IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 2/09 DATED 07.07.2009<br /> ORDER<br /> <br /> Complainant 1. B.S.Jagadeesha, S/o Siddashetty,<br /> 2. B.J.Shobha, D/o B.S.Jagadeesha <br /> 3. B.J.Bharathi,D/o B.S.Jagadeesha<br /> 4. B.J.Hemraj, S/o B.S.Jagadeesha, <br /> All are R/at Bhuvanahalli Village, Bettadapura Hobli, Periyapatna Taluk.<br /> (By Sri.V.M.Prasad., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Administrator,<br /> 2. Dr.Devaraju,<br /> 3. Dr.Nalini.P., H.O.D., Obstarician and Gynecologist, O.P.1 to 3 are - Shreedevi Nursing Home, No.1, 2 & 3, RCES Colony, Bogadi II Stage, Mysore.<br /> 4. The Administrator, <br /> 5. Dr.Meena Saradeshpande,<br /> Resident Medical Officer, <br /> O.P.4 and 5 are - Basappa Memorial Hospital, 22/B, Vinobha Road, <br /> Jayalakshmipuram, Mysore-12.<br /> (By Sri.Raghunatha.K.C., Advocate for O.P.1 to 3 and <br /> By Sri.J.S.K., Advocate for O.P.4 and 5)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 02.01.2009<br /> Date of appearance of O.P. : 22.01.2009<br /> Date of order : 07.07.2009<br /> Duration of Proceeding : 5 MONTHS 15 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainants who have brought this complaint against the opposite parties is, that the first complainant is the husband of Smt.Puttalakshmamma and complainants No. 2 to 4 are their children. That deceased Smt.Puttalakshmamma had undergone Laparoscopic Sterlisation on 23.04.2001 at Government Hospital, Mangalore, but it was not sterilized. After gap of four years she conceived. On 01.08.2008 she was admitted to first opposite party hospital. Second and third opposite parties have done Lower Segment Caesarean Section (L.S.C.S.) and a live male baby was born. After L.S.C.S., the deceased developed hypotension with reduced urine output, then she was discharged from the first opposite party hospital on 02.08.2008 and was recommended to the fourth opposite party hospital for further management on the same day. That on instructions of the third opposite party inserted Bilateral Uterine Catheter to locate the reason for the low output of urine. On 12.08.2008 she was referred to abdomen C.T. scan, which revealed a long segment of ischemic fistula bowel with thick wall necrosed into internal fistula communicating with peritoneal cavity. Then the fifth opposite party started treatment, but unfortunately she died on 15.08.2008. That ischemic bowel was necrosed to internal fistula, probably that has happened in the course of dissection of uterus, the sharp pointed tip of scissors have pierced the small intestine bowel. This injury was caused due to negligence of second and third opposite parties, who did not disclose the same to the attendents of the patient or to the fourth opposite party, but to escape from their liability, they have referred the patient to fourth opposite party, by that time B.P. had come down and urine was reduced. Then fifth opposite party referred the deceased to C.T. scan, which revealed thick wall small intestine bowel was necrosed. Due to the said fistula fluid was fed it on the left side and over and above around uterus. That due to negligence of the opposite parties, the deceased died on 15.08.2008. That due to negligence of the opposite parties, the complainants suffered loss of Rs.2,50,000/- spent for treatment and he mentally suffered and thereby have prayed for medical expenses of Rs.2,50,000/-, Rs.5,00,000/- towards mental agony, Rs.3,00,000/- for loss of consortion, loss of love and affection Rs.2,00,000/-, and Rs.5,00,000/- towards loss of estate and stated that complainants No. 2 to 4 have lost their love of their mother and have prayed for relief as sought for.<br /> <br /> 2. The opposite parties 1 to 3 have filed their common version and claimed to have no personal knowledge of the allegations made in para 3 of the complaint, have denied to have detected the sex of the baby unlawfully as alleged in para 5 of the complaint. Denying that the deceased had visited them for periodical checkup stated that the complainant had visited them thrice for prenatal checkup. Admitted that on 01.08.2008 they did L.S.C.S. on the deceased and to extracted a male baby and stated that after L.S.C.S. the condition of the deceased deteriorated due to hypotension and reduced urine output and in the interest of the patient they recommended the deceased to fourth opposite party hospital for further management and denied any sort of negligence at their end while doing L.S.C.S. and treating the deceased. These opposite parties have denied that ischemic bowel was necorsed leading to internal fistula during the course of L.S.C.S. with a sharp pointed tip of scissors and that they did not disclose the problem of the deceased to the complainants and recommended the patient to fourth opposite party to escape from their liability. On the other hand, these opposite parties have stated that after knowing that the health of the deceased was deteriorating, B.P. and pulse could not be recorded they in the interest of the deceased recommended to fourth opposite party hospital for further management. They have denied that the complainant incurred expenditure of Rs.2,50,000/- for medical treatment due to their negligence and also denied the claim of the complainants for the relief. The fourth opposite party has given death summary as ischemic bowel necrosed was internal fistula, but fourth opposite party has not stated under what circumstances that cause of death would have happen and the fourth opposite party has not specifically stated the reason for this. The opposite parties have stated that ischemic bowel necorsed internal fistula is nothing but reduced blood supply to the particular organ or part in the human body, then due to reduction of the blood to the particular organ there will be reduced supply of oxygen, and nutrition to that particular area, which leads to necrosis and it further lead to fistula, which has not happened at their end. These opposite parties denying all allegations of the complainants regarding their negligence have stated that L.S.C.S. was done smoothly and efficiently, but when a post-operative stage was deteriorating in order to save the deceased they referred to fourth opposite party and stated that ischemic bowel necrosing with internal fistula may happen for several reasons by further contending that they have rendered free service to the deceased. There is no relationship of consumers and service providers and stated that the complainant approached them for financial assistance they have voluntarily paid Rs.2,50,000/- through a cheque, but the complainant suppressing all these facts, has filed this complaint. These opposite parties have further stated that they have professional indemnity in New India Assurance Co. and third opposite party has professional indemnity in that company, but the complainant has not filed complaint against such Insurance Company and stated that the complaint is bad for non-joinder of that Insurance Company and by denying their liability have prayed for dismissal of the complaint.<br /> <br /> 3. Fourth and fifth opposite parties have also filed their joint version contending that Dr.C.B.Murthy who is the Administrator of fourth opposite party is a Senior Reputed Surgeon and that fifth opposite party is a Specialist in Gynecology having long experience. Denying their knowledge about allegations made in para 3 and 4 and part in para 5 of the complaint have admitted that deceased was taken to their hospital on 02.08.2008, that fourth opposite party inserted Bilateral Uterine Catheter to locate the reason for low output of urine. Further admitted that the deceased died in their hospital on 15.08.2008. It is further stated that on 02.08.2008 at 2.15 pm the deceased was taken to their hospital with pulse and blood pressure not recordable, the patient was disoriented was therefore taken to critical care unit and was treated. Then they discussed with Dr.Devaraju the second opposite party who told them that there was no intra-operative problem, vaccu flux drain was put into the peritoneal cavity to drain out fluid and there was no necessity for surgery at that time. That ultrasound scan of abdomen was done on 02.08.2008 revealed that all the organs were normal with minimal fluid, then fluid management was carried out and line of treatment was continued. On 05.08.2008 Cystoscopy and Ureteroscopy was done, which revealed no injury to ureters and bladder and continued with the antibiotics. From 08.08.2008 general condition of the patient was not satisfactory, ultrasound scan of abdomen showed around 1000 ml of fluid. On 11.08.2008, the peritoneal cavity drain fluid looking little turbid? faecal contamination shown long segment of bowel was thickly necrosed. Then they decided to have exploratory Laparatomy, her condition would not allow a major surgery and was very risky, but she needed it. The same was explained to the relatives with the consent, which revealed there was perforation of about 3 cms in ileum, edges of which were necrosed. Peritoneal cavity was filled and smeared with faecal matter. There were adhesions. After trimming the edges perforation was closed. Adhesions released and necessary treatment was given. But, the condition of the deceased was deteriorating in spite of the best care and all emergency measures but she died at12.25 am on 15.08.2008. These opposite parties stating that they have taken all best care for treatment to revive the patient but she collapsed and thereby stated there was no negligence on their part and thus have prayed for dismissal of the complaint.<br /> <br /> 4. In the course of enquiry into the complaint, the first complainant has filed his affidavit evidence reproducing what he has stated in his complaint. He has been subjected to cross-examination by the counsel for opposite parties 1 to 3. The second and third opposite parties have filed their affidavit evidence reiterating what has been stated in their version. The second and third opposite parties have been subjected to cross-examination by the counsel for the complainants. On behalf of fourth and fifth opposite party one Dr.C.B.Murthy and fifth opposite party have filed their affidavit evidence re-asserting what has been stated in their version. Dr.C.B.Murthy and fifth opposite party have been subjected to cross-examination by the counsel for the complainants and counsel for opposite parties 1 to 3. The complainants have produced medical bills. Opposite parties have produced the case sheets of their respective hospitals touching the treatment of the deceased Smt.Puttalakshmamma. Heard the counsel for both the parties and perused the records.<br /> <br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the complainants prove that deceased Smt.Puttalakshmamma died due to negligent medical treatment by the opposite parties?<br /> 2. To what relief the complainants are entitled to?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : In the negative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The complainants in this complaint attributed medical negligence in treating Smt.Puttalakshmama against the Nursing Home and its doctors namely opposite parties 1 to 3 and also against the hospital and doctor of opposite parties 4 and 5. The deceased was first taken to first opposite party Nursing Home for delivery and was admitted to that Nursing Home on 01.08.2008 and that second and third opposite parties did L.S.C.S. and alive male baby was extracted and they found that the patient developed hypertension and reduced urine output, therefore they for further management discharged the patient recommending to the fourth opposite party hospital and on 02.08.2008, and the deceased was admitted was in the fourth opposite party hospital till she died on 15.08.2008. The complainants in their complaint and also in the affidavit evidence have alleged that ischemic bowel was necrosed to internal fistula and probably it had happened at first opposite party Nursing Home in the course of decestion of uterine, the sharp pointed tip of scissors pierced the small intestine bowel and stated that these injuries were caused by the second and third opposite parties due to their negligence in doing L.S.C.S. and further alleged that second and third opposite parties to escape from their negligence referred the deceased to fourth opposite party hospital. With this, we shall examine whether the complainants have proved any negligence of second and third opposite parties in conducting L.S.C.S. in their Nursing Home that is first opposite party and they are liable to compensate the complainants. <br /> <br /> 8. The complainants except filing their affidavit evidence through the first complainant reproducing what they have stated in their complaint have not been able to invite our attention to any material on record including line of treatment and method of doing L.S.C.S. by second and third opposite parties have not producing reliable evidence to demonstrate their negligence. The complainants have also not adduced any expert evidence to prove their point against the second and third opposite parties. Further we on going through the case sheet of first opposite party and the evidence that second and third opposite parties have adduced, we find no proof to prove that second and third opposite parties were negligent in their act while treating the deceased. The second and third opposite parties have been even subjected to cross-examination by the counsel for the complainants. In the cross-examination of these two opposite parties, we find no answer elicitate to even remotely connect them to the case for the death of the deceased. The third opposite party in his cross-examination admitted to had paid certain amounts to the complainants towards medical expenditure of the deceased to be met by the complainants on request, but deny the suggestion that this third opposite party paid money to the complainants when the reatives of the deceased went and quarreled with them, because of the death of the deceased due to negligence of these second and third opposite parties. These two opposite parties further clarify that when the complainants told them to have no money for further treatment and deceased had come to their hospital through a known person, on the request, they stated to have paid certain money to the complainants for medical expenditure. Even then we find nothing is elicitate in the cross-examination of these two opposite parties to demonstrate that there was any negligence on their part while treating the deceased. The third opposite party has not independently handled the deceased in the process of L.S.C.S., but she had assisted to second opposite party in the process. Therefore, on perusal of the entire material evidence placed by the complainants before us, it is not possible to hold that the second and third opposite parties were negligent in treating the deceased in their Nursing Home. This apart admittedly on the next day after the L.S.C.S. was done second opposite party finding some abnormalities in the health of the deceased, immediately referred the patient to fourth opposite party for further management. Therefore, necessarily when fourth opposite party got the patient admitted and that being major hospital while diagnosing the problem of the patient must have found out the cause for the deteriorating health of the deceased and whether there was any improper treatment or error in the line of treatment committed by second and third opposite parties and therefore we shall refer to the stand and defence of fourth and fifth opposite parties, which may help us to find out whether there was any negligence on the part of second and third opposite parties.<br /> <br /> 9. The fourth and fifth opposite parties in their version and also in their affidavit evidence have admitted that on admitting the deceased to their hospital on 02.08.2008 at 2.15 pm they contacted the second opposite party to know whether there was any intra-operative problem, because of critical condition and abdominal distension of fluid as it was thought to be internal bleeding, for which the second opposite party confirmed that there was no intra-operative problem. Thereafter, the fourth and fifth opposite parties have stated that on 02.08.2008 ultrasound scan of abdomen of the patient was done, which revealed that all the organs were normal with minimal fluid. They have further stated, to rule out any injury to the uterus and bladder even an Urologist was called upon to examine the patient. Cystoscopy and Ureteroscopy was done on 05.08.2008, which revealed no injury to uterus and bladder and bilateral ureteric stents were kept for pentro drainage. These observations of fourth and fifth opposite parties based on ultrasound scan and other tests done clearly prove that there was no intra-operative problem with the deceased and no injury was caused by the second and third opposite parties to any internal organs of deceased when they did L.S.C.S. If at all if second and third opposite parties had done any injuries in the process of L.S.C.S. or caused any other negligent act of omission that could have been definitely noticed by the fourth and fifth opposite parties when they, after admitting the patient started necessary tests and diagnosis. But, fourth and fifth opposite parties have categorically admitted in their version and affidavit evidence to have not noticed any such negligent injuries caused by the second and third opposite parties. Added to this, second and third opposite parties have categorically stated and produced the case sheet to show that they had adopted all precaution, taken care and were diligent in conducting L.S.C.S. and when they found there is change in the B.P. and pulse beating with abdominal distension, they without loss of any time referred the patient to the fourth opposite party hospital, which shows that second and third opposite parties are no negligent in doing L.S.C.S. and thereafter in referring the patient to major hospital the fourth opposite party.<br /> <br /> 10. Coming to the allegations of the negligence against the fourth and fifth opposite parties are concerned. It is unfortunate that the wife of the first complainant and mother of the other complainants who was aged about 39 years at the time of death underwent L.S.C.S. at first opposite party hospital on 01.08.2008 and was referred to fourth opposite party hospital on 02.08.2008 for further management died on 15.08.2008. The complainants who have come up with this complaint have attributed negligence to opposite parties no. 1 to 3 on one hand and fourth and fifth opposite parties on the other hand. But, as evident from their complaint allegations, affidavit evidence and documents produced they are not able to attribute any specific kind of negligence or omission against these opposite parties to nail there for any negligent act or omission. What we mean is, it is not the definite case of the complainants that second and third opposite parties were negligent while conducting L.S.C.S. and that has resulted in the death of the deceased. However, it was argued by the learned counsel appearing for the complainants that second and third opposite parties as if have caused injuries to the bowel of the deceased while conducting L.S.C.S. and they in order to evade their liability referred the patient to fourth opposite party and he further argued that fourth and fifth opposite parties who received the patient on 02.08.2008 failed to diagnosis the cause for abdominal distention, absence of bowel sound and without adhering to the necessary tests done for finding out the cause for peritonitis, delayed the case and had chosen to subject the deceased to exploratory laparotomy on 13.08.2008 and by that time, the condition of the deceased had become worst, and stated fourth and fifth opposite parties should have chosen to do exploratory laparotomy even earlier to 13.08.2008 and that delayed exploratory laparotomy done could not save the deceased and submitted if exploratory laparotomy was done earlier, perforated bowel could have been managed. <br /> <br /> 11. In support of our observation, that the complainants were not aware of any negligence or omission caused by any of these opposite parties and they only at the time of preparing this complaint have attempted to attribute the same to both the opposite parties, it is necessary to the complainant has been subjected to cross-examination of the first complainant by the counsel for opposite parties 1 to 3. The first complainant in his cross-examination has admitted that he has not produced any proof to prove that injury was caused by opposite parties 1 to 3 during L.S.C.S. procedure. This witness further in cross-examination by fourth and fifth opposite parties has stated he has no knowledge of nature of treatment given by the fourth and fifth opposite parties and further stated that he do not know that fourth and fifth opposite parties had given correct treatment to his wife and they are at no fault. With this it manifests that the complainants are not in a position to nail the opposite parties to any negligence. The complainants have also not chosen to examine any expert or experts to prove their allegations against the opposite parties. The Hon’ble Supreme Court and Hon’ble National Commission with regard to the allegations of negligence or deficiency in the service of medical professionals have repeatedly held as “Negligence is the breach of a duty caused by omission to do some thing, which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing some thing, which a prudent and a reasonable man would not do”. With this settled proposition we shall find out whether the complainants have proved the negligence of fourth and fifth opposite parties by scrutinizing the treatment followed by the fourth and fifth opposite parties in their hospital on admitting the deceased to their hospital in the afternoon of 02.08.2008.<br /> <br /> 12. On admission of the deceased to fourth opposite party hospital at 2.15 pm on 02.08.2008, as evident from the entries in the case sheet, it is recorded that the condition of the patient was very poor, was in a state of shock, peripheries cold and clammy, pulse and B.P. not recordable and she was disoriented. The fourth and fifth opposite parties did necessary investigation of blood electrolytes etc., Urologist and Nephrologist were called immediately intra-peritoneal aspiration and 300 ml of brownish fluid was aspirated and drain tube introduced. Again 1200 ml liquid drained out, IV fluids given and treated with all the necessary medicines through IV, blood transfusion was given, patient was on septic shock. At 9 pm ultrasound was done, it showed free fluid in the abdomen and suspected peritonitis (mild collections). Treated with noradrenalin, vasopressin, antibiotics were given. On 03.08.2008 treatment continued, patient was hypothermic and hypotensive, B.P. was 110/70, tachycardia + abdomen soft, uterus well contracted, continuous monitoring of vitals done in ICU, dopamine, noradrenalin was given. Patent developed fever 100o F. in the morning and 103o F at 7 pm, adequate urine output was there. On 04.08.2008 patient was stable, adequate urine output, mild rigidity in the abdomen, bowel sound absent, IV fluids, dopamine, noradranaline, vasopressin, metrogyl, tazaar, etc., were given, B.P. was 120/80, renal function stable, blood sent for cultural sensitivity, and drain fluid was sent for analysis, which showed albumin 3+, bacteria, pus cells, epithelial cells and amopherous urate deposits. Urine was sent for cultural sensitivity, all specialists were monitoring. On 05.08.2008 same treatment continued, drain fluid creatin – 80, urine creatin - 200, B.P. was 140/80, temperature 100.8o F, cystoscopy and ureteroscopy done for which, high risk consent was taken. On 06.08.2008 general condition fair, B.P. 150/100, bowel sounds not heard, urine output was 31 – 40 ml per hour, drain was 100 ml, urine albumin 3+, patient was dis-oriented, temperature normal, treated with antibiotics and other IV fluids etc., On 07.08.2008 patient remained dis-oriented, urine output 40 – 50 ml per hour, drain 1800 ml, treatment continued + pantocid, tazaar, metrogyl, antibiotic, netromax, B.P. 130/80, oedima – mild. On 08.08.2008 patient was better, adequate urine output, high colored fluid of 2600 ml was drained from peritoneal cavity, tongue was dry, oedima or right upper limb noticed, B.P. 130/80, other treatments continued. On 09.08.2008 general condition not satisfactory, drowsy disoriented, B.P. 140/90, abdominal distension present, IV fluids and other treatments continued, physiotherapy of limbs continued, drain was 1400 ml, urine output 30 – 25 ml per hour. On 10.08.2008 patient dis-oriented, B.P. 140/90, treatment continued, chest and limb physiotherapy done, B.P. was 110/60 by evening. On 11.08.2008 patient was drowsy, dis-oriented, physiotherapy, IV fluids and other treatments continued. Blood transfusion done. Oedima of legs seen, B.P. 110/70. Faecal peritoneal drainage seen and symptoms of sepsis found. On 12.08.2008 same situation continued, B.P. 130/80 planned for exploratory laparotomy, C.T. scan done, all other treatments continued. On 13.08.2008 patient was conscious, some times drowsy, B.P. 110/70, laparotomy was done and perforation was sutured, peritoneum was cleared, all other treatment continued, ventilatory support given. Morphin injection given, temperature was 102o F, patient became haemodynamically unstable, had loose motion, generalized oedima, no urine output, B.P.80/?, patient paralysed on ventilator, developed symptoms of severe metabolic acidosis treated with all emergency medicines. General condition became bad, progress was poor and it was explained to relatives, continuous monitoring done. At 9.15 am heparin and cvv HD given, at 10.00 am right femoral vein canulated, patient was through out monitored, patient was paralysed on ventilator at 3.30 am, at 10.15 pm tracheal suctioning done, adrenalin given, at 11.45 pm patient had bradycardia, pulse and B.P. not recordable, pupil dilated, no cardial activity, patient died at 12.25 am on 15.08.2008.<br /> <br /> 13. As evident from the moment the deceased got admitted to fourth opposite party hospital has been monitored by fourth and fifth opposite parties after finding non-recordable B.P., pulse and treated with fluctuation of the B.P. was even subjected to ultrasound scanning and suspected peritonitis and antibiotics with IV fluid. It is in the course of this management, the B.P. and other conditions of the patient found improving by 04.08.2008, her health became stable, same treatment was continued and the general condition by 06.08.2008 was fair, though the patient dis-oriented found better even on 08.08.2008 and her general condition was found satisfactory on 09.08.2008 and was treated with same line of treatment till 12.08.2008. But, on 13.08.2008 continuing the same treatment, exploratory laparotomy was done and perforation of the bowl was sutured. It is noticed that fourth and fifth opposite parties after starting the better known line of treatment found improvement in the health of the deceased and thereby continued the line of treatment, they had chosen. It is further noticed that all the tests done by fourth and fifth opposite parties in their hospital did not reveal any injury, or abnormality could not thought of any other line of treatment, or subjecting for exploratory laparotomy. These opposite parties on noticing the faecal peritoneal drainage and symptoms of sepsis planned for exploratory laparotomy and C.T. Scan On 13.08.2008. It is gathered from the case sheet when the patient was being monitored, the fluid drained out, did not give any symptoms of faecal matter or change in the colour of that fluid, prompting fourth and fifth opposite parties to go for exploratory laparotomy, which is nothing but a risky choice for explorating the cause for peritonitis and that fourth and fifth opposite parties when they found faecal matter in the liquid drained out had to go for exploratory laparotomy and therefore, they cannot be find fault with in not choosing that process at early stage, as there was no symptoms of perforation of bowel detected from out of any of the tests done. Fourth and fifth opposite parties after following all known methods of treatment and the condition of the patient explored all the methods and that resulted in improvement in the condition of the patient, but when they started deteriorating they had to go for exploratory laparotomy and sutured, perforated bowel. These opposite parties by taking maximum risk have done the exploratory laparotomy, which was a well calculated risk in such a situation to repair the perforation. Therefore, on going through this method followed by fourth and fifth opposite parties, we find that there was no negligence on their part in treating the deceased.<br /> <br /> 14. The surgeon of fourth opposite party namely Dr.C.B.Murthy and fifth opposite party the Gynecologist have been subjected to cross-examination by the counsel for the complainants. The Gynecologist Dr. Meena Deshpandy in the cross-examination by the complainant’s counsel has stated that she suspected blood in the fluid extracted from peritoneal cavity, as it was brownish in colour, then they sent that fluid for cultural sensitivity and they started antibiotics immediately, which were broad spectrum antibiotics. She has further stated that Nephrologist was consulted to find out whether there was any injury to the urinary bladder who gave report of no injury to the bladder. Dr. C.B.Murthy in the cross-examination has stated on noticing collection of fluid in peritoneal cavity, they did not immediately go for C.T. scanning to identify the injury, but irrespective of the injury, they wanted to know the nature of the fluid, therefore, they put her a drain and drained out the fluid. To the suggestion of the counsel for the complainants that C.T. scan should have been taken immediately to identify the injury, the witness has answered that if there had been perforation in the intestine prior to 12th faecal matter could have come out through the drainage pipe but they did not notice it. Even in the cross-examination of these two witnesses, the learned counsel for the complainants has not been able to elicitate any answers or to point their negligence in treating the deceased. Therefore, on going through the answers given in the cross-examination of these two witnesses, it is clear that these doctors have followed, a line of treatment which was best in the circumstances and the position of the patient. Fourth and fifth opposite parties could not have opted for exploratory test and scan in the absence of any symptoms in the course of assessment of the patient. The evidence of these two witnesses also goes in corroboration with the line of treatment they have given and recorded in the case sheet, which will never points to their negligence. It is further found from the case sheet, that those opposite parties have availed the service of all the expert doctors of particulars specialization in treating the deceased. The complainants have not attributed anything about inefficiency of any of these opposite parties. As such we find no merits in the allegations of the complainants against these opposite parties also. <br /> <br /> 15. The complainants as we have already stated supra except their self styled allegations of negligence attributed to opposite parties have not been able to prove as to which opposite party and where and at what stage have caused negligence in treating the deceased. The learned counsel for complainants in the arguments reiterated that fourth and fifth opposite parties instead of doing exploratory laparotomy on 13.08.2008 could have done earlier and saved the patient. But, having regard to the recordings made in the case sheet by fourth and fifth opposite parties line of treatment given, and the answer given by Dr.C.B.Murthy in the witness box we do not find any substance in the contention of the counsel for the complainant, because when fourth and fifth opposite parties through out monitored the condition of the patient, though suspected peritonitis, but they never find any symptoms of perforation of bowel and presence of faecal matter in the fluid that being so, we cannot expect the fourth and fifth opposite parties to chose the exploratory laparotomy, which was a risky factor, which was unwarranted. Except this, the learned counsel representing the complainants has not been able to bring to our notice or invited our attention to any negligence of any of the opposite parties and to fastion them with the allegation of negligence. We, therefore having gone through the entire facts of this case are of the view that the complainants have failed to place any reliable evidence to demonstrate the negligence of the doctors. With regard to the issue of medical negligence of a medical professional the Hon’ble Supreme Court in a decision reported in 2009 (1) CCC page 184 between Ms. Ins. Malhotra Vs. A.Kirplani and others, in which the Hon’ble Supreme Court has observed as under:-<br /> “A case of occupational negligence is different from one professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”<br /> “The fact that a defendant charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge.”<br /> “It is not the case of the appellant that the doctors named in the complaint are not qualified doctors and specialized in their respective fields to treat the patient whom they agreed to treat. <br /> <br /> The Hon’ble Supreme Court by referring its earlier decision in Bolam’s case as coated the observation as under:-<br /> “It has been held that indiscriminate prosecution of medical professionals for criminal medical negligence is counter-productive and does no service or good to the society. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally.”<br /> <br /> 16. With this we are constrained to hold that the complainants have failed to prove the negligence of any of the opposite parties and therefore they cannot held liable to compensate the complainants. As the result, we answer point no.1 in the negative and pass the following order:-<br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 7th July 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />