State Consumer Disputes Redressal Commission
J.K. Tripathi vs Dr. Girja Kotha Koal, on 15 January, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986.) Date of decision :15.1.2008 Appeal No. A-26/04 (Arising from order dated 11.11.2003 passed by the District Forum-IV, North-West Shalimar Bagh, New Delhi in Compliant case No. C-337/2000) 1. J.K. Tripathi A-455, Street No. 4B, West Karawal Nagar, Delhi -110002 2. Kusum Tripathi, W/o Sh. J.K. Tripathi, A-455, Street No. 4B, West Karawal Nagar, Delhi -110002 Appellants Through Sh. Arvind Trivedi, Advocate Versus 1. Dr. Girja Kotha Koal, (Gyneacologist) Clinic at Chaudhari Surjeev Singh Mkt. Nehru Vihar, Main Karawal Nagar Road Delhi 110094 2. St. Stephence Hospital Through its Director, Tis Hazari, Delhi Respondents CORAM Justice J.D. Kapoor President Ms. Rumnita Mittal Member1
Whether reporters of local newspapers be allowed to see the Judgement.
2. To be referred to the Reporter or not.
Justice J.D. Kapoor (Oral)
1. Complainant of the appellant seeking compensation on account of negligence on the part of the respondent no. 1 for taking the labour pain as mild pain and did not attend her that resulted in the delivery of the pre-mature child after 7 months pregnancy was dismissed vide impugned order dated 11.11.2003 passed by the District Forum absolving the respondents from the charge of medical negligence. Feeling aggrieved the appellant has preferred this appeal.
2. Admittedly the appellant was under the treatment of respondent no. 1 since October, 1999; that during her pregnancy has been regularly visiting her. On 22nd March, 2000 she felt some mild pain in the abdomen and visited her at the clinic of respondent no. 1 who told that this is a mild pain and not labour pain. She advised urine test and presuming that it is due to urine infection, the appellant was sent back home. On the same night i.e. on 23rd March, 2000 at 2.00 AM she developed unbearable pain but respondent no. 1 could not be contacted and consequently she was taken to St. Stephens Hospital where she delivered pre-mature child and child remained in incubator for next 57 days and she suffered mental agony, harassment and emotional sufferings. However with the grace of god the child is normal and now in good health.
3. In her defence the respondent no. 1 averred that the premature labour is not a rare phenomenon at all and its occurrence in the instant case cannot be taken as evidence of negligence wherein there is no expert evidence by way of medical literature or expert opinion to support the same and further premature delivery can occur due to various reasons.
4. The perusal of the impugned order shows that the District Forum has arrived at certain conclusion on factual aspects . According to the District Forum the appellant did not produce any documents to show that she had been under the treatment of respondent no. 1 after 4.1.2000 and had been getting hersef examined regularly and that urine test of 22.3.2000 indicated urinary tract infection, which can precipitate into premature delivery. After perusing various documents, the District Forum found that except for the prescription slips of 20.12.299 and 4.1.2000 and urine examination of 22.3.2000, there is nothing to indicate that appellant visited the respondent no. 2 in the intervening period. District Forum also concluded that in the absence of prescription slip one cannot say definitely if the respondent no. 1 examined the appellant on 22.3.2003 or not. However, District Forum also considered the fact that even if it was admitted that the appellant went to respondent no. 1 on 22nd March, 2000 and complaint of labour pain was considered as mild pain which could have been stopped if detected in time to avoid premature delivery, still the respondent cannot be held guilty for negligence. As regards medicine prescribed on 4.1.2000 the appellant did not impute negligence to respondent no. 1.
5. In our view the defence raised by the respondent no. 1 that the appellant was not getting her treatment prior to 22.3.200 does not inspire confidence at all as no gynaecologist is supposed to entertain the patient in the advance stage of pregnancy having a mild pain. As a gynaecologist the first impression of pain running in seventh months of pregnancy should be that of labour pain and should not have waited for urine test before sending back the patient. On the concept of medical negligence as to the line of treatment as well as administrative deficiency on the part of doctor or hospital, we have drawn certain conclusions based upon the judgement delivered by Honble Supreme Court in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case which also discussed and adopted this test as guidelines for the courts to adjudicate the medical negligence. Details of Bolams case is applied almost by every court to find out the medical negligence. The conclusions are as under:
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
6. In our view if there is error of judgement the doctor can be absolved of charge of medical negligence particularly when doctor happens to be a skilled person and possesses requisite medical qualification .
7. By applying aforesaid criteria we have no doubt that the respondent no. 1 doctor was negligent in as much as she did not even take pain as a labour pain and treated it as mild pain and prescribed urine test knowing that appellant is running seven months pregnancy. It is negligence on the part of respondent no. 1 who had not properly examined the appellant on 22nd March, 2000 and even on prior occasion if not prior two occasions. In the result, we allow the appeal and direct the respondent no. 1 to pay compensation Rs. 25,000/- to the appellant
8. Payment shall be made within in one month after receipt of this order.
9. F.D.R./ Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
10. A copy of this order as per statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to the record room.
Announced on the 15th January, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member rk