Haryana

Karnal

CC/392/2020

Satnam Kaur - Complainant(s)

Versus

Indira IVF Hospital - Opp.Party(s)

Gurvinder Pal Singh

22 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMISSION, KARNAL.

 

                                                        Complaint No. 392 of 2020

                                                        Date of instt.25.09.2020

                                                        Date of Decision:22.04.2024

 

Satnam Kaur wife of Shri Navjeet Singh, resident of house no.553/11, Gandhi Nagar, Karnal. Mobile no.9355708669.

 

                                               …….Complainant.

                                              Versus

 

1. Indira IVF Hospital, Ground & 1^st floor, SCO-156, Sector-9C, Madhya Marg, Chandigarh through its Medical Superintendent/Manager.
2. Dr. Uday, Surgeon, Indira IVF Hospital, Ground and 1^st floor, SCO -156, Sector-9C, Madhya Marg, Chandigarh.
3. Dr. Himanshu, Consultant Gynaecologist and IVF Specialist, Indira IVF Hospital, Ground and 1^st floor, SCO-156, sector-9C, Madhya Marg, Chandigarh.
4. Dr. Natasha Gupta, Indira IVF Hospital, Ground and 1^st floor, SCO-156, Sector-9C, Madhya Marg, Chandigarh.
5. Parveen Hospital Pvt. Ltd. Dayal Singh College Road, Karnal through its Director Dr. Parveen Garg.

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik……Member

              Dr. Suman Singh…..Member

                   

Argued by: Shri Manoj Ahuja, counsel for complainant.

                   Shri Parmod Jalan, counsel for the OPs no.1 and 4.

                   Shri Amit Gupta, counsel for the OPs no.2 and 3.

                   Shri Rajan Gupta, counsel for the OP no.5

 

                    (Jaswant Singh President)

ORDER:   

                                                                                                                                  

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant was married to Shri Navjeet Singh on 09.10.2015. Despite 15 years of marriage, she could not conceive. OP no.5 is a multi-specialist hospital at Karnal whereas OP no.1 claims itself to be specialist in IVF (In Vitro Fertilization) and help those ladies, who have not been able to conceive a child despite several years of their marriage. OPs no.2 to 4 are the Doctors, who are employed by OP no.1 and they claim themselves to be expert in IVF. OPs no.1 to 4 held a seminar in the hospital of OP no.5 at Karnal on 07.04.2019 and gave wide publicity and invited issueless couples, who were desirous to have a baby, to guide them for proper treatment.

2.             Complainant and her husband also attended the abovesaid seminar held by OPs at the hospital of OP no.5. The OPs no.2 to 4, who were present in the said seminar, listened to the problem of the complainant and assured that they are world famous specialists, who have helped thousands of ladies through their treatment to conceive a child. Their hospital is having more than 50 branches across the country and they are having good specialization in IVF field. After making preliminary investigation, the OPs no.2 to 4 called the complainant and her husband to Chandigarh in the hospital of OP no.1 for proper treatment. On 24.04.2019, the complainant and her husband visited the hospital of OP no.1 and tests were conducted upon the complainant and her husband. OPs no.2 to 4 advised the complainant to get an MRI done upon her and called the complainant and her husband on 12.05.2019 with the MRI Report.  As per the advice of the OPs no.2 to 4, complainant got MRI from Amar MRI Scan Centre, opposite Kalpana Chawla Medical College, Karnal on 11.05.2019 and the Impression of the MRI was as under:-

        “Uterine fibroids with b /1 tubo ovarian complex”.

After obtaining the MRI report, complainant and her husband visited the hospital of OP no.1 on 12.05.2019. After seeing the said report, OPs no.2 to 4 advised the complainant to undergo an operation for the removal of abovesaid Fibroids, for which, the couple agreed and the date for conducting the said operation was given as 24.06.2019. Accordingly, on 24.06.2019, surgery was performed upon the complainant by OPs no.2 to 4 and she was discharged from the hospital on 25.06.2019 of the OP no.1. After performing the operation, OPs no.2 to 4 told the complainant that they have performed surgery upon her for removing the fibroids from her uterus and have also disentangled the organs which had got stuck with each other. They assured the complainant that the operation has been very successful and after few days, further treatment shall be given to the complainant for enabling her to conceive a child.

3.             It is further averred that on coming to Karnal, complainant started suffering from unbearable pain in her abdomen. She contacted the OPs no. 2 to 4 telephonically and told them. They assured that the said pain is normal after surgery and prescribed some medicines to subside the pain but complainant did not get any relief and pain increased day by day. When complainant could not bear the pain, she was taken to Amritdhara Hospital, Karnal on 01.07.2019. After examining the complainant and seeing her critical condition, the doctors advised the husband of complainant to take her to the hospital of OP no.1 to be treated by doctors, who had performed surgery. Husband of complainant took her to Mahabir Dal Hospital, Karnal on 02.07.2019 where she was admitted by the doctors and discharged on 08.07.2019. But the pain in the abdomen of the complainant did not subside and the complainant became pale and weak and could not pass stool. The OPs assured the complainant that this pain is normal and shall be relived soon. On 18.07.2019, when the condition of complainant became more critical, then she was again taken to Mahabir Dal Hospital, Karnal but the doctor of said hospital refused to admit the complainant and suggested that she be taken to the hospital of OP no.1 for further treatment. The husband of complainant hired an ambulance and took her to the hospital of OP no.1 on 18.07.2019 in a critical condition. The complainant was examined by OPs no.2 to 4 and various tests were conducted upon her. After seeing the condition of the complainant and going through the test reports, OPs no.2 to 4 became nervous and told to the complainant and her husband that while performing the surgery upon the complainant, they committed a mistake and that they had cut the intestine during her operation leading to perforation and that the perforated area is increasing day by day. They admitted that now they are not in a position to manage the condition of complainant. The husband of the complainant  took her to Government Medical College and Hospital, Sector-32, Chandigarh and got her admitted there by using their contacts with the doctors posted in the said hospital. On seeing the critical condition of complainant, the doctors of said hospital conducted an immediate surgery upon her and perforated area and intestine were operated upon.

4.             It is further averred that since the intestine was cut and statured to remove the perforation, therefore, in order to facilitate the passing of stool, the doctors created a new opening on the right side of the stomach of the complainant and fixed a stoma bag for collection of excrete. The doctors also inserted a Melena in the uterus of the complainant in order to prevent the bleeding from the uterus. The doctors told the complainant that now onwards Melena shall have to be replaced frequently and that because of the grave injury received by the complainant due to the negligence of the OPs no.2 to 4, it shall be impossible to carry out further operation to help her in conceiving the child and the complainant should forget about having a child of her own, rather, she should be thankful to God that her life has been saved. The complainant was discharged from the hospital on 27.07.2019 with the advice of follow-up treatment. Consequently, complainant regularly visited the said hospital. On 07.11.2019, she was again admitted in the Government Medical College and Hospital, Sector-32, Chandigarh and yet another surgery was performed upon her and Stoma Bag was removed on 15.11.2019 and she was discharged on 26.11.2019. The complainant was again called for regular check up at Chandigarh and had to hire ambulance for every visit. The complainant spent a sum of Rs.5,00,000/- on her treatment, transportation and special diet. OPs no.2 to 4 performed the operation in a negligent manner. Because of gross negligence and deficiency in service on the part of the OPs, complainant in future would never be able to become mother of a child. The dreams of complainant of having a child has been destroyed, her all hopes and expectations have been shattered and now the life of the complainant has become a sea of despair. The complainant will have to lead a life of isolation and intense grief of having empty arms with no child to fill them. So, the complainant is entitled to a sum of Rs.50,00,000/- as compensation from the OPs. Complainant requested the OPs several times to pay her adequate compensation but till today, they did not pay the same. Due to this act and conducts of the OPs, complainant has suffered mental pain, agony and harassment and as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

5.                    On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; mis-joinder and non-joinder of necessary parties and cause of action. On merits, it is pleaded that the complainant visited the Chandigarh Centre of OP no.1 on 24.04.2019 for the first time regarding her infertility issue. A seminar was organized at OP no.5 hospital on 24.04.2019 to spread awareness about availability of treatment for infertility issues. It is denied that the said seminar was attended by OP no.4 as alleged. The OP no.4 was not part of the treatment as alleged. None of the medical records of complainant mention the name of OP no.4 and her name has been included as OP no.4 only with ulterior objectives and malafide intention and needs to be deleted from array of parties. The surgery was conducted by OPs no.2 and 3 for removal of fibroids and discharge of complainant is a matter of record. It is further pleaded that OPs no.2 and 3 are not associated with OP no.1 and OP no.4 was not involved with treatment of complainant as none of the medical records of complainant  mention name of the OP no.4 and the same needs to be deleted from array of parties. It is further pleaded that complainant has not provided any document regarding her treatment at either Amritdhara Hospital or Mahabir Dal Hospital at Karnal to OP no.1 and hence OP no.1 cannot make any comments regarding same presently and reserve its right to file an additional reply as and when the documents are provided by the complainant to OP no.1. Complainant never contacted OP no.4 over the phone regarding the issues of pain in her abdomen neither she was examined on 18.07.2019 by OP no.4 nor OP no.4 admitted that a mistake was committed by doctors at time of her surgery as alleged. It is further pleaded that though OPs no.2 and 3 must have taken all care and precautions and would have made best possible efforts while conducting surgery through laparoscopy, yet complication may have occurred. Though the complications associated with gynecologic laparoscopy are uncommon with an overall complication rate of 3-8/1000, the patient underwent laparoscopy in which dense adhesions have been reported intra-operatively and in such a dense adhesions, bowel injury complications may occur. Since the case of the complainant was of such a nature as stated above and despite all care and precautions and with possible efforts, there was a bowel injury but for which even OPs no.2 and 3 cannot be held liable. The complainant was referred for best possible treatment after reported injury by complainant and she got best possible treatment there without any delay. There was no medical negligence on the part of the OPs as alleged and prayed for dismissal of the complaint.

6.             OP no.2 filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that the complainant and her husband, who had been married for more than 15 years and complainant had been unable to conceive during this time by natural methods. Indira IVF hospital OP no.1 is engaged in the profession of providing all kinds of Assisted Reproductive Techniques (ART)/IVF services, having its centers across the country including one at Chandigarh. Indira IVF hospital, Chandigarh organized a seminar to spread awareness amongst couples, who are unable to become parents through natural process with regard to the availability of treatment and various treatments, techniques available for infertility issues. The OP is a qualified laparoscopic surgeon, having vast experience in performing various types of laparoscopic and general surgeries, having performed more than five hundred successful surgeries. The OP has been associated with Indira IVF hospital, Chandigarh and is often engaged/called by Indira IVF hospital, Chandigarh to operate upon their patients. The complainant and her husband, who had participated in the seminar organized by Indira IVF hospital, Chandigarh, visited the said hospital for treatment of infertility issues in the complainant. The MRI scan of the complainant revealed that the complainant was suffering from “Uterine Fibroids with tubo ovarian complexes”. Uterine Fibroids is a noncancerous tumor that grows in or on the uterus of a female. Some types of small fibroids can be managed conservatively by medicines, oral therapy, whereas in many cases, surgery is required. In some cases, uterus of the patient requires removal but in case the patient wishes for future pregnancies, the fibroids are required to be removed surgically preserving the uterus, so as to allow the patient to become pregnant in future. Apart from uterine fibroids, the complainant was also suffering from Endometriosis, which is a disease, characterized by the presence of tissues resembling endometrium (the lining of the uterus) outside the uterus. The chronic inflammatory reaction had caused formation of Grade IV scar tissues (adhesion, fibrosis) on both sides; both the fallopian tubes were filled with fluids; the uterus, fallopian tubes, the ovaries, the intestines and other abdominal organs of the complainant on both sides of uterus had formed a complex mass. Infertility of the complainant had occurred due to the probable effects of endometriosis on the pelvic cavity, ovaries, fallopian tubes and uterus of the complainant. Fluids in the fallopian tubes also prevent the baby from attaching to the womb. The complainant desired to conceive through IVF technique, for which, her uterus was required to be preserved, the fallopian tubes were required to be removed and the intestines which had formed a complex mass with the uterus, fallopian tubes and ovaries on both sides of the uterus were required to be released. The complainant required surgical intervention for her treatment and in order to perform the surgery upon the complainant at their centre, Indira IVF

Hospital, Chandigarh, engaged the OP to perform the said surgery assisted by the OP no.3, who is an IVF consultant.

7.             It is pertinent to mention here that various surgeries are now performed with the help of laparoscope, in which only few incisions are made in the abdomen of the patient, which facilitates the entry and examine the body of the patient and the surgery is performed with laparoscope, which not only reduces blood loss but also reduces chance of complication as compared to an open surgery. The entire surgical procedure including the complications and risks involved with the said surgery were explained to the complainant and her husband and after obtaining requisite consent, the OP assisted by OP no.3, performed the requisite laparoscopic surgery upon the complainant on 24.06.2019 at the hospital of OP no.1 at Chandigarh. Every surgery including minimal invasive laparoscopic surgery has its even risks of complications. Despite advance technology and best of surgical skills and knowledge of the operating surgeon, complications may arise. Despite best care, skill and knowledge of the operating surgeon, bowel injury may occur during gynecologic laparoscopy. Sometimes, because of thermal power used by instruments in laparoscopy, there may be intestinal injury, which may not be noticeable at the time of surgery but may arise later. The patients, undergoing laparoscopy surgery for removal of dense adhesion, the risk of bowl injury, complication is higher. It is further pleaded that apart from uterine fibroids, the complainant was also suffering from Endometriosis, the chronic inflammatory reaction had caused formation of Grade IV scar tissues on both sides; the uterus, fallopian tubes, the ovaries and the intestines and other abdominal organs of the complainant on both sides of a uterus had formed a complex mass. During the course of surgery, the OP removed the adhesions from both sides of the uterus of the complainant in order to release the intestine and other organs. In order to allow the complainant a chance to conceive through IVF method in future, both the fallopian tubes of the complainant were also removed. OP performed a successful surgery upon the complainant, careful and meticulous dissection was done and the pelvis was cleared, restoring the pelvic anatomy and after being reasonably sure of no active bleeding and no noticeable injury, the abdomen was closed. The complainant was discharged the following day after her vitals and other parameters were found to be normal. After a few days of her discharge, the complainant started complaining telephonically of pain in her abdomen and as such she was advised to visit the hospital at Chandigarh because only after examining the patient, appropriate opinion regarding cause of such pain could be given. Despite advice, the complainant visited the hospital only on 18.07.2019. Upon her examination, the vitals of the complainant were found normal, however, tenderness was elicited while pressing her abdomen which raised suspicion about some injury. The complainant was immediately advised to undergo a CT scan and the CT scan report revealed that the complainant had suffered an intestinal injury. The complainant and her husband were immediately taken to Government Medical College, Hospital, Sector-32, Chandigarh for treatment of her intestinal injury by a appropriate specialist. The doctors from the hospital/OP no.1 also accompanied the complainant so as to brief the doctors at Government Medical College, Hospital, Sector-32, Chandigarh regarding her medical history and the treatment/surgery underwent by her. The complainant was successfully treated for her intestinal injury by the doctors and she is now completely healed. The complainant was well aware of the risks and benefits of the surgery performed by the OPs 2 and OP no.3.

 8.            It is further pleaded that the intestinal injury suffered by the complainant has been treated with colostomy and secondary closure of colostomy per say cannot cause inability of woman to conceive. The similar intestinal perforation can be caused even spontaneously in certain infections like tuberculosis, typhoid or other intestinal conditions, which are treated in similar way and woman usually, have no difficulty in conception, during pregnancy or in live birth. The complainant has deliberately, mischievously mis-presented a complication of gastrointestinal laparoscopic surgery, which cannot be attributed in any way to the skill, experience, knowledge of the performing surgeon/s, so as to falsely accuse the OPs including the OP and OPs no.2 and 3 of negligence with the malafide intention and ulterior motive to pressurize the OPs so as to give into the totally untenable, unjustifiable and illegal claim of the complainant. It is further pleaded that no opinion of the medical expert/s has been obtained by the complainant to show the alleged negligence or deficiency in service on the part of the OPs. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

9.             OP no.3 filed its separate written version but followed the same lines of written statement filed by the OP no.2 and prayed for dismissal of the complaint.        

10.           OP no.4 filed its separate written version but followed the same lines of written statement filed by the OP no.1 and prayed for dismissal of the complaint.        

11.           OP no.5 filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and jurisdiction. On merits, it is pleaded that the complainant went to the alleged seminar on 07.04.2019 where the OP no.1 to 4 invited couples who were desirous of a baby to guide them for proper treatment and this itself is patent proof that no treatment or test was ever availed by complainant on 07.04.2019 and the Guidance was merely oral/verbal in nature as alleged and hence the complainant has failed to prove any case of negligence directly or indirectly involving the professional services of the Hospital or Doctor of OP no.5. As per version of the complainant, she has got herself treated at hospital of OP no.1 located in Chandigarh and at other local hospital like Amritdhara and Mahabir Dal or at Government Medical College hospital sector-32, Chandigarh even her MRI was conducted by Amar Hospital, Jarnailly Colony, Karnal and OP no.5 is neither involved and does not have any knowledge of any such alleged treatment availed by complainant from OPs no.1 to 4 at Chandigarh and nor has complainant ever approached the OP no.5 to seek any sort of medical advice or opinion about her ailment and nor did the OP no.5 has given any direct or indirect opinion or advice to complainant that she may avail treatment from OPs no.1 to 4, nor the complainant has ever contacted the OP no.5 in this regard prior or during her treatment at all and even there is no direct or indirect evidence regarding any sort of professional healthcare services availed by complainant from any outdoor or indoor services at the premises of OP no.5  legally in any manner. There is no deficiency in service and unfair trade practice on the part of the OP no.5. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

12.           Parties then led their respective evidence.

13.           Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of scan report Ex.C1, copy of treatment record of Satnam Kaur of Indira IVF Ex.C2, copy of treatment record of Satnam Kaur of Amritdhara Hospital Ex.C3, copy of ultrasound report Ex.C4, copy of treatment record of Mahabir Dal Hospital Ex.C5, copy of Admission form of Indira IVF Ex.C6, copy of treatment record of Government Medical College Hospital Sector-32, Chandigarh Ex.C7 and Ex.C8 and closed the evidence on 06.09.2022 by suffering separate statement.

14.           On the other hand, Learned counsel for the OPs no.1 and 4 has tendered into evidence affidavit of Dr.Kshitiz Murdia Ex.OP-A, affidavit of Dr. Nitsha Gupta Ex.OP-B, copy of Board Resolution Ex.OP1/1, copy of medical literature Ex.OP1/2 and closed the evidence on 02.11.2022 by suffering separate statement.

15.           Learned counsel for the OPs no.2 and 3 has tendered into evidence affidavit of Dr. Uday Bhanu Laparoscopic Surgeon Ex.OP2/A,  copy of degree of MBBS Ex.OP2/1, copy of degree of MS Ex.OP2/2, copy of certificate of Laparoscopic Training Ex.OP2/3, copy of letter of recommendation Ex.OP2/4, affidavit of Dr. Himanshu Ex.OP3/A, copy of degree of MBBS Ex.OP3/1, copy of degree of MS Ex.OP3/2, copy of Fellowship certificate Ex.OP3/3 and closed the evidence on 24.04.2023 by suffering separate statement.

16.           Learned counsel for the OP no.5 has tendered into evidence affidavit of Dr. Parveen Garg Ex.OP5/A and closed the evidence on 02.11.2022 by suffering separate statement.

17.           We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

18.           Learned counsel for complainant while reiterating the contents of the written version has vehemently argued that complainant could not conceive any child. Complainant and her husband attended a seminar held by OPs at the hospital of OP no.5. On 24.04.2019, the complainant and her husband visited the hospital of OP no.1 and tests were conducted. OPs no.2 to 4 gave the date for surgery for removal of fibroids. Surgery was performed upon the complainant by OPs no.2 to 4 and was discharged on 25.06.2019 from the hospital of the OP no.1. Complainant started suffering from unbearable pain in her abdomen and due to this, she contacted the OPs no. 2 to 4 telephonically, they told that the said pain is normal after surgery. When complainant could not bear the pain, she was taken to Amritdhara Hospital, Karnal on 01.07.2019. After examining the complainant and seeing her critical condition, the doctors advised the husband of complainant to take her to the hospital of OP no.1, who had performed surgery. Husband of complainant took her to Mahabir Dal Hospital, Karnal on 02.07.2019 where she was admitted by the doctors and discharged on 08.07.2019. On 18.07.2019, when the condition of complainant became more critical, then she was again taken to Mahabir Dal Hospital, Karnal but the doctor of said hospital refused to admit the complainant and suggested that she be taken to the hospital of OP no.1 for further treatment, where, the complainant was examined by OPs no.2 to 4 and various tests were conducted upon her. After seeing the condition of the complainant and going through the tests reports, OPs no.2 to 4 told that while performing the surgery upon the complainant, they committed a mistake and that they had cut the intestine during her operation leading to pain and perforation. Complainant was taken to Government Medical College and Hospital, Sector-32, Chandigarh and where she was admitted, the doctors conducted an immediate surgery upon her and perforated area and intestine were operated upon. The complainant spent a sum of Rs.5,00,000/- on her treatment, transportation and special diet. OPs no.2 to 4 performed the operation in a negligent manner. Because of gross negligence and deficiency in service on the part of the OPs, complainant in future would never be able to conceive, in this way, there is deficiency in service on the part of OPs and lastly prayed for allowing the complaint.

19.           Per-contra, learned counsel for OPs No.1 & 4, while reiterating the contents of written version has vehemently argued that complainant has not provided any document regarding her treatment either at Amritdhara Hospital or Mahabir Dal Hospital at Karnal, OPs have taken all care and precautions and have made best possible efforts while conducting surgery through laparoscopy, yet complication may occur. The complainant was referred for best possible treatment after reported injury by complainant and she got possible treatment there without any delay and lastly prayed for dismissal of complaint. 

20.           Learned counsel for OPs No.2 & 3, while reiterating the contents of the written version has vehemently argued that complainant approached the OPs and during the MRI scan of the complainant, it has been revealed that the complainant was suffering from “Uterine Fibroids with tubo ovarian complexes”. Uterine Fibroids is a noncancerous tumor that grow in or on the uterus of a female. In the case of complainant, uterus was required to be removed. Apart from uterine fibroids, the complainant was also suffering from Endometriosis, which is a disease, characterized by the presence of tissues resembling endometrium (the lining of the uterus) outside the uterus. The complainant desired to conceive through IVF technique, for which, her uterus was required to be preserved, the fallopian tubes required to be removed and the intestines which had formed a complex mass with the uterus, fallopian tubes and ovaries on both sides of the uterus required to be released. The complainant required surgical intervention for her treatment and in order to perform the surgery upon the complainant at their centre, Indira IVF Hospital, Chandigarh, engaged the OPs to perform the said surgery assisted by the OP no.3, who is an IVF consultant. During the course of surgery, the OP no.2 removed the adhesions from both sides of the uterus of the complainant in order to release the intestine and other organs. OP no.2 performed a successful surgery upon the complainant, careful and meticulous dissection was done. The complainant was successfully treated for her intestinal injury by the doctors and she is now completely healed. The complainant was well aware of the risks and benefits of the surgery performed by the OP. There is no deficiency in service and unfair trade practice on the part of the OP and lastly prayed for dismissal of complaint.

21.           Learned counsel for OP No.5, while reiterating the contents of written version, has vehemently argued that a Seminar was held in the hospital of OP, except this there is no role of the OP in the present complaint. OP no.5 has not given any direct or indirect opinion or advice to complainant. There is no deficiency in service and unfair trade practice on the part of the OP and lastly prayed for dismissal of complaint.

22.           The complainant has alleged that due to negligence of the OPs, during the surgery, they had cut the intestine and the doctors of OPs also inserted a Melena in the uterus of the complainant in order to prevent the bleeding from the uterus and also due to the negligence of the OPs, complainant in future would never be able to become the mother of a child. The dreams of complainant of having a child have been destroyed, her all hopes and expectations have been shattered and now the life of the complainant has become a sea of despair. The onus to prove her case was upon the complainant but the complainant has miserably failed to prove her case by leading cogent and convincing evidence. It may be mentioned here that the complainant has neither placed on file any expert opinion nor made any prayer for constitution of the Board of Doctors to opine whether the OPs were negligent or not. The experts could have proved if any of the doctors in the Hospital providing treatment to the patient were deficient or negligent in service. Complainant had taken the treatment from Amritdhara Hospital, Karnal, Mahabir Dal Hospital Karnal and lastly in Government Medical College and Hospital, Sector-32, Chandigarh. A perusal of the medical records of the abovesaid hospitals it is nowhere mentioned that there was any negligency on the part of the OPs during conducting the surgery upon the complainant. The experts of different specialties and super-specialties of medicine were available to treat and guide the course of treatment of the patient. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.  In this regard, we place reliance on the judgment titled as C.P. Sreekumar (Dr.), MS (Ortho) versus S. Ramanujam12, the Honb’ble Supreme Court of India has held that the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

23.           On the other hand, the OPs have specifically stated that surgical procedure including the complications and risks involved with the said surgery were explained to the complainant and her husband and after obtaining requisite consent, the OP assisted by OP no.3, performed the requisite laparoscopic surgery upon the complainant. However, the doctors cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the undesired outcome/ death in such cases. The increased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in the pandemic. It is a matter of common knowledge that after some unfortunate event arises, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. In this regard, we place reliance on the judgment titled as Martin F. D'Souza v. Mohd. Ishfaq, wherein the Hon’ble Supreme Court of India has held as under:-

“40.Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.

xxx xxx xxx

42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.”

24.          Furthermore, negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. In this regard, we place reliance in the case titled as Jacob Mathew v. State of Punjab and Anr.the Hon’ble Supreme Court of India has held that the simple lack of care, an error of judgment or an accident, is not a proof of negligence on the part of a medical professional. Negligence is the breach of a duty caused 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. Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alter- native course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, especially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of

25.           In another judgment titled as Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, a complaint was filed attributing medical negligence to a doctor who performed the surgery but while performing surgery, the tumour was found to be malignant. The patient died later on after prolonged treatment in different hospitals. The Hon’ble Supreme Court of India has held that Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks. It is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. Further, in case titled as Dr. Harish Kumar Khurana v. Joginder Singh & Others, Hon’ble Supreme Court of India has held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.

26.           Keeping in view the ratio of the law laid down in the abovesaid judgments and the facts and circumstances of the present complaint, we are of the considered view that the there is no negligence or deficiency in service on the part of OPs.

27.           In view of the above discussion, the present complaint is devoid of merit and deserves to be dismissed and same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 22.04.2024   

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                 Member                            Member