State Consumer Disputes Redressal Commission
K.D. Reddy vs The Secretary, Ministry Of Family ... on 30 November, 2006
C-328/96 IN THE STATE COMMISSION: DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Order: 30-11-2006 Complaint Case No. 328 of 1996 Mr. K.D. Reddy & Mrs. K. Lakshmi, C/o. Battalion No. 81, CRPF Battalion Headquarters, Papan Kalan, Palam, New Delhi. . . . Complainants Through Mr. R.P. Sharma, Advocate Versus 1. The Secretary, Ministry of Family Planning & Welfare, Government of India, New Delhi. . . . Opposite Party No.1 Through Mr. B. Mahapatra, Advocate 2. The Medical Superintendent, Mool Chand Kharaiti Ram Hospital & Ayurvedic Research Institute, Ring Road, Lajpat Nagar-III, New Delhi. . . . Opposite Party No.2 3. Dr. Ranjana Tyagi, Service to be effected through O.P. No.2. MCKR Hospital. . . . Opposite Party No.3 4. United India Insurance Company Ltd., Office No.1, 607-608, Devika Towers, 6-Nehru Place, New Delhi 110019. . . . Opposite Party No.4 Through Mr. H.C. Goel, Advocate CORAM Justice J.D. Kapoor, President Mahesh Chandra, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. The complainant has claimed compensation of Rs. 10 Lacs from the O.Ps on account of negligence in conducting tubectomy operation of complainants wife as the wife of the complainant gave birth to a female child even after the said operation.
2. Facts leading to the present complaint in brief are that wife of complainant named Mrs. K. Laxmi Reddy, had two children, both of whom were born after cesarean operation. The O.P. No.3 Dr. Ranjana Tyagi advised the complainant that it is not safe to have any more children since the two deliveries were through cesarean and in case she conceives in future it would be dangerous for her life at the time of delivery.
3. Complainant is working with the CRPF Department and O.P. No.2 hospital is on the panel of the CRPF Department and as such the wife of the complainant was taken to O.P.2 hospital where she was admitted on 12-06-1994 and after a male baby was born through cesarean operation, a tubectomy operation was conducted by O.P. No.3 Dr. Ranjana Tyagi upon the wife of the complainant and the requisite certificate of sterilization was issued. The complainant informed his Department accordingly regarding the sterilization and applied for grant of additional increment as an incentive as per government policy which was granted to him.
4. In the first week of January, 1995 the complainants wife realized that she was pregnant again and after examinations it was confirmed that she was pregnant for about 29 weeks.
On 23-08-1995 the complainant contacted the O.P. No.3 in the hospital of O.P.2 and showed the discharge summary issued at the time of discharging his wife after the tubectomy. O.P. No.3 struck off few words in the said discharge summary and also issued a fresh certificate on the same day to cover up her own negligence and careless act while performing the tubectomy.
5. The complainants wife gave birth to a female child on 15-10-1995 in NMC, Noida and the said child was also born through cesarean.
6. O.P. No.2 & 3 chose not to file any reply to the complaint. However, O.P. No. 1 filed its reply stating that the complainant has nowhere pointed out as to how the O.Ps were deficient or negligent in service and that merely because the wife of the complainant delivered yet another child even after the sterilization does not ipso facto show any negligence or deficiency in operation. Further that it is medically accepted that sterilization by way of tubectomy is not 100% sure and can be a failure also.
7. The O.Ps have further contended that neither the complainant nor his wife had paid for the services rendered and as such are not consumers for the purpose of the Consumer Protection Act, 1986 and also that the present complaint is time barred. The complainant has not disclosed that before undergoing the operation his wife had understood and signed a consent form, which specifically stated that the tubectomy operation could fail at times.
The complainant also was made fully aware that there were chances of failure of the said operation.
8. However, the O.Ps have admitted that the tubectomy operation was conducted by O.P.3 at O.P.2 hospital on 13-10-1994 immediately after the birth of the baby girl. Further that the O.P. 3 had suggested to the complainant, when they approached O.P.3 in January, 1995, with the complaint of pregnancy of his wife, that since the pregnancy was at its early stage the same could be terminated if they so desired. O.P.3 has, however, denied that she had tampered with the discharge summary to save her skin and that she had issued a fresh certificate.
9. The United India Insurance Company, was impleaded as O.P.4 during the proceedings, who, however, chose not to file any separate reply and adopted the reply of O.P.2 and 3 and raised the objection that since sterilization is performed free of charge and as such the services rendered do not fall within the purview of the Consumer Protection Act, 1986.
10. As is apparent from the above conspectus of rival contentions, the allegation against OP 3 is that she advised for tubectomy after knowing well that the complainants wife had undergone two caesarian sections. However, in her statement she has stated that she had cut the fallopian tube and tied the two ends of the said tube. According to her the said procedure may fail in certain cases on account of fallopian tube being hyper tropic.
11. At the outset, we may point out that consent form or explaining risk factor to the patient by the doctor is of no significance so far as allegation of medical negligence is concerned. The allegation of medical negligence has to be tested on independent criteria and cannot be washed away or wiped out merely on the premise of consent form. This is entirely a misconceived notion in the medical, as well as, legal fraternity that once the patient gives the consent form, the operating doctor is absolved of all the consequences flowing from the operation done by him. Medical negligence, which sometimes verges on criminal negligence, has to be decided on the various guidelines and tests laid down in respect of which there is a judicial unanimity.
12. The question of medical negligence has been cropping up time and again before the courts all over the world and one significant test known as Bolam Test by the English Judges reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
13. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
14. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess.
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
15. While dealing with the concept of medical negligence the Supreme Court laid down the following requirements:-
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury, which resulted was most likely imminent.
16. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
17. In nutshell, each and every case of medical negligence has to be tested on the following criterion:-
(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?
18. The result will depend upon the answers to the above queries.
19. In our view, in every failed sterilization, inference of negligence on the part of the doctor can be raised as the operation fails either due to non-observance of the technique in its minutest details and precision.
20. It was pursuant to the representation of O.P.1 that the complainants wife took the decision of getting herself sterilized from the hospital, O.P.2, which was receiving grant in aid from the O.P.1, who had assured the success of the operation through O.P.3 doctor. If a woman is told by way of advertisement that there is no hundred percent surety about the success of the operation, no woman would go for it. It is only on the basis of the wide publicity given by O.P.1 and the assurance given by O.P.3 that the complainant opted for sterilization from respondent No.1 hospital.
21. Ordinarily in such cases the government is responsible for compensating a person who was lured to go to the hospital where they had launched a national family planning programme. Such a person is not a consumer qua that hospital, but such a person is a consumer qua the government as it is the government who gives grant-in-aid to the hospitals.
22. As regards relationship of consumer vis--vis OP 2 and 3, it is established that O.P. 2 and 3 charged consideration from the complainant. However, inspite of this the complainant is consumer qua O.P.1, i.e. the Ministry of Family Welfare because of the scheme launched by it for the purpose.
23. Nature of defence of O.P shows that every failed operation will be brought in the category of negligible 5% and no doctor can be held guilty of failed operation. Still O.P.No.1 has to be held guilty for misleading representation qua the complainant.
24. In the instant case, complainant and his wife have been burdened with the upbringing of a child whereas they had already two children. The illiteracy, ignorance and poverty are curse in themselves and if persons suffering from all these three vices is heaped with additional burden, the misery, agony and emotional suffering one undergoes are immense. In the case of middle class or lower middle class strata of the society, things may be no different so far as the responsibility of bringing up an additional or unwanted or unplanned child is concerned.
25. In our view a compensation of Rs. 50,000/- (Fifty Thousand), which shall be payable by O.P.1, will meet the ends of justice.
The appeal is disposed of in above terms. Payment shall be made within one month from the receipt of a copy of this order.
26. Copy of order as per statutory requirement be forwarded to the parties free of cost and thereafter the file be consigned to record.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member HK