Ramesh Bawri, Member: - the case of the complainant, briefly stated, is that having consulted the Opposite party no.1 (henceforth referred to as the ‘Doctor’) she adopted Birth Control methods by insertion of Multi load C.U. 250 (Copper-T) IUCD at her clinic. Thereafter regular Checkups were done by the Doctor without any cause for complaint. After about 3 years the complainant decided to have the IUCD for this purpose, with prior appointment, accompanied by her husband.

 

2. The Doctor, after necessary preliminary check up, started to take out the Multi load C.U. 250 (copper-T) IUCD with the help of her assistant. While taking it out, the string of the Multiload C.U. 250 broke due to rash, negligent and careless pulling by the said Doctor. The Copper-T slowly started to move inward and the Doctor inserted her hands and also her expanding equipment deep inside causing the Complainant to scream loudly due to intolerable pain caused by the Doctor’s negligence. Became nervous and started to shout back at the Complainant using filthy language and even beat the Complainant asking her to stop shouting. The Doctor made another attempt by inserting the expanding equipment and her hand still more deep and pulled out the Multiload C.U. 250. In the process, the Complainant patient almost fainted with unbearable pain and had the feeling that some internal organs / nerves had been torn. Thereafter the Doctor became busy with her other patients, asking the complainant sit outside. She did not prescribe any medicine nor gave any advice to consult any other Doctor / Hospital. The Doctor also gave no advice as to what should be done in case any serious complications arose.

 

3. the complainant was then brought back to her residence by taxi and kept in bed for taking rest. She had inflammation and sweating over the whole body and fainted twice when she tried to get up. At 3.30 P.M., the complainant’s husband contracted the said doctor over the telephone and narrated her unusual condition. But the Doctor replied that the complainant was unnecessarily nervous and advised her to relax. But during the whole night she could not lie down as she was having tremendous suffocation when she lay down. She passed the whole night restlessly with pain and agony in a helpless manner as it was difficult to move out in the cold night of December nor any doctor could be called for a night visit.

 

4. Next day the patient was admitted at Woodland Nursing Home (Opposite party No.2) where after 12 days of treatment she was referred to Apollo Hospital, Madras (opposite Party No.3) for further treatment. The complainant was treated at Apollo Hospital from 31.12.96 to 10.01.97 and further from 22.1.97 up to 1.2.97 at Malankara Medical Mission Hospital, Kolenchery (Opposite party No. 4).

 

5. The complainant contends that she suffered serious ailments arising out of numerous complications endangering her life and her normal state of health which developed due to the negligence and inefficient handling of the case during removal of the IUCD by the Opposite party Doctor amounting to deficiency in service for which the Doctor is liable to compensate the complainant to the tune of Rs.6.29 lacs along with interest. No relief has been sought against opposite party Nos.2, 3 & 4, nor has any negligence or deficiency in service on their part been alleged.

 

6. During the hearing, the Complainant has exhibited the relevant Medical Reports relating to her treatment by opposite party Nos. 2, 3, & 4 and had appeared as PW – 1 to give her own evidence on oath. Exihibit-3 is the case Summary of the Complainant maintained by O.P. No.2 which records her treatment as follows:

 

“Treatment: Patient was taken up for surgery after resuscitation and laparatomy. There was hemoperitoneum with perforation of the uterus at the fundus posteriorly (2.5 × 2.5 cms) and at the ileum two places adjacently (1/2” length ×full thickness) and (1 cm ×0.5 cms) at about 1 ½ ft from the I-C region with soiling of the peritoneal cavity with blood and faecal matters. Perforations closed, peritoneal toilet was done, drain kept in both the flanks.

 

Post operatively patient was doing well, although tachycardia tachypnoea persisted and gradually subsided, patient was allowed orally sips of water from 22/12/96 after removing the ryles tubes as there was no signs of peritonitis abdomen. On 23/12/96 patient developed hemetemesis and malaena (cause stress induced UGI bleed?) and recovered under conservative treatment. Patient was allowed orally from 24/12/96 sips of water and cold mild etc. Patient developed intermittent high grade fever from 24/12/96 although she has been under antibiotic continuously till today.

 

Medicines used were: Inj Magnamycin, Inj Amikacin, Inj vamcomycin (In B D dose) and Ranitidine / Inj Botropase etc and other suggestive therapy. Total 6 units blood transfused. Patient has been referred to higher well equipped centre for better management.”

 

7. Exihibit-4 is the Discharge Summary of the case issued by O.P. No. 3 which narrates the complaints of the patient and the diagnosis in the following words:

 

“Present Complaint: 1) Persistent high grade fever – post operatively-1 week. 2) Breathlessness-4 days. 3) Weakness- since 1 week. History of non-healing wound- at drainage site and sutured. History of Laprotomy- for uterine perforation and ileal perforation with haemoperitoneum with peritonitis- on 19/12/96. History Cu-T removal in 18/12/96- following which patient developed pain abdomen with distensive followed by syncopal attack and was investigated and diagnosed to have perforation.”

   

“Diagnosis: Bilateral Pleural Effusion, Paranoid Reaction, Wound Infection of Laprotomy Scar”

 

8. Exihibit-5 is the Discharge Summary prepared by O.P. No.4, reveals the final diagnosis and history as follows:

 

“History: She had undergone laprotomy for perforated uterus in the month of December ’96. After which she developed peritonitis, and pleural effusion. Developed paranoid reactions and extra pyramidal symptoms, started behaving abnormally. Was taking ATT since 11^th January. Now came with abnormal behavior, bilateral rigidity and tremors. She is not a known case of diabetes or hypertension.”

 

“Final Diagnosis: laparotomy Wound Infection, paranoid Reactions, Bilateral Pleural Effusion.”

 

9. The Doctor too gave her testimony in person. She denied any negligence on her part and asserted that she had removed the IUCD with due care with the help of her assistant and that the complainant had left her chamber hale and hearty without any complaint whatsoever. Further that the allegations made by the complainant were concocted and intended to jeopardize the Doctor’s professional career.

 

10. We have heard the learned Counsels appearing on behalf of the complainant as well as the opposite party No.1, the Doctor. We are required to see whether (a) the Complainant did in fact undergo any suffering consequent upon removal of the IUCD and (b) whether there was any negligence on the part of the Doctor in its removal.

 

11. The medical Records of the Opposite party No.2 show that upon admission the patient was diagnosed as having uterine and intestinal perforation, peritonitis and hemoperitoneum and that she was taken up for surgery after resuscitation and laparatomy. There was perforation of the uterus at the fundus posteriorly (2.5×cms) and at the ileum two places adjacently (half inch length × full thickness) and (1cm × 0.5 cms) at about 1 ½ ft from the I-C region and bilateral pleural effusion. 6 units of blood were also transfused and she was referred to Apollo Hospital, madras (Opp. Party No.3) for better management where this diagnosis was confirmed and treated accordingly. In addition the patient had also developed paranoid state for which she was also treated conservatively.

 

12. The findings of the Opposite party No.4 are again similar and confirm that the complainant had developed paranoid reactions and extra pyramidal symptoms and had started to behave abnormally with bilateral rigidity and tremors without being a known case of diabetes or hypertension.

 

13. In view of the concurrent findings and diagnoses by all the 3 Hospitals (Opposite party Nos.2,3 and 4) the factum of uterine and ileal perforation with haemoperitoneum with peritonitis as on 19.12.96 has to be taken as established. It is quite obvious that such perforation and other complications could not have occurred on their own and could only be the result of the removal of the IUCD on 18.12.96. That the Complainant suffered a great deal both physically and mentally for a prolonged period of time is also quite apparent from the medical reports exihibited by the complainant. We are thus satisfied that the complainant underwent a great deal of suffering consequent upon the removal of the IUCD by the Doctor.

 

14. What however remains for us now is to see whether the sufferings of the Complainant were caused by medical negligence on the part of the Doctor during removal of the IUCD and if so what is the compensation that she is entitled to.

 

15. The Doctor has denied all liability and submitted that the IUCD had been removed smoothly and the Complainant had left her chamber without any complaint whatsoever. According to her the complications were not a result of any negligence on her part but arose because of faulty treatment by opposite party No.2.

 

16. While it is an admitted fact that laparatomy was conducted by O.P. no.2 after the complainant was admitted there, in our opinion what is almost relevant and essentially to be seen is the condition of the patient at the time of her admission at Woodlands Nursing Home before any treatment was undertaken there. If it can be established that the internal injuries suffered by the Complainant existed at the time of her admission, these could not in any manner, be ascribed to any negligence on the part of O.P. No.2 as the learned counsel for the Doctor wants us to hold.

 

17. Now from a bare perusal of the Medical Records exhibited before us and recorded at length herein above, it is amply clear that when the complainant was admitted at Woodlands Nursing Home she was already suffering from uterine and intestinal perforation, hemoperitonum and peritonitis and this could not have been attributed to Woodlands Nursing Home. We also find it surprising that although the Doctor was helped by Smt. Bindu Das her Assistant during removal of the IUCD, no steps were taken by the Doctor either to produce her as a witness or to have an affidavit filed by her to substantiate the claim that the complainant was hale and hearty when she left the chamber after removal of the IUCD. Therefore, in the face of the complainant’s medical records maintained by O.P. Nos. 2, 3 and 4 we find it difficult to accept the statement of the Doctor that the complainant was perfectly alright after removal of the IUCD and that everything was normal.

 

18. Of course, as can also be seen from the aforementioned medical reports, in our opinion, faulty and negligent laparatomy on the part of O.P. No.2 cannot be ruled out. However, this possibility cannot allow our attention to be totally diverted from the alleged negligence on the part of the Doctor during removal of the IUCD.

 

19. having come this far the question which not arises is whether or not the internal injuries that were caused to the Complainant by the Doctor during the removal of the IUCD were owing to negligence on the part of the Doctor or otherwise. Before entering into this question, it would be beneficial to briefly settled legal position with regard to the duties and obligations of the medical practitioner towards his patients, the true tests for establishing medical negligence and the burden and standard of proof therefore in so far as is necessary for a fair decision in this case.

 

20. The Apex Court in its judgment reported in AIR 1969 SC 128 (Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole & another) held in para 11 – “The duties which a Doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes his certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”

 

21. In Nathan’s Medical negligence, 1957 Edition, the following observation of Lord [president Clyde in Hunter V. Hanley, (1955) SLT 213, is relied upon at page 21:-

 

“The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care.”

 

22. It is stated by Nathan in this book at page 43:

 

“No human being is infallible and in the present state of science, even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A practitioner can only be held liable in this respect if his diagnosis is so palpable wrong as to prove negligence, that is to say, if his mistake is of such nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.”

 

23. At page 104 of this Book, Nathan has further observed:-

 

“The burden of proving negligence rests upon the person who asserts it. In medical negligence cases therefore it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill. It is by means of evidence of course that the patient will seek to and indeed must, establish his claim; but the evidence he adduces may take several different forms.”

 

24. Lord Denning M.R. pointed out in Hucks V. Cole. (1968 (118) New Law Journal 469) as follows:

 

“A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure or for an error of judgment. He was not liable for taking one choice out of two or for favoring one school rather than another. He was not liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure or inexcusable.”

 

25. As regards the burden of proof, at page 580 of Charlesworth on Negligence, it is stated that:

 

“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it. Hence it is for the plaintiff to give evidence of the facts on which he bases his claim to the redress which he seeks from the Court.”

 

26. In I (1999) CPJ 13 (NC) (Calcutta Medical Research Institute _Vs_ Bimalesh Chatterjee & Ors.) it was held that the onus of proving negligence and resultant deficiency in service was clearly on the Complainant. Further, in III (1999) CPJ 9 (NC) (Kanhaiya Kumar Singh –Vs- park medicare & Research centre) it was held that – “negligence has to be established and cannot be presumed.” Both these decisions of the national Commission related to medical negligence.

 

27. In AIR 1998 SC 1801 (M/S Spring Meadows Hospital –vs- Harjol Ahluwalia) the Honorable Supreme Court has held in Para 9 as follows:

 

“With the emergence of the Consumer protection Act no doubt in some cases patients have been able to establish the negligence of the doctors rendering service and in taking compensation thereof but the same is very few in number. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected to the reasonably skill of a competent doctor.”

 

In Para 10 it was further held that a gross medical mistake will always result in a finding of negligence.

 

28. We may also refer to the leading case of Whitehouse –vs- Jordan [(1981) 1 All ER 267] where the House of Lords held that:

 

“The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care might have made, then it is not negligence.”

 

29. It is inarguably clear from these authorities that, in order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no, doctor of ordinary skill would be guilty of it acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that a medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. There is no question of warranty, undertaking or perfection of a skill. The standard of care and skill to satisfy the duty is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill.

 

30. Here we must also note that in Section 3 of the Indian Evidence Act, the word ‘Proved’ has been defined as follows:

 

“Proved- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.”

 

31. Viewed against the backdrop of the settled position of law as discussed in the foregoing paragraphs, keeping the age-old definition of the word ‘Proved in mind and in view of the totality of circumstances and the evidence discussed above, we are satisfied that at least a part of the medical complications suffered by the Complainant were a direct result of the negligence of the Doctor both during removal of the IUCD and immediately thereafter by her failure to render proper care and attention towards the internal injuries and that the Complainant has been able to prove negligence on the part of the Opposite Party No.1 by showing that what the Doctor did was not expected of Doctors of average skill and that the Doctor did not do what was expected of Doctors possessing ordinary skill, acting with reasonable care.

 

32. Moreover, in our view the present case is such where in order to render complete justice between the parties the principle of res ispa loquitor is required to be invoked. This maxim which translates as ‘the thing speaks for itself’ is applicable in actions for injury by negligence where no proof of negligence is required beyond the accident itself and was also applied in a case of Medical negligence by the national Commission in Dr. Janak Kantimathi Nathan & Ors. –vs- Murlidhar Eknath Masane & Ors. [2002 (2) CPR 138 (NC)].

 

33. It is also clear fro the evidence that the suffering of the complainant underwent subsequent to the removal of the IUCD was indeed quite prolonged and very acute and was in the nature of not only physical suffering but also reached the realm of the brain in the form of paranoid reactions and extra pyramidal symptoms. It is also clear from the exhibits before us that the complainant spent around Rs.2.00 lacs on her medical treatment and air travel alone. The question now is what should be the compensation amount.

 

34. Learned Counsel for the Doctor has asserted that the complainant has already been reimbursed for the Medical Expenditure incurred by her by the Government of Meghalaya in whose service the Complainant’s husband was employed and is therefore entitled to no further compensation from the Doctor. While it must be noted that this plea was never raised by the doctor in the show cause filed by her and was raised for the first time at the argument stage, we are inclined to accept the plea of the learned Counsel for the doctor that the medical and traveling expenses of the complainant must have been reimbursed to her through her husband who is in Govt. service, particularly as the complainant has not totally denied this claim and has rather partly admitted the same. It is also well settled that any compensation awarded by the Consumer Forum ought not to result in undue gain to a claimant by double payment. Hence we are not inclined to award the medical and traveling expenses claimed by the Complainant.

 

35. However, even assuming that some reimbursement was indeed made, it would only be limited to the bare medical expenses and in ant event would not, obviously, include any compensation for the hardships, sufferings and mental agony caused to the complainant which she may be entitled to under the C.P. Act. In Bombay Brazzerie –vs- Mulchand Agarwal & Anr [(2003)] 2 CLD 276 (NC)], the National Commission has held that deficiency in service has two aspects – (i) claim for the amount of actual loss and (ii) damages for inconvenience, harassment and mental tension. This second aspect was christened as ‘Consumer Surplus’ by the National Commission. It was also held therein that if a consumer has received compensation for the actual loss suffered by him from one source he cannot be allowed to enrich himself by claiming the same loss again in a complaint filed under the C.P. Act under the pretext of being a consumer. In our view, however, in such cases although a consumer is not entitled to be compensated again for the actual loss suffered by him he is certainly entitled to damages for the inconvenience, harassment and mental tension suffered by him by the negligence and deficiency in the service rendered by the service provider, in proven cases – in other words, the Consumer Surplus.

 

36. Therefore, in all fairness, the injury caused to the complainant through the physical and mental agony and harassment undergone by her for a prolonged period needs to be adequately compensated. As stated earlier, neither has any negligence been attributed by the complainant to opposite party No.2 nor has any relief been claimed against it. We are therefore neither required to come to any finding with regard to negligence and/or deficiency in service on the part of Opposite Party No.2, if any, nor to consider whether it is liable for payment of any compensation and we are only concerned with the compensation to be paid by the doctor.

 

37. In determining the compensation that is required to be awarded to the Complainant we will be guided by the following observations made by the Honorable Supreme Court in Charan Singh –vs- Healing Touch Hospital & Ors. (AIR 2000 SC 3138).

 

“While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an establishing case, which not only serves the purpose of recompensing the individual, but which also at the same time , aims to bring about the qualitative change in the attitude of the service provider. Indeed calculation of the damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the consumer forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.

 

It is not the merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue – it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence.”

 

39. It has been our conclusion that the sufferings undergone by the complainant were at least partly owing to the negligence and deficiency in service on the part of the Doctor during removal of the IUCD, although perhaps not wholly so as additional complications arising from the laparatomy undertaken by Opposite Party No.2 cannot be ruled out.

 

40. Having borne in mind all the factors revealed in the discussions above, we award a sum of Rs.35,000/- as compensation to be paid by the doctor Opposite Party No.1 to the Complainant together with interest at 10% p.a. from the date of filing of the complaint till the date of payment, within 30(thirty) days from to-day, to meet the ends of justice.