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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.
Result : Order accordingly.
Counsel for the parties:
For the Complainants: Mr. T. Mathi, Advocate
For the Opposite Parties : None.
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.
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.
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.
RANGANNAGARI YADAV REDDY v. DR.VIJAYA KUMARI
II (2001) CPJ 391
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DR. (SMT.) N. ROHAN (YADAV) v. SMT. MANORAMA TAMRAKAR
II (2001) CPJ 402
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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.
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.
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.
Laxman Thamappa Kotgiri v. Union of India & Ors.
1998(1) CPR 665 (Mah.SCDRC)
The complainants 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 consumers 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 couldnt 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 complainants 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)
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S.B. Venkatappa v. Dr. Kasthuri S. Shallikeri & Anr
1995(2) CPR 80 (Karn SCDRC)
The complainants 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
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
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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.
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 – Complainants 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.
1. 1996(1) CCj 1 (SC)=III(1995) CPJ 1 (SC). (Para 9)
2. 1998 CTJ7=I(1998) CPJ 10 (NC) (Para 10)
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 ?
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 complainants 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 complainants 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 complainants 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 complainants 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 Foleys 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 partys 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 complainants daughter underwent Caesarean operation in Opposite Partys 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 complainants 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 complainants 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.
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 patients 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.
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.
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).