National Consumer Disputes Redressal
Louie And Anr. vs Kannolil Pathumma And Anr. on 16 November, 1992
JUDGMENT B.S. Yadav, J.
(1) This is an appeal against the Order dated 25th March. 1991 passed by the Kerala State Consumer Disputes Redressal Commission in Complaint Case No.27 of 1990 whereby the Commission accepted the complaint filed by the present Respondent No.l Smt. Kannolil Kunhi Pathumma (hereinafter referred to as the Complainant) and the present appellants, who were opposite parties in the complaint were directed to pay Rs. 2,27,000.00 as compensation and "Rs. 3,000.00 as costs within two months from the date of the Order. It was further ordered that in case of default, they were to suffer imprisonment for one year.
(2) The facts, according to the complainant, are that the second appellant. Dr. Cleatus (who was 1st opposite party in the complaint) is the proprietor of Josgiri Hospital and Nursing Home, Tellichery while the first appellant Dr. Sr. Louie (who was 2nd opposite party in the complaint) was employed as a doctor in the said Hospital. The Hospital has exhibited a name board in the Hospital with the concurrence and connivance of Dr. Sr. Louie on which against the name of the said doctor. M.D. (Gyn) was mentioned with the calculated object of creating an impression and misleading the patients that Dr. Sr. Louie possesed a post-graduate degree in Gynaecology. Being misguided by the said name board, the complainant admitted her eldest daughter Kannolil Aysha in the said Hospital on 11th December, 1989 for delivery with the hope that she would get expert attention and treatment from a qualified M.D.Gynaecologist. At about 10.30 A.M. on 14th December, 1989 Aysha was removed to the labour room. At about 3.00 P.M. Dr. Sr. Louie saw her and informed her relations that Aysha would deliver the baby shortly. The said Doctor then went to the Opd and started seeing patients. Meanwhile, Aysha started screaming in the labour room. Her cries for help were so unusual that her uncle Abdulla asked the attending nurse whether there was any complication but the nurse kept mum. Abdulla then asked the nurse to call Dr. Sr. Louis. The nurse informed him that Dr. celiaa, Anaesthesiologist was managing the labour. At about 4,20 P.M. Dr. Sr. Louie came to the labour room. After some time, Dr. Sr. Louie told the relatives that Aysha had delivered a male child but the condition of the baby was serious. She also told that Aysha was having severe bleeding and blood was required. Abdulla and Hameed (husband of Aysha) donated one pint of blood each and six bottles of blood were also purchased. In spite of all these the relatives were informed at 9.30 p.m. that Aysha was no more. Dr. Sr. Louie informed the relatives that the uterus of Aysha did not contract and they were unable to stop the bleeding and that was the cause for her death.
(3) It was further alleged that subsequent to the death of Aysha, an enquiry was made and the complainant came to know that Dr. Sr. Louie was not a Post-Graduate in Gynaecology as claimed by her and the Hospital. On the basis of this information, to save the life of child, the child was got discharged from the Hospital on 15th December, 1989 and removed to Indira Gandhi Memorial Cooperative Hospital. Tellichery where the child also expired on 18th December, 1989. On making further detailed enquiry complainant came to know that Dr. Sr. Louie was not a specialist in Gynaecology. She has only some basic degree in Gynaecology from West Germany. It was a deliberate and calculated attempt on the part of the present appellants, who have put up on the name board of the hospital against the make of the first appellant as M.D., Gyn. without mentioning Germany from where she got that degree which is a must as per the rules and directions from the Medical Council of India. On account of the misleading information given out by the present appellants, Aysha was got admitted in the hospital. Aysha's death was due to the mishandling of the case by Dr. Sr.Louie who was not properly qualified. The complainant made claim for Rs. 5 Lakhs as compensation against both the present appellants.
(4) The appellants filed a joint counter. It was stated that Dr. Cletus was only the Administrator of the Hospital. There was no act of omission and commission on their part in exhibiting the name board in the hospital and the same is put there only for general information and not for the purpose of misleading the customers. Dr. Sr. Louie has got a valid degree in medicine and post-graduation in Gynaecology from West Germany and is an approved medical practitioner registered with the Indian Medical Council with Registration No. 9291/78. The Complainant's daughter Aysha was admitted in the hospital on 11.12.1989 for delivery and on 14th December. 1989 she was removed to the labour room. At about 4.15 p.m., while labour was progressing, the amniotic membrane was ruptured. Liquor was clear. After few minutes, the patient had developed sudden dyspnoea,cynosis, restlessness and fits. Dr.Sr. Louie applied vacuum suction and extracted the baby at 4.45 p.m. The relatives of Aysha were informed that the patient was in serious condition and she needed blood transfusion Dr. Sr. Louie along with the Physician Surgeon and Anaesthesiologist tried their level best to .save her life with the help of all available medical facilities but the patient expired at 9.25 p.m. on the above date. The blood of the patient did not clot even after 12 hours. The relatives of Aysha were permitted to see the patient in the labour room as the condition of the patient was serious and even at that time Dr. Sr. Louie advised them to take the patient to the Medical College for better medical care if they so desired. But they decided not to take the patient and asked the doctor to continue the treatment with whatever facilities were available in the hospital to save her life. Even after the death of Aysha Dr. Sr. Louie bad explained to her relatives about the cause of her death i e amnioticfluid embolism and coagulopathy and they were further advised that if they had any doubt about the cause of death, they could arrange to have post-mortem but they did not give their consent. Without any complaint the relatives removed the dead body of Aysha from the hospital. They are not liable to pay any compensation to the complainant since there was no mishandling on their part. In any case the quantum of compensation a claimed was exorbitant.
(5) In the supplementary counter, it was stated that in case any compensation was to be paid then the same should be recovered form New India Assurance Company Ltd. with which Dr. Sr. Louie was insured.
(6) After going through the evidence adduced by the parties the State Commission held that Dr. Sr. Louie used M.D. (Gyn)along with her name without adding the work "Freiburg" and thus violated the provisions of Section 42(1) of the Travancore Cochin Medical Practitioner's Act and the intention illight he. to mislead the public that she held a Master's Degree in Gynaecology when as a matter of fact she did not hold such a degree.
(7) It was further held that the deaths of Aysha and her child were due to the negligence and incompetence on the part of Dr.Sr. Louie. About the cause of death of the child it was held that the various injuries i.e. intra cranial hemorrhage and asphyxia which occurred to the child were due to vacuum slip and as Dr. Sr. Louie was not a duly qualified obstetrician, there was every likelihood of mal-application of the vacuum extractor and the resultant vacuum slip. Consequently, it was held that the services rendered by Dr. Cletus and Dr. Sr. Louie were defective. Rs. 50,000.00 were assessed as compensation for the death of Aysha. As the complainant was to bring up the first child of Aysha who was then 3. 1/2 years old, Rs. 1,50,000/ were considered as reasonable compensation in order to bring up the said child till he attains majority, Rs. 25,000.00 were awarded as compensation for the death of the new born child of Aysha, Rs. 2,000.00 were awarded as compensation for the expenses incurred in the treatment of Aysha and the baby. Thus Dr. Cletus and Dr. Sr. Louie were ordered to pay a total sum of Rs. 2,27,000.00 as compensation with costs which were quantified at Rs. 3,000.00 .
(8) Feeling aggrieved of that Order, Dr. Sr. Louie and Dr. Cletus have filed this appeal. Indian Medical Council applied before this Commission to get itself impleaded. That application was allowed and the Council was impleaded as additional Respondent.
(9) Before us the counsel for the complainant prayed for permission to implead Josgiri Hospital Society, Tellichery, Kerala represented by its President as additional opposite party in the complaint petition. The permission was granted. Notice was issued to the President, Josgiri Hospital Society. The President filed a counter averring that the hospital was being run on the basis of no profit no loss and the Doctors employed there serve with full dedication. The hospital has got wide reputation among public due to the dedication of the staff and doctors towards the patients. Mrs. Aysha had her first- child delivered in this hospital. At that time there was some complication and due care was taken by the doctors and the staff and her life was saved. As Aysha was permanent patient of the hospital, extra care was taken. For the second delivery, she was admitted on 11th December, 1989, for obstetrical treatment. She was treated for pre-delivery complant twice before she was admitted for delivery. Anticipating complication in the case, the doctors and the staff were vigilant. She did not deliver the child on the expected date, therefore. Glucose drip and Syntocinon was given to her in order to induce labour pain. All of a sudden, Aysha bad fits almost at the time of her delivery. Immediately she was examined by Dr. Celia who diagnosed it as Amniotic fluid embolism. A male child was taken out from the womb with great care but the child was almost dead because of the deficiency of oxygen. Asphyxia. Immediately Dr. Siva Sankaran, Paediatricias was called and every possible step was taken to save his life. The death of Aysha was not due to any negligence on the part of the doctors who attended on her or due to the negligence of any other staff of the hospital but was only providential. Every possible step was taken to save her and the life of her child. On the next day the relatives of Aysha took the child from the hospital to Indira Gandhi Memorial Co-operative Hospital where he died on 18th December, 1989. Dr.Louie was a qualified medical practitioner having the presreibed qualifications to practice. The cause of death of Aysha was amnioticfluid embolism and its complication. coagulopathy (absence of blood coagulation). Patients come to the Hospital on account of its reputation and not on account of any particular doctor.
(10) We may first take the preliminary objection raised on behalf of the appellants as well as by the additional respondents which is to the effect that 'personal service' and such 'service' is excluded from the definition of 'service.' as defined in the Consumer Protection Act, 1986. Such an objection had been considered earlier and rejected by this Commission vide its Order dated 21st April,1992 rendered in First Appeal No. 46 of 1991 titled M/s. Cosmopolitan Hospitals & Anr. v. Smt. Vasantha P. Nair. This Commission held in that case as follows: "INthe case of hospitals which provide treatment to patients for payment we are unable to see how there is any clement of personl service involved in such an arrangement. When a patient goes to such a hospital and avails himself of the facility of treatment on payment of consideration, be is dealing only with an institution carrying on the activity of providing medical service for payment and no element of 'personal service' does enter into the picture in such a case. The hospital may have its own lectors, consultants etc. for treating the patients admitted to its care but ordinarily it is not likely that there will be privity of relationship between the person who gets admitted in the institution and the doctors' who may be on the staff of the instutution or may be visiting consultants there. In the light of the foregoing discussion, we have no hesitation to uphold the finding of the State Commission that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression 'service' as defined in Section 2 (1) (0) of the Act and that in the event of any deficiency in the performance of such service the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having Jurisdiction."
(11) In the present case it is not disputed that in the Josgiri Hospital and Nursing Home where Aysha was admitted for delivery, fees were charged for room rent, treatment etc. Original records of the complaint were called from the Stale Commission. Cash memo issued by the hospital is at page 89 of that file. The total bill was for Rs.l,290.00 out of which a deduction of Rs. 445.00 was allowed as concession. The concession might have been allowed on account of the death of Aysha. Hence, it cannot be said that service rendered by the hospital was free of charge or there was any element of contract of personal service. Consequently, it is held that the complaint filed by the mother of Aysha is maintainble under the Consumer Protection Act.
(12) The next objection that was raised oil behalf of the appellants was that complainant who is mother of Aysha is not entitled to file the complaint. The contention is that Aysha who could be said to be the consumer has since died and her mother not being the consumer cannot file the complaint. This argument has also to be rejected. If on account of deficiency in the rendering of service, the death of a consumer occurs then we are of the opinion that his/her heirs who are entitled to the estate of the deceased can file the complaint under the Consumer Protection Act. This Commission in earlier orders has held that the legal representatives of a deceased consumer have a locus standi to file a complaint under the Consumer Protection Act.
(13) The next question that arises for determination whether Dr.Sr.Louie is qualified to practise as a medical practitioner in India. The State Commission has answered that query in the negative. Dr. Sr. Louie appeared in the witness box before the State Commission as RW2 and stated on oath that she obtained the basic German degree of M.D. (Freiburg), which is a recognised medical degree under the Medical Council Act, 1956, vidp Third Schedule, Part Ii, in 1969 and completed her intership in 1970. It may be mentioned there that the said degree is equivalent to M.B.B.S. degree in India.
(14) The State Commission has held that she was required to do two years' internship under rules in Germany and as she did not complete that period of internship, she was not qualified to practice in India also even after obtaining the basic degree. For coming to that conclusion the State Commission placed reliance on clause (3) of Section 13 of the Indian Medical Council Act which is reproduced below: "THEMedical qualifications granted by Medical institutions outside India, which are included in Part Ii of the 3rd Schedule, shall also be recognised Medical qualification for the purpose of this Act, but no person possessing any such qualification shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification, or if has not undergone any practical training in that country, he has undergone such practical training as may be prescribed."
(15) The State Commission appears to have not given due importance to the registration certificate issued by the Travancore-Cochin Council of Modern Medicinge (which is at page 92 of the State Commission's file). Vide this certificate Dr. Sr.Louie was registered as a medical practitioner under the Travancore-Cochin Medical Practitioner Act. This registration was effected with effect from 27.2.197S. Dr. Sr. Louie has stated that she bad produced all her certificates before the said Council and thereafter she was registered as a Medical Practitioner. In that certificate her qualification has been noted as 'MD Freiburg' West Germany, 1970. The Council must have registered Dr.Sr. Louie as a Medical Practitioner only after satisfying itself that in view of the above clause of the Medical Council Act she had undergone required practical training after obtaining the qualifications as required by the rule or regulation in force in the country granting the qualification.
(16) The State Commission has placed reliance upon the certificate, legalised translation of which is at page 43 of the State Commission's file. That certificate was issued in November, 1969. After reciting that Dr. Sr. Louie had, after the prescribed university studies passed the Medical Examination, it was further noted "thereby she has undergone the same study and the same examination which, in accordance with the appointment dispositions for doctors dated 15th September, 1953 (Federal Official Bulletin I, page 1344) are prescribed for Germans and entitled the same to execute the medical profession in a practice of their own in Germany after having attended' the two years' period of an intern". Dr.Sr. Louie had stated that though according to that certificate, she Was required to attend two years' internship but in 1970 the rule was amended and for her batch the period of intemship was reduced to one year which she completed in 1970. Her contention finds support from another 'confirmation' certificate dated 2nd March, 1971, the legalised translation of which is at page 98 of the State Commission's file. It is recited therein that after having passed the medical examination, Dr. Sr. Louie has completed her internship period on the 31st December, 1970 in accordance with the disposition valid for Germans and thereby finished completely the traing prescribed for German doctors. Before this Commission also Dr. Sr. Louie has produced a letter addressed to her (at page 64, Part-2 of the paper book) and written by some German University/ Authority, the relevant portion of which reads as follows: "FORsubmission to the Indian Authorities, it is hereby certified that, you have done the Doctor eamination before the Examination Board of the Albert Ludwig University in Freiburg. You have completed on 31-12-1970, the one year of medical assistantship (intemship) to be undertaken after the Doctor exam and thereby completed the medical course required for Doctors in Germany. We certify that the medical assistanti ship at the time of your studies, according to article 2 of the Law consequent on the amendment of the German Medical Education rules dated 28-08- 1969. (Ref. I.S. 1509) is one year."
Hence Dr. Sr. Louie is properly qualified to practice in India.
(17) In view of the above finding Dr.Sr. Louie is qualified to practice in India as a medical practitioner. It is not necessary to go into the question if she has received specialised training in Gynaeology and Obstetrics as stated by her for the following reasons:
(18) Firstly, there is not sufficient evidence on the file to hold either way if she possess qualification which is recognised in Part-11 of the Third Schedule of the Indian Medical Council Act at serial No. 'X'. Against that serial number it is written "Facharzt Fuer Gynackologic (specialist in Gynaecology)-(West Germany)". Except her bald statement. Dr. Sr. Louie has not led any evidence that the discipline of Gynaecology in which she is said to be specialised also included discipline of Obstetrics. The Complainant has also not led any evidence on this part of the case.
(19) Secondly, though the Complainant's case is that she took her daughter to the Josgiri Hospital and Nursing Home as Md Gynaecology was written against the name of Dr. Sr. Louie but we are not impressed with that contention. Dr.Sr. Louie is working in this hospital since 1978 except tor a short period of 1985-87. Aysha had also come to this hospital for her first delivery in 1986 when Dr. Sr. Louie was not working in this Hospital. Even before the second delivery she bad come to the hospital a couple of times for check-up. On two such occasions she was examined by Dr. Radhika D.G.O. and on one by Dr. Sr. Louie. (It may bementioned here that on the fateful day, i.e., on 14th December, 1989 Dr. Radhika was on leave.) Hence it cannot be said that Aysha come to this Hospital as Md (Gyn) was written against the name of Dr.Sr. Louie on the name board or she was particular that her check-up should be conducted by the said doctor. Aysha must be knowing about the reputation of the hospital and she come there for her second delivery. Therefore, it is futile to urge on the part of the Complainant that she took her daughter to this hospital under the impression that Dr.Sr. Louie has a postgraduate degree in Gynaecology. Hence we leave the question about the specialised training of Dr. Sr. Louie in Gynaecolongy open and conseuently we set aside the finding of the State Commission on that question.
(20) We, however, agree that Dr.Sr. Louie does not hold the degree or diplomaa of 'MD in Gynaecology' even if she has done a post graduate course in Gynaecology after passing the basic examination from Freiburg University and that course is recognised one in Germany.
(21) Before proceeding further, we may mention here that the Stale Commission has also doubted about the authenticity of the hospital records produced in the case by the hospital authorities. When Dr.Sr. Louie appeared in the witness box, no question was put to her either in cross-examination or by the State Commission that the records were fabricated. Dr. Sr. Louie was the best person to explain about the authenticity and the .entries of those records. Therefore, on guess work or suspicion alone we should not doubt the genuineness of the hospital records.
(22) The State Commission laid much stress upon the fact that in the serioud condition Aysha was, Oxygen should have been given for inhalation. Of course. Dr. Lalitha has stated that from the records she does not find that Oxygen was given to the patient. However, a persusal of the hospital records shows that at 4.30 P.M. on 14th December, 1989 in the advise given by the doctor about the treatment it is mentioned "0 inhalation". In chemistry 0 stands for Oxygen. It appears that in) the prescription "0" has been used in short form for Oxygen. That prescription appears to be made by Dr. Celia. The delivery was effected al4.45 P.M. In the entry made at that time again 0) inhalaiton is mentioned. Otherwise also Dr. Sr. Louie has stated that Aysha was put on Oxygen. We are not going to believe that such an experienced person like Dr.Sr. Louie, Dr. Celia, Anaesthesiologist, who attended Aysha would not put the patient on Oxygen. When inhalation of Oxygen was necessary. Oxygen must have been given to Aysha after her condition become bad betore and after delivery.
(23) The State Commission has also put much stress about the fact that there was no proper diagnosis about the condition of Aysha or the cause of severe bleeding after delivery. According to the Exhibit RW-1, Dr. Vasudevan has recorded "Impression-Hypovolumic shock-? and Amniotic Quid Embolism & Consumptive Conagulopathy. At 9.25 P.M. it was recorded thus, "9.25 P.M.-No pulse, no breathing, Expired-Post partum haemorrhage? Amniotic fluid Embolism-Coagulation failure. Dr. Lalitha (RW-I) has also said that diagnosis is not continued, However, from the evidence it is clear that all the three conditions were connected with each other. Dr. Lalitha has stated that in such circumstances only supportive treatment could be given and the hospital records shows that was duly given. Therefore, in the present case, diagnosis about the cause of death does not have much importance. The complainant party refused the dead body of Aysha post mortemed. Technician's report is on the file (at Page 83 of the State Commission's file) to show that the blood did not clot.
(24) The question still remains to be seen if the conduct of Dr. Sr. Louie was such that it amounts to negligence. It is well settled that for establishing negligence in diagnosis or treatment on the part of doctor, the test is whether he/she has been proved to be guilty or such failure as no doctor of ordinary skill could be guilty of it acting with reasonable care. After consideration of the statements of the witnesses we are of the opinion that in the present case the conduct of Dr.Sr. Louie amounts to negligence. Aysha's condition at the time of her admission was admittedly week. After her first delivery in 1986, which was a complicated one, she had two abortions. The President of Josgiri Hospital Society in the counter has further admitted that anticipating the complications in the case of Aysha, the doctors and the staff were vigilant. However, it did not happen so. Aysha was admitted on 11th December, 1989 as the delivery was expected on that date. On 11th and 12th December, 1989 Aysha did not deliver the baby and she had no labour pain. Therefore, to induce labour pain, on 14th December, 1989 she was given glucose drip with syntocinon. At about 1.P.M. Aysha got mild contractions. On her examination at 2.45 P.M., It was found that the uterus was getting open. She was again examined at 4.15.P.M. and it was found that the labour was progressing. At that time, Dr.Sr. Louie did Arom (Artificial Rupture of Membrane). Liquor was found clear. Ph was good, 114/m. After doing Arom, Dr. Sr. Louie went away to attend patients in the Opd because in the morning she was busy in attending other deliveries and could not attend the patients nor could have the usual round in the Hospital. At that time, only nurse/nurses remained with Aysha. Dr. A.L.Mudaliar and Dr. Krishna Menon in the book "Clinical Obstetrics" have written "when a patient is on syntocinon, a Medical Officer stays with the patient, watching contractions, adjusting the rate of drip and recording foetal heart every half hour." (This passage has been quoted by the State Commission.) The Hospital record does not show that such observations have been recorded except foetal heart. When complication was expected at the time of delivery some qualified medical attendant ought to have remained with Aysha. It appears that when the condition of Aysha was becoming bad Dr. Celia was called by the nurse at 4.30 P.M. She has recorded that "call attended" "pulse not felt, B.P. was not recorded-Pt (patient) cyanosed, laboured breathing, generalised seizure". Thereafter Dr.Sr. Louie appears to have been called. At 4.35P.M. she has recorded "fits, pt (patient) synotic, restlessness P/V, Os fully dialated, Vx below spince." After catheterisation with foly's catheter, Dr.Sr. Louie applied vacuum extractor as she saw that the mother and child were in danger. In ten minutes she look out the baby who was found to be in asphyxiated condition. Aysha started severe bleeding after delivery. The Hospital staff knew that on account of previous history of Aysha there illight be complications at the time of delivery. Dr.Sr. Louie ought to have attended Aysha after doing AROM. Had she been present, she would have noticed the first sign of the complication occurring in Aysha and she could have taken some steps, if possible, to stop further deterioration in the condition of Aysha and perhaps the life of Aysha and baby could have been saved. Admittedly the child in the womb of Aysha was big one as was disclosed by the X-ray examination. In the condition in which Aysha was, baby had to be taken out from the womb of Aysha immediately, otherwise it would have died inside the womb. It appears that in such emergency there was every possibility of vacuum slip. Public Witness 1 Dr. Abdul Salam who treated the baby after it was removed to Indira Gandhi Cooperative Hospital, has stated that the child had injuries due to vacuum slip. Of course, the baby was delivered in such asphyxiated conditions that it was not expected to remain alive.
(25) For the foregoing reasons, it is held that Aysha's and baby's deaths were due to the negligence of Dr.Sr. Louie as she did not exercise reasonable care and skill that a doctor should have taken at the time of delivery of Aysha particularly when complications were expected at the time of delivery. Thus the services rendered to Aysha by the Hospital were defective.
(26) The next question that arises is as to what compensation the complainant is entitled. The State commission has awarded Rs. 50,000.00 as compensation to the complainant for the death of Aysha. We upbold it as it is a reasonable amount.
(27) The State Commission has further allowed Rs. 25,000.00 for the untimely death of the new-born child and Rs.2,000.00 for Hospital expenses. These amounts are also considered to be reasonable compensation.
(28) The State Commission has further allowed Rs. 1,50,000.00 as compensation for bringing up the first child of Aysha who is living with the complainant. We are of the opinion that the complainant is not entitled to this amount. The father of the child is alive and it is his responsibility to support him. If the complainant is unable to support that child, she can claim maintenance tor him from his father. Of course, the father was since re-married. But this is no ground for forcing the Hospital to pay for the bringing up of that child. We, therefore, disallow this amount of compensation.
(29) The award of costs by the Stale Commission is also upheld.
(30) The next question that arises is that which of the parties is responsible to pay this amount. The second appellant Dr. Cletus, who was the first opposite party in the complaint is only an administrator of the Hospital and is looking after the administration. It is pleaded by the President of the Josgiri Hospital Society that she has no personal interest in the hospital except being an administrator. Hence no personal liability can be fixed upon Dr.Cletus.
(31) No liability for the payment of compensation can be fixed upon Dr.Sr. Louie as well. No privity of contract about hiring her service appears from the record. Asnoticed earlier, it is not the case of the complainant that she insisted that the delivery should be effected by Dr.Sr. Louie. Her case is only to the effect that Aysha was taken to the Hospital because Md (Gyn) was mentioned against the name of Dr. Sr. Louie on the name board. As noticed earlier, on privious occasions, Aysha had gone to this Hospital for her check up. On two such occasions she was examined by Dr. Radhika. Had Dr. Radhika not been on leave on the fateful date it is possible that she might have attended to the delivery of Aysha. Payments have been made to the Hospital. Hence, the legal position obtaining in the present case is that there was an arrangement of hiring of services. Therefore, Josgiri Hospital Society, which is running Josgiri Hospital and Nursing Home is liable for the payment of compensation awarded to the Complainant and not Dr.Sr. Louie.
(32) In view of our above discussions, we partly accept this appeal. The amount of compensation awarded by the State Commission is reduced to Rs. 77.000.-. The award of costs is maintained. Josgiri Hospital Society will be liable to make all these payments. We further allow Rs. 2,000.00 as costs to the Complainant-respondent Suit. Kannolil Kunhi Pathumma. This amount will also be paid by the said Society.
Y. Krishan, J. (Member) (33) The above Order of my brother Member, Justice B.S. Yadav, sets out elaborately and lucidly the essential facts of the case. As such it is unnecessary for me to repeat the facts.
(34) Three issues need to be considered in this case:
1.Whether Dr. Sr. Luois is an M.D.?
2.Whether Dr. Sr. Louis was entitled to exhibit her qualification as the M.D.(Gyn)?
3.Whether she was qualified to practice as an Obstetrician?
(35) It has been established that Dr.Sr. Louis is an M.D., Freiburg. After acquiring this qualification, she had also done one year internship in 1970 which was reduced from two years to one year in 1969.
(36) M.D. Freiburg is equivalent to M.B.B.S. in India.
(37) Thus it is misleading for her to show her qualification as M.D. itself as in India M.D. is understood as a postgraduate qualification.
(38) After doing M.D., Freiburg, M.B.B.S. in India) she had undergone specialisation training in Gynaecology for a peirod of tour years. She was granted a Recognition Certificate for her specialisation in Gynaecology. She did not undergo any examination in Gynaecology.
(39) As pointed out by Justice Yadav in this Order, Dr. Sr. Louis does not hold a degree or even a diploma as M.D. in Gynaecology. Consequently, she is not entitled to claim that she is M.D.(Gyn).
(40) The status of the Recognition Certificate obtained by her from Germany after doing training as a Gynaecologist has not been determined: prima facie it is neither a degree nor a diploma.
(41) This is important because under Clause 3 of Section 13 of the Indian Medical Council Act, Medical qualifications acquired outside India are granted recognition provided the person has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification.
(42) It is evident from the provisions of the Indian Medical Council Act that, for recognition of medical qualifications granted by medical institutions outside India, a person, inter alia, must have undergone practical training after obtaining the necessary qualification: a qualification has to be in the form of a degree or diploma and this has to precede practical training. In this case Dr. Sr. Louis appears to have undergone practical training course in Gynaecology without having acquired any qualification in the form of degree or diploma in that discipline. In the result Dr.Sr. Louis is not entitled to claim that she is M.D.(Gny) in India. I, therefore, agree with the finding of the State Commission that the qualification of Dr. Sr. Louis as M.D.(Gny) is not recognised under the Travencore Cochin Medical Practitioners Act.
(43) Again in the name board exhibited in the Josgiri Hospital her name is exhibited under the category "Gynaecologists" which is indicative of the fact that she possesses and claims it to be a post graduate qualification in Gynaecology. This is wrong.
(44) The second question to be considered is whether she is also qualified as Obstetrician, Freiburg.
(45) In our country an M.B.B.S. has to undergo a course in Gynaecology as well as Obstetrics. While these two disciplines or specialities of medical science generally go together, yet they are separate specialities. As noticed by the State Commission, Madras & Marathwada Universities award M.D. in Obstettrics, while other Universities award M.D. in Gynaecology & Obstetrics?
(46) Gynaecology is a study of disorder or the female reproductive system, in short, diseases of women. It deals with menstrual disorders, menopause, infectious diseases of the pelvic organs, maldevelopment of these organs, functional and endocrine disturbances etc. (See Columbia Encyclopaedia, 9th reprint, 1968). Obstetrics is science and art of assisting the women in pregnancy and birth. To put it shortly Obstetrics is only "Scientific midwifery".
(47) In consequence an M.D. in Gynaecology need not necessarily be also an M.D. in Obstetrics in all the countries in the world.
(48) It has been not determined whether the course in M.D. Freiburg (M.B.B.S. in India) also includes study and training in Obstetrics as in India. This is particularly important to determine whether she was qualified to use vacuum extractor whose shlip caused injuries to the child which was delivered.
(49) In brief Dr.Sr. Louis has falsely and misleadingly shown herself to the public as: (a) M.D. (b) as M.D. with Gynaecology qualification. (c) whether she is qualified as an Obstetrician at the M.B.B.S. level in India has not been clearly established.
(50) I, therefore, uphold the Order of the State Commission except in regard to its finding that she is not a fully qualified medical practitioner. The amount awarded will be payable jointly & severally by Josgiri Hospital Society & Dr.Sr. Louis.