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Obstetric
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  • Dr
    Sr Louie And Ors v Smt Kannolil
    Pathumma and Anr


    2 1993(1) CPR 422

      

    It was held by the national commission
    that :

      


  • as
    fee was charged for room rent 
    , treatment etc,the service rendered
    falls within the scope of the act.

  • Heirs
    / legal representatives of deceased
    complianant entitled to file
    complaint.

  • Medical
    negligence existed on the following
    grounds :   

  • Patient
    was known to have complications
    during the first delivery in same
    hospital and after admission to
    induce labour she was started on
    Syntocinon drip. Artificial rupture 
    of membranes was done. At this point
    the doctor left the patient to 
    attend to patients in OPD .This was
    against the standard medical
    recommendations (of reasonable care
    and skill)

      

    The condition of the patient became
    bad . Doctor was called who applied
    vacuum extractor.The baby extracted
    was asphyxiated and mother started
    bleeding heavily .Both died
    subsequently. Was the doctor
    employed by the hospital qualified
    to do this procedure? The name board
    exhibited by the Hospital mentioned
    M.D against her creating an
    impression that the doctor possessed
    post graduate degree in
    Gynaecology.The degree Degree 
    M.d (gyn) was obtained from Freiberg
    Germany which was as per rules and
    directions from MCI should have been
    mentioned .This degree is equal to
    M.B.B.S in India.aqlthough the
    doctor had undergone practical
    training courses in Gynaecology she
    had not acquired any degree or
    diploma in that discipline. So she
    was not entitled to claim that she
    is M.d gyn in India. Hence she was
    not qualified to undertake this
    procedure and the resultant vacuum
    slip had led to complications. also
    held liable for misrepresentation of
    facts Complainant was awarded Rs
    77000 as compensation to be paid by
    the society which is running the
    hospital.

       


  • R.Lalitha
    v M.Jeeva 


    1992(2) CPR 409 (TN SCDRC)

      

    The complaint was regarding
    negligence of private doctor’s
    hospital which the compliant
    attended for parental treatment,
    etc. her uterus got ruptured on
    account of delayed labour  and
    the male child, who was born died.
    The  State Commission observed
    :

      




  • here is a case where the opposite
    party who is merely a nurse and a
    mid wife has taken upon herself ,
    the management of a situation
    pregnant with dire consequences as
    this was a case of second casesarian
    operation and her management has
    ultimately led to the rupture of the
    uterus , removal of it and to the
    death of her male child… The
    opposite party has acted rashly ,
    recklessly and with culpable
    negligence.”

      It held the opposite party
    guilty of gross negligence and
    awarded a compensation of Rs 2.5
    lacs.as under :

  • Rs
    1 lakh for the rupture and removal
    of the uterus which is a permanent
    injury of a grave character;

  • Rs
    1 lakh for the agony and pain pain
    suffered; and

  • rupees
    50000 for the loss of the male
    child.

On
appeal the National Commission in
M.Jeeva v R.Lalitha upheld the decision
of the state commission except that
compensation of pain and agony reduced
from Rs100000 to Rs 50000 .

Also awarded Rs 10000 as the costs.
Negligence was held on following grounds
:

  • attempting
    to undertake a known complicated
    case of delivery beyond her level of
    competence;

  • delaying
    referral to higher centre; and 

  • false
    and vacillating statements, eg .,
    patient had remained in the hospital
    for 2 hours; she was referred
    without any medical assistance; she
    had come with complication of
    threatened  rupture of uterus;
    no male member had accompanied her,
    etc.

      


  • MRS.MEENA
    VYAS v. CITY NURSING HOME AND
    HOSPITAL


    II (2000) CPJ 172

      

    Consumer Protection Act, 1986 -
    Sections 2(1)(g), 14(1)(d) – Medical
    Negligence – Deficiency in Service -
    Compensation – Sponge left
    negligently in the process of
    caesarian operation for the delivery
    of child – Complainant`s condition
    deteriorated – Operated again -
    Sinus explored, foreign body (old
    retained sponge) found – Vital organ
    in body remained disturbed – Nothing
    cogent brought on record to discard
    the record of second operation -
    Opposite party guilty of negligence
    – Complainant entitled to
    compensation.

         

    Held : In this case the sponge was
    left negligently in abdominal cavity
    of the complainant during the
    operation performed by the opposite
    party which endangered the life of
    the complainant. After the
    operation, the condition of the
    complainant was deteriorated. She
    developed constant vomiting and
    pains. She felt that something had
    left in her abdomen at the time of
    operation. There was no improvement
    thought the opposite parties assured
    her that she would be alright after
    some days. On 7.1.1998, the stitches
    were removed and the complainant was
    discharged from the hospital by the
    respondent. Even at the time of
    discharge she was suffering from
    pain in the abdomen. The complainant
    suffered vomiting every day.
    Eventually, it developed continuous
    discharge of the pus from sinus of
    the complainant. The complainant
    remained under treatment with the
    opposite parties upto 22.1.1998 when
    she was asked to consult from other
    Surgeon to drain the probable sinus.
    On 6.4.1998 she was admitted in the
    Dayanand Medical College and
    Hospital, Ludhiana where she was
    operated upon. During the operation
    the sinus was explored, a foreign
    body (old retained sponge) was found
    as per report referred above of the
    doctors operating upon the
    complainant in the Dayanand Medical
    College and Hospital. There was no
    operation in between 26.12.1997 and
    6.4.1998 during the operation in the
    Dayanand Medical College, old
    retained sponge was found by the
    doctors of the D.M.C. Apparently the
    old retained sponge was that of the
    opposite parties. It may be observed
    that the vital organ in the body
    remained disturbed ever since she
    was relieved from the hospital of
    the opposite parties. In the
    circumstances, it is assumed that
    the sponge was left in the process
    of caesarean operation for the
    delivery of the child by the
    opposite parties which could cause
    damage to other organs. Thus, we
    hold opposite parties guilty of
    negligence and accept the ipse,
    dixit of the complaint. (Para 26)

        

    (ii) Hospital – Liability of -
    Hospital responsible for acts of its
    employees – Negligence can be
    attributed to the functionaries and
    authorities – Hospital liable for
    the consequence. (Para 25)

        

    (iii) Pecuniary Jurisdiction -
    Compensation of 15 lacs claimed -
    Commission has jurisdiction to
    adjudicate the dispute. (Para s 13
    & 14)

       

    (iv) Words and Phrases -
    “Thrombosis of Cerebral Sinuses
    and Veins” – Explained. (Para
    18)

      

    Result : Complaint allowed with
    costs.


      

    ORDER

      

    Mr. Jasbir Singh, Member –
    This is complaint under Section 12
    of the Consumer Protection Act, 1986
    for the deficiency in service and
    negligence on the part of the
    opposite parties for awarding
    compensation amount to Rs.15 lacs to
    the complainant.

         

    2. The brief facts as per
    narration giving rise to this
    complaint are that on 26.12.1997,
    the complainant along with her
    husband visited the opposite parties
    for check-up. Opposite party No.2
    advised the complainant for
    admission with opposite parties.
    Opposite party No.2 also suggested
    caesarean operation on the ground
    showing that uterus of the
    complainant was downward. Accepting
    the advice of the opposite party
    No.2, the complainant got admission
    in the City Nursing Home and
    Hospital, Ludhiana of the opposite
    party No.2. On the same day, itself
    operation was done and the wounds
    were sutured by the opposite party
    No.2 After about 35 minutes of the
    operation, the complainant was sent
    to private room upstairs. It is
    alleged that the doctor was
    negligence in sending the
    complainant upstairs just after 35
    minutes of the operation. She was
    not kept in delivery room. She was
    not administered any glucose by
    respondent No.2. On the other hand a
    heavy dose of antibiotics was
    advised and given by the staff of
    opposite party No.1. After 2-3 hours
    of the operation, the complainant
    felt pains and sufferings. On
    27.12.1997, the complainant was
    advised to take tea, juice and soup,
    etc. and the opposite party did not
    prescribe any precaution to the
    complainant. On 5th day after the
    operation the complainant developed
    vomiting but the opposite party No.2
    did not care and told that it was
    normal after delivery. The condition
    of the complainant further
    deteriorated that even a drop of
    water could not be digested by her.
    Glucose drip was started by the
    opposite parties when constant
    vomiting could not be controlled.
    Since the day of operation, the
    complainant felt pain and sufferings
    and she felt that something had left
    in the abdomen at the time of
    operation. On 7.1.1998, the stitches
    were opened and the complainant was
    discharged from hospital by the
    opposite parties. At the time of
    discharge, the complainant was still
    suffering from pain in the abdomen.
    As per narration, on 8.1.1998, some
    pus formation was felt by the
    complainant. On 10.1.1998, the
    matter was brought to the notice of
    the opposite party No.2, who deputed
    a Nurse who did some cleaning of the
    sinus with stick and cotton and
    reported the matter to the doctor,
    opposite party No.2. The complainant
    was again admitted in the hospital
    of the opposite party No.2.
    Antibiotic was started. The
    complainant still suffered vomiting
    every day and the position remained
    critical upto 15.1.1998. The
    opposite party No.2 suggested
    operation to the complainant. The
    complainant did not agree for the
    operation in the absence of her
    husband. Ultrasound was done . Upto
    22.1.1998 continuous discharge of
    the pus from sinus of the
    complainant remained. On 22.1.1998,
    the opposite party No.2 advised the
    complainant to consult the General
    Surgeon to drain the probable sinus.
    When the complainant suffered
    continuous discharge of the pain
    from sinus and she did not feel any
    relief from the constant pain and
    sufferings, the discharge was taken
    from the City Nursing Home, opposite
    party No.1. It is alleged that the
    respondents wrote a letter on
    23.1.1998 to the husband of the
    complainant requesting him to visit
    opposite party`s hospital and settle
    the outstanding dues against the
    complainant. In the letter it was
    also mentioned that the complainant
    had left the hospital without
    informing the opposite parties. The
    husband of the complainant visited
    the opposite parties and explained
    them there was nothing due against
    the complainant. The opposite
    parties vide letter dated 24.1.1998
    acknowledged that all dues have been
    settled. In a period of 18 days more
    than Rs.55,000/- were charged by the
    opposite parties.

        

    3. The complainant as alleged
    had to remain under pains and
    sufferings continuously. On 6.4.1998
    when the complainant`s condition
    deteriorated due to vomiting, pain
    and sufferings of the abdomen and
    due to continuous discharge of pus
    from the sinus, she was admitted in
    the Dayanand Medical College and
    Hospital, Ludhiana. In Dayanand
    Medical College and Hospital,
    Ludhiana, the complainant was
    operated upon. During the operation,
    the sinus was explored, a foreign
    body i.e. old retained sponge was
    found by the doctors operating upon
    the complainant in the D.M.C. and
    Hospital, Ludhiana. The operation in
    the D.M.C. and Hospital was a second
    operation of the complainant because
    of the constant pain, suffering and
    discharge of pus from the sinus
    having been formed on the abdominal
    operated part of the complainant by
    the opposite parties. The sponge was
    retained at the time of first
    caesarean operation performed by the
    opposite parties on 26.12.1997.
    After the sponge was taken out, the
    complainant remained under treatment
    of Dr.Subhash Goyal. A team of
    doctors or D.M.C. and Hospital
    during investigation found as under: 

    “Sinogram shows a collection
    seen in anterior part of peritoneal
    cavity communicating with sinus. CT
    Scan also showed a well defined
    collection containing costing and
    air in anterior part of peritoneal
    cavity communicating with
    sinus.”

         

    4. The doctors gave their
    opinion on 18.4.1998. It is also
    asserted that there was swelling on
    the abdomen of the complainant. The
    complainant was feeling tenderness
    and was also feeling temperature all
    the times. This all was due to
    negligence of the opposite parties
    in performing the operation on the
    complainant and leaving of the
    foreign material (old retained
    sponge) in the abdomen of the
    complainant. Thus, the opposite
    parties were not careful while
    performing the caesarean operation
    on the complainant and were thus
    negligence. Thus, the opposite
    parties were deficient in rendering
    service qua the complainant. Due to
    the operation, the complainant is
    not in a position to lift any weight
    and perform homely duties. The
    complainant was unable to extend her
    motherly love to the newly born
    child. So much so the complainant
    was unable to feed the child from
    the breast. The complainant has
    asserted that she has suffered the
    following side effects / sufferings
    due to the retention of sponge in
    the body and even after taking out
    the same by operation.

       

    (i) body pain and suffering by
    complainant.

    (ii) mental pain and suffering.

    (iii) excessive vomiting due to
    foreign material in the body.

    (iv) pus formation.

    (v) sinus formation.

    (vi) defect in digestive system due
    to foreign material and vomiting.

    (vii) advice by doctors not to lift
    any weight even the newly born baby.

    (viii) suffered operationals twice.

      

    5. On these allegations, the
    complainant has sought a direction
    to recover the following relief from
    the opposite parties.:

      

    (i) Body pain and sufferings
    Rs.5,00,000/-.

    (ii) Mental pain and sufferings
    Rs.2,00,000/-.

    (iii) Expenditure on treatment
    Rs.2,00,000/-.

    (iv) Deprivation of love and
    affection of the child
    Rs.2,00,000/-.

    (v) Future loss of body due to
    infection of foreign material in the
    body Rs.2,00,000/-.

    (vi) Rs.1,00,000/- on account of
    deprivation of providing own milk
    from the breast of the complainant
    to the newly born child.

    (vii) Rs.1,00,000/- are being claim
    on account of deprivation having
    third female child.

      

    6. On notice being served the
    opposite parties filed a written
    version. It is contended that the
    complaint is not maintainable under
    the Consumer Protection Act. This
    complaint is also not maintainable
    as no notice has been given to the
    parties. It is asserted that the
    opposite party No.2 has never
    performed the operation on the
    complainant. The operation was
    performed by Dr.Vijay K. Sekhri,
    MBBS, DGO, MD, Ex-Assistant
    Professor, C.M.C. Ludhiana, who is
    very renowned Surgeon in this field.
    The opposite parties admitted that
    the complainant was pregnant and she
    visited the Nursing Home but it
    could not ascertained whether the
    complainant took the precautions and
    medicines as advised. It has also
    been pleaded that the purpose of
    admission on 24.12.1998 was that the
    baby of the complainant was
    suspected to be growing less, than
    the expected and that her antenatal
    scan showed that the placenta was
    situated in lower portion of the
    uterus (PLACENTA PREVIA) thus will
    not allow normal delivery. The
    complainant knew this fact for a
    long time from the antenatal,
    checku-ps and scans. On 26.12.1998,
    the opposite parties noticed that
    the heart of baby started showing
    occasional irregularity and tendency
    to slow down. In medical terminology
    this is explained as that “The
    baby is showing evidence of distress
    and if allowed to progress may lead
    to the death of the baby.” The
    patient was not given any Glucose
    said to be part of negligence of the
    hospital by the complainant is
    totally false. In fact for the first
    day patients is not allowed food and
    some amount of Glucose. Amount an
    duration of it is decided by the
    doctor, according to the requirement
    based on medical judgment.

       

    7. The opposite parties
    admitted the fact that they
    performed the caesarean operation on
    the complainant for her delivery on
    26.12.1997 at their Nursing Home.
    The opposite parties have averred
    that the complainant was given
    Glucose. In fact, on the first day
    patient was not given food and some
    amount of Glucose was given. The
    opposite parties denied their
    liability to pay compensation as
    claimed by the complainant.



    8. To support her version the
    complainant filed evidence by way of
    various documents Annexure C-1 to
    C-16 and affidavits. The complainant
    also examined herself and Dr.Subhash
    Goyal, M. S. Professor of Surgery,
    Dayanand Medical College and
    Hospital, Ludhiana (C.W.1). The
    opposite parties filed affidavits
    namely, Dr.(Mrs.) Ajit Kang, Dr.Vjay
    K. Sekhri, Dr.Sirish Chandra. They
    got Exs.R-1 to R-8 documents marked
    in evidence.

       

    9. We have heard the learned
    Counsel for the parties, perused the
    pleadings and the material placed on
    record by the parties.



    10. Before proceeding to deal
    with the merits of the complaint, we
    have to see whether the opposite
    parties fulfilled the character of
    being a provider of
    “service” within the
    meaning of the relevant provisions
    of the Consumer Protection Act,
    1986, the other question is whether
    the complaint is maintainable in the
    present form as the necessary
    partner has not been impleaded in
    the present complaint. With regard
    to the service the definition of the
    term “Consumer” as given
    in Section 2(1) (d) of the Consumer
    Protection Act, 1986 is as under: 

    “(d) `consumer means any person
    who –

        

    (i) buys any goods for consideration
    which has been paid or promised or
    partly paid and partly promised, or
    under any system of deferred payment
    and includes any user of such goods
    other than the person who buys such
    goods for consideration paid or
    promised or partly paid or partly
    promised or under any system of
    deferred payment when such use is
    made with the approval of such
    person who obtains such goods for
    resale or for any commercial
    purpose; or

      

    (ii) hires or avails of any services
    for a consideration which has been
    paid or promised or party paid and
    partly promised, or under any system
    of deferred payment and included any
    beneficiary of such services other
    than the person who hires or avails
    of the services for consideration
    paid or promised, or partly paid and
    partly promised, or under any system
    of deferred payments, when such
    services are availed of with the
    approval of the first-mentioned
    person.”

      

    11. In the present case,
    there is no dispute that the
    complainant is not a consumer qua
    the opposite parties and the
    opposite party has not provided the
    service. With regard to the
    preliminary objections that the
    complaint is not maintainable, there
    is no evidence provided on behalf of
    the opposite parties / City Nursing
    Home and Hospital to suggest that
    there is any other partner / owner
    of the said hospital. No partnership
    deed has been placed on record to
    support the preliminary objection.
    The status of the partnership has
    not been made known to us through
    evidence whether the partnership
    deed is registered or unregistered.
    Whether it is a partnership or
    co-ownership. What is the status of
    the partner according to partnership
    law. According to law of partnership
    the relationship of principal and
    agent is established among the
    partners and this relationship is
    governed by the law of Agency

        

    12. It was held in Cox v.
    Hickman, that the law as to
    partnership is undoubted a branch of
    the law of the principal and agent.
    The liability of one partner for the
    acts of his co-partners is in truth
    the liability of a principal for the
    acts of his agent. When two or more
    persons are engaged as partners in
    an ordinary trade, each of them has
    an implied authority from the others
    to bind all other by contract
    entered into according to usual
    course of business in that trade. As
    no partnership deed has been placed
    on record, we do not agree with the
    contention of the learned Advocate
    that City Nursing Home and Hospital
    is a partnership concern. The
    contention is, therefore, rejected.

       

    13. Amidst the arguments
    learned Counsel for the opposite
    parties vehemently asserted that
    this Commission could not entertain
    the complaint on account of lack of
    pecuniary jurisdiction. This point
    has not been raised in the written
    version. He has referred to the
    claim made in the complaint that in
    prayer No.16, Rs.15 lacs and the
    actual loss has been calculated as
    Rs.2,00,000/-. Calculating the
    amount of speculative compensation
    is not a part of loss. Thus, the
    alleged amount of loss works out to
    be Rs.2,00,000/- till 8.8.1999, the
    date of filing the complaint and
    hence it is the District Forum where
    the complaint could be entertained
    and not before the State Commission.
    The learned Counsel further argued
    that the claim made is patently
    excessive and has alleged liability
    by the complainant with a view to
    create jurisdiction of this
    Commission. We are not inclined to
    accept this contention. The amount
    of Rs.15 lacs plus interest @ 18%
    per annum claimed towards
    compensation to be taken into
    consideration while deciding the
    question of pecuniary jurisdiction.
    In terms of Section 11 of the
    Consumer Protection Act, 1986,
    pecuniary jurisdiction of the FOR A
    depends upon the quantum of
    compensation claimed in the
    complaint. Section 11 of the
    Consumer Protection Act, 1986
    stipulates as under:

        

    “11. Jurisdiction of the
    District Forum –

    (1) Subject to the other provisions
    of this Act, the District Forum
    shall have jurisdiction to entertain
    complaints where the value of the
    goods or services and the
    compensation, if any, claimed does
    not exceed rupees five lakhs.

        

    (2) A complaint shall be instituted
    in a District Forum within the local
    limits of whose jurisdiction, —

      

    (a) the opposite party or each of
    the opposite parties, where there
    are more than one, at the time of
    the institution of the complaint,
    actually and voluntarily reside or
    carries on business or has a brand
    office or personally works for gain
    or

      

    (b) any of the opposite parties,
    where there are more than one, at
    the time of the institution of the
    complaint, actually and voluntarily
    resides or carries on business, or
    has a branch office, or personally
    works for gain, provided that in
    such case either the permission of
    the District Forum is given, or the
    opposite parties who do not reside,
    or carry on business or have a
    branch office, or personally work
    for gain, as the case may be,
    acquiesce in such institution; or
    arises.”

       

    (c) the cause of action, wholly or
    in part, arises.”

      

    14. Thus for determining the
    question of.

       

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


    I(2000)CPJ37(NC)

      

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

      

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

       

  • Dr.
    C.V. Mathew v. P. Babu


    I(2000)
    CPJ 134 SCDRC, Kerala

       

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

       

  • Janki
    S. Kumar v. Mrs. Sarafunnisa


    I
    (1999) CPJ 66, SCDRC, Kerela

      

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

      

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


    1,
    1996(1) CPR 244 (APSCDRC)

      

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

     

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

      

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

      

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

      

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

      

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

      

    mother was a case of pregnancy
    induced hypertension;  since
    patient did not progres till evening
    another doctor’s opinion was
    sought who suggested Caesarean
    section, but patient refused to
    undergo Caesarean; · the labour
    which had been induced by Oxytocin
    drip had to be discontinued as BP
    continued to be 160/100 despite
    treatment; when the amniotic
    fluid was found to be meconium
    (green) stained, Caesarean was
    suggested, but was refused by
    patient; during delivery, the head
    of the baby, was spontaneously
    delivered, but the patient did not
    co-operate with the shoulder
    delivery; as the baby was turning
    blue, there was danger of baby
    getting asphyxiated and even dying,
    the doctor had to apply traction for
    delivery of shoulders; the patient
    did not disclose that the first
    issue was forceps delivery, for then
    she would have insisted for
    Caesarean.

      

    A rejoinder affidavit filed by the
    complainant contended:

     

    it was not correct to say that the
    mother was having high BP the case
    sheet is silient with regard to
    temperature, BP and the plea that
    the nurse noted BP on white paper
    was concocted; · ultrasonography
    during pregnancy was never advised;
    ·  the supporting
    affidavits of other doctors to the
    effect that Dr. (Mrs.) Reddy had
    taken proper care in conducting
    delivery were without any basis.

      

    The State Commission held;

     

    ·       
    Dr. Reddy’s contention that by
    mere clinical examination the size
    of the baby cannot be ascertained
    hence the treating doctor

            
    did not anticipate the need for
    Caesarean could not be accepted;

      

    ·       
    no proper case sheet was maintained;

     

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

     

    ·       
    patient was admitted at 6.30 am and
    delivery was effected at 10.20 pm
    when it was found that the delivery
    was difficult she

            
    should have done Caesarean section;

     

    ·       
    the contention that the patient
    refused cannot be accepted; consent
    of mother or husband of the patient
    who were present

            
    at the Nursing Home throughout could
    have been taken;

      

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

     

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

            
    delivery of the shoulders;

      

    ·       
    Dr. Vittal Reddy after thorough
    examination of the complaint stated
    in his affidavit that the birth
    injury could have been avoided,

            
    if proper care had been taken;

     

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

            
    traction;

      

    ·       
    Dr. V.P. Patnaik, Professor of
    Forensic Medicine on perusal of the
    documents gave an affidavit stating
    that if the cause of

           
    distress was elicited before labour,
    and timely assistance to the mother
    and fetus were given by way of
    surgical interference,

           
    it could have prevented the Erb’s
    Palsy.

      

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

      

  • Sau.
    Madhuri v. Dr. Rajendra & Ors.


    1996(3)CPJ
    75(NCDRC) 15)

     

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

     

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

      

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

      

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

      

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

     

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

         

  • Rohini
    Pritam Kabadi v. Dr. R.T. Kulkarni


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

      

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

     

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

        

  • Vinubhai
    Parshottamdas Patel v. Dr.Vijay K.
    Ajmera


    1997(1)
    CPR 348 (Guj SCDRC)


      

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

     

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

      

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

       

  • Mayo
    Hospital v. Sunil Tiwari


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

      

    a chorion sample for biopsy was
    taken out from the womb of the
    complainant’s wife on 26.2.94 for
    which Rs.1200/- was charged. Due to
    delay in transit of 2 days the
    sample was spoiled. Repeat biopsy
    was taken on 3.3.94 but this time
    also the sample reached Indore after
    4 days and was not worth testing.

      

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

       

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


    1997(1)
    CPJ 103 (Gujarat SCDRC)

      

    was taken to opposite party No. 1
    for Caesarean operation, delivered a
    child, but did not regain
    consciousness shifted to another
    hospital and ultimately died in
    early hours next day. Post-mortem
    was done on the insistence of the
    complainant.

     

    It was stated by the opposite
    parties that the patient was a known
    case of placenta previa grade 3.
    Patient was advised operation on
    3.8.93 but refused, and when
    she came on 5.8.93 she was bleeding
    profusely. Blood was arranged, and
    she was taken up for emergency
    Caesarean, under spinal
    anaesthesia. Other gynecologists was
    called to help as an “abundant
    caution”. All measures to stop
    oozing from the placental bed were taken
    and when all was thought well, the
    abdomen was closed. Since the
    patient’s condition despite 8
    units of blood continued to
    deteriorate it was decided to
    shift her to another hospital.
    Removal of uterus was felt not
    necessary. Report of post-mortem was
    not correct and mala fide.

     

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

     

    The port-mortem report stated that:

     

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

     

    Some branches of uterine artery
    showed ante-mortem cuts and they
    were not ligated and there was large
    haematoma around it .Uterus was reparied
    deficiently. The cause of death is
    shock as a result of intra-abdominal
    haemorrhage following negligent
    surgical procedure and repair.  

      

    Histopathological reports are
    non-contributory.-

     

    -Opinion” by Dr.R.M. Jhala was
    produced, but it was not clear who
    and why and in what capacity his
    opinion was asked. Dr. Jhala was
    neither examined nor he made
    any statement regarding present
    case. Innumerable medical references
    were given but none of them was
    comparable to the present
    situation and the State Commission
    held that it served no purpose for
    the complainant or opponent, and
    seemed to be an exercise in futility.

      

    There were material differences in
    statement of Dr Shah opposite party
    No.1 and Dr. Patel, anaesthetist.
    Dr. Shah said patient was serious on arrival
    and blood pressure was low, Dr.
    Patel said patient was fit and
    normal. Dr. Shah said patient had
    bleeding per vagina but Dr. Patel
    denied the same. Dr. Shah had
    produced two sets of xerox copies of
    case papers, but no original copies
    were presented. There was no
    clarification as to how there
    was disparity in both papers.

      

    Dr. Lilaben Trivedi was called as a
    witness because she was chair-person
    of Committee appointed by Medical
    Council of Gujarat who had also nstituted
    inquiry in the present case. Dr.
    Trivedi admitted knowing Dr. Jhala
    but the Committee was not
    knowledgeable about the report of Dr Jhala.
    Dr. Trivedi utterly failed to
    explain why and how so many
    paragraphs of Dr. Jhala’s report
    were incorporated in Committee’s
    report ditto to ditto with no
    change even in coma or full stop.
    The State Commission inferred that
    the Committee prepared its report on
    basis of Dr. Jhala’s report and
    did not apply its mind or
    investigated as was expected.

     

    Dr. Shah inspite of request failed
    to present himself for
    cross-examination by complainant and
    therefore his statements remained
    unproven and were not accepted
    as evidence. No independent,
    uninvolved (directly or indirectly)
    expert was called to confirm the
    claims of Dr. Shah or to refute  the
    charges of complainant.

     

    The State Commission did raise some
    doubt regarding the post-mortem
    report as far as writing the mode of
    death was concerned, viz., the cause of
    death is shock as a result of
    intra-abdominal haemorrhage
    following negligent surgical
    procedure and repair, but held that
    the other findings are
    corroborative evidence, sufficient
    to conclude that the patient died
    because of exsanguination which,
    with due diligence and advance
    precaution, could have been
    prevented.

      

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

       

  • ALEYAMMA
    VERGHESE V. DEWAN BAHADUR DR. V.
    VERGHESE & ORS


    1997(3)
    CPJ 165 (Kerala SCDRC)

     

    it was held that:

     

    ·       
    though the Thiruvalla Medical
    Mission Hospital is a charitable
    institution and was run under a
    Trust Deed, but as the treatment
    done was on payment of
    consideration, which is on record;

     

    ·       
    the complainant’s wife underwent
    Caesarean operation, but a large
    sponge was left behind as was proved
    by the evidence of the doctor who
    removed it and also from the C.T.
    Scan report. The scrub nurse was
    responsible for counting the sponges
    and negligence was held on her part.
    The hospital as employer was
    vicariously held liable to
    compensate but as the hospital was
    insured, the Insurace Company was
    asked to pay compensation
    amount of Rs.98506/- to the
    complainant.

       

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

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

     

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

      

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

     

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

      

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

     

    The duration of surgery of about
    seven hours went beyond the
    estimated time; since the duration
    of any surgery is uncertain,
    this makes it all the more essential
    for the doctors to be prepared for
    any likely contingencies;

     

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

      

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

       

  • HARVINDER
    KAUR – Appellant versus DR. (MRS.)
    SUSHMA CHAWLA & ANR.
    -Respondents


    III (2001) CPJ 143 PUNJAB STATE
    CONSUMER DISPUTES REDRESSAL
    COMMISSION, CHANDIGARH

      

    Consumer Protection Act, 1986 -
    Sections 2(1)(g), 15 – Medical
    Negligence – Deficiency in Service -
    Compensation – Sponge left in the
    abdomen during caesarean operation -
    Complainant had to be operated again
    for removal of sponge – Prima facie
    case of medical negligence proved -
    Respondent had not taken much care
    which a doctor of ordinary skill
    should have taken – Complainant
    entitled to damages done due to
    negligence and carelessness -
    Entitled to compensation and cost of
    second operation along with
    interest..

      

    Held : Applying ratio to the
    decision of the Supreme Court as
    referred to above, to the facts of
    the present case, it can be stated
    that it is a prima facie case, of
    medical negligence on the part of
    the respondent No 1. The
    complainant’s tale of agony and
    misery started after the caesarean
    operation only. She visited the
    clinic of the respondent No 1 on
    27.9.1997 for post operative check
    up. Her misery became doble folded
    when she underwent “Short Wave
    Diathermy” Instead of
    exercising a reasonable degree of
    skill, care and knowledge, she
    advised only few pain killers and
    rest. She should have taken post
    operative care of her patient and
    should have suggested scanning,
    X-ray or needle test. As per the
    complainant’s version, on her visits
    after the caesarean operation,
    respondent No 1 did not examine her
    physically. Had she been careful,
    she should have diagonosed the
    “mass” which was clearly
    palpable on touching, according to
    the complainant, According to the
    Counsel of the Respondent No 1, she
    is a well qualified P.G.I (Gold
    medallist) physician but inspite of
    these qualifications, it is proved
    on record that she had not taken
    much of care which a doctor owes
    certain duties which must be
    performed in a reasonable manner and
    with due care and caution. Had she
    been cautions about the complaint of
    pain by the complainant, she could
    have gone to the root cause of the
    suffering of the complaint. If a
    doctor does not act prudently with
    care, as the respondent No. 1 has
    done in the present case, the
    complainant becomes entitled to the
    damages done on account of her
    negligence and carelessness.

     

    After holding negligent act on the
    part of the respondent No.1 in the
    matter of leaving the
    “sponge” in the abdomen of
    the complaints of pain and suffering
    in a skillful manner as a physician
    should  have attended to
    his/her post operative duties. The
    future question for consideration is
    as to ascertain the quantum of
    compensation for the loss she has
    suffered from the affidavits of the
    complainant and her husband and
    other witnesses, it is proved beyond
    doubt that the complainant had to be
    operated at Bawa Hospital for
    removal of the sponge from her
    abdomen which had been negligently
    left during caesarean operation
    performed by respondent No 1. Apart
    from the factum of spending money
    for the second operation, medicines
    and stay in the Bawa Hospital, she
    also suffered mental agony, pain and
    suffering during the period the
    “sponge” remained in her
    person and could not attend to her
    twins as a normal mother should have
    . There is no yardstick specially
    provided to assess the loss on
    account of mental agony or pain
    suffered in such like matters. On
    that Count, compensation is to be
    fixed on estimation In the present
    case, of sum of Rs 1 Lac is
    considered just compensation under
    that head     
    (Paras 12 & 13 )

       

    Result : Appeal allowed.

       

    ORDER

       

    Mrs. D.K. Bhamrah, Member – Smt.
    Harvinder Kaur w/o Shri Harwant
    Singh has filed appeal under section
    15 on the Consume Protection 
    Act, 196 against the order dated
    1.4.1999 passed by the District
    Forum, Jalandhar, dismissing her
    complaint with view that the
    complainant had not been able to
    prove prima facie any medical
    negligence on the part of the
    opposite party.

      

    2. The case of the complainant in
    short is that she was admitted in
    the hospital of the opposite party
    No. 1 Dr. (Mrs) Sushma Chawla, at
    about 9:00 a.m. on 10.9.1997. She
    was taken to the operation theatre
    whereby caesarean operation was
    carried out and two babies where
    born. After the delivery, she go the
    tubectomy operation done from the
    opposite party No. 1, on the same
    day. She was discharged from the
    hospital on 19.9.1997 by the
    opposite party. As per the
    allegation of the complainant, she
    was not feeling perfectly well at
    the time of discharge.. She was
    informed by opposite of tubectomy.
    she was assured of complete recovery
    within a month. The opposite party
    No 1 insisted her to visit the
    hospital for general check up and
    for follow-up treatment and the
    complainant had been visiting the
    opposite party No 1 and complained
    about the pain in the abdomen and
    opposite party No. 1 suggested only
    medicines and short Wave Diathermy (S.W.D).
    She was also advised complete rest.
    As the complainant could not bear
    the pain of abdomen then she
    consulted another Physician namely,
    Dr. Ranbir Sing, Medical Surgeon of
    Jalandhar who advised for scanning
    of the abdomen, needle test and
    X-rays etc. while she got conducted
    from Bhangu Scan and X-ray Clinics,
    Jalandhar. It was clear from it that
    there was some foreign objection
    (Mass) at the left side of the
    abdomen just above umblicus level
    like a ball and had also noticed
    thick pus. Then on the advice of Dr.
    Ranbir (M.S.), the complainant got
    herself admitted in the Bawa
    Hospital, Jalandhar on 18.11.1997
    for further operation to get the
    foreign object removed as her health
    was day by day falling down and she
    was feeling discomfort, uneasiness
    and weakness. She handed over the
    original reports os Scan, Needle
    Test and other reports of the
    hospital before the operation. On
    the basis of which she was operated
    on 19.11.1997 and a
    “sponge” was removed from
    peritoneal Cavity by the doctors of
    Bawa Hospital, Jalandhar. The
    complainant remained admitted in
    Bawa Hospital, jalandhar upto
    25.11.1997. She was issued discharge
    certificate by Dr. Ramesh Kashyap,
    Resident Medical Officer of Bawa
    Hospital. According to the
    complainant, the “sponge”
    which was removed by the doctor of
    Bawa Hospital remained in the
    abdomen due to negligence of
    opposite party No 1 while performing
    the caesarean operation on the
    person of the complaianant on
    10.9.1997. The sponge was used for
    protecting the velns and the
    arteries below and around the uterus
    which had to be removed after the
    operation and before the stiching of
    the internal layer and outer skin of
    the abdomen

       

    Due to this negligent act the
    complainant had to suffer a lot, She
    spent Rs. 50,000/- for the medicines
    and operation charges, physically
    also she was unable to do her daily
    routine jobs and found herself
    incapacitated to look after her
    children.  So she had prayed
    that for all the reasons state
    above, she may be awarded
    compensation to the tune of Rs
    5,00,000/- (Rupees Five lacs ) for
    deficiency in rendering service.

       

    3. On being noticed, the opposite
    party No 1 filed the written
    version, alleging that false and
    frivolous complaint had been filed
    against them which is not
    maintainable. it has been denied if
    the opposite party No 1. was in any
    way negligent in providing medical
    care to the complainant. some of the
    facts were admitted such as the
    Caesarean Operation. she was
    discharged on 9th post operative day
    which is usual time for normal
    recovery. After discharge, the
    complainant came on 27.9.1997 for
    mother and baby check-up,
    immunization day and she was
    suggested S.W.D. (short wave
    Diathermy), which is a mild heat
    theorapy for recovery for internal
    wound. It has been denied if the
    opposite party No. 1 was careless
    and negligent towards the
    patient/complainant. It has been
    further denied if any foreign object
    was removed from the abdomen in the
    operation. In this regard, it is
    stated that at the time of a
    caesarean operation on the person of
    the complainant and as per practice
    of Nursing Home of the opposite
    party No. 1, no intra-abdominal
    sponge was used in caesarean section
    as the same is an old and out dated
    routine.

       

    4.  According to her record, at
    the time of operation on the person
    of the complainant, there was a team
    of doctors which consisted of Dr
    Sushma Chawla, Dr. Anu, Dr. Harmeet,
    Dr. Upma and Dr. Savinder Singh,
    ” sponge” which were used
    contained radio-opaque element
    whereas X-ray produced by the
    complainant herself shows the there
    was no Radio-opaque element in the
    mass. Even the report of the scan of
    the abdomen does not indicate that
    there was any sponge left but
    indicates there was a mass in the
    abdomen above the umblicus whereas
    the said portion was not even
    exposed by the opposite party No 1.
    It has been denied if due to any
    carelessness or medical negligence,
    the complainant to undergo the
    second operation or she suffered any
    mental tension harassment due to the
    act of the opposite party No 1.

       

    5.  The District Forum after
    considering the respective cases of
    the parties and perusing the
    evidence on record came to the
    conclusion that the opposite party
    has not been able to prove prima
    facie any medical negligence on the
    part of the opposite party. With
    these observations, District Forum,
    dismissed the complaint without
    costs giving rise of the present
    action to the complainant. 

       

    6.  In appeal Mr. G.S. Mann,
    Advocate appeared on behalf of the
    appellant and Mr. T.N. Gupta,
    Advocate represented respondent No.
    1,  Dr. Sushma Chawla, Mr.
    Vishwas Ahuja, Advocate was on
    behalf of the Insurance Company. We
    have carefully perused the record of
    the District Forum. Two questions
    arise for our consideration, (1)
    whether the respondent No. 1 was
    negligent in rendering service. (2)
    if so, what relief the complainant
    entitled to ?

       

    7.  The case of the appellant
    as put forward by her Counsel is
    that the caesarean operation was
    performed on 10.9.1997 by Dr. Sushma
    Chawla. The complainant was
    discharged on 19.9.1997. She
    revisited for the follow up check on
    27.9.1997 and complained of pain in
    abdomen for which she was advised
    few medicines and S.W.D. As her
    condition did not show any sign of
    improvement, she consulted  Dr.
    Ranbir Singh, M.S., who advised
    scanning, X-ray and needle test,
    Which were got conducted and on the
    basis of these tests, she had to
    undergo another operation on
    19.11.1997 at Bawa Hospital. He
    brought to our notice Annexure C-6,
    the certificate given by Bawa
    Hospital signedby Dr. Ramesh and
    admitted by Dr. P.S.Bakshi, on
    17.6.1998, which reads as under.

       

    8.  This is to certify that
    patient Harvinder Kaur, 32 F 
    Was admitted in this hospital with
    mass abdomen on 18.11.1997 and
    underwent exploratory laparotomy on
    19.11.1997. On exploration,
    “sponge” removed from the
    peritoneal cavity.”

       

    9.  The learned Counsel for the
    appellant argued that above
    mentioned certificate was sufficient
    evidence to prove that a sponge was
    left in the abdomen of the
    complainant during the first
    operation due to the negligence of
    the respondent No. 1 but the
    District Forum had not taken note of
    this certificate. To strengthen his
    argument further, he referred to
    Annexure C-4 ‘operative notes’ which
    reads as under : 

       

     “Operative Notes :

       Under G.A. (General
    Anaesthesia)

       Left paramedian
    incision – exploratory laparotomy
    done. 

       

       Loops of Bawel and
    Omentum were matted together in left
    para-umbical region. On separation
    of the loops of Bowel some pus,
    necrotic material and
    “sponge” like substance
    was removed. After careful
    dissection, the inter loop adhesions
    were lysed. The result and cavity
    was irrigated with antibiotic
    solution, drain left at the site
    closure of the peritoneal cavity and
    abdomen in layers after complete
    hemostasin.”

      

    10. This operation note is dully
    signed by Dr. P.S.Bakshi (Operation
    Surgeon), his Assistant Dr. Ramesh
    and Anaesthesist Dr. Upma

       

    11.  The counsel for the
    respondent No. 1 put forward his
    argument that the “sponge”
    used in the hospital of Dr. Sushma
    Chawla contained Radio-opaque
    element and no intra abdominal
    sponge was used in caesarean section
    as the same is an old and out-dated
    routine. The X-ray produced by the
    complainant shows that there was no
    Radio-opaque element in the mass.
    Even the scan report of the abdomen
    indicates that there was no
    Radio-opaque element in the mass.
    Even the scan report of the abdomen
    above umblicus whereas the said
    portion was not even exposed by the
    respondent No. 1. In such like
    situation, where he medical
    negligence is apparent but is
    obviously denied by the party, the
    judgment of Apex court comes to the
    negligence of the medical
    practitioners. In the case of Indian
    Medical Association v V.P. Shantha
    & Ors. III (1999) CPJ 1
    (SC)=(1995) 3 CTJ pg. 969 (SC) (CP),
    that Fora could got into the matter
    as if it was a case of prima facie
    negligence. In para 38 of the same
    judgment, it is held as under :

       

      ” It is no doubt true
    that sometimes complicated questions
    requiring recording of evidence of
    experts may arise in a complaint
    about deficiency in service based on
    the ground of negligence in
    rendering medical services by a
    medical practitioner; but this would
    not be so in all the complaints
    about deficiency in rendering
    services by a 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 limb or the performance
    of an operation on the wrong patient
    of giving injection of a drug to
    which the patient is allergic
    without looking into the out-patient
    and containing the warning [ as in
    Chin Keow v. Government of
    Malaysia,1967 ACJ 379 (PC, England)]
    , or use of wrong gas during the
    course of an anaesthetic or leaving
    inside the patient swabs or other
    items of operating equipment after
    surgery. One after reads about such
    incidents in the newspaper. The
    issues arising in the complaints 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.”

       

    12. Applying ratio to the decision
    of the Supreme Court as referred to
    above, to the facts of the present
    case, it can be stated that it is a
    prima facie case of medical
    negligence on the part of the
    respondent No. 1. The complainant’s
    tale of agony and misery started
    after the caesarean operation only.
    she visited the clinic of the
    respondent No. 1 on 27.9.1997 for
    post operative check up. Her misery
    became double folded when she
    underwent “Short Wave
    Diathermy”. Instead of
    exercising a reasonable degree of
    skill, care and knowledge, she
    advised only few pain killers and
    rest. She should have taken post
    operative care of her patient and
    should have suggested scanning,
    X-ray or Needle Test. As per the
    complainant’s version, on her visits
    after the caesarean operation,
    respondent No. 1 did not examine her
    physically. Had she been careful,
    she would have diagnosed the
    ‘mass” which was clearly
    palpable on touching, according to
    the complainant. According to the
    counsel of the respondent No 1, she
    is a well qualified P.G.I. (Gold
    Medallist) Physician but inspite of
    these qualification, it is proved on
    record that she had not taken much
    of care which doctor owes certain
    duties which must be performed in a
    reasonable manner and with due care
    and caution. Had she been cautious
    about the complaint of pain by the
    complainant, she could have gone to
    the root cause of the suffering of
    the complainant. If a doctor does
    not act prudently with care, as the
    respondent No. 1 has done in the
    present case, the complainant
    becomes entitled to the damages done
    on account of her negligence and
    carelessness.

       

    13.  After holding negligent
    act on the part of the respondent
    No. 1 in the matter of leaving the
    “sponge” in the abdomen of
    the complainant and not giving heed
    to her complaints of pain and
    suffering in a skilful manner as a
    physician should have attended to
    his/her post operative duties. The
    further questions for consideration
    is as to ascertain the quantum of
    compensation for the loss she has
    suffered from the affidavits of the
    complainant and her husband and
    other witnesses, it is proved beyond
    doubt that the complainant had to be
    operated at Bawa Hospital for
    removal of the sponge from her
    abdomen which had been negligently
    left during caesarean operation
    performed by respondent No. 1. Apart
    from the factum of spending money
    for the second operation, medicines
    and stay in the Bawa Hospital, she
    also suffered mental agony, pain and
    suffering during the period the
    “sponge” remained in her
    person and could not attend to her
    twins as a normal mother should
    have. There is no yardstick
    specially provided to assess the
    loss on account of mental agony or
    pain suffered in such like matters.
    On that count, compensation is to be
    fixed on estimation. In the present
    case, a sum of Rs 1 lac is
    considered just compensation under
    that head. Though in the complaint,
    a sum of Rs. 5 lac has been claimed
    which is highly excessive. The
    amount spent on the second operation
    is claimed to be Rs 50,000/-. The
    voucher and bills submitted by the
    complainant in this regard from the
    part of the record. After
    calculating the amount mentioned
    therein, the total amount sent for
    the second operation comes to Rs.
    17,021.70 p. Thus, the complainant
    is entitled to the sum of Rs.
    17,025.70 p. the actual expenses
    incurred by her along with interest
    @ 15%. Thus, the amalgamated sum of
    award will be as such Rs. 1 lac as
    compensation for mental agony and
    suffering, Rs 10,000/- assessed as
    costs of litigation. The amount
    under the head of actual expenses
    calculated as Rs. 17,025/- will be
    awarded along with interest @15%
    from the date of filing of the
    complaint till its realization. The
    liability to make payment of the
    aforesaid amount would be that of
    the respondent No. 1.

       

    14.  For the reasons recorded
    above, we are of the considered view
    that the District Forum erred in its
    approach and had dismissed the
    complaint without appreciating the
    evidence produced by the
    complainant. As result, this appeal
    is allowed and the order of the
    District Forum is set aside. The
    above mentioned directions regarding
    the reward are to be followed within
    a period of one month from the
    receipt of the is order.

        

    Appeal allowed.

             

  • Akhil Bhartiya Grahak Panchayat &
    Anr. v. Sevayan Nursing Home


    2001 (3) CPR 149 (NC)



    Consumer Protection Act, 1986 – Sections 2 and 14 – Medical negligence – Claim for
    Rs. 30 lakhs for death of wife of complainant No. 2 – Deceased had two minor children – Compromise between parties whereby opposite party No. 2 agreeing to pay
    Rs. 3 lakhs in six monthly installments of
    Rs. 50,000/- each – Default to make opposite party liable to pay
    Rs. 4 lakhs which shall become due and payable immediately – Amount to be paid by bank draft drawn in name of minor children. (Para 1)




    ORDER




    D.P. Wadhwa, President – In this complaint of medical negligence alleged by the 2nd Complainant, Shri Binay Bhushan Das, for the death of his wife,
    Smt. Manjushree Das on 22th August, 1992, there is claim for
    Rs. 30 lakhs. It is stated that the couple had two minor children (1) Master Shankhoshubhro Das, aged 13 years (approximately) and (2) Ku. Madhushree Das, aged 8 years (approximately). Mr. Avik
    Dutta, Advocate, in the presence of the 2nd Complainant, says that they give up the claim against 1st and 3rd Opposite Parties. However, it is agreed that without prejudice to the respective contentions to the parties, and without in any way laying the claim of negligence on the shoulders of Opposite Party No. 2. Dr.
    A.K. Nandi, who is present in Court, Dr. Nandi will pay a sum of
    Rs. 4 lakhs to the aforesaid minor children of the deceased, Mrs. Manjushree Das. In case the amount of
    Rs. lakhs in six monthly installments of
    Rs. 50,000/- each for six months is paid, the whole of the claim of the amount of
    Rs. 4 lakhs shall stand discharged. In any case, in default, the whole balance amount from
    Rs. 4 lakhs shall become due and payable immediately. The amount of
    Rs. 50,000/- shall be paid by means of a bank draft drawn in the names of the minor children in whose name the bank account shall be opened by their father, who himself is an employee of the Central Bank of India. This amount shall be kept in recurring deposit and thereafter an
    F.D.R. shall be taken out and interest accruing from that shall be used for bringing up of the minor children. After any of the children attains majority, he shall be entitled to half of the amount and it will be his or her will to keep the fixed deposit or to utilise the amount for his or her education or for any other purpose. The bank draft shall be payable on or before 10th of every month, 1st bank draft being payable on or before 10th of every month, 1st bank draft being payable on or before 10th September, 2001. If the bank account number of the minor children is given to Dr.
    A.K. Nandi, the amount of Rs. 50,000/- (first installment) may be deposited directly in the account. Otherwise, the bank draft shall be sent by registered post to the address of Mr. Binay Bhusan Das. It is made clear that as the children are minors, the account shall be operated by the father who is the natural guardian. This order shall form part of the award of this Commission. Original Petition accordingly stands disposed of.



    Petition disposed of accordingly.

       



   


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Obstetric & Gynaecologist
      
          

  • Dr Sr Louie And Ors v Smt Kannolil Pathumma and Anr
    2 1993(1) CPR 422
      
    It was held by the national commission that :
      

  • as fee was charged for room rent  , treatment etc,the service rendered falls within the scope of the act.

  • Heirs / legal representatives of deceased complianant entitled to file complaint.

  • Medical negligence existed on the following grounds :   

  • Patient was known to have complications during the first delivery in same hospital and after admission to induce labour she was started on Syntocinon drip. Artificial rupture  of membranes was done. At this point the doctor left the patient to  attend to patients in OPD .This was against the standard medical recommendations (of reasonable care and skill)
      
    The condition of the patient became bad . Doctor was called who applied vacuum extractor.The baby extracted was asphyxiated and mother started bleeding heavily .Both died subsequently. Was the doctor employed by the hospital qualified to do this procedure? The name board exhibited by the Hospital mentioned M.D against her creating an impression that the doctor possessed post graduate degree in Gynaecology.The degree Degree  M.d (gyn) was obtained from Freiberg Germany which was as per rules and directions from MCI should have been mentioned .This degree is equal to M.B.B.S in India.aqlthough the doctor had undergone practical training courses in Gynaecology she had not acquired any degree or diploma in that discipline. So she was not entitled to claim that she is M.d gyn in India. Hence she was not qualified to undertake this procedure and the resultant vacuum slip had led to complications. also held liable for misrepresentation of facts Complainant was awarded Rs 77000 as compensation to be paid by the society which is running the hospital.
       

  • R.Lalitha v M.Jeeva 
    1992(2) CPR 409 (TN SCDRC)
      
    The complaint was regarding negligence of private doctor’s hospital which the compliant attended for parental treatment, etc. her uterus got ruptured on account of delayed labour  and the male child, who was born died. The  State Commission observed :
      

  • here is a case where the opposite party who is merely a nurse and a mid wife has taken upon herself , the management of a situation pregnant with dire consequences as this was a case of second casesarian operation and her management has ultimately led to the rupture of the uterus , removal of it and to the death of her male child… The opposite party has acted rashly , recklessly and with culpable negligence.”
      It held the opposite party guilty of gross negligence and awarded a compensation of Rs 2.5 lacs.as under :

  • Rs 1 lakh for the rupture and removal of the uterus which is a permanent injury of a grave character;

  • Rs 1 lakh for the agony and pain pain suffered; and

  • rupees 50000 for the loss of the male child.

On appeal the National Commission in M.Jeeva v R.Lalitha upheld the decision of the state commission except that compensation of pain and agony reduced from Rs100000 to Rs 50000 .
Also awarded Rs 10000 as the costs. Negligence was held on following grounds :

  • attempting to undertake a known complicated case of delivery beyond her level of competence;

  • delaying referral to higher centre; and 

  • false and vacillating statements, eg ., patient had remained in the hospital for 2 hours; she was referred without any medical assistance; she had come with complication of threatened  rupture of uterus; no male member had accompanied her, etc.
      

  • MRS.MEENA VYAS v. CITY NURSING HOME AND HOSPITAL
    II (2000) CPJ 172
      
    Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d) – Medical Negligence – Deficiency in Service - Compensation – Sponge left negligently in the process of caesarian operation for the delivery of child – Complainant`s condition deteriorated – Operated again - Sinus explored, foreign body (old retained sponge) found – Vital organ in body remained disturbed – Nothing cogent brought on record to discard the record of second operation - Opposite party guilty of negligence – Complainant entitled to compensation.
         
    Held : In this case the sponge was left negligently in abdominal cavity of the complainant during the operation performed by the opposite party which endangered the life of the complainant. After the operation, the condition of the complainant was deteriorated. She developed constant vomiting and pains. She felt that something had left in her abdomen at the time of operation. There was no improvement thought the opposite parties assured her that she would be alright after some days. On 7.1.1998, the stitches were removed and the complainant was discharged from the hospital by the respondent. Even at the time of discharge she was suffering from pain in the abdomen. The complainant suffered vomiting every day. Eventually, it developed continuous discharge of the pus from sinus of the complainant. The complainant remained under treatment with the opposite parties upto 22.1.1998 when she was asked to consult from other Surgeon to drain the probable sinus. On 6.4.1998 she was admitted in the Dayanand Medical College and Hospital, Ludhiana where she was operated upon. During the operation the sinus was explored, a foreign body (old retained sponge) was found as per report referred above of the doctors operating upon the complainant in the Dayanand Medical College and Hospital. There was no operation in between 26.12.1997 and 6.4.1998 during the operation in the Dayanand Medical College, old retained sponge was found by the doctors of the D.M.C. Apparently the old retained sponge was that of the opposite parties. It may be observed that the vital organ in the body remained disturbed ever since she was relieved from the hospital of the opposite parties. In the circumstances, it is assumed that the sponge was left in the process of caesarean operation for the delivery of the child by the opposite parties which could cause damage to other organs. Thus, we hold opposite parties guilty of negligence and accept the ipse, dixit of the complaint. (Para 26)
        
    (ii) Hospital – Liability of - Hospital responsible for acts of its employees – Negligence can be attributed to the functionaries and authorities – Hospital liable for the consequence. (Para 25)
        
    (iii) Pecuniary Jurisdiction - Compensation of 15 lacs claimed - Commission has jurisdiction to adjudicate the dispute. (Para s 13 & 14)
       
    (iv) Words and Phrases - “Thrombosis of Cerebral Sinuses and Veins” – Explained. (Para 18)
      
    Result : Complaint allowed with costs.
      
    ORDER
      
    Mr. Jasbir Singh, Member – This is complaint under Section 12 of the Consumer Protection Act, 1986 for the deficiency in service and negligence on the part of the opposite parties for awarding compensation amount to Rs.15 lacs to the complainant.
         
    2. The brief facts as per narration giving rise to this complaint are that on 26.12.1997, the complainant along with her husband visited the opposite parties for check-up. Opposite party No.2 advised the complainant for admission with opposite parties. Opposite party No.2 also suggested caesarean operation on the ground showing that uterus of the complainant was downward. Accepting the advice of the opposite party No.2, the complainant got admission in the City Nursing Home and Hospital, Ludhiana of the opposite party No.2. On the same day, itself operation was done and the wounds were sutured by the opposite party No.2 After about 35 minutes of the operation, the complainant was sent to private room upstairs. It is alleged that the doctor was negligence in sending the complainant upstairs just after 35 minutes of the operation. She was not kept in delivery room. She was not administered any glucose by respondent No.2. On the other hand a heavy dose of antibiotics was advised and given by the staff of opposite party No.1. After 2-3 hours of the operation, the complainant felt pains and sufferings. On 27.12.1997, the complainant was advised to take tea, juice and soup, etc. and the opposite party did not prescribe any precaution to the complainant. On 5th day after the operation the complainant developed vomiting but the opposite party No.2 did not care and told that it was normal after delivery. The condition of the complainant further deteriorated that even a drop of water could not be digested by her. Glucose drip was started by the opposite parties when constant vomiting could not be controlled. Since the day of operation, the complainant felt pain and sufferings and she felt that something had left in the abdomen at the time of operation. On 7.1.1998, the stitches were opened and the complainant was discharged from hospital by the opposite parties. At the time of discharge, the complainant was still suffering from pain in the abdomen. As per narration, on 8.1.1998, some pus formation was felt by the complainant. On 10.1.1998, the matter was brought to the notice of the opposite party No.2, who deputed a Nurse who did some cleaning of the sinus with stick and cotton and reported the matter to the doctor, opposite party No.2. The complainant was again admitted in the hospital of the opposite party No.2. Antibiotic was started. The complainant still suffered vomiting every day and the position remained critical upto 15.1.1998. The opposite party No.2 suggested operation to the complainant. The complainant did not agree for the operation in the absence of her husband. Ultrasound was done . Upto 22.1.1998 continuous discharge of the pus from sinus of the complainant remained. On 22.1.1998, the opposite party No.2 advised the complainant to consult the General Surgeon to drain the probable sinus. When the complainant suffered continuous discharge of the pain from sinus and she did not feel any relief from the constant pain and sufferings, the discharge was taken from the City Nursing Home, opposite party No.1. It is alleged that the respondents wrote a letter on 23.1.1998 to the husband of the complainant requesting him to visit opposite party`s hospital and settle the outstanding dues against the complainant. In the letter it was also mentioned that the complainant had left the hospital without informing the opposite parties. The husband of the complainant visited the opposite parties and explained them there was nothing due against the complainant. The opposite parties vide letter dated 24.1.1998 acknowledged that all dues have been settled. In a period of 18 days more than Rs.55,000/- were charged by the opposite parties.
        
    3. The complainant as alleged had to remain under pains and sufferings continuously. On 6.4.1998 when the complainant`s condition deteriorated due to vomiting, pain and sufferings of the abdomen and due to continuous discharge of pus from the sinus, she was admitted in the Dayanand Medical College and Hospital, Ludhiana. In Dayanand Medical College and Hospital, Ludhiana, the complainant was operated upon. During the operation, the sinus was explored, a foreign body i.e. old retained sponge was found by the doctors operating upon the complainant in the D.M.C. and Hospital, Ludhiana. The operation in the D.M.C. and Hospital was a second operation of the complainant because of the constant pain, suffering and discharge of pus from the sinus having been formed on the abdominal operated part of the complainant by the opposite parties. The sponge was retained at the time of first caesarean operation performed by the opposite parties on 26.12.1997. After the sponge was taken out, the complainant remained under treatment of Dr.Subhash Goyal. A team of doctors or D.M.C. and Hospital during investigation found as under: 
    “Sinogram shows a collection seen in anterior part of peritoneal cavity communicating with sinus. CT Scan also showed a well defined collection containing costing and air in anterior part of peritoneal cavity communicating with sinus.”
         
    4. The doctors gave their opinion on 18.4.1998. It is also asserted that there was swelling on the abdomen of the complainant. The complainant was feeling tenderness and was also feeling temperature all the times. This all was due to negligence of the opposite parties in performing the operation on the complainant and leaving of the foreign material (old retained sponge) in the abdomen of the complainant. Thus, the opposite parties were not careful while performing the caesarean operation on the complainant and were thus negligence. Thus, the opposite parties were deficient in rendering service qua the complainant. Due to the operation, the complainant is not in a position to lift any weight and perform homely duties. The complainant was unable to extend her motherly love to the newly born child. So much so the complainant was unable to feed the child from the breast. The complainant has asserted that she has suffered the following side effects / sufferings due to the retention of sponge in the body and even after taking out the same by operation.
       
    (i) body pain and suffering by complainant.
    (ii) mental pain and suffering.
    (iii) excessive vomiting due to foreign material in the body.
    (iv) pus formation.
    (v) sinus formation.
    (vi) defect in digestive system due to foreign material and vomiting.
    (vii) advice by doctors not to lift any weight even the newly born baby.
    (viii) suffered operationals twice.
      
    5. On these allegations, the complainant has sought a direction to recover the following relief from the opposite parties.:
      
    (i) Body pain and sufferings Rs.5,00,000/-.
    (ii) Mental pain and sufferings Rs.2,00,000/-.
    (iii) Expenditure on treatment Rs.2,00,000/-.
    (iv) Deprivation of love and affection of the child Rs.2,00,000/-.
    (v) Future loss of body due to infection of foreign material in the body Rs.2,00,000/-.
    (vi) Rs.1,00,000/- on account of deprivation of providing own milk from the breast of the complainant to the newly born child.
    (vii) Rs.1,00,000/- are being claim on account of deprivation having third female child.
      
    6. On notice being served the opposite parties filed a written version. It is contended that the complaint is not maintainable under the Consumer Protection Act. This complaint is also not maintainable as no notice has been given to the parties. It is asserted that the opposite party No.2 has never performed the operation on the complainant. The operation was performed by Dr.Vijay K. Sekhri, MBBS, DGO, MD, Ex-Assistant Professor, C.M.C. Ludhiana, who is very renowned Surgeon in this field. The opposite parties admitted that the complainant was pregnant and she visited the Nursing Home but it could not ascertained whether the complainant took the precautions and medicines as advised. It has also been pleaded that the purpose of admission on 24.12.1998 was that the baby of the complainant was suspected to be growing less, than the expected and that her antenatal scan showed that the placenta was situated in lower portion of the uterus (PLACENTA PREVIA) thus will not allow normal delivery. The complainant knew this fact for a long time from the antenatal, checku-ps and scans. On 26.12.1998, the opposite parties noticed that the heart of baby started showing occasional irregularity and tendency to slow down. In medical terminology this is explained as that “The baby is showing evidence of distress and if allowed to progress may lead to the death of the baby.” The patient was not given any Glucose said to be part of negligence of the hospital by the complainant is totally false. In fact for the first day patients is not allowed food and some amount of Glucose. Amount an duration of it is decided by the doctor, according to the requirement based on medical judgment.
       
    7. The opposite parties admitted the fact that they performed the caesarean operation on the complainant for her delivery on 26.12.1997 at their Nursing Home. The opposite parties have averred that the complainant was given Glucose. In fact, on the first day patient was not given food and some amount of Glucose was given. The opposite parties denied their liability to pay compensation as claimed by the complainant.

    8. To support her version the complainant filed evidence by way of various documents Annexure C-1 to C-16 and affidavits. The complainant also examined herself and Dr.Subhash Goyal, M. S. Professor of Surgery, Dayanand Medical College and Hospital, Ludhiana (C.W.1). The opposite parties filed affidavits namely, Dr.(Mrs.) Ajit Kang, Dr.Vjay K. Sekhri, Dr.Sirish Chandra. They got Exs.R-1 to R-8 documents marked in evidence.
       
    9. We have heard the learned Counsel for the parties, perused the pleadings and the material placed on record by the parties.

    10. Before proceeding to deal with the merits of the complaint, we have to see whether the opposite parties fulfilled the character of being a provider of “service” within the meaning of the relevant provisions of the Consumer Protection Act, 1986, the other question is whether the complaint is maintainable in the present form as the necessary partner has not been impleaded in the present complaint. With regard to the service the definition of the term “Consumer” as given in Section 2(1) (d) of the Consumer Protection Act, 1986 is as under: 
    “(d) `consumer means any person who –
        
    (i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person who obtains such goods for resale or for any commercial purpose; or
      
    (ii) hires or avails of any services for a consideration which has been paid or promised or party paid and partly promised, or under any system of deferred payment and included any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person.”
      
    11. In the present case, there is no dispute that the complainant is not a consumer qua the opposite parties and the opposite party has not provided the service. With regard to the preliminary objections that the complaint is not maintainable, there is no evidence provided on behalf of the opposite parties / City Nursing Home and Hospital to suggest that there is any other partner / owner of the said hospital. No partnership deed has been placed on record to support the preliminary objection. The status of the partnership has not been made known to us through evidence whether the partnership deed is registered or unregistered. Whether it is a partnership or co-ownership. What is the status of the partner according to partnership law. According to law of partnership the relationship of principal and agent is established among the partners and this relationship is governed by the law of Agency
        
    12. It was held in Cox v. Hickman, that the law as to partnership is undoubted a branch of the law of the principal and agent. The liability of one partner for the acts of his co-partners is in truth the liability of a principal for the acts of his agent. When two or more persons are engaged as partners in an ordinary trade, each of them has an implied authority from the others to bind all other by contract entered into according to usual course of business in that trade. As no partnership deed has been placed on record, we do not agree with the contention of the learned Advocate that City Nursing Home and Hospital is a partnership concern. The contention is, therefore, rejected.
       
    13. Amidst the arguments learned Counsel for the opposite parties vehemently asserted that this Commission could not entertain the complaint on account of lack of pecuniary jurisdiction. This point has not been raised in the written version. He has referred to the claim made in the complaint that in prayer No.16, Rs.15 lacs and the actual loss has been calculated as Rs.2,00,000/-. Calculating the amount of speculative compensation is not a part of loss. Thus, the alleged amount of loss works out to be Rs.2,00,000/- till 8.8.1999, the date of filing the complaint and hence it is the District Forum where the complaint could be entertained and not before the State Commission. The learned Counsel further argued that the claim made is patently excessive and has alleged liability by the complainant with a view to create jurisdiction of this Commission. We are not inclined to accept this contention. The amount of Rs.15 lacs plus interest @ 18% per annum claimed towards compensation to be taken into consideration while deciding the question of pecuniary jurisdiction. In terms of Section 11 of the Consumer Protection Act, 1986, pecuniary jurisdiction of the FOR A depends upon the quantum of compensation claimed in the complaint. Section 11 of the Consumer Protection Act, 1986 stipulates as under:
        
    “11. Jurisdiction of the District Forum –
    (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs.
        
    (2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, —
      
    (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily reside or carries on business or has a brand office or personally works for gain or
      
    (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business, or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or arises.”
       
    (c) the cause of action, wholly or in part, arises.”
      
    14. Thus for determining the question of.
       

  • Vijay H. Mankar v. Dr.(Mrs.) Mangla Bansod
    I(2000)CPJ37(NC)
      
    Complainant alleges medical negligence on the part of a lady doctor-Alleges paid charges for treatment-Opposite party denied that allegations and contended that she did not receive any fee because of close relationship-Whether the doctor has rendered services free of cost?-(No)-Whether there is a negligence on the part of the doctor?-(Yes).
      
    Held: The preliminary objection of the opposite party is that she has not received any payment as consideration from the complainant and that ,therefore ,’service’ rendered in the case is not covered by Section2(1)(0)of the Consumer Protection Act. However, in the order of the Supreme Court, Indian Medical Association v. V.P. Shantha & Ors., III(1995)CPJ1(SC), it has been inter alia stated that services rendered by a non-Government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered services free of charge would fall within the ambit of the statement ‘Service’ as defined in Section2(1)(o) of the Act. It is true in the present case, opposite party’s averment is that fees were not charges because the patient could not afford to pay. Although in their order, the Supreme Court have not distinguished a case of ‘free’ service because the patient could not afford to pay. Although in their order, the Supreme Court have not distinguished a case of ‘free’ service of the kind a in the case of hand, the spirit of their order is that expenses incurred for providing service free of charge to certain patients are met out of income earned by the doctors/hospitals from services rendered to paying patients and in this view of the matter the non-paying patients are beneficiary of the services which are hired or availed of by he paying patients. That apart, the Supreme Court observed that all persons who avail of the services of doctors are to be treated on the same footing irrespective of the fact that some of them pay for the services and other avail the same free of charge. Also, the complainant had deposed that opposite party had not given receipt for fees paid and that opposite party told his mother-in-law on 31.5.1990 that she would give consolidated receipt for all payments, after delivery. The mother-in-low has filed an affidavit to this effect. In view of the aforesaid discussion, this point need not detain us from proceeding with the adjudication of the complaint on merits.
       

  • Dr. C.V. Mathew v. P. Babu
    I(2000) CPJ 134 SCDRC, Kerala
       
    Opposite party fell below the standard of a reasonably competent practitioner – M.T.P. done without prescribed qualification at hospital not recognized for doing it – No attempt made to ascertain the reason of ailment – Possibility of incomplete evacuation not considered – Negligence on part of opposite party proved – Complainant entitled to get compensation along with interest.
       

  • Janki S. Kumar v. Mrs. Sarafunnisa
    I (1999) CPJ 66, SCDRC, Kerela
      
    Sterilization Done Without Consent - Deficiency in service- Compensation – Contention, consent obtained during course of surgery, not acceptable – Person giving consent must be aware of risk involved - Patient under general anesthesia neither can understand the risk involved nor could give the consent – Complainant entitled to compensation.
      

  • Baby Ramya represented by her father K.Raji Reddy v.Dr.(Mrs.)Aruna Reddy & Anr.
    1, 1996(1) CPR 244 (APSCDRC)
      
    the facts of the case in brief as stated in the complaint were as follows:
     
    mother of the baby Ramya got admitted in Dr. Mrs.Reddy’s Nursing Home on 6.5.1990 at 6.30 am for delivery;
      
    the child (baby Ramya) was delivered on same day at 10.20 pm weighing 4.5kg;
      
    baby Ramya was found not moving her right arm and parents were advised to consult a neurosurgeon who informed that the complainant had right branchial palsy with Horner’s Syndrome;
      
    a neurologist and orthopaedician were also consulted who gave similar opinion, they also informed that such paralysis in babies occurs due to excessive traction (force) in the delivery of the shoulders.
      
    In the counter filed by Dr.(Mrs.) Reddy it was stated:
      
    mother was a case of pregnancy induced hypertension;  since patient did not progres till evening another doctor’s opinion was sought who suggested Caesarean section, but patient refused to undergo Caesarean; · the labour which had been induced by Oxytocin drip had to be discontinued as BP continued to be 160/100 despite treatment; when the amniotic fluid was found to be meconium (green) stained, Caesarean was suggested, but was refused by patient; during delivery, the head of the baby, was spontaneously delivered, but the patient did not co-operate with the shoulder delivery; as the baby was turning blue, there was danger of baby getting asphyxiated and even dying, the doctor had to apply traction for delivery of shoulders; the patient did not disclose that the first issue was forceps delivery, for then she would have insisted for Caesarean.
      
    A rejoinder affidavit filed by the complainant contended:
     
    it was not correct to say that the mother was having high BP the case sheet is silient with regard to temperature, BP and the plea that the nurse noted BP on white paper was concocted; · ultrasonography during pregnancy was never advised; ·  the supporting affidavits of other doctors to the effect that Dr. (Mrs.) Reddy had taken proper care in conducting delivery were without any basis.
      
    The State Commission held;
     
    ·        Dr. Reddy’s contention that by mere clinical examination the size of the baby cannot be ascertained hence the treating doctor
             did not anticipate the need for Caesarean could not be accepted;
      
    ·        no proper case sheet was maintained;
     
    ·        patient was not referred for ultrasonography to assess size of baby;
     
    ·        patient was admitted at 6.30 am and delivery was effected at 10.20 pm when it was found that the delivery was difficult she
             should have done Caesarean section;
     
    ·        the contention that the patient refused cannot be accepted; consent of mother or husband of the patient who were present
             at the Nursing Home throughout could have been taken;
      
    ·        had Caesarean been done the injury to baby Ramya could have been avoided.
     
    ·        Mudaliar & Menon’s textbook Clinical Obstetrics states that ‘Brachial palsy or Erb’s parly’ results from excessive traction in the
             delivery of the shoulders;
      
    ·        Dr. Vittal Reddy after thorough examination of the complaint stated in his affidavit that the birth injury could have been avoided,
             if proper care had been taken;
     
    ·        Dr.Rangachary, orthopaedician, in his affidavit, opined that the complainant was found to have Erb’s Palsy which was due to
             traction;
      
    ·        Dr. V.P. Patnaik, Professor of Forensic Medicine on perusal of the documents gave an affidavit stating that if the cause of
            distress was elicited before labour, and timely assistance to the mother and fetus were given by way of surgical interference,
            it could have prevented the Erb’s Palsy.
      
    Placing reliance on Dr. Patnaik’s statement and on consideration of material on records, the State Commission held that the doctor had not exercised due and reasonable care while conducting delivery. The complainant was awarded Rs.1.75 lacs towards general damages for pain and suffering and loss of use of right hand, but no special damages were awarded in the absence of any proof. Since Dr.(Mrs.) Reddy was insured, the insurance company was made second opposite party and both the parties were directed to pay the compensation jointly and severally.
      

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

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

  • Vinubhai Parshottamdas Patel v. Dr.Vijay K. Ajmera
    1997(1) CPR 348 (Guj SCDRC)
      
    the complainant’s wife was admitted in the opposite party hospital and advised termination of pregnancy by operation of Dilatation and Evacuation. But after the operation she continued to have abdominal pain. She was taken to another hospital as there was perforation of the uterus and intestines.
     
    The State Commission, on the basis of evidence on record, held that there was gross negligence in the operation performed by 1st opposite party.
      
    Rs.2 lakhs compensation was awarded, (Rs.150000/- spent on medical treatment and Rs.50000/- as compensation for physical pain and mental anguish.
       

  • Mayo Hospital v. Sunil Tiwari
    1997(3) CPJ 387:1997(3) CPR 574 (M.P. SCDRC)
      
    a chorion sample for biopsy was taken out from the womb of the complainant’s wife on 26.2.94 for which Rs.1200/- was charged. Due to delay in transit of 2 days the sample was spoiled. Repeat biopsy was taken on 3.3.94 but this time also the sample reached Indore after 4 days and was not worth testing.
      
    The State Commission held that whenever a sample is taken for any test and charges for test are collected, it is implied that the delivery of test report will be the completion of “service” hired for charges paid. It was the bounden duty of the Mayo Hospital through Dr. Viraj Sharma to ensure timely transportation of the sample. Once the earlier sample had been destroyed, it was her moral duty not to charge for the repeat biopsy, but she did charge Rs.500/- and still did not take precautions for ensuring timely transportation. This is not only deficiency in service but gross negligence of inhuman nature when committed second time. The State Commission upheld the order of the District Forum which had awarded Rs.20000 as compensation and also directed to refund Rs. 1700/- collected as fees, and dismissed the appeal of the hospital.
       

  • Devendra Kantilal Nayak & Ors. v. Dr. Kalyani Ben Dhruv Shah & Anr.
    1997(1) CPJ 103 (Gujarat SCDRC)
      
    was taken to opposite party No. 1 for Caesarean operation, delivered a child, but did not regain consciousness shifted to another hospital and ultimately died in early hours next day. Post-mortem was done on the insistence of the complainant.
     
    It was stated by the opposite parties that the patient was a known case of placenta previa grade 3. Patient was advised operation on 3.8.93 but refused, and when she came on 5.8.93 she was bleeding profusely. Blood was arranged, and she was taken up for emergency Caesarean, under spinal anaesthesia. Other gynecologists was called to help as an “abundant caution”. All measures to stop oozing from the placental bed were taken and when all was thought well, the abdomen was closed. Since the patient’s condition despite 8 units of blood continued to deteriorate it was decided to shift her to another hospital. Removal of uterus was felt not necessary. Report of post-mortem was not correct and mala fide.
     
    Request for joining the Insurance Co. was made which was granted by Commission.
     
    The port-mortem report stated that:
     
    ……the patient had 1.8 litres of haematoma in peritoneum. Uterus was bulky, plenty of blood clots seen around the suturing in various planes.
     
    Some branches of uterine artery showed ante-mortem cuts and they were not ligated and there was large haematoma around it .Uterus was reparied deficiently. The cause of death is shock as a result of intra-abdominal haemorrhage following negligent surgical procedure and repair.  
      
    Histopathological reports are non-contributory.-
     
    -Opinion” by Dr.R.M. Jhala was produced, but it was not clear who and why and in what capacity his opinion was asked. Dr. Jhala was neither examined nor he made any statement regarding present case. Innumerable medical references were given but none of them was comparable to the present situation and the State Commission held that it served no purpose for the complainant or opponent, and seemed to be an exercise in futility.
      
    There were material differences in statement of Dr Shah opposite party No.1 and Dr. Patel, anaesthetist. Dr. Shah said patient was serious on arrival and blood pressure was low, Dr. Patel said patient was fit and normal. Dr. Shah said patient had bleeding per vagina but Dr. Patel denied the same. Dr. Shah had produced two sets of xerox copies of case papers, but no original copies were presented. There was no clarification as to how there was disparity in both papers.
      
    Dr. Lilaben Trivedi was called as a witness because she was chair-person of Committee appointed by Medical Council of Gujarat who had also nstituted inquiry in the present case. Dr. Trivedi admitted knowing Dr. Jhala but the Committee was not knowledgeable about the report of Dr Jhala. Dr. Trivedi utterly failed to explain why and how so many paragraphs of Dr. Jhala’s report were incorporated in Committee’s report ditto to ditto with no change even in coma or full stop. The State Commission inferred that the Committee prepared its report on basis of Dr. Jhala’s report and did not apply its mind or investigated as was expected.
     
    Dr. Shah inspite of request failed to present himself for cross-examination by complainant and therefore his statements remained unproven and were not accepted as evidence. No independent, uninvolved (directly or indirectly) expert was called to confirm the claims of Dr. Shah or to refute  the charges of complainant.
     
    The State Commission did raise some doubt regarding the post-mortem report as far as writing the mode of death was concerned, viz., the cause of death is shock as a result of intra-abdominal haemorrhage following negligent surgical procedure and repair, but held that the other findings are corroborative evidence, sufficient to conclude that the patient died because of exsanguination which, with due diligence and advance precaution, could have been prevented.
      
    In assessing compensation, the value of benefit of services to the complainants was assessed at Rs. 12000/- p.a. Multiplier of 15 was applied making it 180000/- Rs.20000/- for loss of expectancy of life and Rs. 10000/- for pain, shock and suffering of the deceased. Rs.25000/- was awarded for the costs of treatment. Thus the total compensation worked out to Rs. 235000/- together with interest @ 12% p.a. from date of complaint till realisation Rs.5000/- was awarded in addition as costs to the complainants.
       

  • ALEYAMMA VERGHESE V. DEWAN BAHADUR DR. V. VERGHESE & ORS
    1997(3) CPJ 165 (Kerala SCDRC)
     
    it was held that:
     
    ·        though the Thiruvalla Medical Mission Hospital is a charitable institution and was run under a Trust Deed, but as the treatment done was on payment of consideration, which is on record;
     
    ·        the complainant’s wife underwent Caesarean operation, but a large sponge was left behind as was proved by the evidence of the doctor who removed it and also from the C.T. Scan report. The scrub nurse was responsible for counting the sponges and negligence was held on her part. The hospital as employer was vicariously held liable to compensate but as the hospital was insured, the Insurace Company was asked to pay compensation amount of Rs.98506/- to the complainant.
       

  • Dr. (Mrs) Rashmi B.Fadnavis & Anr. v. Mumbai Graha K. Panilayat & Ors.
    1998(3) CPJ 21:1998 (3) CPR (NCDRC)
     
    Mrs. Meena Pilankar was suffering from uterine fibromyometrosis and was advised hysterectomy by Dr. (Mrs.) Rashmi B. Fadnavis. After necessary tests Dr. Shekhar Ambradekar (Cardiologist) declared her fit for surgery. Thereafter she was operated upon in the Nursing Home of Dr. Fadnavis, but unfortunately she died on the operation table itself. Complaint was lodged before the Maharashtra State Commission alleging negligence in the treatment rendered by Dr. (Mrs.) Rashmi Fadnavis (Opposite Party No.1) Dr. Bhalchandra Fadnavis (OPNo.2) and Dr.(Mrs.) S.S. Kalekar (OPNo.3), anaesthetist. The State Commission held OP No. 1& 2 guilty of medical negligence but exonerated the anaesthetist (OPNo.3). Opposite parties No.1 & 2 were asked to pay jointly and severally Rs. 255355/- to the complainant. The complainant appealed to the National Commission against the exoneration of the anaesthetist and also prayed for higher compensation. The National Commission set aside the order of the State Commission with regard to exoneration of the anaesthetist and held him also liable and observed in its earlier order dtd. 15.2.1996 in Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi B. Fadnavis & Anr as under:
      
    Even if the services of the Anaesthetist were hired by opposite party No.1, then also the deceased happened to be the beneficiary of medical services of the Anaesthetist and hence a ‘consumer’ and that services of the Anaesthetist are invariably paid for by patients themselve, their charges being generally shown separately in the bill. Section 2(1)(d) of C.P. Act defines ‘consumer’ as one who hires or avails of any services for a consideration, this definition does not refer to any privity of contract for that purpose.Similarly section 2(1)(g) defines deficiency in service as fault imperfecton or short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. The words in pursuance of a contract or otherwise in the section make it amply clear that a privity of contract is not needed for a claim to be made under C.P.Act, so long as there is hiring or availing of services for a consideration. Thus the Anaesthetist who participated in the process of delivery of medical services to the beneficiary is as much liable as the main surgeon herself if her negligence had been established.
     
    But, the National Commission agreed with the finding of the State Commission that in this case the Anaesthetist was not negligent and hence not liable to pay compensation. In the present appeal by Dr. (Mrs.) Rashmi B. Fadnavis & Anr. against the award of compensation the National Commission in its decision dated 4.9.1998 held:
      
    The shifting of the patient from the Vikas Kendra Hospital in Andheri (a big hospital) to the small Nursing Home of Dr. Fadnavis was not on insistence of husband of the deceased. The appellants failed miserably to impress upon the husband to procure three bottles of blood and make them available before the operation started;
     
    The duration of surgery of about seven hours went beyond the estimated time; since the duration of any surgery is uncertain, this makes it all the more essential for the doctors to be prepared for any likely contingencies;
     
    The patient was having a same blood group (A Rh negative) and was weighing 124 kg a ‘morbid obesity’ patient, and the risk involved in such cases was well known and is foreseeable. And yet, the appallents did not make requisite essential arrangements in the Operation Theatre for managing a potential risk surgery, eg. keeping adequate units of blood, machine operated artificial respiration, adequately long needle for an intra-cardiac injection knowing patient was obese, etc.
      
    The appellants totally failed in taking those essential steps resulting in the death of the patient on the table, and confirmed the order of the State Commission holding the opposite parties 1 and 2 negligent and awarding compensation of Rs.255355/- and costs of Rs. 5000/- to be paid by them jointly and severally and dismissed the appeal.
       

  • HARVINDER KAUR – Appellant versus DR. (MRS.) SUSHMA CHAWLA & ANR. -Respondents
    III (2001) CPJ 143 PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH
      
    Consumer Protection Act, 1986 - Sections 2(1)(g), 15 – Medical Negligence – Deficiency in Service - Compensation – Sponge left in the abdomen during caesarean operation - Complainant had to be operated again for removal of sponge – Prima facie case of medical negligence proved - Respondent had not taken much care which a doctor of ordinary skill should have taken – Complainant entitled to damages done due to negligence and carelessness - Entitled to compensation and cost of second operation along with interest..
      
    Held : Applying ratio to the decision of the Supreme Court as referred to above, to the facts of the present case, it can be stated that it is a prima facie case, of medical negligence on the part of the respondent No 1. The complainant’s tale of agony and misery started after the caesarean operation only. She visited the clinic of the respondent No 1 on 27.9.1997 for post operative check up. Her misery became doble folded when she underwent “Short Wave Diathermy” Instead of exercising a reasonable degree of skill, care and knowledge, she advised only few pain killers and rest. She should have taken post operative care of her patient and should have suggested scanning, X-ray or needle test. As per the complainant’s version, on her visits after the caesarean operation, respondent No 1 did not examine her physically. Had she been careful, she should have diagonosed the “mass” which was clearly palpable on touching, according to the complainant, According to the Counsel of the Respondent No 1, she is a well qualified P.G.I (Gold medallist) physician but inspite of these qualifications, it is proved on record that she had not taken much of care which a doctor owes certain duties which must be performed in a reasonable manner and with due care and caution. Had she been cautions about the complaint of pain by the complainant, she could have gone to the root cause of the suffering of the complaint. If a doctor does not act prudently with care, as the respondent No. 1 has done in the present case, the complainant becomes entitled to the damages done on account of her negligence and carelessness.
     
    After holding negligent act on the part of the respondent No.1 in the matter of leaving the “sponge” in the abdomen of the complaints of pain and suffering in a skillful manner as a physician should  have attended to his/her post operative duties. The future question for consideration is as to ascertain the quantum of compensation for the loss she has suffered from the affidavits of the complainant and her husband and other witnesses, it is proved beyond doubt that the complainant had to be operated at Bawa Hospital for removal of the sponge from her abdomen which had been negligently left during caesarean operation performed by respondent No 1. Apart from the factum of spending money for the second operation, medicines and stay in the Bawa Hospital, she also suffered mental agony, pain and suffering during the period the “sponge” remained in her person and could not attend to her twins as a normal mother should have . There is no yardstick specially provided to assess the loss on account of mental agony or pain suffered in such like matters. On that Count, compensation is to be fixed on estimation In the present case, of sum of Rs 1 Lac is considered just compensation under that head      (Paras 12 & 13 )
       
    Result : Appeal allowed.
       
    ORDER
       
    Mrs. D.K. Bhamrah, Member – Smt. Harvinder Kaur w/o Shri Harwant Singh has filed appeal under section 15 on the Consume Protection  Act, 196 against the order dated 1.4.1999 passed by the District Forum, Jalandhar, dismissing her complaint with view that the complainant had not been able to prove prima facie any medical negligence on the part of the opposite party.
      
    2. The case of the complainant in short is that she was admitted in the hospital of the opposite party No. 1 Dr. (Mrs) Sushma Chawla, at about 9:00 a.m. on 10.9.1997. She was taken to the operation theatre whereby caesarean operation was carried out and two babies where born. After the delivery, she go the tubectomy operation done from the opposite party No. 1, on the same day. She was discharged from the hospital on 19.9.1997 by the opposite party. As per the allegation of the complainant, she was not feeling perfectly well at the time of discharge.. She was informed by opposite of tubectomy. she was assured of complete recovery within a month. The opposite party No 1 insisted her to visit the hospital for general check up and for follow-up treatment and the complainant had been visiting the opposite party No 1 and complained about the pain in the abdomen and opposite party No. 1 suggested only medicines and short Wave Diathermy (S.W.D). She was also advised complete rest. As the complainant could not bear the pain of abdomen then she consulted another Physician namely, Dr. Ranbir Sing, Medical Surgeon of Jalandhar who advised for scanning of the abdomen, needle test and X-rays etc. while she got conducted from Bhangu Scan and X-ray Clinics, Jalandhar. It was clear from it that there was some foreign objection (Mass) at the left side of the abdomen just above umblicus level like a ball and had also noticed thick pus. Then on the advice of Dr. Ranbir (M.S.), the complainant got herself admitted in the Bawa Hospital, Jalandhar on 18.11.1997 for further operation to get the foreign object removed as her health was day by day falling down and she was feeling discomfort, uneasiness and weakness. She handed over the original reports os Scan, Needle Test and other reports of the hospital before the operation. On the basis of which she was operated on 19.11.1997 and a “sponge” was removed from peritoneal Cavity by the doctors of Bawa Hospital, Jalandhar. The complainant remained admitted in Bawa Hospital, jalandhar upto 25.11.1997. She was issued discharge certificate by Dr. Ramesh Kashyap, Resident Medical Officer of Bawa Hospital. According to the complainant, the “sponge” which was removed by the doctor of Bawa Hospital remained in the abdomen due to negligence of opposite party No 1 while performing the caesarean operation on the person of the complaianant on 10.9.1997. The sponge was used for protecting the velns and the arteries below and around the uterus which had to be removed after the operation and before the stiching of the internal layer and outer skin of the abdomen
       
    Due to this negligent act the complainant had to suffer a lot, She spent Rs. 50,000/- for the medicines and operation charges, physically also she was unable to do her daily routine jobs and found herself incapacitated to look after her children.  So she had prayed that for all the reasons state above, she may be awarded compensation to the tune of Rs 5,00,000/- (Rupees Five lacs ) for deficiency in rendering service.
       
    3. On being noticed, the opposite party No 1 filed the written version, alleging that false and frivolous complaint had been filed against them which is not maintainable. it has been denied if the opposite party No 1. was in any way negligent in providing medical care to the complainant. some of the facts were admitted such as the Caesarean Operation. she was discharged on 9th post operative day which is usual time for normal recovery. After discharge, the complainant came on 27.9.1997 for mother and baby check-up, immunization day and she was suggested S.W.D. (short wave Diathermy), which is a mild heat theorapy for recovery for internal wound. It has been denied if the opposite party No. 1 was careless and negligent towards the patient/complainant. It has been further denied if any foreign object was removed from the abdomen in the operation. In this regard, it is stated that at the time of a caesarean operation on the person of the complainant and as per practice of Nursing Home of the opposite party No. 1, no intra-abdominal sponge was used in caesarean section as the same is an old and out dated routine.
       
    4.  According to her record, at the time of operation on the person of the complainant, there was a team of doctors which consisted of Dr Sushma Chawla, Dr. Anu, Dr. Harmeet, Dr. Upma and Dr. Savinder Singh, ” sponge” which were used contained radio-opaque element whereas X-ray produced by the complainant herself shows the there was no Radio-opaque element in the mass. Even the report of the scan of the abdomen does not indicate that there was any sponge left but indicates there was a mass in the abdomen above the umblicus whereas the said portion was not even exposed by the opposite party No 1. It has been denied if due to any carelessness or medical negligence, the complainant to undergo the second operation or she suffered any mental tension harassment due to the act of the opposite party No 1.
       
    5.  The District Forum after considering the respective cases of the parties and perusing the evidence on record came to the conclusion that the opposite party has not been able to prove prima facie any medical negligence on the part of the opposite party. With these observations, District Forum, dismissed the complaint without costs giving rise of the present action to the complainant. 
       
    6.  In appeal Mr. G.S. Mann, Advocate appeared on behalf of the appellant and Mr. T.N. Gupta, Advocate represented respondent No. 1,  Dr. Sushma Chawla, Mr. Vishwas Ahuja, Advocate was on behalf of the Insurance Company. We have carefully perused the record of the District Forum. Two questions arise for our consideration, (1) whether the respondent No. 1 was negligent in rendering service. (2) if so, what relief the complainant entitled to ?
       
    7.  The case of the appellant as put forward by her Counsel is that the caesarean operation was performed on 10.9.1997 by Dr. Sushma Chawla. The complainant was discharged on 19.9.1997. She revisited for the follow up check on 27.9.1997 and complained of pain in abdomen for which she was advised few medicines and S.W.D. As her condition did not show any sign of improvement, she consulted  Dr. Ranbir Singh, M.S., who advised scanning, X-ray and needle test, Which were got conducted and on the basis of these tests, she had to undergo another operation on 19.11.1997 at Bawa Hospital. He brought to our notice Annexure C-6, the certificate given by Bawa Hospital signedby Dr. Ramesh and admitted by Dr. P.S.Bakshi, on 17.6.1998, which reads as under.
       
    8.  This is to certify that patient Harvinder Kaur, 32 F  Was admitted in this hospital with mass abdomen on 18.11.1997 and underwent exploratory laparotomy on 19.11.1997. On exploration, “sponge” removed from the peritoneal cavity.”
       
    9.  The learned Counsel for the appellant argued that above mentioned certificate was sufficient evidence to prove that a sponge was left in the abdomen of the complainant during the first operation due to the negligence of the respondent No. 1 but the District Forum had not taken note of this certificate. To strengthen his argument further, he referred to Annexure C-4 ‘operative notes’ which reads as under : 
       
     “Operative Notes :
       Under G.A. (General Anaesthesia)
       Left paramedian incision – exploratory laparotomy done. 
       
       Loops of Bawel and Omentum were matted together in left para-umbical region. On separation of the loops of Bowel some pus, necrotic material and “sponge” like substance was removed. After careful dissection, the inter loop adhesions were lysed. The result and cavity was irrigated with antibiotic solution, drain left at the site closure of the peritoneal cavity and abdomen in layers after complete hemostasin.”
      
    10. This operation note is dully signed by Dr. P.S.Bakshi (Operation Surgeon), his Assistant Dr. Ramesh and Anaesthesist Dr. Upma
       
    11.  The counsel for the respondent No. 1 put forward his argument that the “sponge” used in the hospital of Dr. Sushma Chawla contained Radio-opaque element and no intra abdominal sponge was used in caesarean section as the same is an old and out-dated routine. The X-ray produced by the complainant shows that there was no Radio-opaque element in the mass. Even the scan report of the abdomen indicates that there was no Radio-opaque element in the mass. Even the scan report of the abdomen above umblicus whereas the said portion was not even exposed by the respondent No. 1. In such like situation, where he medical negligence is apparent but is obviously denied by the party, the judgment of Apex court comes to the negligence of the medical practitioners. In the case of Indian Medical Association v V.P. Shantha & Ors. III (1999) CPJ 1 (SC)=(1995) 3 CTJ pg. 969 (SC) (CP), that Fora could got into the matter as if it was a case of prima facie negligence. In para 38 of the same judgment, it is held as under :
       
      ” It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all the complaints about deficiency in rendering services by a 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 limb or the performance of an operation on the wrong patient of giving injection of a drug to which the patient is allergic without looking into the out-patient and containing the warning [ as in Chin Keow v. Government of Malaysia,1967 ACJ 379 (PC, England)] , or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One after reads about such incidents in the newspaper. The issues arising in the complaints 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.”
       
    12. Applying ratio to the decision of the Supreme Court as referred to above, to the facts of the present case, it can be stated that it is a prima facie case of medical negligence on the part of the respondent No. 1. The complainant’s tale of agony and misery started after the caesarean operation only. she visited the clinic of the respondent No. 1 on 27.9.1997 for post operative check up. Her misery became double folded when she underwent “Short Wave Diathermy”. Instead of exercising a reasonable degree of skill, care and knowledge, she advised only few pain killers and rest. She should have taken post operative care of her patient and should have suggested scanning, X-ray or Needle Test. As per the complainant’s version, on her visits after the caesarean operation, respondent No. 1 did not examine her physically. Had she been careful, she would have diagnosed the ‘mass” which was clearly palpable on touching, according to the complainant. According to the counsel of the respondent No 1, she is a well qualified P.G.I. (Gold Medallist) Physician but inspite of these qualification, it is proved on record that she had not taken much of care which doctor owes certain duties which must be performed in a reasonable manner and with due care and caution. Had she been cautious about the complaint of pain by the complainant, she could have gone to the root cause of the suffering of the complainant. If a doctor does not act prudently with care, as the respondent No. 1 has done in the present case, the complainant becomes entitled to the damages done on account of her negligence and carelessness.
       
    13.  After holding negligent act on the part of the respondent No. 1 in the matter of leaving the “sponge” in the abdomen of the complainant and not giving heed to her complaints of pain and suffering in a skilful manner as a physician should have attended to his/her post operative duties. The further questions for consideration is as to ascertain the quantum of compensation for the loss she has suffered from the affidavits of the complainant and her husband and other witnesses, it is proved beyond doubt that the complainant had to be operated at Bawa Hospital for removal of the sponge from her abdomen which had been negligently left during caesarean operation performed by respondent No. 1. Apart from the factum of spending money for the second operation, medicines and stay in the Bawa Hospital, she also suffered mental agony, pain and suffering during the period the “sponge” remained in her person and could not attend to her twins as a normal mother should have. There is no yardstick specially provided to assess the loss on account of mental agony or pain suffered in such like matters. On that count, compensation is to be fixed on estimation. In the present case, a sum of Rs 1 lac is considered just compensation under that head. Though in the complaint, a sum of Rs. 5 lac has been claimed which is highly excessive. The amount spent on the second operation is claimed to be Rs 50,000/-. The voucher and bills submitted by the complainant in this regard from the part of the record. After calculating the amount mentioned therein, the total amount sent for the second operation comes to Rs. 17,021.70 p. Thus, the complainant is entitled to the sum of Rs. 17,025.70 p. the actual expenses incurred by her along with interest @ 15%. Thus, the amalgamated sum of award will be as such Rs. 1 lac as compensation for mental agony and suffering, Rs 10,000/- assessed as costs of litigation. The amount under the head of actual expenses calculated as Rs. 17,025/- will be awarded along with interest @15% from the date of filing of the complaint till its realization. The liability to make payment of the aforesaid amount would be that of the respondent No. 1.
       
    14.  For the reasons recorded above, we are of the considered view that the District Forum erred in its approach and had dismissed the complaint without appreciating the evidence produced by the complainant. As result, this appeal is allowed and the order of the District Forum is set aside. The above mentioned directions regarding the reward are to be followed within a period of one month from the receipt of the is order.
        
    Appeal allowed.
             

  • Akhil Bhartiya Grahak Panchayat & Anr. v. Sevayan Nursing Home
    2001 (3) CPR 149 (NC)

    Consumer Protection Act, 1986 – Sections 2 and 14 – Medical negligence – Claim for Rs. 30 lakhs for death of wife of complainant No. 2 – Deceased had two minor children – Compromise between parties whereby opposite party No. 2 agreeing to pay Rs. 3 lakhs in six monthly installments of Rs. 50,000/- each – Default to make opposite party liable to pay Rs. 4 lakhs which shall become due and payable immediately – Amount to be paid by bank draft drawn in name of minor children. (Para 1)

    ORDER

    D.P. Wadhwa, President – In this complaint of medical negligence alleged by the 2nd Complainant, Shri Binay Bhushan Das, for the death of his wife, Smt. Manjushree Das on 22th August, 1992, there is claim for Rs. 30 lakhs. It is stated that the couple had two minor children (1) Master Shankhoshubhro Das, aged 13 years (approximately) and (2) Ku. Madhushree Das, aged 8 years (approximately). Mr. Avik Dutta, Advocate, in the presence of the 2nd Complainant, says that they give up the claim against 1st and 3rd Opposite Parties. However, it is agreed that without prejudice to the respective contentions to the parties, and without in any way laying the claim of negligence on the shoulders of Opposite Party No. 2. Dr. A.K. Nandi, who is present in Court, Dr. Nandi will pay a sum of Rs. 4 lakhs to the aforesaid minor children of the deceased, Mrs. Manjushree Das. In case the amount of Rs. lakhs in six monthly installments of Rs. 50,000/- each for six months is paid, the whole of the claim of the amount of Rs. 4 lakhs shall stand discharged. In any case, in default, the whole balance amount from Rs. 4 lakhs shall become due and payable immediately. The amount of Rs. 50,000/- shall be paid by means of a bank draft drawn in the names of the minor children in whose name the bank account shall be opened by their father, who himself is an employee of the Central Bank of India. This amount shall be kept in recurring deposit and thereafter an F.D.R. shall be taken out and interest accruing from that shall be used for bringing up of the minor children. After any of the children attains majority, he shall be entitled to half of the amount and it will be his or her will to keep the fixed deposit or to utilise the amount for his or her education or for any other purpose. The bank draft shall be payable on or before 10th of every month, 1st bank draft being payable on or before 10th of every month, 1st bank draft being payable on or before 10th September, 2001. If the bank account number of the minor children is given to Dr. A.K. Nandi, the amount of Rs. 50,000/- (first installment) may be deposited directly in the account. Otherwise, the bank draft shall be sent by registered post to the address of Mr. Binay Bhusan Das. It is made clear that as the children are minors, the account shall be operated by the father who is the natural guardian. This order shall form part of the award of this Commission. Original Petition accordingly stands disposed of.

    Petition disposed of accordingly.
       

   

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By |2022-07-20T16:43:47+00:00July 20, 2022|Uncategorized|Comments Off on Patient’s Favour / Obstetric & Gynaecologist

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