State Consumer Disputes Redressal Commission
Smt. Luxmi vs Dr. Beena Negi on 5 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 251 / 2010
Smt. Luxmi W/o Sh. Bhupinder
R/o H-122, Nehru Colony
Dehradun
......Appellant / Complainant
Versus
Dr. Beena Negi
11, Daya Palace
Nehru Colony (Near Gurudwara)
Haridwar Road, Dehradun
......Respondent / Opposite Party
Ms. Anupama Gautam, Learned Counsel for the Appellant
Sh. Rajesh Kumar Devliyal, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 05/07/2012
ORDER
(Per: Justice B.C. Kandpal, President):
This is complainant's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 20.07.2010 passed by the District Forum, Dehradun in consumer complaint No. 43 of 2006, thereby partly allowing the consumer complaint filed by the appellant
- complainant and directing the respondent - opposite party to pay sum of Rs. 10,000/- to the complainant. Not satisfied with the quantum of compensation awarded by the District Forum, the complainant has filed this appeal for enhancement.
2. Briefly stated, the facts of the case, are that on 12.12.2003, the complainant - Smt. Luxmi underwent sterilization operation at P.P.C. Center, Women Hospital, Dehradun and was issued green card in 2 regard thereto. On 13.05.2006, on being feeling uneasy, the complainant consulted the opposite party - Dr. Beena Negi. The complainant told the opposite party that her menstrual cycle is overdue since three months. The opposite party prescribed some medicines to the complainant. Thereafter, the complainant consulted Dr. Anjali Rawat and got her ultrasound done and it was revealed that there is some mass inside the uterus of the complainant. The complainant was advised to go for pregnancy test. On 21.05.2006, on undergoing the pregnancy test, the report of the same came positive. On 22.05.2006, the complainant was admitted in Padmawati Nursing Home, where she was operated upon in emergency and was discharged on 25.05.2006. It is alleged that the complainant spent Rs. 18,000/- in her treatment. Alleging medical negligence on the part of the opposite party, the complainant filed a consumer complaint before the District Forum, Dehradun.
3. The opposite party - doctor filed written statement before the District Forum and pleaded that it was her protocol to wait for 15 days before getting investigated for ectopic pregnancy in tubectomy patients, which is necessary for management of amenorrhoea. It was further pleaded that on 14.03.2006, the complainant came to know that her menstrual cycle has become overdue, but she delayed the matter for two months, for which she herself is responsible. The pain suffered by the complainant may be due to over eating, tightening of shoes or mental stress. It was also pleaded that there has not been any medical negligence on her part.
4. The District Forum, on an appreciation of the material on record, partly allowed the consumer complaint vide impugned order dated 20.07.2010 in the above terms. Not satisfied with the quantum 3 of compensation awarded by the District Forum, the complainant has filed this appeal for enhancement.
5. We have heard the learned counsel for the parties and perused the record.
6. The prescription dated 13.05.2006 issued by the opposite party shows that in the said prescription, the opposite party has written, "3 months amenorrhoea" and the complainant was given injection of estrogen and progesterone and also advised to come again after one week. However, on 21.05.2006, the complainant went to Aastha Nursing Home, where Dr. Anjali Rawat advised her to go for ultrasound. The report of which indicated that the complainant was a case of ectopic pregnancy. As per the medical literature produced on record, "ectopic pregnancy is one in which the fertilized ovum becomes implanted in a site other than the normal uterine cavity. Although extrauterine pregnancy is often used as a synonymous term it is different in that it does not include certain rare types such as pregnancy in the rudimentary horn of a bicornute uterus".
7. The medical literature produced on record shows that the injections given by the opposite party to the complainant do not have any side effect and the District Forum has also taken cognizance of the said fact and has rightly recorded a finding to that effect.
8. The matter was referred to the Chief Medical Officer, Dehradun to submit the report and the Committee consisting of three doctors in its report has mentioned that, "ectopic pregnancy esa Hkzw.k tube esa gh Qal tkrk gS o ogk¡ mlds c<+us dh lEHkkouk ugha gksrh D;ksfd tube cgqr iryh gksrh gS o Hkzw.k ds FkksMk+ lk cM+us ij gh mlds QVus dh lEHkkouk cu tkrh gS o ,sls esa jDrlzko gksus ij le; ij vkWijs'ku u djus ij ejht dh 4 fLFkfr xEHkhj gks ldrh gSA vr% QVus ij vkWijs'ku }kjk Hkzw.k rqjUr fudky fn;k tkrk gSA Injection Estrogen o Injection Progesterone yxkus ls Hkz.w k ij dksbZ çHkko ugha iM+rkA" Thus, as per the said report, there was no negligence on the part of the opposite party in giving the above said injections to the complainant.
9. The District Forum has opined that when on 13.05.2006, the complainant consulted the opposite party and stated that her menstrual cycle is overdue since three months, the opposite party should have advised her to go for pregnancy test and to that effect, the opposite party has made deficiency in service and looking into the facts and circumstances of the case and the material available on record, the District Forum awarded compensation of Rs. 10,000/- to the complainant. The opposite party has not preferred any appeal against the impugned order, therefore, we can not reduce or set aside the said award. We only have to see whether there is any evidence on record so as to enhance the amount of compensation or not.
10. Before coming to any conclusion, it would be pertinent to peruse certain landmark judgments on the topic of "medical negligence". The Hon'ble National Commission in the case of Dinesh Kaushal and others Vs. Dr. K.K. Khurana; III (2002) CPJ 297 (NC), has opined that if on perusal of the documents, it comes that the line of treatment adopted by the doctor was not wrong, nor there was any act of negligence or deficiency in service by the doctor, nor the affidavit filed by the complainant show that the line of treatment given by the doctor was contrary to the settled norms in the medical profession, then there was no negligence or deficiency in service by the doctor and the complaint deserve to be dismissed. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC), has clearly observed 5 that, "a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence". The Hon'ble Supreme Court in the aforesaid judgment has also discussed the Halsbury's Law of England (Fourth Edition, Volume 30, Para 35), in order to evaluate the degree of skill and care required by a medical practitioner in the following words:
"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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be 6 shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
11. The Hon'ble Supreme Court's judgment in the case of Jacob Mathew (Dr.) (supra), has been followed by the Hon'ble Apex Court in the case of Martin F. D'Souza Vs. Mohd. Ishfaq; I (2009) CPJ 32 (SC). In the said case, the Hon'ble Apex Court has held:
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa and others Vs. State of Maharashtra and others; AIR 1996 SC 2377, or operated on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
44. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
46. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which 7 has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure eg. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
54. In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection:
(i) A private complaint should not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
(ii) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or 8 omission, obtain an independent and competent medical opinion, preferably from a doctor in Government service, qualified in that branch of medical practice who can normally be expected to give an impartial opinion applying the Bolam test.
(iii) A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been leveled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld."
12. It is true that the line of treatment by the different doctors would be different, but that is not sufficient to come to the conclusion that the doctor is guilty of medical negligence. The law is a watch-dog and not a blood-hound, and as long as doctor do their duty with reasonable care, they will not be held liable even if their treatment was unsuccessful. The test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but the doctor need not possess the highest expert skill and considering these facts of the case, we can not hold the doctor guilty of medical negligence.
13. We have also observed that the complainant could not produce any cogent and reliable evidence, suggesting therein that the opposite party has given wrong injections or prescribed wrong medicines, which increased her problem and that on account of which she had to undergo operation in emergency condition, which caused her financial 9 loss besides mental pain and agony. As stated above, the only fault / deficiency which could be attributed to the opposite party, is that she should have advised the complainant to go for pregnancy test. The material and also the report available on record show that the opposite party did not give wrong injections to the complainant and that the injections given by the opposite party to the complainant do not have any side effect in the case of ectopic pregnancy.
14. The District Forum has considered all the aspects of the matter and has passed a reasoned order, which does not call for any interference. There is no scope for enhancement in the amount of compensation as has been awarded by the District Forum. The appeal being devoid of merit, is liable to be dismissed.
15. Appeal is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K