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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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