Delhi

North East

CC/149/2014

Smt. Shadmani - Complainant(s)

Versus

Panchsheel Hospital Pvt. Ltd. - Opp.Party(s)

01 Aug 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 149/14

 

In the matter of:

 

	Mrs. Shadmani W/o Achchhan Khan R/o 521, Gali No. 5/4, Near Gosia Masjid New Kardampuri, Delhi-110094.	Complainant
	Versus
1.       2.	Panchsheel Hospital Pvt. Ltd C-3/ 63A, Yamuna Vihar, Delhi-110053.   The New India Assurance Co. Ltd CDU- 311400, C-5, Vishal Enclave 2nd Floor Rajouri Garden Delhi-110027.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

30.04.2014 29.07.2019 01.08.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, facts giving rise to the present complaint are that the complainant aged about 24 years is a weak lady and a mother of three minor children aged 7 years, 4 years and 1 and a half years and her husband is an LIC agent having a modest monthly income of Rs. 10,000/- out of which he has to maintain his immediate family and also bear the liability of six younger sisters and three younger brothers and therefore for planning the family and to avoid having any other child, complainant contacted OP for fixing a multi load insertion of Cu-250 intra-vaginal and the same was accordingly fixed by OP in the complainant on 24.12.2013 valid upto 24.12.2016. However, in the first week of March 2014, the complainant suspected disruption in monthly cycle for which she contacted OP and on conducting urine pregnancy test on 10.03.2014, the report came as ‘Positive’. The OP informed complainant that pregnancy was of one month and opined that the child is handicapped and advised abortion of the said pregnancy whereas no one can opine about handicap of a month old foetus. The OP did not adhere to the genuine request of the complainant of neither being able to carry another child nor abort the same and instead threaten the complainant. Prior to this, in November 2013, 29.11.2013 to be precise, an earlier pregnancy of the complainant was terminated by the OP but there was regular bleeding for next 24 days which problem was removed when the OP doctor advised the complainant that some pieces of foetus in the private parts had to be removed surgically which were then removed on 24.12.2013 prior to insertion of Cu-T. The complainant has further submitted that on enquiry by the complainant about harms or side-effects of Cu-T, OP suggested that it was harmless and on OP’s assurance Cu-T was fixed on the complainant for five years after service but a guarantee card of three years was given and when complainant objected to the same on grounds of having paid for it for five years, the OP replied that it was not worrisome and did not check the complainant about Cu-T. However, complainant still conceived on 10.03.2014 when she visited the OP with problems of vomiting and nausea and missed period and the same was confirmed by urine test which came positive. As per ultra sound dated 20.03.2014 got done by the complainant, it was revealed that the child was in the womb of the complainant and some other doctor which the complainant later consulted, advised emergency operation and on being operated at Suraksha Nursing Home on 22.03.2014, it was found that child was not in the womb but was on the left side of ovary. Therefore, alleging deficiency of service on the part of OP causing mental pain, agony and financial loss, the complainant filed the present complaint before this Forum praying for issuance of directions against the OP to pay a sum of Rs. 10,00,000/- as claim for expenses of operation, treatment etc, Rs. 5,00,000/- as compensation for mental pain, agony, physical weakness and financial turmoil and Rs. 40,000/- towards litigation expenses.

The complainant has attached copy of prescription of OP dated 29.11.2013 showing complainant’s pregnancy of 5-6 weeks and prescribing medicines, copy of prescription dated 24.12.2013 by OP for multi load Cu-250 insertion in complainant and medicines alongwith multi load card showing ‘In’ date 24.12.2013 and ‘Out’ date 24.12.2016, copy of urine pregnancy test report dated 10.03.2014 from OP’s clinical path lab showing as positive for pregnancy, copy of Ultra Sound Report dated 20.03.2014 from Ayushman Ultra sound, Delhi showing feotal pole s/o? ectopic in left ovary, copy of pathology report dated 21.03.2014 from Gagan Pathology centre, Delhi regarding CBC of complainant and discharge summary dated 22.03.2014 issued by Suraksha Nursing Home where complainant underwent left side ovariotomy for left sided ovarian cyst and discharged on 25.03.2014.

Thereafter, on complainant’s submission to file amended complaint on 09.05.2014, the same was allowed vide order dated 23.05.2014. Accordingly, amended complaint was filed by complainant on 06.06.2014 wherein the complainant, apart from averments already made in the previous complaint, stated that when the complainant had approached the OP on 29.11.2013 and 01.12.2013 for termination of the then occurred early onset of pregnancy, the OP had given certain medicines on assurance that the pregnancy would get terminated on their consumption. Though the pregnancy did get terminated after taking the said medicines, the bleeding started due to which the complainant had to bear acute pain and trouble and finally when she visited the OP on 24.12.2013 for this problem, the OP conducted an ultra sound test and told the complainant that some pieces of foetus have remained in the body of the complainant which OP then removed by operation and then inserted Cu-T with assurance that the complainant will not conceive for next five years. But despite the insertion of Cu-T and assurance given by OP, the complainant still conceived in March 2014 and having lost faith in OP, then consulted some other hospital and got 3D ultra sound done and thereafter consulted Suraksha Nursing Home, Delhi, where the doctor on examination opined that the foetus was on the left side of ovary due to faulty operation conducted by OP and it being rarest of rare case, the complainant had to be operated to remove left side of her ovary which was then removed by the said hospital during admission of the complainant there from 22.03.2014 to 25.03.2014 and therefore the present complaint giving rise to cause of action of deficient service and unfair trade practice on the part of OP has been filed by the complainant and additionally complainant prayed for referring the case to an appropriate medical institution for independent medical opinion about medical negligence committed by OP.

2. Notice was issued to the OP on 06.06.2014. OP entered appearance and filed written statement on 06.08.2014 through its Director              Dr. V.K.Goel and also sworn by Dr. Poonam Goel, w/o Dr. V.K.Goel in capacity of the treating doctor of the complainant. The OP took the preliminary objection of denial of medical negligence or any cause of action against it and submitted that it treated the complainant as per standard medical protocol using requisite reasonable knowledge, skills and due care as expected from any other doctor / surgeon of that field. OP submitted that in medical science almost every procedure/surgery involves some risks and complications despite being in best hands which cannot be termed as negligence and in the present case complainant has nowhere stated what went wrong except that pregnancy took place in this IUCD User Case which is a well known complication (1 to 3 per 100 women year) and such complication where pregnancy occurs outside the uterus can occur in 1:30 pregnancies in women wearing IUCD as mentioned in Shaw’s Textbook of Gynecology 13^th edition page 224-225. Per contra, complainant has not filed any scientific evidence in form of expert opinion / literature in support of her allegations which are thereafter totally vague and unsubstantiated. OP further submitted that when the complainant visited the OP and pregnancy was confirmed in March 2014, she was advised further management in terms of removal of Cu-T but instead of following the medical advice, she preferred to go to some other doctor for which no negligence or deficiency of service can be attributed to OP. OP averred that the treating Dr. Poonam Goel is a well qualified and experienced Gynae & Obstet  having experienced of 25 years and adept at handling much more complicated cases but known complications like pregnancy despite IUCD do occur as evident in medical text book for which by no stretch of imagination can a doctor be held liable for medical negligence. The afore mentioned literature says that pregnancy occurs with IUCD in situ in 1 to 3 per 100 women year and if it happens, ultrasonography should be done to see if it is intra-uterine or extra-uterine. The common risks/complications associated with insertion of IUCD are expulsion, perforation, spotting, bleeding, vaginal infection, pregnancy, ectopic pregnancy, menorrhagia. Sometimes the IUCD get misplaced having its own complications. In human body no contraceptive method or even sterilization is 100% effective; all have its failure rate, so has the IUCD. OP further raised objection of non maintainability of complaint for non-joinder of proper and necessary party as OP was duly insured with New India Assurance Co. Ltd vide Professional Indemnity Insurance Policy                                   No. 31140036120200000055 w.e.f. 04.02.2013 to 03.02.2014 and therefore it is mandatory to implead the said insurance company. On the factual matrix of the case, OP while admitting that the complainant had visited the OP hospital on 27.11.2013 for termination of six weeks four days intra-uterine pregnancy for which drugs were given for termination of pregnancy by treating Dr. Poonam Goel, submitted that the complainant had again visited the OP hospital on 24.12.2013 for contraception when Cu-T was inserted for a period of three years and a card to that effect mentioning date of insertion and date of removal was given to the complainant (filed by complainant herself). No complaint was reported thereafter for the next two months till early March 2014 when complainant visited OP with problem of irregular bleeding with nausea and vomiting and on conducting pregnancy test, the report came as positive for which she alongwith her husband was asked by OP to come for further management in a day or so but she never showed up again. OP submitted that the complainant did not have pregnancy in the uterus but developed ectopic pregnancy on the left side (as admitted by complainant herself) which was then terminated by some other doctor. OP denied having told the complainant that the foetus was handicapped as being a mischievous allegation though the OP had advised her against continuing with such a pregnancy arising out of failed IUCD. OP denied having threatened the complainant and rather had apprised her of the risk and complication and advising her for removal of IUCD at the earliest but complainant chose to go to some other hospital. OP had also apprised her of side effects of Cu-T which was inserted only for the period of three years as can be seen from the card issued against it. Ectopic pregnancy is a known complication of failed IUCD and complainant has leveled allegations against OP which she has been unable to prove by any credible evidence and expert opinion and therefore OP prayed for dismissal of the complaint on all such defences taken.
3. On provision of copy of amended complaint by complainant to OP and application for impleadment of New India Insurance Company filed by OP in hearing held on 26.08.2014, OP filed amended written statement in which in addition to the defence taken in the afore mentioned written statement, OP submitted that after the process of abortion, whether medical or surgical, patient may have bleeding which is usually within normal limits and when the complainant came to OP on 24.12.2013 after a gap of 26 days from last MTP done on 29.11.2013 with problem of pain and bleeding, ultra sound was conducted in which few clots were noticed in the uterus which were removed after an uneventful uterine aspiration and Cu-T was inserted valid for three years. In March 2014, however when complainant developed ectopic pregnancy which is a known complication of IUCD, she was advised to visit the OP for removal of Cu-T and further management but she did not adhere to the advice of the treating doctor and she never visited OP again and instead wasted around two weeks thereafter before visiting some other hospital when she could have been otherwise managed, may be without surgery in the un-ruptured stage of ectopic pregnancy since in such cases timely management is the most important resolution. OP lastly urged that nowhere in the complaint has complainant mentioned as to what has been done by the treating doctor which no other doctor of ordinary prudence would have done, or what has been omitted by her, which she was supposed to do and denied deficiency of service or unfair trade practice since on presentation of symptom by complainant, OP immediately diagnosed the problem and counseled the complainant as well as her husband but they did not pay heed to the advice which fault cannot be attributed to the complainant and OP prayed for dismissal of the present complaint. OP attached copy of relevant extract of Shaw’s text book of gynecology page 224-225 alongwith copy of policy schedule for Profession indemnity Insurance taken with New India Insurance.  
4. OP filed application for arraigning New India Assurance Company as the necessary party with which it had Professional Indemnity Insurance Policy for the relevant period. In light of the judgment of Hon'ble SCDRC Delhi in Dr. Mohit Garg Vs Mrs. Manju Gupta in FA No. 924/2008 decided on 15.10.2008 and judgment of Hon'ble National Commission in Dr. C.C. Choubal Vs Pankaj Srivastava IV (2003) CPJ 111 (NC) in RP No. 1454/2003 decided on 29.05.2003 holding that insurance company may not be a necessary party but it is certainly a proper party in as much as claim against the doctor would be covered if there is any medical negligence found against him.

Reply to the said application was filed by the complainant taking objection there to as a delaying tactics as no cause of action arisen against insurance company in favour of the complainant and therefore impleading it would amount of mis-joinder of party. However, in light of the aforementioned judgment and law settled therein, the said application was allowed vide order dated 27.11.2014 and the notice was issued to the New India Insurance Company as OP2 henceforth and OP as OP1.

5. Rejoinder in rebuttal to the defence taken by the OP1 in its written statement was filed by the complainant in which complainant reiterated gross negligence and carelessness on part of OP1 due to which some pieces of foetus were left inside the body of the complainant at the time of MTP done in November 2013 which was detected in December 2013 on ultra sound after unbearable pain and suffering reported by the complainant to OP which were then removed surgically and the same has been admitted by OP1 itself in its written statement even though tall claims have been made about 25 years of experience of treating Dr. Poonam Goel and OP1 has grossly failed to explain why pieces of foetus were left inside the body of the complainant despite so much experience and skill. Complainant submitted that standard of ‘carelessness and negligence’ has to be seen from ordinary man’s point of view and such an act of OP1 is high degree carelessness and professional negligence. Further complainant submitted that despite OP’s assurance on insertion of Cu-T in complainant on 24.12.2013 that no pregnancy would occur for next 5 years and a guarantee card to that effect was given which instead showed validity for three years, the complainant conceived in March 2014 and OP1, while advising her termination of pregnancy told her that the foetus is handicapped which compelled the complainant to lose faith in OP1 and seek some other doctor’s advice who opined that the foetus was on the left side of ovary due to earlier faulty operation conducted by OP1 and on operation, Suraksha Nursing Home had to remove left side of her ovary on 22.03.2014. Complainant rebutted the defence of OP1 of ectopic pregnancy being a known complication of IUCD by submitting that it was medical negligence on the part of OP1 by firstly leaving pieces of foetus in complainant’s body and secondly ill-advising her of handicap of one month old foetus which possibly gives rise to doubt that the Cu-T  was inaccurately inserted by OP1 causing ectopic pregnancy. Complainant denied having assured OP1 to visit her again in March 2014 once pregnancy test came positive post / despite insertion of Cu-T and instead visited some other hospital and got 3D ultra sound done on which it was diagnosed ectopic pregnancy for which she later got admitted at Suraksha Nursing Home and got ovariotomy done for ruptured ectopic pregnancy for which she had to incur huge expenditure beyond capacity of her husband. Lastly, complainant submitted that in summary proceedings in CPA, allegation are not required to be proved in strictest sense as in CPC and / or Evidence Act and disputes are to be adjudicated simply on basis of documentary and oral evidence.
6. On notice to OP2, OP2 entered appearance on 04.02.2015 and filed written statement in which it took the preliminary objection that there was no privity of contract between complainant and OP2 meriting dismissing of the complaint on this ground alone as it has been impleaded as one of the parties in the complaint without disclosing under what circumstances and what cause of action having arisen against it. Nonetheless OP2 admitted the factum of coverage of OP1 vide Professional Indemnity Policy bearing                    No. 31140036120200000055 w.e.f. 04.02.2014 to 03.02.2015.
7. Rejoinder to the written statement of OP2 was filed by the complainant in rebuttal to defence of no Privity of contract between complainant and OP2 on grounds that it was on the application filed by OP1 that OP2 has been arraigned as a necessary party in the present complaint in capacity of having been covered by OP2, therefore it is purely a matter between insured and insurer i.e. between OP1 and OP2.
8. Evidence by way of affidavit was filed by the complainant exhibiting the documents filed / relied upon alongwith the complainant and in addition filed copies of prescription dated 02.04.2014 of Dr. Shri Bala Jain of Suraksha Nursing Home , Complete Blood Count (CBC) report of complainant dated 28.05.2015 from Diagnostic Point Path Lab, Delhi, Ultra Sound Report dated 28.05.2015 of complainant from Ayushman Ultra Sound and Diagnostics, Delhi showing s/o possible Rt.ectopic pregnancy, discharge summary dated 02.06.2015 of complainant issued by Suraksha Nursing Home, Delhi showing diagnosis of Rt. sided ruptured Ectopic Pregnancy with Haemperitonium with history of previous ectopic pregnancy with surgery of laprotomy done and Rt. Salpingectomy done and follow up medical notes over leaf dated 08.06.2015 and 16.07.2015 for stitch removal etc, prescription dated 06.06.2015 by Dr. Suresh Vats E.N.T. Centre, Delhi for complainant suffering from pain and right ear throat and mouth ulcer, copy of ultra sound report dated 18.06.2015 of complainant issued by Yamuna Charitable Centre, Delhi showing Rt. Renal Concretions with P.I.D with endometrial echoes prominent.
9. Evidence by way of affidavit was filed by OP1 sworn by Dr. V.K.Goel, its Director in reassertion of defence taken in written statement.
10.  Evidence by way of affidavit was filed by OP2 sworn by its Deputy Manager, D.O. No. CDU311400, Rajouri Garden, Delhi Branch in reassertion of its defence.
11.  Written arguments were filed by the complainant in which certain questions were raised by the complainant for consideration of this Forum in terms of allegations leveled by the complainant against the OP1. Firstly, Carelessness on the part of treating doctor of OP1 hospital in having left certain pieces of foetus in complainant’s body at the time of MTP in November 2013 which was detected in December 2013 on ultra sound test and then removed. Secondly, OP’s failure to explain why pieces of foetus were left by the treating doctor in the body of the complainant despite claim of OP1 of treating doctor having 25 years of experience and calling it as a mere complication as such an act is nothing but carelessness no matter howsoever experienced or skilled one may be. Thirdly, the standard of Carelessness and Negligence has to be seen from the point of view of an ordinary man and leaving pieces of foetus by doctor of OP1 while terminating the pregnancy of complainant establishes high degree of carelessness and professional negligence. Fourthly, scientific literature, evidence or expert opinion is not necessary or required to prove a case in summary proceedings in Consumer Forum meant for speedy justice under benevolent legislation and placed reliance upon judgment of Hon'ble Supreme Court in V. Krishna Rao Vs Nikhil Super Specialty hospital (Civil Appeal No.2641/2010) SLP (C) No. 15084/2009 wherein Hon'ble Supreme Court echoed the same view for efficacy of remedy under the act lest the same becomes illusory to common man. Fifthly, the principle of ‘Res Ipsa Loquitur’ operates in the present case and the burden of proof lies upon the OP to prove that he had taken care and done his duty to repel the charge of negligence. Sixthly, OP1 has been deficient in service and engaged in unfair trade practice by assuring the complainant on insertion of multi load that she would not conceive for next 5 years till 2018 end and a card to that effect was also issued but the same showed a period of three years contrary to OP’s assurance / guarantee whereas complainant was charged for five years for the said Cu-T. Lastly, discretion of this Forum whether to hold OP2 liable to compensate the complainant in capacity of OP1 having purchased Professional Indemnity Policy covering its acts of negligence. Complainant has filed copy of judgment of Hon'ble Supreme Court passed in V. Kishan Rao Vs Nikhil Super Specialty Hospital.    
12.  Written arguments were filed by OP2 in reiteration of defence taken in its written statement and evidence. OP2 objected to the maintainability of the complaint qua it before this Forum and relied upon judgment of Hon'ble Supreme Court in LIC Vs Surinder Kaur in Civil Appeal No. 5334/2006 decided on 01.12.2006 in which the Hon'ble Supreme Court held that jurisdiction of Consumer Forum can be invoked only if there has been deficiency of service on part of insurer and also judgment of Hon'ble National Commission in Divisional Manager LIC of India Vs Alapathi Vasantha Kumari  decided on 16.02.1995 wherein the Hon'ble National Commission held that the legality or factual correctness of the grounds taken in letter of repudiation is a matter of determination by Civil Court and not by Consumer Forum and lastly placed reliance upon judgment of Hon'ble Supreme Court in Suraj Mal Ram Niwas Oil Mills Vs UII reported as 2011 CTJ 11 in which Hon'ble Supreme Court held that contract of insurance and terms of contract have to be strictly construed on equity.
13.  Written arguments were filed by OP1 wherein it reiterated the defence taken in the written statement and reasserted in its evidence placing reliance on the various extracts from the medical literature on risk factors of IUD failure, especially in Cu-T emphasizing of greater risk of ectopic pregnancy involved post IUD insertion therein and extract from Shaw’s text book of gynecology 13^th edition regarding contraindication of usage of IUCD as previous ectopic pregnancy being one of them and complications of IUCD highlighting ectopic pregnancy as a late complication thereof. The said literature also states that ectopic pregnancy occurs in 1:30 pregnancy in women wearing IUD because IUD has a local contraceptive action on the uterus and prevents a uterine pregnancy but does not protect against tubal or ovarian pregnancy. Therefore, OP1 argued that the ectopic pregnancy suffered by the complainant was a known complication of IUCD and cannot be termed as medical negligence. OP1 relied upon judgments of Hon'ble Supreme Court in State of Punjab Vs Shiv Ram (2005) 7 SCC in which Hon'ble Supreme Court held that merely because a women conceived and delivered a child despite having undergone sterilization, the operating surgeon cannot be held liable for compensation on account of unwanted pregnancy or unwanted child unless negligence on the part of surgeon in performing surgery is proved which has to satisfy Bolam’s Test or in the alternate if the surgeon had assured 100% exclusion of pregnancy. OP1 further argued that no action may be maintained against any health care provider upon any guarantee, warranty or assurance as to result of any medical, surgical or diagnostic procedure or treatment unless such guarantee, warranty or assurance is given in writing and signed by provider or any authorized person acting on his behalf as held by Hon'ble National Commission in M. Sarala Chennai Vs Sundaram Medical Foundation passed on 21.01.2016. OP1 relied upon judgment of Hon'ble Supreme Court in Narayan Das Vs Govt. of M.P. AIR 1974 SC 1252 in which it was held that a wrong or misleading statement deliberately and willful made by a party to litigation with a view to obtaining a favorable order would prejudice or interfere due course of judicial proceedings amounting to contempt of court as also judgment of Dr. B Singh Vs UOI (2004) 3 SCC 363 in which Hon'ble Supreme Court held that only a person who comes to court with bonafide and public interest can have locus and the court has to be satisfied about credentials, correctness of information, gravity and seriousness involved and the court has to strike balance between two conflicting interests and avoid public mischief and mischievous petitions filed for oblique motives. OP1 further relied upon judgment of Hon'ble Supreme Court in SJS Business Enterprises Pvt Ltd Vs State of Bihar (2004) 7 SCC 164 on suppression of  facts in which Hon'ble Supreme Court held that as a general rule it shall disqualify litigant from obtaining any relief and act as a deterrent from abusing process of law. Regarding allegation of negligence, in defence of self, OP1 relied upon the judgment of Hon'ble Supreme Court in Jacob Mathew Vs State of Punjab (2005) 6 SCC 1 in which a three judge bench of Hon'ble Apex Court was dealing with a case of negligence of professionals such as lawyers, doctors, architects in which the Hon'ble Supreme Court observed that any task which is required to be performed with a special skill would generally be undertaken by person possessing requisite skill for performing the task and impliedly assure the person dealing with him that the skill possessed by him shall be exercised by him with reasonable degree of care and caution but does not assure result just like a lawyer would not tell his client victory in a case and a physician of full recovery of his patient. Likewise a surgeon cannot guarantee 100% beneficial result of surgery and at best can give assurance of requisite skill in that branch of profession practised by him while undertaking the performance of task entrusted to him. Therefore, judged by this standard, a professional is held liable for negligence on one or two findings either he was not possessed with requisite skill which he professed to have possessed or he did not exercise with reasonable competence the skill which he did possess. The standard to be applied for judging whether a person charged has been negligent or not would that be of an ordinary competent person exercising ordinary skill in that profession. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of medical professional so long as a doctor follows a practice acceptable to medical profession notwithstanding that better alternative course or method of treatment may be available. When it comes to failure of taking precautions, what has to be seen is whether those precautions were taken sufficiently and a failure to use special or extraordinary precaution cannot be a standard for judging alleged negligence. OP1 further relied upon of Hon'ble Supreme Court in Martin F. D’Souza Vs Mohd Ishfaq  (2009) CPJ 32 (SC) in which Hon'ble Supreme Court held that a medical practitioner  is not  liable to be held negligent simply because things went wrong from mischance or misadventure or through error of judgment in choosing one reasonable course of treatment over the other and would be liable only where his conduct fell below that of standard of reasonably competent petitioner as was in the case in Achyutrao Haribhau Khodwa Vs State of Maharashtra MANU / SC / 0600/ 1996 (1996) 2SCR881 in which a medical practitioner had left a surgical gauze inside a patient after operation or operates on the wrong parts of his body or indulges in illegitimate organ trade. The Hon'ble Supreme Court and Hon'ble NCDRC observed that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has fail, the doctor cannot be held straight away liable for medical negligence by applying doctrine of  Res Ipsa Loquitur as no sensible professional would intentionally commit and act or omission which would result in harm or injury to the patient since the profession reputation of a doctor would be at stake and a single failure may cost him dear in his lapse. Lastly OP urged that complainant has approached his Forum without support of any expert view of any specialist and leveled allegations without support of any scientific literature and therefore prayed for dismissal of the complaint questioning allegation of medical negligence or deficiency of service leveled therein.
14.  Thereafter, the complete case file was referred for Medical Opinion to G.T.B. Hospital by this Forum in March 2017 for seeking expert opinion on whether there was any negligence on the part of OP1 in insertion of Cu-T -250 in the complainant and the fact that she conceived despite such insertion. As per medical opinion receive from the H.O.D., Department of OBST & GYNAE UCMS & GTBH dated 03.04.2017 under stamp and seal of Addl. M S & Staff Physician, after review of complaint and medical records of complainant, the three member committee of the hospital was of the considered opinion that “there was no negligence in providing medical abortion and inserting multiload thereafter. Medical method of abortion is a recommended procedure for 1^st trimester medical termination of pregnancy. It is known to have a 5-10 percent chance of requiring surgical curettage later for bleeding and retained products of conception”. It also observed that “intrauterine device is a highly effective contraceptive method but failure resulting in pregnancy can occur in less than 1 percent cases. When pregnancy occurs chances of ectopic gestational are ~ 0.15/100 women years. Ectopic pregnancy can occur in a woman even without Cu IUCD (multiload or Cu-T) with an incidence of 2/100 women years”. Most pertinently, the committee observed that “there is a possibility of spontaneous expulsion of multiload in this case as ultrasound, and records do not mention the presence of multiload”.

OP1 thereafter filed additional written arguments in which it argued / clarified that contrary to complainant’s allegation of OP1 leaving pieces inside her due to ‘faulty operation’, no operation was done for termination of pregnancy of complainant in November 2013 as admitted by complainant herself that she was prescribed oral medication for MTP on consumption of which the pregnancy got terminated and OP1 submitted that pain and bleeding suffered by her post abortion is a known complication of abortion pills and for the said problem reported by the complainant in December 2013, suction of uterine cavity was done to remove the offending clot. The OP1 argued that it did not perform a surgical MTP at any point of time nor was complainant admitted with OP1 hospital for consuming / administering medicines. OP1 relied upon / filed copy of the Consent Form dated 29.11.2013 duly signed by the complainant and her husband which documents the inherent risk in medical abortion and same was also explained to the complainant in writing before prescribing the medicines. Further no operation was done on the complainant for removal of pieces under anesthesia or admission / day care and complainant merely was in the chamber of OP1 where the bleeding clot was removed and Cu-T was inserted thereafter in December 2013 after insertion of which the complainant had two regular menstrual cycles and was symptom free. The OP1 further denied that the complainant was in regular treatment of OP1 doctor from November 2013 till December 2013 and stated that after MTP was done in November 2013 end, she only showed up in December 2013 with minor bleeding problem which normally occurs upto 22 to 30 days post abortion which was explain to complainant in writing. Had the same been heavy, complainant would not have waited for 25 days to come to OP1. Further OP1 argued that as complainant and her husband were satisfied with the abortion process done by OP1 in November 2013, they came again in December 2013 for contraception when after due discussion and counselling, CU-T was inserted in the complainant. OP1 urged that all treatment of complainant was as per standard medical protocol and reemphasized reliance placed upon the judgments of Hon'ble Supreme Court and NCDRC in this regard in its earlier written arguments. OP1 denied having giving any guarantee card to the complainant for non occurrence of pregnancy at the time of insertion of Cu-T. On the contrary, risk of pregnancy was explained in writing to the complainant even with Cu-T and its failure rate. The card handed over was mentioning date of insertion and date of removal of Cu-T with one arrow depicting ‘In’ and other ‘Out’ which is self explanatory and only for remembrance and urged that the complainant be put to proof to produce any such ‘guarantee card’ in support of his allegation against OP1. Complainant and her husband were explained about firstly the complication of medical aborting medicines and secondly complications / failure of Cu-T as no treatment is 100% safe and complication may arise which then have to be managed timely by the doctor but complainant never came back again to OP1 after conceiving in March 2014 for MTP and removal of Cu-T which had the complainant done in time would probably had cured complainant with medication without operative intervention as each day counts with ectopic pregnancy. OP1 argued that no hospital or doctor can guarantee any patient as has been clearly mention in hospital consent form. As for principle of ‘Res Ipsa Loquitur’, the present case is that of Cu-T failure which is a known failure documented in medical text books/ literature and if every known failure / side-effect of any medicine or surgery is taken as ‘Res Ipsa Loquitur’, no doctor can practise. OP1 relied upon judgments of Hon'ble NCDRC in case of Tagore Heart care and Research Centre Pvt Ltd Vs Mrs. Kanta FA No. 426/2006 decided on 27.05.2011 in which Hon'ble NCDRC held that mere fact that patient suffer some adverse effect during or after surgery is not enough to take a frog-leap and say that it is case of ‘Res Ipsa Loquitur’. Further Hon'ble NCDRC in Dr. Deepak Kumar Satsangi Vs Sanjeevan Medical Research Centre in CC No. 22/2010 decided on 01.04.2016 opined that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying doctrine ofRes Ipsa Loquitur as no sensible professional would intentionally commit and act or omission which would result in harm or injury to the patient since the profession reputation of a doctor would be at stake and a single failure may cost him dear in his lapse. Further OP1 relied upon judgment of Hon'ble NCDRC in Med. Suptd. ESI Hospital Vs Ram Avadh Pal in Revision Petition No. 613/2007 decided on 24.01.2017 wherein Hon'ble NCDRC held in a case of pregnancy after sterilization that ‘Negligence on their part has not been proved’. Same views was observed by Hon'ble NCDRC in case of Tarlok Chand Mattu Vs M/s Vasal Hospital & Anr. in Revision Petition No. 2369/2016 decided on 31.01.2017.

Both OP1 and complainant filed respective judgment compilation relied upon by them to buttress their defence/ allegation.

15.  We have heard exhaustive arguments addressed by both the parties and have carefully examined the documentary evidence placed on record before us and have given thoughtful consideration to both aspects.

The rival submissions now fall for consideration. Three key issues arise as essential facets for adjudication in this case

1. Whether there was lack of reasonable care and negligence on the part of treating Doctor Poonam Goel of OP1 hospital in conducting MTP of complainant through oral medication in November 2013 in which later on pieces of foetus were left in the body of the complainant detected in USG in December 2013 which were then removed through suction.
2. Whether the OP1 was negligent in insertion of IUCD Cu-T-250 in the complainant in December 2013 due to which she conceived ectopic pregnancy in March 2014 despite contraception.
3. Relief if any, in case the first two issues are decided in favour of the complainant against OP1 and liability of OP2 as the insurer of OP1 in capacity of granting coverage of Professional Indemnity Policy.

 

 

We may now examine the allegation of negligence. Before we proceed to examine the facts of this case, it is apposite to take note of legal principle that governs the controversy involved in the present case. The question as to how and by which principle, the court should decide the issue of negligence of a professional doctor and hold him liable for his medical acts / advice given by him / her to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering on account of doctors medical advice / treatment (oral or operation) is no longer                    res integra and settled long back by series of English decisions as well as the decisions of Hon'ble Supreme Court and Hon'ble National Commission. This leads to the moot question what is Medical Negligence? Catena of judgments of Hon'ble Supreme Court elucidate on the standard of care which is expected of medical practitioner. Medical negligence jurisprudence in India is characterized by reliance on ‘Bolam Test’. In Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582, Justice McNair did not hold the treating doctor guilty of medical negligence while laying down the following standard of care; “he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in that particular art.” A careful reading of Bolam case shows that the standard of ‘reasonableness’ is implicit in the test. Thus the Queens Bench holds “when 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. 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. There may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent”. A three judge bench of Hon'ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs Dr. Trimbak Bapu Godbole AIR 1969 SC 128 stipulated that the standard to be applied by a medical practitioner must be of a ‘reasonable degree of care’ and Hon'ble Supreme Court observed that “duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such  a person when consulted by a patient owes him certain duties viz a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. Any breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury’s Laws of England 3^rd Edn. Vol.26 Pg.17).” The Hon'ble Supreme Court has consistently held in its decisions that the standard of care which is expected of a medical professional is the treatment which is expected of one with a reasonable degree of skill and knowledge. In the landmark judgment of Kusum Sharma and Ors. Vs Batra Hospital and Medical Research Centre and Ors. I (2010) CPJ 29 (SC), the Hon'ble Supreme Court, while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view interalia:

(ii) negligence in an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon error of judgment

4. a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. in the realm of diagnosis and treatment there is a scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor

(vii) negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. The principle of law laid down in Bolam test was reiterated and explained by Bingham L.J. in his speech in Eckersley Vs. Binnie (1998) 18 Con LR 1 “Professional Man should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitation on his skill. He must bring to any professional task he undertakes no less expertise, skill and care then other ordinarily competent members of his profession would bring, but need bring no more. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet”. The Hon'ble Supreme Court in its Three Judge Bench judgment in the case of Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 SC examined the law laid down in Bolam test and held that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial. The only assurance which such a professional can give or impliedly be given is that he is possessed of requisite skill in that branch of profession practiced by him while undertaking the performance of task entrusted to exercise his skill with reasonable competence and this is what the person approaching him can expect. The Hon'ble Supreme Court further observed in the Jacob Mathew judgment that different doctors have different approaches, some have more radical while some have more conservative approaches. All doctors cannot be fitted in to a strait-jacketed formula, and cannot be penalized for departing from that formula. Hon'ble Lordships further observed that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. Lord Denning made an important observation in Hucks Vs Cole (1968) 118 New L J 469 that “a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of other. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. The Hon'ble Supreme Court in Dr. S.K. Jhunjhunwala Vs Dhanwanti Kumar II (2019) CPJ 41 SC held that negligence has to be decided on the touch stone whether the treating doctor adheres to normal practice of medical parlance and opined that suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering from any such ailment as a result of improper performance of surgery and that to with the degree of negligence on the part of doctor is another thing. To prove the case of a negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient. Lord Clyde in Hunter Vs Hanley stated that “in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men….. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been prove to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care…..”.

 In the light of detailed discussion made above on the issues arising in the present complaint, we may now advert to the merits of the case, if any in the light of the exhaustive medical jurisprudence analysis keeping in view the factual matrix of the case.

The first grievance of the complainant was that of negligence on the part of treating doctor of OP1 in having left fetal pieces in her body at the time of medical termination of pregnancy done in November 2013. On close scrutiny of the Consent Form of procedure record filed by OP1 alongwith its additional written arguments, not only has the same been signed by the complainant and her husband but also clause 8 whereof it states that no guarantee or assurance has been made by the hospital as to the result or consequences that may follow any operation, procedure, treatment or service of any kind that are perform in the hospital. Further the copy of MTP/ D&C Consent Form dated 29.11.2013 again signed by complainant and her husband at point 7 state that the complainant do not receive any guarantee of the procedure and has been clearly told that in some cases whole fetus cannot be removed and some pieces remain in uterus, in some cases perforation of uterus can be possible, there can be excess bleeding and can be required repeated MTP/D&C. Blood transfusion can be needed. Uterus can be removed or any other procedure needed and that the complainant and her husband are ready for the same and are giving their full consent. Further copy of Form 1 has point 5 struck as positive for pregnancy having occurred as a result of failure of contraceptive device of method use by married women of her husband for the purpose of limiting number of children. The copy of Cu-T instructions No. 8 is relevant in the present case which states that Cu-T can rarely fail hence you miss a period report for check-up read with the Cu-T card which clearly and merely indicates in and out arrow with their respective dates and is not a guarantee card much less for any five years period as claimed by the complainant. Further, the complainant has herself admitted that the abortion in November 2013 was done through oral medication and not through surgical intervention as has been argued by the OP1 too. Let us revisit the medical opinion dated 03.04.2017 issued by G.T.B. Hospital in this regard which also opines to the effect that notwithstanding the medical method of abortion as a recommended procedure for 1^st trimester MTP, it is known to have 5 to 10 percent chance of requiring surgical curettage later for bleeding and retained products of conceptions. In Bolitho Vs City and Hackney Health Authority (1996) 4 ALL  ER 771, House of Lords held that the course adopted by medical practitioner must stand a test to reason “the court is not bound to hold that a defendant doctor escapes liability for negligence just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.

On the facts of the case, when the complainant reported of bleeding in the month of December 2013 to OP1, the OP1, as per standard protocol conducted ultrasound and found a clot in her uterus which the OP1 has itself admitted in its written statement and the same was removed after uterine aspiration. Since the abortion was not done surgically and through oral abortion pills, foetal pieces having been left/retained/remained inside was not an uncommon phenomenon as has also been opined by the Expert Medical Board of G.T.B Hospital. It was a mere case of optional method of MTP adopted by OP1 as a usually acceptable procedure in cases of early pregnancy where surgical intervention can be avoided. We therefore, do not find OP1 guilty of negligence or lacking in reasonable care in having adopted the said procedure more so when the complications/side-effect of the same were already made known to the complainant in writing vide the consent form duly signed by complainant and her husband.

The second allegation of negligence is with respect to the insertion of IUCD i.e. Cu-250 multiload inserted in the complainant in December 2013 for contraception and prevention of further pregnancy despite insertion of which, the complainant conceived in March 2014 developing ectopic pregnancy which ultimately resulted in surgery / ovariotomy got done from some other hospital in which surgery complainant had to lose her left ovary and thereby alleging complete loss of faith in the credibility and professional ability of the treating doctor of OP1 finally giving rise to the present complaint. In this regard, we may again refer to the Cu-T document which clearly states that it is prone to failure and in case of missed period, the person must immediately report for check-up. We have scrutinized the medical literature of Shaw’s text book of gynecology filed / relied upon by OP1 alongwith its defence which states clearly ectopic pregnancy as one of the complications of an intra uterine device and failure of IUCD in preventing ectopic pregnancy since IUD has a local contraceptive action on the uterus and prevents a uterine pregnancy but does not protect against tubal or ovarian pregnancy. The complainant has placed on record an ultra sound report dated 28.05.2015 issued by Ayushman Ultrasound & Diagnostics and discharge summary dated 02.06.2015 issued by Suraksha Nursing Home alongwith her rejoinder showing sign of possible Rt. Ectopic Pregnancy and underwent laprotomy on 28.05.2015. However no observation of “faulty operation” has been made by Suraksha Nursing Home in any of the document against OP1. This gives rise to a probability that the complainant is prone to ectopic pregnancies and a vital question arises as to whom would she blame for this second ectopic pregnancy?  OP has relied upon the landmark judgment of State of Punjab vs Shivram (2005) 7 SCC in which the Hon’ble Apex Court had held that proof of negligence shall have to satisfy Bolam’s test set out in Jacob Mathew case (2005) 6 SCC. The Hon’ble Apex Court held that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. It is for the woman who has conceived the child to go or not to go for MTP. The Hon'ble Delhi High Court in Lok Nayak Hospital Vs. Prema IV (2018) CPJ 110 (Del.) held in a case of conception despite sterilization that medically there is never 100% chance of success in sterilization operation as this aspect is no longer Res Integra as has already been held by the Division Bench of Hon'ble Delhi High Court in the case of Smt. Madhubala Vs Govt. of NCTD 118 (2005) DLT 515 DB in which the Hon'ble Bench was of the view that in chance of failure of such an operation, operating surgeon will not be held responsible for failure of procedure of sterilization operation and relied upon judgment of Hon'ble Supreme Court in case of State of Haryana Vs Smt. Santra IV (2000) 5 SCC 182. We therefore do not find any negligence on the part of OP1 in the insertion or decision to insert Cu-250 in the complainant and the complainant has failed to prove or establish negligence by any cogent evidence in this regard.

There is a tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the doctor cannot be ruled out. Dealing with a case of medical negligence needs a deeper understanding of practical side of medicine. The human body and medical science, both are too complex to be easily understood.  

The courts and consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. Notwithstanding that medical profession has to an extent become commercialized, and many doctors depart from their Hippocratic Oath for their selfish ends of making money. While this Forum has no sympathy for doctors who are negligent, it must also be said frivolous & motivated complaints against doctors have increased by leaps and bounds in our country particularly after the medical profession was placed within the purview of consumer protection Act. Hence consumer Fora should keep close vigil on such cases while deciding cases related to medical negligence to prevent misuse of process of law and legal machinery for oblique motives.  

16.  After having thoroughly analyzed and scrutinized the entire case file, we are of the considered view that sometimes despite best intention to safeguard the interest of the patient, the treatment of a doctor fails. That however does not mean that a doctor must be held guilty of medical negligence, unless there is some strong evidence to suggest that he is. However, in the present case in our opinion there is no basis for recording a finding of medical negligence against OP1 since at the time of conducting MTP on the complainant through oral medication in November 2013, its after effects/ side-effects/ complication were already explained in detail to complainant and her husband and expressly consented to by both of them in writing specially in the MTP / D&C Consent Form where possibility of pieces of foetus remaining in the uterus was made known to the complainant as also bleeding and requirement of repeated MTP/ D&C. Further, OP1 had also made known to the complainant chances of failure of Cu-T multiload at the time of its insertion in December 2013 but on ectopic pregnancy conception in March 2014, the complainant herself chose to not come back to OP1 and seek treatment in some other hospital, for which act and consequences thereof post surgery, OP1 cannot be held liable under any circumstances. The first two issues are therefore decided in favour of OP1. Accordingly OP2 is also absolved from any consequent liability that would have arisen had the Forum taken an alternate/adverse view against OP1. Third issue is also decided accordingly.
17.  We therefore, after due appreciation of the entire case study, dismiss the present complaint as devoid of merits with no order as to costs.  
18.  Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
19.   File be consigned to record room.
20.   Announced on 01.08.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member