KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUANANTHAPURAM APPEAL NOS.59/2010 & 77/09 COMMON JUDGMENT DATED 5.6.2010 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHADRAMONAN NAIR -- MEMBER APPEAL NO.59/2010 Sushama Subramanian, W/0 P.A.Subramanian, residing at Pambingal House, Ananthapuri Lane, -- APPELLANT Olarikkara, Pullazhi Post, Thrissur. (By Adv.Martin Paul) Vs. 1. Ittimani Memorial Hospital, Guruvayoor Road, Kunnamkulam, Reptd. by Managing Director, Dr.Aroon 1. Cheeran. 2. Dr.Vijayalakshmi.T, -- RESPONDENTS Ittimani Memorial Hospital, Guruvayoor Road, Kunnamkulam, Thrissur District. (R1 by M/s Sajeevu Mathew & R2 by Adv.M.C.Suresh) APPEALNO.77/09 Dr.Vijayalakshmi Ashirvad, -- APPELLANT Outer Ring Road, Guruvayoor East, Thrissur. (By Adv.M.C.Suresh) Vs. 1. Sushama Subramanian, W/0 P.A.Subramanian, residing at Pambingal House, Guruvayoor P.O, -- RESPONDENTS Thrissur. 2. The Managing Director, Ittimani Memorial Hospital, Guruvayoor Road, Kunnamkulam, (R1 by Adv.Martin Paul & R2 by Adv.Sajeevu Mathew) COMMON JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeals are preferred from the order dated 12th December 2008 passed by CDRF, Thrissur in OP.94/02. The complaint therein was filed alleging deficiency in service on the part of the opposite parties 1 and 2 in conducting D & C procedure for medical termination of pregnancy on the complainant on 28.4.01 and also for the medical negligence in treating the complainant for the bleeding after the D&C procedure. The first opposite party/Ittimani Memorial Hospital remained absent. The second opposite party/ Dr.Vijayalakshmi.T. attached to the first opposite party hospital filed written version denying the alleged medical negligence and deficiency in service on the part of the opposite parties. She contended that the D & C procedure was conducted on the complainant with care and skill. There was no sort of negligence in conducting the D & C procedure and for treating the complainant. Thus, the second opposite party prayed for dismissal of the complaint. 2. Before the Forum below, the complainant was examined as PW1 and the Doctor attached to Sanker Clinic, Guruvayoor was examined as PW2. Exts.P1 to P24 documents were also marked on the side of the complainant. Second opposite party Dr.Vijayalakshmy was examined as RW1, and the treatment record from the first opposite party hospital was marked as R1. R2 copy of the reply notice dated 25.9.01 issued by the opposite parties 1 and 2 was also marked as R2. On the basis of the evidence on record, the Forum below passed the impugned order dated 12th December 2008 directing the second opposite party to pay the medical expenses shown in Exts.P3 to P16 documents and Rs.30,000/- as compensation to the complainant for the mental and physical agonies the complainant had suffered. The opposite party/hospital was further directed to pay Rs.5000/- towards costs to the complainant. Aggrieved by the said order passed by the Forum below, the second opposite party filed the Appeal.77/09. The respondents in this appeal are the first respondent/complainant and the second respondent/second opposite party. The complainant was not satisfied with the quantum of compensation awarded by the Forum below and dis-satisfied with the compensation awarded by the Forum below, the complainant preferred the Appeal No.59/10. The appellant/complainant prayed for awarding compensation of Rs.1 lakh claimed by her. 3. We heard both sides. The learned counsel for the appellant/second opposite party submitted arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there is no evidence available on record to prove the alleged medical negligence and deficiency in service on the part of the second opposite party Dr.Vijayalakshmy who conducted the D & C procedure on the complainant. Thus, the appellant in A.77/09 prayed for setting aside the impugned order passed by the Forum below. The learned counsel for the appellant/complainant in A.59/10 pointed out the mental agony, pain and in-convenience suffered by the complainant on account of the alleged medial negligence and deficiency in service on the part of the second opposite party/Dr.Vijayalakshmy who treated the complainant. Thus, the complainant prayed for enhancement of the compensation for the deficiency in service on the part of the opposite parties. These two appeals are preferred from one and the same order passed by CDRF, Thrissur in OP.94/02. For the sake of convenience, these two appeals can be disposed of by a common Judgment. The parties to this two appeals will be referred to according to their rak and status before the Forum below in OP.94/02. 5.The points that arise for consideration in these two appeals are:- 1. Whether the complainant in OP.94/02 has succeeded in establishing the alleged medical negligence and deficiency in service on the part of the second opposite party/Dr.Vijayalakshmy attached to the first opposite party/Ittimany Memorial Hospital, Kunnamkulam? 2. Whether the Forum below can be justified in awarding the medical expenses incurred by the complainant with compensation of Rs.30,000/- and cost of Rs.5000/- by considering the mental agony, physical strain and pain and financial loss suffered by the complainant in OP.94/02? 3. Is there any legally sustainable ground to interfere with the impugned order dated 12.12.08 passed by CDRF, Thrissur in OP.94/02? 6. POINTS 1 TO 3:- There is no dispute that the complainant approached the second opposite party/Dr.vijayalakshmy with the complaint of irregular menstruation and that the complainant was admitted by the second opposite party in the first opposite party/Ittimani Memorial Hospital, Kunnamkulam for conducting D& C procedure and the same was done on 28.4.01 by the second opposite party. The definite case of the complainant is that there was bleeding from vagina after the said D & C operation and that the said bleeding continued for a period of 4 months up to 2.8.01. It is the case of the complainant that the bleeding continued after the D & C procedure on 28.4.01 because of the negligence of the second opposite party in conducting the D & C procedure. It is also the case of the complainant that the entire product of conception was not evacuated by the second opposite party while doing the D & C procedure. On the other hand, the second opposite party Dr.Vijayalakshmi contended that she performed the D & C procedure with utmost care and skill and there was no negligence in doing the D & C procedure on the complainant. It is admitted by the second opposite party that the complainant was pregnant and the complainant was admitted in the first opposite party hospital on 28.4.01 morning with slight bleeding and it was a case of incomplete abortion and that she evacuated the product of conception by doing D & C procedure. 7. The second opposite party as RW1 has categorically deposed that the entire product of conception was removed by conducting D&C procedure and there was no such bleeding after the said procedure as alleged by the complainant. The evidence of RW1 is supported by R1 case record produced from the first opposite party hospital. R1 case record would show that D&C procedure was conducted on the complainant on 28.4.01 and the complainant as patient was discharged on the same day. It would also show that the procedure was successful and there was no complaint of bleeding as alleged by the complainant. R1 document (case record) would show that the D&C was done for incomplete abortion and the D&C procedure was done as requested by the patient. It would further show that the D&C procedure was uneventful. The complainant as PW1 has got a case that R1 case record is a manipulated document which was concocted to suit the case of the opposite parties. The Forum below has also come to the conclusion that R1 case record is a fabricated document. But, there is nothing on record to come to such a conclusion or to doubt the genuineness and correctness of the R1 case record. RW1, the second opposite party was examined before the Forum below. But nothing could be brought out from the testimony of RW1 to substantiate the case of the complainant that R1 case record is a fabricated or concocted one. She further deposed that the Doctor’s order in R1 case record is in her hand writing. In effect, the complainant has not succeeded in establishing her case that R1 case record is a concocted or fabricated one. 8. The evidence of the second opposite party as RW1 and Ext.R1 case record maintained in the first opposite party hospital with respect to the treatment of the complainant would support the case of the second opposite party that the D&C procedure was done on the complainant with care and skill and the said procedure was successful. Ext.P1 is the prescription issued by the second opposite party Dr.Vijayalakshmy to the complainant. The entries in P1 are related to the consultation and treatment on 27.4.01, 28.4.01 and 16.5.01. It is to be noted that the entries in P1 document would show that the entries in R1 case record are correct. It is to be noted that P1 document was produced by the complainant. The entries in P1 would show that the D&C was done under general Anastasia on 28.4.01 and the said procedure was un-eventful. It would also show that the complainant (patient) was advised to come for review after 2 weeks and thereby on 16.5.01 the complainant had a consultation. P1 document would also show that the complainant approached the second opposite party Dr.Vijayalakshmy for he first time on 27.4.01 and the pregnancy test was found positive. The last menstrual period was reported as 23.3.01 and the Doctor advised D&C. There is nothing on record to doubt the case of the second opposite party that the D&C procedure was conducted on 28.4.01 and the same was un-eventful. 9. The complainant relied on the testimony of PW2 Dr.Chandrika Sankar to show that the complainant approached her with incomplete abortion and that D&C procedure was done for incomplete abortion. PW2 has categorically deposed that she never told the complainant that the incomplete abortion occurred due to the negligence of the Doctor who conducted the earlier D&C on 28.4.01. There is no whisper in the testimony of PW2 to support the case of the complainant that the second D&C done on 2.8.01 was for incomplete evacuation. The evidence of PW2 would also show that there was the possibility for conception after the 1st D&C and subsequent abortion of the pregnancy. Thus, the possibility for conception after the D& C conducted on 28.4.01 and the subsequent pregnancy ended in incomplete abortion which led to the D&C on 2.8.01 at the hands of PW2,Chandrika Sankar. 10. The case of the complainant is that after the D&C conducted on 28.4.01 there was continuous or intermittent bleeding from the vaina for a period of 4 months till the second D&C on 2.8.01. The said case cannot be believed or accepted without any supporting material. It is not probable that a patient like the complainant suffered inconvenience pain and discomforts for a period of 4 months without getting medical attention. There is nodocument forthcoming from the side of the complainant to show that she had consulted the second opposite party for the aforesaid bleeding and discomforts. RW1, the second opposite party has categorically denied the said case of the complainant regarding the negligence on the part of the second opposite party in conducting the D&C on 28.4.01 and the resultant bleeding from 28.4.01 till 2.8.01. RW has also categorically denied the case of the complainant that the complainant approached the second opposite party for medical advise even after 16.5.01. No such evidence is forthcoming from the side of the complainant to show that after 16.5.01, the complainant had consultation with the second opposite party Dr.Vijayalakshmy. PW1 from the witness has developed a case that she had been contacted the second opposite party over Telephone. No such case is pleaded in the complaint. More over, there is nothing on record to show that the complainant had any occasion to contact the second opposite party over Telephone. It is also to be noted that no evidence is forthcoming from the side of the complainant that she had any effective treatment for the aforesaid bleeding which started from 28.4.01. So, in the absence of any such material it can only be concluded that the second D&C was done for the subsequent conception and incomplete abortion which occurred after the first D&C. 11. The case of the complainant (PW1) that she had no sexual contact after 28.4.01 cannot be believed or accepted. Admittedly, the complainant has been taking contraceptive pills for avoiding pregnancy. If the complainant had no intention or desire to have sexual contacts, she would not have taken contraceptive pills. This circumstances itself would give an indication that there was sexual contact after the D&C which was done on 28.4.01. There is no acceptable material or cogent evidence to substantiate the case of the complainant that there was medical negligence and deficiency in service on the part of the second opposite party in doing the D&C procedure on the complainant. On the other hand, the available evidence and the probabilities of the case would only support the case of the second opposite party. The Forum below passed the impugned order finding the second opposite party negligent without properly appreciating the evidence on record. We have no hesitation to set aside the aforesaid finding entered into by the Forum below. Thus, the impugned order passed by the Forum below is set aside. The complainant in OP.94/02 is not entitled to get any compensation from the opposite parties. These points are answered accordingly. In the result, appeal 77/09 is allowed and appeal 59/10 is dismissed. The impugned order dated 12.12.08 passed by CDRF, Thrissur in OP.94/02 is set aside. The parties to these appeals are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER S.CHADRAMONAN NAIR -- MEMBER . | 
