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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:

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

 

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;

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.

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 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)

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.

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:

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.

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.)”