State Consumer Disputes Redressal Commission
M/S. Arcees Maternity And Another vs Mrs. Hemalatha on 30 October, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.390/2006 (Against order in O.P.No.305/2005 on the file of the DCDRF, Madurai) DATED THIS THE 30th DAY OF OCTOBER 2009 1.
M/s. Arcees Maternity Rep. by its Director/ Proprietor 17, Balasubramaniya nagar Perundurai Road Erode 11
2. Dr C. Rjalakshmi M/s. Arcees ,Maternity 17, Balasubramaniya nagar Perundurai Road Erode 11 Appellants/ Opposite parties Vs. Mrs. Hemalatha Rep. by her father and Power agent Mr.M. Jaganathan 16/18, Manjanakara Street Cumbum, Theni District Respondent/ Complainant The Respondents as complainants filed a complaint before the District Forum against the appellant /opposite parties praying for the direction to the opposite parties to return the sum of Rs.15000/- collected towards treatment alongwith compensation of Rs.3 lakhs and cost of Rs.3000/-. The District Forum allowed the complaint and directed the opposite parties to pay Rs.15000/- alongwith compensation of Rs.1 lakh and cost. Against the said impugned order, this appeal is preferred praying to set aside the order of the District Forum dt.02.05.2006 in CC No.305/2005.
This petition coming before us for hearing finally on 20.10.2009. Upon hearing the arguments of either side counsels, this commission made the following order:
Counsel for the Appellants/ Opposite parties: M/s.V.S.Kesavan, Dhanalakshmi, Advocates Counsel for the Respondent/ Complainant: Mr.J. Abdul Hadi Honble M. THANIKACHALAM J, PRESIDENT.
1. The opposite parties before the District Forum, Madurai, in CC No.305/2005, who were unable to succeed, in resisting the claim of the complainant have come to this commission as appellants.
2. The respondent/ complainant, who conceived twice, had abortion on both occasions, when conceived again, had undergone frequent antenatal checkup, at 1st opposite partys nursing home, which is owned and maintained by the 2nd opposite party. On 12.5.2005, when the complainant went to the 1st opposite party hospital, the 2nd opposite party advised to have a scan, which revealed missed abortion. Therefore, the 2nd opposite party, perusing the scan, advised the complainant for expulsion of the foetus.
3. The complainant was admitted in the hospital on 13.5.05, and after expulsion of foetus, by the 2nd opposite party, discharged from the hospital on 17.5.2005. While discharging, the complainant was informed that all the contents of the uterus, including placenta evacuated, and therefore as advised by the 2nd opposite party, the complainant went to her parents place, for convalescence and care. There bleeding started. The parents of the complainant contacted the opposite arty, who assured that there was nothing to worry, advising to continue the medicine. But the bleeding has not stopped, and therefore a doctor at Cumbam was consulted, who advised the complainant to go to M/s. Dinesh Nursing Home, Madurai.
4. At Madurai, on 23.5.2005, the doctor at M/s. Dinesh Nursing Home, informed the complainant and her parents, that the entire placenta with membrane is in the uterus, leading to the present worse condition, and they advised for the immediate removal of the placenta, for which procedure was adopted and the foetus membrane were expelled, and the uterus was fully cleared. Only due to the negligent act and lack of care and attention, by the opposite parties, the complainant was put to sufferings, for which they should be held responsible. Since the cause of action had arisen on 23.5.05 at Madurai, the complaint is filed for the reliefs at Madurai District Fora.
5. The brief case of the appellants/ opposite parties as follows:
The complainant, as well as the opposite parties, are the residents of Erode, and admittedly the complainant also took the treatment at Erode. Therefore, the entire cause of action had arisen for the alleged medical negligence, only at Erode, and therefore, District Forum, Madurai, has no jurisdiction and on this ground, the complaint is liable to be dismissed in limine.
6. The 2nd opposite party, as a well qualified obstetrician is rendering quality service. In the process adopted for the missed abortion and medical termination, there is no breach of duty or any negligence on her part.
7. The complainant was a case of habitual operation, and she had two missed abortion also. Therefore, when she came for advise, she was referred to Dr.Suresh for scan, which showed in the present pregnancy also, foetus was not alive. Therefore, medical abortion done by 2nd opposite party, for the benefits of the complainant, orally explaining the patient as well as her relative, that the total evacuation of the dead foetus would take 5 to 10 days. Before clearing or evacuating the dead foetus, consent was obtained, and the appellant is husband also informed.
8. After the procedure, the complainant wanted to go home, informing that she can come back to the hospital for any problem and only at her request, she was discharged. As advised, the complainant has not come to the opposite parties for review, it is the inherent nature of the procedure, to take 5 to 10 days for complete evacuation and bleeding is an expected complication of the procedure, which is also the literature. The patient did not attend the hospital as advised, whereas chosen to leave Erode, left on long journey against the medical advice, which should have caused the problem, for which the opposite parties cannot be held responsible. Even when she had taken treatment at Madurai, the complainant would not have revealed the fact that the medical operation was done, by the 2nd opposite party, leading to surgical operation said to have been performed. The other allegations accusing the opposite parties as if they have committed negligence or acted without care and caution, are all specifically denied, praying for the dismissal of the complaint.
9. Based upon the above pleadings, framing three points for determination, the District Forum, took the case for trial. On Point No.1, regarding the representation of the case, by power agent, it is held in favour of the complainant, and this conclusion is not urged or challenged before us.
10. The 2nd point relates to territorial jurisdiction of the Forum, which requires our deep consideration. Despite the objection of territorial jurisdiction, the Forum held, that part of cause of action had arisen at Madurai, where the complainant had taken treatment, and therefore the Forum had jurisdiction to decide the case, against the opposite parties, who are admittedly not residing at Madurai.
11. On the 3rd point, regarding the deficiency in service, finding fault with the procedure adopted by the opposite parties, as well as concluding that the documents are fabricated or something like that, a finding was slapped upon the opposite parties, as if they have committed deficiency in service, thereby directed the opposite parties, not only to return a sum of Rs.15000/- collected from the complainant, but also directed to pay Rs.1 lakh, as compensation for mental agony, in addition to cost, which are impugned before us.
12. Heard the learned counsels for either side, perused the written submissions, lower court records and the order passed by the District Forum also.
13. The main submissions of the learned counsel for appellants are, that the District Forum, which decided the case, has no jurisdiction, and assuming jurisdiction, decided the case, and in this view, for want of jurisdiction, the order has to be set aside, and that the alleged negligence against the opposite parties is not at all proved, in addition it is also not proved that the so called negligence is the cause for the suffering, leading to monetary loss, and this being the position, directing the opposite part to pay a sum of Rs.1 lakh is also baseless, and should be removed.
14. Opposing the above submissions, supporting the findings of the District Forum, a prayer was made to affirm the findings of the District Forum.
15. Admittedly on 12.5.2005, the complainant approached the 2nd opposite party, for medical checkup, since she was conceived third time, though previous two pregnancies, ended in abortion. The 2nd opposite party, in order to ascertain the position advised her to go for a scanning, which disclosed missed abortion, as seen from Ex.A2. As far as the above facts are concerned, we find no dispute. In view of the fact, the foetus was dead, doctor decided, as an expert in this field, to remove the same, for which the complainant also agreed.
After completing the process of removal, it seems the 2nd opposite party informed the complainant, as if entire thing was removed, and the uterus is empty, and advised her to take rest, then come for review, after 15 days or so. But unfortunately, as expected even by the 2nd opposite party and as per the established system, there was bleeding, resulting pain and therefore a doctor at Cumbum was consulted, where the complainant was taking rest, who after taking scan, appears to have advised her to go to Madurai, for treatment at M/s. Dinesh Nursing Home. Accordingly, the complainant went to M/s. Dinesh Nursing Home, where surgical procedure was adopted for clearing the foetus, membrane and placenta etc. Because of the subsequent sufferings, the complainant felt or advised that there was some, negligence or lack of due care and attention, while a medical termination was performed by the 2nd opposite party at Erode. Thus complaining, a case came to be filed before the District Forum, Madurai, instead of District Forum Erode, having admittedly jurisdiction, as contemplated under Sec.11 of the Consumer Protection Act. Therefore, the jurisdiction is questioned.
17. In paragraph 3 of the complaint, under the heading cause of action and jurisdiction, it is said that cause of action for this complaint arose on 23.5.2005 at M/s. Dinesh Nursing Home, Madurai, where the doctors diagnosed and found that the placental tissues and membrane are still in the uterus of the complainant. The District Forum also has given a finding, as if part of cause of action had arisen, at Madurai and in this view, District Forum, Madurai, had jurisdiction. By giving our deep thought, and analyzing the purpose of Sec.11 (2), including sub clause (c ), we are of the considered opinion, that the complainant had chosen a wrong fora, for which the District Forum also has succumbed knowingly, or unknowingly, and the reason is not known. True, a complaint can be filed, where the cause of action had arisen, whole or in part, and there cannot be any controversy. The said cause of action, contemplated under Sec.11( c), should be with reference to the act, said to have been committed by the adverse party, which alone gives the cause of action to the complainant to file a case against them. In this case, the cause of action for filing the case is or it must be the negligence or lack of due care and attention, expected from the opposite parties, and nothing more.
Therefore, it should be seen, where these things had taken place, not the subsequent recovery, or curing, but for the negligence committed if any by the opposite party. Admittedly at Madurai, the opposite parties have not performed any act, and all the acts were performed only at Erode, which alone gives cause of action. The District Fora has not properly understood the word cause of action. As said above, the cause of action should relate to the acts said to have been committed by the opposite party, and not with reference to anyother act, as said in this case i.e., some act on the part of the opposite party must be part of cause of action, not where the remains were cleared at Madurai.
Unfortunately, without understanding the nature of cause of action, which should be attributed to the opposite parties, the District Forum, as seen from its order, went to the extent of saying, the complainant can file the case in three foras, viz. Erode, Theni and Madurai, and she had chosen Madurai, in which there cannot be any defect. Sec.11, does not say, the resident of the complainant is the criterion for filing the case, whereas it says, where the opposite party resides, under sub clause (a) & (b) of Sec. 11(2). Neither at Theni, nor at Madurai, the complainant did nothing, giving cause of action to the complainant, which alone could attract cause of action, wholly or in part arises. This being the correct position of law, in our considered opinion, the District forum, assuming jurisdiction, rendered a finding without jurisdiction, and therefore the same is liable to be set aside. Despite these fact, we will decide the case on merit also, ignoring the jurisdiction at present.
18. In a case of medical negligence, it is the bounden duty of the complainant to plead, what are the medical negligence said to have been committed by the doctor, or how the procedure adopted by the doctor is erroneous or against the well established procedure, or the doctor who performed the surgery are attended the patient gave advise is not qualified to do the surgery or offer advise etc. If these things are not available or in other words, if a qualified doctor performed certain surgery or gave advise as per the procedure established, if any error of judgement occurs, then that cannot be taken as medical negligence as ruled by the Apex Court recently in Martin F. DSouza Vs. Mohd. Ishfaq, reported in I (2009) CPJ 32 (SC). In the said ruling, their Lordships of the Apex Court, after analyzing the previous judgements, medical ethics, and other probabilities and improbabilities, have observed, how a doctor cannot be ordinarily labeled as a person negligently acted, which reads Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse, which dictum should be remembered in this case, while scanning the materials.
19. In the case on hand, the complainant approached the 2nd opposite party, having some problem and admittedly also scanned which revealed missed abortion, leading to medical abortion. Therefore we have to see, as exposed by the medical literature, what are the procedures to be followed and how much time it will take to expel the entire unwanted things from the uterus etc. To enlighten these points, our attention was drawn to Medical Abortion, Overview and Management written by Suzanne R.Trupin, MD,FACOG, Carey Moreno, BS. In this literature it is said that There are also disadvantages to medical terminations, including increased cost (abortifacient drugs are expensive), a long waiting period for completion (it can take up to 4 weeks for a complete abortion to occur depending on the medical abortion protocol), and more office visits (a series of clinic visits for safety reasons is mandatory). However women who have had medical terminations voice slightly higher satisfaction with their procedure when compared with women, who have undergone surgical abortion. Under the heading patients instruction, it is said that Women must be informed that the presence of bleeding and cramping never guarantees a complete abortion and that all patients, regardless of volume of bleeding, must follow up with all their appointments with the doctor, who must determine (by examination and ultrasound) that a complete abortion has occurred. Further, under the heading Patient followup, it is said that For most medical abortion regiments, at least 2 office visits are required . Completion can take up to 3-4 weeks, and in some trials even longer observation times decreased the need for surgical evacuation. The essential management point is that return visits are the only way to ensure that the abortion is complete. (Emphasis supplied). Another literature was brought to our notice under the heading Principles of Gynaecology written by Sir Norman Jeffcoate, M.D., F.R.C.S.E., F.R.C.O.G., Hon.LL.D., F.A.C.O.G., F.R.C.S.C., F.C.O.G.(S.A), wherein under the heading Treatment, it is said that The uterus generally empties itself spontaneously approximately 21 days after foetal death. . Thus from the literature it is seen, the diagnosis of missed abortion is mostly made by repeated clinical observations, and despite medical termination, it will have the natural processing time, as indicated above. Therefore, within the said period, if bleeding is taken place, or any suffering occurred, it is the duty of the person, who is taking treatment, to approach the same doctor, having followed the advise, tendered by the doctor also. In this case, we are of the view, by going through the documents meticulously, the complainant has not followed the instructions, where as seeing the bleeding and taking into account the sufferings alone, they had been to Madurai and opted for surgical procedure to evacuate the remains, for which in our opinion, no negligence could be attributed to the opposite party.
20. It is the submission of the learned counsel for respondent/ complainant, that the doctor, seeing the scan, certified after the medical abortion, that the uterus is empty, but it is proved otherwise by the subsequent treatment taken by the complainant at Madurai, and therefore the 2nd opposite party should be held responsible. It is not known under what circumstances, seeing the scan, the 2nd opposite party said, or informed, the uterus is empty, when the literature she had produce would disclose, that for clearing the remains or placenta etc., it will take some more time also. Therefore, taking advantage of the fact, that something said against the established procedure it is not possible to fix the medical negligence upon the 2nd opposite party in this case.
21. In the complaint, as seen from paragraph 8, which reads The 2nd opposite party had thus not only miserably failed to detect and resort to immediate remedial treatment, which is a clear case of deficiency in service arising out of negligence lack of due care and attention expected of the opposite parties, but, had wrongly/falsely informed in the discharge report of the complainant that her cavity is empty as per the scan taken at the time of discharge. As an answer to this point, in the written version, which is now supported by the medical literature quoted by us supra, she has stated that It was also orally explained to the patient and relatives that the total evacuation of the dead foetus would take 5 to 10 days. It is further stated in paragraph 16 of the written version It is the inherent nature of the procedure to take 5 to 10 days for completing evacuation and the bleeding is an expected complication of the procedure probably relying upon the text reference, which are all not considered by the District Forum. The complainant to her support filed Ex.A10, and there is no reference about the duration, whereas the literature now produced before us, disclose the fact that minimum 5 to 10 days, will take for complete evacuation, even in the case of medical abortion. Except, the above alleged negligent act, nothing is placed on record either by way of expert opinion or by way of literature or by examining the doctor, who treated her at later point of time.
22. The 2nd opposite party as seen from the discharge summary, has stated Bad obstetric history; Missed abortion; RU 486 expulsion; sent for further evaluation to Lotus Hospital; scan at discharge; Sac not visualized; Cavity empty; Review after 15 days. Admittedly, as per the advise, the 2nd opposite party has not approached, for review or for further treatment, in view of the inherent procedure in this kind of cases, for completion, it will take some more time. Thus, the complainant having failed in her duty, to approach the 2nd opposite party, went on her own to someother doctor, and therefore it is not possible to affix the seal of negligence, in the procedure followed by the second opposite party. Assuming that she had committed mistake in stating cavity empty, that alone will not lead to an irresistible conclusion that she should have committed medical negligence or lack of due care, warranting to say that the opposite parties have committed deficiency in service. As qualified doctor, as per the procedure, she has performed medical abortion.
It is not at all pointed out that in adopting medical operation procedure, how the 2nd opposite party committed negligence or failed to take proper care. In view of the inherent procedure, though remains will be there, despite medical abortion, there was bleeding for the complainant, naturally, for that she had taken treatment of her own, therefore, for this natural phenomenon, accusing the 2nd opposite party is unwarranted. It is also not the case of M/s. Dinesh Nursing Home at Madurai that the medical abortion procedure, adopted by the 2nd opposite party was erroneous, and not in conformity with the literature leading to the subsequent problems.
In fact as seen from the discharge summary given by M/s.Dinesh Nursing Home, it seems, the entire history of medical abortion was not revealed to M/s. Dinesh Nursing Home, since we do not find much details, in Ex.A7, i.e., the discharge summary. In Ex.A7, it is said Patient C/o. Delivered one week ago at erode, Ref. from Cumbum as a case of Retained placental bits.
O/E : Pt:
Anaemic Aferdible Pulse: 80/mt B.P. 110/70 mmHg P/A Ut 18 weeks. No freefluid P/V Vagina dry Cx intact placental tissue felt FF unhealthy lochia+ Thus it is seen, when the doctor, performed the procedure for removal of retained placental, adopted the procedure and implied the cavity as seen from the notes in Ex.A7, for which the 2nd opposite party cannot be held, in any way responsible. The District Forum, instead of analyzing the case from both angles, neutrally, appears to have evaluated the case unilaterally, as if the 2nd opposite party alone had committed deficiency in service, only because of the fact that in the discharge summary it is noted as cavity empty, concluding, she acted in a half packed manner, and advised the complainant that her uterus is empty. Only taking this imperfect noting alone, a conclusion reached as if there is deficiency in service, for which we are unable to concur. For the above reasons, we are of the considered opinion, that the opposite parties have not committed any deficiency in service or committed any medical negligence, warranting compensation, and refund of the fee charged etc. Hence the appeal deserves acceptance, thereby accepted.
23. In the result, the appeal is allowed, setting aside the order of the District Forum in C.C.No.305/2005 dt.2.5.2006, and the complaint is dismissed. There will be no order as to cost throughout.
The Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant/ opposite parties, duly discharged.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT `INDEX : YES / NO Rsh/d/mtj/Medical