Date of Filing      : 02.12.2019

                                                                                                                  Date of Disposal: 26.08.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                   .…. PRESIDENT

                 THIRU.J.JAYASHANKAR, B.A.,B.L.,                                                              .....MEMEBR-I

                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L.,                                    ....MEMBER-II

 

CC. No.49/2019

THIS FRIDAY, THE 26th DAY OF AUGUST 2022

 

Mrs.Kowasalya, W/o.K.R.Amarnath,

Plot No.36, 2nd Floor,

Nethaji Street, Kallikupam, Chennai -53.                                      ……Complainant.

                                                                               //Vs//

 

Sri Sai Subhramaniya Hospitals private Limited,

M/D.Dr.Anuradha,

No.5, Masilamaneswaran Street,

Thirumulaivayil,

(Behind Shiva Temple),

Chennai -62.                                                                                ..........Opposite party. 

 

Counsel for the complainant                                                     :   M/s.T.Lavanya, Advocate.

Counsel for the opposite party                                                 :   Mr.Dr.B.Cheran, Advocate. 

                         

This complaint is coming before us on various dates and finally on 04.08.2022 in the presence of M/s.T.Lavanya Advocate counsel for the complainant and Mr.Dr.B.Cheran, Advocate counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging medical negligence in the treatment against the opposit party along with a prayer to direct the opposite party to pay a sum of Rs.19,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.50,000/- towards vehicle charges for approaching the opposite party to the complainant. 

Summary of facts culminating into complaint:-

 

The complainant submitted that she was a hale and healthy working woman in Alagappa schools and got pregnant in the month of March 2019.  As she was already having a child aged one year she wanted to abort the pregnancy and consulted the opposite party in the last week of April 2019.  Immediately after examination the opposite party prescribed tablets for terminating the pregnancy.  As there was no response for the tablets the complainant again visited the opposite party’s hospital on 28.06.2019 and on the same day the opposite party examined the complainant and directed her to undergo Blood test and some other tests.  On 30.06.2019 the complainant shows the report to the opposite party who confirmed about the growth of some tissues and that the tablet did not react to the complainant.  It was further submitted that as the termination of pregnancy had not happened in a complete manner and some of the tissues around 0.38 mm was left over in the uterus, the opposite party has advised the complainant for D&C (Dilatation and curettage).  On 01.07.2019 D&C (Dilatation and curettage) was performed without any standard operating procedure and proper care that was expected from a standard hospital.  On the same day the complainant was discharged from the hospital.  It was further submitted that after D&C (Dilatation and curettage) procedure the complainant returned back to her job and on 23.07.2019 when she was doing her work sudden bleeding started and the bleedings was profuse and intermittent. Comprehending the danger the colleagues got admitted the complainant in the nearby hospital named KOLA SARASWATHI AGRAWAL SAMAJ HEALTH CENTER in Pursaivakam and the gynaecologist examined the complainant and injected the first aid injection to stop the prolonged and continuous bleeding and also directed the complainant to scan the uterus. On 02.08.2019 the complainant underwent a scan and in that report the radiologist found certain tissues stayed in the complainant’s uterus.  Immediately the complainant approached the opposite party who gave evasive reply and once again she approached KOLA SARASWATHI AGRAWAL SAMAJ HEALTH CENTER for proper procedure to clean the uterus.  Because of the negligence of service and lack of medical care by the opposite party she had to pass through a dreadful phase in her life and attained a lot of mental depression leading to disharmony and tension in the family and over all with physical injury.  Thus after issuance of legal notice the present complaint was filed for the following reliefs as mentioned below;

To direct the opposite party to pay a sum of Rs.19,00,000/- towards compensation for the untold hardship, inconvenience, mental agony and stress suffered by the complainant and proper Medical Expenses incurred by the complainant and Rs.50,000/- being money spent towards vehicle charges.

 Defence of the opposite party:

The opposite party filed written version contending inter alia that the complaint allegation was false, concocted, frivolous, vexatious and in-imaginary and devoid of truth.  It was submitted that there was no breach of duty or negligence of duty, good care and professional skill in managing the case of the complainant.  It was submitted that the complainant approached the opposite party as an outpatient on 27.04.2019 with 34 days amenorrhoea. As the first baby was one year old she wanted to terminate the pregnancy.  The complainant had history of diabetes during first pregnancy and also she was suffering from hypertension, asthma, epilepsy.  When as the urine pregnancy test was positive Transvaginal Ultrasound pelvis was advised as it was very early pregnancy. Scan was done on 27.04.2019 which showed single intra uterine gestation of six weeks.  As the patient wanted termination of pregnancy by tablet method the opposite party was explained the side effects and chances of incomplete abortion to her.  The patient belongs to A1 B-ve blood group.  She will require Inj.Anti “D” 150mg IM and the same was also explained.  She was asked to take T.Abortab (mifepristone) 200 Mg (3) orally on 27.04.2019.  The patient was told that she may have lower abdominal pain, vomiting and was given T.Meftal Spas & Cap.pan “D” for that.  She was asked to come on 29.04.2019.  Tablets of 200mg of T.Sitotec (misoprostol) was kept in posterior fornix of uterus and (2) tablets of 200 mg T.Zitotec (misoprostol) was to be taken orally. Tablets were not injected into the uterus as stated in the complaint.  She was told that she may have lower abdominal pain, vomiting, fever like sensation.  Bleeding PV will start after 6 to 8 hours of keeping tablet in posterior fornix.  The patient was asked to come for check scan on 30.04.2019 to know completeness of expulsion.  The patient had bleeding PV after viginal misoprostol.  She did not come for check scan on 30.04.2019 as advised but came only on 28.06.2019 informing that there was no response for the tablets.  As the complainant complained of white discharge PV history of foul small she was examined and tablets were given. The urine pregnancy test was repeated and was found to be negative.  Hence pregnancy test in blood was advised (BHCG) report was brought on 30.06.2019 and the retained product was indicated and thus the opposite party advised D&C (Dilatation and curettage). Normal non pregnant value for BHCG was 0.1 to 5.  On 01.07.2019 at 11.00 am D&C (Dilatation and curettage) was done under IV sedation. Anaesthetist was Dr.C.B.Anandhi DA., D&C was done by opposite party.  On 01.07.2019 Inj.Anti ‘D’150 mg. IM was also given and on the same day at 07.00 pm the patient was discharged with Antibiotics, analgesics and Iron tablet. The patient was asked to come for review after one week but she did not come. If the complainant would have came for review the retained product would have been expelled which was found in the scan report dated 02.08.2019 which showed ill-defined and irregular heterochoic lesion measuring 0.38 mm-possibly retained products of conception. Large irregular hyper echoic structures in vagina are likely to be clots. As the patient’s husband wanted advice over telephone, the opposite party advised for D&C (Dilatation and curettage) along with blood transfusion. But they did not come back.  Thus stated that the opposite party did not commit any omissions or commission the opposite party sought for the dismissal of the compliant

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.16 were marked on their side.  On the side of opposite party proof affidavit was filed and documents Ex.B1 & Ex.B2 were marked.

 Point for consideration:

Whether the opposite party had performed incomplete D&C resulting in medical negligence and deficiency in service?

If so to what reliefs the complainant is entitled?

Point:1

On the side of complainant the following documents were filed for proving the complaint allegations;

Ultra sound scan report dated 27.04.2019 was marked as Ex.A1;

Appollo Lab Prescription and Report with bill dated 28.06.2019 was marked as Ex.A2;

Blood Test Report (Anishaa Lab) dated 30.06.2019 was marked as Ex.A3;

Pharmacy Bill dated 01.07.2019 was marked as Ex.A4;

Discharge summary from Sri Sai Subhramaniya Hospitals private Limited dated 02.07.2019 was marked as Ex.A5;

 Opposite party prescription and consulting fees bill dated 06.07.2019 was marked as Ex.A6;

Pharmacy bill dated 06.07.2019 was marked as Ex.A7;

Scan report from Anderson Diagnostics & Lab dated 02.08.2019 was marked as Ex.A8;

Anderson Diagnostics & lab receipt dated 02.08.2019 was marked as Ex.A9;

Discharge summary Kola Saraswathi Agarwal Samaj Health centre dated 03.08.2019 was marked as Ex.A10;

Pharmacy Bill dated 03.08.2019 was marked as Ex.A11;

IP Cash Bill dated 03.08.2019 was marked as Ex.A12;

Medical certificate dated 19.08.2019 was marked as Ex.A13;

Legal notice dated 21.10.2019 was marked as Ex.A14;

Acknowledgement card was marked as Ex.A15;

Reply notice issued by the opposite party dated 02.11.2019 was marked as Ex.A16;

On the side of opposite party the following documents were filed in proof of their contentions;

Copy of Case Sheet of complainant was marked as Ex.B1;

  B) Copy of consent form was marked as Ex.B2;

Arguments of complainant:-

Heard the oral arguments of both parties, it was the case of the complainant that she approached the opposite party for termination of pregnancy and that after examination tablet was given and as it did not work out, D&C (Dilatation and curettage) was performed.  Thereafter the complainant suffered abdominal pain and it was found that 0.55 mm was left in the uterus.  On 01.07.2019 D&C (Dilatation and curettage) was performed and on the same day the complainant was discharged.  On 28.07.2019 again the complainant had profuse bleeding and she was admitted her to a nearby hospital and after that a scan was taken and it was found that some tissues were left for which she has to undergo 2nd time D&C (Dilatation and curettage).  It was argued that as per Ex.A8, after performance of D&C (Dilatation and curettage) by the opposite party there were some retained products and hence the complainant cited the decision rendered by the Supreme Court in Poonam Verma Vs Ashwin Patel & other reported in (1991) 4 SCC 322, and argued that as per the principle res ipsa loquitor the 2nd D&C (Dilatation and curettage) performed shows that the 1st D&C (Dilatation and curettage) done by the opposite party was not carried out properly and there was negligence and deficiency in service committed by the opposite party.  Thus, in crux, it was argued that the complainant who was a hale and healthy working woman in Alagappa schools was made jobless due to the medical negligence committed by the opposite party.  The complainant also submitted that the failure of the doctor and hospital to discharge their obligation amounted to tortuous liability.  The decision rendered in the case of Dr.Laxman Balkrishna Johsi Vs Dr.Trimbark Babu Godbole and Anr, reported in 1969 SC 2018 and A.S.Mittal Vs The State of U.P reported in AIR 1989 SC 1570 when a doctor is consulted by a patient, the doctors owes to his patient certain duties which are (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give and (C) dereliction of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.  Here it is clearly shown that the opposite party had failed to fulfil its duties to the patient in and on time. Due to carelessness of the opposite party, the complainant suffered huge blood loss on 02.07.2019 which proves the negligence of the opposite party.  The landmark case of Pooja Sharma & Ors Vs Maharaja Agrasen Hospital & Ors was also referred by the complainant to show that a hospital is also liable for negligence.  Wherein the bench of Justices UU Lalit and Indu Malhotra had observed that it is common knowledge that when a patient visits a hospital, they do so because of the facilities and reputation and in the belief that the hospitals authorities will provide adequate treatment.  If the hospital fails to carry out its responsibilities via its physicians, whether they are hired on a job or on a contract basis, the hospital must defend the acts of commission or omission on behalf of their doctors. So here the hospital management is also liable to be prosecuted. Thus in short the complainant relied on the principle of res ipsa loquitor for proving the medical negligence committed by the opposite party.

Arguments of opposite party:-

On the other hand the counsel appearing for the hospital stoutly denied the allegations of medical negligence imposed on them by the complainant contending inter alia that the complainant was admitted as an outpatient for termination of the pregnancy first by taking tablet and second by performing D&C (Dilatation and curettage).  The opposite party submitted that it is the case of the complainant that the tablet prescription was improper. It was further submitted that the D&C (Dilatation and curettage) is a blind procedure and only mild to moderate force will be applied for cleaning the product without damaging the uterus for which he cited the decision rendered in Jacob Mathew Vs State of Punjab & Another dated 05.08.2005, wherein it has been stated that the doctor has to choose less harmful procedure.  As in this case the D&C was performed to the complainant at an early stage, it has to be done very carefully as the product is very minute and in this case its 0.3mm.  He further argued that it was not pleaded and established that the procedure performed by the opposite party is not a proper procedure.  The doctors of the 2nd hospital were not examined and hence the certificate issued by them could be relied upon.  It was further submitted by the learned counsel that medical negligence could be decided by success or failure of the procedure and sought for the dismissal of the complaint.

We heard the oral arguments and perused the evidences produced by both parties.  This commission hold that no medical negligence could be attributable towards the opposite party for the following reasons;

Though it was submitted by the complainant that she had profuse and intermittent bleeding on 23.07.2019 and was admitted in Kola Saraswathi Agrawal Samaj Health Center, as per records after taking treatment she was sent to home on the same day with an advice for taking scan of the uterus. Further it was seen that the scan was taken only on 02.08.2019 after 10 days of the occurrence and hence it evident that the allegations of seriousness as expressed by the complainant was exorbitant and unbelievable.  If it is such a serious situation on 23.07.2019, on the same day scan should have been taken.

Further with regard to the submission of the complainant that the present case comes under the principle of res ipsa loquitor to prove the negligence on the part of the opposite party,  the opposite party had submitted that the said principle could not be applied and also cited the decision rendered in BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE (Vs) ASHA JAISWAL & ORS in their support wherein the fact that every death of a patient could on the face of it be considered as medical negligence was discussed and held as follows;

“It is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.  To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered.  The negligence alleged should be so glaring, in which even the principle of res ipsa loquitor could be made applicable and not based on perception.  In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence as referred in Dr.Harish Kumar Khurana  Vs Joginder Singh & Others reported in 2021 SCC online SC673”. Thus, the principle ‘res ipsa loquitor’ could not be applied blindly to the facts of the present case.

The arguments advanced by the opposite party was found to be in their support that as per section 8 of the Medical Termination of Pregnancy Act 1971, no suit or legal proceedings shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything, which is done in good faith.  The principle lay down in Dr.Mrs.Gayathi S.Bhatwal Vs Smt.Mangala Shirish Dhake reported in 2006 (3) CPR 98 squarely applies to the present case wherein it had been held that for an unsuccessful operation for medical termination of pregnancy where doctor had conducted operation without any apparent negligence, consumer complaint was not maintainable by virtue of Section 8 of Medical Termination of Pregnancy Act.

With regard to allegation that when the complainant came back for review after D&C was performed on 01.07.2019, no scan was advised by the opposite party, the opposite party replied that when the complainant came back for review she was asked whether there is any pain and as no pain was reported they advised that normal periods would come next month.  Also it was submitted that for review the complainant came back immediately within 4 days and as the scan has to be performed after one week or 10 days it was not advised to the complainant. The reply given by the opposite party seems to be acceptable in the facts of the case.  Further as per Ex.A6 which is the supportive document for the complainant to show that the complainant came back for review on 06.07.2019 we could see that medicine was prescribed which was purchased by her vide Ex.A7.  Thus reply made by the opposite party that if at all the complainant had made complains of pain or bleedings they would have suggested otherwise seems acceptable.

The opposite party had advised complainant to take T.Abortab (mifepristone) 200 mg (3) orally on 27.04.2019 and as she has complaints lower Abdominal Pain, Vomiting and she was given T.Meftal Spas & Cap. Pan”D”.  Further fluconazole was also prescribed by the opposite party.  Thus the complainant had no grievance and had not made any allegations against the prescription of the above tablets.  Hence the opposite party had prescribed proper medicines only as per the acceptable norms for medication of termination of pregnancy.

Finally the contention of the opposite party is that if at all the complainant had approached them for second time after having found that certain parts are left out in the uterus they would have done corrective procedure is also to be accepted for the reason that even the complainant herself had admitted that only over phone the complainant’s husband approached the opposite party and she did not come in person for taking treatment.

 For the above mentioned reason we could safely hold that no medical negligence could be attributed to the procedure followed by the opposite party in carrying out Termination of the Pregnancy as requested by the complainant and hence no deficiency in service was proved on the side of opposite party by the complainant by acceptable evidences. 

Point No.2:

As we have arrived at a conclusion that no negligence and deficiency in service was proved by the complainant against the opposite party the complainant is not entitled any reliefs.  Thus we answer the point accordingly. 

In the result the complaint is dismissed.  No order as to cost.  

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 26th day of August 2022.

 

 

     -Sd-                                                   -Sd-                                                          -Sd-

MEMBER-II                                    MEMBER -I                                            PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 27.04.2019 Ultra sound scan report. Xerox

Ex.A2 28.06.2019 Appollo Lab (prescription and Report with bill). Xerox

Ex.A3 30.06.2019 Blood Test Report (Anishaa Lab). Xerox

Ex.A4 01.07.2019 Pharmacy Bill. Xerox

Ex.A5 02.07.2019 Discharge summary from Sri Sai Subhramaniya Hospitals Private limited. Xerox

Ex.A6 06.07.2019 Opposite party Prescription and consulting fees bill. Xerox

Ex.A7 06.07.2019 Pharmacy bill. Xerox

Ex.A8 02.08.2019 Scan report from Anderson Diagnostics &lab. Xerox

Ex.A9 02.08.2019 Anderson Diagnostics &Lab receipt. Xerox

Ex.A10 03.08.2019 Discharge summary Kola Saraswathi Agarwal Samaj health Centre. Xerox

Ex.A11 03.08.2019 Pharmacy Bill. Xerox

Ex.A12 03.08.2019 IP Chash Bill. Xerox

Ex.A13 19.08.2019 Medical certificate. Xerox

Ex.A14 21.10.2019 Legal notice. Xerox

Ex.A15 .............. Acknowledgement card. Xerox

Ex.A16 02.11.2019 Reply notice. Xerox

 

Document filed by the opposite party:-

 

Ex.B1 27.04.2019

          to 01.07.2019 Copy of case shee of the complainant. Xerox

Ex.B2 01.07.2019 Copy of consent form. Xerox

 

 

      

 

      -Sd-                                                      -Sd-                                                   -Sd-

MEMBER-II                                          MEMBER-I                                       PRESIDENT