PER SURESH CHANDRA, MEMBER This revision petition has been filed to challenge the order dated 21.7.2006 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (‘State Commission’ for short) by which the State Commission allowed the appeal of the complainant who is respondent herein and set aside the order of the District Forum. Petitioners herein were OPs 1 –2 before the District Forum. For the sake of convenience, the parties have been referred to by their status before the District Forum 2. The factual matrix of this case are that on 15.8.2000, the complainant approached OP-1 Hospital for Hysterectomy operation. On 16.8.2000, the operation was conducted by OP-2 who is Gynecologist, who after removal of the uterus sutured the abdomen. She was discharged from the hospital on 19.8.2000 with an instruction to present herself in the Hospital on 23.8.2000 for removal of the stitches. Accordingly, the complainant came to the hospital on that day where OP-2 examined her. After examining her, she informed that all the stitches except one are healed and by saying so, she removed all the sutures. When the complainant got down from the examination table, blood started to ooze from her abdomen from the sutures site. On seeing this, OP-2 told the complainant that there was burst abdomen at the sutures site and immediately shifted her to the operation theatre and performed secondary suturing under general anesthesia. The complainant was treated as in-door patient in the hospital upto 27.8.2000 on which day she was discharged after collecting an amount of Rs.7,925/-. It is further contended that as per the direction of OP-2, the complainant appeared again in the hospital on 4.9.2000 on which day, alternative sutures were removed and after one week, the remaining sutures were removed. It is the case of the complainant that bursting of the sutures site on 23.8.2000 occurred as a result of carelessness and inefficiency of OP-2 doctor. As a result of which, the complainant not only suffered pain and agony but also had to spend 4 days in the hospital thereby making payment of hospital bill of R.7,925/- apart from incurring other incidental expenditure. The complainant, therefore, alleged deficiency of service on the part of the OPs and filed a consumer complaint before the District Forum and sought for a direction to the OPs to refund Rs.7,925/- which the complainant was made to spend unnecessarily and also to pay Rs.50,000/- as compensation for deficiency of service., physical suffering, mental agony caused to her plus cost of litigation. The OPs resisted the complaint and denied the allegations of negligence. They submitted that the Monophilament used for suturing had lowest incidence of burst abdomen. They also submitted that enough precaution was taken in anticipation of burst abdomen. The best suited traverse incision was adopted. They contended that burst abdomen was beyond anybody’s control and the complainant was properly treated. They, therefore, denied any liability to pay any compensation in the matter. After enquiry and affording hearing to the parties, the District Forum dismissed the complaint mainly on the ground that the complainant has not produced any expert evidence to show that burst abdomen was on account of negligence on the part of OP-2. Aggrieved by the order of dismissal of the complaint, the complainant carried the matter to the State Commission in appeal, which found favour with the State Commission, which accepted the complaint and allowed the appeal of the complainant thereby setting aside the order of the District Forum. The OPs have now approached the National Commission challenging the order of the State Commission. 3. We have heard counsel for the parties at length and perused the record of the case. While not disputing the broad facts of this case regarding the operation being carried out, suturing being done, complainant being called on different dates for removal of sutures, oozing of blood and burst abdomen after removal of the sutures on 28.3.200 etc., learned counsel for the petitioners relying on the ratio laid down by the Apex Court in the case of Martin F. D’ Souza Vs. Mohd. Ishfaq [(2009) 3 SCC 1] submitted that the allegations made by the complainant against the doctor must be proved by an expert evidence and it was for the complainant to prove the negligent act of the doctor in treating the complainant and also that the option exercised by the doctor in treating the patient is not proper. Learned counsel further submitted that the court could not give a decision against the doctor in respect of alleged medical negligence merely on allegations made in a complaint. In the present case, since there was no such expert opinion or proof of negligence against doctor, the District Forum was right in dismissing the complaint and unsuiting the claim of the complainant. In particular, learned counsel has drawn our attention to the observations of the Apex Court in paras 31,42 and 106 of Martin F. D’ Souza’s case which are reproduced below:- “31. As already stated above, the broad general principles of medical negligence have been laid down in the Supreme Court judgment in Jacob Mathew v. State of Punjab. However, these principles can be indicated briefly here: The basic principle relating to medical negligence is known as the Bolam Rule. This was laid down in the judgment of McNair, J. in Bolam v. Friern Hospital as follows: (WLR p. 586) “… where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” (emphasis supplied) Bolam test has been approved by the Supreme Court in Jacob Mathew case. 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. 106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action.” 4. Learned counsel referred to the illustrations where the principles of Res Ipsa Loquitur have been made applicable in the case of medical negligence as referred to by the Apex Court in para 49 of its order in the case of V. Kishan Rao Vs. Nikhil Super Specialty Hospital and Anr. [(2010) 5 SCC 513] and submitted that the alleged incident of medical negligence does not find mention anywhere in the list referred to in the Nikhil Super Specialty’s case. She further submitted that it was most unfortunate that in spite of all the precautions taken by the OP doctor and the concern shown by her towards the well-being of the patient, the incident took place but the important and relevant point to note is that at every stage immediate necessary action was taken by the OPs and hence keeping in view the ratio laid down by the Apex Court in the case of Martin F. D’ Souza and in the absence of any expert opinion to prove the alleged negligence on the part of the OPs, the State Commission erred in reversing the well-reasoned order of the District Forum and accepting the complaint of the complainant. On the other hand, learned counsel for the complainant/respondent submitted that the limited question of medical negligence in this case pertains to the removal of sutures on the 7th day after the operation. He submitted that admitted facts themselves make negligence ample evidence. He submitted that the negligence on the part of the petitioners/OPs becomes acutely evident when it is noticed from their own document, i.e., reply to the legal notice, reply to the complaint and affidavit by way of evidence that the OPs removed the sutures on the 7th day after surgery under the erroneous impression that it was in fact beyond 8 days of surgery. It is not the case of the OPs that the complainant did not follow instructions regarding presenting herself to the doctor as per the OP doctor’s instructions but the fact remains that as soon as she got down from the examination table after the initial removal of the sutures on the 7th day after the operation, there was oozing of the blood and the abdomen burst. It was a major occurrence, which necessitated the second procedure under general anesthesia. He, therefore, denied that in the face of such well-established and undisputed facts, non-leading of expert evidence by the complainant would be fatal to her case. On the other hand, he submitted that the complainant having satisfied her initial burden of proving the allegation regarding premature and negligent removal of sutures leading to oozing of blood and burst abdomen as a case of prima facie negligence on the part of OPs, it was for the OPs to lead expert and documentary evidence to show that the procedure followed was reasonable and that there was no negligence. The OPs obviously failed to do so. In this context, he relied on the following observations referred to in para 14 of the judgement delivered by the Apex Court in the case of Savita Garg Vs. Director Vs. Director, National Heart Institute [(2004) 8 SCC 56]:- “The plaintiff entered a hospital for an operation on his left hand, which necessitated post-operational treatment. While undergoing that treatment he was under the care of the surgeon who performed the operation, who was a whole-time assistant medical officer of the hospital, the house surgeon and members of the nursing staff of the hospital, all of whom were employed under contracts of service. At the end of the treatment it was found that his hand had been rendered useless. The trial Judge dismissed his action for damages for negligent treatment which he brought against the hospital on the ground that he had failed to prove any negligence. On appeal it was held that in the circumstances, the doctrine of res ipsa loquitur applied, and the onus lay on the hospital authority to prove that there had been no negligence on its part or on the part of anyone for whose acts or omission it was liable, and that onus had not been discharged.” 5. As regards the contention of the counsel for the petitioners/OPs that utmost care was taken while conducting the Hysterectomy operation on the complainant by the OP doctor, learned counsel submitted that the medical negligence alleged herein is limited to the removal of sutures which lead to bursting of the abdomen and this part was also an essential part of the medical negligence on the part of the treating doctor and cannot be ignored as such. To support his contention, learned counsel relied on the following observations of the National Commission in para 3 of its order passed on 23.9.2002 in the case of Suyash Hospital Pvt. Ltd. & Ors. Vs. Prassanna Kumar Ojha [(II) (2003) CPJ 150 (NC):- “To come to the correct conclusion as to whether there was any negligence on the part of the Hospital, the State Commission referred to Maingot’s Abdominal Operations by Michaeal J., Zinner Seymour J. Schwarts, Harold Ellis, and on the point, as to when abdominal disruption can occur, the State Commission referrred to the Medical Book Bailey’s & Love’s Short Practice of Surgery, Sixteenth Edition, which reveals that deep sutures should remain in place at least for 14 days and in this particular case, as per the case-sheet, the sutures were removed after the sixth day. In this context the State Commission held as under : "We, therefore, find that though there was no negligence so far as the operation part is concerned, but there had been lapse on the part of the hospital staff in postoperative care. Though the antibiotics were administered to the patient but when she developed complaint of cough and expectoration then there should have been a special care because this wound caused abdominal disruption. Bailey’s and Love’s Short Practice of Surgery, Sixteenth Edition at page 1056 says that there are more frequent chances of burst in cases of upper abdominal incisions than lower abdominal incisions which we quote : ’It is interesting and instructive to note that upper abdominal incisions disrupt more frequently than lower abdominal incisions and that the suture material employed appears to have no bearing on the incidence of the disaster.’ In the present case, incision was on the upper side of the abdomen, therefore, chances of abdominal burst were much more and the hospital staff should have taken all care." 6. Winding up his arguments, learned counsel submitted that the decision of the Apex Court in the case of Martin F. D’ Souza relied upon by the counsel of the petitioners/OPs has been distinguished in the later case of Nikhil Super Specialty Hospital in which the Apex Court has made the following observations in paras 18 and 50:- “18. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.” “50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing(s) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.” 7. Relying on the aforesaid observations of the Apex Court in the Nikhil Super Specialty case, learned counsel submitted that the present case is fully covered by the observations of the Apex Court and applying the principle of Res Ipsa Loquitur to the facts and circumstances of the case, the allegation of medical negligence against the OPs stands fully proved and it was evident that there was no need for any further expert opinion. The impugned order of the State Commission, which was based on the aforesaid principle, therefore, was absolutely correct and does not call for any interference. 8. Having considered the aforesaid submissions and after going through the record and the orders of the fora below, we are convinced that it is a fit case where the principle of Res Ipsa Loquitur would be fully applicable and hence the State Commission was right in holding the OPs negligent in the matter. The State Commission recorded the following reasons in support of the impugned order:- “10. The facts of the case when examined in the light of these decisions, we find that in all probabilities the burst abdomen occurred because OP2 removed the sutures in 7 days of the operation without waiting for the complete healing of the wound, which in our view is a deficiency of service committed by OP2, for which OP1 is also liability vicariously. We, therefore, hold that the District Forum was not right in dismissing the complaint merely on the ground that expert evidence was not produced. 11. As a result of the deficiency of service committed by OPs, the complainant was made to suffer burst abdomen and had to remain in the Hospital for another 4 days. She had to spend Rs.7,925/- as the additional cost of treatment apart from the incidental expenses. She had also to undergo physical suffering & mental agony for the extended period. We therefore, find that OPs1 & 2 are jointly & severally liable to refund Rs.7,925/- to the complainant, which the complainant had paid as additional cost of treatment. We also held that OPs are liable to pay to the complainant Rs.10,000/- as compensation for deficiency of service resulting in physical & mental sufferings to the complainant. We further award Rs.2,000/- as the complainant cost in the litigation.” 9. We agree with the view taken by the State Commission and do not see any reason to interfere with the impugned order. The impugned order is in line with the ratio laid down by the Apex Court in the case of Nikhil Super Specialty, as also the view taken by this Commission in its earlier orders in the cases of Savita Garg and Suyash Hospital Pvt. Ltd. relied upon by the counsel for the complainant/respondent. Consequently, the revision petition stands dismissed with no order as to costs. |
