State Consumer Disputes Redressal Commission
Vaishali Zatakia vs Dr. Ajay Shah & Anr. on 1 February, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/98/412
1. VAISHALI ZATAKIA
2/20, GHANSHYAM BAUG,
KAMA LANE,
GHATKOPAR(W), MUMBAI-400086.
...........Complainant(s)
Versus
1. DR. AJAY SHAH
JEEVAN JYOT
HOSPITAL, OPP. GHATKOPAR RAILWAY STATION, GHATKOPAR
(W), MUMBAI-400086.
2. DR. L.M.SHAH
JEEVAN JYOT
HOSPITAL, OPP. GHATKOPAR RAILWAY STATION, GHATKOPAR
(W), MUMBAI-400086.
............Opp.Party(s)
BEFORE:
Hon'ble Mr. P.N.
Kashalkar PRESIDING MEMBER
Hon'ble Mr. Dhanraj
Khamatkar Member
PRESENT:
Mr. Shirish Deshpande,
Advocate for the Complainant
Mr. S.B. Prabhawalkar, Advocate for the Opponents.
ORDER
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member This is a consumer complaint filed by one Vaishali Zatakia of Mumbai against Dr.Ajay Shah and Dr.L.M. Shah, both of Jeevan Jyot Hospital, Ghatkopar (West), Mumbai alleging medical negligence on their part. According to the complainant, she had approached Jeevan Jyot Hospital at Ghatkopar where she had delivered a baby girl on 27/11/1996. Delivery was done by vacuum forceps operation and she was discharged from the hospital on 01/12/1996. Immediately after discharge, she had complained that faecal matter was coming out from her vagina. Therefore, she was examined by both the doctors on 03/12/1996 in their hospital and it was noticed that rectovaginal fistula had developed.
On 05/12/1996 complainant was operated for rectovaginal fistula by both doctors and also by Dr.Parag Shah.
However, said operation did not give any relief to her. Then she was taken to Dr.Pramod Jhawer at Bombay Hospital on 09/12/1996. She was hospitalized in the Bombay Hospital and after examination of the complainant Dr.Jhawer observed that the damage to the complainant was such that it needed multiple-stage repairs.
On 11/12/1996, first stage repair operation, namely, Colostomy was done by Dr.Jhawer at Bombay Hospital. On 20/03/1997 she was again admitted in the Bombay Hospital for second stage operation, namely, Sphincteroplasty operation and then in mid-May 1997 Dr.Jhawer advised physiotherapy for faradic current stimulation. After about a month, in mid-June 1997 physiotherapist suggested second consultation with Dr.Jhawer. Dr.Jhawer suggested a few faradic current stimulations to demonstrate action of anal contraction. In the meanwhile, complainant lodged claim for reimbursement of medical expenses. However, by letter dated 15/05/1997 the Insurance Company rejected complainants claim on the ground that their Panel doctor opined that rectovaginal fistula developed due to incorrect episiotomy and therefore, the claim fell under the exclusion clause No.4.12 of the insurance policy and therefore, claim was not paid. In the last week of July 1997 Dr.Jhawer suggested surgical repair of anal sphincter. Accordingly, on 06/08/1997 complainant was again admitted in Bombay Hospital where Dr.Jhawer recommended third-stage operation, namely, Sphincteroplasty and excision of fistula. The complainant was operated on 08/08/1997 by Dr.Jhawer. She was discharged from Bombay Hospital on 27/01/1998 with remarks on Discharge Card conspicuous leak in certain positions and closure of colostomy with colocolic anastomosis under S.A. According to the complainant, even today she suffers from grievous effects of the damage caused by rectovaginal fistula and cannot pass stool in normal manner without using colostomy bag, each time she has to relieve herself in toilet. According to the complainant, both opponents rendered deficient medical services which caused the complainant to incur substantial amount running into several lakhs for medical treatment and for four surgical operations including the operations for three stage repairs, cost of medicines, colostomy bags, consultation fees of doctors, etc. All the expenses are squarely attributable to the damage caused by rectovaginal fistula stated to have developed due to incorrect episiotomy. The complainant therefore pleaded that now she could not be restored to the position in which she was prior to the damage. She could not breast-feed her baby. The complainants earning from her part-time occupation was also stopped. A cook and maid servant was required to be employed by the complainant due to her disability. All these factors cause mental agony and great hardship to the complainant.
She therefore claimed compensation of `9,07,168/- from the opponents.
2. Opponent No.1 filed written version and contested the complaint. According to opponent No.1, complainant has filed consumer complaint which is false, frivolous and vexatious to her knowledge and with ulterior motive to get some handsome ransom from the opponents.
The complainant filed consumer complaint on the alleged ground of medical negligence, but complainant has not filed any separate affidavit of doctor in support of her contentions.
Opponent No.1 relied upon the judgement of the Honble National Commission in the case of Dr.N.T. Subramaniam V/s. Dr.B.Krishna Rao, 1986-1996 NC & SC on consumer cases page-2350, wherein it has been held that, A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be found negligent merely because in a matter of opinion he made any error of judgement. It is also well settled that when there are genuinely two responsible schools of thought about management of a clinical situation the doctor can choose any one form of treatment in preference to another at his discretion. In the present case, the complainant made wild allegations not substantiated by expert opinion. Therefore, complaint deserves to be dismissed with costs. According to opponent No.1, complainants claim is very exorbitant. She is claiming `2,25,000/- towards mental torture and mental agony. Without substantiating said claim, she had claimed refund of various bills. She also claimed amount of `3,34,000/- towards loss of patients earning.. Most of the claims are illusory. Opponent No.1 pleaded that in fact on perusal of complaint, it is evident that complainant was trying to take advantage of medical mishap which had taken place at the time of her delivery on 27/11/1996. Opponent No.1 pleaded that above complaint involves complicated question of facts and therefore, it should not be tried by the Fora under the Consumer Protection Act, 1986 and it should be tried by the regular Civil Court.
Opponent No.1 pleaded that in the notice sent 15 days prior to filing of the complaint she had now where mentioned that she had spent `6,82,000/- towards her illness. Opponent No.1 pleaded that complainant cannot be said to be a consumer since she was not alleging that she had paid certain fees to opponent Nos.1&2 for her delivery and operations. Opponent No.1 denied that he had been guilty of medical negligence of any kind in operating the complainant-lady for rectovaginal fistula.
Opponent No.1 further pleaded that complainant was admitted in their hospital on 27/11/1996 for delivery.
She delivered a baby girl at their hospital. Delivery was performed by vacuum delivery method and she was discharged on 01/12/1996. Delivery was uneventful and successful and there was no complaint of any nature during her stay in their hospital. After two days she came back to opponent No.1 and complained about getting faecal discharge from her vagina. Thereafter, opponent No.2 examined her and on examination, opponent No.2 was of the opinion that rectovaginal fistula had developed and he suggested surgery and accordingly, on 05/12/1996 Dr.Parag Shah operated her.
It was pleaded by opponent No.1 that at the time of delivery to facilitate the delivery of the complainant an episiotomy was made to enlarge the passage. This was standard procedure prescribed and the same was sutured in standard manner since vaginal wall and the rectum was in close proximity to one another, the occurrence of a fistula is a known phenomena. Opponent No.1 relied upon reference of Dr.Williams Obsterics 20th Edition page-42 and also made reference from Manarkerrs Operative Obstetrics page-868-869 (perineal tears). Opponent No.1 pleaded that Dr.Parag Shah performed surgery and he assisted him in the said surgery and he had accompanied with the complainant to Dr.Pramod Jhawer on 09/12/1996. Opponent No.2 also recommended name of Dr.Jhawer. They offered all assistance to the complainant in every respects. Dr.Jhawer then continued the treatment in the Bombay Hospital on the complainant. Complainant did not consult opponent No.2 after 07/12/1996. Opponent No.1 pleaded that he had explained all the steps taken at their hospital and explained to her that there was no negligence of whatsoever nature on their part. Allegation of medical negligence was false and bogus and without there being any expert opinion, complainant cannot allege act of medical negligence on their part and therefore, opponent No.1 pleaded that complaint should be dismissed with costs.
3. Opponent No.2 filed affidavit in reply and adopted the written version presented by Dr.Ajay Shah dated 19/07/1999 and informed this Commission that same should be treated as his written version. He pleaded that allegations made by complainant are false and bogus and complaint should be dismissed with costs for the reasons already stated by opponent No.1 in his written version.
4. Complainant filed affidavit-in-rejoinder and repeated her own case in the rejoinder. Complainant in rejoinder at para-26 specifically pleaded that she had received an expert opinion from Association for Consumers Action on Safety and Health (ACASH) in support of her complaint. She annexed at Exhibit-D said opinion dated 26/11/1999 and if necessary she undertook to produce affidavit of concerned expert, who had given said opinion.
5. Both the parties filed affidavit evidence and relied on certain documents.
We heard Mr.Shirish Deshpande, Advocate for the complainant and Mr.S.B. Prabhawalkar, Advocate for opponents.
6. The points that arise for our consideration and our findings thereon are as under :-
Point Finding
1. Does the complainant prove that at the time of her No delivery on 26/11/1996 at Jeevan Jyot Hospital, opponent Nos.1&2 while performing delivery by vacuum forceps method she had developed recto-
vaginal fistula because of negligence on the part of opponent Nos.1&2?
2. Does the complainant prove that her case can fall No within the ambit of res ipsa loquitor and her further operations got performed from Dr.Jhawer of Bombay Hospital was on account of negligent treatment given to her by opponents in their Jeevan Jyot Hospital?
3. What order? Complaint stands dismissed.
REASONING
7. It is an admitted fact that complainant was admitted in Jeevan Jyot Hospital of opponents for delivery and she delivered a baby girl at the said hospital. Said delivery was performed by vacuum delivery method and she was discharged from hospital on 01/12/1996. Said delivery was uneventful and successful and there was no complaint of whatsoever nature at the time of discharge.
Admittedly, after two days, she again approached the opponents at Jeevan Jyot Hospital, Opponent No.2-Dr.L.M. Shah examined her and she complaint that she was getting faecal discharge from her vagina.
Opponent No.2 examined her and he was of the opinion that rectovaginal fistula was developed and he suggested surgery for the same. Accordingly, on 05/12/1996 Dr.Parag Shah operated upon the complainant for said surgery for repairing said part. According to opponents, reason for complication was that at the time of delivery, to facilitate delivery of the complainant an episiotomy was made to enlarge the passage. This was standard procedure prescribed and the same was sutured in standard manner since vaginal wall and the rectum was in close proximity to one another, the occurrence of a fistula is a known phenomena. So, now, we have to see whether occurrence of fistula in the case of delivery of this nature is the known complication.
It has been observed in Dr.Williams Obsterics 20th Edition page-180 under SECTION VI. OPERATIVE OBSTETRICS The very conditions that lead to the requirement for operative vaginal delivery would also be expected to increase the need for episiotomy.
This is supported by the observation that women randomized to delivery with low forceps had no increase in perineal lacerations relative to those delivering spontaneously (Carmona and colleagues, 1995). Hagadorn-Freathy and co-workers (1991) reported rates for perineal injury-third-and fourth-degree episiotomies and vaginal lacerations-of 13 percent for outlet, 22 percent for low-forceps with less than 45 degrees rotation, 44 percent for low-forceps with greater than 45 degrees rotation, and 37 percent for midforceps operations.
In SpringerLink-Journal Article The incidence of anorectal complications following vaginal delivery was studied in 20,500 women. One thousand forty (5 percent) of all normal vaginal deliveries resulted in episiotomy with third and fourth degree extension or a fourth-degree perineal tear. Of these fourth-degree lacerations, 101 patients (10 percent) experienced wound disruption after primary repair. Sixty-seven patients (66 percent) experienced wound disruption that required surgical correction. Anorectal complications were anal ulcer, anorectal abscess, sphincteric disruption, and rectovaginal fistula. Surgical correction of these complications resulted in satisfactory outcome.
From Perineal tear classification Wikipedia downloaded from internet, it is found that Perineal tear classification is a system used to quantify the severity of trauma to the perineum during vaginal childbirth. Delivery may lead to overstretching of the vagina, causing tears in the perineal tissue between the vagina and rectum.
Lacerations are classified into four categories.
First degree tear : laceration is limited to the fourchette and superficial perineal skin or vaginal mucosa.
Second degree tear : laceration extends beyond fourchette, perineal skin and vaginal mucosa to perineal muscles and fascia, but not the anal sphincter.
Third degree tear : fourchette, perineal skin, vaginal mucosa, muscles, and anal sphincter are torn.
Fourth degree tear : fourchette, perineal skin, vaginal mucosa, muscles, anal sphincter, and rectal muscosa are torn.
8. It has been observed in other Journal which was downloaded from Internet as eMedicine, that A rectovaginal fistula is a medical condition where there is a fistula or abnormal connection between the rectum and the vagina. Rectovaginal fistula may be extremely debilitating.
If the opening between the rectum and vagina is wide it will allow both flatulence and feces to escape through the vagina, leading to faecal incontinence. There is an association with recurrent urinary and vaginal infections. This type of fistula can cause pediatricians to misdiagnose imperforate anus. In the causes, it has been mentioned that
- Rectovaginal fistulae are often the result of trauma during childbirth (in which case it is known as obstetric fistula) in situations where there is inadequate health care, such as in some developing countries. Rates in Eritrea are estimated as high as 350 per 100,000 vaginal births. Fistulas can also develop in women and children who are raped.
Lacerations of the birth canal and perineum are common with vaginal birth. Fetal weight greater than 3500 grams, second stager longer than 120 minutes and instrumental deliveries are associated with perineal lacerations but not other types of lacerations. Routine episiotomy had been ascribed to protect the pelvic floor, reduce perineal trauma, and be easier to repair than the ragged lacerations incurred without episiotomy. Indeed, two decades ago 80% of nulliparous women and 20% of multiparous women had routine episiotomy. However, several studies strongly linked an excess of third and fourth-degree lacerations to routine episiotomy. Homsi and coworkers, in a review of the literature, found that episiotomy with subsequent third-and fourth-degree lacerations increased the risk for rectovaginal fistula by 4.6 fold. It has been also reported that the incidence of rectovaginal fistula in patients with fourth-degree tears is as high as 1.5%. It has been also observed that fistula may not be recognized early in the postpartum course because of difficulty with post-delivery examination or later because of problems with constipation.
9. In our case, the complainant was admitted in Jeevan Jyot Hospital managed by opponent Nos.1&2. In the written version, it has been clearly admitted in Para 22 that the delivery was safe and uneventful. She was discharged from the Hospital on 01/12/1996 and two days later, complainant once again approached their Hospital and complained to opponent No.1 that she was getting faecal discharge from her vagina.
Thereafter, opponent No.2 examined her and he was of the opinion that the lady has developed rectovaginal fistula and suggested surgery for the same. Accordingly, on 05/12/19965 Dr.Parag Shah operated the complainant for rectovaginal fistula for repairing said part. It has been further mentioned by opponent Nos.1&2 in the written version that the reason for complication was that to facilitate the delivery of the complainant an episiotomy was made to enlarge the passage. Same was sutured in standard manner and since, vaginal wall and the rectum are in close proximity to one another, occurrence of a fistula is a known phenomenon and we have already seen in the above Paras that the complainant was required to be done episiotomy to facilitate delivery of complainant and while doing so since the vaginal wall and rectum are in a close proximity to one another, rectovaginal fistula is known natural phenomenon and she was operated for rectovaginal fistula on 05/12/1996 and she was discharged. Thereafter, she was required to approach Dr.Pramod Jhawer on 09/12/1996 at Bombay Hospital, where he performed three stages repair operations on the complainant to which opponents were not concerned with.
They were simply concerned with the fact that whether there was any medical negligence on their part during the delivery of the complainant in their Hospital on 27/11/1996, till her discharge on 01/12/1996. In our view, looking to the literature produced on record, we are of the view that rectovaginal fistula is the known phenomenon/complication where the lady is required to be delivered with the help of Vacuum Delivery method.
Episiotomy was done to facilitate delivery of the complainant and that was done to enlarge the passage for smooth delivery of the lady. So, in our view the incidence of rectovaginal fistula is the known complication and there was no negligence of any kind on the part of both doctors of Jeevan Jyot Hospital in resorting to episiotomy to enlarge the passage at the time of delivery and in the process, she had developed rectovaginal fistula. This is the normal incidence that can be fall on any lady who is admitted for delivery in the Hospital. For safe delivery of any patient doctor has to resort to episiotomy to enlarge the passage and in doing so, in the course of Vacuum Delivery method, incident of rectovaginal fistula is always possible and nobody can escape from such type of known complication.
10. Advocate Mr.Shirish Deshpande for the complainant argued before us that this was a case of res-ipsa-loquitur and no expert evidence needs to be asked for from the complainant. However, this is not a case wherein we can apply the principle of res-ipsa-loquitur to hold both doctors as negligent. When any method is adopted by doctors to treat the patient, same gives rise to some sort of known complication. Then in that case, simply because that complication has arisen that would not mean that we should apply principle of res-ipsa-loquitur conveniently to hold both doctors guilty, ipso-facto. In the instant case, occurrence of rectovaginal fistula is the known complication in the case where delivery by Vacuum Method was employed. In the course of Vacuum Delivery Method, doctors still found there cannot be normal delivery, therefore, episiotomy was required to be done to enlarge the passage and while enlarging the passage by means of episiotomy, there might be some perineal tear on the wall of rectum which is always in a close proximity with vaginal wall. So, the complication giving rise to rectovaginal fistula is the known complication in the medical world and when known complication arose, the doctors cannot be held guilty by simply applying principle of res-ipsa-loquitur.
In such a case, there is no negligence whatsoever on the part of doctors helping the patient for her safe delivery.
So, in our view, in a case like this, principle of res-ipsa-loquitur cannot not be invoked or applied for the benefits of the complainant, who had otherwise adduced no evidence of expert to prove that both doctors/opponent Nos.1&2 are guilty of medical negligence in treating the complainant.
11. It was tried to be contended by Advocate Mr.Deshpande that doctors had referred the complainant to Dr.Jhawer of Bombay Hospital and Dr.Jhawer performed three more operations by way of first stage, second stage and third stage repairs. Merely because of subsequent operations were required to be undergone by the complainant that does not ipso-facto mean that we should hold first doctors who performed delivery of the complainant guilty of medical negligence.
12. It was tried to be contended by Advocate Mr.Deshpande that from Discharge Summery issued by Bombay Hospital, it was clear that it was the case of medical negligence.
However, Bombay Hospital Discharge Card simply mentioned about rectovaginal fistula and three stages repair operations were performed on said lady in Bombay Hospital by Dr.Pramod Jhawer. From the Discharge Card, we cannot come to the conclusion that there was negligence on the part of doctors, who conducted delivery of the complainant in Jeevan Jyot Hospital.
13. On the other hand, we agree with Advocate Mr.Prabhawalkar for the opponents when he contends that the complainant had not adduced any expert evidence and this an admitted fact. No doubt complainant had procured some opinion on 26/11/1999 during pendency of this complaint from Association for Consumers Action on Safety and Health (ACASH). ACASH is the NGO, who cares for the safety and held of consumer and help the consumer to take action against the doctors. One Mr.Yogesh Kamdar, Secretary, ACASH had given opinion on behalf of ACASH which is at Exhibit-D. In his opinion dated 26/1`1/1999 he was asked what is the percentage probability of occurrence of rectovaginal fistula in India and his answer was that Perineal tear is a common occurrence with head of the foetus coming out in a mal-presentation known as oscipitio posterior position with face to pubis delivery. This mal-presentation occurs one in 200 to 250 cases. Minor degree of perineal tears are known to occur in these cases. However, III degree tear involving anal sphincter, anal and recial mucoss occurs one in thousand deliveries. (This incidence is from a general hospital, Mumbai). ACASH was asked question whether they think this is a case of incorrect episiotomy as is expressed by the panel doctor of Insurance Company who opined incorrect episiotomy as the cause of the damage and expert from ACASH answered that cannot opine as details of episiotomy is not provided. He was asked that three stages repair operations were done, does it prove that the same was a result of incorrect episiotomy and his answer was that three stages repair operations were done due to contamination of wound with faecal water not due to episiotomy.
He was further asked Is the occurrence of rectovaginal fistula is a normal incident of gynaec operation or does it necessarily indicate medical negligence on the part of the surgeon.
The answer given was that it does occur during vaginal delivery (III degree perineal teat). But it should be recognized and properly sutured, otherwise it results in rectovaginal fistula. Then, he was asked if the occurrence of rectovaginal fistula is considered a known complication, normally how much time is required to rectify the damage caused by the rectovaginal fistula or in the normal case, what type of operation, the patient may have to undergo.
The answer given was that at the time of delivery, it should be dealt with, while suturing the tears/episiotomy. Post operative care is important. If it fails reattempt at repair is done after treating infection, inflammatory oedema etc. is when involution is complete. It also depends on the size, shape, situation of fistula and the amount of fibrosis around the fistula. The answers have been given by the person connected with ACASH. The letter has been signed by Mr.Yogesh Kamdar, Secretary of ACASH, he does not mention it he is a doctor or not. That apart, the expert opinion given by ACASH relied upon by the complainant does not prove that there was any negligence on the part of doctors, who performed delivery of the complainant.
Rectovaginal fistula is the normal complication even according to the opinion given by ACASH. That apart, ACASH cannot be said to be expert body of the medical field whose opinion could be weighed heavily in favour of the complainant.
14. Advocate Mr.Prabhawalkar rightly therefore submitted that there was no expert evidence adduced by the complainant and simply because expert evidence is not available or adduced by the complainant, by applying principle of res-ipsa-loquitur, this case cannot be decided in favour of the complainant on the basis of that maxim itself. Advocate Mr.Prabhawalkar also rightly submitted before us that ground of res-ipsa-loquitur was not taken or raised by the complainant in her complaint as presented in this Commission. In rejoinder, for the first time, the complainant admitted that complainant was not relying upon any expert evidence and principle of res-ipsa-loquitur was pleaded to overcome the difficulty faced by the complainant. Rejoinders are not taken in the proceeding before the Consumer Fora, it is the practice followed in Mumbai under the Code of Civil Procedure.
In any view of the matter, Advocate Mr.Prabhawalkar has rightly submitted that principle of res-ipsa-loquitur has been invoked for the first time by the complainant in rejoinder and it is not finding place in the complaint originally filed by the complainant. In Para 26 of the rejoinder, the complainant stated that she had received expert opinion from ACASH in support of her complaint and she relied upon the Exhibit-D, opinion given by said ACASH and if necessary she mentioned that she would undertake to produce affidavit of concerned expert who had given said opinion. However, Advocate Mr.Prabhawalkar rightly pointed out that though she was prepared to produce affidavit from ACASH, said expert had not filed affidavit in support of complainant that is the major lacuna we are finding in the case of the complainant. Advocate Mr.Prabhawalkar also submitted that complainant should have produced affidavit of Dr.Jhawer in support of her plea that opponent Nos.1&2 who performed delivery and episiotomy on the complainant were guilty of negligence, but no where in the papers it has been observed by Dr.Jhawer that opponents were guilty of negligence nor complainant has filed affidavit of Dr.Jhawer, who had performed three operations on the complainant in the Bombay Hospital. Advocate Mr.Prabhawalkar has also brought to our notice the fact that the complainant was prompted to file complaint on the opinion given by the Panel doctor of the Insurance Company who had opined that there was medical negligence on the part of doctors who performed delivery and episiotomy on the complainant at the time of delivery in Jeevan Jyot Hospital. On that count the concerned Insurance Company had repudiated the medi-claim of the complainant. Complainant should have filed affidavit of said Panel doctor, who gave opinion in that behalf. No such affidavit of Panel doctor of Insurance Company in support of complainants case is filed on record by the complainant.
15. The complainant relied upon the ruling of the Honble Supreme Court in the case of V. Kishan Rao V/s. Nikhil Super Speciality Hospital and another, 2010 INDLAW SC
364. In this case, no doubt, the Supreme Court made following observations :-
33. A careful reading of the aforesaid principles laid down by this Court in Indian Medical Association, 1995 Indlaw SC 132 (supra) makes the following position clear :-
(a) There may be simple cases of medical negligence where expert evidence is not required.
(b) Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act.
(c) In complicated cases where expert evidence is required the parties have a right to go to the Civil Court.
(d) That right of the parties to go to Civil Court is preserved under Section 3 of the Act.
The Supreme Court also observed in Para 43 as under :-
43. In Spring Meadows 1998 Indlaw SC 1577 (supra) this Court was dealing with the case of medical negligence and held that in cases of gross medical negligence the principle of res ipsa loquitur can be applied. In paragraph 10, this Court gave certain illustrations on medical negligence where the principle of res ipsa loquitur can be applied.
The Supreme Court also observed in Para 4 as under :-
47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such as case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
16. In this case, the facts were that the complainants wife was admitted in respondent No.1 hospital on 20/07/2002 since wife was suffering from fever which was intermittent in nature and was complaining of chill. His wife was subjected to certain tests by the respondent No.1 but the test did not show that she was suffering from malaria.
Complainant further submitted that his wife was not responding to the medicine given by the respondent No.1 and thus her condition was deteriorating day by day and patient was finally shifted to Yashoda Hospital from respondent No.1 in a very precarious condition and was virtually, clinically dead and on the ground that his wife was not given proper treatment and respondent No.1 was negligent in treating the patient, the complainant had filed consumer complaint which was allowed by the District Consumer Disputes Redressal Forum directing respondent No.1 to refund amount of `10 ,000/- to the complainant to pay `2 Lakhs as compensation. In appeal, the State Consumer Commission overturned the order of the District Consumer Disputes Redressal Forum and held that the complainant failed to establish any negligence on the part of the hospital authorities. The National Consumer Commission too upheld the order passed by the State Consumer Commission and hence, complainant approached the Apex Court and the Apex Court held that it was the case of wrong treatment. In as much as patient was not treated for malaria when the complaint was of intermittent fever and chill and patient was treated for Typhoid and as a result of which condition of patient deteriorated and when the condition became very critical, patient was removed to Yashoda Hospital, but patient could not be revived. Under those circumstances, the Honble Supreme Court held that expert evidence was not required as negligence was evident from the facts and the circumstances established in that case. However, this case cannot be applied to the fact of our case in which it is evident that delivery of the complainant was done under Vacuum Method. It was noticed by doctors that for smooth delivery, passage should be enlarged and hence, they resorted to episiotomy and then there was normal delivery and she was discharged and after two days she complained about getting faecal discharge from her vagina and on examination, opponent No.2 opined that the complainant had developed rectovaginal fistula for which operation was performed on 05/12/1996 by Dr.Parag Shah. Thereafter, she did not turn up and she approached Dr.Jhawar who performed three stages repair operation in Bombay Hospital.
17. As we have seen above, rectovaginal fistula is the known complication of delivery by Vacuum Delivery method, an episiotomy was made to enlarge the passage for safe delivery and in the process there might have been some lacerations to the vaginal wall of the lady which is in close proximity with the wall of rectum. In the process after two days she was found to be having rectovaginal fistula which was treated properly by the doctors and then she was referred ultimately to Dr.Jhawer. In our view, the case of the Supreme Court relied upon the complainant for applying res-ipsa-loquitur is not applicable to the facts and circumstances obtainable in our case. There is no negligence established on the part of both the opponents. They had done everything for smooth delivery of the complainant and since rectovaginal fistula is the common complication in the delivery of this type, the principle of res-ipsa-loquitur cannot be invoked to hold opponents guilty of medical negligence.
In the result, we are of the view that the complainant has failed to establish any medical negligence on the part of opponents either by adducing expert evidence or proving circumstance which is clearly pointed out that the opponents were guilty of medical negligence. We reiterate that by resorting to principle of res-ipsa-loquitur we cannot hold opponents guilty of any kind as alleged by the complainant. In the circumstances, we hold that there is no merit in the complaint. We record our finding on point Nos.1&2 in the negative and proceed to pass the final order.
-: ORDER :-
1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 1st February 2012.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member dd