CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No. 708/2006

Lali Devi

W/o Sh., Puran Lal Meena,

R/o Vill. Bawri, Tech. Rajgarh,

Dist. Alwar (Rajasthan).                                       ………Complainant

Versus

All India Institute of Medical Sciences

(Through its Director)                                             ……Opposite Party

                                                          Date of Institution          : 29.11.2006                                                        Date of Order        : 26.11.2015

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

          According to the complainant, during the course of her medical treatment at OP Hospital for pain for lower abdomen  and cervical region since 26.9.2003 she was recommended sonography test;  that on sonography test the doctors came to the  conclusion that the complainant had a baby of about 1 ½ in her abdomen and gave her medicines for a week; that on 16.10.2003 when she came to OP Hospital, the doctors after the clinical diagnosis advised her to abort the unborn child and in that case she would get rid of her severe pain in her abdomen.  Accordingly, on 17.10.2003 at 7 a.m., she underwent MTP (cleaning of the stomach) and CuT was inserted in her reproductive organs and she was discharged on the same day.  Thereafter, her condition deteriorated day by day and the doctors of OP gave her medicines for a fortnight and told her that her  condition would improve slowly day by day.  Thereafter, on 17.11.03 at about 1 o’clock in the night there was discharge of small pieces of human being (infant) and severe bleeding to the complainant and her family members took her to Medical and Health Department maintained by Rajasthan Medicare Relief Society, Alwar for immediate relief and she was admitted there.  Large quantity of blood was supplied to her there and the doctors told her husband that the childnet (Bacchedani) had busted and the CuT was not traceable.  She was referred to Higher Institute/Center/Hospital. She was taken to Kamla Nursing Home, Alwar where the lady Doctor operated upon her on 11.11.2003 and the childnet (Bacchedani) had been taken out from the reproductive  position and proper cleaning of the lower abdomen and cervical portion was done.  The Doctor at Kamla Nursing Home told that early MTP was not done properly and CuT was injected/inserted without proper cleaning of the abdomen due to which the unborn child was growing day per day.  It is stated that all this happened due to the negligent insertion of the CuT by the doctors of OP Hospital as a result of which the complainant can now never become mother of the third child and she has also been deprived of her natural rights to enjoy sexual intercourse with her husband.  Therefore, pleading deficiency in service and negligent act on the part of the OP, complainant has filed the present complaint for issuing direction to the OP to pay a sum of Rs. 3,70,000/- (Rs. 2 Lacs towards physical and mental pain, Rs. 1,50,000/- towards expenditure incurred in sonography, X-ray, operations, medicine, food and diet etc. and Rs. 20,000/- as transportation expenditure).

          In its written statement, OP has taken a preliminary objection to the following effect: 

“That the present complaint filed by the complainant is not maintainable as the complainant is not a consumer as per the provisions of Industrial Dispute Act, as the complainant has not paid any consideration to the complainant for the services rendered by AIIMS to the complainant, further the same has also not been averred by the complainant in her complaint.  Further at AIIMS no  amount is charged from the patients for the treatment provided to the patients at AIIMS and services provided by AIIMS to the patient are not the services as defined under the provisions of C.P.A. and as such the AIIMS is not amenable to the provisions of Consumer Protection Act.  In the present case also no amount has been charged as service charges from the complainant and therefore the present complaint filed by the complainant is not maintainable and is liable to be rejected at threshold.”

On merits, it is stated here as under:

“It is submitted that the complainant came to Gynae O.P.D. AIIMS for first time on 26-09-2003, with complaints of pain in lower abdomen and cervical region.  After taking the history of the patient and thorough examination of  the patient, she was prescribed medication for ten days and orthopaedics reference for neck pain and eye check up for headache was advised.  The complainant came again to the Gynae O.P.D. after 15 days. At that time she was advised to have ultrasound abdomen and pelvis with Gastroenterology Referral was advised.  On examination, the complainant was found to have six weeks pregnancy.

………….

………….Infact it is the complainant herself did not desire to continue with the pregnancy, as she was already having two babies and wished for M.T.P. and further opted contraception and opted for CuT insertion.  It is submitted that the doctors at AIIMS never advised for M.T.P. or contraception as there has been no occasion for such advise by the doctors to go for M.T.P. and contraception was her own decision.  The patient was explained the procedure and risk and the procedure was undertaken on 17-10-2003 in maternity O.T.  The procedure undertaken was uneventful and she was discharged after four hours in good condition with advise to follow up S.O.S. and some antibiotics and analgesics were also prescribed and further advised for review.

……………..It is submitted that the complainant again visited Gynae  O.P.D. AIIMS on 20-10-2003 with complaints of four episodes of vomiting in last three days.  The history given and the clinical examination on 20-10-2003 did not suggest anything like peritonitis/intestinal obstruction.  Both the history and clinical examination did not reveal anything suggestible of retained product (incomplete MTP or DNC).  Further there was no indication of excessive bleeding per vagina or pain in lower abdomen.  There was no indication of uterine perforation as well.  There was no indication of abdomen tenderness or other features of intra abdominal organs injury.  The bleeding per vagina on 20-10-2003 was minimal and within the normal range, which fact in itself suggest that the procedure carried out on 17-10-2003 was uneventful and there is no question of perforation of the uterus, because of the procedure carried on 17-10-2003.  She was taking T.Cifran CT, Nausea/vomiting is a major side effect of this drug so she was advised to discontinue T.Cifran CT & flexon and antiemetic and antacids were prescribed.  The patient was advised to come for review but instead she moved out of Delhi and had been taking her own course of actions.  These facts are duly documented………………….as the complainant did not come after 20-10-2003 to the AIIMS, therefore what happened thereafter could not be ascertained.  It submitted without prejudice that the documents filed by the claimant are false and forged.

……………………………………M.T.P. was properly conducted and CuT was also properly injected and there was no negligence or deficiency on the part of doctors at AIIMS………………It is submitted that after M.T.P. there is no question of unborn child growth……………………………………………………………………………………………It is further submitted that the procedure conducted at AIIMS were conducted at AIIMS were conducted by competent and qualified doctors and there has been no negligence or deficiency in service.  Further the documents filed by the complainant herself did not show any deficiency on the part of doctors at AIIMS while carrying out the procedures.

………………………………”

Negligence on the part of the OP has been denied.  It is prayed that the complaint be dismissed.

          In the replication, the complainant has stated that she had paid a sum of Rs. 10/- at  the time or registration of OPD Card and, thus, consideration was paid to the OP for services.

          The complainant has filed her own affidavit in evidence.  On the other hand, affidavit of Dr. D.K. Sharma, MS has been filed on behalf of OP.

 Written arguments have been filed on behalf of the parties.

We have heard the counsel for complainant.  No arguments have been advanced by the OP despite opportunity given in this behalf.  We have also gone through the file very carefully.

First, we shall take up the issue whether the complainant is a consumer as defined in the Consumer Protection Act.

According to the complainant, she had paid a sum of Rs. 10/- at the time of registration of the OPD card to OP.  There is no rebuttal to this fact. Therefore, by paying Rs. 10/- towards registration charges the complainant became a consumer vis-à-vis OP.  Moreover, in Chief Secretary, Govt. of NCT of Delhi Vs Guru Teg Bahadur Hospital, RP No. 1016/2014 decided on 7.8.2014, the National Consumer Dispute Redressal Commission, New Delhi has held that the Government Hospitals cannot be absolved from their liability absolutely in case of medical negligence.  Hence, the complainant was held to be a consumer. Therefore, we hold that the complainant in the present case is also a consumer.

According to the complainant, she is a permanent resident of Alwar and, therefore, after the MTP and insertion of CuT she had gone to her village because there was no near and dear of the complainant in Delhi. Therefore, complainant was not expected to stay in Delhi for indefinite period.  When on 17.11.2003 at about 1 o’clock in the night there was a discharge of small pieces of human being (infant) and severe bleeding to her she was not at all expected to rush to OP Hospital for her medical examination and/or medical treatment.  It was safe for her to go to some nearby hospital/Health Center which she did by going to the Medical and Health Department maintained by the Rajasthan Medicare Relief Society, Alwar who on examination recommended her to be taken to a Higher Institution/Center/Hospital.  Accordingly, she was taken to Kamla Nursing Home, Alwar on the same day in a critical condition and she was admitted there. She was operated upon on 11.11.2003 (sic).  There she was told that earlier MTP was not done properly and CuT was injected/inserted without proper cleaning of the abdomen.  Complainant has filed the medical documents with regard to the treatment received by her at Kamla Nursing Home, Alwar which corroborate her case.

At this stage, we would like to refer to a very important fact.  Our predecessors had directed the Safdarjung Hospital, New Delhi to constitute a medical board and to send their opinion in the matter.  The medical opinion report bearing No.2-19/12MR dated 25.8.2011 has been filed on the record and the conclusions are as follows:

• “Incomplete abortion was not suspected and diagnosed by AIIMS on 20.10.2003.  Incidence of retain tissues after MTP is less than 1 per 100 cases, as per literature.
• Uterine perforation was done at Rajasthan Medicare Relief Society Alwar which was diagnosed and treated at Kamla Nursing Home Alwar.  Incidence of perforation is 0.2 per 100 suction Curettage abortions, as per literature.”

          In the present case, we do not see any reason to discard the medical treatment papers prepared at Kamla Nursing Home, Alwar. 

In our considered opinion inserting a CuT after an MTP without ascertaining whether proper cleaning of the abdomen had been done or not  in itself is a case of medical negligence.  In the present case there is medical evidence on the record to establish that after the MTP done at OP Hospital certain pieces of retained products had been left in the abdomen of the complainant and a CuT inserted in her reproductive organs without verifying the said fact due to which she had to undergo another surgical operation at Kamla Nursing Home, Alwar.  Therefore, we hold the doctors of the OP guilty of medical negligence in doing MTP and inserting CuT in the reproductive organs of the complainant on 20.10.2003.

          Complainant has not filed the medical bills.  Sonography test was conducted on her in OP Hospital.  There is absolutely no evidence on the record to show that she had spent Rs. 1,50,000/- on her medicines and special diet.

          In view of the above discussion, we direct the OP to pay an amount of Rs. 25,000/- in lumpsum as compensation to the complainant within 30 days from the date of receipt of  copy  of  this  order  failing which the OP shall become liable to pay interest @ 6% p.a. on the said amount w.e.f the date of filing of the complaint till the date of realisation.  Complaint stands disposed of accordingly.

 Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on   26.11.15.

(NAINA BAKSHI)                                                             (N.K. GOEL)                                                                                                 MEMBER                                                                        PRESIDENT   

Case No. 708/06

26.11.2015

Present –   None.

                Vide our separate order of even date pronounced, the complaint is allowed and OP is directed to pay an amount of Rs. 25,000 in lumpsum to the complainant within 30 days from the date of receipt of  copy  of  this  order  failing which the OP shall become liable to pay interest @ 6% p.a. on the said amount w.e.f the date of filing of the complaint till the date of realisation.  Complaint stands disposed of accordingly.    Let the file be consigned to record room.

(NAINA BAKSHI)                                                           (N.K. GOEL)                                                                                       MEMBER                                                                             PRESIDENT