D.O.F:09/01/2015
D.O.O:28/02/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.11/2015
Dated this, the 28th day of February 2022
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M: MEMBER
SMT.BEENA.K.G : MEMBER
Bindu.K.V, aged 38 years,
W/o Prabhakaran.N.K
R/at “Vaishnavam” Chedi Road, Pudukai village : Complainant
Hosdurg Taluk, P.O Pudukai – 671314
Kasaragod District .
And
1. Dr. Megha Rajesh, Aged 32 years Gynecologist
Tejaswini Hospital, Nileshwaram,
P.O Nileshwar – 671314
(Adv: Mahesh.M)
: Opposite Parties
2. Sudhakaran, Manager
Tejaswini Hospital Nileshwar
P.O Nileshwar – 671314
Hosdurg Taluk , Kasaragod District
ORDER
SRI.KRISHNAN.K :PRESIDENT
The complaint filed under section 12 of Consumer Protection Act
The case of the complainant in short is that her marriage was solemnized on 08/07/2000. She delivered a male child on 31/08/2001 by normal delivery. She became pregnant again and consulted Dr. Nizar of Opposite Party hospital Nileshwaram. Expected date of delivery was in the last week of December 2014, on 28/10/2014 complainant was examined by first Opposite Party. Her blood pressure was at 160/100. On 04/11/2014 pain developed, taken to Opposite Party No:1 hospital. The doctor informed that the child in the womb died 2 days back and advised surgery to remove the child. Complainant undergone surgery but she lost the child only due to negligent act of first opposite party and she was not given reasonable care. She continued the treatment, with Geetha Pai. Complainant spent Rs. 10,000/- for treatment. Notice is sent claiming compensation but false reply is sent. Complainant claimed Rs. 5 lakh as compensation, Rs. 10,000/- medical expenses and Rs. 10,000/- as costs.
2. The Opposite Party No:1 filed her version in the case. She admitted that on 28/10/2014 in the absence of Dr. Nisar complainant came for consultation. She was advised bed rest and asked to report on 31/10/2014. But she did not turn up. She reported on 04/11/2014 at 32 weeks gestation with severe pregnancy induced hyper tension and BP recorded as 150/100 that there was no negligence or deficiency in service. Opposite Party No:1 prescribed medicine as per accepted dosage. Complainant suppressed truth and she is not liable for any reliefs.
3. The Opposite Party denied all other the allegations. The Opposite Party admits the treatment given to complainant. BP was recorded and negligence is denied. There is no deficiency of negligence from the Opposite Parties and therefore prayed to dismiss the complaint.
4. The complainant filed chief affidavit produced documents marked as Ext A1 to A10 The obstetric cards is Ext A1, discharge card is Ext A2, lab report is Ext A3 series, Ext A4 copy of lawyer notice replied by Ext A7 and Ext A5 and A6 are postal acknowledgment, prescription by Aramana hospital are Ext A8 and A9 and Ext A10 is ultrasonography report.
Opposite Party No:1 filed chief affidavit. No documents marked from her side. Opposite Party No:2 filed chief affidavit marked documents as Ext B1 to B7. Ext B1 is medical record, Ext B2 lab report, Ext B3 nurses record, Ext B4 constant letter, Ext B5 clinical chart, Ext B6 nurses record of 05/11/2014 and B7 billing sheet of complainant.
Complainant and Opposite Party No:2 filed argument notes
5. Following points arise for consideration in the case they are:
a) Whether there is any medical negligence on the part of Opposite Party in the medical treatment given to her during treatment or in the matter of death of male child in the womb?
b) Whether complainant entitled for any compensation and if so for what reliefs?
6. The case of the complainant is that the negligence committed by Opposite Parties caused to the death of her male child in the womb
7. Any negligence or errors from the part of the doctor that causes some damage to a patient will probably result in the initiation of a medical negligence controversy.
8. Negligence is well defined as omission to take such care as under the circumstances. It is the legal duty of the person to take such care. Misconception about the role of doctors gives rise to money disputes alleging medical negligence.
9. We have relied upon a serial of judgments pronounced by the Honourable Supreme court of India to ascertain the medical negligence. Some of these are the decision of apex court in Jacab Mathews case [(2005)] 6 Sec 1]
“ A medical practitioner faced with an emergency, ordinary tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or any committing to do an act. Obviously therefore, it will be for the complainant to clarify make out a case of negligence before a medical practitioner is charged with or proceeded against.
The Supreme court has taken a balanced and considerate view of the matter which neither condones the cases of callous negligence such as a surgeon forgetting his surgical gauze inside the body of the patient, or justifies the carelessness of a mental petitioner within the ordinary practitioner within the ordinary skills.
10. Doctors duties to the patients.
A person who holds himself out as ready to give medical advice or treatment implicitly under takes that he is possessed of skill and knowledge for the purpose. Such a person owes the patient certain duties namely a duty of care in deciding whether to the case a duty of care in deciding what treatment to give, and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.
11. Martin F D’Souza Vs Mohd/shfap (AIR 2009 SC 2049) the Sc observed.
“The law like medicine is an inexact since one cannot predict with certainly an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal motions of the Judge concerned who is hearing the case. A medical practitioner was not to be held liable simply because thing went wrong from mischance or mis advantage or through an error of Judgement in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fall below that of the standards of a reasonably competent practitioner in his filed”.
12. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the results of the surgery . also the doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view.
13. The test is the standard of the ordinary skilled man exercising and professing to have that special sill, in the course of treatment a doctor can follow the learned practices. One cannot accuse a doctor being liable for following an un conventional practice of treatment. Deviation from normal practice is not necessary evidence of negligence. To establish liability on that basis it must be shows.
1) That here is a usual and normal practice
2) That the defendant has not adopted it and
3) That the course in fact adopted is one no professional man of ordinanry skill would have taken has he been acting with ordinary care ( Martin F.D Souza V Mohd] Ishfaq (AIR 2009 Sc 2099)
14. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to the guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care”.
15. In a very recent judgment of the Apex Court up held the position of law in Dr Harish Kumar Khurava Vs Joginder Singh CA 7380 OF 2009 citation : LL 2021 SC 425 … Justice Hemant Guptha and A.S Booparna.
A “wrong Diagnosis” is not a ground for medical negligence. The court through conveying its condolences towards the aggrieved and held that the case “ would at best be a case of wrong diagnosis” if that, it certainly cannot be called medical negligence.
16. The law relating negligence is well settled when it comes to be ambit of medical negligence the approach ensured must be distinct. And in a medical negligence scenario reasonable and balanced skills are the only standard. Also in the practice of medicine, there could be varying approaches to treatment. There can be genuine difference of opinion. However while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The Supreme Court observed that a medical professional cannot be held negligence merely because the treatment is not successful or the patient dies during surgery.
17. To indicate negligence, the bench of justice Hemant Guptha and As Boopanna said there should be material available on record or else appropriate medical evidence should be tendered.
In the instant case, complainant consulted the doctor on 28/10/2014. Her next scheduled date is shown as 31/10/2014. On that day she did not report for consultation. She went to doctor on 04/11/2014 by the time child in the womb already died. There is no negligent act attributed against the doctor.
While in cross Pw1 admits that consultation with Opposite Party No:1 was only one on 28/10/2014. All allegations made by me in the case are made as per my guss. She consulted Dr. Nisar on 03/09/2014 advised to report early in October 2014. Again consulted on 01/10/2014, advised checkup on 02/11/2014 but reported on 28/10/2014. Opposite Party No:1 advised complete bed rest. She went to Palaghat from 29/10/2014 till 03/11/2014. Her allegation is that Opposite Party No:1 has not given proper care by not admitting her. She was instructed to report on 31/10/2014. In the case, apart from the allegations made by the complainant there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctor or hospital.
“It is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. In the instant case apart from the allegations made by the complainant both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctor who, on their own behalf had explained their position relating to the medical process in their affidavit to explains there was no negligence. The citations filed by complainant is not matching to the facts of the case.
In the above circumstances when there is no medical evidence available on the crucial medical aspect which required such opinion, the mere reliance placed on the records or allegations would not be sufficient. There is no expert opinion also in the regard to medical negligence or even otherwise the same cannot be taken as conclusive nor is evidence tenders and in the case.
Therefore considering all these aspects the correctness or otherwise of the line of treatment and the method followed were all required to be considered in the background of the medical evidence in the particular facts of the case.
In the result complaint is dismissed since complainant failed to prove medical negligence by legal and acceptable evidence and thus is not entitled to any reliefs in the case. No order as to costs.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Obstetric Card
A2- Discharge card.
A3- Series- Laboratory report
A4-Lawyer Notice
A5 & A6 – Postal Acknowledgment card
A7-Lawyer Notice.
A8 & 9- Prescription by Aramana hospital
A10- Ultrasonography Report
B1- Medical record
B2- Laboratory report
B3 & B6- Nurses record
B4- Consent letter
B5- Clinical Chart
B7- Billing Sheet
Witness Examined
Pw1- Bindu.K.V
Dw1- Dr. Megha.R
Dw2- Dr.M.A. Nizar
Dw3- Dr. Deepa Madhavan
Dw4- Sudhakaran
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
