Present:       Sri D.                                                 President.

                                                Sri N.J. Mohan                                                 Member

                                               And

Smt. V.J.                                                  

 Wednesday, the 25^th day of June, 2008.

CONSUMER DISPUTE NO. 100/2000

Between:

Tingilkar Age 

R/o.

Warangal District.

                             … Complainant

AND

Dr.H.

Gynaecologist, Civil C.K.M.Govt.Maternity Hospital,

Warangal, Proprietor of Narayana

Narsampet Road,

Kashibugga, Warangal.

… Opposite Party

Counsel for the Complainant      : Sri. K.   Advocate

Counsel for the Opposite Party   : Sri. CAR    Advocate.

                                                  ORDER

Sri D.

          This is a complaint filed by the complainant T.  

          The brief averments contained in the complaint filed by the complainant are as follows:

          The case of the complainant is that her marriage was performed in the year 1991 and she gave one male child by way of Cesarean operation.    Her husband is a mutton vendor prior to give birth to her first son she was going to opposite party for medical check up and she gave birth to son on 7-8-92 and daughter on 23-6-97 in the hospital of opposite party, after giving birth she underwent   As she was having 2 children she was not ready to give birth to other child but she came to know on 18-1-2000 by Doctor   On 20-03-2000, the complainant approached the opposite party to clarify and clear off her doubts regarding the failure of   The opposite party bluntly and carelessly said that she is not at all responsible for the failure of   From the beginning her health is no good at the time of giving birth to her children and it is more difficulty and burden and not wiling to her to carry third pregnancy as third time also she has to go for delivery under cesarean only.   She spent nearly Rs.50  Thereafter she gave birth to one male child 4 months back, now she requested the Forum to allow her complaint and direct the opposite party to pay an amount of Rs.4

          Opposite party filed the Written Version contending in brief as follows:

          Opposite party denied all the allegations mentioned by the complainant and she further stated that she done the

          The complainant in support of her   On behalf of opposite party

          Now the point for consideration is whether the complainant is entitled to get an amount of Rs.4

          After arguments of both side counsels our reasons are like this:

          Now this Forum has to see whether there is any negligence and deficiency of service is there on the part of opposite party or not?

          For this our answer is that there is no any negligence on the part of the opposite party.  The counsel for complainant argued vehemently and elaborately that the doctor   But for this our answer is that as per the evidence of RW-1 it is   The same depends upon various factors but cannot be termed as negligence.  So on the basis of evidence of RW-1 it is clear that there is no negligence on the part of her.  The PW-3 doctor who was examined on complainant side he also not stated anything about the negligence of opposite party with regard to the   He simply stated that he has conducted 11-8-2000.  The complainant gave birth to one male child.  In cross examination there is no any attribution and allegation against the opposite party.  Further he has stated that failure of   All the process in

then   There will not be any difference in using either catgut or linen thread for   He also stated that failure of   And further the evidence  PW-2 is not at all helpful to the case of the complainant because he is the tenant of the complainant.

          It is true on behalf of complainant side complainant was examined as PW-1 and on behalf of her PW-2 one rd child.  On behalf of  

          In this case doctor is not criminally responsible for a   This is decided in John

          In a charge of manslaughter the prosecution must prove more than such negligence as apart from questions of pecuniary loss, would justify a civil action.  There must be such a disregard for the life and safety of others   amounts to a crime against the State   It is for the jury in each case to say whether the degree has been reached.

Nature of Medical Negligence:- There are 3 types for negligence of any kind to be proved, it must be shown that I) That the doctor had a duty of care to the patient, b) That the doctor laws in breach of that duty

          All three of these conditions must be present at the same time.  Otherwise no charge of negligence can be maintained. In medical negligence it shows that on the matter of negligence stated that the categories of negligence are never closed, meaning that it is impossible to draw up a complete list of all things which could cause a negligence action as these naturally increase every day as medical technology advances.  Anything the doctor does can be ground for complaint from a patient who may allege that the doctor did not exercise a sufficient degree of care.  This may range from complicates surgical procedures down to failure to attend a patient when requested. Before considering these individual causes some features of negligent   Negligence is not a matter of doctor making a mistake but not trying hard enough through lack of care or attention or reckless disregard for the consequences. A doctor can misdiagnosis and   A doctor does not guarantee to provide the best possible care but only care which is   reasonable adequate consistent with his professional status.  Thus every doctor does not have to know all the recent advances in his subject and all the latest medicines and techniques.  He has to show a reasonable standard of care which in the average standard which would be applied by most of his colleagues of similar status.    Normally the task of proving negligence rests upon the person bringing the action. The patient has to prove that the doctor was treated negligently the doctor does not have to prove that he was not negligent though in actual fact that is what is done in refuting the claim of the patient.  

          So as per the above what we have stated that if there will be negligence on the part of the doctor when the negligence proved by the   certainly  the  complainant  is entitled for compensation. 

                In our opinion and as per the medical terms the nature of   If there is any negligence or deficiency of service on the part of opposite party certainly she is liable for compensation. In this case doctor is not criminally responsible for a

to and crime against this state.

          So as per the above what we have stated that if there will be negligence on the part of opposite party when the negligence proved by the complainant certainly complainant is entitled for compensation.  In this case except PW-1 no other doctor has examined to prove the negligence of opposite party.  In the evidence of RW-1 the doctor categorically mentioned what she has done   So there is no any negligence on the part of opposite party.  Because we have also mentioned in supra abut the words of negligence.  If the above negligence is there on the part of opposite party certainly opposite party is liable to pay.  In the present case there is no negligence on her part.

          It is the duty of the complainant she herself has to prove the negligence of the doctor.  But in the present case except evidence of PW-1 none of the expert doctor was examined.  Pw-3 who is the doctor examined from complainant side he has conducted cesarean section to the complainant on 11-8-2000 he has not stated any negligence or deficiency of service of the opposite party. When PW-3 not stated about negligence of opposite party the evidence and PW-3 is not helpful to the complainant side and PW-2 who is the tenant stated with regard to 3^rd operation that he went to hospital along with his family members and found the complainant at the time of operation in the hospital so the evidence of PW-2 not at all helpful to the complainant.

          The counsel for the complainant cited a judgment cited in

                     AIR 2000 Supreme Court 1988

State of        … Appellants

                VS

Smt.                                … Respondent

Medical Negligence – Damages – State sponsored family planning   - Birth of unwanted child attributable to negligence of doctor – Woman

entitled to claim full damages from state Govt. as well as doctor for bringing up child   liability of parents to maintain child under Hindu Adoptions and Maintenance Act of

          This   is applicable to the complainant provided that if there is any negligence and deficiency is there on the part of opposite party and moreover the above cited judgment is only for Muslim lady and further she was having already 7 children and doctor negligence was found but in the present case since there is no any negligence or deficiency of service on the part of opposite party.  So the above cited judgment is not at all applicable to the case of the complainant.

          RW-1 clearly stated before this Forum that there is no any negligence on her part.  We also did not find out any negligence on her part and further there is a citation in

2005 ACJ 2084

Supreme court of India at New Delhi

State of Punjab Vs and others

Negligence – Medical negligence – Family planning operation – Failure of – Damages – Woman underwent

became pregnant after about 7 years and gave birth to a female child. Husband claiming damages for the State on the allegation of carelessness and negligence of lady doctor who performed the operation – No allegation that doctor was not competent to perform the surgery and yet ventured into doing it – No case that surgeon has committed breach of any duty cast on her as a surgeon.

          Whether the complainant is entitled to get compensation but the Supreme Court has stated – No, failure of operation due to natural causes would not provide any ground for claim, claim in tort can be sustained only if there was negligence; surgeon cannot be held liable in contract also unless there was allegation that she had assured 100% exclusion of pregnancy after surgery”.

          The above cited judgment is clearly applicable to the case of opposite parties but .

          The doctor who conducted   Mere alleging negligence against the opposite party no benefit can be given to the complainant.  In the present case when the complainant failed to prove that the negligence on the part of opposite party certainly she is not entitled to get anything from opposite party side.

          With regard to failure of

          “We have been employing Pomeroy’s technique for a long time.  It is easy, a fact which becomes important particularly when a large number of young physicians have to be trained for participation in the National Family Planning  

          It is further mentioned that in page 513 of the same book that

          overall failure rate in   With Pomeroy’s technique it is about 0.2 percent”.

          So there is no any guarantee for the success of   So there are there.  When this book clearly goes to show that the failure rate of   Already

compensation but in this case there is no any negligence on the part of opposite parties.  As per

          The opposite party has conduced operation in a correct manner and further in the present case on the basis of evidence of RW-1 we come to the conclusion that operation conducted by opposite party in correct manner and there is no any negligence.  Further as per the judgment in

National Consumer Disputes New Delhi,

First Appeal NO.127 of 2000 in

Smt.Premlata                                                                    Vs

Dr.Dheeraj                                      

          This is a full bench judgment in this judgment it clearly stated that if the operation fails it cannot all the times be attributed to the negligence. Every case depends upon the circumstance of the case.    this judgment is

applicable to the case of opposite parties because if operation fails it cannot all the times be attributed to the negligence and in this case as per the evidence of RW-1 it is clear and RW-1 has conducted  

          As per citation in AIR 2008 (NOC) 952 (NCC)

Smt

          Consumer Protection Act, (68 of 1986) S.2(1)(g) _ Deficiency in service – Medical negligence – Unwanted pregnancy after

          As per the facts of this judgment in the absence of expert evidence with regard to showing operation was wrongly performed then patient only entitled   But in the present case PW-1 has not examined any one of the skilled doctor to show about the negligence and deficiency of service of opposite party with regard to cesarean operation conducted by her.  Since she has not proved deficiency of service on the part of opposite party the judgment is certainly applicable to the case of opposite parties not the complainant.  As per this judgment the complainant is not at all entitled anything from the opposite parties.

The definition of medical negligence is clearly stated that the medical negligence is the breach of the duty owned by a doctor to his patient to exercise reasonable care and skill which results in some physical mental and financial disability.

Any how in this case we pointed out that no negligence on the part of opposite party.  When there is no negligence on the part of opposite   the complainant is not entitled to anything from the opposite parties.  Hence, we answered this point accordingly in

Point No.2 To what relief The first point is decided in

          When there is no negligence and deficiency of service on the part of opposite parties NO.1 and 2,

          In the result this complaint is dismissed, but without costs.

(Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open forum today, the 25^th June, 2008).

                                                                                                                                               Member                       Member             President,

                                              District Consumer Forum, Warangal.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

On behalf of Complainant                          On behalf of Opposite Party

Affidavit & Deposition of complainant PW-1         Affidavit & deposition of O.P

Affidavit & Deposition of witness of C. PW-2

Deposition of

EXHIBITS MARKED

On behalf of complainant

1. Ex.A-1 Delivery certificate issued by O.P. Dt02-7-1997.
2. Ex.A-2 Certificate of birth issued by
3. Ex.A-3 Birth certificate issued by O.P., dt.2-7-98.
4. Ex.A-4 Birth Certificate issued by Municipal Corporation.
5. Ex.A-5 Certificate issued by
6. Ex.A-6
7. Ex.A-7 Pregnancy test certificate issued by Ex-A-8 Prescription of
8. Ex-A-9 Prescription of Ex.A-10 Prescription of
9. Ex.A-11 Srujana Hospital.
10.  Ex.A-12 Certificate of birth issued by
11.  Ex.A-13 Discharge card of  Ex.A-14 Prescription of Dr.  Ex.A-15 to A-21 Prescriptions of  Ex.A-22 Blood test of  Ex.A-23 Blood test of  Ex.A-24 Compatible  Ex.A-25
12.  Ex.A-26 Prescription of
13.  Ex.A-27 & 28 – Blood examinations reports.
14.  Ex.A-29
15.  Ex.A-30 Blood grouping test by
16.  Ex.A-31 Blood examination by
17.  Ex.A-32 Blood examination by
18.  Ex.A-33 Donor profile by
19.  Ex.A-34 Prescription of blood issued by
20.  Ex.A-35 Blood examination report.
21.  Ex.A-36 Urine Examination report.
22.  Ex.A-37 Prescription of  Ex.A-38 Blood examination report.
23.  Ex.A-39 to 58 – All medical hall receipts purchased by complainant.
24.  Ex.A-59 Scanning report by

 On behalf of

                    Nil