State Consumer Disputes Redressal Commission
Deep Ram vs State Of Hp Through Secretary Health & ... on 8 May, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA Appeal No. 190/2008. Reserved on 28.4.2009 Date of Decision 8.5.2009. Deep Ram (husband of Bhajji Devi) son of Pritam Singh residing at Ivydene, Anadale, Shimla-3. ..Appellant. Versus 1. State of Himachal Pradesh, through Secretary Health, Govt. of Himachal Pradesh Shimla-1., 2. Kamla Nehru Hospital, Shimla-1 through Medical Superintendent. .Respondents. Honble Mr. Justice Arun Kumar Goel, President. Honble Mrs. Saroj Sharma, Member.
Honble Mr. Chander Shekher Sharma, Member.
Whether Approved for reporting? Yes.
For the Appellant. Mr. Pradeep Singh, Advocate.
For the Respondents. Mr. Anoop Sharma, ADA.
O R D E R:
Per Mr. Chander Shekher Sharma, (Member) This appeal is directed against the order of District Forum Shimla, in Consumer Complaint No. 439/2002 dated 4.6.2008 whereby District Forum below has dismissed the complaint.
2. Facts of the case that emerge from the complaint file are that Deep Ram husband of Smt. Bhajji Devi filed complaint before the District Forum below under Section 12 of Consumer Protection Act, 1986 wherein grievance made by him was that his wife Smt. Bhajji Devi was operated for family planning operation on 21.12.2001 at respondent No.2 she was discharged on the same day. Further allegations made in the complaint were, that on 24.6.2002 wife of the appellant went to Kamla Nehru Hospital, Shimla for medical check-up where several tests were conducted upon her by the hospital authorities, when it was revealed that she was pregnant and he was informed by the doctor that his wife was having 26 weeks child in her womb. She gave birth to a male child on 30.8.2002. In this background it was alleged that there was negligence on the part of doctor/respondent No.2 in conducting the family planning operation. This being a case of deficiency in service, on the part of the doctor of respondent No.2, he claimed damages to the tune of Rs. 4.50 lacs in the complaint.
3. The version of the respondents while contesting the complaint was that laparoscopy sterilization operation was conducted on the wife of appellant Bhajji Devi on 21.12.2001 at Kamla Nehru Hospital, Shimla and due care was taken in conducting the same. Their further stand in the reply was, that as per medical literature there are chances of failure of operation ranging from 0.2% to 0.6%, as such negligence cannot be attributed on the part of the respondent No.2. Further it was pleaded, that the appellant had signed the consent form and there is recital in the consent that there are chances of failure of the operation and in case there is failure of operation, then the government hospital/operating surgeon will not be held responsible.
4. The brief resume of evidence led by the parties in nutshell is, that appellant Deep Ram in his filed affidavit in support of his claim besides placing on record the discharge slip Annexure C-1 which relates to admission of his wife Smt. Bhajji Devi in the KNH, Shimla on 21.12.2001. Annexure C-2 is the outdoor patient ticket slip, Annexure C-3 is X-ray Form, Annexures C-4 & C-5 are the copies of birth certificates, Annexure C-6 is certificate issued by Pardhan and Assistant Secretary, Gram Panchayat Kakaras, Tehsil Shillai, Distt. Sirmaur. Respondents have placed on record evidence by way of affidavit of Dr. Ritu Sarin and Dr. Koshla Pathania, and have also relied on Annexure R-1, copy of the consent for operation and application of sterilization/consent.
5. In the present case the appellant has submitted written arguments through his learned counsel Mr. Pradeep Singh alongwith copies of various rulings and the medical literature. The respondents have also submitted written arguments through learned ADA Mr. Anoop Sharma alongwith various rulings and the medical literature in the matter which has been placed on record.
6. We have also heard learned counsel for the parties.
7. Mr. Singh learned counsel for the appellant has mainly based his argument on the point that there was negligence on the part of Dr. Ritu Sarin in conducting the family planning operation upon his clients wife and as a result of it, Smt. Bhajji Devi gave birth to a male child on 30.8.2002 and also reiterated the submissions made in the written arguments. Learned ADA while contesting the claim of the appellant argued that there is no negligence of any kind in the conduct of family planning operation on the part of respondents. Per him Dr. Ritu Sarin was an experienced doctor who had conducted large number operations and as per medical literature, there was always chance of failure of operation. Even this fact was explained before conducting the operation to the appellant/his wife Per Mr. Sharma. Consent was set up as plea to accept this stand by the learned ADA.
He also argued that in the present case the complaint has been filed by Mr. Deep Ram husband of Smt. Bhajji Devi who is not a consumer. As such on this score also the present complaint was rightly dismissed by the District Forum below and he prayed for the dismissal of this appeal because there is no deficiency in service on the part of his clients. He has also reiterated his stand taken in the written arguments submitted by him.
8. After considering the submissions of both the parties, as well as after going through the record, we are convinced that there is no infirmity in the order of District Forum below which may call for interference in this appeal. We are of the view that it has been rightly held by the District Forum below, that there was no negligence on the part of respondent No.2 in conducting sterilization operation of Smt. Bhaji Devi. In the present case there is no cogent, convincing and reliable medical evidence on record to establish medical negligence in conducting sterilization operation of Smt. Bhajji Devi wife of the appellant. Appellant has filed his own affidavit in the matter and affidavit of Smt. Bhajji Devi his wife has not been filed who was operated for sterilization operation in the present case. In order to prove medical negligence appellant has not placed on record evidence of any medical expert in order to prove that there was negligence in the sterilization operation.
Moreover no reason has been assigned by the appellant as to why affidavit of Smt. Bhajji Devi has not been placed on record which was material peace of evidence in the present case, and as such adverse inference is to be drawn against the appellants.
9. Moreover in the present case there is Annexure R-1 placed on record which is copy of consent and application given for sterilization operation wherein it has been clearly mentioned that there are chances of failure of the operation for which government hospital or operating surgeon will not be made responsible. Respondents have placed on record affidavits of Dr. Ritu Sarin and Dr. Koshla Pathania, wherein they have clearly stated that operation was conducted with utmost care and caution, and there is no negligence on the part of doctor in the examination or sterilization operation of Bhajji Devi and it had also been stated in these affidavits that there are chances of failure of operation ranging from 0.2% to 0.6%. We are of the view that there is no reason to disbelieve the affidavits of these doctors and even this fact is also supported by medical literature placed on record.
10. Even in the present case this fact has come on the record that Bhajji Devi wife of appellant had visited the hospital on 6.12.2001 with three months amenorrhea and she had her last menstrual period 3 months back and on examination of the doctor she was found to be not pregnant.
She was prescribed oral contraceptive pills and advised to come after the periods and had insisted for undergoing laparoscopy sterilization operation. Her urine test was found to be negative which as per medical literature cannot be detected in case of ladies who are breast feeding their children. After operation of Bhajji Devi, it was explained to her that there is a chance that she is already pregnant which may be missing in urine pregnancy test and as such she must report to the hospital after six weeks or in case of missed-period. On Examination as per ultrasound it was revealed that she is having pregnancy of 31 weeks. Thus it is unbelievable fact that a woman becoming pregnant for the 4th time was unaware of the pregnancy symptoms. Therefore in case she was not interested in having 4th child, then she should come to the hospital immediately after missed periods.
Moreover doctors who had operated upon Smt. Bhajji Devi, is an expert Medical Officer. Since after appointment after MD in the year 1996 in Government Hospital, she had conducted more than 600 cases of laparoscopy sterilization operation. The sterilization operation of Bhajji Devi had been done by Dr. Kaushla Pathania under supervision of Dr. Ritu Sarin who was a Professor and Head, and was having vast experience in conducting such operations. There is also no force in the arguments of learned counsel for the appellant that curettage is used to find products of conception in the uterus and to remove it.
Routine curettage at the time of tubal ligation in order to prevent luteal phase pregnancy is not a must. This view is supported by the following references.
a) Female sterilization WHO-Geneva, 1992 page 121-122, Annexure 5
b) Tubal sterilization Telindes operative gynecology 2003 page 551, Annexure 6.
c) Value of routine dilation and curettage at the time of interval sterilization Journal Obstet Gyaecol 1986 June, 67(6): 763-5 Annexure 7 which have been referred in detail at page 4 of the written arguments submitted by the State alongwith literature.
11. In the present case there appears to be force in the submission of learned ADA for the respondents, that present complaint on behalf of the husband of Bhaji Devi is not maintainable since he does not fall within the definition of consumer, under Section 2 (1)(d) of the Consumer Protection act, 1986. Wife of the appellant had been operated for family planning operation which had failed. Though he clarified that even she cant make a grievance of any kind in the facts of this case, nor can she be termed as a consumer to invoke jurisdiction of Foras under the Act of 1986, (supra).
12. Findings of the District Forum below that because no service charges had been taken from the wife of appellant for the sterilization operation, as such service having been rendered free of charge does not come within the purview of Consumer Protection Act, 1986 cannot be upheld in the face of the recent law laid down by the Apex Court that even government hospitals where medical services are provided free of charge, also come within the purview of term service, under the said Act. See Laxman Thamappa Kotgiri Vs. G.M., Central Railway and others., (2007) 4 SCC 596.
13. Learned counsel for the appellant in support of his contention submitted that the present complaint is maintainable even on behalf of the husband of Bhajji Devi had cited case law in the case of Kishori Lal Vs. chairman, ESI Corporation., AIR 2007 Supreme Court 1819. In this case complaint was filed by the husband in case of negligence in the treatment of his wife in ESI dispensary. This authority is not applicable in the present case since the complaint was filed for negligence of the doctor of ESI dispensary and medical services are provided to the employees who made contribution towards the insurance scheme under the Employees State Insurance Act, 1948, and his claim was settled.
Other rulings cited by learned counsel for the appellant, are not applicable in the present case because those were the cases, where sterilization operations had failed, and the complaints were filed on behalf of the patients themselves.
14. Legal position in the cases of medical negligence had been well settled by the Honble Supreme Court in a number of cases , see Jacob Mathew Vs. State of Punjab and Anr., III (2005) CPJ 9 (SC) and Martin F. Dsouza Vs. Mohd. Ishfaq., 1 (2009) CPJ 32 (SC), and Bolam rule had been followed by the Apex Court in these cases. In the case of Jacob Mathew Vs. State of Punjab and Anr., in para No. 31 the Apex Court had observed as under:-
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 is what the law requires.
And the Apex Court in para 41 of its recent judgment in the case of Martin F. Dsouza Vs. Mohd. Ishfaq in para 41 has also observed as under:-
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.
15. No other point is urged.
In view of the aforesaid discussion and keeping in view of the facts and circumstances of the case, in our opinion there is no negligence on the part of respondents in carrying out the sterilization operation upon the wife of the appellant as the doctors had taken all reasonable care in performing the operation who had adequate skill and knowledge in conducting such operation. As such there is no reason to interfere with the order passed by the District Forum Shimla, in Consumer Complaint No. 439/2002 dated 4.6.2008 and the same is upheld while dismissing this appeal.
There is no order as to costs.
Learned counsel for the parties shall be supplied copy of this order free of cost as per rules.
Shimla.
8th May, 2009 (Justice Arun Kumar Goel) Retd.
Karan* President. (Saroj Sharma) Member. (Chander Shekher Sharma) Member.