What
is Law     Right
of Doctors     Responsibilities    
Negligence    
Consents     Records    
Cases

       

Legislations    
Medical
Ethics      FAQ’s

   

    

Obstetric
& Gynaecologist

      

  • Revathy
    & Anr,. v. Dr. Chandra & Anr.

    2001 (1) CPR 600

       

    Sections 12 and 17 – Complaint
    alleging deficiency in service in
    conducting delivery of child of
    complainant by doctor – Relief claimed
    was Rs.2 lakhs spent on the birth of
    child and Rs.8 lakhs by way of
    compensation – Use of forceps by
    doctor during delivery was alleged to
    have caused internal injury to child
    and consequently puss developed in
    joints of child – Material could not
    be said prima facie pointing out
    jurisdiction of Commission – No
    evidence that Rs.2 lakhs was spent on
    treatment of child – No details
    pleaded for compensation of Rs.8 lakhs
    appeared purposely escalated – Total
    amount spent and quantum of
    compensation could not go beyond
    pecuniary jurisdiction of Dist. Forum
    – Complaint was liable to be returned
    to be presented before Dist.Forum.

    (Para 6)

    Result : Order accordingly.

      

    Counsel for the parties:

       

    For the Complainants: Mr. T. Mathi,
    Advocate

      

    For the Opposite Parties : None.

       

    ORDER

        

    M. S. Janarathanam, President –

    This action has come up for admisision
    before us today. We have perused the
    averments in the complaint and also
    the documents filed alongwith it. Such
    documents filed alongwith it. Such
    perusal reveals the following factors:

        

    (1) The 1st complainant Revathy
    is the mother of the 2nd complainant
    M.Indu, minor. During her pregnancy,
    it appears, she took treatment with
    the 1st opposite party – Doctor
    Chandra who is the proprietor of the
    2nd opposite party – Chandra Hospital.
    The 2nd complainant was born in the
    2nd opposite party-hospital and the
    doctor in charge of the delivery was
    the 1st opposite party-Dr.Chandra.

       

    (2) It appears it is a case of
    breach.

       

    (3) The child, it appears, was
    forcibly taken with the uses of
    forceps without resorting to ceaserian
    operation.

      

    (4) Because of the baby have
    been forcibly taken out by means of
    forceps, it appears, due to inertnal
    injury caused in such process, puss
    had been developed in joints and
    various portions of the body of the
    baby.

       

    (5) The baby was operated on
    various parts of the body for the
    removal of the puss.

       

    (6) Because of the alleged
    callous negligence on the part of the
    1st opposite party, the 2nd
    complainant baby was put to face the
    agonising situation of operation for
    the removal of the puss formed on the
    joints and other portions of the body
    and the act of the 1st opposite party
    in such circumstances would prima
    facie tantamount to deficiency in
    service on her part.

       

    2. Alleging the factors as
    above, the complainant resorted to the
    institution of proceedings before this
    Commission for certain beliefs as
    prayed for in this complaint.

       

    3. The reliefs claimed in the
    complaint is for a direction to the
    opposite parties to pay a sum of
    Rs.2,00,000/- towards the amount
    stated to have been spent on the birth
    of the 2nd complainant, due to the
    callous, negligence and deficient
    services rendered by the opposite
    parties in extracting the 2nd
    complaint without any experience and
    by not giving proper aftercare and
    also for a direction to them to pay a
    sum of Rs.8,00,000/- by way of
    compensation for hardship and tension
    undergone by the 1st complainant
    during the course of delivery and also
    for mental agony, suffering, pain,
    tension, etc.

      

    4. We heard the arguments of
    learned Counsel Hspsiba representing
    learned Counsel Mr.T.Mathi, appearing
    for the complaint.

      

    5. The factors mentioned above
    as being culled out from the averments
    made in the complaint and other
    connected documents filed alongwith it
    prima facie point out deficiency in
    service on the part of the opposite
    parties for making a further enquiry
    into the matter.

       

    6. However, a question crops up
    for consideration as to whether the
    further enquiry is required to be made
    by this Commission or by the competent
    District Fora on the facts and in the
    circumstances of the case. We rather
    feel that the materials placed on
    record do not at all prima facie point
    out that the jurisdiction of this
    Commission would get attracted and if
    at all the jurisdiction of the
    competent District Fora would get
    attracted for the entertainment of
    this complaint. This complainant would
    claim that she had spent about
    Rs.2,00,000/- for the birth of the 2nd
    complainant and the subsequent
    operations the 2nd complainant minor
    underwent. No scrap of paper worth the
    name had been placed on record
    pointing out that she in fact spent a
    sum of Rs.2,00,000/-. This apart, she
    would also claim compensation
    quantified in a sum of Rs.8,00,000/-
    for the mental agony, hardship,
    tension, etc., she has undergone in
    the process of delivery. No details
    had been given for the computation of
    the said amount of compensation. We
    rather feel that the amount of
    compensation had been purposely
    escalated so as to attract the
    jurisdiction of this Commission added
    by the fact that no Court-fee need be
    paid for any amount of compensation
    claimed before the Commission or the
    Fora constituted under the provisions
    of the Act. On the facts and in the
    circumstances of the case, we are of
    the view that the total amounts spent
    by the complainant and the quantum of
    compensation she will be entitled to
    even the extreme case of there being
    any deficiency in service on the part
    of the opposite parties, cannot be
    beyond the pecuniary jurisdiction of
    the District Forum.

       

    7. In this view of the matter,
    the complaint is returned to be
    presented before the competent
    District Fora of course after amending
    the necessary paragraphs in the
    complaint. Time given for such
    presentation is one month from today.
    The Registry is directed to return
    this copy of the complaint and other
    documents filed alongwith it forthwith
    after obtaining the necessary and
    requisite endorsement for the same.

      

  • II
    (2001) CPJ 354

    UTTAR PRADESH STATE CONSUMER 

    DISPUTES REDRESSAL COMMISSION, LUCKNOW

      

    SMT. TAHIRA KHATOON – Appellant
    versus GOVERNMENT OF UTTAR PRADESH
    & ORS. – Respondents

      

    Consumer Protection Act, 1986 -
    Section 2(1) (d) – Medical Negligence
    – Consumer – M.T.P. surgery conducted
    – Uterus got burst, pus developed on
    permanent basis – Compensation claimed
    – Contention, Rs.100/- for room rent
    and Rs.25/ for glucose charged -
    Contention not acceptable – Person
    under treatment has to pay incidental
    expenses – No fee charged for
    operation, complainant not a consumer.

        

    Held : A perusal of the judgment will
    go to show that a sum of Rs.2/- was
    charged for prescription and a sum of
    Rs.100/- was charged as room rent and
    Rs.25/- was charged for glucose.. No
    fee was charged from the complainant
    for doing the operation. These are
    incidental expenses, which a person
    has to pay for the treatment. The
    hospital does not bear this part of
    the expenses which are done during the
    period of operation or after that.
    Thus, we find that the services of the
    opposite parties were availed free of
    charge and hence the complainant is
    not covered under the definition of
    consumer. The findings of the learned
    District Forum are perfectly correct
    and need no interference.

        

    ORDER

        

    Mr. .Justice K. C. Bhargava, President
    –

    This is an appeal against the judgment
    and order dated 3.10.1992 passed by
    District Consumer Forum, Gorakhpur in
    Complaint Case No.74/1992.

        

    2. The facts of the case stated
    in brief are that the complainant went
    to the District Women Hospital,
    Gorakhpur on 6.8.1990 for her
    treatment. Thereafter on the next day
    she again went to the hospital for
    M.T.P. The surgery for M.T.P. was done
    on the same day. On account of this
    surgery, the uterus of the complainant
    got burst and there developed pus on
    permanent basis in the uterus. On
    account of this fact she was unable to
    enjoy sexual life with her husband.
    She has claimed a compensation of
    Rs.97,000/-

        

    3. On behalf of the opposite
    party it was alleged that the case is
    not triable by the learned District
    Forum as the complainant is not a
    consumer. Before this a complaint of a
    similar nature was lodged in which it
    was held that as no charges were made,
    therefore, the complaint is not
    maintainable on account of the fact
    that the complainant is not a
    consumer.

            

    4. It was further alleged that
    the treatment of the complainant was
    done free of charge in the District
    Hospital. The complainant disclosed on
    the next date that she has two sons
    and two daughters and she prayed for
    vasectomy operation. At that time it
    was found that the uterus of the
    complainant was in burst condition
    which was stitched. The operation was
    done under the supervision of
    competent doctors.

        

    5. Learned District Forum,
    after considering the case of the
    parties, came to the conclusion that
    the treatment was done free of cost
    and hence the complainant is not a
    consumer and dismissed the complaint.

       

    6. Aggrieved against the order
    of the learned District Forum, the
    complaint has come in appeal, and has
    challenged the correctness of the
    order passed by the District Forum.

      

    7. We have heard the learned
    Counsel for the appellant. Notice was
    sent to the opposite parties, but the
    opposite parties did not appear on the
    date of hearing.

       

    8. A perusal of the judgment
    will go to show that a sum of Rs.2/-
    was charged for prescription and a sum
    of Rs.100/- was charged as room rent
    and Rs.25/- was charged for glucose.
    No fee was charged from the
    complainant for doing the operation.
    These are incidental expenses which a
    person has to pay for the treatment.
    The hospital does not bear this part
    of the expenses which are done during
    the period of operation or after that.
    Thus we find that the services of the
    opposite parties were availed free of
    charge and hence the complainant is
    not covered under the definition of
    consumer. The findings of the learned
    District Forum are perfectly correct
    and need no interference.

        

    The appeal is thus liable to be
    dismissed.

        

    ORDER

          

    The appeal is dismissed and the
    judgment and order of the learned
    District Forum are confirmed. There
    will be no order as to the costs.

        

    Let copy as per rules be made
    available to the parties.

       

    Appeal dismissed.

        



  • RANGANNAGARI YADAV REDDY v. DR.VIJAYA KUMARI


    II (2001) CPJ 391

       

    For more
    details     Click
    Here

        

  • DR.
    (SMT.) N. ROHAN (YADAV) v. SMT. MANORAMA TAMRAKAR



    II (2001) CPJ 402

      

    For more
    details     Click
    Here

        

  • Dr.
    (Smt.) N. Rohan Yadav v. Smt. Manorama Tamrakar & Ors.

    2001(2) CPR 35

     

    STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MADHYA
    PRADESH : BHOPAL

     

    Consumer Protection Act, 1986 – Sections 2 and 14 – Consumer
    – Medical Negligence – At the time of Caesarean operation 5
    mtrs mop was left which was later on taken out by another
    operation – Forum awarded compensation holding complaint
    maintainable against appellants, doctors of Government
    Hospital – Appeal – No fee was charged from any category of
    persons or patients except taken registration charge of Rs.
    2 from the patient – No case of complainant that from a
    particular category of patients fee or consideration was
    charged – Complainant could not be said to be consumer and
    complaint was not maintainable.    
    (Para 5 to 7)

     

    Result : Appeals allowed.

     

    IMPORTANT POINT

     

    Patient who avails medical service of Government Hospital
    where no fee or consideration is charged except a small
    amount as registration charges, he cannot be said to be a
    consumer.

     

    ORDER

     

    S.K. Dubey, President – The three appeals arise out of the
    order dated 31-10-2000 passed in case No. 108/98 by the
    District Consumer Disputes Redressal Forum, Sagar (for short
    the ‘District Forum’).

     

    2. Facts giving rise to the case are thus : the
    complainant Smt. Manorama Tamrakar filed a complaint against
    Dr. Smt. Usha Saini, Dr. Smt. Shashi Thakur, Dr. N. Yadav
    and Miss Nathaval, Nurse of the Duffrin Hospital, Sagar
    alleging deficiency in medical service provided to her while
    she was admitted and remained as an indoor patient in
    Government Hospital for delivery of child from 14-8-1998 to
    30-8-1998 from where she was discharged then was admitted in
    the Medical College Hospital, Jabalpur for treatment from
    10-9-1998 till 27-9-1998. The complainant averred that after
    lower segment caesarean operation was performed on 15-8-1996
    where by the female child was born, there was infection and
    pus formation, which did not stop inspite of treatment,
    hence she was referred to Jabalpur Medical College where she
    was admitted on 19-9-1996 and remained under treatment till
    27-9-1996. In the Jabalpur Medical College, while dressing
    on 10-9-1996 it was found that at the place of stitching at
    the time of Caesarean operation 5 mtrs mop was left, which
    ultimately was taken out on 30-9-1996 by operation. Leaving
    mop was an act of gross negligence on the part of the
    Doctors of the Government Hospital, Sagar, who performed
    lower segment caesarean operation therefore, claimed the
    amount of Rs. 5 lacs as compensation for deficiency in
    medical service in not taking proper pre and post operative
    precautions. During this period the female child also died
    for want of proper feeding. The complaint filed was
    resisted. The District Forum after appreciation of evidence
    held that the complainant was a consumer and the complaint
    was maintainable even if no consideration charged in the
    Government Hospital at Sagar. For the deficiency in service,
    the District Forum ardered to pay compensation of Rs.
    50,000/- and Rs. 5,000/- as costs of the proceedings within
    a period of one month from the date of the order, falling
    which amount of compensation to carry interest at the rate
    of 12% p.a.

       

    3. The Hospital and Dr. Smt. Usha Saini and Dr. Smt.
    Shashi Thakur and Staff Nurse aggrieved of the order have
    filed appeal No. 1763/2000. while Dr. Smt. N. Rohan has
    filed appeal No. 96/BSP/2000. The complainant has also filed
    appeal No. 1803/2000 for enhancement of compensation.

     

    4. After hearing learned counsel for the parties we
    are of the opinion that the order of the District Forum
    cannot be sustained.

      

    5. Admittedly, the complainant was admitted for
    delivery of the child in the Government Hospital, where no
    fee is charged from any category of the persons or patients
    except token registration charge of Rs. 2 from the patient.
    The complainant did not make any payment or consideration to
    the doctors and/or to the nurse, who performed the operation
    or treated the complainant at Hospital at Sagar. In the
    circumstances, in view of the decision of the Supreme Court
    in case of Indian Medical Association v. V.P. Shantha and
    others, wherein the question has been dealt with and
    hospitals and doctors have been categorized in para 43 which
    we quote :

       

    43. The other part of exclusionary clause relates to
    services rendered “free of charge”. The Medical
    Practitioners, Government Hospital / Nursing Homes and
    private Hospital / Nursing Homes (hereinafter called “Doctors
    and Hospitals”) broadly fall in three categories :-

     

    (i) where services are rendered free of charge to everybody
    availing the said services.

     

    (ii) where charges are required to be paid by everybody
    availing the services, and

     

    (iii) where charges are required to be paid by persons
    availing service but certain categories of persons who
    cannot afford to pay are rendered service free of charges.

     

    There is no difficulty in respect of first two categories.
    Doctor and Hospitals who render service without any charge
    whatsoever to every person availing the service would not
    fall within the ambit of “service” under section
    2(1)(o) of the Act. The payment of a token amount for
    registration purposes only would not alter the position in
    respect of such Doctors and hospitals. So far as the second
    category is concerned, since the service is rendered on
    payment basis to all the persons they would clearly fall
    within the ambit of Section 2(1)(o) of the Act. The third
    category of Doctors and hospitals do provide free service to
    some of the patients belonging to the poor class but the
    bulk of the service is rendered to the patients on payment
    basis. The expenses incurred for providing free service are
    met out of the income from the service rendered to the
    paying patients. The service rendered by such Doctors and
    hospitals to paying patients undoubtedly fall within the
    ambit of Section 2 (1)(o) of the Act”.

      

    6. The present case is covered by category (1) as
    services are rendered free of charge to everybody availing
    the medical services in the said hospital. The payment of a
    token amount of Rs. 2 for registration purposes only does
    not alter the position in respect of the doctors and
    hospitals. It is not the case of the complainant that in the
    Hospital from a particular category of the patients the fee
    or consideration is charged or the complainant had paid any
    amount of consideration or fee to the doctors concerned even
    at their residence. In the circumstances, in our opinion,
    the District Forum erred in mis-applying the law laid down
    by the Supreme Court and erronesously held that the
    complainant was the consumer and therefore, for deficiency
    in medical service was entitled to compensation. In fact the
    complaint was not maintainable and was liable to be
    dismissed at the initial stage as the District Forum had no
    jurisdiction to entertain the complaint for redressal of the
    grievance of the complainant under the provisions of the
    Consumer Protection Act, 1986.

      

    7. In view of the above, it is not necessary for us
    to deal with the findings recorded by the District Forum on
    merits as it is well settled that when a court had no
    jurisdiction to entertain the complaint then the findings
    recorded on merits of the disputes are without jurisdiction
    and are not binding on the parties. Therefore, the finding
    recorded by the District Forum on medical negligence would
    not be binding on the parties. See, Upendra 
    Nath v. Lall and the decisions of Madhya Pradesh High
    Court in Chalchitra Karmchari Sangh v. Regal Talkies,
    Gwalior, Smt. Sudamabai v.Pratap Singh,
    M.P. State Road
    Transport Corporation v. Dashrat Singh, followed by this
    Commission in Ku. Shalini Kushwaha v. General Manager, SBI
    Fund Management Mumbai.

     

    8. In view of the above, we have no alternative but
    to dismiss this complaint with liberty to the complainant if
    so advised to institute to suit in the Court of competent
    jurisdiction to claim compensation for negligence. If the
    complainant chooses to institute the civil suit for the
    relief claimed in these proceedings she can do so according
    to law and in such a case can claim the benefit of Section
    14 of the Limitation Act to exclude the period spent in
    prosecuting the proceedings under the Consumer Protection
    Act, while computing the period of limitation prescribed for
    such a suit.

      

    9. In the result, the appeals No. 96/BSP/00 &
    1763/00 are allowed while appeal No. 1803/2000 filed by the
    complainant is dismissed. Accordingly the order of the
    District Forum is setaside. Consequently the complaint is
    dismissed with no order as to costs. A copy of this order be
    conveyed to the parties and copy be sent to the District
    Forum alongwith  the
    record of the case.

     

    Appeals allowed.

        

  • Laxman
    Thamappa Kotgiri v. Union of India
    & Ors.


    1998(1)
    CPR 665 (Mah.SCDRC)

      

    The complainant’s wife underwent
    tubectomy, operation after delivery.
    Patient died after 25 minutes of
    operation. Two important issues
    considered under this case were (i)
    was there any negligence and (ii) was
    the complainant a consumer vis-a-vis
    the Railway Hospital where she was
    operated. On the first issue the State
    Commission held that the hospital
    notes indicate that after the
    operation the patient had become fully
    conscious and was responding.
    Post-operative shock as a cause of
    death even could not be avoided
    inspite of timely and appropriate
    treatment. Hence, no case of
    negligence is made out. On the second
    issue the State Commission held that
    services rendered in a Railway
    Hospital are pre-dominantly free.
    Whatever charges are levied for some
    category of services is token or
    paltry. Adequate consideration is
    equally important to support claim
    under the Consumer Protection Act. The
    State Commission also made the
    following observations: “Under
    section 2(1)(d)(i) and (ii) of the
    consumer Protection Act, the word used
    is `a consideration’. It is not
    qualified by word `any’ or
    `nominal’ consideration. Ultimately
    the history of consumers grievances
    arose on account of defective or
    inadequate service vis-a-vis the
    quantum of consideration. When
    `consideration’ is not rewarded by
    adequate service, the grievance
    becomes a consumer’s dispute.
    However, when the consideration is
    nominal, almost bodering on `without
    consideration’. the service cannot
    come within the scope of consumers
    dispute. When the subsidy element is
    predominant, the service is not
    against any consideration. In this
    case hospital is predominantly meant
    for free service to railway employee.
    We do not have evidence to show that
    some beds are regularly set apart for
    paid non-railway servants. The
    preponderance of probabilities is that
    hospital renders free service. A small
    fraction of paid beds even if found to
    be existing couldn’t elevate the
    hospital to “Paid
    Hospitals”. Hence the
    complainant was not held to be a
    consumer. The complaint was dismissed.

        

  • 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.

      

  • 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.

      

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

    1995
    (2) CPJ 96 (Bihar SCDRC)

       

    More Details     Click
    Here

        

  • 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.

      

  • 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.

      

  • 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 the 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.

       

  • S.B.
    Kadkol v. Dr. N. Chandrashekara &
    Ors.

    2000
    (1) CPR 131, SCDRC Karnataka

       

    More
    Details      
    Click
    Here

        

  • 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.

       

  • 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.

       

  • 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)

      

    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.”

      

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

      

    “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.”

       

    “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.”

       

    “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.

        

  • 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.

       

  • 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.

       

  • 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 lack 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, particularly when
    the doctor has acted scientifically
    and adequately, as it seems in this
    case. The complaint dismissed.

        

  • 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
    curettage 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 Commission 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.

      

  • 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.

       

  • 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.

      

  • UMA
    PINGLEY V. DR. N.P. MOOKERJEE &
    ORS

    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.

      

  • KULVINDER
    KAUR V. DR. KIRANPREET KAUR
    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

      

  • MD.
    ASLAM V. IDEAL NURSING HOME

    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.

         

  • 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.

      

  • 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. Chandigarh, 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.

      

  • 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.

      

  • 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.

       

  • 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.

      

    Expert 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/-.

           

  • Nirmala
    R. Parab & Anr. v. Dr. Kalpana
    Desai & Ors

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

       

    he
    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.

      

  • 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.

      

  • 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.

        

  • 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 i      n
      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.

      

  • 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
    abdomen after  Caesarian
    operation, 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/-.

      

  • K.
    Vasanth v Teja Hospital

    1993
    (1) CPR 20 (TN SCDRC)

      

    It
    was alleged that during the early
    stages of patient’s 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.)”

        

  • Vijoy
    Singha Roy v. Ashutosh Nursing Home
    & Ors.

    2001 (2) CPR 505

      

    Consumer Protection Act, 1986 -
    Sections 2 and 17 – Complaint alleging
    medical negligence in the matter of
    conducting operation on deceased, wife
    of complainant and post operative care
    and treatment – Complaint was also
    lodged with police and criminal case
    under Section 304-A Indian Pinal Code
    was registered against opposite
    parties – Prayer for stay of
    proceedings in complaint – Criminal
    case arising out of self same facts
    and cause of action pending before
    Magistrate and cross-examination of
    complainant had been deferred -
    Simultaneous prosecution of criminal
    proceedings and present proceedings
    were to embarass opposite parties -
    Present case was liable to be stayed
    till disposal of criminal case.

       

    Result : Order accordingly.

     

    IMPORTANT POINT

      

    In a complaint alleging medical
    negligence when on very same cause a
    criminal case had been registered and
    trial, was in progress, proceedings
    were liable to be strayed till
    decision of criminal case.

      

    ORDER

      

    S.C. Datta, President     – Both sides
    are present through their respective
    Counsel and further hearing of the
    case is resumed. At the outset the Ld.
    Counsel for the OPs submits that the
    question about maintainability of the
    present case should be taken up for
    hearing first. Accordingly this point
    is heard.

     

    2. Ld. Counsel for the OPs submits
    that in view of the pendency of the
    Criminal case between the parties,
    this Commission should stay further
    hearing of this case. According to
    him, the Criminal Case has been lodged
    at the instance of the present
    complainant on the self-same facts,
    self-same cause of action and
    self-same allegation and he submits
    that the Criminal Court has taken
    cognizance of the case and upon
    completion of investigation,
    chargesheet has been submitted against
    the present OPs under Section 304A IPC
    on 28-4-1997. He submits further that
    the prosecution has completed
    examination of its witness, viz. PW-1
    and part crossexamination was done by
    the defence and the case was fixed for
    further examination on 19-8-2000.
    Accordingly, it is contended that
    since the matter is subjudice before
    the Criminal Court, the Commission
    should not proceed further with the
    matter under the summary trial
    proceeding. This is, however, resisted
    by the Ld. Counsel for the
    Complainant.

      

    3. In this connection, it would be
    relevant to set out some important
    facts fro proper appreciation of the
    case.

      

    4. The Complainant is one Shri Vijoy
    Singha Roy, the husband of the
    deceased Bine Singha Roy. He
    approached this Ccommission for
    compensation against the present OPs
    of varying amounts alleging rash,
    negligent and deliberate act on their
    part in the matter of conducting
    operation on the deceased and
    post-operative care and treatment.

      

    5. The Complainant’s wife was aged
    about 40 years at the relevant time.
    She developed some menstrual problems
    sometimes in June 1993 and as such
    their family physician Dr. Pran
    Shankar Saha was consulted who
    referred the patient to Dr. Biswanath
    Das (OP-1). On examination, Dr. Das
    advised the patient to undergo
    hysterectomy operation and arranged
    for her operation at Ashutosh Nursing
    Home (Manimala Matrimandir) at 21B,
    Sadananda Road, Calcutta – 26.
    According to the Complainant his wife
    was a patient of hypertension and her
    haemoglobin content was found to be
    below the safely level. According to
    the Complainant, their Physician Dr.
    Pran Shankar Saha, who was
    well-conversant with the state of
    health of the deceased apprised Dr.
    Biswanath Das regarding her proneness
    to hypertension and requested him to
    take utmost care and not to go in for
    unnecessary risk. Eventually, the
    operation was done and the patient
    slipped into Coma, with practically no
    chance of survival. She was shifted to
    a Nursing Home and later was shifted
    to SSKM Hospital, where she expired on
    27-1-1994. The Complainant alleges
    that the death of his wife was due to
    rash, negligent and deliberate act on
    the part of Dr. Biswanath Das and
    other doctor attending on her.

     

    6. The present petition for
    compensation was filed before this
    Commission on 16-6-1994 and the
    Complainant lodge a complaint with
    Police 0n 2-7-1994 against the present
    OPs, praying for initiation of
    criminal case. The Police having not
    taken any action on the complaint, the
    Complainant moved a petition before
    the Ld. Chief Judical Magistrate, 24
    Parganas (S) and a formal F.I.R was
    recorded on 27-11-1994. The case
    ultimately resulted in chargesheet and
    is now awaiting trial before Ld.
    Judicial Magistrate where
    examination-in-chief of the
    Complainant was completed and further
    cross-examination of the same witness
    was deferred.

       

    7. In view of this development, LD.
    Counsel for the OPs submits that there
    should be an order staying further
    proceedings in this case till the
    decision of the Criminal Proceeding.

       

    8. In this connection, it would be
    relevant to notice several other
    relevant facts. On 7-2-1995 OPs-1,2
    & 4 moved an application under
    Article 226 of the Constitution of
    India before the Hon’ble Court praying
    for stay of further proceedings of the
    case upon challenging the order of
    this Commission dated 19-12-1994
    whereby the Commission refused to stay
    further proceeding and was pleased to
    fix a date for further hearing.
    Initially, the Hon’ble Court was
    pleased to pass an interim order
    staying further proceedings but later
    on, the interim order was vacated on
    28-11-1995.

        

    9. The OPs again moved a petition
    before the Hon’ble High Court under
    Article 226 of the Constitution of
    India. This petition was directed
    against order dated 4-8-1997 passed by
    this Commission rejecting the prayer
    for stay of further proceeding. The
    Hon’ble High Court by an order
    11-2-1998 disposed of the writ.
    petition by granting liberty to the
    writ petitioner viz. the present OPs
    to agitate all the points before this
    Commission and to speak for order
    which they had sought for in the writ
    petition. It was directed that
    there-upon the State Commission will
    decide the matter as expeditiously as
    possible. The Hon’ble Court made it
    clear that all the points were left
    open. That is how the matter has come
    up before this commission for hearing.

         

    10. Now, the issue before us is
    whether or not the proceedings of this
    case should be stayed until the
    Criminal case is disposed of.

        

    11. Both side have addressed us at
    length. It is not disputed that this
    case was instituted earlier in point
    of time. The Criminal proceeding was
    started on the complaint of the
    Complainant and the said proceeding
    awaits decision before a Magistrate.
    According to the Complainant, the
    findings in a Civil Proceeding are not
    binding in a subsequent prosecution
    founded upon the same or similar
    allegations. It is the duty of the
    Criminal Court to form its own view
    and not to reach any conclusion by
    reference to any previous decision of
    the Civil Court which is not binding
    upon it. Reliance was placed on a
    decision reported in (AIR (32) 1945
    Privy Council 18).

      

    12. The Ld. Counsel for the
    Complainant has drawn out attention to
    judgment of the Supreme Court of India
    reported in (1996) Supreme Court
    Case 87.     The relevant excerpt is
    quoted below :

       

    ” It is settled law that pendency
    of the criminal matters would not be
    an impediment to proceed with the
    Civil suits. The criminal court would
    deal with the offence punishable under
    the Act. on the other hand, the Courts
    rarely stay the criminal cases and
    only then compelling circumstances
    require the exercise of such power. We
    have never come across stay of any
    civil suits by the Courts so far. The
    High Court of Rajasthan is only an
    exception to pass such orders. The
    High Court proceeded on a wrong
    premise that the accused would be
    expected to disclose their defence in
    the Criminal case by asking them to
    proceed with the trial of the suit. It
    is not a correct principle of law.
    Even otherwise, it no longer subsists,
    since many of them have filed their
    defences in the Civil suit. On
    principle of law, we hold that the
    approach adopted by the High Court is
    not correct. but since the defence has
    already been filed nothing subsists in
    this matter.”

       

    13. The Ld. Counsel for the OPs has
    referred to a case reported in 1989
    (2) CLJ 220      to contend that
    the decisions of Civil Court is
    binding on Criminal Court. But the
    converse is not true. It appears that
    a Single Judge of our own High Court
    observed as follows :

       

    ” Incidentally, it is to be noted
    that in criminal jurisprudence every
    person is deemed to be innocent unless
    contrary is proved. The onus lies,
    therefore, heavily on the prosecution
    to prove the complicity of the accused
    persons, in the absence of which the
    prosecution will fail. But in the
    event of a judgment in favour of the
    plaintiff herein, such a procedural
    law will be given a complete go by
    which in my view law courts ought not
    to encourage.

     

    While it is true that the procedural
    aspect ought not outweigh the course
    of justice but that by itself cannot
    give a complete go by to criminal
    jurisprudence of the land. This is
    apart from the issue in regard to the
    protection as engrafted in the
    Constitution as noted above. By reason
    of the finding of the Civil Court, the
    prosecution would not have to prove or
    adduce any further evidence which is a
    complete negation as regards criminal
    jurisprudence. would the court allow
    such a state and continue with the
    suit ? In my view, to subserve the
    ends of justice, the answer ought to
    be in the negative.”

       

    14. The Ld. Lawyer for the OPs has
    contended that the Hon’ble National
    Commission has also held in earlier
    cases that as a matter of policy and
    principle where the said matter of a
    complaint is sub-judice before the
    ordinary Civil Court, a concurrent
    adjudication in respect of the same
    will not be conducted by the
    Commission under the Consumer
    Protection Act. The objection is not
    really on the ground of lack of
    jurisdiction but is one based on
    considerations of propriety and
    prudence keeping in view the necessity
    for avoidance of conflicting decision
    and multiplicity of proceeding. (M/s.
    Special Machine, Karnal v. Punjab
    National Bank and others).

          

    15. The Ld. Counsel for the OP refers
    to a decision of the National
    Commission reported in II (1991) 262
    to contend that the matter being sub-judice
    before the Criminal Court, the
    Commission should not proceed further
    to make enquiry into the factual
    question as to whether the allegations
    contained in the complaint petition
    are correct and true . In yet another
    case Pardesh Dehydration Co. v.
    Chairman, bank Of India and another    ,
    the Hon’ble National Commission held
    that where the matter is directly
    raised in Criminal Complaint pending
    trial before court a concurrent
    adjudication of question cannot be
    gone into by Redressal Forum, Ld.
    Counsel for the OPs submits that the
    said decision was followed by a number
    of State Commission e.g. Bihar and
    Karnataka.

        

    16. Lastly the Ld. Lawyer for the OPs
    has cited a case reported in 1954 crig.
    1019 (Supreme Court).

        

    17. In this connection it would be
    relevant to refer to the observation
    of the Supreme Court in the decision
    cited above. The Supreme Court in the
    decision cited above. The Supreme
    Court observed as follows :

       

    ” As between the Civil and the
    Criminal proceedings we are of the
    opinion that the Criminal matter
    should be given precedence. No hard
    and fast rule can be laid down but the
    possibility of conflicting decisions
    in the Civil and Criminal Court is not
    a relevant consideration. The law
    envisages such an eventually when t
    expressly refrains from making the
    decision of one Court binding on the
    other or even relevant except for
    certain limited purpose. The only
    relevant consideration is like
    likelihood of embarrassment.

        

    Another factor which weighs with the
    Courts is that a Civil suit often
    drags on for years and it is
    undesirable that a criminal
    prosecution should wait till everybody
    concerned has forgotten all about the
    crime. The public interests demand
    that criminal justice should be swift
    and sweep, that the guilty should be
    punished while the events are still
    fresh in the public mind and that the
    innocent absolved as early as
    inconsistent with a fair and impartial
    trial.”

       

    18. Ld. Counsel appearing for the OPs
    urges that this Commission should
    follows the principle enunciated by
    their Lordships of the Supreme Court
    long time back in 1954. According to
    him, the said principle still holds
    good. Consequently, he submits that we
    should follow the same and stay
    further proceeding of the case.

       

    19. We have already noticed that the
    Criminals case arising out of
    self-same facts and cause of action is
    pending before a Judicial Magistrate
    at Alipore and the cross-examination
    of the Complainant has been deferred
    to a certain date. It is expected that
    the eriminal trial will soon be over.
    In our opinion, simultaneous
    prosecution of the Criminal Proceeding
    and the present OPs who are accused
    persons before the Magistrate.
    Therefore, having considered all the
    aspects of the matter and the ratio of
    decision of the Supreme Court and the
    National Commission and various State
    Commissions as referred to above, we
    think that the present case should be
    stayed till the disposal of the
    criminal case bearing no. 3630/94 and
    we order accordingly.

      

    20. Hence ordered that the present
    case be stayed till the decision of
    C.G.R. Case No. 3630/94 pending before
    the Ld. Judicial Magistrate, Alipore,
    24 Parganas (S).

      

    Order Accrodingly.

        

         


 Back

  


    




 

     

    
     

What is Law     Right of Doctors     Responsibilities     Negligence     Consents     Records     Cases
       
Legislations     Medical Ethics      FAQ’s

   
    

Obstetric & Gynaecologist
      

  • Revathy & Anr,. v. Dr. Chandra & Anr.
    2001 (1) CPR 600
       
    Sections 12 and 17 – Complaint alleging deficiency in service in conducting delivery of child of complainant by doctor – Relief claimed was Rs.2 lakhs spent on the birth of child and Rs.8 lakhs by way of compensation – Use of forceps by doctor during delivery was alleged to have caused internal injury to child and consequently puss developed in joints of child – Material could not be said prima facie pointing out jurisdiction of Commission – No evidence that Rs.2 lakhs was spent on treatment of child – No details pleaded for compensation of Rs.8 lakhs appeared purposely escalated – Total amount spent and quantum of compensation could not go beyond pecuniary jurisdiction of Dist. Forum – Complaint was liable to be returned to be presented before Dist.Forum.
    (Para 6)
    Result : Order accordingly.
      
    Counsel for the parties:
       
    For the Complainants: Mr. T. Mathi, Advocate
      
    For the Opposite Parties : None.
       
    ORDER
        
    M. S. Janarathanam, President –
    This action has come up for admisision before us today. We have perused the averments in the complaint and also the documents filed alongwith it. Such documents filed alongwith it. Such perusal reveals the following factors:
        
    (1) The 1st complainant Revathy is the mother of the 2nd complainant M.Indu, minor. During her pregnancy, it appears, she took treatment with the 1st opposite party – Doctor Chandra who is the proprietor of the 2nd opposite party – Chandra Hospital. The 2nd complainant was born in the 2nd opposite party-hospital and the doctor in charge of the delivery was the 1st opposite party-Dr.Chandra.
       
    (2) It appears it is a case of breach.
       
    (3) The child, it appears, was forcibly taken with the uses of forceps without resorting to ceaserian operation.
      
    (4) Because of the baby have been forcibly taken out by means of forceps, it appears, due to inertnal injury caused in such process, puss had been developed in joints and various portions of the body of the baby.
       
    (5) The baby was operated on various parts of the body for the removal of the puss.
       
    (6) Because of the alleged callous negligence on the part of the 1st opposite party, the 2nd complainant baby was put to face the agonising situation of operation for the removal of the puss formed on the joints and other portions of the body and the act of the 1st opposite party in such circumstances would prima facie tantamount to deficiency in service on her part.
       
    2. Alleging the factors as above, the complainant resorted to the institution of proceedings before this Commission for certain beliefs as prayed for in this complaint.
       
    3. The reliefs claimed in the complaint is for a direction to the opposite parties to pay a sum of Rs.2,00,000/- towards the amount stated to have been spent on the birth of the 2nd complainant, due to the callous, negligence and deficient services rendered by the opposite parties in extracting the 2nd complaint without any experience and by not giving proper aftercare and also for a direction to them to pay a sum of Rs.8,00,000/- by way of compensation for hardship and tension undergone by the 1st complainant during the course of delivery and also for mental agony, suffering, pain, tension, etc.
      
    4. We heard the arguments of learned Counsel Hspsiba representing learned Counsel Mr.T.Mathi, appearing for the complaint.
      
    5. The factors mentioned above as being culled out from the averments made in the complaint and other connected documents filed alongwith it prima facie point out deficiency in service on the part of the opposite parties for making a further enquiry into the matter.
       
    6. However, a question crops up for consideration as to whether the further enquiry is required to be made by this Commission or by the competent District Fora on the facts and in the circumstances of the case. We rather feel that the materials placed on record do not at all prima facie point out that the jurisdiction of this Commission would get attracted and if at all the jurisdiction of the competent District Fora would get attracted for the entertainment of this complaint. This complainant would claim that she had spent about Rs.2,00,000/- for the birth of the 2nd complainant and the subsequent operations the 2nd complainant minor underwent. No scrap of paper worth the name had been placed on record pointing out that she in fact spent a sum of Rs.2,00,000/-. This apart, she would also claim compensation quantified in a sum of Rs.8,00,000/- for the mental agony, hardship, tension, etc., she has undergone in the process of delivery. No details had been given for the computation of the said amount of compensation. We rather feel that the amount of compensation had been purposely escalated so as to attract the jurisdiction of this Commission added by the fact that no Court-fee need be paid for any amount of compensation claimed before the Commission or the Fora constituted under the provisions of the Act. On the facts and in the circumstances of the case, we are of the view that the total amounts spent by the complainant and the quantum of compensation she will be entitled to even the extreme case of there being any deficiency in service on the part of the opposite parties, cannot be beyond the pecuniary jurisdiction of the District Forum.
       
    7. In this view of the matter, the complaint is returned to be presented before the competent District Fora of course after amending the necessary paragraphs in the complaint. Time given for such presentation is one month from today. The Registry is directed to return this copy of the complaint and other documents filed alongwith it forthwith after obtaining the necessary and requisite endorsement for the same.
      

  • II (2001) CPJ 354
    UTTAR PRADESH STATE CONSUMER 
    DISPUTES REDRESSAL COMMISSION, LUCKNOW
      
    SMT. TAHIRA KHATOON – Appellant versus GOVERNMENT OF UTTAR PRADESH & ORS. – Respondents
      
    Consumer Protection Act, 1986 - Section 2(1) (d) – Medical Negligence – Consumer – M.T.P. surgery conducted – Uterus got burst, pus developed on permanent basis – Compensation claimed – Contention, Rs.100/- for room rent and Rs.25/ for glucose charged - Contention not acceptable – Person under treatment has to pay incidental expenses – No fee charged for operation, complainant not a consumer.
        
    Held : A perusal of the judgment will go to show that a sum of Rs.2/- was charged for prescription and a sum of Rs.100/- was charged as room rent and Rs.25/- was charged for glucose.. No fee was charged from the complainant for doing the operation. These are incidental expenses, which a person has to pay for the treatment. The hospital does not bear this part of the expenses which are done during the period of operation or after that. Thus, we find that the services of the opposite parties were availed free of charge and hence the complainant is not covered under the definition of consumer. The findings of the learned District Forum are perfectly correct and need no interference.
        
    ORDER
        
    Mr. .Justice K. C. Bhargava, President –
    This is an appeal against the judgment and order dated 3.10.1992 passed by District Consumer Forum, Gorakhpur in Complaint Case No.74/1992.
        
    2. The facts of the case stated in brief are that the complainant went to the District Women Hospital, Gorakhpur on 6.8.1990 for her treatment. Thereafter on the next day she again went to the hospital for M.T.P. The surgery for M.T.P. was done on the same day. On account of this surgery, the uterus of the complainant got burst and there developed pus on permanent basis in the uterus. On account of this fact she was unable to enjoy sexual life with her husband. She has claimed a compensation of Rs.97,000/-
        
    3. On behalf of the opposite party it was alleged that the case is not triable by the learned District Forum as the complainant is not a consumer. Before this a complaint of a similar nature was lodged in which it was held that as no charges were made, therefore, the complaint is not maintainable on account of the fact that the complainant is not a consumer.
            
    4. It was further alleged that the treatment of the complainant was done free of charge in the District Hospital. The complainant disclosed on the next date that she has two sons and two daughters and she prayed for vasectomy operation. At that time it was found that the uterus of the complainant was in burst condition which was stitched. The operation was done under the supervision of competent doctors.
        
    5. Learned District Forum, after considering the case of the parties, came to the conclusion that the treatment was done free of cost and hence the complainant is not a consumer and dismissed the complaint.
       
    6. Aggrieved against the order of the learned District Forum, the complaint has come in appeal, and has challenged the correctness of the order passed by the District Forum.
      
    7. We have heard the learned Counsel for the appellant. Notice was sent to the opposite parties, but the opposite parties did not appear on the date of hearing.
       
    8. A perusal of the judgment will go to show that a sum of Rs.2/- was charged for prescription and a sum of Rs.100/- was charged as room rent and Rs.25/- was charged for glucose. No fee was charged from the complainant for doing the operation. These are incidental expenses which a person has to pay for the treatment. The hospital does not bear this part of the expenses which are done during the period of operation or after that. Thus we find that the services of the opposite parties were availed free of charge and hence the complainant is not covered under the definition of consumer. The findings of the learned District Forum are perfectly correct and need no interference.
        
    The appeal is thus liable to be dismissed.
        
    ORDER
          
    The appeal is dismissed and the judgment and order of the learned District Forum are confirmed. There will be no order as to the costs.
        
    Let copy as per rules be made available to the parties.
       
    Appeal dismissed.
        

  • RANGANNAGARI YADAV REDDY v. DR.VIJAYA KUMARI
    II (2001) CPJ 391
       
    For more details     Click Here
        

  • DR. (SMT.) N. ROHAN (YADAV) v. SMT. MANORAMA TAMRAKAR
    II (2001) CPJ 402
      
    For more details     Click Here
        

  • Dr. (Smt.) N. Rohan Yadav v. Smt. Manorama Tamrakar & Ors.
    2001(2) CPR 35
     
    STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MADHYA PRADESH : BHOPAL
     
    Consumer Protection Act, 1986 – Sections 2 and 14 – Consumer – Medical Negligence – At the time of Caesarean operation 5 mtrs mop was left which was later on taken out by another operation – Forum awarded compensation holding complaint maintainable against appellants, doctors of Government Hospital – Appeal – No fee was charged from any category of persons or patients except taken registration charge of Rs. 2 from the patient – No case of complainant that from a particular category of patients fee or consideration was charged – Complainant could not be said to be consumer and complaint was not maintainable.     (Para 5 to 7)
     
    Result : Appeals allowed.
     
    IMPORTANT POINT
     
    Patient who avails medical service of Government Hospital where no fee or consideration is charged except a small amount as registration charges, he cannot be said to be a consumer.
     
    ORDER
     
    S.K. Dubey, President – The three appeals arise out of the order dated 31-10-2000 passed in case No. 108/98 by the District Consumer Disputes Redressal Forum, Sagar (for short the ‘District Forum’).
     
    2. Facts giving rise to the case are thus : the complainant Smt. Manorama Tamrakar filed a complaint against Dr. Smt. Usha Saini, Dr. Smt. Shashi Thakur, Dr. N. Yadav and Miss Nathaval, Nurse of the Duffrin Hospital, Sagar alleging deficiency in medical service provided to her while she was admitted and remained as an indoor patient in Government Hospital for delivery of child from 14-8-1998 to 30-8-1998 from where she was discharged then was admitted in the Medical College Hospital, Jabalpur for treatment from 10-9-1998 till 27-9-1998. The complainant averred that after lower segment caesarean operation was performed on 15-8-1996 where by the female child was born, there was infection and pus formation, which did not stop inspite of treatment, hence she was referred to Jabalpur Medical College where she was admitted on 19-9-1996 and remained under treatment till 27-9-1996. In the Jabalpur Medical College, while dressing on 10-9-1996 it was found that at the place of stitching at the time of Caesarean operation 5 mtrs mop was left, which ultimately was taken out on 30-9-1996 by operation. Leaving mop was an act of gross negligence on the part of the Doctors of the Government Hospital, Sagar, who performed lower segment caesarean operation therefore, claimed the amount of Rs. 5 lacs as compensation for deficiency in medical service in not taking proper pre and post operative precautions. During this period the female child also died for want of proper feeding. The complaint filed was resisted. The District Forum after appreciation of evidence held that the complainant was a consumer and the complaint was maintainable even if no consideration charged in the Government Hospital at Sagar. For the deficiency in service, the District Forum ardered to pay compensation of Rs. 50,000/- and Rs. 5,000/- as costs of the proceedings within a period of one month from the date of the order, falling which amount of compensation to carry interest at the rate of 12% p.a.
       
    3. The Hospital and Dr. Smt. Usha Saini and Dr. Smt. Shashi Thakur and Staff Nurse aggrieved of the order have filed appeal No. 1763/2000. while Dr. Smt. N. Rohan has filed appeal No. 96/BSP/2000. The complainant has also filed appeal No. 1803/2000 for enhancement of compensation.
     
    4. After hearing learned counsel for the parties we are of the opinion that the order of the District Forum cannot be sustained.
      
    5. Admittedly, the complainant was admitted for delivery of the child in the Government Hospital, where no fee is charged from any category of the persons or patients except token registration charge of Rs. 2 from the patient. The complainant did not make any payment or consideration to the doctors and/or to the nurse, who performed the operation or treated the complainant at Hospital at Sagar. In the circumstances, in view of the decision of the Supreme Court in case of Indian Medical Association v. V.P. Shantha and others, wherein the question has been dealt with and hospitals and doctors have been categorized in para 43 which we quote :
       
    43. The other part of exclusionary clause relates to services rendered “free of charge”. The Medical Practitioners, Government Hospital / Nursing Homes and private Hospital / Nursing Homes (hereinafter called “Doctors and Hospitals”) broadly fall in three categories :-
     
    (i) where services are rendered free of charge to everybody availing the said services.
     
    (ii) where charges are required to be paid by everybody availing the services, and
     
    (iii) where charges are required to be paid by persons availing service but certain categories of persons who cannot afford to pay are rendered service free of charges.
     
    There is no difficulty in respect of first two categories. Doctor and Hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” under section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such Doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1)(o) of the Act. The third category of Doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such Doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2 (1)(o) of the Act”.
      
    6. The present case is covered by category (1) as services are rendered free of charge to everybody availing the medical services in the said hospital. The payment of a token amount of Rs. 2 for registration purposes only does not alter the position in respect of the doctors and hospitals. It is not the case of the complainant that in the Hospital from a particular category of the patients the fee or consideration is charged or the complainant had paid any amount of consideration or fee to the doctors concerned even at their residence. In the circumstances, in our opinion, the District Forum erred in mis-applying the law laid down by the Supreme Court and erronesously held that the complainant was the consumer and therefore, for deficiency in medical service was entitled to compensation. In fact the complaint was not maintainable and was liable to be dismissed at the initial stage as the District Forum had no jurisdiction to entertain the complaint for redressal of the grievance of the complainant under the provisions of the Consumer Protection Act, 1986.
      
    7. In view of the above, it is not necessary for us to deal with the findings recorded by the District Forum on merits as it is well settled that when a court had no jurisdiction to entertain the complaint then the findings recorded on merits of the disputes are without jurisdiction and are not binding on the parties. Therefore, the finding recorded by the District Forum on medical negligence would not be binding on the parties. See, Upendra  Nath v. Lall and the decisions of Madhya Pradesh High Court in Chalchitra Karmchari Sangh v. Regal Talkies, Gwalior, Smt. Sudamabai v.Pratap Singh, M.P. State Road Transport Corporation v. Dashrat Singh, followed by this Commission in Ku. Shalini Kushwaha v. General Manager, SBI Fund Management Mumbai.
     
    8. In view of the above, we have no alternative but to dismiss this complaint with liberty to the complainant if so advised to institute to suit in the Court of competent jurisdiction to claim compensation for negligence. If the complainant chooses to institute the civil suit for the relief claimed in these proceedings she can do so according to law and in such a case can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit.
      
    9. In the result, the appeals No. 96/BSP/00 & 1763/00 are allowed while appeal No. 1803/2000 filed by the complainant is dismissed. Accordingly the order of the District Forum is setaside. Consequently the complaint is dismissed with no order as to costs. A copy of this order be conveyed to the parties and copy be sent to the District Forum alongwith  the record of the case.
     
    Appeals allowed.
        

  • Laxman Thamappa Kotgiri v. Union of India & Ors.
    1998(1) CPR 665 (Mah.SCDRC)
      
    The complainant’s wife underwent tubectomy, operation after delivery. Patient died after 25 minutes of operation. Two important issues considered under this case were (i) was there any negligence and (ii) was the complainant a consumer vis-a-vis the Railway Hospital where she was operated. On the first issue the State Commission held that the hospital notes indicate that after the operation the patient had become fully conscious and was responding. Post-operative shock as a cause of death even could not be avoided inspite of timely and appropriate treatment. Hence, no case of negligence is made out. On the second issue the State Commission held that services rendered in a Railway Hospital are pre-dominantly free. Whatever charges are levied for some category of services is token or paltry. Adequate consideration is equally important to support claim under the Consumer Protection Act. The State Commission also made the following observations: “Under section 2(1)(d)(i) and (ii) of the consumer Protection Act, the word used is `a consideration’. It is not qualified by word `any’ or `nominal’ consideration. Ultimately the history of consumers grievances arose on account of defective or inadequate service vis-a-vis the quantum of consideration. When `consideration’ is not rewarded by adequate service, the grievance becomes a consumer’s dispute. However, when the consideration is nominal, almost bodering on `without consideration’. the service cannot come within the scope of consumers dispute. When the subsidy element is predominant, the service is not against any consideration. In this case hospital is predominantly meant for free service to railway employee. We do not have evidence to show that some beds are regularly set apart for paid non-railway servants. The preponderance of probabilities is that hospital renders free service. A small fraction of paid beds even if found to be existing couldn’t elevate the hospital to “Paid Hospitals”. Hence the complainant was not held to be a consumer. The complaint was dismissed.
        

  • 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.
      

  • 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.
      

  • Jitendra Nath v. Dr.(Mrs.) Manju Geeta Mishra & Ors
    1995 (2) CPJ 96 (Bihar SCDRC)
       
    More Details     Click Here
        

  • 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.
      

  • 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.
      

  • 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 the 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.
       

  • S.B. Kadkol v. Dr. N. Chandrashekara & Ors.
    2000 (1) CPR 131, SCDRC Karnataka
       
    More Details       Click Here
        

  • 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.
       

  • 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.
       

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

  • 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.
       

  • 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.
       

  • 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 lack 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, particularly when the doctor has acted scientifically and adequately, as it seems in this case. The complaint dismissed.
        

  • 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 curettage 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 Commission 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.
      

  • 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.
       

  • 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.
      

  • UMA PINGLEY V. DR. N.P. MOOKERJEE & ORS
    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.
      

  • KULVINDER KAUR V. DR. KIRANPREET KAUR
         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
      

  • MD. ASLAM V. IDEAL NURSING HOME
    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.
         

  • 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.
      

  • 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. Chandigarh, 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.
      

  • 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.
      

  • 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.
       

  • 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.
      
    Expert 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/-.
           

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

  • 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.
      

  • 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.
        

  • 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.
      

  • 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 abdomen after  Caesarian operation, 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/-.
      

  • K. Vasanth v Teja Hospital
    1993 (1) CPR 20 (TN SCDRC)
      
    It was alleged that during the early stages of patient’s 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.)”
        

  • Vijoy Singha Roy v. Ashutosh Nursing Home & Ors.
    2001 (2) CPR 505
      
    Consumer Protection Act, 1986 - Sections 2 and 17 – Complaint alleging medical negligence in the matter of conducting operation on deceased, wife of complainant and post operative care and treatment – Complaint was also lodged with police and criminal case under Section 304-A Indian Pinal Code was registered against opposite parties – Prayer for stay of proceedings in complaint – Criminal case arising out of self same facts and cause of action pending before Magistrate and cross-examination of complainant had been deferred - Simultaneous prosecution of criminal proceedings and present proceedings were to embarass opposite parties - Present case was liable to be stayed till disposal of criminal case.
       
    Result : Order accordingly.
     
    IMPORTANT POINT
      
    In a complaint alleging medical negligence when on very same cause a criminal case had been registered and trial, was in progress, proceedings were liable to be strayed till decision of criminal case.
      
    ORDER
      
    S.C. Datta, President     – Both sides are present through their respective Counsel and further hearing of the case is resumed. At the outset the Ld. Counsel for the OPs submits that the question about maintainability of the present case should be taken up for hearing first. Accordingly this point is heard.
     
    2. Ld. Counsel for the OPs submits that in view of the pendency of the Criminal case between the parties, this Commission should stay further hearing of this case. According to him, the Criminal Case has been lodged at the instance of the present complainant on the self-same facts, self-same cause of action and self-same allegation and he submits that the Criminal Court has taken cognizance of the case and upon completion of investigation, chargesheet has been submitted against the present OPs under Section 304A IPC on 28-4-1997. He submits further that the prosecution has completed examination of its witness, viz. PW-1 and part crossexamination was done by the defence and the case was fixed for further examination on 19-8-2000. Accordingly, it is contended that since the matter is subjudice before the Criminal Court, the Commission should not proceed further with the matter under the summary trial proceeding. This is, however, resisted by the Ld. Counsel for the Complainant.
      
    3. In this connection, it would be relevant to set out some important facts fro proper appreciation of the case.
      
    4. The Complainant is one Shri Vijoy Singha Roy, the husband of the deceased Bine Singha Roy. He approached this Ccommission for compensation against the present OPs of varying amounts alleging rash, negligent and deliberate act on their part in the matter of conducting operation on the deceased and post-operative care and treatment.
      
    5. The Complainant’s wife was aged about 40 years at the relevant time. She developed some menstrual problems sometimes in June 1993 and as such their family physician Dr. Pran Shankar Saha was consulted who referred the patient to Dr. Biswanath Das (OP-1). On examination, Dr. Das advised the patient to undergo hysterectomy operation and arranged for her operation at Ashutosh Nursing Home (Manimala Matrimandir) at 21B, Sadananda Road, Calcutta – 26. According to the Complainant his wife was a patient of hypertension and her haemoglobin content was found to be below the safely level. According to the Complainant, their Physician Dr. Pran Shankar Saha, who was well-conversant with the state of health of the deceased apprised Dr. Biswanath Das regarding her proneness to hypertension and requested him to take utmost care and not to go in for unnecessary risk. Eventually, the operation was done and the patient slipped into Coma, with practically no chance of survival. She was shifted to a Nursing Home and later was shifted to SSKM Hospital, where she expired on 27-1-1994. The Complainant alleges that the death of his wife was due to rash, negligent and deliberate act on the part of Dr. Biswanath Das and other doctor attending on her.
     
    6. The present petition for compensation was filed before this Commission on 16-6-1994 and the Complainant lodge a complaint with Police 0n 2-7-1994 against the present OPs, praying for initiation of criminal case. The Police having not taken any action on the complaint, the Complainant moved a petition before the Ld. Chief Judical Magistrate, 24 Parganas (S) and a formal F.I.R was recorded on 27-11-1994. The case ultimately resulted in chargesheet and is now awaiting trial before Ld. Judicial Magistrate where examination-in-chief of the Complainant was completed and further cross-examination of the same witness was deferred.
       
    7. In view of this development, LD. Counsel for the OPs submits that there should be an order staying further proceedings in this case till the decision of the Criminal Proceeding.
       
    8. In this connection, it would be relevant to notice several other relevant facts. On 7-2-1995 OPs-1,2 & 4 moved an application under Article 226 of the Constitution of India before the Hon’ble Court praying for stay of further proceedings of the case upon challenging the order of this Commission dated 19-12-1994 whereby the Commission refused to stay further proceeding and was pleased to fix a date for further hearing. Initially, the Hon’ble Court was pleased to pass an interim order staying further proceedings but later on, the interim order was vacated on 28-11-1995.
        
    9. The OPs again moved a petition before the Hon’ble High Court under Article 226 of the Constitution of India. This petition was directed against order dated 4-8-1997 passed by this Commission rejecting the prayer for stay of further proceeding. The Hon’ble High Court by an order 11-2-1998 disposed of the writ. petition by granting liberty to the writ petitioner viz. the present OPs to agitate all the points before this Commission and to speak for order which they had sought for in the writ petition. It was directed that there-upon the State Commission will decide the matter as expeditiously as possible. The Hon’ble Court made it clear that all the points were left open. That is how the matter has come up before this commission for hearing.
         
    10. Now, the issue before us is whether or not the proceedings of this case should be stayed until the Criminal case is disposed of.
        
    11. Both side have addressed us at length. It is not disputed that this case was instituted earlier in point of time. The Criminal proceeding was started on the complaint of the Complainant and the said proceeding awaits decision before a Magistrate. According to the Complainant, the findings in a Civil Proceeding are not binding in a subsequent prosecution founded upon the same or similar allegations. It is the duty of the Criminal Court to form its own view and not to reach any conclusion by reference to any previous decision of the Civil Court which is not binding upon it. Reliance was placed on a decision reported in (AIR (32) 1945 Privy Council 18).
      
    12. The Ld. Counsel for the Complainant has drawn out attention to judgment of the Supreme Court of India reported in (1996) Supreme Court Case 87. The relevant excerpt is quoted below :
       
    ” It is settled law that pendency of the criminal matters would not be an impediment to proceed with the Civil suits. The criminal court would deal with the offence punishable under the Act. on the other hand, the Courts rarely stay the criminal cases and only then compelling circumstances require the exercise of such power. We have never come across stay of any civil suits by the Courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on a wrong premise that the accused would be expected to disclose their defence in the Criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise, it no longer subsists, since many of them have filed their defences in the Civil suit. On principle of law, we hold that the approach adopted by the High Court is not correct. but since the defence has already been filed nothing subsists in this matter.”
       
    13. The Ld. Counsel for the OPs has referred to a case reported in 1989 (2) CLJ 220  to contend that the decisions of Civil Court is binding on Criminal Court. But the converse is not true. It appears that a Single Judge of our own High Court observed as follows :
       
    ” Incidentally, it is to be noted that in criminal jurisprudence every person is deemed to be innocent unless contrary is proved. The onus lies, therefore, heavily on the prosecution to prove the complicity of the accused persons, in the absence of which the prosecution will fail. But in the event of a judgment in favour of the plaintiff herein, such a procedural law will be given a complete go by which in my view law courts ought not to encourage.
     
    While it is true that the procedural aspect ought not outweigh the course of justice but that by itself cannot give a complete go by to criminal jurisprudence of the land. This is apart from the issue in regard to the protection as engrafted in the Constitution as noted above. By reason of the finding of the Civil Court, the prosecution would not have to prove or adduce any further evidence which is a complete negation as regards criminal jurisprudence. would the court allow such a state and continue with the suit ? In my view, to subserve the ends of justice, the answer ought to be in the negative.”
       
    14. The Ld. Lawyer for the OPs has contended that the Hon’ble National Commission has also held in earlier cases that as a matter of policy and principle where the said matter of a complaint is sub-judice before the ordinary Civil Court, a concurrent adjudication in respect of the same will not be conducted by the Commission under the Consumer Protection Act. The objection is not really on the ground of lack of jurisdiction but is one based on considerations of propriety and prudence keeping in view the necessity for avoidance of conflicting decision and multiplicity of proceeding. (M/s. Special Machine, Karnal v. Punjab National Bank and others).
          
    15. The Ld. Counsel for the OP refers to a decision of the National Commission reported in II (1991) 262 to contend that the matter being sub-judice before the Criminal Court, the Commission should not proceed further to make enquiry into the factual question as to whether the allegations contained in the complaint petition are correct and true . In yet another case Pardesh Dehydration Co. v. Chairman, bank Of India and another, the Hon’ble National Commission held that where the matter is directly raised in Criminal Complaint pending trial before court a concurrent adjudication of question cannot be gone into by Redressal Forum, Ld. Counsel for the OPs submits that the said decision was followed by a number of State Commission e.g. Bihar and Karnataka.
        
    16. Lastly the Ld. Lawyer for the OPs has cited a case reported in 1954 crig. 1019 (Supreme Court).
        
    17. In this connection it would be relevant to refer to the observation of the Supreme Court in the decision cited above. The Supreme Court in the decision cited above. The Supreme Court observed as follows :
       
    ” As between the Civil and the Criminal proceedings we are of the opinion that the Criminal matter should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in the Civil and Criminal Court is not a relevant consideration. The law envisages such an eventually when t expressly refrains from making the decision of one Court binding on the other or even relevant except for certain limited purpose. The only relevant consideration is like likelihood of embarrassment.
        
    Another factor which weighs with the Courts is that a Civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sweep, that the guilty should be punished while the events are still fresh in the public mind and that the innocent absolved as early as inconsistent with a fair and impartial trial.”
       
    18. Ld. Counsel appearing for the OPs urges that this Commission should follows the principle enunciated by their Lordships of the Supreme Court long time back in 1954. According to him, the said principle still holds good. Consequently, he submits that we should follow the same and stay further proceeding of the case.
       
    19. We have already noticed that the Criminals case arising out of self-same facts and cause of action is pending before a Judicial Magistrate at Alipore and the cross-examination of the Complainant has been deferred to a certain date. It is expected that the eriminal trial will soon be over. In our opinion, simultaneous prosecution of the Criminal Proceeding and the present OPs who are accused persons before the Magistrate. Therefore, having considered all the aspects of the matter and the ratio of decision of the Supreme Court and the National Commission and various State Commissions as referred to above, we think that the present case should be stayed till the disposal of the criminal case bearing no. 3630/94 and we order accordingly.
      
    20. Hence ordered that the present case be stayed till the decision of C.G.R. Case No. 3630/94 pending before the Ld. Judicial Magistrate, Alipore, 24 Parganas (S).
      
    Order Accrodingly.
        

         

 Back
  

    

 

By |2022-07-20T16:44:42+00:00July 20, 2022|Uncategorized|Comments Off on Doctor’s Favour / Obstetric & Gynaecologist

Share This Story, Choose Your Platform!

FacebookTwitterRedditLinkedInWhatsAppTelegramTumblrPinterestVkXingEmail

About the Author: