State Consumer Disputes Redressal Commission
Dr. (Mrs.) N.K. Arora, (Senior Medical ... vs 1. Luxmi Rastogi Wife Of Sh. Ram Partap ... on 26 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.1351 of 2008 Date of Institution: 11.06.2008 Date of Decision: 26.10.2012 Dr. (Mrs.) N.K. Arora, (Senior Medical Officer, Haryana Civil Medical Services I r/o E-2105, Palam Vihar, Gurgaon. Appellant (OP-1) Versus 1. Luxmi Rastogi wife of Sh. Ram Partap Rastogi, Resident of H.No.1245-A/3, Street No.5, Rajiv Nagar, Gurgaon, Tehsil and District Gurgaon. Respondent (Complainant) 2. Civil Surgeon, Gurgaon. 3. State of Haryana through Collector Gurgaon. Respondents (Ops No.2&3) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Sandeep Jasuja, Advocate for appellant. Shri Y.S. Yadav, Advocate for respondent No.1. Respondents No.2 and 3 exparte. O R D E R
B.M. Bedi, Judicial Member:
Challenge in this appeal is to the order dated 23.04.2008 passed by District Consumer Forum, Gurgaon in complaint bearing No.774/2005 filed by the respondent No.1 (complainant) whereby the appellant-opposite party No.1 was held guilty of medical negligence and deficiency in service and issued following direction:-
..We therefore, allow this complaint and direct the opposite party No.1 to pay Rs.50,000/- to the complainant as damages, Rs.10,000/- on account of cost of treatment and Rs.5,000/- on account of cost of litigation. Order be complied with within one month from the date of receipt of the copy of this order.
The brief facts of the present case as emerged from the record are that on 27.11.2004 the complainant was admitted in Civil Hospital, Gurgaon for delivery of child where she was treated by the opposite party No.1. Opposite Party No.1 advised ultrasound which the complainant got from Suraj Diagnostic & Research Centre, Gurgaon. After examining the ultrasound report, the opposite party No.1 advised for immediate operation and accordingly the complainant delivered a female child by way of caesarian operation. The complainant was discharged from the hospital on 06.12.2004. After 2-3 days, the complainant felt pain in her stomach and pus and bleeding started coming out with urine for which the complainant consulted the opposite party No.1 who prescribed some medicines but with no relief to the complainant. The problem continued increasing. The opposite party No.1 had assured that the complainant would be alright within 2-3 months. Thereafter, the complainant got conducted ultrasound from Roma Diagnostic, Delhi on 20.04.2005 where some foreign body was reported in the stomach. Complainant visited the opposite party No. 1 she did not give any satisfactory reply. Then the complainant got herself checked from Kharbanda Maternity Nursing Home at Gurgaon which advised ultrasound, which was got done from Modern Diagnostic Research Centre, Gurgaon. Dr. Kharbanda after seeing the report opined that there was some foreign body in complainants stomach and the same could be removed by operation, the expenses for which was told about Rs.40,000/- to Rs.50,000/-. Thereafter, the complainant consulted Dr. Vikram Yadav who also prescribed ultrasound, which the complainant got done from Jain Diagnostic & research Centre and again it was reported that there was some foreign body in the stomach of the complainant and the same had to be removed through operation. Though the complainant had shown the ultrasound report to the opposite party at every time but the opposite party No.1 always replied in negative. The complainant visited Bareilly at her relatives and got herself checked up from Dr.Shrivastva in a private hospital, Bareilly who after going through the entire medical record of the complainant opined that there was cotton roll in the stomach of the complainant, who removed same by way of operation and got the photographs of the scene of the operation. A news item was also published in the newspaper. Thus, alleging medical negligence and deficiency in service on the part of the opposite parties, the complainant filed complaint before the District Forum seeking direction to the opposite parties to pay Rs.4,50,000/- as compensation for the expenses incurred by her on her treatment due to negligence of the opposite parties as well as for mental agony and harassment.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement stating therein that the opposite party No.1 being the Government employee, in the Government Hospital, was not responsible for any kind of negligence and deficiency in service as alleged by the complainant, as nothing was charged from the complainant. It was further stated that the complainant had come to the General Hospital, Gurgaon 27.11.2004 in serious condition with profused bleeding per vaginum. She had full term pregnancy. Fetus was in distress and serious as per the ultrasound report. She was admitted in the hospital and after four hours of her medical and surgical efforts, the complainant as well as her baby could be saved despite cord around the neck of the child. The complainant was advised Ultra sonography to detect placement position in the uterus from the hospital itself but the complainant had got it done from some outside Doctor. After going through the Ultra sonography report, the opposite party No.1 alongwith her team performed caesarian section with tubectomy operation. The complainant was personally looked after by the doctors and the staff at the hospital and during operation the sponges used were counted and supplied by the OT staff. The opposite party No.1 and the OT staff nurse had recounted the sponges on the operation table itself. Some of the routine medicines were given to the complainant from the hospital. But some special medicines depending upon critical condition of the patient were purchased from outside due to non-availability of the same in the hospital. On 06.12.2004, the complainant was discharged from the hospital as she was normal. The complainant had complained of mild pain in abdomen and blood stained discharge per vaginum and she was attended by various doctors of the hospital. On 11.04.2005, the complainant was advised to visit Safdarjang Hospital, Delhi by the opposite party No.1 but the complainant did not pay any heed to the said advice. Complainant visited General Hospital, Gurgaon on 11.07.2005 and 16.08.2005 where she was attended by Dr. Suman Bishnoi. She was thoroughly examined, investigated and was advised to get admitted in General Hospital, Gurgaon for surgical exploration of the abdomen but the complainant did not pay any heed to her advice. Denying any kind of deficiency in service and medical negligence, the opposite parties prayed for dismissal of the complaint.
Both the parties adduced evidence in support of their respective claims. On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and issued direction to the opposite party No.1 as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite party No.1 has come up in appeal.
Arguments heard. File perused.
On behalf of the appellant it is contended that no expert evidence in support of the allegations was produced by the complainant and no authenticated evidence was produced in support of her claim. Learned counsel for the appellant has vehemently argued that without examining the Doctor who had taken out the cotton gauge from the stomach of the complainant, no medical negligence can be attributed to the appellant-opposite party No.1.
The contention raised on behalf of the appellant is without any force in view of the evidence produced on the record which has been discussed by the District Forum in the impugned order while deciding the complaint. The relevant part of the impugned order, reproduced herein below, clearly established the medical negligence of the appellant-opposite party No.1:-
There is no denial of the fact by the opposite party No.1 that she dealt with the case of the delivery of the child of the complainant and the complainant brought forth a female child by operation on 27.11.2004 and she was discharged from the hospital on 06.12.2004 after being found normal by the opposite party No.1. The complainant has alleged that at the time of conducting operation by the opposite party No.1 a cotton roll was left in the stomach/abdomen of the complainant. After the discharge from the hospital the complainant stated to have consulted opposite party No.1 several times. The prescription slips of the same are Annexure C-1 to C-5. The Urine report dated 11.07.2005 is Annexure C-6, which was done on the advice of the opposite party No.1 showing pus in the urine. The complainant also got ultrasound conducted of the lower abdomen from Roma Diagnostic Centre Delhi. As per report of the above centre Annexure C-7 an echogenic 27 mm long mass lesion in anterior wall of uterus FB/clot was found and laparoscopy was advised. The complainant got ultrasound conducted from Modern Diagnostic and Research Centre, Gurgaon on 09.07.2005. The report is Annexure C-8. The impression in the report was that there was foreign body in the pelvis with mild free fluid in endometrial cavity and in pelvis. The complainant ultimately consulted at Dr. G.K. Shrivastva Hospital Pvt. Ltd., Bareli on 30.09.2005. Discharge summary is Annexure C-9 showing that after the operation gauge cloth was removed from the abdomen embedded between uterus and bladder. There are two photographs also which were snapped at the time of conducting the operation in Dr. G.K. Srivastva Hospital Annexure C-10 and Annexure C-11 showing the location of gauge and the picture of the gauge removed from that location between uterus and bladder. There is no specific rebuttal on behalf of the opposite parties to the above evidence produced by the complainant except the total denial. It is none of the case of the opposite party No.1 that complainant after having been discharged from the civil hospital gone for any second operation except one at Dr. G.K. Shrivastva Hospital. It was, therefore, a clear-cut case of medical negligence committed by the opposite party No.1. The opposite party No.1 has taken a plea that the complainant was given services free of any charges, even some medicines were also provided free of cost to the complainant, therefore, the complainant cannot be treated a consumer of the opposite parties as defined under section 2(1)(d) and the service as defined in section 2(1)(O) under the Consumer Protection Act, therefore the opposite party No.1 cannot be fastened with any liability and is not liable to compensate the complainant as prayed for by the complainant. the above plea of the opposite parties is not sustainable. The treatment given by the opposite parties was not wholly free of charges. The complainant provided certain medicines, which were not available with the opposite parties and spent money for that. Besides this, General Hospital, Gurgaon is a public concern where the opposite party No.1 is employer which is run by public funds. Therefore, the treatment given by the opposite party No.1 was not free of charges as contemplated under term service as defined under section 2(1)(O). It is a case of medical negligence committed by the opposite party No.1 a doctor employed in General Hospital, Gurgaon as a result of which the complainant had to suffer pangs after the operation to a great extent, which could endanger her life also if not treated properly. No doctor is protected for medical negligence even if he provides services to the patient free of charges. It is a case of res-ipsa loquitur. Therefore, even if the treating doctor is an expert, qualified and treated the patient in the well equipped hospital still the concerned doctor cannot seek protection under the term service as defined under section 2(1)(o) of the Consumer Protection Act where services provided free of charges are not covered under the purview of the Act. We, therefore, hold the opposite party No.1 guilty for medical negligence caused by her to the complainant.
In view of the above, it is established that the complainant has produced sufficient evidence to connect the appellant-opposite party No.1 with the medical negligence and deficiency in service. Opposite Parties in their written statement have admitted that 2-3 days after discharge of complainant, she had complained of pain in abdomen which was certainly due to cotton gauge left in the body during operation. In such like cases, the evidence of the doctor who had removed the cotton gauge from the stomach of the complainant is not required. Doctors always speak as per record. Discharge Summary which has been tendered in evidence before the District Forum as Annexure C-9, showed that after the operation gauge cloth was removed from the abdomen embedded between uterus and bladder. In this case the oral as well as documentary evidence produced by the complainant is sufficient to draw an inference that the appellant-opposite party No.1 was negligent and deficient while treating the complainant. Thus, there was no necessity to examine Dr. Shrivastva or any expert doctor. Support in this regard can be taken from the judgment rendered by Honble Supreme Court in case cited as V. Kishan Rao versus Nikhil Super Specialty Hospital and another, 2010 CTJ 868 (Supreme Court) (CP) wherein it has been held that:-
Experts opinion is needed to be obtained only in appropriate cases of medical negligence and the matter may be left to the discretion of the Consumer Forums especially when the retired Judges of the Supreme Court and High Courts are appointed to head the National Commission and the State Commissions.
There cannot be a mechanical or strait jacket approach that each and every case of alleged medical negligence must be referred to experts for evidence.
Time has come to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of the Constitution of India which encompasses within its guarantee, a right to medical treatment and medical care.
In para 13 of V. Kishan Raos case (Supra) the Honble Supreme Court has observed that:
13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.
Para No.25 of V. Kishan Raos (Supra) is reproduced as under:-
25. Chief Justice Lahoti also relied on the speech of Lord Porter in Riddell v. Reid [(1943) AC 1 (HL)] to further identify the difference between the two concepts and which I quote:
A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.
In case cited as R.K. JAIN (DR.) & ORS. versus KAMLA DEVI, IV(2012) CPJ 47) (NC), Honble National Commission has relied upon various judgments of Honble Apex Court and held the treating doctor guilty who had left the foreign body in the system during the surgery. Para 8 of KAMLA DEVIs case (Supra) is as under:-
8. Following the above principles, the Honble Supreme Court had concluded in this case that since a foreign body was left in the system during the surgery, it clearly indicated that reasonable degree of care was not taken and therefore, it amounted to medical negligence. Respectfully following this judgment in the instant case where the facts are similar to the extent that here also a foreign object was left in the Respondents wound during the course of surgery, we conclude that the Appellants are guilty of medical negligence and deficiency in service and uphold the order of the State Commission in this respect.
The Honble Supreme Court in case Achutrao Haribhau Khodwa & Ors. V. State of Maharashtra & Ors, I(1996) CLT 532 (SC) held that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable.
The observations made by the Honble Apex Court in V. Kishan Raos case (Supra), KAMLA DEVIs case (Supra) and Achutrao Haribhau Khodwas case (Supra) are fully applicable in the instant case. In our view the evidence produced by the complainant is sufficient to prove it a case of medical negligence and deficiency in service against the appellant-opposite party No.1. Hence, no case for interference in the impugned order is made out.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 26.10.2012 President B.M. Bedi Judicial Member