Andhra Pradesh

Vizianagaram

CC/65/2013

S.V.NAGESWARI W/O HARIRAMA KRISHNA SRINIVAS - Complainant(s)

Versus

DR.D.PARVATHI,SADHANA MATERNITY HOSPITAL - Opp.Party(s)

S TAVITI NAIDU

14 May 2014

ORDER

This complaint is coming on for final hearing before us in the presence of Sri S.Taviti Naidu, Advocate for the complainant and  B.Rammohan rao, Advocate for the Opposite Party and having stood over for consideration, the Forum made the following:-

 

            O R D E R   

G.APPALA NAIDU, MEMBER

            This complaint is filed U/s-12 of Consumer Protection Act, 1986 seeking relief to direct the OP to pay a sum of Rs.10,00,000/- towards compensation together with accrued interest at the rate of 24% per annum from 13.02.2007 till the date of realization, to pay Rs.1,00,000/- towards exemplary damages and to pay a sum of Rs.10,000/- towards costs of the complaint and such other relief as the Hon’ble Forum deems fit and proper in the circumstances of the case on the following averments:-

        The complainant is working as Secoundary Grade Teacher at Srikakulam when she was 5^th month pregnant and as per the advise of Dr.Santakumari, Gynecologist, Visakhapatnam, she was undergone scanning on 25.08.2006 at Rapha Medical Centre, Srikakulam and after the said scanning, the radiologist reported that the baby was dead in her womb about 4 days back and further advised that unless the dead fetus is removed from her Womb, it would be dangerous to her life.  Accordingly the complainant was admitted in the hospital of the OP at about 5.00 to 6.00PM for necessary check-up.  The complainant was given some injection and was informed that pains will develop in the intervening night of 26.08.2006 and then only the dead fetus would come out from the womb.  However no pains were developed till the evening of 26.08.2006 and therefore the complainant was once again taken to labour room for check-up and the OP asked complainants husband to bring some Gel for applying the same to the complainant so that it would be easy to remove the dead fetus from the womb.  At that time the complainant’s husband informed the OP that Dr.Santa kumari, Gynecologist at Visakhapatnam advised to use pill for removal of the dead fetus from the Womb but the OP did not listen to him but asked him to bring the Gel as it is a proper process.  Inspite of application of the Gel, there was no proper response of signs of development till 27.08.2006.  Meanwhile the complainant was running with temperature and hence she was once again taken to the labour room and OP applied pill.  Even for that also there was no response till the night of 27.08.2006.  Subsequently the complainant was getting severe pains in the uterus and as the OP did not properly attend to the problem of the complainant, the complainants husband once again contacted Dr.Santa Kumari, Gynecologist at Visakhapatnam over phone and was informed that the OP might have applied forks in the Uterus and out of that some complications were developed as a result of which complainant is complianing severe pains etc.,  It is also stated that due to constant check-up of Uterus by forks, uterus may be ruptured resulting in complications. Subsequently the OP prescribed some injection  intravenous (IV) to the patient after which the complainant omitted immediately after 15 minutes and went into unconscious stage.  As the complainant was in critical condition she was operated in OP’s hospital on 27.08.2006 at about 8.00 PM.  OP asked complainants husband to pay Rs.600/- to the anesthetist and a sum of Rs.5,000/- to the owner of the Oxygen cilender.  On the next day i.e. 28.08.2006 complainant got fever and two days after operation i.e. 29.08.2006 the health of the complainant became more worse and it was difficult for her even to breathe and swelling appears on the legs.  The husband of the complainant observed symptoms of Jaundice but the OP has not attended properly.  Due to the delay in giving proper treatment by the OP, the patient was badly infected and under-went septisemic shock due to the negligence of the OP in taking pre-operative as well as post-operative care.  Therefore the complainants husband once again consulted Dr.Santa kumari, Gynecologist at Visakhapatnam and intimated entire episode.  On that he was advised to bring the patient immediately to Vivekananda Nursing Home at Visakhapatnam and for discharging the patient, the OP created Havoc and by that time the complainant was unconscious.  Inspite of that the OP acted mercilessly and collected huge amount of Rs.15,500/- for which the OP refused to give receipts, discharge sheet and case sheet (zerox).  The complainant’s husband immediately brought the patient to Vivekananda Nursing Home at Akkayyapalem, Visakhapatnam about 3.30 PM and on 31.08.2006, a team of doctors consisting of Dr.Kesavarao, Dr.Santa kumari, Dr.Manmadharao and Dr.P.S.Prasad attended on her and necessary treatment was given and as a result of the same, complainant survived still the complainant has been taking proper doses on the advise of specialists at Visakhapatnam and slowly she recouped her health but however her uterus was removed due to OP’s negligent and careless act.  Therefore it is a clear cut case of medical negligence and accordingly the OP is liable to pay, compensation for mental agony, pain, suffering and meternal loss which also caused great loss to the complainant as she cannot bless further children due to removal of the Uterus.

        Narrating all the above facts, the complainant issued a legal notice to the OP on 13.02.2007 but the OP intentionally evaded to receive the same but also managed the postal department to endorse “address not available” on the notice addressed to the clinic of the OP and whereas in respect of the notice addressed to Government Hospital it was returned with an endorsement” 7 days absent and hence returned to sender”.  As there is deficiency of service and medical negligence on the part of OP, the cause of action for the complaint arose on 27.08.2006.  Hence this complaint.

        Counter filed by the OP denying the allegations made by the complainant except those which are specifically admitted therein and puts the complainant to strict proof of the same.  The present complaint is not maintainable under the consumer protection act as there is no consideration between the complainant and OP and also there is no consumer relationship as there is no cause of action.  Further the complaint is bad for non-joinder as well as mis-joinder of necessary parties.  Hence the complaint is liable to be dismissed.  It is also stated that the hospital in which the complainant was admitted does not belong to OP.  The OP also tried her level best for normal ejection of dead fetus from the womb of the complainant but on failure of which the OP conducted hysterotomy.  The OP further submits that the entire story as narrated in the complaint was created for the purpose of this case without any iota of truth.  It is further submitted that there is no negligence or deficiency in service on the part of OP in discharging her duties and moreover she acted with utmost care and caution and no harm was caused to the complainant in her hands.  She also submits that the complainant approached the OP on 26.08.2006 with a features of 16 to 18 week gestation of specific complications of retained dead fetus of more than 4 days duration and the complainant had temperature and signs of infection and then the OP advised to admit her in the nursing home and accordingly she was admitted in Sadhana meternity hospital, Srikakulam on 26.08.2006 at 3.30 PM and then the OP started treatment from appropriate antibiotic cover and conducted Hysterotomy on 27.08.2006 “opening of uterus and removing the infected dead fetus and clousure of uterus”.  Subsequent to the said surgeory patient developed with mild jaundice which is a normal anticipated symptom logy of infection in the body and appropriate support measures were initiated by applying medicines.

        The OP further submits that as the dead fetus was in the complainant womb for the last more than 4 days and prior to it is septic and fever was developed and as a result even after surgeory she developed with mild jaundice however after hysterotomy complainant recovered very fast and without any major complications.  But the complainant’s husband created a galata only to avoid payment of fee and charges to the hospital and took the complainant-patient forcibly from the hospital against the medical advise, on 29.08.2006.  Even then the OP has kept quite only to avoid controversy and further to maintain dignity and decency of her profession.  Subsequent to the discharge what happened was not known to this OP and it was never informed to this OP.

        Further she has not received any notice from the complainant or the Hon’ble Forum at Srikakulam except the newspaper report regarding exparte judgement of the Forum which imposed compensation of Rs.1,00,000/-.  On that the OP obtained certified copy and filed an appeal before the Hon’ble State Commission which has remanded the case for fresh hearing.  At this stage the notice from the Hon’ble Forum for the same address was received by the OP.

        The complainant admittedly joined in the nursing home at Srikakulam and subsequently taken treatment at Visakhapatnam in Vivekananda hospital but the complainant did not show them even as proforma OPs as they are necessary parties to the proceedings.  However the complainant intentionally and will-fully did not  show them as parties to the proceedings even though they are necessary parties.  Hence the complaint is bad for non adding of necessary parties and therefore it is liable to be dismissed.  It is also submitted that as it is alleged to be a case of medical negligence it is the legal and bounden duty of the complainant to file a case before the Hon’ble Forum with supported prima-facio evidence as per the decision of the Supreme Court but the complainant without any base or proof simply filed the complaint.

        The OP further submits that there is no negligence or deficiency in the service on her part.  Further she discharged her duties with utmost care and caution to the best of her ability and therefore the complaint is liable to be dismissed.  The complainant unnecessarily filed a false complaint against the OP, only to harass her and also to squeeze money from the OP unlawfully.  It is also pleaded that since the complainant suppressed the facts and documents before the Hon’ble Forum, the present complaint is a false and frivolous one as contemplated under section-26 of C.P.Act and therefore the complaint is liable to be dismissed by awarding compensation to the OP to the extent of Rs.10,000/- from the complainant as there are no merits in the petition.

        Exhibit A-1 to A-24  are marked on behalf of the complainant and exhibit B1 is marked on behalf of the OP.

        Now posted for orders.  The orders are as follows:-

        Heard both sides.  The counsel for both the parties argued vehemently by reiterating what they have stated in the complaint, counter, evidence affidavit and brief written arguments respectively.  However the District Forum Srikakulam vide its order dated 11^th  day of January, 2010 allowed the complaint partly directing the OP to pay an amount of Rs.1,00,000 to the complainant with interest at the rate of 12% per annum from the date of filing the complaint i.e. 19.08.2008 till the date of payment and costs of Rs.1,000/- besides advocate fee of Rs.1,000/- after observing the following factors:

        Complainant PW-1 is Dr.P.Santha kumari who conducted historectomy operation on the complainant in Visakhapatnam and she deposed that she found uterus of the complainant in rupture condition at the time of joining in the hospital.  She further deposed that it might be due to the previous laporotomy operation and that the complainant was suffering from jaundice at the time of joining in the hospital on 31.08.2006.  She further deposed that when fetus is dead in the womb labour pains will not develop.  If dead fetus cannot be extracted by medicines, then operation will be conducted to remove the dead fetus from the womb.  Also deposed that within 48 hours, dead fetus should be removed from the womb, if not complications will occur.  She further deposed that serious condition of the complaint was the result of delayed removal of the dead fetus from the womb of the complainant.                                                                                                                                                                                                                 

        Complainant had undergone scanning on 25.08.2006 and the radiologist reported that the baby in the womb died about 4 days back and then she was admitted in the clinic of the OP for removal of the dead fetus.  OP had removed the dead fetus from the womb of the complainant on 27.08.2006 by conducting operation.  Complainant was affected with jaundice on 29.08.2006.  Then the complainant was admitted in Vivekananda Nursing Home in Visakhapatnam on 30.08.2006.  Uterus of the complainant was removed one week after 31.08.2006.  It is a case of the complainant that her uterus was removed due to rupture of the uterus at the hands of OP.

        As per the evidene of PW-1, uterus of the complainant was in rupture condition when the complainant joined in Vivekananda Nursing Home at Visakhapatnam on 30.08.2006.  OP removed the dead fetus from the womb of the complainant on 27.08.2006 by conducting operation.  OP must be responsible for the rupture of the uterus of the complainant when she conducted operation to remove dead fetus from the womb of the complainant.  It is the duty of the OP to conduct operation to remove the dead fetus from the womb of the complainant without any damage to the uterus of the complainant.  OP is answerable to the complainant for the damage of her uterus while conducting operation.  OP cannot escape liability to compensate the loss caused to the complainant.  If the OP conducted operation properly with due care and caution, there would not have been damage to the uterus of the complainant.  Therefore the District Forum, Srikakulam held that there is deficiency in service on the part of OP.

        However as observed from the deposition given by PW-1 i.e. Dr.P.Santa kumari on 20.08.2009 she was working as medical officer in Vivekananda hospital, visakhapatnam.  On 31.08.2006 at about 3.00 PM complainant was brought to the said hospital in serious condition, when she was present in the hospital at that time.  Complainant was given oxygen immediately.  Relevant medical tests were conducted on the complainant.  Blood Transfusion was given to the complainant.  Historectomy operation was conducted on the complainant one week after 31.08.2006.  After the said operation the complainant was treated in the hospital for 15 days and then the complainant was discharged.  She found the uterus of the complainant in ruptured condition at the time of admission of the complainant in the hospital.  She further stated that it might be true that the serious condition of the complainant was the result of previous loporotomy operation.  Loporotomy means opening of abdomen.  Loporotomy operation might have been conducted for ruptured uterus.  The complainant was suffering from jaundice on 31.08.2006.  She further stated that she told the husband of the complainant that there was danger of rupture of uterus If the complainant was taken to labour room several times.  She again says, rupture will not be caused If the patient was taken to labour room several times.  She told the husband of the complainant that ruptured uterus had to be operated immediately.  The serious condition of the complainant was result of delayed removal of dead fetus from the womb of the complainant.  There is no possibility of conception after removal  of uterus.

        In the Chief-Examination of P.W.1 i.e. Dr.P.Santha Kumari on 30.05.2012, she confirmed that the patient was treated by her in the year 2006 and minor surgery was conducted by her.  Both flanks will put drains to remove the peritorial fluid and fuss.  Major operation was conducted to remove the uterus she further admitted that she passed MBBS only but did not pass gynecologist test degree or diploma and is only one of the duty Doctors in Vivekananda Hospital further confessing that M.D.(Gynic)/ D.G.O will be called the Gynicologist and she is having experience in Gynicology and M.D.Gynicology is the specialist doing gynicology operation if any.

        Further It is the fact that Dr.G.S.Prasad and Dr.Manmadha Rao conducted surgery and she participated in the said operation along with the said Doctors but she do not know who conducted first operation  and the entire process was completed as per the advice of these two doctors.

        This shows that she is not a specialist doctor and the necessary parties are not added/impleaded in the complaint or subsequently.

In the cross-examination conducted on 01.04.2014 the OP stated that it is not true to suggest that the case sheet filed in the Forum was created for the purpose of this case after the complaint was filed.  As per contents of the said document, the patient was discharged on 29.08.2006 and the said case sheet contains the date as 30.08.2006 and 31.08.2006 to show that the patient was given the treatment till that dates.  The patient left the hospital without her consent on 31.08.2006.  The complainant is second gravida (second pregnancy) with P.C.P with 14  to 16 weeks of I.U.F.D (Intr uterane foetal death).  First delivery was conducted by sisearian operation.  On 25.08.2006, the patient was admitted with I.U.F death ultra sound examination and for termination.  She was suffering from fever at the time of examination and her pulse rate was 100 bpm tachycardia was present by the time of admission of the patient.  On perabdomen examination, Pfannestel (with previous sisearian cut) uterus is 14 to 16 weeks height and uterus relaxed and P.V.examination cervix tublar OS closed.  Since the patient was suffering from fever, she has given antibiotics at that time and after fever was controlled she has given some medication for termination of pregnancy.  After that she waited for starting of labour pains.  Till the evening of 27^th August 2006 there was no response from the patient and around 4.00 to 6.00PM the patient developed breathelessness at around 6 PM.  She further confirms that she knows maximum aspects in gynecology.  Further it is not true to suggest that the patient was suffering from fever due to infection of I.U.F.D.  When the patient was suffering from fever, they should not interfere with the abortion process and that is why she waited for one day for controlling the fever and then she started the abortion process.  After one day patient did not respond that is why  she went for surgeory.  Further it is not true to suggest she has not taken immediate steps after the fever was controlled that is on 26.08.2006.  There were symptoms and  signs of scar rupture.  As the patient complains of pain abdomen, Tachycardia on b.P. was lower on P/A examination, scar tenderness may be present and pleading P.V.may be present.  It is not true to suggest that the above said symptoms were present when the patient was admitted and because of fever techcardia present but not because of scar tenderness.  Since the patient developed Hypotention or rupture uterus, she conducted the surgeory on 27.08.2006.  As per case sheet she found uterus is intact and after opening the uterus, the fetus is removed and uterus closed and the patient is stable throughout the surgeory.  On second post operative day the patient developed jaundice.  On 27.08.2006 the above said findings were witnessed in the said case sheet.  It is not true to suggest that to suit her case, the said case sheet was prepared.  It is not true to suggest that the patient developed uterus rupture.  It is not true to suggest that she has not taken all care of the patient while giving treatment.  Laporotomy is opening of abdomen (meaning of laporotomy).  It is not true to suggest that the husband of the patient insisted on the OP to take immediate steps in getting the pregnancy terminated.  It is also not true to suggest that the patient became psychologically upset as prompt treatment was not given.  It is also stated that Sadhana hospital was established not for giving free treatment.  It is not true to suggest that the complainant paid Rs.15,000/- to take the treatment.  It is also not true to suggest that while she was operating the patient she called the husband of the patient and told him about the rupture of the uterus and that she was negligent in giving immediate treatment to the patient.  It is also stated that once uterus is removed, there is no hope for giving birth to any child.  It is not true to suggest that she was negligent in giving treatment to the patient and that the patient sustained loss and mental agony for not giving  proper treatment to the patient.  It is also not true to suggest that proper post operative care was not taken and there was burst abdomen present and jaundice was developed and the patient suffered septic shock.

        Based on the transfer application/revision petition filed by the OP seeking transfer of the complaint, the Hon’ble State Commission allowed the same and the complaint bearing C.C.No.103/2008 on the file the District Forum, Srikakulam is transferred to this Forum.  Accordingly both the parties appeared before this Forum and advanced their arguments.

Medical Negligence

 

Under Consumer Protection  Act, 1986

 

1. It is the duty of a Medical Doctor to evaluate the situation with as much data as he can gather and as much expertise he has and as much experience as he has to determine whether or not the wish of the patient is medically justified.

2. The objective of the C.P.Act is to provide speedy redressal to consumer disputes since it is a social benefit legislation and to provide wider access to the justice system to speedy procedure, and to award adequate compensation and with increasing public awareness about their rights, the patients as consumers now insist on getting their money’s worth in terms of quality health care.

3. Section 2(1) (o) of the C.P.Act reads as under “service means service of any description which is made available to potential users and include, but not limited to the provision of facilities in connection with Banking, Financing, Insurance, Transport, processing, supply of electrical or other energy, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

4. In the matter relating to Indian Medical Association Vs. V.P.Shanta’s case (AIR 1996 S.C.550) The Hon’ble Supreme Court of India concluded that it is no doubt true that the relationship between a medical practitioner and a patient carries with in it certain degree of mutual confidence under trust and therefore the service rendered by the medical practitioner can be regarded as services of personal nature but since there is no relationship of master and servant between the Doctor and the patient, the contract between the medical practitioner and the patient cannot be directed as a contract of personal service but is a contract for services.

5. The medical services which are included under the purview of C.P.Act are:-

(a) Under a contract of personal services i.e. where a medical professional in the capacity of an employee, renders some professional service to his employer or in other words wherever there is must and service relationship between the medical treatment and Doctor, but same would fall outside the purview of the definition of service under the Act.

(b) At a Government or non Government hospitals/health care dispensary where no charge whatsoever is collected from any patients whether rich or poor for any consultation, diagnosis under treatment, both the medical and surgical treatment would fall outside the purview of the service under the act.

Negligence:- The term negligence has three constituents.

(a) A legal duty to exercise due care on the part of party complained of towards the complainant.

(b) The breach of the said duty.

(c) Consequential damage.

        Charles worth and percy in their scholastic work on negligence has given three meanings to the word negligence.

(a) A state of mind, in which it is opposed to intention.

(b) Careless Conduct.

(c) The breach of duty to take care i.e. imposed by either a statute or Common Law.

        A breach of duty may be a occasioned either by not doing something which a reasonable man under a given set of circumstances would do, or by doing some Act, which a reasonable prudent man would not do.  What is expected of a Doctor is ordinary skill, care and expertise and not an extraordinary or super human skill, judgement or expertise.

Professional Negligence:-

Doctors generally have certain duties towards their patients.  Some of the important duties include:

(a) To exercise a reasonable degree of skill and knowledge and reasonable degree of care.

(b) To exercise reasonable care in deciding  whether to undertake the case and also in deciding what treatment to be given and how to administer that treatment.

(c) To extend his service with due expertise for protecting the life of the patient and to stabilize his condition in emergency situation.

(d) To attend to his patient when required and not to withdraw his services without giving him sufficient notice.

(e) To study the symptoms and complaints of the patient carefully and  administering standard treatment etc.,

Apparent Medical Negligence:-

        There may be cases of apparent deficiency/negligence in service by the Doctors.  Such cases can be:-

(a) The Doctor does not give immediate treatment when required (may be that the doctor was over busy)

(b) The doctor does not take precaution as per the approved medical practice of giving the dose of medicines which are likely to be fatal in some cases or may cause allergy.

(c) The post-operative care/treatment is not given properly.

(d) The surgical wound is caused at a different place than required.

(e) Surgical instruments are left inside the body.

(f) Prescription for unnecessary pathological tests or investigations.

(g) After the operation, Septicaemia or gangrene sets in and “improper prescription of drugs:- in case of fever without knowing the cause of fever, combination of tablets and injections for Malaria, Typhoid etc., and freely used on trial and error basis.

Breach of duty/negligence:-

        Negligence is breach of duty caused by the emotion to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.

        Free service rendered (Non-Government Hospital, Nursing home) would also be a service under Section-2 (1) (o) of Consumer Protection Act and the recepiant would be a consumer entitled to file complaint under the Act, unless it is shown that the OP extend services to all, whether rich or poor free of charges vide citation between Dr.J.P.Geol Vs. Smt.Puspa Varma, 2002 (1) CPJ 28 2002 (1) CPR 467(DEL) – SCDRC.

        The Honourable Supreme Court held that services rendered to a patient by a Medical Professional are service within the meaning of Consumer Protection Act, 1986 (Section-2) (1) (o). persons who hire or avail of such service are, therefore, consumers as defined under the Act, with the exception that where the Doctor/Hospital renders service free of charge to every patient or under a contract of personal service, a patient availing of such free of charge services will not be a consumer.

Medical Negligence:- Is defined as a lack of reasonable care and skill or willful negligence on the part of a Doctor in respect of  acceptance a patient, history taking, examination, diagnosis, investigation, treatment medical or surgical etc., resulting in injury or damage to the patient.  The term damage means physical, mental or intentional injury to the patient.

        The following citations are submitted by the complainant :-

Citations:- 1. The Honourable Supreme Court in the case between Malay Kumar Ganguly Vs. Sukhumar Mukharjee and others reported in ALD (Crl.) 2010 (2) Crl. A NOS. 1191-1194 of 2005 dated 7.8.2009 held that humanitarian approach of hospital authorities or Doctors in not charging professional fees cannot be considered to be a factor in denying compensation for mental agony by patient/his family (para 144).

2. Regarding Non-Joinder of necessary parties, the Honourable Supreme Court in the case of Smt.Savita Garg it was held that so far as the law with regard to non-joinder of necessary party under code of Civil Procedure, order-1 Rule-9 and  order-1 Rule-10 of the CPC there also even no suit shall fail because of misjoinder or non-joinder of parties.  It can proceed against the persons who are parties before the Court.  Even the Court has the power under Order-1 Rule-10 (4) to give direction to implead a person who is a necessary party.  Therefore even if after the direction given by the  Commission the concerned Doctor and the Nursing Home Staff who were looking after the deceased A.K.Garg have not been impleaded as Ops, it cannot result in dismissal of the original petition as a whole.

 

The following citations are submitted by the opposite party.

1.(1995) 6 SCC 651,

        (V) Medical negligence—Principles for determination of 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.  A medical practitioner would be liable only where his conduct fell below that of standards of a reasonably competent practitioner in his field.  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—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. 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 patients have to be paramount for the medical professionals (Para 94)

2. (2009 (3) CPR 257 (SC) between Dr.C.P.Sreekumar,M.S.(Ortho) Vs. S.Ramanujan)

(2005) 6 SCC 1; (1957) 2 All ER 118(QBD) – Relied upon.

(ii)    Consumer Protection Act, 1986 – Sections 21(1) and 23-Medical Negligence – Too much suspicion about the negligence of attending Doctors and frequent interference by Courts would be a very dangerous proposition. (Para 12)

        (2005) 7 SCC 1 – Relied upon.

        (2008) 2 SCC 1 – Referred.

        (iii) Consumer Protection Act, 1986 – Sections 21(1) and 23 – Medical Negligence – Onus to prove medical negligence lies largely on the claimant  and this onus can be discharged by leading cogent evidence – It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. (Para 16)

        (iv) Consumer Protection Act, 1986 – Sections 21(1) and 23 – Medocal Negligence – Merely because there is some divergence of opinion as to the proper procedure to be adopted, it cannot be said with certainty that the attending doctor was grossly remiss in going in for a particular line of treatment – The appellant’s decision was not so palpably erroneous or unacceptable as to dub it as a case of professional negligence.  (Para 20 and 21)

3.  In the case between Dr.Hemanth Chopra Vs. Kulwinder Singh (2011 4 CPR (NC) 504)

CONSUM PROTECTION ACT: S.17,S.19,S.2(1)(g),S.2(1)(o),S.21

IMPORTANT POINT

Error of judgment could not be termed as gross medical negligence

 

4. In the case between Dr.Naseem Mohammad Bashir Ansari Vs.Dhenge Hospital & others (2007 (1) CPR 351 (NC)

 

CONSUMER PROTECTION ACT: S.19,S.2(1)(g)

Onus of proof of medical negligence lies within the complainant which is not properly discharged by complainant and State Commission rightly dismissed the complaint.

 

5.  In the case between chandrakant S.Kothari, Ruby Apartment Mahavir Vs.Dean, Sir Hurkirondas Norratumdas in the Revision Petition No.2251 of 2008 (2013, 3 CPR (NC) 334 It is opined that a doctor is not negligent, If he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art (C.P.Act S.21(b).

 

6.                                  [1999] 2 CPR 71

O.A.Varadadesigan Vs.Chief Medical Officer (Ortho) Govt.General Hospital

 

O.A. Varadadesigan – Appellant

Versus

Chief Medical Officer (Ortho) Govt.General Hospital – Respondent

Decided on : 03/10/1999

O.P.No.95/97

Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence Complainant met with road accident was admitted in hospital.  He sustained compound communited fracture of left elbow and dislocation with open lacerated wound – He developed Volkmans Ichaemic contracture with 70% deformity – Claim for compensation for alleged negligence and deficiency in his treatment – Complainant failing to prove that deformity was caused by treatment adopted by Opp.parties – Before completion of treatment, he got himself discharged – No negligence or deficiency could be said established. (Paras 7 to 9)

 

7.                              [2007] 1 CPR(NC) 338

Vasant Mehta Vs.Kullin J.Kothari Medical, Bombay

 

2007 (1) CPR 338 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI.

S.N.Kapoor, Presiding Member; B.K.Taimni, Member

Vasant Mehta—Complainant

Versus

Dr.Kullin J.Kothari Medical,

Bombay—Opp.Party

Original Petition No.147 of 1997

Decided on 9-2-2007

 

Consumer Protection Act, 1986—Section 21(a)(i) (before 2002 Amendment)—Complaint to National Commission about medical negligence claiming Rs.25 lakhs as compensation—Eye surgery in 1992—Complainant of irritation caused by loose sutures in 1995—Sutures were removed by assistant and medicines given—Complications—Treatment—No relief—But nothing shown that medicines were not proper or line of treatment not proper—No expert evidence or medical literature to counter the material on record—Result –Complainant has completely failed to prove any case of medical negligence—Complaint dismissed.

 

        Held:  It is well-settled law of medical negligence that the complainant must prove by evidence or through any expert evidence or through medical literature that the doctor concerned was not qualified or was not competent to handle the case and also what he did or what he had, should not have been done resulting in any injury to the patient.  No such evidence has been led.(Para 4)

 

        Neither any expert evidence nor any medical literature has been filed by the complainant to counter the material brought on record.  Medical negligence as per law laid down by the Supreme Court in catena of judgments, is that doctor owns a duty of care in following terms:

 

        (a) a duty of care in deciding where to undertake the case;

      

        (b) a duty of care in deciding what treatment to give;

 

        (c) a duty of care in his administration of that treatment.

 

8.                              [2007] 2 CPR(NC) 260

N.Krishna Reddy Vs.Christian Medical College and Hospital Rep.by its Medical Superintendent

 

2007 (2) CPR 260 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

K.S.Gupta, Presiding Member; Dr.P.D.Shenoy, Member

N.Krishna Reddy—Complainant

Versus

Christian Medical College and Hospital

Rep.by its Medical Superintendent

& Anr.—Opp. Parties.

Original Petition No.33 of 1997 and

OP No.34 of 1997

Both decided on 23-04-2007

 

Consumer Protection Act, 1986—Sections 21(a)(i)and 2(1)(g)—Complaints about medical negligence—O.P. filing affidavits—qualified doctors and surgeons—No expert evidence to allege that procedure followed was not medically sound—Onus not discharged—Result—Complaints are dismissed.

 

          Held:  Further in Mrs.Kiran Bala Rout V.Christian Medical College and Hospital and Ors.,2003 (1) CPR 238 (NC) this Commission has held that:

 

          “Medical negligence must be established and not presumed.  In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against affidavits filed by the doctors”.

 

          A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

 

 

The following are the observations from the record available in the Forum and also the oral arguments presented:

(1) Surgery was conducted at Srikakulam by the OP for removal of dead fetus but not for ruptured uterus which was done at Visakhapatnam.

(2) Two surgeries were conducted in Vivekananda Hospital at Visakhapatnam and second surgery was conducted for removal of uterus.

(3) No expert opinion or opinion of Medical Board or any other suitable documentary evidence was produced by the complainant in support alleged medical negligence of OP.

(4) No authorization of Vivekananda Hospital, Visakhapatnam was produced by Dr.Santha Kumari to appear and give evidence on their behalf.

(5) The evidence given by Dr.Santha Kumari in the 2 affidavits differs from one another and also controversial statements are made  within the first affidavit/cross and then question arises as to which is to be relied upon.

(6) The team of Doctors who attended on the patient at Visakhapatnam are only competent to give evidence but they were not impleaded in the petition nor examined as witnesses.  Hence it gives rise to much doubt.

(7) Fork theory was not incorporated in the complaint but it is only after thought by the complainant.

(8) No previous History of patient was written in the case sheet of Vivekananda Hospital at Visakhapatnam.

(9) Adoption of alternative measures do not mean delay or negligence in the process but to give relief to and save life of the patient.

        A Medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his/her field.

        It is the bounden duty and obligation of the Civil Society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehention.

        In the case on hand no documentary proof could be submitted by the complainant to establish medical negligence.

Further the following vital issues are also to be reckoned.

(1) Sisearian operation was earlier conducted somewhere on the patient/complainant in respect of her first issue.

(2) As per the advise of Dr.Santa Kumari, M.B.B.S, at Visakhapatnam she was undergone scanning on 25.08.2006 at Rapha Medical Centre, Srikakulam after which the radiologist reported that the Baby was dead in her womb about 4 days back by then and accordingly she was advised that unless the dead fetus is removed from her womb, it would be dangerous to her life.

(3) Thereafter the patient was admitted in the hospital at Srikakulam where the OP took up the patient for treatment.  The OP being a gynecologist working as Assistant Professor in RIMS hospital, Srikakulam gave some injection and afterwards applied some Gel to the complainant for removal of the dead feotus from the womb of the patient in the normal course but in vain.  However the husband of the patient informed the OP to use pill for the above purpose as per the advise of Dr.Santa Kumari, M.B.B.S, at Visakhapatnam.

(4) The contention of the OP is that when she is looking after the patient closely applying her knowledge and expertise with first hand information and being a specialist in Gynecology she applied Gel.

(5) After all the care and maximum efforts were taken in the above regard and when there was no fruitful result, as a last resort she had to conduct surgeory for removal of the dead feotus from the womb of the patient and to save her life.

(6) The consequent complications like fever and jaundice were not the result of negligence on the part of the OP and uterus was also not ruptured due to the negligence on the part of the OP and as a matter of fact the patient was safe and the dead feotus was also removed from the womb of the patient.

(7) Without the consent of the OP or the hospital at Srikakulam, the patient was forcibly taken away by the husband from the hospital and shifted to Vivekananda Nursing Home at Visakhapatnam at about 3.30PM on 31.08.2006 where Dr.Santa Kumari is working.

(8) It is alleged by the OP Doctor that no fee/hospital charges were paid by the husband of the complainant and in order to avoid payment of the same, he picked up arguments with the OP/Hospital authorities  and created havoc and without consent the patient was taken away from the hospital and hence no receipts could be produced by the complainant.

(9) It is admitted in the complaint itself that a team of Doctors consisting of Dr.Kesavarao, Dr.Santa Kumari, Dr.Manmadha rao and Dr.T.S.Prasad attended on the complainant and necessary treatment was given and as a result, the complainant survived from the position of danger.  It is further alleged that due to ruptured Uterus and delay in removing the dead feotus, the uterus is removed as a result of which there will not be any further conception to the patient.

(10) It is also observed that the complainant though was admitted in the hospital at Srikakulam by her husband, they have been mainly depending on the suggestion and advise of Dr.Santa Kumari,MBBS  at Visakhapatnam instead of the OP who is an expert in Gynecology and working as Assistant Professor in RIMS at Srikakulam and though the OP has been taking reasonable care and applying the Medical standards as expected by Medical Profession in a sequential form (step by step being in close touch with the patient from time to time).

(11) The team of Doctors who attended on the patient at Visakhapatnam were not examined at any point of time except the deposition of Dr.Santa Kumari, in order to elicit their opinion on the right treatment to be given to the patient under such circumstances.

(12) The said Dr.P.Santa kumari in her examination in chief on 20.08.2009 stated “ I told the husband of the complainant that there was danger of rupture of uterus if the complainant was taken to labour room several times.”  She again says” rupture will not be caused if the patient was taken to labour room several times.” This shows the inconsistency and controversial statements on the part of Dr.P.Santa Kumari.

(13) There is no consideration since the complainant did not pay any fee or hospital charges for the treatment given by OP Doctor/Hospital and hence there is no consumer relationship between the parties.

14) On cross Examination and Chief Examination on 18.07.2012 of the affidavit filed by the complainant on 2-5-2012, the complainant stated the following:-

(a) On her own accord she joined in Sadhana Hospital.

(b) After consultation of respondent, she joined in the Hospital and the respondent tried her level best to remove the dead fetus by giving medicines and took necessary action but she delayed the action.

(c) She has satisfied with the services rendered by the respondent.

(d) Herself and her husband convinced on the process given by the respondent and then they continued to stay there.

(e) She did not file any document to establish the respondent’s negligence in treating her.

          Certain important principles were laid down in the decisions by the Honourable Supreme Court, which are as under:-

I) As reported in 2010 (2) ALD 89 (SC) The Hon’ble Supreme Court of India on tenth day of February, 2010 vide C.A.No.1385 of 2001 between Kusum Sharma and others V.Batra Hospital and Medical Research Centre and others held that as long as doctors performed their duties and excercised ordinary degree of professional skills/and competence they cannot be held guilty of medical negligence and it is imperative that Doctors must be able to perform their professional duties with free mind and protection against unnecessary harassment or humiliation of medical professionals needs to be ensured to enable them to perform their professional duties without fear and apprehension.  It is also further observed that the professional should be held liable for his Act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future.  But at the same time courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and if so they will not be able to carry out their professional duties without fear.  While deciding whether the medical professional is guilty of medical negligence, following well known principles 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 judgement.

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 unnecessarily 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.

II) As reported in AIR 2009 SUPREME COURT 2049.

Civil Appeal No.3541 of 2002, Dt.17.02.2009.

Between Martin F.D.Souza v.Mohd.Ishfaq.  It is held that:

        A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.  He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.  It is not enough to show that there is a body of competent professional opinion which supports the decision as reasonable in the circumstances.

        The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial.  Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at the point of time.

        Proper parties and necessary parties are not impleaded in this complaint.

In view of all the foregoing factors, discussions and material mentioned supra the contention of the complainant that there is medical negligence and deficiency in service on the part of OP cannot be accepted since she has taken care and prudence which an expert Doctor should have taken as per the standards of the medical profession to save the patient and also to remove the dead feotus from the womb of the patient that too without any fee/hospital charges being paid to the OP.

        In the result, the complaint is dismissed but under the circumstances without costs.

 

Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 14th day of April, 2014.

 

 

Member                                                                 President

 

C.C.No.65/2013 (103/2008

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For complainant:-                                   For opposite parties:-

        PW 1.                                                      RW 1.

                                 

DOCUMENTS MARKED

For complainant:-

Ex.A-1 Case sheet of Vivekananda Hospital, Visakhapatnam.

Ex.A-2 Gupta’s Laboratory Report.

Ex.A-3 Scanning Report of Rafa Medical Centre.

Ex.A-4 is the copy of Family members certificate dt.15.02.2010.

Ex.A-5 Cross match report given by Red Cross Blook Bank.

Ex.A-6 Blook Bank receipt.

Ex.A-7 Compatibility Certificate issue by Red Cross Blood Bank.      

Ex.A-8 Jaundice Test Report of Gupta’s laboratory.

Ex.A-9 is postal receipts (4 in No), dt.15.11.2012.

Ex.A-10 Cash Receipts for payment of fees by the complainant.

Ex.A-11 to A-15 are original medical prescriptions.

Ex.A- 16 Medicines prescription of Intravenus Injection.

Ex.A-17 is registered Lawyer’s notice addressed to opposite party.

Ex.A-18 & 19 Return endorsement given by the postal dept.

Ex’A-20 is original prescription dated 21.10.2008.

Ex.A-21 is original prescription dated 20.09.2008.

Ex.A-22 is original prescription dated 26.04.2007.

Ex.A-23 is original prescription dated 15.08.2008.

Ex.A-24 is original Vijaya Medical cetre Doppler report23.06.2008.

For O.P:

Ex.B-1 is the letter copy.

                                                                                      

 

                                                                                     

                                                                                President