Present:       Sri D.                                                 President.

                                                Sri N.J. Mohan                                                 Member

                                               And

Smt. V.J.                                                  

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

CONSUMER DISPUTE NO. 6/2000

Between:

Smt. Age

R/o H.No.3-4-570, Upstairs,

Sudhanagar,                     … Complainant

AND

1.  

      W/o not known, Age: 60 yrs,

      H.No.9-9-105, Pinnavari Street,

      Warangal.

      C/o

2.       Rep. by its Managing Director

     R/o Jaya Hospital premises,

3.  The National Insurance Company Ltd.,

      Rep. by its Manager,

      P.B.No.84, JPN Road,

      Warangal. – 506 002.

                                                                                      … Opposite Parties

Counsel for the Complainant      : Sri. Md.

Counsel for the Opposite Party No.1: Sri CAR   Advocate.

Opposite Party No.2                       : Not appeared

Counsel for       : Sri A.

This complaint coming for final hearing before this Forum, the Forum pronounced the following Order.

                                                    ORDER

          This is a complaint filed by the complainant

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

The case of the complainant is that when the complainant became pregnant and started visiting the opposite party No.1 for her advice and proper treatment.  On 03-05-1998 the complainant delivered a male child at the hospital of   On the same day opposite party No.1 conducted   After some time she suspected that again she became pregnant and approached the opposite party No.1 in the hospital of Opposite party No.2 and requested the doctor to examine her to find out whether she became pregnant.    After urine test at VBR Diagnostics, 28-04-1999 she went to opposite party No.1 and upon verification of urine report opposite party No.1 told that she became pregnant and asked her to come with Rs.2    Opposite party No.1 disowned her responsibility said that operation may fail some times as such she is not responsible for its failure.  Opposite party No.1 admonished the complainant saying that she has no respect for doctors as she asked as to why the operation has failed.  Thereafter the complainant approached another Doctor

i.e, 03-05-1999.  Thereafter on 27-08-1999 the husband of the complainant has under gone Vasectomy Operation.  The complainant stated that on account of negligence of opposite party No.1 her   She was put to untold mental tension, mental torture, mental agony, physical inconvenience and monetary loss.  She further stated that she spent an amount of Rs.9

          Opposite Party No.1 filed the Written Version contending in brief as follows:

          RW-1   She admitted that she has conducted   The complainant conceived after as per precedents conceiving after   The same depends upon various factors but cannot   So the authorities also amplified that success @100% in   And further she denied about taking an amount of Rs.2  And further the opposite party No.1 stated that there is on her part nor any deficiency of service in this case.  The complainant has unnecessarily attributed to have an undue enrichment and she is not liable to pay any amount much less the amount claimed.

Opposite party No.3 filed the Written Version denying all the contents of the complaint and further stated that as per the terms and conditions of the policy for Doctors and medical practitioners, it is the duty of the insured to give written notice to the company as soon as reasonably practicable of any claim being made against the insured or any specific event or circumstance that may be give rise to claim.  Hence, the complaint filed by he complainant may be dismissed.

The complainant in support of her claim filed her Affidavit and Affidavit of her mother in the form of chief examination and also marked Exs.A-1 to A-22.  On behalf of

Now the point for consideration is whether the complainant is entitled for grant of compensation amount of Rs.39

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

In this case this Forum has particularly see about the negligence of Opposite party No.1 doctor because she herself did the caesarian operation to the complainant and the complainant asked an amount of Rs.30  Whether there is any deficiency of service or not first we have to examine.

In this case on behalf of complainant side only PW-1 was examined and on behalf of her PW-2 Affidavit filed.  PW-2 is the mother of the complainant but she was not examined.  When there was no cross examination the Affidavit of PW-2 is not at all helpful to the case of the complainant.  If the complainant is entitled to get the amount from the opposite parties certainly there must be negligence on the part of opposite parties.  Here except evidence of PW-1 no one has been examined with regard to the negligence on the part of the opposite parties.  The complainant is the laywoman she do not know anything with regard to the medical treatment   If she really knows about the treatment given by opposite party No.1 certainly we believe that there is negligence on the part of opposite parties.

          As per cross-examination of RW-1 i.e. opposite party No.1 it is clear that she has performed caesarian section on the complainant and also   It was a repeated caesarian section i.e., the first delivery of the complainant was also through caesarian.  After taking out the baby and finishing Uterine wound suturing,   In the instant case also it was checked by the doctor the possibility of conception after   Because of any infection which is generally through Vagina there will be contraction of the uterus and in the process the tubes may get   Even after   The doctor has clearly   about the conducted of Sterilization operation on  the complainant.

          The doctor further stated with regard to operation that the conception always takes place in the tubes after the fertilization takes place.  It passes through the tubes and 3 or 4 days it enters the uterine cavity and there without attachment it stayed for 3 to 4 days and th day or so it gets attached to uterine wall.    And further the conception after

individual in healing process.  After the   The healing process depends on every individual body constitution and also infection.  The maximum time for wound healing perfectly would be 60 days.  There is no possibility of knot getting loose in this case because she never used catgut but she used only Linen thread, which never gets loosened.  It is only infection the possibility of the   The doctor stated that in the case of normal delivery they advice the patient to be separate from the conjugal life for 6 weeks and in the case of caesarian section 2 months.  If the measure is not taken but for chances of infection there would be no other adverse effect. The failure 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 laid 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.  But in

  In the evidence of RW-1 she categorically mentioned what she has done at the time of   So there is no any negligence on the part of opposite   In the present case there is no negligence on the part of opposite party No.1. 

          The counsel for complainant argued that opposite party no.1 has not stated anything before the complainant before conducting   For this our answer is that except PW-1 evidence there is no anything before this forum and further we have already stated in supra that the doctor is not responsible for patient’s death unless his negligence or incumbent proved beyond a mere   

          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 no one has examined with regard to the negligence on the part of the doctor to show about the negligence on the part of the doctor.  In the presence of evidence of RW-1 the doctor has clearly stated before this Forum what she has done 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 – Surgeon cannot be held liable for contract also unless there was an allegation that she had assured 100% exclusion of pregnancy after surgery.

          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   As per

In the absence of evidence of showing operation was wrongly performed by the doctor to the complainant we have no hesitation to come to the conclusion that there is no any negligence on the part of opposite party doctor. 

And further in the present case on the basis of evidence of RW-1 we come to the conclusion that the operation conducted by her is in correct manner there is no negligence on her part and 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  

          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 parties.  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 and deposition of complainant         Affidavit and deposition of O.P-1

                                                                  Affidavit of O.P.3 filed.

EXHIBITS MARKED

On behalf of complainant

1. Ex.A-1 Discharge bill issued by 28-2-98
2. Ex.A-2 Certificate issued by Opposite party No.2, dt.1-3-98.
3. Ex.A-3
4. Ex.A-4 Cash receipt of VBR diagnostics,
5. Ex.A-5 Cash receipt of VBR diagnostics,
6. Ex.A-6 Urine report issued by VBR Diagnostics, 28-4-99.
7. Ex.A-7 O.P. ticket of Dr.RadhikaEx.A-8 Prescription of 30-4-99.
8. Ex.A-9
9. Ex.A-10 Blood test report issued by VBR diagnostics,
10.  Ex.A-11 Urine report issued by VBR diagnostics,
11.  Ex.A-12 Cash receipt of VNR diagnostics, HNK.
12.  Ex.A-13 Prescription of
13.  Ex.A-14 Prescription of
14.  Ex.A-15 Original of discharge bill of Jaya Hospital.
15.  Ex.A-16 Certificate issued by 3-5-99.
16.  Ex.A-17 Medicines bill issued by
17.  Ex.A-18 O.P. Ticket of  Ex.A-19 Prescription of  Ex.A-20 Medicines bill of 19-5-99.
18.  Ex.A-21 Prescription of
19.  Ex.A-22

 On behalf of

1. Ex.B-1 Professional Indemnity Policy for doctors and medical practitioners.