Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal  No. 1538 of 1999

1- Shakya Nursing Home through) All care of and resident of

    Dr. S.S. Shakya                         ) 86-B, Aruna Nagar, G.T.

2- Smt. Tara Shakya,                     ) Road, Etah, Uttar Pradesh

    W/o Dr. S.S. Shakya                  )

3- Dr. Shyam Singh Shakya          )                   …Appellants.

1- Km. Priyanka ) All minor, daughter of Shi Umesh Chandra

2- Km. Pratika    ) Pandey through their father and natural

3- Km. Sweta     ) guardian Sri Umesh Chandra Pandey.

4- Umesh Chandra Pandey s/o Shri Munna Lal Pandey,

    R/o Mohall Aruna Nagar, Etah, U.P.         .…Respondents.

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Sushil Kumar, Member.

Sri Rajesh Chaddha,  Advocate for appellants.

None appeared for the respondents.

Date : 19.05.2022

JUDGMENT

Per Mr. Rajendra Singh, Member: This appeal has been preferred under section 15 of the Consumer Protection Act 1986, against judgment and order dated 12.5.1999  passed by the Ld. District Forum, Etah in  complaint case no.284 of 1996.

The brief facts of the appeal are that, that the respondents/complainants instituted a complaint before the ld. District Forum, Etah with the allegation that the respondent no.4’s wife Smt. Meenakshi was having three months pregnancy and for the same they went to the appellants’ nursing home for its abortion who conducted D&C of her wife and committed negligence, as a result of which bleeding started and she died.

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The appellants filed their written statement, affidavits and document and stated that the respondent no.4 along with his wife came to the nursing home in emergency condition in the afternoon of 13.3.1995 when his wife was having bleeding pain and she wanted abortion. Accordingly, her check up was done by the appellant no.3 and found her uterus was not property contracted and its mouth was open and there was bleeding and it seems that this has happened probably due to taking of some medicines or she had been treated by some untrained persons for having its termination. Thereafter, doctor was told for having abortion and accordingly foetal contents were taken out, but the bleeding could not be stopped for which several medicines and injections, life saving drugs like Atropine, Oxytocin, Methesgin, Tetrac, Dexone etc. were given to her. It was also stated that when bleeding could not be stopped at that juncture and lot of blood came out of the body, Respondent no.4 was asked to arrange the blood, for which blood was also taken as a sample from her body, so that operation may be conducted for stoppage of blood. Inspite of taking the sample, the blood was not arranged, however, several medicines were given by the doctor for saving her blood and due to non arrangement of blood, late Smt. Meenakshi died due to cardio-respiratory failure at 8.00 p.m. of 13.3.1995 and thus, there is no negligence whatsoever on the part of the appellants.

The impugned judgment is erroneous, legally perverse, arbitrary and without jurisdiction. The complaint was barred by principles of res judicata because the complainants had filed a consumer case no.285 of 1995 earlier which was

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dismissed vide order dated 9.8.1996 and appeal has been preferred against that order.

The ld. Forum erred in law in not considering the objections raised with regard to maintainability of second complaint as aforesaid nor gave any of its finding in the impugned judgment renders the same wholly bad in law and is liable to be quashed.

There is no deficiency in services on the party of the doctor as D&C was conducted properly but since as aforesaid in the brief facts that she was having poor contraction of her uterus which had its mouth open as such she was having bleeding for which all proper care and due diligence and the skill of the doctor was exercised in rendering the medical treatment and there was no fault on the part of the doctor, nor any negligence was proved on the part of the respondents, merely bald allegations levied in the alleged complaint cannot be termed as any medical negligence which fact has not been at all considered by the ld. Forum while passing the impugned judgment in a haste and cryptic manner is bad in law is liable to set aside.

The ld. Forum failed to take into consideration the judgments and medical literature cited before it with regard to medical case in question, and this further goes to show purely non application of mind on the part of the ld. Forum who allowed the alleged complaint without any basis, purely having only sympathetical attitude in favour of respondents.

Appellant no.3 is a qualified doctor for which evidence of qualification was placed before the Forum and whereas appellant no.2 is a qualified nurse from AFMC, Pune who

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before her marriage with appellant no.3 was captain in Army simply assisted her husband as nurse in treatment of late Meenakshi. All possible efforts and care was taken by the doctor while treating the deceased and since she was having the bleeding which was not stopped due to poor contraction of her uterus, operation was essential and for which blood was required but the blood was not arranged by the respondent no.4 inspite of asking again and again (even though several life saving drugs and other medicines and injections were given to stop the bleeding) the operation could not conducted and ultimately she died due to cardio respiratory failure and it these circumstances no negligence can be attributed on the part of the doctor and appellants, as no case made out for any alleged negligence, hence, the impugned judgment allowing he compensations is bad in law is liable to be set aside.

No consideration was at all charged by the nursing home, nor any evidence of the same placed before the Forum by complainants, hence complainants are even otherwise not a consumer and in result no consumer dispute exist and any findings recorded by the ld. Forum with regard to said monetary consideration contrary to the above, is absolutely illegal and without any basis. The respondent no.4 was categorically told that since excessive bleeding has taken place, hence, forthwith arrange the blood otherwise her health will deteriorate which may be dangerous and may result to death or to take her to other place but the respondent no.4 failed to arrange the blood, as the doctor was constantly looking after the deceased. In all emergency condition, in

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which she was seen and admitted in the nursing home, the doctor was well competent to see and treat her and it is not necessary that only female doctor can treat that sort of problem and any findings recorded are without any basis or any cogent evidence rendering the impugned judgment illegal.

The ld. Forum had no jurisdiction or any pecuniary jurisdiction to deal with the complaint as no cause of action accrued whatsoever for filing of the complaint. When deceased came to the nursing home her check up was got done and found that she had either taken some medicines or shown herself to some untrained or unqualified persons for not having the pregnancy or for its termination and in its consequence seems her uterus not properly contracted, its mouth was open and she had bleeding for which she was properly treated successfully as she wanted her pregnancy terminated and D & C was conducted, but for stoppage of her bleeding, her operation was subsequently necessary could not be done as till last moment respondent no.4 did not arrange the blood, hence, no negligence or any deficiency in services can be attributed on the appellants.

The photograph of the alleged sign board placed of the alleged nursing home or the appellants is a bogus document as the said sign board does not belong to the appellants nor put by them hence, any cognizance taken on it is absolutely wrong. The respondent no.4 or his wife never visited on 12.3.1995 at appellants nursing home nor were told ever to come empty stomach on 13.3.1995 and whereas they only visited in emergency condition on 13.3.1995 at around 2.00

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p.m.  For conducting D&C, it is not necessary to have any certificates from the Government or other place and in the present case due to emergency condition she wanted the D & C done, which was successfully conducted and not necessary to be conducted by female doctor. All the papers asked for were placed by the appellants and in this regard the ld. Forum passed the order dated 7.5.1997 and thus, contrary findings recorded in the impugned judgment at page 14 are wholly without any basis and gross non application of mind in considering its order sheet passed earlier and merely on the said erroneous finding, ld. Forum held that there is a medical negligence cannot be sustained in law rendering the impugned judgment bad in law is liable to be set aside.   

          Ld. Forum has not recorded any of its finding as to what are the medical negligence in treating the deceased hence, impugned judgment is based on surmises and conjectures is purely non-speaking and is liable to be set aside. Therefore, it is prayed that the appeal be allowed and the impugned judgment and order be set aside.

Heard ld. counsel for the appellant Sri Rajesh Chaddha. None appeared for the respondents. We have perused the pleadings, evidence and documents on record.

The mother of the respondents no.1 to 3 and wife of complainant no.4 Smt. Meenakshi aged about 28 years went to the nursing home of the opposite party for abortion. She specifically told the doctor concerned that she had pregnancy of about 3 months upon which the opposite party stated that there will be no problem in abortion and asked her to come on 13.3.1995 with empty stomach and also asked her to deposit a

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fee of Rs.300.00. On 13.3.1995 the opposite party took her inside the nursing home and performed the abortion with extreme negligence as a result of which profused bleeding started and she started to cry. When the complainant no.4 tried to enter into the nursing home, he was stopped. The opposite party assured that there was no problem in the abortion and it has been done precisely and asked him to bring some medicines and also assured him that bleeding will be stopped very soon but Smt. Meenakshi could not be saved and she died on 13.3.1995 due to negligence of the opposite party.

The opposite party stated that on 13.3.1995 Smt. Meenakshi wife of the complainant no.4 came to his nursing home and also stated that the opposite party no.3 is a qualified surgeon and passed MBBS examination from Agra University. The opposite party no.2 is the wife of the opposite party no.3 and she did B.Sc. (Nursing) 4 years course from the College of Nursing AFMC, Pune.

The complainant no.4 took her wife on 13.3.1995 in an emergency state and when she was checked by the opposite party no.3, it was found that opening of uterus was opened and there was bleeding which shows that some drugs were taken for abortion or some illiterate person did something with the uterus. When he was asked for abortion, he started it but the bleeding could not be stopped. Husband of Smt. Meenakshi was asked to bring blood and also some medicines were given to control the bleeding. He was also informed to arrange the blood immediately or bring her wife to some other place but he neither arranged the blood nor took her

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wife to some other place, as a result of which she died at 8.00 p.m. on 13.3.1995. The opposite party did not charge anything from the complainant. The complaint was filed to harass him. In this case it has been stated by the appellant that when the deceased was brought to his nursing home, it was found that opening of uterus was open and there was bleeding which shows that some drugs were taken for abortion or some illiterate person did something has with the uterus. Now the question arises whether the appellant enquired from the husband of the deceased about previous treatment? It was the duty of the doctor to know the case history of the patient first. It was duty of doctor to know as to what has happened earlier so that he can choose his course of action. In this case nothing has been stated about the prior treatment. A big statement has been given by the appellant that it seems that she has taken treatment before coming to his nursing home. No confirmed report has been given or stated by the appellant so this story of appellant cannot be believed.

If for the sake of argument, the statement of the appellant be taken as true, why did the appellant not show his inability to perform the abortion or why did he not ask the appellant to make a arrangement for the blood immediately. It was duty of the nursing home to ask the complainant in such circumstances, first to arrange the blood and thereafter he may proceed for D&C. The opposite party has also stated that the complainant was for the first time came to the nursing home on 13 March 1995 with his wife in emergency situation. Whether it was proper to proceed with the abortion without empty stomach? When the appellant stated that after checkup he came to the conclusion that some untrained

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doctor or person has done something with her uterus or some medicines for abortion has been taken by her, why did not he ask about it from the complainant or from the patient. Without any pathological test the appellant immediately performed the D&C. Is it proper? We should remember that when a doctor enters into the noble medical profession he takes an oath which is as follow:- 

As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.

“I solemnly pledge myself to consecrate my life to service of humanity.

• Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
• I will maintain the utmost respect for human life from the time of conception.
• I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
• I will practice my profession with conscience and dignity.
• The health of my patient will be my first consideration.
• I will respect the secrets which are confined in me.
• I will give to my teachers the respect and gratitude which is their due.
• I will maintain by all means in my power, the honour and noble traditions of medical profession.
• I will treat my colleagues with all respect and dignity.
• I shall abide by the code of medical ethics as enunciated in the Indian Medical Council

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(Professional Conduct, Etiquette and Ethics) Regulations, 2002.

I make these promises solemnly, freely and upon my honour.”

Thus one thing is clear that all the doctors should act according to the oath taken by them before entering into this noble profession.

The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally

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commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter  productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has

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been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.  

In the present case we should know that what is D&C.  D&C is a minor surgical procedure to remove tissue from the uterus (womb). A gynecologist or obstetrician performs this surgery in their office or a surgery center. It’s usually an outpatient procedure, so you go home the same day.

D&C gets its name from:

• Dilation of the cervix: The provider dilates, or opens, the cervix. The cervix is the opening of the uterus, where it meets the top of the vagina. Usually, the cervix only dilates during childbirth.
• Curette: The provider uses this thin instrument to scrape the uterine wall and remove tissue.

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When one needs D&C. You might need a D&C if you have or had:

• A miscarriage.
• Leftover tissue in the uterus after an abortion.
• Unexplained bleeding between menstrual periods.

Sometimes, you have a D&C and hysteroscopy. During this procedure, your provider inserts a device into the cervix to see the inside of the uterus. You may have a hysteroscopy with a D&C if your provider is trying to diagnose a problem.

What happens before a dilation and curettage (D&C)?

Occasionally, before beginning the D&C, your provider may begin to dilate your cervix using a laminaria stick. They insert this thin rod into the cervix and leave it there for several hours. You can get up and walk around while the laminaria stick is inside. The laminaria stick absorbs fluid from the cervix. When that happens, the cervix opens and gives access to the uterus.

What happens during a dilation and curettage (D&C)?

Before the procedure, your provider will give you medicine to make you comfortable. You may have general anesthesia, where you’re asleep for the procedure. Or your provider may give you medication to relax and sedate you, but you remain awake for the procedure. Your provider will recommend the best anesthesia option for you.

During the procedure, you lie on a table with your feet in stirrups, like during a gynecologic exam. Your provider will:

1. Insert a speculum into your vagina. This smooth device, shaped like a duck’s bill, helps open the cervix.
2. Use a clamp to hold the cervix in place.

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3. Make sure your cervix is sufficiently dilated, using a series of rods to open it slowly.
4. Use a curette, a type of suction or scraping device, to clean out tissue from the uterus.
5. Send a sample of the tissue to a laboratory for analysis.

How long does a dilation and curettage (D&C) take?

The procedure itself takes about five to 10 minutes. But the process may be longer. And you’ll need to wait in the recovery room for a few hours after the procedure before you go home.

Does a dilation and curettage (D&C) hurt?

You may feel cramps similar to menstrual cramps. Pain medication can relieve the cramps.

RISKS / BENEFITS

What are the advantages of a dilation and curettage (D&C)?

A D&C can help your provider figure out why you have abnormal bleeding. It can also help detect abnormal endometrial cells, which may be a sign of uterine cancer. After a D&C, your provider sends the sample of cells to a laboratory where pathologists can identify if you have normal or abnormal tissue, polyps or cancer.

A D&C is also important for your health after a miscarriage or abortion. It removes any leftover tissue to prevent heavy bleeding and infection.

What are the risks of a dilation and curettage (D&C)?

A D&C is a safe, routine procedure. But like any surgery, it has some risks. D&C risks include:

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• Uterine perforation (a small tear in the uterus), which may happen if the tip of the curette passes through the uterine wall.
• Uterine infection.
• Uterine bleeding.

In rare cases, if you had a D&C after a miscarriage, you may develop Asherman’s syndrome. This condition occurs when adhesions, or bands of scar tissue, form in the uterus. In Asherman’s syndrome, scar tissue builds up between the uterine walls. The walls then stick together. This condition can cause infertility and change your menstrual flow. But providers can usually treat the adhesions with surgery.

RECOVERY AND OUTLOOK

What’s the follow-up care for a dilation and curettage (D&C)?

You’ll need someone to drive you home from the procedure. You can usually go home a few hours after a D&C. You might have mild pain or light bleeding for a few days. Use pads, not tampons, for the bleeding. Within a week, you should be able to get back to your regular activities. You usually return to your provider about a week or two after the procedure.

Will a dilation and curettage (D&C) affect my menstrual cycle?

After having a D&C, your next period may be early or late. You’ll need to avoid using tampons or having sex for a while after the procedure. Until your cervix returns to its normal, closed state, you’re at higher risk of bacteria entering your vagina and causing an infection. Your provider will tell you when you can resume having sex and using tampons.

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WHEN TO CALL THE DOCTOR

When should I call my healthcare provider about a dilation and curettage (D&C)?

Complications from a D&C are treatable when they’re diagnosed early. If you notice symptoms after a D&C, call your provider so they can diagnose and treat the problem. Symptoms may include:

• Abdominal (belly) pain.
• Fever.
• Heavy bleeding.
• Severe cramps.
• Unusual or bad-smelling discharge, the fluid that leaks from your vagina.

ADDITIONAL DETAILS

If I had a miscarriage, do I need a dilation and curettage (D&C)?

About half of women who miscarry don't need a D&C procedure. If the miscarriage occurs before 10 weeks of pregnancy, it will most likely happen on its own and not cause any problems. After the 10th week of pregnancy, there’s a higher risk of having an incomplete miscarriage. In that case, you need a D&C procedure to make sure the uterus is clean. 

You may be able to decide if you want to miscarry naturally or have a D&C procedure. Talk to your provider to decide what’s right for you.

A note from Cleveland Clinic

A D&C, or dilation and curettage, is a procedure to remove tissue from your uterus. You may need a D&C procedure if you had a miscarriage or abortion. Your

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healthcare provider can use a D&C and hysteroscopy to diagnose unexplained bleeding. A D&C is an outpatient procedure. You may have some mild cramping and bleeding for a few days after a D&C. If you had a miscarriage or have bleeding between your periods, talk to your healthcare provider to see if you need a D&C.

So it was the duty of the doctor concerned to see all these aspects and then to decide whether to go forth with the process of D&C or not. If he was satisfied to perform D&C, he cannot put lame excuses thereafter to avoid himself from the negligence during D&C. There is rule of Medical Termination of Pregnancy which is to be looked into.

Now we have to see the Medical Termination of Pregnancy Rules, 2003 . These rules are being reproduced here for ready as to what are necessary for termination of a pregnancy.

MTP RULES

(Department of Family Welfare)

Notification
New Delhi, the 13^thJune, 2003

G.S.R. 485(E) -In exercise of powers conferred by section 6 of the Medical Termination of Pregnancy Act, 1971 (34 of 1971), the Central Government hereby makes the following rules, namely :-

1. Short title and commencement

• (1) These rules may be called the Medical Termination of Pregnancy Rules, 2003.
• (2) They shall come into force on the date of their publication in the Official Gazette.

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2. Definitions -In this rules, unless the context otherwise requires,

• (a) Act means the Medical Termination of Pregnancy Act, 1971 (34 of 1971) and the Medical Termination of Pregnancy (Amendment) Act, 2002 (64 of 2002).
• (b) Chief Medical Officer of the District means the Chief Medical Officer of a District, by whatever name called;
• (c) Form means a form appended to these rules;
• (d) Owner in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
• (e) Committee means a committee constituted at the district level under the proviso to clause (b) of section 4 read Rule 3.

3. Composition and tenure of District level Committee

• (1) One member of the district level Committee shall be the Gynaecologist/ Surgeon/Anaesthetist and other members from the local medical profession, non-governmental organization, and Panchayati Raj Institution of the District. Provided that one of the members of the Committee shall be a woman.
• (2) Tenure of the Committee shall be for two calendar years and the tenure of the non-government members shall not be more than two terms.

4. Experience and training under clause (d) of Section 2 :-

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For the purpose of clause (d) of section (2), a registered medical practitioner shall have one or more of the following experience or training in gynaecology and obstetrics, namely;

• (a) In the case of a medical practitioner, who was registered in a State Medical Register immediately before the commencement of the Act, experience in the practice of gynaecology and obstetrics for a period of not less than three years;
• (b) In the case of a medical practitioner, who is registered in a State Medical Register:-

• (i) if he has completed six months of house surgency in gynaecology and obstetrics; or
• (ii) unless the following facilities are provided therein, if he had experience at any hospital for a period of not less than one year in the practice of obstetrics and gynaecology ; or

• (c) if he has assisted a registered medical practitioner in the performance of twenty-five cases of medical termination of pregnancy of which at least fivehave been performed independently, in a hospital established or maintained or a training institute approved for this purpose by the government.
  • (i) This training would enable the Registered Medical Practitioner (RMP) to do only 1^stTrimester terminations(up to 12 weeks of gestation).
  • (ii) For terminations up to twenty weeks the experience or training as prescribed undersub rules(a), (b) and(d) shall apply .

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• (d) In case of a medical practitioner who has been registered in a State MedicalRegister and who holds a post-graduate degree or diploma in gynaecology and obstetrics, the experience or training gained during the course of such degree or diploma.

5. Approval of a place -

• (1) No place shall be approved under clause (b) of section 4,
  • (i) Unless the Government is satisfied that termination of pregnancies may be done therein under safe and hygienic conditions; and
  • (ii) Unless the following facilities are provided therein, namely: -

In case of first trimester, that is, up to 12 weeks of pregnancy:-
a gynecology examination / labour table, resuscitation and sterilization equipment, drugs and parental fluid, back up facilities for treatment of shock and facilities for transportation; and

in case of second trimester, that is,up to 20 weeks of pregnancy:-

• (a) An operation table and instruments for performing abdominal or gynaecological surgery;
• (b ) An aesthetic equipment, resuscitation equipment and sterilization equipment;
• (c) Drugs and parental fluids for emergency use, notified by Government of India from time to time.

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Explanation:

In the case of termination of early pregnancy up to 7 weeks using RU-486 with Misoprostol, the same may be prescribed by a Registered Medical Practitioner (RMP) as defined under clause (d) of section2 of the Act and Section 4 of MTP Rules, at his clinic, provided such a Registered Medical Practitioner has access to a place approved under Section 4 of the MTP Act, 1971 read with MTP Amendment Act, 2002 and Rules 5 of the MTP Rules. For the purpose of access, the RMP should display a Certificate to this effect from the owner of the approved place.

• (2) Every application for the approval of a place shall be in a Form A and shall be addressed to the Chief Medical Officer of the District.
• (3) On receipt of an application under sub-rule (2), the Chief Medical Officer of the District may verify any information contained, in any such application or inspect any such place with a view to satisfying himself that the facilities referred to in sub-rule (1) are provided, and that termination of pregnancies may be made under safe and hygienic conditions.
• (4) Every owner of the place which is inspected by the Chief Medical Officer of the District shall afford all reasonable facilities for the inspection of the place.
• (5) The Chief Medical Officer of the District may, if he is satisfied after such verification, enquiry or inspection, as may be considered necessary, that termination of pregnancies may be done under safe

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and hygienic conditions, at the place, recommended the approval of such place to the Committee.

• (6) The Committee may after considering the application and the recommendations of the Chief Medical Officer of the District approve such place and issue a certificate of approval in Form B.
• (7) The certificate of approval issued by the Committee shall be conspicuously displayed at the place to be easily visible to persons visiting the place.
• (8) The place shall be inspected within 2 months of receiving the application and certificate of approval may be issued within the next 2 months, or in case any deficiency has been noted, within 2 months of the deficiency having been rectified by the applicant.
• (9) On the commencement of these rules, a place approved in accordance with the Medical Termination of Pregnancy Rules, 1975 shall be deemed to have been approved under these Rules.

6. Inspection of a place -

• (1) A place approved under rule 5 may be inspected by the Chief Medical Officer of the District, as often as may be necessary with a view to verify whether termination of pregnancies is being done therein under safe and hygienic conditions.
• (2) If the Chief Medical Officer has reason to believe that there has been death of, or injury to, a pregnant woman at the place or that termination of pregnancies is not being done at the place under safe and hygienic conditions, he may call for any

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information or may seize any article, medicine, ampule, admission register or other document, maintained, kept or found at the place.

• (3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to seizure shall, so far as it may, apply to seizure made under sub-rule (2).

6. Cancellation or suspension of certificate of approval -

• (1) If, after inspection of any place approved under rule 5, the Chief Medical Officer of the District is satisfied that the facilities specified in rule 5 are not being properly maintained therein and the termination of pregnancy at such place cannot be made under safe and hygienic conditions, he shall make a report of the fact to the Committee giving the detail of the deficiencies or defects found at the place and the committee may, if it is satisfied, suspend or cancel the approval provided that the committee shall give an opportunity of making representation to the owner of the place before the certificate issued under rule 5 is cancelled.
• (2) Where a certificate issued under rule 5 is cancelled the owner of the place may make such additions or improvements in the place and there after, he may make an application to the Committee for grant of approval under rule 5.
• (3) In the event of suspension of a certificate, of approval, the place shall not be deemed to be an approved place during the suspension for the purposes of termination of pregnancy from the date of communication of the order of such suspension.

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7. Review :-

• (1) The owner of a place, who is aggrieved by an order made under rule 7, may make an application for review of the order to the Government within a period of sixty days from the date of such order:

Provided that the Government may condone any delay in case it is satisfied that applicant was prevented by sufficient cause to make application within time.

• (2) The Government may, after giving the owner an opportunity of being heard, confirm, modify or reverse the order.

8. Form of consent

The consent referred to in sub-section (4) of section 3 shall be given in Form C.

9. Repeal and saving,

The Medical Termination of Pregnancy Rules, 1975, are hereby repealed except as respects things done or omitted to be done before such repeal.

Form A

( See sub-rule (2) of rule 5 )

Form of application for the approval of a place under clause (b) of section 4

Category of approved place:

A Pregnancy can be terminated upto 12 weeks

B Pregnancy can be terminated upto 20 weeks

1. Name of the place ( in capital letters )

2. Address in full

3. Non-Government/Private/Nursing Home/Other Institutions

4. State, if the following facilities are available at the place

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Category A

• i) Gynecological examination / labour table.
• ii) Resuscitation equipment.
• iii) Sterilization equipment.
• iv) Facilities for treatment of shock, including emergency drugs.
• v) Facilities for transportation, if required.

Category B

• (i) An operation table and Instruments for performing abdominal or gynaecological surgery.
• (ii) Drugs and parental fluid in sufficient supply for emergency cases.
• (iii) An aesthetic equipment, resuscitation equipment and sterilization equipment.

Place:

Date:

Signature of the owner of the place

Form B

(See sub-rule (6) of rule 5)

Certificate of approval.

The place described below is hereby approved for the purpose of the Medical termination of Pregnancy Act, 1971 (34 of 1971).

AS READ WITH IN UPTO………….WEEKS

Name of the Place

Address and other descriptions

Name of the owner

Place:

Date:

to the Government of the ___________ .

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Form C

(See rule 8)

I ____________________________________daughter/wife

of___________aged about __________ years of _________

 __________________________________________

 (here state the permanent address)

at present residing at _______________________________

do here by give my consent to the termination of my pregnancy at ________________________________________________

(State the name of place where the pregnancy is to be terminated)

Place:

Date:

Signature

(To be filled in by guardian where the woman is a mentally ill person or minor)

I________________________________son/daughter/wife of__________________________ aged about __________ years of _________________________________________ at present residing at

( Permanent address ) __________

_________________________________________________________________________________ do hereby give my consent to the termination of the pregnancy of my ward _____________________________ who is a minor/lunatic at ______________________________________________

(place of termination of my pregnancy)

Place:

Date:

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The Medical Termination of Pregnancy (Amendment) Act, 2021 alters the MTPA 1971 to raise the upper limit for abortion from 20 to 24 weeks for certain types of women. The Amendment raises the upper gestation limit from 20 to 24 weeks for particular groups of women, which would be described in the MTPA 2021 and would include rape survivors, incest victims, and other vulnerable women (such as differently-abled women, minors), among others.

The Medical Termination of Pregnancy (Amendment) Act, 2021 (MTPA 2021) was approved on the 16th of March, 2021 thereby amending the provisions of the Medical Termination of Pregnancy Act, 1971 (MTPA 1971). The Act in general governs when and how pregnancy can be terminated. The bill extends the time frame for abortion.

This amendment is a welcome step towards the safety and well-being of the women in the country. There were several petitions which have been recently filed in the courts asking for authority to abort unwanted pregnancies at a gestational age beyond the current permissible limit due to foetal abnormalities or pregnancies caused by sexual assault. The amendments aim to broaden the scope of safe abortion services available to women and ensure their dignity, autonomy, secrecy, and justice for women who need to end their pregnancies.

• In this case the nurse has been advertised as a competent the doctor as written in the judgment of the learned Forum. It is not clear that the concerned Dr was registered as per the rules 2003.In the case of a medical practitioner, who was registered in a State

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Medical Register immediately before the commencement of the Act, experience in the practice of gynaecology and obstetrics for a period of not less than three years. This is what the rules 2003 provide. The learned District Forum has stated that the opposite party has not been registered for this purpose. No evidence has been filed in the learned Forum or before the appellate court regarding compliance and strict adherence to the Medical Termination of Pregnancy Rules, 2003. The burden was on the opposite party to prove that he has acted according to the said rules and he has all the qualification as per the saidMedical Termination of Pregnancy Rules, 2003. But he failed to prove this fact.

Now we discuss about the facts and circumstances of the case and we know that circumstances speak themselves. This the principal of res ipsa loquitur.

A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence- Cox v. May Dept. Store Co.  903 P.2d 1119 (1995).  

In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that

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dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said “here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence.”

This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine’s rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn’t negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.

The thing speaks for itself is the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim

1. The injury caused to the plaintiff shall be a result of an act of negligence.
2. There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
3. The defendant owes a duty of care towards the plaintiff, which he has breached.
4. There is a significant degree of injury caused to the plaintiff.

Applicability of Doctrine of Res Ipsa Loquitur.

The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.

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Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant’s negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.

In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.

In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.  

Section 106 of the Indian Evidence Act 

Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.

This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.

Res Ipsa Loquitur and Evidence Law

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Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.

Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.

This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.

As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.

Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general

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consensus has emerged, and most states follow one basic formulation of res ipsa.

Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:

• The event doesn't normally occur unless someone has acted negligently;
• The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and
• The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.

As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.

Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent. Top of Form

The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.

States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's

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negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.

In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.

For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.

Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.

For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.

A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff

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was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.

Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.

According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff’s prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant’s negligence, in the absence of explanation or other evidence which the jury believes.

Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient’s body.

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In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.

In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim’s application to clinical negligence cases: “I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can.”

Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. {MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 }

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In A.S. Mittal & Anr.  Vs.  State Of UP & Ors., AIR 1979 SC 1570, the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/– were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.  

We can define ‘Medical negligence’ as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to ‘Medical malpractices’ where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.  

Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required. 

So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the

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doctor who operated on him, other staff and/or hospital may be held liable for this.

Some of the common categories of medical negligence are as follows:

• Wrong diagnosis – When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
• Delay in diagnosis – A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
• Error in surgery – Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.

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• Unnecessary surgery – Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
• Errors in the administration of anesthesia – Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient’s condition, history, medications, etc.  to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
• Childbirth and labor malpractice – Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc.
• Long-Term negligent treatment – Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor’s failure to monitor the effects of the treatment properly.

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A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest. Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is “no” and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.  

In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.  

Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-  

Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.

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Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.  

Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their

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part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.  

The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr. Abani Roy Chowdhury (physician) and Dr. Kaushik Nandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.

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The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:  

In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.

Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.

Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Hon’ble Supreme Court. It would appear that even before the

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said appeal was filed before the Hon’ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon’ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:

So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.

We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI

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and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.

We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.

Summary  In view of the foregoing discussion, we conclude as under:

“The facts of this case viz. residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.

The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after

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recording the finding of medical negligence against the opposite parties and others.

The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apportionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.

Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.

 The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign

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Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.

There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.”

“On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- ( rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.”

“In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.

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          The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:

(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .

(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]

(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation.

(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]   The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default. ”

Now we see the present case. As per appellant, when the deceased came to his hospital, she was having poor contraction of the uterus having its mouth open and also she was having bleeding. The appellant has also stated that she may had taken some medicines or had it show/treated through some untrained persons for having its termination. If the appellant was competent to handle this case he should have taken this case in his hand and if he was not competent to

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handle this case, this case should not have been taken by him and it was better to refer the patient to some advance and super specialty hospital so that her life may be saved but there is a word ‘greed’ which attracts the person to do an act for money. The lady had pregnancy of about three months and it was the duty of the doctor under the said rules of 2003 to see whether he had all the paraphernalia for this purpose or not. There was no lady gynaecologist. A nurse was doing the work of gynaecologist and surprisingly she was the wife of the appellant. It is well established fact that when anybody went to a hospital for operation, he/she was admitted and various tests were performed and the patient is advised to remain empty stomach but in this case the appellant was in a hurry and he forgot all the basic norms of medical sciences and directly go through the procedure of D&C. Where is the consent (Form C) according to rule 8 of Medical Termination of Pregnancy Rules, 2003

Now all the circumstances show that this hospital/nursing home had not equipped with  the basic facilities and medical equipments necessary for preoperation, operation and postoperation care. In the present case it is clear that the provisions of the Medical Termination of Pregnancy Rules, 2003 has not been followed by the appellant and his hospital/nursing home was not equipped with all the necessary medical equipments which can be used to save the life of a person. In spite of knowing that the deceased may perhaps be treated by some untrained person beforehand, the appellant is still went forward to carry out the D&C ultimately resulting in the death of the complainant’s wife Smt. Meenakshi. There are

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two words ‘ability’ and ‘capability. If the appellant had neither ability not capability of doing this work, it should have been referred to some other hospital like Delhi or SGPGI or some other super specialty hospital but he did not do that. So the statement that she was handled by someone who was untrained is not acceptable. From all the circumstances of this case it is clear that the appellant was negligent and he did not respect his profession.

The judgment by the learned District Forum needs no interference by this court and the judgment is well discussed and according to law. The present appeal is liable to be dismissed with cost.

                                 ORDER

The appeal is dismissed with cost. The judgment and order dated 12.5.1999  passed by the Ld. District Forum, Etah in  complaint case no.284 of 1996 is confirmed.

The stenographer is requested to upload this order on the Website of this Commission today itself. 

Certified copy of this judgment be provided to the parties as per rules.     

       (Sushil Kumar)                              (Rajendra Singh)

            Member                                    Presiding Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign to record room.

       (Sushil Kumar)                              (Rajendra Singh)

            Member                                    Presiding Member

Jafri, PA II

Court 2