STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 24.05.2018
Date of final hearing: 04.12.2023
Date of pronouncement: 23.01.2024
First Appeal No.681 of 2018
IN THE MATTER OF :-
Smt. Poonam Miglani W/o Sh. Vinod Miglani, R/o H.No. 850, Ward No. 11, Panipat, Tehsil and Distt. Panipat. ....Appellant
Versus
1. Dr. Ritu Parbhakar W/o Sh. Sandeep Parbhakar C/o Parbhakar Hospital, situated at Assandh Road, Near Fly Over, Panipat, Tehsil and District Panipat.
2. National Insurance Company Ltd., GT Road, Panipat, through its Branch Manager. …..Respondents
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Ms. Jai Shree Kaushik, proxy counsel for Sh. Ajay Chaudhary, counsel for the appellant.
Sh. Rakesh Handa, counsel for respondent No. 1.
Ms. Swatantar Kapoor, counsel for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Delay of 110 days in filing of present appeal stand condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this Appeal No.681 of 2018 filed by appellant-complainant has been invited to legality of order dated 30.11.2017 passed by District Consumer Disputes Redressal Forum-Panipat (In short “District Consumer Commission”) in complaint case No.139 of 2014, vide which appellant’s complaint has been dismissed.
3. Complainant alleged that, she was suffering from pain due to pregnancy; she contacted Dr. Ritu Parbhakar-OP No.1 on 03.02.2014 who suggested for abortion. Complainant underwent operation of abortion. At the time of operation and treatment; small piece of plastic remained in her body due to careless operation of D&C (Dilation and Curettage). She faced severe pains after alleged negligent operation by Dr. Ritu Parbhakar. She again went to OP No.1, who suggested urine test, blood test and gave heavy pain killer medicines but to no avail. She reached at Madhumita Hospital for ultrasound on 05.02.20214. She came to know from ultrasound report that some small piece of plastic, of size 6.5 mm is in her body which was not removed by Dr. Ritu Parbhakar (OP No.1). She went at Sachdeva Hospital-Karnal, where doctor removed plastic piece from her body by conducting second operation. She remained admit there from 12.02.2014 and 17.02.2014 and spent Rs. 1.50 lacs on treatment, which took place due to careless negligence of Dr. Ritu Parbhakar. She asked OP No. 1 to pay compensation but OP No.1 refused. By alleging deficiency in service of Ops; she filed complaint to direct OPs: to pay Rs.10,00,000/- to her; Rs.50,000/- for mental and physical harassment and Rs.11,000/- for litigation expenses.
4. OPs raised contest. In the defence entered by OP No.1-Dr. Ritu Parbhakar, it is pleaded that: complaint is not maintainable, complainant has not come with clean hands; she has levied false allegations. There is no deficiency in service provided to her. Complaint has been filed with a motive to extract money from her (OP No.1) without any cause. As per Section 8 of Medical termination of Pregnancy Act, 1971 there is a protection of action taken in good faith and no suit or legal proceedings shall lie against registered medical practitioner for any damage caused, or likely to be caused by anything which is done or intended to be done in good faith. As such, no liability can be fastened upon OP No.1. It is admitted that complainant came to her for termination of pregnancy as she did not want to keep to child, as pregnancy occurred due to contraceptive failure. Accordingly, pregnancy was terminated according to well established method of ‘Suction with Cannula’. It is wrong to allege that abortion so conducted by OP No.1 was ever made in careless or negligent manner. It is pleaded that: while terminating pregnancy; a tip of Cannula at level of opening got arrested and broke down from rest of the Cannula. Although, attempts were made to remove that tip from Uterus, but it did not come out and at that time it was not advisable to more intermeddling, as it could have caused perforation which could be fatal and life threatening. It was disclosed to complainant that presently tip of Cannula is not going to cause any pain or damage or loss to Uterus to or her body and it will be removed after next cycle period. As per plea, OP No. 1 committed no negligence in performance of abortion and prior intimated complainant about broken tip of Cannula. Tip of Cannula, so broken was left in Uterus. Attempts were made to remove the same, but it did not prove fruitful. Since, Cannula had broken which is one of the rarest case so it cannot be said that tip of Cannula had broken due to careless and negligent working of OP No.1, who never administered any heavy pain killers as tip of Cannula was so small that, at best, it can work as ‘Copper Tee’ and question of causing any pain because of broken tip of Cannula is a blatant lie. There was no necessity for complainant to get herself ultrasound. Tip of Cannula was to be removed after monthly cycle of complainant. Despite requests made by OP No. 1 to her (Complainant) she did not turn up for removal of tip of Cannula after completion of monthly cycle. After monthly cycle is over, walls of Uterus are bit stronger and tip would have been removed hardly within two minutes. No heavy amount was incurred by complainant as alleged. There was no necessity or requirement of situation for any further operation by complainant. OP No.1 has not committed any offence nor it can be said that she ventured into any experimentation, rather she terminated pregnancy through one of the well established procedure of Suction through Cannula. She cannot be said to have committed any negligence in performance of procedure. Whole story of complainant is manipulated. All other allegations have been denied.
5. In the separate defence, OP No.2-Insurer has asserted that complaint is not maintainable. Insurer is not liable to pay any compensation in this case. Insured – Dr. Ritu Parbhakar of Parbhakar Hospital, Assand Road-Panipat had given best treatment of her own capability to patient. Complainant has not locus standi. There is no expert medical opinion that OP No. 1 was negligent in providing treatment to complainant. There is no specific medical scientific allegations in regard to negligence or deficiency, because medical advice and treatment was given, with due care and caution, by OP No.1. Complainant has not pointed out; as which or what stage of treatment OP No. 1 was negligent? What OP No. 1 has done to prevent, what she has not to do? What were or other lying treatment. It has been pleaded as incorrect that at the time of operation and treatment small piece of plastic remained in the body of complainant due to careless operation of D&C (Dilation and Curettage). Further allegations have been pleaded incorrect. Complainant has been put on strict proof of same.
6. Parties to this lis led their respective evidence; oral as well documentary before learned District Consumer Commission-Panipat.
7. By critically analyzing the same, learned District Consumer Commission-Panipat vide order dated 30.11.2017 has dismissed complainant’s complaint; thereby giving rise to filing of this appeal.
8. Learned counsel for complainant/appellant and OP No.1-insured and OP No.2-insurer has been heard at length. Record of complaint has also been perused with their able assistance.
9. Learned counsel for appellant has urged that impugned order 30.11.2017 suffers from illegalities, both on legal and factual front. Negligence of OP No.1 has been proved by her own admission in written statement that small plastic piece of size 6.5 mm was left in her body at the time of performing D&C (Dilation and Curettage) procedure on her. It is urged that this small plastic piece was eventually removed from complainant’s Uterus through second surgery which she faced at Sachdeva Hospital-Karnal. It is urged that during this period; complainant suffered enough trauma of physical and mental nature, besides suffering monetary loss as she had to undergo second surgery due to negligent and careless act of Dr. Ritu Parbhakar, who conducted D&C (Dilation and Curettage) upon her and negligently left small plastic piece in her body. Complainant’s indoor hospitalization from 12.02.2014 to 17.02.2014 has added to her tale of woes. On these submissions; learned counsel for appellant-complainant has prayed for acceptance of appeal.
10. Per contra, learned counsel for respondent/OPs No. 1 & 2 have, with one voice, supported impugned order dated 30.11.2017 by urging that it is outcome of meticulous appreciation of facts and evidence by learned District Consumer Commission and does not warrant interference. It is urged that alleged negligence of respondent No. 1 is not established, even remotely. There is no “expert medical opinion” brought on record by complainant in order to lead credence to her allegations. It is urged that, evidence, as admissible in law (oral and documentary) has been led by OPs which collectively, would thwart wild allegations of negligence and carelessness alleged by complainant against OP No.1-Dr. Ritu Parbhakar.
11. This Commission has subjectively analyzed above rival submissions put before it.
12. The classic exposition of law on the field of Medical negligence has been first laid down in a decision of Queens Bench in leading case of Bolam versus Friern Hospital Management Committee [1957] 1 WR 582 wherein law has been explained in following words:-
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill….. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Aforesaid principle of law was reiterated and explained in case of “Eckersley Vs. Binnie”, (1988) 18 ConLR1, in the following words:-
“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinary competent practitioner which have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.”
13. The law laid down in Bolam’s case (supra) is consistently being followed. Hon’ble Apex Court in landmark judgment in “Jacob Mathew Vs. State of Punjab and another (2005) 6 SCC 1 while dealing with the case of negligence by professional also gave illustration of legal profession. The Court observed as under:-
“18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. , [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03)”
In yet another landmark case titled as “Kusum Sharma and another versus Batra Hospital and Medical Research Centre and others” 2010 (3) SCC 480, has laid down following 11 principles while deciding whether the medical professional is guilty of medical negligence, which must be kept in view:-
“I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”
14. Present case in hand, has to be analyzed on pedestal of above cardinal principles. Undisputedly, OP No.1-Dr. Ritu Parbhakar holds qualification of MBBS, MD (Obstetrician & Gynecology). She is a Gold medalist. It is so apparent from perusal of document Ex.C-1, which is letter head of Prabhakar Hospital & Test Tue Baby Centre, Assand Road, Panipat. She cannot be presumed to be novice and neophyte of procedural aspects to be undertaken and to be kept in mind, while conducting procedure of D & C (Dilation and Curettage) on complainant. She is a professionally trained doctor and hence inherently posses requisite expertise in field of Obstetrician & Gynecology as per her academic qualifications. Prescription Slip Ex.C-1 recites that complainant, as patient intended to undergo MTP (medical termination of pregnancy); and D&C procedure was done under anesthesia on 03.02.2014.
15. It is an admitted fact that during operation/procedure conducted on complainant; tip of Cannula had broken. It is a fact expressly pleaded in defence by OP No.1 that complainant was apprised of the fact that tip of Cannula broken which has been left inside her Uterus and which would be removed after completion of her next cycle period. It is an express case, pleaded in defence by OP No.1, that attempt was made to remove tip of Cannula from Uterus of complainant which did not come out and it was not medically advisable to do more intermeddling which could have caused perforation and could have been fatal and life threatening. It is case set up that: it is a rarest of rare case when tip of Cannula had broken.
16. Size of plastic piece left inside Uterus is of 6.5 mm, which is evident from ultrasound report Ex.C-6 of complainant which was conducted by Dr. Mita Gupta, RW-2. Ultrasound report-Ex.C-6 recites: “ENDOMETRIAL CAVITY SHOWS A SMALL FAINTLY ECHOGENIC AREA OF SIZE 6.5 MM”. As per case of complainant, this had been eventually removed from her Uterus, when she underwent second surgery at Sachdeva Hospital, Karnal on 12.02.2014. Ex.C-7 is discharge slip of Sachdeva Hospital-Karnal and Ex.C-8 is follow up OPD Card. Dr. Sonam Sachdeva of Sachdeva Hospital-Karnal appeared in the witness box on behalf of complainant as CW-1. Affirmatively, she testified that patient was carrying report of ultrasound which showed retained piece of Cannula of approx. 6.5 MM, after DNC. It showed foreign body in Uterus. It was concluded that piece is responsible for pain and plan for removing was done under hysteroscopy. On 13.02.2014 she (Complainant) was taken for surgery under general anesthesia. Under hysteroscopsic visulation, chip of Cannula Approx. 1.5 cm by 8 mm size was removed with great difficulty. Dr. Sonam Sachdeva-CW-1 has proved report Ex.C-1. She has also seen plastic piece Ex.C-13 which was removed from body of patient Poonam Miglani-complainant. In her cross-examination, she has testified as correct that it was an MTP (medical termination of pregnancy) with ‘dilation and curettage’ which was done at Parbhakar Hospital-Panipat. She further testified that: “the Cannula can break, but it can never be intentional and it is always accidental. The patient knew that piece of Cannula is inside her Uterus.”
17. Obviously, complainant was put in knowledge of fact by OP No.1 Ritu Parbhakar alone that tip of broken Cannula has been left in her Uterus. Here also, OP No.1 was strictly adhering to medical jurisprudence. Needless to say that any grave and vigorous attempt by OP No.1, to remove tip of broken piece of Cannula from complainant’s Uterus, could have led to perforation of Uterus leading to fatal consequences upon complainant and this situation was palpably avoided by OP No.1. Testimony of Dr.Sonam Sachdeva-CW-1 has formed a formidable and acceptable base to outscore the element of alleged negligence of OP No.1 when she CW-1 has deposed that Cannula can break, but it can never be intentional and it is always accidental. Meaning thereby, the allegations cornered at galore of medical negligence by OP No.1 do not sound credence.
18. There is no “Expert Medical Report” of committee of Medical Practitioners in the field to substantiate the allegations leveled by complainant. Allegations remained wild, being bereft of proof. There is no evidence to stimulate the complainant’s allegation that OP No.1 had ever deviated from established medical norms while conducting procedure of D&C (Dilation and Curettage) upon complainant and treatment given to complainant was foreign to medical science.
19. Complainant’s allegations of serious infection and pain are based upon presumptions only. Of hand proof of this fact is visible from perusal of testimony of Dr. Mita Gupta who appeared as RW-2. Significantly, this doctor conducted ultrasound upon complainant on 05.02.2014, and formed report Ex.C-6. She testified in clear terms that she cannot say that complainant was experiencing heavy pain due to Echogenic area. It has been observed by learned District Consumer Commission that allegations qua complainant having developed gangrene due to wrong medical procedure conducted upon her by OP No.1-Dr. Ritu Parbhakar are totally ruled out for the reason that in routine; MTP is done by Sterile Cannula. Thus, collectively ‘good faith’ of OP No.1-Dr. Ritu Parbhakar is proved as she had never kept complainant in dark by apprising her that tip of Cannula has broken and same has been left inside her Uterus, to be removed eventually after her next month cycle. Her also, OP No. 1-Dr. Ritu Parbhakar’s medical advise to complainant was within parameters of medical norms, keeping in view her pleaded defence that: “after monthly cycle is over, walls of Uterus are bit stronger and tip would have been removed, hardly within two minutes”. Her good intention towards complainant is also ex-facie proved on record and hence she is entitled to legal protection under Section 8 of Medical Termination of Pregnancy Act, 1971 as well. Phraseology of written version of OP No.1-Dr. Ritu Parbhakar, in its entirety, cannot be construed as an admission on her part. Instead, it reflect correct factual scenario. Hence, contention of counsel for appellant on this score stood repelled. May be, complainant had experienced some pain because of presence of foreign substance in her Uterus or she underwent second surgery and got removed that foreign substance from Uterus, yet, element of Medical Negligence of OP No.1-Dr. Ritu Parbhakar, on given facts, is not proved. No professionally qualified does negligence, knowingly. Medical negligence is not to be automatically presumed. No sensible medical professional would intentionally harm or injured a patient, as his/her professional reputation would a stake. Consumer Protection Act ought not to be used as a ‘halter around the neck’ of Doctor thereby making him/her apprehensive on any or sundry reason. In present case, element of “Mens-rea” of OP No. 1-Dr. Ritu Parbhakar is grossly missing. She cannot be held culpable for no intentional fault on her part. Complainant has been rightly non-suited.
20. On the face of above subjective and critical analysis of all relevant facets of this case; this Commission does not find any justifiable ground to upset the well reasoned finding recorded by learned District Consumer Commission-Panipat through its order dated 30.11.2017 and to interfere in same. Resultantly, impugned order dated 30.11.2017 is maintained, affirmed and upheld. Present appeal of complainant, being devoid of any substance is dismissed.
21. Any other application(s) if pending, too stand disposed of in terms of the aforesaid judgment.
22. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
23. File be consigned to record room.
Date of pronouncement: 23rd January, 2024
