vani over the phone and
more treatment was advised. On 27.5.92 patient became worse and
at 6am Dr. Vani was contacted who advised that she should be
taken to a physician as it was a case not falling under his
specialty. At 2.30 PM taken to physician who advised immediate
admission, but Trupti died before anything could be done to her. No
negligence was held on the following grounds:

  • Dr.
    Vani came to know over the phone that urine contained bile
    salts and bile pigments she advised to contact some physician,
    as it was not a case under his specialty.


  • No
    evidence produced as to establish that the treatment given was
    not proper.


  • There
    was no evidence as to how Trupti died. No post-mortem has been
    made and therefore real cause of her death was not known. 


  • 2)   Kanaiya
    Prasad G. Mishra & Anr.v. Dr. (Mrs.) Tanumati G. Shah

    The
    complainant (1st complainant’s wife) was operated for removal
    of right Adnexa. It was alleged that in fact her left Adnexa was
    bulky and should have been removed with consent. The State
    Commission held that consent had been taken in writing and
    standard procedure was followed according to the circumstances.
    No evidence adduced by the complainant to prove her contentions.
    Complaints dismissed.

    3)   Jitendra
    Nath v. Dr.(Mrs.) Manju Geeta Mishra & Ors

         1995
    (2) CPJ 96 (Bihar SCDRC)   

    The
    complainant’s wife Mrs. Bibha Nath was taken to Dr. Mrs. Manju
    Geeta Mishra’s Nursing Home on 13.8.91 with labour pains.
    Considering her history of two previous abortions, breech
    presentation of present pregnancy, rupture of membrances and EDD
    (expected date of delivery) 11.9.91, after taking consent,
    Caesarean was done within 2 hours of admission. After 10 to 12
    hours of birth the child developed breathing difficulty and was
    referred to a paediatrician – Dr. Kumar’s Nursing Home – where
    the child died after 2 days.

    It
    was alleged that Dr.(Mrs) Mishra had not called any child
    specialist to attend the baby after delivery, despite knowing
    that the delivery of the child was premature by about three
    weeks. Child was underweight (2.3 kg) and after delivery Dr.(Mrs)
    Mishra took up another Caesarean instead of attending to the
    child. Child was wrapped in an unsterilized towel. She failed to
    clean the tongue and the throat of the child and also failed to
    make the child cry, which she should have done due which the
    child had respiratory difficulty and deficiency of oxygen
    resulting in asphyxia. The complainant also filed criminal cases
    against Dr. (Mrs.) Mishra u/s.304, 304-A IPC and against Dr.
    Kumar u/s. 304, 304 A and 504 IPC. The Judicial Magistrate after
    examining the complaint and two more witnesses recorded that no
    prima facie case is made out and there is no sufficient ground
    for proceeding and hence dismissed both the cases. The
    complainant has filed revision before the Hon’ble High Court,
    Patna against this order. State Commission held that as a matter
    of policy and principle where the subject matter of the
    complaint is subjudice before ordinary courts, a concurrent
    adjudication in respect of the same should not be conducted
    under the Act, as held by the National Commission in Special
    Machines v. Punjab National Bank and Santosh Sharma v. State
    Bank of India. For these reasons the complaints were dismissed.
      

    1.
    1991(1) CPJ 78:1991(1) CPR 52(NCDRC)



    2. 1991(2) CPJ 262:1991(1) CPR 103 (NCDRC)



    3. The decision of the State Commission in this case is not in
    line with the National Commission’s decision in Punjab
    National Bank v. K.B. Shetty, 1991(2) CPR 633: 1991 (2) CPJ 639
    (NCDRC) wherein it was held that where the case is subjudice in
    a criminal court it cannot be maintained that the complaint
    could not be entertained by the State Commission on the ground
    that the case was subjudice and under investigation by the
    Metropolitan Magistrate.

    4)   S.B.
    Venkatappa v. Dr. Kasthuri S. Shallikeri & Anr

        
    1995(2) CPR 80 (Karn SCDRC)

    The
    complainant’s wife was examined after admission for delivery,
    by 1st opposite party, who found that a dead baby was in the
    womb. It was alleged that during surgery tubectomy was done
    without consent, and also due to negligence of the surgeon she
    subsequently developed complications and died.   The State
    Commission held that there was clear evidence to the fact that
    the complainant had agreed for Caesarean and tubectomy as well.
    The Commission did not accept the grievance of the complainant
    that the word ‘tubectomy’ had been subsequently added. While
    taking the signature of the complainant on the consent form duty
    staff nurse was present and had been examined. The State
    Commission also held that she was discharged on 12.2.1992, but
    was admitted in another hospital on 23.6.1992 and the cause of
    death reported was “irreversible spetic shock”. There
    was no material evidence to show that deceased, subsequently to
    discharge after operation, suffered any ailment connected with
    operation till she was admitted in other hospital. Hence it was
    very difficult to hold that the death was in any way connected
    with the operation, and dismissed the complaint.

    5)  
    Dr. N.Lalitha Krishna v. Deepa Nair




          I(2000)CPJ340


    Consumer Protection Act, 1986-Section
    15-“Appeal”-Section14(d)-“Compensation”-Complainant
    got MTP  conducted from opposite party-Foetus intact-Second
    MTP conducted-Complaint-District Forum granted  Rs. 8,000/-
    as compensation-Appeal-Not a reasonable way to assess the
    compensation-Opposite  party directed to pay back medical
    charges-Consolidated compensation of Rs. 5000/- granted.



    Held: We find that award of Rs. 500/- per day for 16 days is not
    reasonable way of assessing the compensation for trauma, mental agony and physical pain suffered
    by the complainant. We are of the  view that the
    compensation is for the failure of the abortion conducted by the
    appellant because  of which the complainant who was
    desirous of having MTP effected to undergo the operation for a 
    second time. Under the circumstances the complainant can have
    only one set of charges which she  had to pay extra for
    having abortion affected on her. We are of the view that it
    would suffice if  the appellant is required to pay back the
    medical charges incurred by the complainant for the 
    unsuccessful MTP operation performed by her i.e of Rs.1,200/-
    She need not be required to pay the  further sum of
    Rs.850/- paid by the complainant for having MTP (wanted by her)
    effected  successfully. We are of the view that a
    consolidated compensation of Rs.5000/- would be adequate 
    for the deficiency in service on the part of the appellant and
    the consequent mental agony and  suffering undergone by her
    for having an MTP on her a second time. The complainant shall
    also have  Rs.500/- towards costs of this appeal to be paid
    by the appellant.



    Result: Appeal partly allowed.

    6)  
    Smt. Jaiwati v. Parivar Seva Sanstha & Anr.




          2000(1)CPR 538 S C DRC, New Delhi



    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical
    Negligence – Test to determine – Whether doctor had been proved
    to be guilty of such failure as no doctor of ordinary skill
    would be guilty of, if acting with reasonable care.

     

    Held : Thus, in order to decide whether negligence is
    established in any particular case, the act or omission or
    course of conduct complained of must be judged not by ideal
    standards nor in the abstract, but against the background of the
    circumstances in which the treatment in question was given and
    the true test for establishing negligence on the part of a
    doctor is as to whether he has been proved to be guilty of such
    failure as no doctor of ordinary skill would be guilty of, if
    acting with reasonable care. Merely because a medical procedure
    fails, if cannot be stated that the medical procedure fails, it
    cannot be stated that the medical practitioner is a guilty of
    negligence unless it is proved that the medical practitioner did
    not act with sufficient care and skill and the burden o proving
    the same rests upon the person who asserts it. The duty of a
    medical practitioner arises from the fact that he does something
    to a human being which is likely to cause physical damage unless
    it is done with proper care and skill. There is not question of
    warranty, undertaking or profession of skill. The standard of
    care and skill to satisfy the duty in tort is that of the
    ordinary competent medical practitioner exercising the ordinary
    degree of professional skill. A defendant charged with
    negligence can clear himself if he shows that he acted in
    accordance with general and approved practice. It is not
    required in discharged of his duty of care that he should use
    the highest degrees of skill, since they may never be acquired.
    Even deviation from normal professional practice is not
    necessarily evidence of negligence.

     

    (ii) Consumer Protection Act, 1986 – Sections 12 and 17 -
    Medical negligence – Complainant under went MTP and
    sterilisation  at
    clinic of opposite party on 26-5-1992 – Later on she was found
    pregnant and was reported to have conceived on 1st 
    July, 1992 – Claim for compensation – All methods of
    female sterilisation, including tubal ligation have certain
    failure is inherent in the procedure – Opposite party could not
    be held guilty of negligence mererly because procedure had
    failed .

     

    Result
    : Complaint dismissed

     



    Complaint: Averring that after paying the necessary charges,
    she, on 26.5.1992, had undergone MTP  and Sterilization at
    the Shahdara Clinic of opposite party (hereinafter referred to
    as the opposite party No.

    • The
      operation in question, as per the case of the complainant,
      was performed by OP-2 and after the operation, a
      certificate of sterilisation, was issued to complainant.
      It is further averred that on 15.10.1992, the complainant,
      thereafter went for medical check-up Swami Dayanand
      Hospital, Shahdara on 3.1.1993 and after checking the complainant,
      the concerned doctor, in her report, stated that the
      complainant had conceived on 1st July, 1992 and the
      probable date of delivery was stated as 8th April, 1993. For
      the above alleged negligence on the part of the OPs,
      the complainant, in the present complaint, has claimed a
      sum of Rs.3,00,000/- on account of compensation and medical
      expenses. The complainant has also  prayed that the
      opposite parties be directed to provide treatment to the
      complainant free of charge at at he time of delivery
      and , thereafter, till the complainant becomes normal.

    • Opposite
      Party-1 has contested the claim of the complainant. In the
      written version. fled on behalf of opposite party-1,
      certain preliminary objections have been taken with regard
      to the maintainability of the complaint. It is stated
      in the reply/written version of opposite party-1 that
      the complaint field by the complainant is false, grossly
      misconceived as there has been no negligence on the
      part of the OPs. It is stated in the reply that the present
      case virtually is a case of sterilization failure.

       

      The complainant  and
      also opposite party-1 have filed their respective affidavits
      by way of evidence.

       

    7)   Vijay
    H. Mankar v. Dr.(Mrs.) Mangla Bansod




          I(2000)CPJ37(NC)



    Complainant alleges medical negligence on the part of a lady
    doctor-Alleges paid charges for treatment-Opposite party denied
    that allegations and contended that she did not receive any fee because
    of close relationship-Whether the doctor has rendered services
    free of cost?-(No)-Whether there is a negligence on the
    part of the doctor?-(Yes).



    Held: The preliminary objection of the opposite party is that
    she has not received any payment as consideration from the
    complainant and that ,therefore ,’service’ rendered in the case
    is not covered by Section2(1)(0)of the Consumer Protection
    Act. However, in the order of the Supreme Court, Indian Medical
    Association v. V.P. Shantha & Ors., III(1995)CPJ1(SC), it
    has been inter alia stated that services rendered by a
    non-Government hospital/nursing home where charges are required
    to be paid by persons who are in a position to pay and persons
    who cannot afford to pay are rendered services free of
    charge would fall within the ambit of the expression ‘Service’
    as defined in Section2(1)(o) of the Act. It is true in the
    present case, opposite party’s averment is that fees were
    not charges because the patient could not afford to pay.
    Although in their order, the Supreme Court have not
    distinguished a case of ‘free’ service because the patient could
    not afford to pay. Although in their order, the Supreme Court
    have not distinguished a case of ‘free’ service of the kind
    a in the case of hand, the spirit of their order is that
    expenses incurred for providing service free of charge to
    certain patients are met out of income earned by the
    doctors/hospitals from services rendered to paying patients and
    in this view of the matter the non-paying patients are
    beneficiary of the services which are hired or availed of by he paying
    patients. That apart, the Supreme Court observed that all
    persons who avail of the services of doctors are to be
    treated on the same footing irrespective of the fact that some
    of them pay for the services and other avail the same free
    of charge. Also, the complainant had deposed that opposite
    party had not given receipt for fees paid and that opposite
    party told his mother-in-law on 31.5.1990 that she would
    give consolidated receipt for all payments, after delivery.
    The mother-in-low has filed an affidavit to this effect. In view
    of the aforesaid discussion, this point need not detain us
    from proceeding with the adjudication of the complaint on
    merits.

    8)  
    Abdulla Modiwala and Ors. V. G.D. Birla Memorial Health
    Centre and Ors


      

          State
    Consumer Disputes Redressal Commission Madhya Pradesh : Bhopal

    Consumer
    Protection Act, 1986 – Sections 17, 2(1)(g) and 14(1)(d) -
    Medical negligence – Complainant’s with suffering from bleeding
    – Advised to undergo TCRE operation theatre – Declared dead -
    Complaint – Unless there is expert opinion that there was
    negligence or recklessness – Cannot be said that medical man
    acted negligence – Burden of establishing negligence on
    complainant – In absence of production of expert evidence
    indicating negligence opposite parties cannot be held to be
    negligent in their services in treating patient – Complainant
    failed to substantiate his contention by any kind of expert
    opinion or evidence or medical literature.

     

     Except
    this affidavit of the complainant himself, there is no evidence
    or any body’s affidavit supporting these contentions of the
    complainant as quoted above. No medical literature in support of
    the contents of the affidavit has been furnished. The entire
    statement quoted above is purely technical and can be given only
    by a person expert in medicines, who possesses knowledge of
    medicine and surgery and anaestheasia. The complainant has
    stated in his affidavit that he is given this affidavit on the
    basis of “personal Knowledge”. Since the complainant
    is not a medical man he cannot give this statement on the basis
    of personal knowledge and when he cannot give such statement on
    the basis of personal knowledge such a statement is not
    admissible in evidence. Besides this, the complainant has been
    absent continuously for about ten hearings right from
    11-12-1998. On 13-8-1999 a note-sheet was also recorded that
    “the complainants be sent a notice that they are also given
    an equal opportunity to either send their written arguments
    after receipt of reply in rebuttal, from opposite parties or to
    appear in person or through their Counsel for the final argument
    in view of opposite party’s rebuttal reply, if any filed by
    them”. On 4-9-1999 the learned Counsel for the opposite
    party submitted an application requesting to cross-examine the
    complainant. Notice were issued to the complainant as well as
    his counsel for appearance. But still nobody turned up. Thus the
    opposite party could not get an opportunity of cross-examining
    the complainant.

     

    On
    the other hand, we find that the opposite parties who are well
    qualified doctors have submitted affidavits of their own in
    support of their contentious and also filed – medical literature
    as to why it is not fluid over flow, why pulmonary embolism,
    supported by photocopy of medical literature. Opposite party
    No.3- Dr. Smt. Marwaha has stated that she has done M.D. in
    anaesthesia from Pune. Opposite party No. 2 has stated that he
    has received special training for TCRE in Germany and he has
    done number of courses in Frances and Germany . On behalf of
    opposite party No .1 , Dr. R. Sonar, Medical Director of the
    opposite party No. 1 has furnished his affidavit, stating that
    he was present during the operation. He has stated that since
    the diagnosis was clear, biopsy and sonography were not
    considered as necessary. The photocopy of bed head ticket filed
    contains complete case history of the deceased Smt. Jahida. It
    starts with words ” Consent – no major illness in
    past”. Every 15 minutes, recording of the condition of the
    present was done right from 10:45 a.m. . It is at 12.45 that
    suddenly the pulse became low. Blood pressure became 160 II and
    the patient started struggling and gasping. At 1.00 froth
    started coming out of the mouth and nose. Patient was declared
    dead at 1.20 p.m. The cause of death was Pulmonary Embolism.
    Strepto kinase is a drug which is given to dilute/dissolve the
    clotting to prevent cardiac arrest, if there is a clot in the
    coronary artery. Cardiac arrest was on account of Pulmonary
    Embolism.

     

    It
    has been held in Darshani Devi v Rajashri, that unless there is
    expert opinion that there was negligence or recklessness, it
    cannot be said that the medical man acted negligently. In II
    (1992) CPJ 764 (NC), it has been that the burden of establishing
    negligence is on the complainant.

     

    In case of Sethuramani subramanium Iyer v. Triveni Nursing Home
    and Anr, the Hon’ble National Commission has held that in the
    absence of production of any expert evidence indicating
    negligence, the opposite parties cannot be held to be negligent
    in their services in treating the patient.

     

    In Dr. Laxman Joshi v Dr. Trimbak Bapu, it is held that
    “negligence can be attributed to a surgeon only if his
    mistake are of such a nature as t imply absence of reasonable
    care and skill on his part”.

     

    Since the complainant has failed to substantiate his contentions
    by any kind of expert opinion or evidence or medical literature,
    we dismiss the complaint with no order as to costs.

     

    Complaint
    dismissed.

      

      


    9)   
    S.B.
    Kadkol v. Dr. N. Chandrashekara & Ors.

     

          
    2000
    (1) CPR 131, SCDRC Karnataka

     

    Complainant’s
    daughter was operated for ovarian cyst – At
    the fag end of operation she suffered cardiac
    arrest and she was shifted to another hospital
    where she died after 8 days – Opp. party
    hospital was alleged not adequately required to
    meet emergent situation and doctor who
    administered anesthesia was negligent -
    Standard of care expected of medical man – Law
    expects him to exercise reasonable care expected
    of a skilled medical practitioner – Test dose
    before anesthesia is administered is not
    necessary – Nothing was produced before
    Commission to create a nexus between the dose
    administered and melody suffered – No evidence
    to show that there was any remissness on part of
    opp. party No. 1 anesthetist to revive cardiac
    arrest – Opp. party hospital had the Boyles
    apparatuses and as such non-availability of
    automatic ventilator would not amount to any
    lapse or deficiency – No Intensive Care Unit
    in hospital could not be considered such a lapse
    as to amount deficiency in service -
    Negligence or deficiency in service on part of
    opposite party could not be held established by
    acceptable evidence.

      

      

    10)    Dr.
    C.V. Mathew v. P. Babu

     

            
    I(2000)
    CPJ 134 SCDRC, Kerala

     

    Opposite
    party fell below the standard of a reasonably
    competent practitioner – M.T.P. done without
    prescribed qualification at hospital not
    recognized for doing it – No attempt made to
    ascertain the reason of ailment – Possibility
    of incomplete evacuation not considered -
    Negligence on part of opposite party proved -
    Complainant entitled to get compensation along
    with interest.

      

     

    11)    Syed Zahid Ali v. Dr. Jaiprakash Paliwal

     

            
    I(2000)
    CPJ 129, SCDRC, M.P.

     

    Non-removal
    of Gauge from Inside the Body – Reasonabale
    care not exercised at the time of operation -
    No evidence of second operation removing gauge
    piece given – No document filed in support of
    contention – False complaint filed -
    Complainant liable to pay cost.

     

    We direct that complainant shall pay to the
    opposite party cost of Rs. 2,000/- for filing
    this false and frivolous complaint against the
    opposite party.

     

     

    Compliant
    Dismissed.

     

     

    12)   Dr.
    P.N. Bhaskaran v. Mrs. Molly Robinson




     

           
    I(1999)
    CPJ 81, SCDRC, Kerela.

      

    Pregnancy
    Termination – Product Not Obtained -
    Deficiency in Service – Compensation -
    Second surgery conducted – Product obtained – Forum awarded compensation
    – Appeal – Possibility of missing product when pregnancy
    terminated upto 6 weeks of pregnancy – Patient
    advised to repeat D&C – No negligence or
    deficiency in service on part of opposite
    parties – Complainant not entitled to
    compensation.

     

     

    13)  

    Janki
    S. Kumar v. Mrs. Sarafunnisa

     

           
    I
    (1999) CPJ 66, SCDRC, Kerela

     

    Sterilization
    Done Without Consent – Deficiency in service-
    Compensation – Contention, consent obtained
    during course of surgery, not acceptable -
    Person giving consent must be aware of risk
    involved – Patient under general anesthesia
    neither can understand the risk involved nor
    could give the consent – Complainant entitled
    to compensation.

       

      

    14)  
    SURINDER KUMAR (LADDI) v. DR.SANTOSH MENON


     

            
    III (2000) CPJ 517

     

    Consumer Protection Act, 1986
    – Section 2(1)(g) – Deficiency in
    Service – Medical Negligence – Onus of Proof – Complainant’s wife
    gave birth to child – Caesarean operation by doctor – Wife died -
    Complaint alleging medical negligence – No expert evidence – No
    post-mortem got conducted – Every unsuccessful operation cannot be
    considered as negligent act of doctor – Onus of proof of negligence is
    heavily on complainant – Complainant failed to prove negligence.

     

    Held: There is no evidence
    much less expert evidence produced on behalf of the complainants that the
    treatment given to the patient during this period was below the prescribed
    standard or otherwise not upto the standard skilled. Dr. Santosh Menon
    from time to time called physician from outside to have second opinion in
    the matter of providing treatment to the patient, whose condition was
    deteriorating and accordingly such treatment was given. It will not be out
    of place to mention that doctors only treat whereas it is in the hands of
    the Almighty to cure. Each failure or unsuccessful operation cannot be
    considered as a negligent act of the doctor. Something more is required to
    be established by the complainants to prove negligent act of the doctor.
    The present is not a simple case of medical negligence that this
    Commission could straightway give a finding of apparent negligence holding
    the opposite parties liable. Recently the Supreme Court in Indian Medical
    Association v. V.P.Shantha, 1996(1)CCJ1(SC)=III(1995)CPJ 1(SC), has laid
    down the principles to be kept in view while deciding the cases of medical
    negligence.  (Para 9)

     

    Held further: The
    complainants have failed to prove from any medical expert evidence that
    there was any negligent act on the part of the opposite parties in the
    matter of performing caesarean operation. It will not be out of place to
    mention here that though dead body was available with the complainants
    immediately after the death and they had gone to the Civil Hospital for
    approaching the Civil Surgeon and to the police, but surprisingly no
    post-mortem was got conducted to know the actual cause of death. The very
    fact that a criminal case was got registered, would have put the
    complainants to caution that they should have got post-mortem conducted to
    fasten liability on the doctors. The onus to prove negligent act on the
    part of the doctor is very heavy on the complainant. As held by National
    Commission in Sethuraman Subramaniam Iyer v. triveni Nursing Home and Anr.
    1998CTJ 7, in the absence of such evidence regarding the cause of death
    and absence of any expert medical evidence, the complainants have failed
    to prove negligence on the part of the opposite parties. (Para 10)

     

    Result: Complaint dismissed
    with costs.

     

    Cases referred:

     

    1. 1996(1) CCj 1
    (SC)=III(1995) CPJ 1 (SC).    
    (Para 9)

     

    2. 1998 CTJ7=I(1998) CPJ 10
    (NC)                 (Para
    10)

     

     


     

    Counsel for the Parties:

     

    For the Complainants : Mr.
    Ameet Awasthi, Advocate.

     

    For the Opposite Parties: Mr.
    Rajiv Bhalla, Mr. Rohit Khanna and Mr. Pardeep Bedi, Advocates.

     

    ORDER

     

    Mr. Justice A.L. Bahri,
    President- The present complaint has been filed by Surinder Kumar husband
    and Pinku, son of Paramjit Kaur, who is alleged to have died on account of
    negligent act of the opposite parties, doctors during the performance of
    caesarean section after delivery of a male child. They claimed RS. 15 lacs
    as compensation and costs of RS. 10,000/-.

      

    2.
    Dr. Santosh Menon, opposite party No. 1 is having a clinic at
    Batala. Opposite party No. 2 Dr. Bhaskar Menon is her husband,
    who is running eye clinic on the first floor of the premises
    whereas Dr. Santosh Menon is running her clinic on the ground
    floor. Opposite party No. 3 Dr. S.S. Johal, M.S. Orthopeadics
    assisted in the performance of caesarean operation consulted by
    Dr. Santosh Menon, New India Assurance Company was impleaded as
    a party vide order dated March 26,1998 from whom opposite
    party Nos. 1 and 2 had obtained insurance policies. Surinder
    Kumar, complainant being under mental shock, he appointed his
    brother Tarsem Lal as attorney through whom the complainant was
    filed.

     

    3. On
    October 13, 1996 Paramjit Kaur @ Pinky married Surinder Kumar
    and started living at Batala. She took up a job as STD/PCO
    Operator with Shiv Property Dealer, Batala on a monthly salary
    of Rs. 1200/-. She is a graduate. She becomes pregnant and
    started getting regular check-ups at the clinic of opposite
    party Nos. 1 and 2. Routine check-ups were prescribed from time
    to time and medicines and injections were prescribed. There was
    normal development of foetus. This happened during the month of
    May to June 1997. On July 4, 1997 she developed labour pain and
    was admitted in the clinic by opposite party No. 1, Dr. Santosh
    Menon. After some tests were performed it was informed that it
    would be a case of normal delivery. As per 
    reports Annexure C-2, haemoglobin level on blood test was
    found to 9.6g/ %. On July 5, 1997 at about 7.25 p.m. a male
    child was delivered. A sum of Rs. 2000/- towards fee was charged
    by Dr. Santosh Menon. It was given out by the doctor that the
    delivery was normal and the attendants could go. Hence all the
    family members left the clinic at 9 p.m. Mother and the child
    were shifted to another room where Surinder Kumar was sitting.
    They were directed to arrange for Rs. 18,000/- stating that the
    delivery was not normal and was through caesarean operation for
    which charges were Rs. 20,000/- in all and a discount of Rs.
    2,000/- was being given. The family members were shocked to know
    that there were complications. A sum of Rs. 10,000/- was
    immediately paid. At about 9.15 p.m. Swinder Kaur came rushing
    to the house in great tension and informed that few bottles of
    blood were required. The entire family of 14-15 members and
    persons of the locality reached the clinic. 9 Units of blood was
    made available. At about 11.35 p.m. Dr. Bhaskar Menon informed
    about the death of Paramjit Kaur. Dr. Parminder Singh
    Cardiologist, Dr. Ranjit Singh had been called by the opposite
    parties. When they came out of the clinic they had told that the
    patient had died. The body of Paramjit Kaur was handed to over
    to the complainant. Certificate of Death Annexure C-3 was also
    handed over. When the attendants 
    demanded the case file the same was not handed over by
    opposite party Nos. 1 and 2. Subsequently, the same was given.
    Report with the police was lodged. With the intervention of
    local M.L.A. Sh. Jagdish Raj Sahni, opposite party Nos.1 and 2
    were arrested, on the basis of F.I.R. No. 55 dated July 7, 1997,
    copy Annexure C-5. The allegation of the complainant was that
    the death of Paramjit Singh occurred on account of negligence of
    opposite party Nos. 1 and 2. Copies of the newspaper cuttings
    were also filed reporting the registration of the case and the
    arrest as a foresaid. Negligence is attributed to the opposite
    parties on the ground that the opposite parties were not
    qualified and equipped to carry out caesarean operation and they
    adopted unfair trade practice and allegation of deficiency in
    rendering service was leveled. Some of the grounds specifically
    were taken such as that the level of haemoglobin was below the
    level required for carrying out the caesarean operation; no
    prior arrangement for blood was made before the operation; the
    opposite parties-doctors were not specialist in Gynae. Dr. Johal,
    opposite aprty No. 3 was M.B.B.S. (Orthopaedics) and was not
    competent to carry out the operation, which was got conducted by
    opposite party Nos. 1 and 2 from him. There was no qualified
    doctor to administer anaesthesia. Such an operation could not be
    carried out without availability of oxygen and nitrogen gases.
    The only Gynae expert M.D. Ms. Nijjar, who was summoned. It was
    the duty of the doctors to advise post-mortem on the dead body
    and immediately information was required to be sent to the S.D.M.
    of the area by the opposite parties. During the operation, blood
    artery was cut resulting in the death. The opposite parties
    filed reply to the complaint denying the assertions of the
    complainant. The Insurance Company filed separate version.
    Preliminary objections were taken by the doctors. The disputed
    questions were taken by the doctors. The dispute questions were
    involved that the matter could be decided by the Civil Court. No
    cause of death was mentioned in the complainant to ultimately
    connect the opposite parties. No findings in this respect could
    be arrived at in the absence of conducting of post-mortem.
    Opposite party No. 2 was an eye specialist and was having a
    separate clinic on the first floor though in the same premises.
    He has no concern with the maternity clinic run by opposite
    party No.1, against him the complaint was stated to be false and
    malicious. The complainant had forcibly taken away the records
    of the hospital. An application before the Commission was filed
    for directing the complainant to produce such records whereas
    the complainant admitted having taken away only a register.
    Opposite party Nos. 1 and 2 were insured with the Insurance
    Company aforesaid for a sum of Rs. 5 lacs and 2 lacs
    respectively, particulars of the policies were given. On merits
    it was denied that the deceased was working as STD/PCO Operator.
    She was stated to be housewife and was not doing any job.
    Patient was normal and the development of the foetus was also
    normal. No such assurance was given that the delivery would be
    normal. With respect to the facts, it was asserted as under:

     

    “The patient was admitted on 4.7.1997 and respondent No. 1
    had no cause to doubt that the delivery would be normal. In
    fact, the clinical examinations had not revealed any likelihood
    of complications that would cause a caesarean operation. When
    the deceased came to the hospital, she was already in pain, i.e.
    labour and after admission, she was kept under observation. At
    the time when she came to the hospital, apart from the mild
    pains, she had a leaking membrane. The patient was administered
    a Inducing Drip, so as to induce labour. Thereafter, she was
    kept under observation, but she did not deliver till 5.30 p.m.
    on 5.7.1997. When she was observed on 5.7.1997 at about 5.30
    p.m. there was factual distress, meconium passed, meaning
    thereby that the life of the foetus was in danger and the foetus
    has passed meconium. In this situation, the question before the
    respondent No. 1 was to save there was danger to the life of the
    deceased. In such a situation in order to save the life of the
    foetus, the doctor is required to perform an emergency caesarean
    operation. For that purpose, the attendants of the deceased were
    asked to arrange one unit of blood as the answering respondent
    No. 1 had decided to conduct a caesarean operation upon the
    deceased so as to save both, the deceased and the foetus. At
    this stage, the deceased was also undergoing forceful
    contractions, which indicated to the answering respondent No. 1
    that in case she did not conduct a caesarean operation, the
    uterus may rupture. The answering respondent No.1 did all this
    in good faith and with no malafide intention or in
    negligence.”

     

    xxx  
    xxx   xxx  
    xxx   xxx  
    xxx

     

    “After
    the caesarean operation, which was successful performed a male
    child was delivered at about 7.15 p.m.”

     

    xxx  
    xxx   xxx  
    xxx   xxx  
    xxx

     

    “At
    about 8.30 p.m. the patient was examined and there was slight
    bleeding of about 50-70c.c. per vagina. The requisite drugs were
    administered to the patient, the bleeding stopped and
    thereafter, one unit of blood, which had already been arranged
    by the complainant has transfused to the patient after due cross
    matching.”

     

    xxx 
     
    xxx   xxx  
    xxx   xxx  
    xxx

     

    “One
    unit of blood was requested and supplied at the time of
    caesarean operation and 2 units were requested at 9.45 p.m. and
    supplied thereafter. In all 2 units of blood were transfused to
    the patient.”

     

    xxx  
    xxx   xxx  
    xxx   xxx   xxx

     

    “At
    about 9.00 p.m. the blood pressure and pulse of the patient were
    well-maintained, abdomen was soft and did not suggest of any
    grave medical emergency. At about 9.20 p.m., the patient
    developed hypotension, blood pressure 80/50, pulse 110 p/mt. and
    the patient was little restless. Emergency treatment was given
    to the patient in the form of injection Mephentine 1cc
    intravenously and oxygen started. Haemoccele drip was started.
    Thereafter, the patient was repeatedly examined, the abdomen was
    soft, uterus contracted and there was no bleeding per vagina. At
    this stage the respondent No. 1 called in Dr. Parminder Singh,
    M.D. Medical Specialist who examined the patient. He advised
    that we should start a Dopamine drip and to continue blood
    transfusion, oxygen and I/V fluids intravenously. Dopamine 1
    Amp. In 500 c.c. was started.

     

    At about 9.45 p.m., blood pressure of the patient was still 80 /
    50, the respondent No. 1 asked the attendants to arrange for 2
    bottles of blood. By about 10.15 p.m. haemoccele (one bottle)
    and one unit of blood had been given. In order to transfuse the
    blood quickly, venesection was done and the and the second unit
    of blood started Dopamine drip, I/V fluids and oxygen were going
    on, but the condition of the patient was not improving.

     

    That
    thereafter, respondent No. 1 called for Dr. R.S. Kalsi, M.D.
    Specialist for second opinion alongwith Dr. Parminder Singh.
    Both of them examined the patient when the blood pressure was 80
    / 50, pulse 120/mt., respiration 24 p.mt., abdomen soft, uterus
    contracted and firm. The doctors advised higher antibiotics,
    i.e. Inj, Fortum and Injection Hydrocortisone. The above
    injections were given after test done.

     

    At
    about 11.00 p.m. the patient suddenly became breathless, and
    restless, B.P. 70 / 40, pulse 140 p.mt., tachycadia, respiration
    rate 32 p.mt abdomen soft, but per vaginal examination revealed
    no bleeding. Hydrocortisone Injection again given, oxygen
    continued.

     

    At
    about 11.15 p.m., blood pressure dipped and became unrecordable.
    Patient became restless and cyanosed and then suddenly she went
    into cardio respiratory arrest. External cardiac message started
    immediately. Injection Adrenaline 0.5 ml and injection
    Nikethamide were given, intra cardiac. Dr. Parminder Singh was
    again called. In the meantime, all efforts of Ext. cardiac
    message and artificial respiration were made to save the
    patient. Before Dr. Parminder Singh reached, the patient had no
    pulse, no respiration. Dr. Parminder Singh also did external
    cardiac message but all efforts to revive the patient failed.
    The patient was declared dead at 11.35 p.m.”

      

    4.
    Opposite party No. 1 only received a sum of Rs. 1,000/-. Other
    allegations received fees were denied. It was further pleaded
    that there was great altercation after the death and under
    pressure opposite party No. 1 was asked to prepare a writing
    that the caesarean operation was done from Dr. Johal. The
    subgrounds taken up in the grounds were specifically denied that
    there was no rule prohibiting M.B.B.S. doctors from performing
    caesarean operation. Dr. Johal was stated to be a surgeon and
    entitled to assist in such an operation. The Insurance Company
    in their written statement admitted having issued two insurance
    policies as referred to above. At the time of arguments, Counsel
    for the Insurance Company submitted in writing that the act of
    Dr. Johal was not covered under the insurance policies.

      

    5. On
    behalf of the complainant affidavit of Tarsem Lal was produced
    and he was cross-examined. He referred to the documents, copies
    of which were produced. Affidavit of Ashwani Kumar was also
    produced to the effect that she was drawing Rs. 1,200/- as
    salary from him, who was proprietor of of M/s. Shiv Property
    Dealer, Batala. On the other hand Dr. L.K. Dhaliwal, Addl.
    Professor, P.G.I. Chandigarh was produced by the complainant as
    an expert. On the other hand Dr. Santosh Menon produced her
    affidavit and she was cross-examined. Affidavit of Shashi Sekri,
    Vijay Kumar Sharma, Kuldip Kaur, Brij Nath Thukral, Gurdial
    Singh Randhawa, Gurdial Singh, Naranjan Singh and Bhiro were
    produced, who had stated having their children successfully
    delivered at the clinic of 
    Dr. S.S. Johal, opposite party No. 3 was also produced
    and he was cross-examined. The respondent also produced
    documents. We have heard Counsel for the parties. The following
    question requires consideration in the present case:

      

    1)     
    Whether M.B.B.S. doctor could perform caesarean operation
    for delivery of a child.

      

    2)     
    Whether the child was delivered through caesarean
    operation by opposite party No. 1 Dr. Santosh Menon or by Dr.
    S.S. Johal.

      

    3)     
    Whether Paramjit Kaur died on account of the opposite
    parties in the matter of caesarean operation conducted on her ?

      

    4)     
    To how much compensation if any, the complainants are
    entitled to and against which of the opposite parties?

      

    5)     
    Relief.

      

    Question
    No. 1:

      

    6)  
    At the outset it may be stated that none of the Counsel
    for the parties referred to any statute, rule, regulation or
    instruction of any Authority on the subject of persons qualified
    to perform caesarean operation in the matter of delivery of a
    child. Even Dr. L.K. Dhaliwal, Addl., Professor, P.G.I. who
    appeared as CW-2 could not refer to any such statute or rules. A
    specific question was put to her on behalf of the complainant as
    to whether M.B.B.S. doctors were competent to perform operation.
    Her reply was in the negative and according to her DGO or the
    M.D. in the subject of Obstetrics and Gynaecology would make the
    one eligible to carry out the caesarean operation. During
    cross-examination she stated that she was not aware of any
    statute or rules prohibiting M.B.B.S. doctors from performing
    caesarean operation. It was during the training that she gained
    knowledge that M.B.B.S. doctors should not perform major
    operation, but she did not know of any rules or statute
    prohibiting or permitting M.B.B.S. doctors to do caesarean
    operation. But she admitted that surgery was one of the subjects
    taught at the M.B.B.S. course. According to her a Gynaecologist,
    who has taken training in the subject of gynae and obstetrics
    could do so. She did not know if a doctor who had done house job
    will be a qualified gynaecologist or such person could practice
    gynae, but she further stated that the assistant state that the
    assistant doctor in the team for performing caesarean operation
    need not to be a gynaecologist, but should be a medical doctors.
    With respect to leproscopy and hysterectomy, the same could be
    performed by M.B.B.S. having done in 1969 and completed
    intership at Amritsar Medical College and studied medicines,
    surgery, ENT, anaesthesia during the course. She had done one
    house job at Civil Hospital, Jalandhar in 1970-71 and two years
    job at Tej Bahadur Sapru Hospital, in Gynae Deptt. and from 1972
    to 1988 at M.L. Sarin Maternity Hospital, Batala. The said
    hospital was founded by her and she is doing private practice at
    Circular Road, Batala. She has produced copy of her M.B.B.S
    certificate Annexure 3 to her affidavit as issued by the Punjab
    University authorising her to practise medicines, obstetrics and
    surgery. Two certificates issued by Indian Association of
    Gynaecological Endoscopies have also been produced dated October
    12, 1998 and October 9, 1988 having attended the hysterescopy
    training and leparoscopy training course. Some other
    certificates were also produced regarding her experience while
    working in Civil Hospital, Jalandhar. An another certificate was
    produced from Dainik Prathana Sabha, Batala certifying that she
    had conducted 3322 delivery case during her working in MLCD
    Sanan Maternity Hospital and Nursing Home, Batala run by the
    Sabha during the period from 27.12.1976 to May, 1990. Another
    certificate by such a Sabha was also produced that all types of
    delivery cases including caesarean operation were conducted by
    her.

      

    Question
    No. 2:

      

    8) 
    Since on behalf of the complainants no one was present in the
    operation theatre / labour room, oral evidence of Tarsem Lal is
    not considered sufficient to record a finding that caesarean
    operation was infact conducted by Dr. S.S. Johal, opposite party
    No.3. On the other hand Dr. Santosh Menon had categorically
    stated that it was she who had conducted the caesarean operation
    and Dr. Johal had assisted her. Likewise Dr. Bhaskar Menon
    assisted her during the operation Dr. S.S. Johal was also
    categorically stated having assisted Dr. Santosh Menon in the
    caesarean operation. The main plank of the complainants is a
    writing purposed to be in the handwriting of Dr. Santosh Menon
    Ex. CW-1/B. The original as well as photocopy were so marked.
    The original was in the torn condition and had been submitted by
    rejoining it. The time of preparing of this writing is not
    disputed and the same was after the death of Paramjit Kaur when
    several persons had collected at the clinic of the opposite
    party No. 1. According to Dr. Santosh Menon, it was under
    coercion and pressure of the mob that she wrote it, but she did
    not sign it. No evidential value to this document can be
    attached to such writing when tensions were high on account of
    death o Paramjit Kaur, and the same were prepared. Otherwise no
    record of the hospital are available to opine or give a firm
    finding that it was Dr. Johal, who had performed the caesarean
    operation. The very fact that this document was torn either at
    that very time or subsequently would indicate that it was not to
    be acted upon. When it was not got signed from opposite party
    No. 1, much importance cannot be attached thereto. Furthermore,
    there was no question for calling Dr. Johal to perform caesarean
    operation when Dr. Santosh Menon had earlier performed such like
    many operations during her long professional career. Then it is
    held that opposite party No.1 Dr. Santosh Menon performed
    caesarean operation on Paramjit Kaur.

      

    Question
    No. 3:

      

    9)  
    With respect to the stages of the admission of Paramjit Kaur
    upto her death, the complete data has been given in the written
    statementby the opposite party as reproduced above. There is no
    evidence much less expert evidence produce on behalf of the
    complainants that the treatment given to the patient during this
    period was below the prescribed standard or otherwise not upto
    the standard skilled. Dr. Santosh Menon from time to time called
    physician from outside to have second opinion in the matter of
    providing treatment to the patient, whose condition was
    deteriorating and accordingly such treatment was given. It will
    not be out of place to mention that doctors only treat whereas
    it is in the handsome of the Almighty to cure. Each failure on
    unsuccessful operation can not be considered as a negligent act
    of the doctor. Something more required to be established by the
    complainants to prove negligent act of the doctor. The present
    is not simple case of medical negligence that this Commission
    could straightway give a finding of apparent negligence holding
    the opposite parties liable. Recently the Supreme Court in
    Indian Medical Association v. V.P. Shantha, 1996 (1) CCJ 1
    (SC)=III (1995) CPJ 1 (SC), has laid down the principles to be
    kept in view while deciding the cases of medical negligence. In
    para 37 of the judgment, it has been observed as under:

      

    “It is no doubt true that sometimes complicated questions
    regarding recording of evidence of expert may arise in a
    complaint about deficiency in service based on the ground on
    negligence in rendering medical service by a medical
    practitioner but this would not be so in all the complainants
    about deficiency in rendering services by medical practitioner.
    There may be cases, which do not raise such complicated
    questions and the deficiency in service may be due to obvious
    faults which can be easily established such as removal of the
    wrong patient or giving injection of a drug to which the patient
    is allergic without looking into the Out-patient Care containing
    the warning [as in Chin Keow Government of Malaysia, 1967 ACJ
    209 (England)] or use of wrong gas during is course of an
    anaesthetic or leaving inside the patient swabs or other item of
    operating equipment after surgery. On often reads about such
    incidents in the newspaper. The issue arising in the newspapers.
    The issue arising in the complainants in such cases can be
    speedily disposed of by the procedure that is being followed by
    Consumer Disputes Redressal Agencies and there is no reason why
    complaints regarding deficiency in service in such cases should
    not be adjudicated by the Agencies under the Act. In complaints
    involving complicated issues requiring recording of evidence of
    experts, the complainant can be asked to approach the Civil
    Court for appropriate relief.”

      

    Question
    No. 4:

      

    Since
    the complainant have failed to prove question No.2 referred to
    above, it is not necessary to determine this question.

      

    Complainant
    dismissed with costs.

      


    15)     
    Baby
    Ramya represented by her father K.Raji Reddy v.Dr.(Mrs.)Aruna Reddy &
    Anr.



             

    1,
    1996(1) CPR 244 (APSCDRC)


      



    the facts of the case in brief as stated in the complaint were as
    follows:


     

      

    mother of the baby Ramya got admitted in Dr. Mrs.Reddy’s Nursing
    Home on 6.5.1990 at 6.30 am for delivery;


     

    the child (baby Ramya) was delivered on same day at 10.20 pm
    weighing 4.5kg;


     

      

    baby Ramya was found not moving her right arm and parents were
    advised to consult a neurosurgeon who informed that the             
    complainant had
    right branchial palsy with Horner’s Syndrome;


     

      

    a neurologist and orthopaedician were also consulted who gave
    similar opinion, they also informed that such paralysis in babies occurs
    due

    to excessive traction (force) in the delivery of the shoulders.


     

      

    In
    the counter filed by Dr.(Mrs.) Reddy it was stated:


     

    mother was a case of pregnancy induced hypertension;


     since patient did not progres till evening another doctor’s
    opinion was sought who suggested Caesarean section, but patient refused to
    undergo Caesarean;


    · the labour which had been induced by Oxytocin drip had to be
    discontinued as BP continued to be 160/100 despite treatment; when the amniotic fluid was found to be meconium (green) stained,
    Caesarean was suggested, but was refused by patient; during delivery, the
    head of the baby, was spontaneously delivered,
    but the patient did not co-operate with the shoulder delivery;

    as the baby was turning blue, there was danger of baby getting
    asphyxiated and even dying, the doctor had to apply traction for delivery
    of shoulders;

    the patient did not disclose that the first issue was forceps
    delivery, for then she would have insisted for Caesarean.


     

      

    A
    rejoinder affidavit filed by the complainant contended:


     

      

     it
    was not correct to say that the mother was having high BP the
    case sheet is silient with regard to temperature, BP and the plea that the
    nurse noted BP on white paper was concocted;


    · ultrasonography during pregnancy was never advised;


    ·  the supporting affidavits of other doctors to the effect that Dr.
    (Mrs.) Reddy had taken proper care in conducting delivery 
    were without any basis.


     

      

    The
    State Commission held;


     

      

    ·       
    Dr. Reddy’s contention that by mere clinical examination the size
    of the baby cannot be ascertained hence the treating doctor did not
    anticipate the need for Caesarean could not be accepted;


     

      

    ·       
    no proper case sheet was maintained;


     

    ·       
    patient was not referred for ultrasonography to assess size of
    baby;


     

    ·       
    patient was admitted at 6.30 am and delivery was effected at 10.20
    pm when it was found that the delivery was difficult she should have done
    Caesarean section;


     

    ·       
    the contention that the patient refused cannot be accepted; consent
    of mother or husband of the patient who were present at the Nursing Home
    throughout could have been taken;


    ·       
    had Caesarean been done the injury to baby Ramya could have been
    avoided.


     

      

    ·       
    Mudaliar & Menon’s textbook 
    Clinical Obstetrics states that ‘Brachial palsy or Erb’s parly’
    results from excessive traction in the delivery of the shoulders;


     

      

    ·       
    Dr. Vittal Reddy after thorough examination of the complaint stated
    in his affidavit that the birth injury could have been avoided, if proper
    care had been taken;


     

      

    ·       
    Dr.Rangachary, orthopaedician, in his affidavit, opined that the
    complainant was found to have Erb’s Palsy which was due to traction;


     

      

    ·       
    Dr. V.P. Patnaik, Professor of Forensic Medicine on perusal of the
    documents gave an affidavit stating that if the cause of distress was
    elicited before labour, and timely assistance to the mother and fetus were
    given by way of surgical interference, it could have prevented the Erb’s
    Palsy.


     

      

    Placing
    reliance on Dr. Patnaik’s statement and on consideration of material on
    records, the State Commission held that the doctor had not exercised due
    and reasonable care while conducting delivery. The complainant was awarded
    Rs.1.75 lacs towards general damages for pain and suffering and loss of
    use of right hand, but no special damages were awarded in the absence of
    any proof. Since Dr.(Mrs.) Reddy was insured, the insurance company was
    made second opposite party and both the parties were directed to pay the
    compensation jointly and severally.   


     

      


    16)       Dudhi
    Ben Navghanbai v. Dr. Ashok Bhai H.Pathak & Anr


     



                  
    1996 (2) CPR 69 (Guj SCDRC)


     

      

    the complainant alleged that the 1st opposite party had attempted
    to take child out from the uterus by using forceps and as a result her
    uterus ruptured. She had to get her uterus removed by another doctor.

      

    There
    was no evidence to support the allegation that the 1st opposite party had
    attempted to deliver the child by using forceps. The complainant admitted
    to having called a midwife who attempted to deliver the child, before
    consulting the 1st opposite party.


     

      

    The
    State Commission also held that there was no reason to discard evidence of
    1st opposite party that he only examined the patient clinically and had
    advised to remove the patient to another hospital at Surendranagar as her
    condition was serious. Complaint was dismissed.

      

      


    17)         
    Consumer Protection
    Council & Anr v. Parul Clinic Maternity Home & Hospital
    & Ors.

                    
    1996(2) CPJ 157: 1996(1) CPR 585(Guj SCDRC)   

      

    the
    complainant No.2 was operated for a tumor (left sided tubo ovarian
    mass) and removal of uterus. Subsequently,she developed
    recto-vaginal fistula (RVF). The complainants alleged that the
    uterus was removed without her consent and due to negligence in
    operation RVF had resulted.

      

    The
    State Commission held that there was a written consent given by
    the complainant for removal of her uterus, and it further appeared
    from the Medical Authority (text book) which was cited in the
    deposition of Dr.C.B. Nagori (who was examined as an independent
    expert) that there is risk of recto-anal injury and formation of
    fistula (RVF) as a result of hysterectomy (removal of uterus)
    operation. Therefore, mere fact that there was RVF would not
    necessarily lead to the conclusion that the doctors were negligent
    in performance of operation.

        

    Allegation
    about unfair trade practice was not substantiated, and in any case
    compensation was not claimed on ground of unfair trade practice.
    The complaint was dismissed.

       

    16)    
    Sau. Madhuri v. Dr.
    Rajendra & Ors.

     
             
    1996(3)CPJ 75(NCDRC) 15)         
         

       

    Sau. Madhuri was operated upon by Dr. Rajendra and Dr.
    Kalpana of Shriram Clinic, Maternity and Nursing Home, Warud,
    District Amravati, for delivery of a Caesarean child under general
    anaesthesia. After the operation she continued to have pain in the
    abdomen, but nothing was done to alleviate her sufferings. She was
    shifted to Nagpur and admitted in the clinic of Dr. P.K. Tamaskar,
    who took an X-ray of her abdomen and found – Artery Forceps -
    inside her abdomen.
    She was operated upon by him and the forceps was removed
    from her abdomen. This was recorded in the operation notes.

      

    After going through the record the State Commission, Maharashtra
    concluded that Dr. Rajendra & Ors. had been negligent. Further
    as evident from the notes of Dr. Tamaskar, the artery forceps
    could not be pulled out because small intestine had entwined
    itself around the forceps, and therefore a part of the intestine
    had also to be removed. On this basis the Maharashtra State
    Commission awarded a sum of 
    Rs. 2000/- as compensation and also an amount of 
    Rs. 29175/- towards expenditure which the appellant had
    incurred for her treatment.

      

    The appeal filed by the complainant with the National Commission
    was on the ground that the compensation awarded by the State
    Commission at Rs.2000/- was a pittance considering the agony and
    disconfort suffered by her.           

       

    The Maharashtra State Commission had argued 
    that apart from Rs. 29175/- the 
    expenses incurred by the appellant, Dr.Rajendra had also
    paid Rs.15000/- to Dr. Tamaskar for performing the operation at
    Nagpur, and hence quantified the compensation at Rs.2000/-.

      

    The National Commission was of the opinion that no standard
    criteria can be prescribed for determining the amount of
    compensation in such like cases. Each case has to be judged by
    taking into account the attending circumstances and also the
    attenuating circumstances, if any. One has also to see the
    financial status of the doctor as well as the patient, age of the
    patient, the earning state of the patient, and any other relevant
    factor having a bearing on the case:

      

    The
    National Commission enhanced the compensation from Rs.2000/- to
    Rs.10000/- and also awarded Rs.2000/- as costs to the patient, in
    addition to Rs. 29197/- on account of expenditure.

      

    18)
    Rohini Pritam Kabadi
    v. Dr. R.T. Kulkarni

             
    1996(3) CPJ 441: 1996(1) CPR 142 (Karnataka SCDRC)  

       

    the complainant underwent Caesarean operation on 11.6.91
    but thereafter she continued to have urinary trouble, severe pain
    abdomen and sometimes, fever. She continued to suffer till she
    underwent a second operation by another doctor on 14.10.92. A mass
    (as recorded in the report) was removed, and a metallic tip of the
    suction tube was found in the cavity of the mass. After this
    operation the complainant was relieved of her suffering.

      

    The State Commission on the basis of material placed on record
    held that the complainant had suffered physical pain and mental
    depression due to negligence of the opposite party. Serious mental
    distress is a killer ailment and can cause varieties of deadly
    ailments in human beings which can lead to death. A compensation
    of Rs. 2 lacs was awarded.

       

    16)    Sau. Madhuri v. Dr.
    Rajendra & Ors.

             
    1996(3)CPJ 75(NCDRC)

      

     Sau.
    Madhuri was operated upon by Dr. Rajendra and Dr. Kalpana of
    Shriram Clinic, Maternity and Nursing Home, Warud, District
    Amravati, for

     delivery of a Caesarean child under general anaesthesia.
    After the operation she continued to have pain in the abdomen, but
    nothing was done

     to alleviate her sufferings. She was shifted to Nagpur and
    admitted in the clinic of Dr. P.K. Tamaskar, who took an X-ray of
    her abdomen and

     found -Artery Forceps inside her abdomen. She was operated upon by him and the forceps was removed
    from her abdomen. This was recorded

     in the operation notes.

      

    After
    going through the record the State Commission, Maharashtra
    concluded that Dr. Rajendra & Ors. had been negligent. Further
    as evident from the notes of Dr. Tamaskar, the artery forceps
    could not be pulled out because small intestine had entwined
    itself around the forceps, and therefore a part of the intestine
    had also to be removed. On this basis the Maharashtra State
    Commission awarded a sum of 
    Rs. 2000/- as compensation and also an amount of 
    Rs. 29175/- towards expenditure which the appellant had
    incurred for her treatment.

      

    The
    appeal filed by the complainant with the National Commission was
    on the ground that the compensation awarded by the State
    Commission at

     Rs.2000/- was a pittance considering the agony and
    disconfort suffered by her.           

        

    The
    Maharashtra State Commission had argued 
    that apart from Rs. 29175/- the 
    expenses incurred by the appellant, Dr.Rajendra had also
    paid Rs.15000/- to Dr. Tamaskar for performing the operation at
    Nagpur, and hence quantified the compensation at Rs.2000/-.

      

    The
    National Commission was of the opinion that no standard criteria
    can be prescribed for determining the amount of compensation in
    such like cases. Each case has to be judged by taking into account
    the attending circumstances and also the attenuating
    circumstances, if any. One has also to see the financial status of
    the doctor as well as the patient, age of the patient, the earning
    state of the patient, and any other relevant factor having a
    bearing on the case:

      

    The National Commission enhanced the compensation from Rs.2000/-
    to Rs.10000/- and also awarded Rs.2000/- as costs to the patient,
    in addition to Rs. 29197/- on account of expenditure.

      

     

    17)         
    Vinubhai
    Parshottamdas Patel v. Dr.Vijay K. Ajmera


                    
    1997(1) CPR 348 (Guj SCDRC)   

      

    the
    complainant’s wife was admitted in the opposite party hospital
    and advised termination of pregnancy by operation of Dilatation
    and Evacuation. But after the operation she continued to have
    abdominal pain. She was taken to another hospital as there was
    perforation of the uterus and intestines.

      

    The
    State Commission, on the basis of evidence on record, held that
    there was gross negligence in the operation performed by 1st
    opposite party.

     Rs.2 lakhs compensation was awarded, (Rs.150000/- spent on
    medical treatment and Rs.50000/- as compensation for physical pain
    and mental

     anguish.

       

      

    18)    
    Meghdut Gordhanbhai
    Thakkar v. Dr.Anupama Vidhyut Bhai Desai 


    &
    Anr 

            
    1997(1) CPJ
    503:1997(2)CPR 9 (Guj SCDRC) 

      

     the
    complainant’s wife was admitted for hysterectomy, but after
    surgery her condition deteriorated, kidney failure occurred and
    ultimately after 17 days she expired.

      

    The
    State Commission held that from the available records complainant
    had not proved any alleged irregularities in treatment or
    attendance or lac of reasonable care by any opponent. It is a sad
    fact that young life is lost but then it is an accident; a fatal
    chance-occurrence which was beyond control of treating doctors. As
    it seems whatever was possible by these doctors they did it(if
    they failed complainant has not proved it- he carries the burden
    to prove it because he alleges.)Just because patient died during
    treatment a doctor cannot be held responsible, partocularly 
    when the doctor has acted scientifically and adequately as
    it seems in this case. The complaint dismissed.

      

    19)    
    R. Longanathan v.
    Dr. Rani Mandakumar


              
    1997(1)
    CPR 486 (TN SCDRC) 

      

    the
    complainant’s wife underwent MTP with sterilization by the
    opposite party, but subsequently found that her pregnancy had
    continued and gave birth to a child at the end of eighth 
    month of pregnancy. 

      

    It
    was alleged that opposite party doctor failed to observe existence
    of two ovums in womb of his wife while performing MTP resulting in
    birth of a child.

       

    Opposite
    party contended that vigorous curretage and going into depth of
    uterus was not possible because of two previous Caesarean scars. 
    Patient was instructed to attend her clinic after the next
    period or if the period was not established, but she failed to
    follow this advice. MTP was done by suction evacuation method. If
    both foetuses were in the same uterine cavity both would have been
    evacuated by this method. One foetus had been evacuated and the
    other left behind because of the possibility that the two foetuses
    were in two separate cavities as in Biconuate uterus.

      

    The
    State Commision held that this could have happened because the
    doctor in good faith did not suspect the possibility of Bicornuate
    uterus, and on the basis of other evidence on record dismissed the
    complaint.

      



    20)    
    Joseph alias Ammon
    & Anr. v. Dr. Elizabeth Zachariah & Ors.


              
    1997(1) CPJ 96 (Kerala SCDRC)

      

    The
    complainant’s wife was admitted in the Benzigar Hospital, Kollam,
    under care of Dr. Elizabeth Zachariah. It was alleged that she
    conducted the Caesarean operation negligently resulting in damage
    to urinary bladdar, ureter and kidneys, for which the patient was
    shifted to Trivandrum, but ultimately she died after 2
    months. 

      

    The
    State Commission held that there is no evidence of negligence
    during the operation. It was also averred in the complaint that
    wrong medicines were administered, but on basis of material
    evidence no case could be made of this allegation also, and
    dismissed the complaint.

      

      

    21)    
    Mayo Hospital v.
    Sunil Tiwari

     
             
    1997(3)
    CPJ 387:1997(3) CPR 574 (M.P. SCDRC)

      

    a
    chorion sampple for biopsy 
    was taken out from the womb of the complainant’s wife on
    26.2.94 for which Rs.1200/- 
    was charged. Due to delay

     in transit of 2 days the sample was spoiled. Repeat biopsy
    was taken on 3.3.94 but this time also the sample reached Indore
    after 4 days and was not worth testing.

      

    The
    State Commission held that whenever a sample is taken for any test
    and charges for test are collected, it is implied that the
    delivery of test report will be the completion of “service”
    hired for charges paid. It was the bounden duty of the Mayo
    Hospital through Dr. Viraj Sharma to ensure timely transportation
    of the sample. Once the earlier sample had been destroyed, it was
    her moral duty not to charge for the repeat biopsy, but she did
    charge Rs.500/- and still did not take precautions for ensuring
    timely transportation. This is not only deficiency in service but
    gross negligence of inhuman nature when committed second time. The
    State Commission upheld the order of the District Forum which had
    awarded Rs.20000 as compensation and also directed to refund Rs.
    1700/- collected as fees, and dismissed the appeal of the
    hospital.

      

    22)    Devendra Kantilal
    Nayak & Ors. v. Dr. Kalyani 
    Ben Dhruv Shah & Anr.

             
    1997(1)
    CPJ 103 (Gujarat SCDRC)   

      

    was
    taken to opposite party No. 1 for Caesarean operation, delivered a
    child, but did not regain consciousness shifted to another
    hospital and 

    ultimately died in early hours next day. Post-mortem was done on
    the insistence of the complainant.

      

    It
    was stated by the opposite parties that the patient was a known
    case of placenta previa grade 3. 
    Patient was advised operation on 3.8.93 but 

    refused, and when she came on 5.8.93 she was bleeding profusely.
    Blood was arranged, and she was taken up for emergency Caesarean,
    under

    spinal anaesthesia. Other gynecologists was called to help as an
    “abundant caution”. All measures to stop oozing from the
    placental bed were 

    taken and when all was thought well, the abdomen was closed. Since
    the patient’s condition despite 8 units of blood continued to
    deteriorate it 

    was decided to shift her to another hospital. Removal of uterus
    was felt not necessary. Report of post-mortem was not correct and
    mala fide. 

    Request for joining the Insurance Co. was made which was granted
    by Commission.

      

    The
    port-mortem report stated that:

      

    -……the
    patient had 1.8 litres of haematoma in peritoneum. Uterus was
    bulky, plenty of  blood clots seen around the suturing in various planes. 

    Some branches of uterine artery showed ante-mortem cuts and they
    were not ligated and there was large haematoma around it .Uterus
    was 

    reparied deficiently. The cause of death is shock as a result of
    intra-abdominal haemorrhage following negligent surgical procedure
    and repair. 

    Histopathological reports are non-contributory.-

      

    -Opinion”
    by Dr.R.M. Jhala was produced, but it was not clear who and why
    and in what capacity his opinion was asked. Dr. Jhala was
    neither 

    examined nor he made any statement regarding 
    present case. Innumerable medical references were given but
    none  of them was comparable to 

    the present situation and the State Commission held that it served
    no purpose for the complainant or opponent, and seemed to be an
    exercise in 

    futility. 

      

    There
    were material  differences
    in statement of Dr Shah opposite party No.1 and Dr. Patel,
    anaesthetist. Dr. Shah said patient was serious on 

    arrival and blood pressure was low, Dr. Patel said patient was fit
    and normal. Dr. Shah said patient had bleeding per vagina but Dr.
    Patel denied 

    the same. Dr. Shah had produced two sets of xerox copies of case
    papers, but no original copies were presented. There was no
    clarification as to 

    how there was disparity in both papers.

      

    Dr.
    Lilaben Trivedi was called as a witness because she was
    chair-person of Committee appointed by Medical Council of Gujarat
    who had also 

    nstituted inquiry in the present case. Dr. Trivedi admitted
    knowing Dr. Jhala but the Committee was not knowledgeable about
    the report of Dr 

    Jhala. Dr. Trivedi utterly failed to explain why and how so many
    paragraphs of Dr. Jhala’s report were incorporated in
    Committee’s report ditto to 

    ditto with no change even in coma or full stop. The State
    Commission inferred that the Committee prepared its report on
    basis of Dr. Jhala’s report 

    and did not apply its mind or investigated as was expected .

      

    Dr.
    Shah inspite of request failed to present himself for
    cross-examination by complainant and therefore 
    his statements remained unproven and 

    were not accepted as evidence. No independent, uninvolved
    (directly or indirectly) expert was called to confirm the claims
    of Dr. Shah or to refute

     the charges of complainant.

      

    The
    State Commission did raise some doubt regarding the post-mortem
    report as far as writing the mode of death was concerned, viz.,
    the cause 

    of death is shock as a result of 
    intra-abdominal haemorrhage following negligent surgical
    procedure and repair, but held that the other findings 

    wre corroborative evidence, sufficient to conclude that the
    patient died because of exsanguination which, with due diligence
    and advance 

    precaution, could have been prevented.

      


    In
    assessing compensation, the value of benefit of services to the
    complainants was assessed  at
    Rs. 12000/- p.a. Multiplier of 15 was applied 

    making it 180000/- Rs.20000/- for loss of expectancy of life and
    Rs. 10000/- for pain, shock and suffering of the deceased.
    Rs.25000/- was 

    awarded for the costs of treatment. Thus the total compensation
    worked out to Rs. 235000/- together with interest @ 12% p.a. from
    date of 

    complaint till realisation Rs.5000/- was awarded in addition as
    costs to the complainants.

      

    24)    
    Case of Uma v. Dr.
    Nishu Kharbanda & Anr.


                
    1997(2)
    CPJ 580 (Haryana SCDRC)

      
      

    the complainant underwent M.T.P. but pregnancy still continued and
    she gave birth to a male child. The opposite 
    party pleaded it was a case of 

    incomplete abortion as it could be a case of twin pregnancy.
    Further, the complainant had been visiting her subsequently but at
    no point of time 

    she ever asked for termination of second pregnancy. The State
    Commission dismissed the appeal and upheld the order passed by the
    District 

    Forum which dismissed the complaint as there was no deficiency in
    service.

      

              
    1997
    (2) CPR 160 (Karnataka SCDRC)

      

    the
    complainant underwent operation for removal of ovaries (bilateral
    oopherectomy).  On
    third day  she developed abdominal distention, pain and 

    fever. X-rays of abdomen were done, but allegedly the opposite
    parties failed to diagnose intestinal obstruction, resulting in
    worsening of her 

    condition and ultimately she was shifted to Command Hospital,
    Bangalore where she was diagnosed as a case of intestinal
    obstruction with 

    perforation and peritonitis and underwent second surgery.

      

              
    1997(2)
    CPJ 355 (Punjab SCDRC) 

      

    the
    complainant alleged that due to wrong administration of spinal
    anaesthesia during Caesarean operation by the opposite parties she
    developed

     meningitis. This had to be treated elsewhere .

      

            
      1997(3) CPJ 81 (NCDRC)

      

    Chand
    Bibi w/o complainant was operated upon for removal of uterus.
    During the post operative period, despite reported medical advice
    she 

    consumed the cream, Roti, Meat and Dal, puri and fried egg. Her
    uterus disrupted and had to undergo an emergency operation to
    close the 

    abdomen, but patient died next day.

      

              
    1997(3)
    CPJ 165 (Kerala SCDRC)

     

            
    it was held that:

      

    ·       
    though the Thiruvalla Medical Mission Hospital is a
    charitable institution and was run under a Trust Deed, but as the
    treatment done was on

     payment of consideration, which is on record;

    ·       
    the complainant’s wife underwent Caesarean operation, but
    a large sponge was left behind as was proved by the evidence of
    the doctor 

    who removed it and also from the C.T. Scan report. The scrub nurse
    was responsible for counting the sponges and negligence was held
    on her 

    part. The hospital as employer was vicariously held liable to
    compensate but as the hospital was insured, the Insurace Company
    was asked to pay

    compensation amount of Rs.98506/- to the complainant.

      

     

    29)  
    Pallattu George
    & Anr.v. Dr. Thamkamma Punnoose & Anr.


            
    1997(3)
    CPJ 341 1997 (3) CPR 167(Kerala SCDRC) 

      

    the
    complainant’s wife was admitted for third delivery in the
    hospital of  Dr.
    Thankamma Punnoose.   A
    provisional diagnosis of threatened rupture

    of the previous Caesarean scar, fetal distress and deep
    transsexual arrest was made, and after explaining the
    complications that may arise 

    following surgery, consent was obtained. After preliminary
    investigations emergency Caesarean section was done and baby was
    extracted. Five 

    days after discharge she developed incontinence of urine, urinary
    fistula was suspected  and
    an indwelling Foley’s catheter was put in . But the 

    complainant alleged that another doctor of Dr T.Punnoose Hospital
    told her husband and that some injury was caused to the urine bag
    at the time

     of operation and that was the reason for the discharge of
    urine.

      

    The
    court held that the complainant had not adduced any evidence to
    show that there was any negligence on part of the opposite parties
    and 

    dismissed the complaint.

      


    30)    
    Rajni Bansal v. Dr.
    D. C. Mittal & Ors.

     
             
    1997(3)
    CPJ 511(Haryana SCDRC)   

        

    according
    to the complainant, she was operated upon for delivery of her
    child in the opposite party’s hospital. As her pain persisted,
    she 

    underwent X-ray and ultrasound and the report opined
    “inflamatory mass foreign body inside”. For that she was again
    operated upon by the 

    opposite parties but was not relieved of her pain. Ultimately she
    got admitted in the P.G.I. Chazndigarh, where she was again
    operated and it was 

    reported that some segment of guaze piece was found in the body.
    It was taken out and found to have fresh and smooth margins.
    Aggrieved 

    against that the complainant had filed this complaint.

      

    The
    opposite parties in their written reply said that the
    histopathology report of the inflammatory mas revealed
    tuberculosis. The patient never 

    turned up. The State Commission upheld the finding of ‘no
    negligence’ by the District Forum on the basis of the record and
    the fact that the report

    of the PGI  at
    Chandigarh and the final analysis made there had clearly shown
    that the segment of the gauze piece taken out had quite fresh
    and 

    smooth margins. The possibility of the complainant having received
    medical treatment at some other places i.e. other than that of the
    respondents

    at Jagadhri could not be ruled out.

      

    Under
    the circumstances the court found no merit in the appeal and
    dismissed the same.  

         
                             

      

    31)    
    Anup Kumar Jana v.
    Dr. Pabitra Chatterjee

     
             
    1998(1)
    CPR 693, (WB SCDRC)

      

    Smt.
    Jana who was carryin 29 weeks 4 days pregnancy, started having
    dribbling of liquor and severe bleeding. Immediate blood
    transfusion was 

    given, and emergency Caesarean operation was done. Child born was
    premature and severely asphyxiated and died.

      

    32)    Prem Nath Hospital v. Poonam
    Mangla & Anr.

     



             
    1998(2)
    CPJ 205 (Haryana SCDRC)  


    The complainant alleged
    that due to lack of proper care by Dr. K.Bala of Prem Nath Hospital she
    delivered prematurely a female child weighing 

    1.25 kg having nephrology
    problem. After 2 days, as the condition of the baby deteriorated, the baby
    was admitted to Pushpanjali Hospital of 

    Gurgaon where she did not show any
    improvement despite incubator care and ultimately expired on the next
    day.              


    In
    her reply, Dr. K. Bala denied lack of proper skill and care. The
    complainant was running very high blood pressure, it was a high risk case.
    The 

    possible complications were clearly explained to the complainant and
    her husband. It was further pleaded that the baby was revived and 

    resuscitated by highly eminent, experienced and skilled paediatrician Dr.
    Prem Nath and subsequently managed by him. The complainant and 

    her husband
    themselves decided to shift the baby to pushpanjali 
    Hospital. According to pushpanjali Hospital, despite the best
    medical attention 

    given to the complainant and her baby it was unfortunate
    that due to respiratory distres syndrome and hyaline membrane disease ,
    the baby did 

    not survive and that the treatment of incubator, oxygen and
    drip did not help.


    During
    the trial of the complaint, Dr. Vanita Bhatnagar, OBS Gyne. of Civil
    Hospital, Dr.Lt. Col. Yashpuri and Dr. Jai Kishan Yadav appeared as 

    witnesses but they opined that though at the time of delivery the facility
    of incubator is useful but in the absence of incubator temperature can
    still

     be maintained by other means by radiant heat warmers, hot water
    bottles and cotton pads etc. No evidence in support of any dificiency in
    the 

    rendering of medical service, remissness or negligence on the part of
    Dr. K. Bala of Prem Nath Hospital or Pushpanjali Hospital, Gurgaon had 

    been produced on the basis whereof it could be inferred that the baby had
    expired due to any deficiency etc. Despite all this, the learned District 

    Consumer Forum allowed the complaint by awarding compensation of
    Rs.25000/- to the complainant with Rs.5000/- as litigation expenses 

    against the Prem Nath Hospital, but dismissed the complaint against the
    Pushpanjali Hospital.


    The
    State Commission after hearing the parties and having gone through the
    records set aside the order of the District Forum on the following 

    grounds


     


           
    the order passed by the District Forum is not based on any evidence
    regarding any deficiency in providing medical services;

      
          
    the medical opinion of the three doctors does not suggest any
    deficiency;


     


     
           
     but for this
    misfortune, the doctors cannot be held liable.

      

    33)   
    Mrs. Satwant Kaur v. Dr.
    Kanwaljit Kaur



             
    1992(2)
    CPR 458 (Chandigarh SCDRC)



    After a Caesarean
    section followed by tubectomy, pain abdomen persisted. She was operated by
    another Doctor Harbilas in another hospital who recovered a cotton sponge
    from the rectum.

    Ex
    pert evidence adduced by the complainant could not explain how the sponge
    could enter the rectum, without causing any injury. Furthermore how could
    the patient live for about four months as the sponge bad completely
    blocked the exit.(anus).


    The
    State Commission held that in order to prove medical negligence, for a can
    take up the case of :(i) apparent negligence or (ii) negligent act proved
    by expert opinion as laid down by the 
    Supreme Court in India Medical Association v. V.P. Shantha. If the
    complainant had failed to produce any such evidence, no relief can be
    granted to the complainant.


    Dr.
    Harbilas, who removed the sponge stated he could not explain the source of
    entry of the sponge in the rectum, and it was for the complainant to
    explain.


    This
    was accepted by the State Commission. Ipse dixit of the complainant in
    such like matters cannot be accepted to hold the charge of negligence on
    the part of the doctor in such circumstances.


    The
    State Commission came to the conclusion that the complaint was frivolous,
    and dismissed it with cost of Rs.1000/-.

      

    34)    Dr.
    (Mrs) Rashmi B.Fadnavis
    & Anr. v. Mumbai Graha K. Panilayat & Ors.

     



             
    1998(3)
    CPJ 21:1998 (3) CPR (NCDRC)

    Mrs.
    Meena Pilankar was suffering from uterine fibromyometrosis and was advised
    hysterectomy by Dr. (Mrs.) Rashmi B. Fadnavis. After 

    necessary tests Dr.
    Shekhar Ambradekar (Cardiologist) declared her fit for surgery. Thereafter
    she was operated upon in the Nursing Home of 

    Dr. Fadnavis, but
    unfortunately she died on the operation table itself. Complaint was lodged
    before the Maharashtra State Commission alleging 

    negligence in the
    treatment rendered by Dr. (Mrs.) Rashmi Fadnavis (Opposite Party No.1) 
    Dr. Bhalchandra Fadnavis (OPNo.2) and Dr.(Mrs.) 

    S.S. Kalekar
    (OPNo.3), anaesthetist. The State Commission held OP No. 1& 2 guilty
    of medical negligence but exonerated 
    the anaesthetist 

    (OPNo.3). Opposite parties No.1 & 2 were asked
    to pay jointly and severally Rs. 255355/- to the complainant. The
    complainant appealed to the 

    National Commission against the exoneration of
    the anaesthetist and also prayed for higher compensation. The National
    Commission set aside 

    the order of the State Commission with regard to
    exoneration of the anaesthetist and held him also liable and observed in
    its earlier order dtd. 

    15.2.1996 in Mumbai Grahak Panchayat v. Dr. (Mrs.)
    Rashmi B. Fadnavis & Anr as under:




      

    Even
    if the services of the Anaesthetist were hired by opposite party No.1,
    then also the deceased happened to be the beneficiary of medical 

    services
    of the Anaesthetist and hence a ‘consumer’ and that services of the
    Anaesthetist are invariably paid for by patients themselve, their 

    charges
    being generally shown separately in the bill. Section 2(1)(d) of C.P. Act
    defines ‘consumer’ as one who hires or avails of any services for 

    a
    consideration, this definition does not refer to any privity of contract
    for that purpose.Similarly section 2(1)(g) defines deficiency in service
    as 

    fault imperfecton or short coming or inadequacy in the quality, nature
    and manner of performance which is required to be maintained by or under 

    any law for the time being in force or has been undertaken to be performed
    by a person in pursuance of a contract or otherwise in relation to any
    service. The words in pursuance of a contract or otherwise in the section
    make it amply clear that a privity of contract is not needed for a claim
    to be 

    made under C.P.Act, so long as there is hiring or availing of
    services for a consideration. Thus the Anaesthetist who participated in
    the process 

    of delivery  of
    medical services to the beneficiary is as much liable as the main 
    surgeon herself if her negligence had been established.




     

    But,
    the National Commission agreed with the finding of the State Commission
    that in this case the Anaesthetist was not negligent and hence not

     liable
    to pay compensation. In the present appeal by Dr. (Mrs.) Rashmi B.
    Fadnavis & Anr. against the award of compensation the National
    Commission in

     its decision dated 4.9.1998 held:




     

    The shifting of the patient from the Vikas Kendra Hospital in
    Andheri (a big hospital) to the small Nursing Home of Dr. Fadnavis
    was not
    on insistence of husband of the deceased. The appellants failed miserably
    to impress upon the husband to procure three bottles of blood and make
    them available before the operation started;


     


      

    The duration of surgery of about seven hours went beyond the
    estimated time;

    since the duration of any surgery is uncertain, this makes it all
    the more essential for the doctors to be prepared for any likely
    contingencies;




      

    The patient was having a same blood group (A Rh negative) and was
    weighing 124 kg a ‘morbid obesity’ patient, and the risk involved in
    such cases was well known and is foreseeable. And yet, the appallents did
    not make requisite essential arrangements in the Operation Theatre for
    managing a potential risk surgery, eg. keeping adequate units of blood,
    machine operated artificial respiration, adequately long needle for an
    intra-cardiac injection knowing 

    patient was obese ,etc.




      

    The appellants totally failed in taking those essential steps
    resulting in the death of the patient on the table, and confirmed the
    order of the State Commission holding the opposite parties 1 and 2
    negligent and awarding compensation of Rs.255355/- and costs of
    Rs. 5000/-
    to be paid by them jointly and severally and dismissed the appeal.

     

    35)     
    Nirmala R. Parab & Anr. v. Dr. Kalpana Desai & Ors


              
    1998(3) CPJ 66:
    1998(3) CPJ 527 (Mah. SCDRC)


    The complainant’s
    daughter underwent Caesarean operation in Opposite Party’s hospital but
    she never recovered from anaesthesia and continues to live in a vegetative
    state.




     

    The 
    complainant alleged that inappropriate doeses of spinal anaesthesia
    were used, and the hospital had lack of adequate facilities for 

    resuscitation. The State Commission held that when, in the initial stage,
    complaint was lodged before the Medical Council no such grievance wa 

    made,
    and hence the allegations are an after thought and are not bona fide.




     

    The
    State Commission also observed that patients have the tendency to blow out
    of proportion the grievance against the doctor. When the patient does not
    recover the patient pronounces that doctors are responsible for his
    ill-health. They spare no opportunity to blame the reputation of the
    doctor. In this case the father of  Ashwini
    approached Medical Council, approached also the Press and Video Media thus
    tried to injure the reputation of the doctors.

     

    It
    was also held that appropriate treatment was given at the appropriate time
    and the complaint was dismissed.




     

    36)    
    Arun Kumar Mishra & Anr
    v. Dr. Purshottam Singh

     



             
    1998(3)
    CPJ 573 (Bihar SCDRC)

     


    The complainant’s wife
    who had pregnancy of about six months had spontaneous abortion and
    dilatation and evacuation was done in the clinic 

    of 1st opposite party.
    She  subsequently developed
    complications and had to be operated to remove pus from the abdomen. 
    It was alleged that 

    during surgery uterus was removed without their
    consent, and the operation itself was performed negligently due to which a
    hole was formed in 

    the intestine and she again developed serious
    complications and was taken to the nurising home of opposite party No.2
    who again operated 

    upon her, but allegedly without proper investigations
    and skill due to which she continued to suffer and had to be re-operated
    elsewhere for her 

    recovery.

     

    Considering
    the entire circumstances of the case and the evidence of Dr.K.N. Sinha,
    Head of the Department of Surgery where the patient was 

    finally operated,
    it was held that there was no negligence and the complaint was dismissed.




     

    37)    
    M. Subramani & Ors v. 
    Christu Jothi Hospital & Anr

     



             
    1998(3)
    CPR 428 (NCDRC)

     






    The complainant’s wife
    underwent a Caesarean operation, but allegedly due to lack of
    post-operative care she died. 

    It was contended that the uterus should have
    been removed to stop the bleeding but rthe doctor failed to do so. The
    State 

    Commission held that this argument was not put forth in the
    complaint and before the District Forum. It was for the first time that it 

    was  argued and therefore it
    refused to accept this point. It also held that blood was arranged before
    the operation, and upheld the 

    decision of the District Forum of dismissing
    the complaint.




     


    38)    
    Vinitha Asok v Lakshmi Hospital and Ors

           
    1992 (2) CPJ 372 (NCDRC)

       In the case of the complainant alleged that obstetrician and
    gynaecologist of the 1 st opposite party negligently 

     removed her uterus . After examining all the evidence on record the
    National Commission held that :

    • it
      was a case of cervical pregnancy;

    • use
      of lamenaria tent for dilating cervix instead of dilapan is not a
      negligence as it is one of the accepted 

      standard procedures;

    • as
      the complainant was bleeding profusely she needed an emergency
      operation which was carried out with due

       care , circumspection, professional skill and competence;
      and 

    • in
      case of emergency , the operating doctor has wider discretion about
      the treatment , since the bleeding could not be controlled even 

      by
      evacuation of the products and since the patient was sinking , an
      emergency hysterectomy was performed.

       


      Complaint Dismissed.

    39)   
    Smt Rina Prakash v Dechi Ganpati & Ors

       
            1.1994 (3) CPJ 358 (Karnataka
    SCDRC)

    It
    was alleged that the opposite party had left behind a sponge in
    the abdomenafter  Caesarian operartion, leading to
    complications . The 

    sponge had to be removed elsewhere. The state
    commission held that there was insufficient evidence that the
    sponge was found at the second 

    operation . The operation theatre
    sister who was the most important witness to this fact was neither
    examined nor her name was disclosed.

      Complaint was dismissed with costs assessed at Rs 1000/- .

      

    40)  
    K. Vasanth v Teja Hospital

          
    1993 (1) CPR 20 (TN SCDRC)

    It
    was alleged that during the early stages of patient’c second
    pregnancy she suddenly fell ill and was taken to Teja Hospital; where the doctor diagnosed her to be a case of missed
    abortion and D&C  (Dilatation  & Curtteage) 
    was done
    The abdominal pain and bleeding stopped , and she was discharged
    the same day . after 16 days she developed pain abdomen and came to the hospital where pelvic scan was asked for
    and the doctor sought who felt it was a case of ruptured  ectopic pregnancy and advised laprorotomy . She
    preferred to go to CMC vellore where a diagnosis  of
    ” Chronic rupture ectopic pregnancy (right) ” was made and
    right salpingo- ophercory was performed and she recovered. The court declared that though it was true the doctor
    had diagnosed the case as one of missed abortion where as this was
    a case of chronic ectopic pregnancy in the fallopian tube ,
    negligence was not established on the basis of what is said
    in Williams Obstetrics: “The chronic ruptured ectopic:…These cases present the most
    atypical manifestations . Since these are of various gradations between the acute and chronic ruptures , it is
    understandable that tubal pregnancy may be associated  with a
    wide and often 

    confusing variety of clinical features.

        

    Diagnosis : Prompt diagnosis in ruptured tubal pregnancy is
    most important. Indeed, it is a failure to make the
    correct diagnosis  promptly that 

    accounts for most deaths in
    this condition. Unfortunately however, there is no  other
    disorder in the field of obstetrics and gynaecology that 

    presents
    so many pitfalls. For example  if many reports of ectopic
    pregnancy were surveyed, the preoperative features of ruptured
    tubular 

    pregnancy is shown to be wrong in about 15-20 %
    cases.(emphasis supplied by the state commission.)”

     

     



     

         

      
    Medicolegal
      

      

    Obstetric Gynaecology
      

    1)   Digvijay Sinh A.Zala v. Dr. Narendra T. Vani & Ors

         1995(1)CPJ 186 (Guj.SCDRC) 

    Trupti, wife of the complainant was 8 months pregnant and had consulted Dr. Vani. On 24.5. 1992 Trupti developed fever but Dr. Vani could not be contacted. Wife of Dr. Vani also a doctor, suggested Metacin tablets. Next day in the evening Dr. Vani prescribed Resochin and Digene. On 26.5.92 temperature shot upto 1061 F. Physician was called, who suggested certain tests. Reports of these tests were given to Dr. Vani over the phone and more treatment was advised. On 27.5.92 patient became worse and at 6am Dr. Vani was contacted who advised that she should be taken to a physician as it was a case not falling under his specialty. At 2.30 PM taken to physician who advised immediate admission, but Trupti died before anything could be done to her. No negligence was held on the following grounds:

  • Dr. Vani came to know over the phone that urine contained bile salts and bile pigments she advised to contact some physician, as it was not a case under his specialty.

  • No evidence produced as to establish that the treatment given was not proper.

  • There was no evidence as to how Trupti died. No post-mortem has been made and therefore real cause of her death was not known. 

  • 2)   Kanaiya Prasad G. Mishra & Anr.v. Dr. (Mrs.) Tanumati G. Shah

    The complainant (1st complainant’s wife) was operated for removal of right Adnexa. It was alleged that in fact her left Adnexa was bulky and should have been removed with consent. The State Commission held that consent had been taken in writing and standard procedure was followed according to the circumstances. No evidence adduced by the complainant to prove her contentions. Complaints dismissed.

    3)   Jitendra Nath v. Dr.(Mrs.) Manju Geeta Mishra & Ors

         1995 (2) CPJ 96 (Bihar SCDRC)   

    The complainant’s wife Mrs. Bibha Nath was taken to Dr. Mrs. Manju Geeta Mishra’s Nursing Home on 13.8.91 with labour pains. Considering her history of two previous abortions, breech presentation of present pregnancy, rupture of membrances and EDD (expected date of delivery) 11.9.91, after taking consent, Caesarean was done within 2 hours of admission. After 10 to 12 hours of birth the child developed breathing difficulty and was referred to a paediatrician – Dr. Kumar’s Nursing Home – where the child died after 2 days.

    It was alleged that Dr.(Mrs) Mishra had not called any child specialist to attend the baby after delivery, despite knowing that the delivery of the child was premature by about three weeks. Child was underweight (2.3 kg) and after delivery Dr.(Mrs) Mishra took up another Caesarean instead of attending to the child. Child was wrapped in an unsterilized towel. She failed to clean the tongue and the throat of the child and also failed to make the child cry, which she should have done due which the child had respiratory difficulty and deficiency of oxygen resulting in asphyxia. The complainant also filed criminal cases against Dr. (Mrs.) Mishra u/s.304, 304-A IPC and against Dr. Kumar u/s. 304, 304 A and 504 IPC. The Judicial Magistrate after examining the complaint and two more witnesses recorded that no prima facie case is made out and there is no sufficient ground for proceeding and hence dismissed both the cases. The complainant has filed revision before the Hon’ble High Court, Patna against this order. State Commission held that as a matter of policy and principle where the subject matter of the complaint is subjudice before ordinary courts, a concurrent adjudication in respect of the same should not be conducted under the Act, as held by the National Commission in Special Machines v. Punjab National Bank and Santosh Sharma v. State Bank of India. For these reasons the complaints were dismissed.   

    1. 1991(1) CPJ 78:1991(1) CPR 52(NCDRC)

    2. 1991(2) CPJ 262:1991(1) CPR 103 (NCDRC)

    3. The decision of the State Commission in this case is not in line with the National Commission’s decision in Punjab National Bank v. K.B. Shetty, 1991(2) CPR 633: 1991 (2) CPJ 639 (NCDRC) wherein it was held that where the case is subjudice in a criminal court it cannot be maintained that the complaint could not be entertained by the State Commission on the ground that the case was subjudice and under investigation by the Metropolitan Magistrate.

    4)   S.B. Venkatappa v. Dr. Kasthuri S. Shallikeri & Anr

         1995(2) CPR 80 (Karn SCDRC)

    The complainant’s wife was examined after admission for delivery, by 1st opposite party, who found that a dead baby was in the womb. It was alleged that during surgery tubectomy was done without consent, and also due to negligence of the surgeon she subsequently developed complications and died.   The State Commission held that there was clear evidence to the fact that the complainant had agreed for Caesarean and tubectomy as well. The Commission did not accept the grievance of the complainant that the word ‘tubectomy’ had been subsequently added. While taking the signature of the complainant on the consent form duty staff nurse was present and had been examined. The State Commission also held that she was discharged on 12.2.1992, but was admitted in another hospital on 23.6.1992 and the cause of death reported was “irreversible spetic shock”. There was no material evidence to show that deceased, subsequently to discharge after operation, suffered any ailment connected with operation till she was admitted in other hospital. Hence it was very difficult to hold that the death was in any way connected with the operation, and dismissed the complaint.

    5)   Dr. N.Lalitha Krishna v. Deepa Nair

          I(2000)CPJ340

    Consumer Protection Act, 1986-Section 15-“Appeal”-Section14(d)-“Compensation”-Complainant got MTP  conducted from opposite party-Foetus intact-Second MTP conducted-Complaint-District Forum granted  Rs. 8,000/- as compensation-Appeal-Not a reasonable way to assess the compensation-Opposite  party directed to pay back medical charges-Consolidated compensation of Rs. 5000/- granted.

    Held: We find that award of Rs. 500/- per day for 16 days is not reasonable way of assessing the compensation for trauma, mental agony and physical pain suffered by the complainant. We are of the  view that the compensation is for the failure of the abortion conducted by the appellant because  of which the complainant who was desirous of having MTP effected to undergo the operation for a  second time. Under the circumstances the complainant can have only one set of charges which she  had to pay extra for having abortion affected on her. We are of the view that it would suffice if  the appellant is required to pay back the medical charges incurred by the complainant for the  unsuccessful MTP operation performed by her i.e of Rs.1,200/- She need not be required to pay the  further sum of Rs.850/- paid by the complainant for having MTP (wanted by her) effected  successfully. We are of the view that a consolidated compensation of Rs.5000/- would be adequate  for the deficiency in service on the part of the appellant and the consequent mental agony and  suffering undergone by her for having an MTP on her a second time. The complainant shall also have  Rs.500/- towards costs of this appeal to be paid by the appellant.

    Result: Appeal partly allowed.

    6)   Smt. Jaiwati v. Parivar Seva Sanstha & Anr.

          2000(1)CPR 538 S C DRC, New Delhi

    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical Negligence – Test to determine – Whether doctor had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with reasonable care.
     
    Held : Thus, in order to decide whether negligence is established in any particular case, the act or omission or course of conduct complained of must be judged not by ideal standards nor in the abstract, but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with reasonable care. Merely because a medical procedure fails, if cannot be stated that the medical procedure fails, it cannot be stated that the medical practitioner is a guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden o proving the same rests upon the person who asserts it. The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill. There is not question of warranty, undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. A defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharged of his duty of care that he should use the highest degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence.
     
    (ii) Consumer Protection Act, 1986 – Sections 12 and 17 - Medical negligence – Complainant under went MTP and sterilisation  at clinic of opposite party on 26-5-1992 – Later on she was found pregnant and was reported to have conceived on 1st  July, 1992 – Claim for compensation – All methods of female sterilisation, including tubal ligation have certain failure is inherent in the procedure – Opposite party could not be held guilty of negligence mererly because procedure had failed .
     
    Result : Complaint dismissed
     

    Complaint: Averring that after paying the necessary charges, she, on 26.5.1992, had undergone MTP  and Sterilization at the Shahdara Clinic of opposite party (hereinafter referred to as the opposite party No.

    • The operation in question, as per the case of the complainant, was performed by OP-2 and after the operation, a certificate of sterilisation, was issued to complainant. It is further averred that on 15.10.1992, the complainant, thereafter went for medical check-up Swami Dayanand Hospital, Shahdara on 3.1.1993 and after checking the complainant, the concerned doctor, in her report, stated that the complainant had conceived on 1st July, 1992 and the probable date of delivery was stated as 8th April, 1993. For the above alleged negligence on the part of the OPs, the complainant, in the present complaint, has claimed a sum of Rs.3,00,000/- on account of compensation and medical expenses. The complainant has also  prayed that the opposite parties be directed to provide treatment to the complainant free of charge at at he time of delivery and , thereafter, till the complainant becomes normal.

    • Opposite Party-1 has contested the claim of the complainant. In the written version. fled on behalf of opposite party-1, certain preliminary objections have been taken with regard to the maintainability of the complaint. It is stated in the reply/written version of opposite party-1 that the complaint field by the complainant is false, grossly misconceived as there has been no negligence on the part of the OPs. It is stated in the reply that the present case virtually is a case of sterilization failure.
       
      The complainant  and also opposite party-1 have filed their respective affidavits by way of evidence.
       

    7)   Vijay H. Mankar v. Dr.(Mrs.) Mangla Bansod

          I(2000)CPJ37(NC)

    Complainant alleges medical negligence on the part of a lady doctor-Alleges paid charges for treatment-Opposite party denied that allegations and contended that she did not receive any fee because of close relationship-Whether the doctor has rendered services free of cost?-(No)-Whether there is a negligence on the part of the doctor?-(Yes).

    Held: The preliminary objection of the opposite party is that she has not received any payment as consideration from the complainant and that ,therefore ,’service’ rendered in the case is not covered by Section2(1)(0)of the Consumer Protection Act. However, in the order of the Supreme Court, Indian Medical Association v. V.P. Shantha & Ors., III(1995)CPJ1(SC), it has been inter alia stated that services rendered by a non-Government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered services free of charge would fall within the ambit of the expression ‘Service’ as defined in Section2(1)(o) of the Act. It is true in the present case, opposite party’s averment is that fees were not charges because the patient could not afford to pay. Although in their order, the Supreme Court have not distinguished a case of ‘free’ service because the patient could not afford to pay. Although in their order, the Supreme Court have not distinguished a case of ‘free’ service of the kind a in the case of hand, the spirit of their order is that expenses incurred for providing service free of charge to certain patients are met out of income earned by the doctors/hospitals from services rendered to paying patients and in this view of the matter the non-paying patients are beneficiary of the services which are hired or availed of by he paying patients. That apart, the Supreme Court observed that all persons who avail of the services of doctors are to be treated on the same footing irrespective of the fact that some of them pay for the services and other avail the same free of charge. Also, the complainant had deposed that opposite party had not given receipt for fees paid and that opposite party told his mother-in-law on 31.5.1990 that she would give consolidated receipt for all payments, after delivery. The mother-in-low has filed an affidavit to this effect. In view of the aforesaid discussion, this point need not detain us from proceeding with the adjudication of the complaint on merits.

    8)   Abdulla Modiwala and Ors. V. G.D. Birla Memorial Health Centre and Ors
      
          State Consumer Disputes Redressal Commission Madhya Pradesh : Bhopal

    Consumer Protection Act, 1986 – Sections 17, 2(1)(g) and 14(1)(d) - Medical negligence – Complainant’s with suffering from bleeding – Advised to undergo TCRE operation theatre – Declared dead - Complaint – Unless there is expert opinion that there was negligence or recklessness – Cannot be said that medical man acted negligence – Burden of establishing negligence on complainant – In absence of production of expert evidence indicating negligence opposite parties cannot be held to be negligent in their services in treating patient – Complainant failed to substantiate his contention by any kind of expert opinion or evidence or medical literature.
     
     Except this affidavit of the complainant himself, there is no evidence or any body’s affidavit supporting these contentions of the complainant as quoted above. No medical literature in support of the contents of the affidavit has been furnished. The entire statement quoted above is purely technical and can be given only by a person expert in medicines, who possesses knowledge of medicine and surgery and anaestheasia. The complainant has stated in his affidavit that he is given this affidavit on the basis of “personal Knowledge”. Since the complainant is not a medical man he cannot give this statement on the basis of personal knowledge and when he cannot give such statement on the basis of personal knowledge such a statement is not admissible in evidence. Besides this, the complainant has been absent continuously for about ten hearings right from 11-12-1998. On 13-8-1999 a note-sheet was also recorded that “the complainants be sent a notice that they are also given an equal opportunity to either send their written arguments after receipt of reply in rebuttal, from opposite parties or to appear in person or through their Counsel for the final argument in view of opposite party’s rebuttal reply, if any filed by them”. On 4-9-1999 the learned Counsel for the opposite party submitted an application requesting to cross-examine the complainant. Notice were issued to the complainant as well as his counsel for appearance. But still nobody turned up. Thus the opposite party could not get an opportunity of cross-examining the complainant.
     
    On the other hand, we find that the opposite parties who are well qualified doctors have submitted affidavits of their own in support of their contentious and also filed – medical literature as to why it is not fluid over flow, why pulmonary embolism, supported by photocopy of medical literature. Opposite party No.3- Dr. Smt. Marwaha has stated that she has done M.D. in anaesthesia from Pune. Opposite party No. 2 has stated that he has received special training for TCRE in Germany and he has done number of courses in Frances and Germany . On behalf of opposite party No .1 , Dr. R. Sonar, Medical Director of the opposite party No. 1 has furnished his affidavit, stating that he was present during the operation. He has stated that since the diagnosis was clear, biopsy and sonography were not considered as necessary. The photocopy of bed head ticket filed contains complete case history of the deceased Smt. Jahida. It starts with words ” Consent – no major illness in past”. Every 15 minutes, recording of the condition of the present was done right from 10:45 a.m. . It is at 12.45 that suddenly the pulse became low. Blood pressure became 160 II and the patient started struggling and gasping. At 1.00 froth started coming out of the mouth and nose. Patient was declared dead at 1.20 p.m. The cause of death was Pulmonary Embolism. Strepto kinase is a drug which is given to dilute/dissolve the clotting to prevent cardiac arrest, if there is a clot in the coronary artery. Cardiac arrest was on account of Pulmonary Embolism.
     
    It has been held in Darshani Devi v Rajashri, that unless there is expert opinion that there was negligence or recklessness, it cannot be said that the medical man acted negligently. In II (1992) CPJ 764 (NC), it has been that the burden of establishing negligence is on the complainant.
     
    In case of Sethuramani subramanium Iyer v. Triveni Nursing Home and Anr, the Hon’ble National Commission has held that in the absence of production of any expert evidence indicating negligence, the opposite parties cannot be held to be negligent in their services in treating the patient.
     
    In Dr. Laxman Joshi v Dr. Trimbak Bapu, it is held that “negligence can be attributed to a surgeon only if his mistake are of such a nature as t imply absence of reasonable care and skill on his part”.
     
    Since the complainant has failed to substantiate his contentions by any kind of expert opinion or evidence or medical literature, we dismiss the complaint with no order as to costs.
     
    Complaint dismissed.
      
      
    9)    S.B. Kadkol v. Dr. N. Chandrashekara & Ors.
     
           2000 (1) CPR 131, SCDRC Karnataka
     
    Complainant’s daughter was operated for ovarian cyst – At the fag end of operation she suffered cardiac arrest and she was shifted to another hospital where she died after 8 days – Opp. party hospital was alleged not adequately required to meet emergent situation and doctor who administered anesthesia was negligent - Standard of care expected of medical man – Law expects him to exercise reasonable care expected of a skilled medical practitioner – Test dose before anesthesia is administered is not necessary – Nothing was produced before Commission to create a nexus between the dose administered and melody suffered – No evidence to show that there was any remissness on part of opp. party No. 1 anesthetist to revive cardiac arrest – Opp. party hospital had the Boyles apparatuses and as such non-availability of automatic ventilator would not amount to any lapse or deficiency – No Intensive Care Unit in hospital could not be considered such a lapse as to amount deficiency in service - Negligence or deficiency in service on part of opposite party could not be held established by acceptable evidence.
      
      
    10)    Dr. C.V. Mathew v. P. Babu
     
             I(2000) CPJ 134 SCDRC, Kerala
     
    Opposite party fell below the standard of a reasonably competent practitioner – M.T.P. done without prescribed qualification at hospital not recognized for doing it – No attempt made to ascertain the reason of ailment – Possibility of incomplete evacuation not considered - Negligence on part of opposite party proved - Complainant entitled to get compensation along with interest.
      
     
    11)    Syed Zahid Ali v. Dr. Jaiprakash Paliwal
     
             I(2000) CPJ 129, SCDRC, M.P.
     
    Non-removal of Gauge from Inside the Body – Reasonabale care not exercised at the time of operation - No evidence of second operation removing gauge piece given – No document filed in support of contention – False complaint filed - Complainant liable to pay cost.
     
    We direct that complainant shall pay to the opposite party cost of Rs. 2,000/- for filing this false and frivolous complaint against the opposite party.
     
     
    Compliant Dismissed.
     
     
    12)   Dr. P.N. Bhaskaran v. Mrs. Molly Robinson


     
            I(1999) CPJ 81, SCDRC, Kerela.
      
    Pregnancy Termination – Product Not Obtained - Deficiency in Service – Compensation - Second surgery conducted – Product obtained – Forum awarded compensation – Appeal – Possibility of missing product when pregnancy terminated upto 6 weeks of pregnancy – Patient advised to repeat D&C – No negligence or deficiency in service on part of opposite parties – Complainant not entitled to compensation.
     
     
    13)  
    Janki S. Kumar v. Mrs. Sarafunnisa
     
            I (1999) CPJ 66, SCDRC, Kerela
     
    Sterilization Done Without Consent – Deficiency in service- Compensation – Contention, consent obtained during course of surgery, not acceptable - Person giving consent must be aware of risk involved – Patient under general anesthesia neither can understand the risk involved nor could give the consent – Complainant entitled to compensation.
       
      
    14)   SURINDER KUMAR (LADDI) v. DR.SANTOSH MENON
     
             III (2000) CPJ 517
     

    Consumer Protection Act, 1986 – Section 2(1)(g) – Deficiency in Service – Medical Negligence – Onus of Proof – Complainant’s wife gave birth to child – Caesarean operation by doctor – Wife died - Complaint alleging medical negligence – No expert evidence – No post-mortem got conducted – Every unsuccessful operation cannot be considered as negligent act of doctor – Onus of proof of negligence is heavily on complainant – Complainant failed to prove negligence.
     
    Held: There is no evidence much less expert evidence produced on behalf of the complainants that the treatment given to the patient during this period was below the prescribed standard or otherwise not upto the standard skilled. Dr. Santosh Menon from time to time called physician from outside to have second opinion in the matter of providing treatment to the patient, whose condition was deteriorating and accordingly such treatment was given. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. Each failure or unsuccessful operation cannot be considered as a negligent act of the doctor. Something more is required to be established by the complainants to prove negligent act of the doctor. The present is not a simple case of medical negligence that this Commission could straightway give a finding of apparent negligence holding the opposite parties liable. Recently the Supreme Court in Indian Medical Association v. V.P.Shantha, 1996(1)CCJ1(SC)=III(1995)CPJ 1(SC), has laid down the principles to be kept in view while deciding the cases of medical negligence.  (Para 9)
     
    Held further: The complainants have failed to prove from any medical expert evidence that there was any negligent act on the part of the opposite parties in the matter of performing caesarean operation. It will not be out of place to mention here that though dead body was available with the complainants immediately after the death and they had gone to the Civil Hospital for approaching the Civil Surgeon and to the police, but surprisingly no post-mortem was got conducted to know the actual cause of death. The very fact that a criminal case was got registered, would have put the complainants to caution that they should have got post-mortem conducted to fasten liability on the doctors. The onus to prove negligent act on the part of the doctor is very heavy on the complainant. As held by National Commission in Sethuraman Subramaniam Iyer v. triveni Nursing Home and Anr. 1998CTJ 7, in the absence of such evidence regarding the cause of death and absence of any expert medical evidence, the complainants have failed to prove negligence on the part of the opposite parties. (Para 10)
     
    Result: Complaint dismissed with costs.
     
    Cases referred:
     
    1. 1996(1) CCj 1 (SC)=III(1995) CPJ 1 (SC).     (Para 9)
     
    2. 1998 CTJ7=I(1998) CPJ 10 (NC)                 (Para 10)
     
     

     
    Counsel for the Parties:
     
    For the Complainants : Mr. Ameet Awasthi, Advocate.
     
    For the Opposite Parties: Mr. Rajiv Bhalla, Mr. Rohit Khanna and Mr. Pardeep Bedi, Advocates.
     

    ORDER
     
    Mr. Justice A.L. Bahri, President- The present complaint has been filed by Surinder Kumar husband and Pinku, son of Paramjit Kaur, who is alleged to have died on account of negligent act of the opposite parties, doctors during the performance of caesarean section after delivery of a male child. They claimed RS. 15 lacs as compensation and costs of RS. 10,000/-.
      
    2. Dr. Santosh Menon, opposite party No. 1 is having a clinic at Batala. Opposite party No. 2 Dr. Bhaskar Menon is her husband, who is running eye clinic on the first floor of the premises whereas Dr. Santosh Menon is running her clinic on the ground floor. Opposite party No. 3 Dr. S.S. Johal, M.S. Orthopeadics assisted in the performance of caesarean operation consulted by Dr. Santosh Menon, New India Assurance Company was impleaded as a party vide order dated March 26,1998 from whom opposite party Nos. 1 and 2 had obtained insurance policies. Surinder Kumar, complainant being under mental shock, he appointed his brother Tarsem Lal as attorney through whom the complainant was filed.
     
    3. On October 13, 1996 Paramjit Kaur @ Pinky married Surinder Kumar and started living at Batala. She took up a job as STD/PCO Operator with Shiv Property Dealer, Batala on a monthly salary of Rs. 1200/-. She is a graduate. She becomes pregnant and started getting regular check-ups at the clinic of opposite party Nos. 1 and 2. Routine check-ups were prescribed from time to time and medicines and injections were prescribed. There was normal development of foetus. This happened during the month of May to June 1997. On July 4, 1997 she developed labour pain and was admitted in the clinic by opposite party No. 1, Dr. Santosh Menon. After some tests were performed it was informed that it would be a case of normal delivery. As per  reports Annexure C-2, haemoglobin level on blood test was found to 9.6g/ %. On July 5, 1997 at about 7.25 p.m. a male child was delivered. A sum of Rs. 2000/- towards fee was charged by Dr. Santosh Menon. It was given out by the doctor that the delivery was normal and the attendants could go. Hence all the family members left the clinic at 9 p.m. Mother and the child were shifted to another room where Surinder Kumar was sitting. They were directed to arrange for Rs. 18,000/- stating that the delivery was not normal and was through caesarean operation for which charges were Rs. 20,000/- in all and a discount of Rs. 2,000/- was being given. The family members were shocked to know that there were complications. A sum of Rs. 10,000/- was immediately paid. At about 9.15 p.m. Swinder Kaur came rushing to the house in great tension and informed that few bottles of blood were required. The entire family of 14-15 members and persons of the locality reached the clinic. 9 Units of blood was made available. At about 11.35 p.m. Dr. Bhaskar Menon informed about the death of Paramjit Kaur. Dr. Parminder Singh Cardiologist, Dr. Ranjit Singh had been called by the opposite parties. When they came out of the clinic they had told that the patient had died. The body of Paramjit Kaur was handed to over to the complainant. Certificate of Death Annexure C-3 was also handed over. When the attendants  demanded the case file the same was not handed over by opposite party Nos. 1 and 2. Subsequently, the same was given. Report with the police was lodged. With the intervention of local M.L.A. Sh. Jagdish Raj Sahni, opposite party Nos.1 and 2 were arrested, on the basis of F.I.R. No. 55 dated July 7, 1997, copy Annexure C-5. The allegation of the complainant was that the death of Paramjit Singh occurred on account of negligence of opposite party Nos. 1 and 2. Copies of the newspaper cuttings were also filed reporting the registration of the case and the arrest as a foresaid. Negligence is attributed to the opposite parties on the ground that the opposite parties were not qualified and equipped to carry out caesarean operation and they adopted unfair trade practice and allegation of deficiency in rendering service was leveled. Some of the grounds specifically were taken such as that the level of haemoglobin was below the level required for carrying out the caesarean operation; no prior arrangement for blood was made before the operation; the opposite parties-doctors were not specialist in Gynae. Dr. Johal, opposite aprty No. 3 was M.B.B.S. (Orthopaedics) and was not competent to carry out the operation, which was got conducted by opposite party Nos. 1 and 2 from him. There was no qualified doctor to administer anaesthesia. Such an operation could not be carried out without availability of oxygen and nitrogen gases. The only Gynae expert M.D. Ms. Nijjar, who was summoned. It was the duty of the doctors to advise post-mortem on the dead body and immediately information was required to be sent to the S.D.M. of the area by the opposite parties. During the operation, blood artery was cut resulting in the death. The opposite parties filed reply to the complaint denying the assertions of the complainant. The Insurance Company filed separate version. Preliminary objections were taken by the doctors. The disputed questions were taken by the doctors. The dispute questions were involved that the matter could be decided by the Civil Court. No cause of death was mentioned in the complainant to ultimately connect the opposite parties. No findings in this respect could be arrived at in the absence of conducting of post-mortem. Opposite party No. 2 was an eye specialist and was having a separate clinic on the first floor though in the same premises. He has no concern with the maternity clinic run by opposite party No.1, against him the complaint was stated to be false and malicious. The complainant had forcibly taken away the records of the hospital. An application before the Commission was filed for directing the complainant to produce such records whereas the complainant admitted having taken away only a register. Opposite party Nos. 1 and 2 were insured with the Insurance Company aforesaid for a sum of Rs. 5 lacs and 2 lacs respectively, particulars of the policies were given. On merits it was denied that the deceased was working as STD/PCO Operator. She was stated to be housewife and was not doing any job. Patient was normal and the development of the foetus was also normal. No such assurance was given that the delivery would be normal. With respect to the facts, it was asserted as under:
     
    “The patient was admitted on 4.7.1997 and respondent No. 1 had no cause to doubt that the delivery would be normal. In fact, the clinical examinations had not revealed any likelihood of complications that would cause a caesarean operation. When the deceased came to the hospital, she was already in pain, i.e. labour and after admission, she was kept under observation. At the time when she came to the hospital, apart from the mild pains, she had a leaking membrane. The patient was administered a Inducing Drip, so as to induce labour. Thereafter, she was kept under observation, but she did not deliver till 5.30 p.m. on 5.7.1997. When she was observed on 5.7.1997 at about 5.30 p.m. there was factual distress, meconium passed, meaning thereby that the life of the foetus was in danger and the foetus has passed meconium. In this situation, the question before the respondent No. 1 was to save there was danger to the life of the deceased. In such a situation in order to save the life of the foetus, the doctor is required to perform an emergency caesarean operation. For that purpose, the attendants of the deceased were asked to arrange one unit of blood as the answering respondent No. 1 had decided to conduct a caesarean operation upon the deceased so as to save both, the deceased and the foetus. At this stage, the deceased was also undergoing forceful contractions, which indicated to the answering respondent No. 1 that in case she did not conduct a caesarean operation, the uterus may rupture. The answering respondent No.1 did all this in good faith and with no malafide intention or in negligence.”
     
    xxx   xxx   xxx   xxx   xxx   xxx
     
    “After the caesarean operation, which was successful performed a male child was delivered at about 7.15 p.m.”
     
    xxx   xxx   xxx   xxx   xxx   xxx
     
    “At about 8.30 p.m. the patient was examined and there was slight bleeding of about 50-70c.c. per vagina. The requisite drugs were administered to the patient, the bleeding stopped and thereafter, one unit of blood, which had already been arranged by the complainant has transfused to the patient after due cross matching.”
     
    xxx   xxx   xxx   xxx   xxx   xxx
     
    “One unit of blood was requested and supplied at the time of caesarean operation and 2 units were requested at 9.45 p.m. and supplied thereafter. In all 2 units of blood were transfused to the patient.”
     
    xxx   xxx   xxx   xxx   xxx   xxx
     
    “At about 9.00 p.m. the blood pressure and pulse of the patient were well-maintained, abdomen was soft and did not suggest of any grave medical emergency. At about 9.20 p.m., the patient developed hypotension, blood pressure 80/50, pulse 110 p/mt. and the patient was little restless. Emergency treatment was given to the patient in the form of injection Mephentine 1cc intravenously and oxygen started. Haemoccele drip was started. Thereafter, the patient was repeatedly examined, the abdomen was soft, uterus contracted and there was no bleeding per vagina. At this stage the respondent No. 1 called in Dr. Parminder Singh, M.D. Medical Specialist who examined the patient. He advised that we should start a Dopamine drip and to continue blood transfusion, oxygen and I/V fluids intravenously. Dopamine 1 Amp. In 500 c.c. was started.
     
    At about 9.45 p.m., blood pressure of the patient was still 80 / 50, the respondent No. 1 asked the attendants to arrange for 2 bottles of blood. By about 10.15 p.m. haemoccele (one bottle) and one unit of blood had been given. In order to transfuse the blood quickly, venesection was done and the and the second unit of blood started Dopamine drip, I/V fluids and oxygen were going on, but the condition of the patient was not improving.
     
    That thereafter, respondent No. 1 called for Dr. R.S. Kalsi, M.D. Specialist for second opinion alongwith Dr. Parminder Singh. Both of them examined the patient when the blood pressure was 80 / 50, pulse 120/mt., respiration 24 p.mt., abdomen soft, uterus contracted and firm. The doctors advised higher antibiotics, i.e. Inj, Fortum and Injection Hydrocortisone. The above injections were given after test done.
     
    At about 11.00 p.m. the patient suddenly became breathless, and restless, B.P. 70 / 40, pulse 140 p.mt., tachycadia, respiration rate 32 p.mt abdomen soft, but per vaginal examination revealed no bleeding. Hydrocortisone Injection again given, oxygen continued.
     
    At about 11.15 p.m., blood pressure dipped and became unrecordable. Patient became restless and cyanosed and then suddenly she went into cardio respiratory arrest. External cardiac message started immediately. Injection Adrenaline 0.5 ml and injection Nikethamide were given, intra cardiac. Dr. Parminder Singh was again called. In the meantime, all efforts of Ext. cardiac message and artificial respiration were made to save the patient. Before Dr. Parminder Singh reached, the patient had no pulse, no respiration. Dr. Parminder Singh also did external cardiac message but all efforts to revive the patient failed. The patient was declared dead at 11.35 p.m.”
      
    4. Opposite party No. 1 only received a sum of Rs. 1,000/-. Other allegations received fees were denied. It was further pleaded that there was great altercation after the death and under pressure opposite party No. 1 was asked to prepare a writing that the caesarean operation was done from Dr. Johal. The subgrounds taken up in the grounds were specifically denied that there was no rule prohibiting M.B.B.S. doctors from performing caesarean operation. Dr. Johal was stated to be a surgeon and entitled to assist in such an operation. The Insurance Company in their written statement admitted having issued two insurance policies as referred to above. At the time of arguments, Counsel for the Insurance Company submitted in writing that the act of Dr. Johal was not covered under the insurance policies.
      
    5. On behalf of the complainant affidavit of Tarsem Lal was produced and he was cross-examined. He referred to the documents, copies of which were produced. Affidavit of Ashwani Kumar was also produced to the effect that she was drawing Rs. 1,200/- as salary from him, who was proprietor of of M/s. Shiv Property Dealer, Batala. On the other hand Dr. L.K. Dhaliwal, Addl. Professor, P.G.I. Chandigarh was produced by the complainant as an expert. On the other hand Dr. Santosh Menon produced her affidavit and she was cross-examined. Affidavit of Shashi Sekri, Vijay Kumar Sharma, Kuldip Kaur, Brij Nath Thukral, Gurdial Singh Randhawa, Gurdial Singh, Naranjan Singh and Bhiro were produced, who had stated having their children successfully delivered at the clinic of  Dr. S.S. Johal, opposite party No. 3 was also produced and he was cross-examined. The respondent also produced documents. We have heard Counsel for the parties. The following question requires consideration in the present case:
      
    1)      Whether M.B.B.S. doctor could perform caesarean operation for delivery of a child.
      
    2)      Whether the child was delivered through caesarean operation by opposite party No. 1 Dr. Santosh Menon or by Dr. S.S. Johal.
      
    3)      Whether Paramjit Kaur died on account of the opposite parties in the matter of caesarean operation conducted on her ?
      
    4)      To how much compensation if any, the complainants are entitled to and against which of the opposite parties?
      
    5)      Relief.
      

    Question No. 1:
      
    6)   At the outset it may be stated that none of the Counsel for the parties referred to any statute, rule, regulation or instruction of any Authority on the subject of persons qualified to perform caesarean operation in the matter of delivery of a child. Even Dr. L.K. Dhaliwal, Addl., Professor, P.G.I. who appeared as CW-2 could not refer to any such statute or rules. A specific question was put to her on behalf of the complainant as to whether M.B.B.S. doctors were competent to perform operation. Her reply was in the negative and according to her DGO or the M.D. in the subject of Obstetrics and Gynaecology would make the one eligible to carry out the caesarean operation. During cross-examination she stated that she was not aware of any statute or rules prohibiting M.B.B.S. doctors from performing caesarean operation. It was during the training that she gained knowledge that M.B.B.S. doctors should not perform major operation, but she did not know of any rules or statute prohibiting or permitting M.B.B.S. doctors to do caesarean operation. But she admitted that surgery was one of the subjects taught at the M.B.B.S. course. According to her a Gynaecologist, who has taken training in the subject of gynae and obstetrics could do so. She did not know if a doctor who had done house job will be a qualified gynaecologist or such person could practice gynae, but she further stated that the assistant state that the assistant doctor in the team for performing caesarean operation need not to be a gynaecologist, but should be a medical doctors. With respect to leproscopy and hysterectomy, the same could be performed by M.B.B.S. having done in 1969 and completed intership at Amritsar Medical College and studied medicines, surgery, ENT, anaesthesia during the course. She had done one house job at Civil Hospital, Jalandhar in 1970-71 and two years job at Tej Bahadur Sapru Hospital, in Gynae Deptt. and from 1972 to 1988 at M.L. Sarin Maternity Hospital, Batala. The said hospital was founded by her and she is doing private practice at Circular Road, Batala. She has produced copy of her M.B.B.S certificate Annexure 3 to her affidavit as issued by the Punjab University authorising her to practise medicines, obstetrics and surgery. Two certificates issued by Indian Association of Gynaecological Endoscopies have also been produced dated October 12, 1998 and October 9, 1988 having attended the hysterescopy training and leparoscopy training course. Some other certificates were also produced regarding her experience while working in Civil Hospital, Jalandhar. An another certificate was produced from Dainik Prathana Sabha, Batala certifying that she had conducted 3322 delivery case during her working in MLCD Sanan Maternity Hospital and Nursing Home, Batala run by the Sabha during the period from 27.12.1976 to May, 1990. Another certificate by such a Sabha was also produced that all types of delivery cases including caesarean operation were conducted by her.
      
    Question No. 2:
      
    8)  Since on behalf of the complainants no one was present in the operation theatre / labour room, oral evidence of Tarsem Lal is not considered sufficient to record a finding that caesarean operation was infact conducted by Dr. S.S. Johal, opposite party No.3. On the other hand Dr. Santosh Menon had categorically stated that it was she who had conducted the caesarean operation and Dr. Johal had assisted her. Likewise Dr. Bhaskar Menon assisted her during the operation Dr. S.S. Johal was also categorically stated having assisted Dr. Santosh Menon in the caesarean operation. The main plank of the complainants is a writing purposed to be in the handwriting of Dr. Santosh Menon Ex. CW-1/B. The original as well as photocopy were so marked. The original was in the torn condition and had been submitted by rejoining it. The time of preparing of this writing is not disputed and the same was after the death of Paramjit Kaur when several persons had collected at the clinic of the opposite party No. 1. According to Dr. Santosh Menon, it was under coercion and pressure of the mob that she wrote it, but she did not sign it. No evidential value to this document can be attached to such writing when tensions were high on account of death o Paramjit Kaur, and the same were prepared. Otherwise no record of the hospital are available to opine or give a firm finding that it was Dr. Johal, who had performed the caesarean operation. The very fact that this document was torn either at that very time or subsequently would indicate that it was not to be acted upon. When it was not got signed from opposite party No. 1, much importance cannot be attached thereto. Furthermore, there was no question for calling Dr. Johal to perform caesarean operation when Dr. Santosh Menon had earlier performed such like many operations during her long professional career. Then it is held that opposite party No.1 Dr. Santosh Menon performed caesarean operation on Paramjit Kaur.
      
    Question No. 3:
      
    9)   With respect to the stages of the admission of Paramjit Kaur upto her death, the complete data has been given in the written statementby the opposite party as reproduced above. There is no evidence much less expert evidence produce on behalf of the complainants that the treatment given to the patient during this period was below the prescribed standard or otherwise not upto the standard skilled. Dr. Santosh Menon from time to time called physician from outside to have second opinion in the matter of providing treatment to the patient, whose condition was deteriorating and accordingly such treatment was given. It will not be out of place to mention that doctors only treat whereas it is in the handsome of the Almighty to cure. Each failure on unsuccessful operation can not be considered as a negligent act of the doctor. Something more required to be established by the complainants to prove negligent act of the doctor. The present is not simple case of medical negligence that this Commission could straightway give a finding of apparent negligence holding the opposite parties liable. Recently the Supreme Court in Indian Medical Association v. V.P. Shantha, 1996 (1) CCJ 1 (SC)=III (1995) CPJ 1 (SC), has laid down the principles to be kept in view while deciding the cases of medical negligence. In para 37 of the judgment, it has been observed as under:
      
    “It is no doubt true that sometimes complicated questions regarding recording of evidence of expert may arise in a complaint about deficiency in service based on the ground on negligence in rendering medical service by a medical practitioner but this would not be so in all the complainants about deficiency in rendering services by medical practitioner. There may be cases, which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong patient or giving injection of a drug to which the patient is allergic without looking into the Out-patient Care containing the warning [as in Chin Keow Government of Malaysia, 1967 ACJ 209 (England)] or use of wrong gas during is course of an anaesthetic or leaving inside the patient swabs or other item of operating equipment after surgery. On often reads about such incidents in the newspaper. The issue arising in the newspapers. The issue arising in the complainants in such cases can be speedily disposed of by the procedure that is being followed by Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief.”
      
    Question No. 4:
      
    Since the complainant have failed to prove question No.2 referred to above, it is not necessary to determine this question.
      
    Complainant dismissed with costs.
      

    15)      Baby Ramya represented by her father K.Raji Reddy v.Dr.(Mrs.)Aruna Reddy & Anr.


              1, 1996(1) CPR 244 (APSCDRC)
      

    the facts of the case in brief as stated in the complaint were as follows:

     
      

    mother of the baby Ramya got admitted in Dr. Mrs.Reddy’s Nursing Home on 6.5.1990 at 6.30 am for delivery;

     
    the child (baby Ramya) was delivered on same day at 10.20 pm weighing 4.5kg;

     
      
    baby Ramya was found not moving her right arm and parents were advised to consult a neurosurgeon who informed that the              complainant had right branchial palsy with Horner’s Syndrome;

     
      
    a neurologist and orthopaedician were also consulted who gave similar opinion, they also informed that such paralysis in babies occurs due
    to excessive traction (force) in the delivery of the shoulders.

     
      
    In the counter filed by Dr.(Mrs.) Reddy it was stated:

     
    mother was a case of pregnancy induced hypertension;

     since patient did not progres till evening another doctor’s opinion was sought who suggested Caesarean section, but patient refused to undergo Caesarean;

    · the labour which had been induced by Oxytocin drip had to be discontinued as BP continued to be 160/100 despite treatment; when the amniotic fluid was found to be meconium (green) stained, Caesarean was suggested, but was refused by patient; during delivery, the head of the baby, was spontaneously delivered, but the patient did not co-operate with the shoulder delivery;

    as the baby was turning blue, there was danger of baby getting asphyxiated and even dying, the doctor had to apply traction for delivery of shoulders;

    the patient did not disclose that the first issue was forceps delivery, for then she would have insisted for Caesarean.

     
      
    A rejoinder affidavit filed by the complainant contended:

     
      
     it was not correct to say that the mother was having high BP the case sheet is silient with regard to temperature, BP and the plea that the nurse noted BP on white paper was concocted;

    · ultrasonography during pregnancy was never advised;

    ·  the supporting affidavits of other doctors to the effect that Dr. (Mrs.) Reddy had taken proper care in conducting delivery  were without any basis.

     
      
    The State Commission held;

     
      
    ·        Dr. Reddy’s contention that by mere clinical examination the size of the baby cannot be ascertained hence the treating doctor did not anticipate the need for Caesarean could not be accepted;

     
      
    ·        no proper case sheet was maintained;

     
    ·        patient was not referred for ultrasonography to assess size of baby;

     
    ·        patient was admitted at 6.30 am and delivery was effected at 10.20 pm when it was found that the delivery was difficult she should have done Caesarean section;

     
    ·        the contention that the patient refused cannot be accepted; consent of mother or husband of the patient who were present at the Nursing Home throughout could have been taken;

    ·        had Caesarean been done the injury to baby Ramya could have been avoided.

     
      
    ·        Mudaliar & Menon’s textbook  Clinical Obstetrics states that ‘Brachial palsy or Erb’s parly’ results from excessive traction in the delivery of the shoulders;

     
      
    ·        Dr. Vittal Reddy after thorough examination of the complaint stated in his affidavit that the birth injury could have been avoided, if proper care had been taken;

     
      
    ·        Dr.Rangachary, orthopaedician, in his affidavit, opined that the complainant was found to have Erb’s Palsy which was due to traction;

     
      
    ·        Dr. V.P. Patnaik, Professor of Forensic Medicine on perusal of the documents gave an affidavit stating that if the cause of distress was elicited before labour, and timely assistance to the mother and fetus were given by way of surgical interference, it could have prevented the Erb’s Palsy.

     
      
    Placing reliance on Dr. Patnaik’s statement and on consideration of material on records, the State Commission held that the doctor had not exercised due and reasonable care while conducting delivery. The complainant was awarded Rs.1.75 lacs towards general damages for pain and suffering and loss of use of right hand, but no special damages were awarded in the absence of any proof. Since Dr.(Mrs.) Reddy was insured, the insurance company was made second opposite party and both the parties were directed to pay the compensation jointly and severally.   

     
      

    16)       Dudhi Ben Navghanbai v. Dr. Ashok Bhai H.Pathak & Anr

     


                   1996 (2) CPR 69 (Guj SCDRC)

     
      

    the complainant alleged that the 1st opposite party had attempted to take child out from the uterus by using forceps and as a result her uterus ruptured. She had to get her uterus removed by another doctor.
      
    There was no evidence to support the allegation that the 1st opposite party had attempted to deliver the child by using forceps. The complainant admitted to having called a midwife who attempted to deliver the child, before consulting the 1st opposite party.

     
      
    The State Commission also held that there was no reason to discard evidence of 1st opposite party that he only examined the patient clinically and had advised to remove the patient to another hospital at Surendranagar as her condition was serious. Complaint was dismissed.
      
      

    17)          Consumer Protection Council & Anr v. Parul Clinic Maternity Home & Hospital & Ors.
                     1996(2) CPJ 157: 1996(1) CPR 585(Guj SCDRC)   
      
    the complainant No.2 was operated for a tumor (left sided tubo ovarian mass) and removal of uterus. Subsequently,she developed recto-vaginal fistula (RVF). The complainants alleged that the uterus was removed without her consent and due to negligence in operation RVF had resulted.
      
    The State Commission held that there was a written consent given by the complainant for removal of her uterus, and it further appeared from the Medical Authority (text book) which was cited in the deposition of Dr.C.B. Nagori (who was examined as an independent expert) that there is risk of recto-anal injury and formation of fistula (RVF) as a result of hysterectomy (removal of uterus) operation. Therefore, mere fact that there was RVF would not necessarily lead to the conclusion that the doctors were negligent in performance of operation.
        
    Allegation about unfair trade practice was not substantiated, and in any case compensation was not claimed on ground of unfair trade practice. The complaint was dismissed.
       

    16)     Sau. Madhuri v. Dr. Rajendra & Ors.
                1996(3)CPJ 75(NCDRC) 15)               
       
    Sau. Madhuri was operated upon by Dr. Rajendra and Dr. Kalpana of Shriram Clinic, Maternity and Nursing Home, Warud, District Amravati, for delivery of a Caesarean child under general anaesthesia. After the operation she continued to have pain in the abdomen, but nothing was done to alleviate her sufferings. She was shifted to Nagpur and admitted in the clinic of Dr. P.K. Tamaskar, who took an X-ray of her abdomen and found – Artery Forceps - inside her abdomen. She was operated upon by him and the forceps was removed from her abdomen. This was recorded in the operation notes.
      
    After going through the record the State Commission, Maharashtra concluded that Dr. Rajendra & Ors. had been negligent. Further as evident from the notes of Dr. Tamaskar, the artery forceps could not be pulled out because small intestine had entwined itself around the forceps, and therefore a part of the intestine had also to be removed. On this basis the Maharashtra State Commission awarded a sum of  Rs. 2000/- as compensation and also an amount of  Rs. 29175/- towards expenditure which the appellant had incurred for her treatment.
      
    The appeal filed by the complainant with the National Commission was on the ground that the compensation awarded by the State Commission at Rs.2000/- was a pittance considering the agony and disconfort suffered by her.           
       
    The Maharashtra State Commission had argued  that apart from Rs. 29175/- the  expenses incurred by the appellant, Dr.Rajendra had also paid Rs.15000/- to Dr. Tamaskar for performing the operation at Nagpur, and hence quantified the compensation at Rs.2000/-.
      
    The National Commission was of the opinion that no standard criteria can be prescribed for determining the amount of compensation in such like cases. Each case has to be judged by taking into account the attending circumstances and also the attenuating circumstances, if any. One has also to see the financial status of the doctor as well as the patient, age of the patient, the earning state of the patient, and any other relevant factor having a bearing on the case:
      
    The National Commission enhanced the compensation from Rs.2000/- to Rs.10000/- and also awarded Rs.2000/- as costs to the patient, in addition to Rs. 29197/- on account of expenditure.
      

    18) Rohini Pritam Kabadi v. Dr. R.T. Kulkarni
              1996(3) CPJ 441: 1996(1) CPR 142 (Karnataka SCDRC)  
       
    the complainant underwent Caesarean operation on 11.6.91 but thereafter she continued to have urinary trouble, severe pain abdomen and sometimes, fever. She continued to suffer till she underwent a second operation by another doctor on 14.10.92. A mass (as recorded in the report) was removed, and a metallic tip of the suction tube was found in the cavity of the mass. After this operation the complainant was relieved of her suffering.
      
    The State Commission on the basis of material placed on record held that the complainant had suffered physical pain and mental depression due to negligence of the opposite party. Serious mental distress is a killer ailment and can cause varieties of deadly ailments in human beings which can lead to death. A compensation of Rs. 2 lacs was awarded.
       

    16)    Sau. Madhuri v. Dr. Rajendra & Ors.
              1996(3)CPJ 75(NCDRC)
      
     Sau. Madhuri was operated upon by Dr. Rajendra and Dr. Kalpana of Shriram Clinic, Maternity and Nursing Home, Warud, District Amravati, for
     delivery of a Caesarean child under general anaesthesia. After the operation she continued to have pain in the abdomen, but nothing was done
     to alleviate her sufferings. She was shifted to Nagpur and admitted in the clinic of Dr. P.K. Tamaskar, who took an X-ray of her abdomen and
     found -Artery Forceps inside her abdomen. She was operated upon by him and the forceps was removed from her abdomen. This was recorded
     in the operation notes.
      
    After going through the record the State Commission, Maharashtra concluded that Dr. Rajendra & Ors. had been negligent. Further as evident from the notes of Dr. Tamaskar, the artery forceps could not be pulled out because small intestine had entwined itself around the forceps, and therefore a part of the intestine had also to be removed. On this basis the Maharashtra State Commission awarded a sum of  Rs. 2000/- as compensation and also an amount of  Rs. 29175/- towards expenditure which the appellant had incurred for her treatment.
      
    The appeal filed by the complainant with the National Commission was on the ground that the compensation awarded by the State Commission at
     Rs.2000/- was a pittance considering the agony and disconfort suffered by her.           
        
    The Maharashtra State Commission had argued  that apart from Rs. 29175/- the  expenses incurred by the appellant, Dr.Rajendra had also paid Rs.15000/- to Dr. Tamaskar for performing the operation at Nagpur, and hence quantified the compensation at Rs.2000/-.
      
    The National Commission was of the opinion that no standard criteria can be prescribed for determining the amount of compensation in such like cases. Each case has to be judged by taking into account the attending circumstances and also the attenuating circumstances, if any. One has also to see the financial status of the doctor as well as the patient, age of the patient, the earning state of the patient, and any other relevant factor having a bearing on the case:
      
    The National Commission enhanced the compensation from Rs.2000/- to Rs.10000/- and also awarded Rs.2000/- as costs to the patient, in addition to Rs. 29197/- on account of expenditure.
      
     
    17)          Vinubhai Parshottamdas Patel v. Dr.Vijay K. Ajmera
                     1997(1) CPR 348 (Guj SCDRC)   
      
    the complainant’s wife was admitted in the opposite party hospital and advised termination of pregnancy by operation of Dilatation and Evacuation. But after the operation she continued to have abdominal pain. She was taken to another hospital as there was perforation of the uterus and intestines.
      
    The State Commission, on the basis of evidence on record, held that there was gross negligence in the operation performed by 1st opposite party.
     Rs.2 lakhs compensation was awarded, (Rs.150000/- spent on medical treatment and Rs.50000/- as compensation for physical pain and mental
     anguish.
       
      
    18)     Meghdut Gordhanbhai Thakkar v. Dr.Anupama Vidhyut Bhai Desai 
    & Anr 
             1997(1) CPJ 503:1997(2)CPR 9 (Guj SCDRC) 
      
     the complainant’s wife was admitted for hysterectomy, but after surgery her condition deteriorated, kidney failure occurred and ultimately after 17 days she expired.
      
    The State Commission held that from the available records complainant had not proved any alleged irregularities in treatment or attendance or lac of reasonable care by any opponent. It is a sad fact that young life is lost but then it is an accident; a fatal chance-occurrence which was beyond control of treating doctors. As it seems whatever was possible by these doctors they did it(if they failed complainant has not proved it- he carries the burden to prove it because he alleges.)Just because patient died during treatment a doctor cannot be held responsible, partocularly  when the doctor has acted scientifically and adequately as it seems in this case. The complaint dismissed.
      
    19)     R. Longanathan v. Dr. Rani Mandakumar
               1997(1) CPR 486 (TN SCDRC) 
      
    the complainant’s wife underwent MTP with sterilization by the opposite party, but subsequently found that her pregnancy had continued and gave birth to a child at the end of eighth  month of pregnancy. 
      
    It was alleged that opposite party doctor failed to observe existence of two ovums in womb of his wife while performing MTP resulting in birth of a child.
       
    Opposite party contended that vigorous curretage and going into depth of uterus was not possible because of two previous Caesarean scars.  Patient was instructed to attend her clinic after the next period or if the period was not established, but she failed to follow this advice. MTP was done by suction evacuation method. If both foetuses were in the same uterine cavity both would have been evacuated by this method. One foetus had been evacuated and the other left behind because of the possibility that the two foetuses were in two separate cavities as in Biconuate uterus.
      
    The State Commision held that this could have happened because the doctor in good faith did not suspect the possibility of Bicornuate uterus, and on the basis of other evidence on record dismissed the complaint.
      

    20)     Joseph alias Ammon & Anr. v. Dr. Elizabeth Zachariah & Ors.
               1997(1) CPJ 96 (Kerala SCDRC)
      
    The complainant’s wife was admitted in the Benzigar Hospital, Kollam, under care of Dr. Elizabeth Zachariah. It was alleged that she conducted the Caesarean operation negligently resulting in damage to urinary bladdar, ureter and kidneys, for which the patient was shifted to Trivandrum, but ultimately she died after 2 months. 
      
    The State Commission held that there is no evidence of negligence during the operation. It was also averred in the complaint that wrong medicines were administered, but on basis of material evidence no case could be made of this allegation also, and dismissed the complaint.
      
      
    21)     Mayo Hospital v. Sunil Tiwari
     
              1997(3) CPJ 387:1997(3) CPR 574 (M.P. SCDRC)
      
    a chorion sampple for biopsy  was taken out from the womb of the complainant’s wife on 26.2.94 for which Rs.1200/-  was charged. Due to delay
     in transit of 2 days the sample was spoiled. Repeat biopsy was taken on 3.3.94 but this time also the sample reached Indore after 4 days and was not worth testing.
      
    The State Commission held that whenever a sample is taken for any test and charges for test are collected, it is implied that the delivery of test report will be the completion of “service” hired for charges paid. It was the bounden duty of the Mayo Hospital through Dr. Viraj Sharma to ensure timely transportation of the sample. Once the earlier sample had been destroyed, it was her moral duty not to charge for the repeat biopsy, but she did charge Rs.500/- and still did not take precautions for ensuring timely transportation. This is not only deficiency in service but gross negligence of inhuman nature when committed second time. The State Commission upheld the order of the District Forum which had awarded Rs.20000 as compensation and also directed to refund Rs. 1700/- collected as fees, and dismissed the appeal of the hospital.
      

    22)    Devendra Kantilal Nayak & Ors. v. Dr. Kalyani  Ben Dhruv Shah & Anr.
              1997(1) CPJ 103 (Gujarat SCDRC)   
      
    was taken to opposite party No. 1 for Caesarean operation, delivered a child, but did not regain consciousness shifted to another hospital and 
    ultimately died in early hours next day. Post-mortem was done on the insistence of the complainant.
      
    It was stated by the opposite parties that the patient was a known case of placenta previa grade 3.  Patient was advised operation on 3.8.93 but 
    refused, and when she came on 5.8.93 she was bleeding profusely. Blood was arranged, and she was taken up for emergency Caesarean, under
    spinal anaesthesia. Other gynecologists was called to help as an “abundant caution”. All measures to stop oozing from the placental bed were 
    taken and when all was thought well, the abdomen was closed. Since the patient’s condition despite 8 units of blood continued to deteriorate it 
    was decided to shift her to another hospital. Removal of uterus was felt not necessary. Report of post-mortem was not correct and mala fide. 
    Request for joining the Insurance Co. was made which was granted by Commission.
      
    The port-mortem report stated that:
      
    -……the patient had 1.8 litres of haematoma in peritoneum. Uterus was bulky, plenty of  blood clots seen around the suturing in various planes. 
    Some branches of uterine artery showed ante-mortem cuts and they were not ligated and there was large haematoma around it .Uterus was 
    reparied deficiently. The cause of death is shock as a result of intra-abdominal haemorrhage following negligent surgical procedure and repair. 
    Histopathological reports are non-contributory.-
      
    -Opinion” by Dr.R.M. Jhala was produced, but it was not clear who and why and in what capacity his opinion was asked. Dr. Jhala was neither 
    examined nor he made any statement regarding  present case. Innumerable medical references were given but none  of them was comparable to 
    the present situation and the State Commission held that it served no purpose for the complainant or opponent, and seemed to be an exercise in 
    futility. 
      
    There were material  differences in statement of Dr Shah opposite party No.1 and Dr. Patel, anaesthetist. Dr. Shah said patient was serious on 
    arrival and blood pressure was low, Dr. Patel said patient was fit and normal. Dr. Shah said patient had bleeding per vagina but Dr. Patel denied 
    the same. Dr. Shah had produced two sets of xerox copies of case papers, but no original copies were presented. There was no clarification as to 
    how there was disparity in both papers.
      
    Dr. Lilaben Trivedi was called as a witness because she was chair-person of Committee appointed by Medical Council of Gujarat who had also 
    nstituted inquiry in the present case. Dr. Trivedi admitted knowing Dr. Jhala but the Committee was not knowledgeable about the report of Dr 
    Jhala. Dr. Trivedi utterly failed to explain why and how so many paragraphs of Dr. Jhala’s report were incorporated in Committee’s report ditto to 
    ditto with no change even in coma or full stop. The State Commission inferred that the Committee prepared its report on basis of Dr. Jhala’s report 
    and did not apply its mind or investigated as was expected .
      
    Dr. Shah inspite of request failed to present himself for cross-examination by complainant and therefore  his statements remained unproven and 
    were not accepted as evidence. No independent, uninvolved (directly or indirectly) expert was called to confirm the claims of Dr. Shah or to refute
     the charges of complainant.
      
    The State Commission did raise some doubt regarding the post-mortem report as far as writing the mode of death was concerned, viz., the cause 
    of death is shock as a result of  intra-abdominal haemorrhage following negligent surgical procedure and repair, but held that the other findings 
    wre corroborative evidence, sufficient to conclude that the patient died because of exsanguination which, with due diligence and advance 
    precaution, could have been prevented.
      

    In assessing compensation, the value of benefit of services to the complainants was assessed  at Rs. 12000/- p.a. Multiplier of 15 was applied 
    making it 180000/- Rs.20000/- for loss of expectancy of life and Rs. 10000/- for pain, shock and suffering of the deceased. Rs.25000/- was 
    awarded for the costs of treatment. Thus the total compensation worked out to Rs. 235000/- together with interest @ 12% p.a. from date of 
    complaint till realisation Rs.5000/- was awarded in addition as costs to the complainants.
      

    24)     Case of Uma v. Dr. Nishu Kharbanda & Anr.
                 1997(2) CPJ 580 (Haryana SCDRC)
      
      
    the complainant underwent M.T.P. but pregnancy still continued and she gave birth to a male child. The opposite  party pleaded it was a case of 
    incomplete abortion as it could be a case of twin pregnancy. Further, the complainant had been visiting her subsequently but at no point of time 
    she ever asked for termination of second pregnancy. The State Commission dismissed the appeal and upheld the order passed by the District 
    Forum which dismissed the complaint as there was no deficiency in service.
      
               1997 (2) CPR 160 (Karnataka SCDRC)
      
    the complainant underwent operation for removal of ovaries (bilateral oopherectomy).  On third day  she developed abdominal distention, pain and 
    fever. X-rays of abdomen were done, but allegedly the opposite parties failed to diagnose intestinal obstruction, resulting in worsening of her 
    condition and ultimately she was shifted to Command Hospital, Bangalore where she was diagnosed as a case of intestinal obstruction with 
    perforation and peritonitis and underwent second surgery.
      
               1997(2) CPJ 355 (Punjab SCDRC) 
      
    the complainant alleged that due to wrong administration of spinal anaesthesia during Caesarean operation by the opposite parties she developed
     meningitis. This had to be treated elsewhere .
      
               1997(3) CPJ 81 (NCDRC)
      
    Chand Bibi w/o complainant was operated upon for removal of uterus. During the post operative period, despite reported medical advice she 
    consumed the cream, Roti, Meat and Dal, puri and fried egg. Her uterus disrupted and had to undergo an emergency operation to close the 
    abdomen, but patient died next day.
      
               1997(3) CPJ 165 (Kerala SCDRC)
     
             it was held that:
      
    ·        though the Thiruvalla Medical Mission Hospital is a charitable institution and was run under a Trust Deed, but as the treatment done was on
     payment of consideration, which is on record;
    ·        the complainant’s wife underwent Caesarean operation, but a large sponge was left behind as was proved by the evidence of the doctor 
    who removed it and also from the C.T. Scan report. The scrub nurse was responsible for counting the sponges and negligence was held on her 
    part. The hospital as employer was vicariously held liable to compensate but as the hospital was insured, the Insurace Company was asked to pay
    compensation amount of Rs.98506/- to the complainant.
      
     
    29)   Pallattu George & Anr.v. Dr. Thamkamma Punnoose & Anr.
             1997(3) CPJ 341 1997 (3) CPR 167(Kerala SCDRC) 
      
    the complainant’s wife was admitted for third delivery in the hospital of  Dr. Thankamma Punnoose.   A provisional diagnosis of threatened rupture
    of the previous Caesarean scar, fetal distress and deep transsexual arrest was made, and after explaining the complications that may arise 
    following surgery, consent was obtained. After preliminary investigations emergency Caesarean section was done and baby was extracted. Five 
    days after discharge she developed incontinence of urine, urinary fistula was suspected  and an indwelling Foley’s catheter was put in . But the 
    complainant alleged that another doctor of Dr T.Punnoose Hospital told her husband and that some injury was caused to the urine bag at the time
     of operation and that was the reason for the discharge of urine.
      
    The court held that the complainant had not adduced any evidence to show that there was any negligence on part of the opposite parties and 
    dismissed the complaint.
      

    30)     Rajni Bansal v. Dr. D. C. Mittal & Ors.
     
              1997(3) CPJ 511(Haryana SCDRC)   
        
    according to the complainant, she was operated upon for delivery of her child in the opposite party’s hospital. As her pain persisted, she 
    underwent X-ray and ultrasound and the report opined “inflamatory mass foreign body inside”. For that she was again operated upon by the 
    opposite parties but was not relieved of her pain. Ultimately she got admitted in the P.G.I. Chazndigarh, where she was again operated and it was 
    reported that some segment of guaze piece was found in the body. It was taken out and found to have fresh and smooth margins. Aggrieved 
    against that the complainant had filed this complaint.
      
    The opposite parties in their written reply said that the histopathology report of the inflammatory mas revealed tuberculosis. The patient never 
    turned up. The State Commission upheld the finding of ‘no negligence’ by the District Forum on the basis of the record and the fact that the report
    of the PGI  at Chandigarh and the final analysis made there had clearly shown that the segment of the gauze piece taken out had quite fresh and 
    smooth margins. The possibility of the complainant having received medical treatment at some other places i.e. other than that of the respondents
    at Jagadhri could not be ruled out.
      
    Under the circumstances the court found no merit in the appeal and dismissed the same.  
         
                             
      
    31)     Anup Kumar Jana v. Dr. Pabitra Chatterjee
     
              1998(1) CPR 693, (WB SCDRC)
      
    Smt. Jana who was carryin 29 weeks 4 days pregnancy, started having dribbling of liquor and severe bleeding. Immediate blood transfusion was 
    given, and emergency Caesarean operation was done. Child born was premature and severely asphyxiated and died.
      

    32)    Prem Nath Hospital v. Poonam Mangla & Anr.

     


              1998(2) CPJ 205 (Haryana SCDRC)  

    The complainant alleged that due to lack of proper care by Dr. K.Bala of Prem Nath Hospital she delivered prematurely a female child weighing 
    1.25 kg having nephrology problem. After 2 days, as the condition of the baby deteriorated, the baby was admitted to Pushpanjali Hospital of 
    Gurgaon where she did not show any improvement despite incubator care and ultimately expired on the next day.              

    In her reply, Dr. K. Bala denied lack of proper skill and care. The complainant was running very high blood pressure, it was a high risk case. The 
    possible complications were clearly explained to the complainant and her husband. It was further pleaded that the baby was revived and 
    resuscitated by highly eminent, experienced and skilled paediatrician Dr. Prem Nath and subsequently managed by him. The complainant and 
    her husband themselves decided to shift the baby to pushpanjali  Hospital. According to pushpanjali Hospital, despite the best medical attention 
    given to the complainant and her baby it was unfortunate that due to respiratory distres syndrome and hyaline membrane disease , the baby did 
    not survive and that the treatment of incubator, oxygen and drip did not help.

    During the trial of the complaint, Dr. Vanita Bhatnagar, OBS Gyne. of Civil Hospital, Dr.Lt. Col. Yashpuri and Dr. Jai Kishan Yadav appeared as 
    witnesses but they opined that though at the time of delivery the facility of incubator is useful but in the absence of incubator temperature can still
     be maintained by other means by radiant heat warmers, hot water bottles and cotton pads etc. No evidence in support of any dificiency in the 
    rendering of medical service, remissness or negligence on the part of Dr. K. Bala of Prem Nath Hospital or Pushpanjali Hospital, Gurgaon had 
    been produced on the basis whereof it could be inferred that the baby had expired due to any deficiency etc. Despite all this, the learned District 
    Consumer Forum allowed the complaint by awarding compensation of Rs.25000/- to the complainant with Rs.5000/- as litigation expenses 
    against the Prem Nath Hospital, but dismissed the complaint against the Pushpanjali Hospital.

    The State Commission after hearing the parties and having gone through the records set aside the order of the District Forum on the following 
    grounds

     

            the order passed by the District Forum is not based on any evidence regarding any deficiency in providing medical services;

              the medical opinion of the three doctors does not suggest any deficiency;

     

               but for this misfortune, the doctors cannot be held liable.

      

    33)    Mrs. Satwant Kaur v. Dr. Kanwaljit Kaur


              1992(2) CPR 458 (Chandigarh SCDRC)

    After a Caesarean section followed by tubectomy, pain abdomen persisted. She was operated by another Doctor Harbilas in another hospital who recovered a cotton sponge from the rectum.

    Ex pert evidence adduced by the complainant could not explain how the sponge could enter the rectum, without causing any injury. Furthermore how could the patient live for about four months as the sponge bad completely blocked the exit.(anus).

    The State Commission held that in order to prove medical negligence, for a can take up the case of :(i) apparent negligence or (ii) negligent act proved by expert opinion as laid down by the  Supreme Court in India Medical Association v. V.P. Shantha. If the complainant had failed to produce any such evidence, no relief can be granted to the complainant.

    Dr. Harbilas, who removed the sponge stated he could not explain the source of entry of the sponge in the rectum, and it was for the complainant to explain.

    This was accepted by the State Commission. Ipse dixit of the complainant in such like matters cannot be accepted to hold the charge of negligence on the part of the doctor in such circumstances.

    The State Commission came to the conclusion that the complaint was frivolous, and dismissed it with cost of Rs.1000/-.
      

    34)    Dr. (Mrs) Rashmi B.Fadnavis & Anr. v. Mumbai Graha K. Panilayat & Ors.

     


              1998(3) CPJ 21:1998 (3) CPR (NCDRC)

    Mrs. Meena Pilankar was suffering from uterine fibromyometrosis and was advised hysterectomy by Dr. (Mrs.) Rashmi B. Fadnavis. After 
    necessary tests Dr. Shekhar Ambradekar (Cardiologist) declared her fit for surgery. Thereafter she was operated upon in the Nursing Home of 
    Dr. Fadnavis, but unfortunately she died on the operation table itself. Complaint was lodged before the Maharashtra State Commission alleging 
    negligence in the treatment rendered by Dr. (Mrs.) Rashmi Fadnavis (Opposite Party No.1)  Dr. Bhalchandra Fadnavis (OPNo.2) and Dr.(Mrs.) 
    S.S. Kalekar (OPNo.3), anaesthetist. The State Commission held OP No. 1& 2 guilty of medical negligence but exonerated  the anaesthetist 
    (OPNo.3). Opposite parties No.1 & 2 were asked to pay jointly and severally Rs. 255355/- to the complainant. The complainant appealed to the 
    National Commission against the exoneration of the anaesthetist and also prayed for higher compensation. The National Commission set aside 
    the order of the State Commission with regard to exoneration of the anaesthetist and held him also liable and observed in its earlier order dtd. 
    15.2.1996 in Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi B. Fadnavis & Anr as under:


      
    Even if the services of the Anaesthetist were hired by opposite party No.1, then also the deceased happened to be the beneficiary of medical 
    services of the Anaesthetist and hence a ‘consumer’ and that services of the Anaesthetist are invariably paid for by patients themselve, their 
    charges being generally shown separately in the bill. Section 2(1)(d) of C.P. Act defines ‘consumer’ as one who hires or avails of any services for 
    a consideration, this definition does not refer to any privity of contract for that purpose.Similarly section 2(1)(g) defines deficiency in service as 
    fault imperfecton or short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under 
    any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. The words in pursuance of a contract or otherwise in the section make it amply clear that a privity of contract is not needed for a claim to be 
    made under C.P.Act, so long as there is hiring or availing of services for a consideration. Thus the Anaesthetist who participated in the process 
    of delivery  of medical services to the beneficiary is as much liable as the main  surgeon herself if her negligence had been established.


     
    But, the National Commission agreed with the finding of the State Commission that in this case the Anaesthetist was not negligent and hence not
     liable to pay compensation. In the present appeal by Dr. (Mrs.) Rashmi B. Fadnavis & Anr. against the award of compensation the National Commission in
     its decision dated 4.9.1998 held:


     
    The shifting of the patient from the Vikas Kendra Hospital in Andheri (a big hospital) to the small Nursing Home of Dr. Fadnavis was not on insistence of husband of the deceased. The appellants failed miserably to impress upon the husband to procure three bottles of blood and make them available before the operation started;

     

      
    The duration of surgery of about seven hours went beyond the estimated time;

    since the duration of any surgery is uncertain, this makes it all the more essential for the doctors to be prepared for any likely contingencies;


      
    The patient was having a same blood group (A Rh negative) and was weighing 124 kg a ‘morbid obesity’ patient, and the risk involved in such cases was well known and is foreseeable. And yet, the appallents did not make requisite essential arrangements in the Operation Theatre for managing a potential risk surgery, eg. keeping adequate units of blood, machine operated artificial respiration, adequately long needle for an intra-cardiac injection knowing 
    patient was obese ,etc.


      
    The appellants totally failed in taking those essential steps resulting in the death of the patient on the table, and confirmed the order of the State Commission holding the opposite parties 1 and 2 negligent and awarding compensation of Rs.255355/- and costs of Rs. 5000/- to be paid by them jointly and severally and dismissed the appeal.
     

    35)      Nirmala R. Parab & Anr. v. Dr. Kalpana Desai & Ors
              
    1998(3) CPJ 66: 1998(3) CPJ 527 (Mah. SCDRC)

    The complainant’s daughter underwent Caesarean operation in Opposite Party’s hospital but she never recovered from anaesthesia and continues to live in a vegetative state.


     
    The  complainant alleged that inappropriate doeses of spinal anaesthesia were used, and the hospital had lack of adequate facilities for 
    resuscitation. The State Commission held that when, in the initial stage, complaint was lodged before the Medical Council no such grievance wa 
    made, and hence the allegations are an after thought and are not bona fide.


     
    The State Commission also observed that patients have the tendency to blow out of proportion the grievance against the doctor. When the patient does not recover the patient pronounces that doctors are responsible for his ill-health. They spare no opportunity to blame the reputation of the doctor. In this case the father of  Ashwini approached Medical Council, approached also the Press and Video Media thus tried to injure the reputation of the doctors.
     
    It was also held that appropriate treatment was given at the appropriate time and the complaint was dismissed.


     

    36)     Arun Kumar Mishra & Anr v. Dr. Purshottam Singh

     


              1998(3) CPJ 573 (Bihar SCDRC)

     

    The complainant’s wife who had pregnancy of about six months had spontaneous abortion and dilatation and evacuation was done in the clinic 
    of 1st opposite party. She  subsequently developed complications and had to be operated to remove pus from the abdomen.  It was alleged that 
    during surgery uterus was removed without their consent, and the operation itself was performed negligently due to which a hole was formed in 
    the intestine and she again developed serious complications and was taken to the nurising home of opposite party No.2 who again operated 
    upon her, but allegedly without proper investigations and skill due to which she continued to suffer and had to be re-operated elsewhere for her 
    recovery.
     
    Considering the entire circumstances of the case and the evidence of Dr.K.N. Sinha, Head of the Department of Surgery where the patient was 
    finally operated, it was held that there was no negligence and the complaint was dismissed.


     

    37)     M. Subramani & Ors v.  Christu Jothi Hospital & Anr

     


              1998(3) CPR 428 (NCDRC)

     



    The complainant’s wife underwent a Caesarean operation, but allegedly due to lack of post-operative care she died. 
    It was contended that the uterus should have been removed to stop the bleeding but rthe doctor failed to do so. The State 
    Commission held that this argument was not put forth in the complaint and before the District Forum. It was for the first time that it 
    was  argued and therefore it refused to accept this point. It also held that blood was arranged before the operation, and upheld the 
    decision of the District Forum of dismissing the complaint.


     

    38)     Vinitha Asok v Lakshmi Hospital and Ors
           
    1992 (2) CPJ 372 (NCDRC)
       In the case of the complainant alleged that obstetrician and gynaecologist of the 1 st opposite party negligently 
     removed her uterus . After examining all the evidence on record the National Commission held that :

    • it was a case of cervical pregnancy;

    • use of lamenaria tent for dilating cervix instead of dilapan is not a negligence as it is one of the accepted 
      standard procedures;

    • as the complainant was bleeding profusely she needed an emergency operation which was carried out with due
       care , circumspection, professional skill and competence; and 

    • in case of emergency , the operating doctor has wider discretion about the treatment , since the bleeding could not be controlled even 
      by evacuation of the products and since the patient was sinking , an emergency hysterectomy was performed.
       
      Complaint Dismissed.

    39)    Smt Rina Prakash v Dechi Ganpati & Ors
       
            1.1994 (3) CPJ 358 (Karnataka SCDRC)

    It was alleged that the opposite party had left behind a sponge in the abdomenafter  Caesarian operartion, leading to complications . The 
    sponge had to be removed elsewhere. The state commission held that there was insufficient evidence that the sponge was found at the second 
    operation . The operation theatre sister who was the most important witness to this fact was neither examined nor her name was disclosed.
      Complaint was dismissed with costs assessed at Rs 1000/- .
      

    40)   K. Vasanth v Teja Hospital
          
    1993 (1) CPR 20 (TN SCDRC)

    It was alleged that during the early stages of patient’c second pregnancy she suddenly fell ill and was taken to Teja Hospital; where the doctor diagnosed her to be a case of missed abortion and D&C  (Dilatation  & Curtteage)  was done The abdominal pain and bleeding stopped , and she was discharged the same day . after 16 days she developed pain abdomen and came to the hospital where pelvic scan was asked for and the doctor sought who felt it was a case of ruptured  ectopic pregnancy and advised laprorotomy . She preferred to go to CMC vellore where a diagnosis  of ” Chronic rupture ectopic pregnancy (right) ” was made and right salpingo- ophercory was performed and she recovered. The court declared that though it was true the doctor had diagnosed the case as one of missed abortion where as this was a case of chronic ectopic pregnancy in the fallopian tube , negligence was not established on the basis of what is said in Williams Obstetrics: “The chronic ruptured ectopic:…These cases present the most atypical manifestations . Since these are of various gradations between the acute and chronic ruptures , it is understandable that tubal pregnancy may be associated  with a wide and often 
    confusing variety of clinical features.
        
    Diagnosis : Prompt diagnosis in ruptured tubal pregnancy is most important. Indeed, it is a failure to make the correct diagnosis  promptly that 
    accounts for most deaths in this condition. Unfortunately however, there is no  other disorder in the field of obstetrics and gynaecology that 
    presents so many pitfalls. For example  if many reports of ectopic pregnancy were surveyed, the preoperative features of ruptured tubular 
    pregnancy is shown to be wrong in about 15-20 % cases.(emphasis supplied by the state commission.)”
     

     

     

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