KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHPAURAM APPEAL NO.47/01 JUDGMENT DATED: 12.2.2008 Appeal filed against the order passed by CDRF, Thiruvananthapuram in OP.No.519/1998 PRESENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER The General Manager, A.J.Hospital, Kazhakuttom, : APPELLANT Thiruvananthapuram. (By Adv.A.Abdul Kharim) Vs 1. Smt.S.S.Vinodhini, W/o Sri.S.Jeevaraj, S.S.Nilayam, Karimpukonam, Kariyam, Sreekaryam, : RESPONDENTS Thiruvananthpauram. 2. Dr.Smt.Pandiammal, Resident Medical Officer, A.J.Hospital, Kazhakuttom, Thiruvananthapuram. JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT The appellant is the 1st opposite party in OP.519/98 in the file of CDRF, Thiruvananthpauram. The 2nd opposite party/2nd respondent, the resident Medical Officer and the appellant are under orders to pay a sum of Rs.35000/- as general damages, Rs.5000/- as medical expenses, Rs.5000/- as wage loss and Rs.1500/- towards costs to the complainant/1st respondent. It is also directed that the sum of Rs.45,000/- ie. Damages + expenses and wage loss is not paid within 2 months the amounts will carry interest at 16.5% 2. The case of the complainant is that she had underwent Medical Termination of Pregnancy at the hospital of the appellant and that M.T.P performed was by the 2nd opposite party/2nd respondent. It was the 2nd pregnancy. According to her she visited the hospital and was examined by the 2nd opposite party doctor on gynecological complaints, on 1.4.98. According to her the 2nd opposite party advised her to undergo M.T.P. suggesting that the foetus has some physical deformities. Hence she reported to undergo M.T.P on 8.4.98. She would told by the doctor after M.T.P that the pregnancy has already been terminated successfully and advised her to take rest for 2 weeks and prescribed some medicines. Thereafter she developed unbearable back pain along with fever. Hence on 14.4.98 she again approached the particular doctor. The doctor pacified her stating that the same are common post surgical symptoms and will vanish within a week; and pain killers were prescribed. The pain etc got intensified. Subsequently, on 2.6.98 she went to SAT hospital, Trivandrum wherein she was attended by Dr.Minimol of O2 unit. She was advised to undergo scanning. She underwent ultra sound scanning at Dr.Gopinath’s Scan and Laboratory Services, Thiruvananthpauram. The scan report revealed that the foetus is still alive with a growth of 13 to 14 weeks. She was admitted at the hospital on 9.6.98 and she had severe back pain and fever. She was an inpatient upto 13.6.98. She was also examined by Dr.Thomas Kuriakose. She was advised to be present on 23.6.98 for MTP. She was told that as the foetus had survived a futile attempt of termination it is likely that there would be some deformities. On 23.6.98 she was admitted at SAT Hospital. On 24.6.98 Dr.Thomas Kuriakose subjected her to MTP. She was discharged on 26.6.98 with advice to take two weeks of bed rest. The petitioner was working as teacher of Govt.UPS, Chanthavila. She could not attend duties from 1.4.96 (sic.1.4.98) till 13.7.98 and had to be on loss of pay for the above period. In the meantime petitioner received an interview card for the post of H SA to appear on 20.6.98 for an interview at KPSC office Kollam. She could not attend the interview on account of the physical infirmities due to the MTP performed by the 2nd opposite party and the consequent events. She has claimed an amount of sum of Rs.4,00,000/- as compensation. 3. The complainant was subsequently amended incorporating the allegations that 1st opposite party/appellant hospital is not having facilities for conducting MTP and the 2nd opposite party the doctor is not qualified to conduct MTP. Hence there is deficiency in service on the part of both the opposite parties. 4. The 1st and 2nd opposite parties have filed joint version alleging that it was at the instance of the complainant that she was subjected to MTP as the elder child was too young. It is stated on 8.4.98 the MTP was done and foetus removed by suction and cavity curetting by undertaking serial dialation. She was advised to appear for review check up after 5 days with scan report. It is alleged that the complaint did not visit the 2nd opposite party thereafter. But it is seen that on 13.4.98 she had come to the hospital with complaints of pain, vomitting and giddiness and instead of seeing the 2nd opposite party she met Dr.Jayanthi in the Gynecology department who also adviced her to come for review with scan report. It is alleged that the complainant did not appear at the appellant’s hospital thereafter. According to the opposite parties, the complainant was shy of meeting the 2nd opposite party without comply with her advice to come with scan report. Had she come with the scan report the necessary follow ups would have been done. It is also pointed out that MTP is a procedure by which the products of conception are removed from the uterine cavity using an instrument. Undue force cannot be used as the same may cause perforation of uterus, which is a major complication. Incidents of continuing pregnancy after MTP can occur because of total missing of the sac while using suction or due to the existence of twin sacs or other causes due to uterine deformities. It was to exclude the possibility of continued pregnancy the scan was advised. It is denied that the doctor suggested that child in the womb may develop physical deformities . 5. The opposite parties have filed additional version asserting that the appellant hospital is having necessary facilities for conducting MTP and the 2nd opposite party the doctor is qualified and is undergone training in Obstetrics and Gynecology for more than 3 years and is sufficiently experienced in conducting MTP. 6. The evidence adduced consisted of the testimony of PWs 1 and 2 the complainant and the doctor who performed MTP at SAT; and Exts.P1 to P15; DW1 Manager of the appellant hospital and Ext.s D1 to D9. 7. The Forum has found that the MTP was conducted carelessly and indifferently, and follow up was also done with utter negligence. It was also observed that the 2nd opposite party the doctor did not enter the witness box to explain her case and further that DW1 is quite ignorant about the treatment records etc. It was also found that the case sheet produced appeared to be containing additions and over writings and the dates are corrected. The version of the opposite parties that the complainant was advised to come to the hospital with scan report for check up after MTP cannot be believed. It was inferred that the scan was not suggested. The compensation was calculated considering the sufferings is undergone by the complainant and the medical expenses and the fact that for about 3 months she could not work. 8. We find that PW1 has testified in proof of the averments in the complaint and has spoken in proof of the records produced. She has asserted that there was no such advise had to come to the hospital with a scan report. It is stated that on 14.4.98 after MTP she had consulted the 2nd opposite party, and that she was advised that the pain and fever are only surgical symptoms which will be over in a weeks time; and also prescribed certain medicines. She has also produced the prescriptions, the bill of MTP charges etc. and also the report of the scan subsequently taken on the advise of doctor at SAT hospital. The suggestion that she has not meet the 2nd opposite party subsequent to MTP was denied. Suggestion that 13.4.98 she meet Dr.Jayanthi at 1st appellant hospital was also denied. The suggestion that Dr. Jayanthi advised to undergo scanning was also denied. There is no suggestion in the cross examination of PW1 that she had insisted for MTP as the elder child is too young. 9. PW2 the doctor, at SAT hospital who conducted MTP has proved Ext.P9 certificate with respect to the fact that complainant has undergone MTP. He has stated that when the MTP was performed the foetus had 17 weeks of growth. He has stated that it is possible that foetus may remain inside even after MTP. Such cases can occur when the MTP is done before 2 months of pregnancy or on account of the position of the foetus. The same can be ascertained on examination before conducting MTP. He has also stated that the success of MTP can also be ascertained by Histo Pathological examination or by scan. He has stated that at early stages of pregnancy after MTP is performed it may not be possible to assertain whether the MTP is successful. He has explained that early stage is within 6 weeks of pregnancy. He has also stated that basic MBBS qualification is sufficient for conducting MTP. It was also brought out in the cross examination that in the early stages foetus will be a mass of tissues and blood. Complete evacuation can be missed if there is twin sacs. It is also mentioned that review consultation with scan report is a must. 10. We find that on the basis of the evidence of PW2 it can be taken that there are possibilities that MTP may not be successful always. In the instant case MTP was performed at the stage of 8 weeks of pregnancy. Its version of PW1 is that she again went for consultation with the doctor but she was not advised to undergo scan. The counsel for the appellant has pointed out the discrepancy in her version in the complaint and in her testimony. In the complaint, it is contended that she has suppressed that she was advised to appear for check up. As per the complainant it is on account of severe back pain and fever that she consulted the doctor on 14.4.98. The opposite parties produced Ext.D9 lawyer notice sent by the complainant to the opposite parties wherein it is mentioned that she was advised to have a consultation after a week and accordingly on 14.4.98 she visited the doctor. We find that although the advise to having a consultation is not mentioned in the complaint she has testified as to the consultation done on 14.4.98. She was not confronted with Ext.D9 when she was examine in cross. It cannot be concluded that the same it is deliberately suppressed as the above fact is mentioned in Ext.D9 lawyer notice and as she was not questioned bringing to her notice the recital in Ext.D9. 11. DW1 has produced Ext.D6 case sheet. He is said to be the General Manager of the Hospital. He is not a person competent to explain the recitals in the case sheet. It was brought out that he is just SSLC passed. Of course it is mentioned in the case sheet which is a collection of loose unnumbered sheets that the complainant was advised for consultation after 5 days with scan report. The same also shows that on 13/4/98 she was examined by one Jayanthi and was advised for review with scan report. But in the absence of proof with respect to the genuineness of Ext.D6(a) case sheet, we find that the writings in D6(a) cannot relied on so as to disprove the version of PW1 the complainant. In the circumstance it has to be taken as proved that the complainant was not advised to appear for review with scan report as the version of PW1 stands not discredited. There is no direct evidence that the complainant was advised to appear for review with the scan report. It is also not explained as to how the complainant was examined by Dr.Jayanthi when MTP was performed by the 2nd opposite party. It cannot be held that MTP was conducted properly as the post MTP procedure for ascertaining the possibility of failure is an inevitable part of MTP conducted. In the circumstances we find that the 2nd opposite party has not bestowed adequate care expected of a doctor. In such situation we find that no interference is call for in the order of the Forum. All the same, the direction to pay interest at the rate of 16.5% is reduced to 12%, on the amounts excluding cost. Liability to pay interest will be from the date of the order of the Forum. The amounts shall be deposited within 2 months of receipt of this order. Appeal is disposed of accordingly. JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER | 
