SRI.K. VIJAYAKUMARAN, PRESIDENT.

            This is a compl,aint seeking compensation for medical negligence.

          The averments in the complaint can be briefly summarized as follows:

          The opp.party is a gynecologist who treated the complainant.   The opp.party is working in the Government Victoria Hospital, Kollam.  On 11.8.2004 the complainant approached the 1^st  opp.party in the out patient department of the District Hospital, Kollam.   The opp.party  arranged to conduct Urine pregnancy test of the complainant which was positive and  found that the complainant was pregnant.   On 11.8.2004 the complainant remitted Rs.40/-  for conducting the above tests.  On 18.9.2004, 2.10.2004 and 13.10.2004 the complainant met the opp.party in connection with treatment and she is consuming medicine as prescribed by the opp.party.  On 13.10.2004 as directed  by the  1^st opp.party the complainant conducted  various blood tests remitting Rs. 70/-  in the above hospital.   Thereafter 13.11.2004 and  1.12.2004 the complainant met the opp.party in connection with treatment at the above hospital;.  Whenever the complainant met the 1^st opp.party she was not given any treatment to be given to an anti natal patient.  The complainant is the mother of a 3 year old child and her husband is a coolie  by profession.   The delivery  of the first child was  also in the  same hospital .  On 13.10.2004 when the complainant met the opp.party she inform the opp.party that she is not feeling  the foctal movements  in the womb.  But the opp.party directed the complainant to the nurses for further examination.  When the complainant told  to the nurses about this they said that movements may not be felt till 8-9 months of pregnancy.   This was conveyed to the opp.party.  Even after that the opp.party did not conduct any tests.   The complainant because of the conduct of the opp.party became disappointed and suffered mental and physical agony.   Since the complainant is financially poor she could not go to pvt. Hospital.  On 11.12.2004 when the complainant met the opp.party she told the opp.party that the  movements of the child is not feeling and because of the insistence of the complainant the opp.party directed to conduct a scan and on the basis of that report the opp.party opined that the complainant is not pregnant.  The above conduct of the opp.party is negligence because of which the complainant sustained mental agony and harassment for which she is entitled to get a compensation of Rs. 3 lakhs.  Hence the complaint.

          Originally there was a only one opp.party.  Opp.party 2 and 3 were impleaded subsequently.

          The first opp.party filed a version contending interalia, that the complainant  is not maintainable either in law or on facts.   The complaint is not a consumer  within the meaning of section 2 [1] [d]  of the Consumer Protection Act 1986 as she has availed the service of the opp.party at Govt. Victoria Hospital free of any charge.  The  complaint is bad for non joinder of necessary parties as the District Medical Officer  is not made   party to the complaint.  The complainant  came to Government Vitoria Hospital and consulted the opp.party on 11.8.2004 with a history of irregular cycles and a scan report of Polycystic ovaries with missed periods  The complainant reported  that her last  menstrual period  was on 26.5.2004 and relying on her statement, the opp.party had advised urine pregnancy test, which was done at Govt. Hospital lab and its result was positive.  Relying on the test result and physical examination as routinely done in pregnancy cases  the opp.party had advised Tab Folic Acid till 3^rd month and also tetanus immunization .   The fundal height was increasing every month and it corresponded to the period of amenorrhoea.   In the follow up review  the opp.party had duly attended the complainant and the subjective symptoms of pregnancy were in full support of the diagnostic finding and hence the opp.party prescribed iron and calcium tablets.. Routine  blood and urine investigations were also done and its results were found normal.  During the regular follow up  the size of abdomen increased corresponding to the period of amenorrhoea and the complainant exhibited other subjective symptoms of pregnancy leaving no change for suspecting otherwise.  As  it is routinely done in cases of pregnancy which are devoid of any anomalies or complication, the opp.party had advised an ultra sound scanning to be done.    But the complainant did not produce any scan report as per the advice.  The complainant reviewed on 1.12.2004 in the OPD  for check up without the USG report.  On a careful physical examination the complainant appeared quite normal but she was not appreciating foetal movements.   The opp.party properly informed the complainant and her husband about the fact of non-appearance of foetal movements perceived during examination and insisted the complainant to report with USG to trace out its reason.  The complainant came  and reported with the USG only on 11.12.2004 and the USG finding  was normal uterus.   Based on the USG  findings the opp.party  had informed the complainant and her husband  that this type of spurious pregnancy imitating all the charachterstics of a normal pregnancy is not quite unlikey and duly explained the reasons behind it.  Despite the explanation given by the opp.party the complainant and her husband willfully published the matter among the media persons  intending to defame the opp.party with an ulterior motive of taking undue advantage out of it.   The condition that  occurred in the case of the complainant is well documented as pseudocyesis most  frequently observed in women who have an intense desire to become pregnant.  There was no negligence or deficiency in service on the party of the opp.party and hence she is not liable to compensate the complainant.  The attending circumstances that precluded the chances of early detection of the condition of pseudocyesis is to be noted.  The missing of pseudocyesis in early  diagnosis was not the result of any negligence or carelessness on the part of the opp.party.  The complainant herself detected the cessation of menstruation on 26^th May  and reported the same to the opp.party on August 2004.   The urine pregnancy test was positive and complainant exhibited progressively prominent abdomen corresponding to the period of amenorrhoea.  The complainant did not have any complaint during  the period  of  antenatal check ups and hence the USG was advised within 18 to 20 weeks as routinely done in normal pregnancy cases .    The opp.party noticed lack of foetal movements on 1.12.2004 and the USG report was made available to the opp.party only on 11.12.2004  which confirmed pseudocyesis.    The opp.party  attended the case of the complainant within the sphere and ambit of the facilities available at Govt. Victoria Hospital, Kollam  in OP treatment.  The OP Department at  the above hospital  is too  much crowded  and very often a single doctor is constrained to attend all those patients  within the stipulated time frame.  Amidst all  attending limitations the opp.party exercised reasonable degree of skill and care in the treatment of the complainant .    Hence no liability can be fastened upon the opp.party.   The averments contained in para 1 of the complaint is not correct and hence denied..  The averments in para 2  of the complaint  are admitted subject to slight clarification .   The averments in para 3 of the complaint that the opp.party conducted the urine  pregnancy test and found that the complainant was pregnant is not correct and hence denied.  The opp.party had advised urine pregnancy test when the complainant reported with missed periods.  It was urine pregnancy test result was positive and relying on the test result and subjective symptoms of pregnancy the opp.party prescribed Tab, Folic acid iron and calcium tablets .    The averments in part 5 and 6 of the complaint  are false and hence denied.    The scan report was available on 11.12.2004 though the opp.party advised the same in  November 2004  itself but it was due to the failure on the part of the complainant.    The averments in para 9 of the complaint are false and baseless and hence denied.    There was no negligence on the part of the opp.party .    The averments in para 10 of the complaint is denied on the ground that the complainant has no cause of action against the opp.party.  The averments in para 11 of the complaint are also false and highly ill motivated and hence denied.  The opp.party  is well qualified and experience Gynecologist with a renowned service record in the field of obstetrics and Gynecology  The amount claimed in the complaint is highly exaggerated  and claimed without any basis.  There is no negligence or deficiency in service on the part of the opp.party.  The complainant is not entitled to get any amount as compensation from the opp.party.   Hence the opp.party prays to dismiss the complaint.

          Opp.party 2 filed a separate version

The Points that would arise for consideration are:

1.     Whether the complaint is maintainable.

2.     Whether there is any negligence or deficiency in service on the side of the 1^st opp.party

3.     Whether the complainant is entitled to get any compensation as claimed.

4.     Reliefs and costs.

For the complainant PW.1 is examined.  Ext.P1 to P10 are marked.

For the opp.party DW.1 is examined.  

Point:1

          It is to be stated that this Forum has considered the maintainability of this complaint as a  preliminary issue and as per the order dated 28.6.2005 this Forum found that this complaint is maintainable before this Forum.   No appeal or revision was filed against that finding and the order has become final.   Therefore,  we hold  that this complaint is maintainable before this Forum.  Point found accordingly.                                                                                                                                                            

Point:2

The case of the complainant is that the 1^st opposite party whom she approached for treatment in connection with her pregnancy has failed to exercise reasonable skill and care in diagnosing pregnancy with the result that she had to suffer humiliation, mental agony and harassment.  The complainant was diagnosed as pregnant by the 1^st opposite party on the basis of urine pregnancy test conducted in the laboratory attached to the same hospital but the 1^st opposite party failed to conduct ultra sound sonography and confirm pregnancy even after 7 months  which is negligence on her part. 

          According to the 1^st opposite party  the complainant approached her on 11.08.04 with a history of irregular periods and told her  that her last menstrual period was 26.05.04 and as suggested  by the 1^st opp.party urine pregnancy test  was conducted which was found positive.   It is the case of  the 1^st oppo.party, that the prevailing practice in the medical field in such circumstance is the urine pregnancy  test and  based on the positive urine test, result  she has come to the conclusion that the complainant is pregnant and prescribed certain medicines such as Folic acid etc. which are the medicines prescribed by any Gynaccologist to a pregnant woman in such circumstances Periodical review was also made and during that period the complainant did not have any complaint and she has exhibited prominent abdomen corresponding to the period of amenorrhea and that during the above period the patient never reported menstruation. It is the further case of 1^st opposite party that Ultra sound Scan was generally advised within 18-20 weeks of pregnancy and  she has also suggested the same  within 20 weeks  and the complainant  when produced the same  it was noticed that the pregnancy of complainant is a ‘Pseudo cyesis’ which is found in women who have an intense desire to become pregnant.  The definite contention of the 1^st opposite party is that the omission to detect pseudocyesis in earlier diagnosis is not  negligence on her side.

          Now the question is whether there is any negligence on the side of the 1^st oppo.party and if so at which point.  It is an admitted fact that after the 1^st visit on 11/08/04 the complainant has reported for review regularly.  Pw1 has no case that during these reviews she had complained of pain or bleeding.   Though she would depose that she complained  of pain in October 2004 there is no such pleading 

The learned counsel for the complainant argued that the 1^st opp.party never exercised reasonable skill and care in diagnosing p[regnancy despite the fact that she examined the complainant six times which itself is sufficient to establish negligence  on her side.  Admittedly the 1^st opp.party came to the conclusion that complainant is pregnant on the basis of  Ext.P1 [a]  urine test  result  conducted in the Victoria Hospital itself which was brought by the complainant herself.   Admittedly the lab which conducted the test is not a party to the proceedings.   It is quite  probable  that as argued by the 1^st opp.party she  bonafide believing .   Ext.P1 to be a true report  has  acted on its basis.  No occasion is also brought out during the period till the scan report was obtained to doubt the genuiness of Ext.P1 .  Even the complainant has no case that she ever complained of any pain, bleeding or discomfort during the period necessitating a further test. It is also pertinent to point out that from the available materials it  can be seen that  the scan was suggested within 18-20 weeks which is the prevailing practice which is stated by the expert also.  Here is a case wherein the opp.party has relied on a report produced by the complainant herself that she is pregnant  and in the absence of any circumstances such as menstruation, bleeding or pain there is no reason to doubt its credibility.  As argued by the learned counsel for opp.party 1 so far Ext.P1[a] is not proved to be a false one; the burden of which is on the complainant herself.

          According to PW.1 she told the 1^st opp.party that there is no foetal movement in October 2004.  On that day blood and urine  tests were also conducted evidenced by Ext.P2 . It PW.1 complained to opp.party 1 about the absence of foetal movements there is no reason why the 1^st  opp.party failed to suggest scan.  Ext.P3  O.P. card  also does not show if any such complaint.   The 1^st opp.party’s  case is that she has suggested ultra sound scan  on 1.12.2004 but the scan report was brought only on 11^th December 2004.  The expert has stated that usually ultra sound scan is prescribed within 18-20 weeks of pregnancy and the 1^st opp.party has also suggested ultra sound scan more or less within that period.   .  So the contention that ultra sound scan has been suggested belatedly cannot be safely accepted.  It is also worth pointing out in this context that the charges for  scan  are not to be met by the  1^st opp.party  but by the complainant herself.   There is force in the argument of  the learned counsel for the 1^st opp.party that the 1^st opp.party has not suggested scanning at earlier  stage only to avoid unnecessary expenditure to the complainant who is a below poverty line patient, when the patient had no complications   From the evidence of PW.1 it is quite improbable that she complained of absence of foetal movements to opp.party on 16.10.2004.  This aspect is fortified by her statement in cross examination. iuyk Siprukaluj svr\rk dkyijh\hlf\ffk sdln\mlnk scan     svu\ulR eyB\Bfk   that can only  be on a subsequent date as it has come in evidence  that she has not complained of pain in October 2004.  When urine test is positive  a further test or scan is requested before 18-20 weeks only if there is any complications and no cogent materials are forthcoming to show that the complainant had developed any complications other than her  oral  assertions.

          Negligence is a breach of duty to take care which results in injury to the complainant.   Now let us consider what is the injury sustained by the complainant due to the alleged negligence of opp.party 1.  PW.1 hereself has admitted that opp.party 1 has  prescribed only certain vitamins to her and she has not taken any other medicines during her treatment by opp.party 1 which caused any harm to her.  PW.1 has also no case that she had undergone any complications or that her ability to become pregnant has been affected because of the treatment of opp.party,  PW.1  further  admitted that subsequently she became pregnant and gave birth to a child in cross examination PW.1 has stated that she had suffered  defamation.   What sort of defamation was it is not specified.   She has approached opp.party 1 in connection with  her 2^nd pregnancy.   So it cannot be said that her reputation regarding her ability to become a mother has been affected.   The publicity with regard to this incident was given by the complainant herself.  She has admitted in cross examination that while she was going to see opp.party 1 with the scan report a cameraman of a TV channel was called by them.  To use her own words “CNW channel cameraman sr Bb\bX  ijxj]kdulujgkr\rk”  So the reputation of the complainant if at all affected it is only due to the act of the complainant herself and not due to any act of the opp.party 1

          An expert report was obtained through interrogatories filed by both sides from Dr. Syamala Devi of KIMS Hospital, Thiruvananthapuram.   In both the replies to interrogatories the expert has not definitely attributed any negligence on the 1^st opp.party.   In answer to question NO.8 of the counter interrogatories filed by the complainant the expert has stated that “It could be negligence it he/she  has not exercised reasonable degree of skill and care in the diagnosis of pregnancy”.   She has not stated  that from the available materials opp.party 1 has failed to exercise reasonable degree  of skill and care.  In answer to interrogatory  No.6 of the 1^st opp.party the expert has stated that immediate ultra sound  re confirmation  by ultra sound scan is not necessary unless patient has other  symptoms such as    pain, bleeding etc and the available evidence shows that there was no such symptoms within 18-20 weeks of pregnancy.  In answer to question No.13  the expert  that in the case of Pscudocysis a patient feels pregnancy symptoms when she is not actually pregnant.   The expert opinion shows that the first test for confirming pregnancy is the urine pregnancy test and that in the case of chemical pregnancy, any  tumor secreting  BHCG hormones such as vericular moles  charcocaicinorma a false  positive urine test will be  obtained  and the gynecologist cannot be said to be negligent in such cases.

          Learned counsel for the complainant would argue that in the departmental enquiry held by Government in connection with this incident opp.party 1was found negligent and was suspended from service and also awarded  punishment of withholding one increment for one year and that enquiry report can be accepted for attributing negligence on the side of opp.party 1 and  in support of his contention he has relied on the decision of  Uttaranchal State Consumer Disputes Redressal Commission reported  in 1 [2005] CPJ 630 wherein it has been held that inquiry  report is an important piece of evidence and that the non production of the same will lead to adverse prescription suspension can be said to be not a punishment.  With regard to the punishment of withholding of one increment for one year it is a minor punishment.   We strongly doubt whether  the report in the absence other evidence can be accepted for finding negligence on the 1^st opp.party.   The decision relied on by the learned counsel for the complaint is not regarding acceptability of a departmental  enquiry report  for finding negligence on a doctor but with regard to non-production of the same moreover the circumstances in that case and the case in hand are also different.

            The Apex Court in the decision reported in 2005 [3] KLT 965 {SC] has held that “Negligence in the context of medical profession necessarily calls for a treatment with a difference.  To infer rashness or negligence on the part of a profession in particular a doctor additional considerations apply.  A case of occupational negligence is different from one of professional negligence.  A simple lack of care an error of judgement or an accident is not proof of negligence on the part of a medical professional.  So long as a doctor follows a practice acceptable to the medical profession of that day  he cannot be held liable for negligence….”  Here the opp.party has suggested urine pregnancy test which is the prevailing practice  is stated by the expert also.   The conduct of opp.party 1  in not prescribing  ultrasound scan earlier in the absence of any other complication is only an error of judgement which is not a negligence  in the light of the Apex Courts decision referred to above.   As pointed out earlier the complaint has also not suffered any serious injury or damage.  On a careful consideration of the entire evidence now before us we are of the view that the 1^st opp.party cannot be held liable for medical negligence.

In the result the complaint  fails and the same is hereby dismissed.   No costs.

Dated this the 28^th day of January, 2009.

.

I N D E X

List of witnesses for the complainant:

PW.1. – Mary

List of documents for the complainant

P1. – Out patient ticket

P1.[a] Pregnancy test result

P2. – Laboratory report

P3. – Antenatal card

P4. –Diaspot

P5. – Urinary bladder movement

P6. – Application

P7. – Reply  by Victoria Hospital

P8. – Application to the DMO

P9. – Reply sent by DMO

P10. – Cover forwarding.

List of witnesses for the opp.party

DW.1. – Dr. Beena

List of documents for the opp.party :NIL