State Consumer Disputes Redressal Commission
Dr. J.S.Pandhi vs Smt. Baljeet Kaur on 1 October, 2015
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL No.1894 of 2011
Date of Institution: 23.12.2011
Date of Decision : 01.10.2015
1. Dr. J.S.Pandhi, M.D. Radio Diagnosis, C/o Pandhi Scan
Centre, adjoining Civil Hospital, Barnala (Punjab).
2. Dr. S.P.Gupta, Laparo Surgeon, C/o Nitin Hospital, SCO 46,
New Leela Bhawan Market, Patiala.
3. United India Insurance Company Limited, 54, Janpath
Connaught Place, New Delhi, through its Divisional Manager.
.....Appellants/Opposite Parties No.1,3&4
VERSUS
1. Baljeet Kaur wife of Manjit Singh, resident of Village Mangewal,
Post Office Kurar, Tehsil and District Barnala.
.....Respondent No.1/Complainant
2. Dr. Jasvir Singh Aulakh, M.D., Gynecologist, M.O. Civil
Hospital, Barnala.
.....Respondent No.2/Opposite Party No.2
3. National Insurance Company Limited, Branch Office, Near
Parbhat Cinema, Barnala through its Divisional Manager.
.....Respondent No.3/Opposite Party No.5
First Appeal against the order dated
09.11.2011 passed by the District
Consumer Disputes Redressal
Forum, Barnala.
Quorum:
Hon'ble Mr.Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Sh. Vinod Kumar Gupta, Member Present:
For the appellants : Sh. Ashwani Talwar, Advocate For respondent No.1 : Sh. A.S.Barnala, Advocate 2 F.A. No. 1894 of 2011 For respondent No.2 : Sh. Harish Goyal, Advocate for Sh. T.B.Singla, Advocate For respondent No.3 : None BALDEV SINGH SEKHON, MEMBER This appeal has been filed jointly by the appellants/opposite parties No.1,3 &4 (in short 'OPs') against the order dated 09.11.2011 passed by the District Consumer Disputes Redressal Forum, Barnala (in short "District Forum"), vide which the complaint filed by the respondent No.1/complainant was allowed against OP No.1&3 and they were ordered to pay her jointly and severally a consolidated amount of compensation to the tune of Rs.5,00,000/-. The complainant was also granted liberty to file criminal complaint against them, if she do desired. They were, however, granted liberty to recover the said amount from OP No.4 and OP No.5, if they had subscribed to their respective policies, by filing a recovery suit in the Civil Court.
2. Briefly stated, the facts of the case are that complainant suffered 'Ectopic pregnancy' in January, 2007 for which she was consulted/operated upon by OP No.2&3, during which, her right fallopian tube was removed. She also suffered missed abortion on 24.8.2008 and was treated by OP No.2 in Civil Hospital, Barnala. It was alleged that on 12.8.2010, she visited OP No.2 in emergency condition, as she was having pain in her abdomen and was having blood staining. He advised her to go for Trans Vaginal Sonography (in short 'TVS') and other lab tests. She immediately visited OP No.1, who performed trans abdominal ultrasound instead of TVS and gave the following impression :
3F.A. No. 1894 of 2011
" Single Intrauterine gestational sac is seen in the fundal region of uterus. No foetal pole is seen at the time of examination. Suggestive of EARLY PREGNANCY. No evidence of cervical incompetence is seen at the time of examination" and advised follow up after two weeks.
Thereafter, she went to OP No.2, who prescribed Ecosprin 75 mg, alongwith other medicines and advised complete bed rest. She kept on taking the medicines, but her pain continued to persist. She conveyed her problem telephonically to OP No.2, who ignored her call and advised her to continue with the same medicines/treatment. When she again called OP No.2 on 17.8.2010 in the evening and on 19.8.2010 in the afternoon, she was again advised TVS as well as trans abdominal ultrasound scan. OP No.1, after attending her, conducted only abdominal ultrasound and gave the following information :
"Ultrasound findings suggestive of Adnexal mass with fluid in the pelvis? Ruptured Ectopic Pregnancy" and advised UPT. It was alleged that OP No.1 cleverly further made additions of "for Adnexal mass of Ectopic" with his own hand on his previous report dated 12.8.2010, thereby, tampered with the report. Thereafter, she rushed to Nitin Hospital, Patiala, where OP No.3 conducted laparoscopy on 20.8.2012 and her left fallopian tube was also removed.
It was further alleged that OP No.2, Dr. Jasvir Singh Aulakh ignored her repeated complaints of pain and based his opinion only on single ultrasound report, instead of insisting for TVS report, which was mandatory in that situation; as she was having spotting, missed periods and a history of earlier Ectopic pregnancy. Moreover, these symptoms directly indicated Ectopic pregnancy. But OP No.2 ignored 4 F.A. No. 1894 of 2011 all these symptoms and treated her casually. In such a situation, she should have been advised a serial beta sub unit HCG (Human Chorionic Gonadotropin) test, every 48 hours and TVS to determine the pregnancy viability as it was must as per given history of spotting, missed periods, earlier Ectopic pregnancy and abdominal pain and as all the symptoms led to the suspicion towards Ectopic pregnancy. Had the diagnose been made earlier, the treatment and outcome would have been different. In case of correct diagnosis at earlier stage, the Ectopic pregnancy could have been terminated with methotrexate, rather then by surgery and her only fallopian tube could have been saved. On the other hand failure to diagnose at the initial stage led to ruptured fallopian tube, which could have further led to catastrophic internal bleeding and also could have caused her death. She was forced to undergo painful and complicated surgery and it took large time for her to recover. Thus, it was a clear case of mis- diagnosis and medical mal practice, as OPs did not meet the standards of expertise and patient care. OP No.2 failed to examine, investigate, diagnose, medicate and treat the Ectopic pregnancy, which a reasonable doctor would have diagnosed through physical examination, symptoms, medical history and specific diagnostic test using and analyzing TVS, pregnancy tests and other hormonal tests. It was further pleaded that OP No.1 was aware of her medical history and as such the diagnosis of Ectopic Pregnancy should have been done on positive visualization of an Adnexal mass using TVS rather then on the basis of abdominal scan that fails to demonstrate an intra uterine gestational sac. OP No.1 should have done TVS and could 5 F.A. No. 1894 of 2011 have diagnosed earlier, which could have changed the management options i.e. Ectopic pregnancy could have been terminated with 'methotrexate' rather than by surgery and only fallopian tube could have been saved. The failure to diagnose at the initial stage, led to ruptured tube that could have even caused her death. Subsequent laparotomy would have been exception rather then the rule as per the modern practice and in that case, her natural fertility status could have survived. It was further submitted that OP No.3 did not try to save her only fallopian tube on 20.08.2010 by not attempting 'open surgery'. With both her fallopian tubes removed, she is left with the only option of IVF; which is a very costly and has a very low success rate. She and her family are suffering a lot of harassment and mental agony. Alleging deficiency in service and negligence on the part of the OPs, the complainant sought the following directions to the OPs :
(i) to pay her medical expenses amounting to Rs.10,00,000/-
from the date of treatment till realization;
(ii) to pay her Rs.9,50,000/- on account of mental tension, agony and harassment; and
(iii) to pay Rs.50,000/- on account of litigation expenses.
3. Upon notice, OP No.1 filed his written reply pleading therein that complaint was mis-conceived, frivolous, vexatious and that complainant has cooked up the facts to extort illegal sum from him. No specific, scientific and justified allegations with regard to the negligence or deficiency in providing services have been made by her against him. It was pleaded that he is a reputed and qualified doctor having qualification of MBBS, MD (Radiology) and had been running his clinic successfully for the last number of years. It was also 6 F.A. No. 1894 of 2011 pleaded that complaint was bad for mis-joinder and non-joinder of necessary parties. He was insured with United India Insurance Company Ltd., New Delhi, vide professional indemnity policy No.040100/46/09/35/00003903 effective from 5.12.2009 to 4.12.2010. It was further pleaded that complainant Baljit Kaur approached him for the first time on 12.08.2010 after having been referred by Dr. J.S.Aulakh for the study of pelvic organs; which was done by him and during study, gestational sac in the uterus, was found. Accordingly, the diagnosis of early pregnancy was made and the report was given to her and caring for her past history of Ectopic pregnancy, follow up for the same was advised. She came to his centre on 19.8.2010 for the second time and ultrasound for the whole abdomen was done as she was complaining pain in the stomach and 'fluid in the morrisons pouch and pelvis' with small adnexal mass was noted. So provisional diagnosis of ruptured ectopic pregnancy was suspected and patient was advised further evaluation. Her allegations that with TVS examination, earlier diagnosis could have been possible was denied. He pleaded that ultrasonic diagnosis is made on the basis of signs and symptoms, that takes time to appear. He made diagnosis well in time and saved the life of the patient. It was admitted that complainant was diagnosed to be a case of Ectopic pregnancy as per USG done by him in the month of January, 2007 and that her right fallopian tube was removed by OP No.3. It was also admitted that the complainant visited him on 12.8.2010 after having been referred by Dr. J.S.Aulakh with the advise for TVS and other lab tests. He pleaded that she refused to get TVS examination done due 7 F.A. No. 1894 of 2011 to her personal reasons. Therefore, under the circumstances, he had to perform abdominal ultrasound but this did not delay the diagnosis as gestational sac was visualized in the abdominal examination on 12.8.2010. Further at that time, there was no need for other examination. It was further pleaded that for achieving intrauterine pregnancy, it is mandatory to have an intact uterus and ovary for providing eggs and both are present in the complainant. Otherwise also she had a living child from her previous caesarian section. Denying all other allegations, dismissal of the complaint was prayed.
4. OP No.2, in his amended written reply, pleaded that the complainant received treatment at Civil Hospital, Barnala but she had not made the State of Punjab a party to the present complaint, which was mandatory. He is duly insured with National Insurance Company Ltd., Barnala, but, the said insurance company has also not been impleaded as a party. It was further pleaded that he never rendered any service to the complainant as alleged and only discharged his official duty free of cost on behalf of Govt. of Punjab. It was denied for want of knowledge that complainant suffered any alleged Ectopic pregnancy in the January, 2007 or that she ever consulted him at that time. No specific date has been mentioned, on which she consulted him in January, 2007. It was also denied that she was operated upon for any disease at that time by him and that her right fallopian tube was removed at any point of time. It was pleaded that on 24.8.2008, she was treated by him in discharge of his official duties at Civil Hospital, Barnala for missed abortion and no fee, whatsoever, was charged from her. On 12.8.2010 also, she was attended free of cost 8 F.A. No. 1894 of 2011 by him and at that time she had an amenorrhea of one month and three days with history of spotting and there was no history of any abdominal pain. She was advised to get her urine examination done for diagnosis of pregnancy and the result thereof showed positive pregnancy. To rule out the Ectopic pregnancy (as she had previous history of abortion and Ectopic pregnancy), TVS alongwith other routine blood tests and urine test were advised. After getting the reports of the said tests and ultrasound report, he diagnosed that she was a case of 'early intra uterine pregnancy with threatened abortion', for which, treatment was advised by him. In such like cases, internal check up of the patient is must for proper management, but the complainant refused to get herself checked internally. It was denied that she called him telephonically on 17.8.2010 as alleged. However, it was admitted that in the evening of 19.8.2010, she visited him with history of acute abdominal pain, for which she was again advised TVS. However, she never came back to him. It was pleaded that in case of Ectopic pregnancy, there are four cardinal features i.e. amenorrhea followed by pain and bleeding and adnexal mass with empty uterus. But the complainant had no pain on 12.08.2010. Ultra sonography report, presented by her, revealed an intra uterine pregnancy, so it was correctly diagnosed as a case of threatened abortion and not a case of ectopic pregnancy. So far as the estimation of Beta HGC test was concerned, it was pleaded that the said test was not locally available and the same is also time consuming and very costly and takes about one week to get the report. Moreover, the complainant did not produce on record any 9 F.A. No. 1894 of 2011 histopathological report, from which it could be made out that adnexal mass, diagnosed on 19.8.2010 by ultra sound examination, was an ectopic pregnancy, because there were other adnexal masses also. It was denied that she was not diagnosed early. She has filed the complaint with ulterior motive by distorting the true facts and by concocting a false story against him. There was no negligence in the treatment of the patient on his part. It was also denied that she was operated upon by him in 2010. Denying all other allegations, dismissal of the complaint was prayed.
5. OP No.3, in its written reply, pleaded that no specific, scientific and justified allegations with regard to the negligence or deficiency in providing service has been made by complainant against him. She has failed to explain as to how he was negligent. The complainant has approached the District Forum without the support of any expert view of subject specialist and she has levelled allegations without support of any scientific literature. It was pleaded that he had not committed any negligence in this case while providing the treatment. The allegations are nothing but the mockery of law. Hence the complaint was liable to be dismissed. Even no negligence or deficiency in service has been made. He is a reputed and qualified doctor having qualification of MBBS, MS (General Surgery) and had been running Nitin Hospital successfully for the last number of years. It was further pleaded that he was insured with United India Insurance Company, vide its professional indemnity policy No.040100/46/10/35/00002078 that was effective from 31.07.2010 to 30.07.2011. The complainant got herself admitted in his hospital on 10 F.A. No. 1894 of 2011 two occasions as a case of disturbed pregnancy in fallopian tubes with massive life threatening abdominal bleeding and on both occasions, she was saved due to timely surgical intervention by him and Dr. Neena Gupta. It was denied that ectopic pregnancy could have been terminated with methotraxate, which is an anti cancer drug. It is possible in undisturbed pregnancy and the treatment is not only hazardous, but has also a failure rate of 20% with persistent pregnancy. There was also a risk of tubal blockage and re- occurrence of tubal pregnancy. It was also denied that it was possible to save fallopian tube, if attempt was made through open surgery. Saving of tube is possible, if the size of tubal pregnancy is less than 4 cm of size and pregnancy is not disturbed and is without intra- abdominal bleeding. But complainant had tubal pregnancy of 10 cm size which was disturbed with bleeding of 800 ml. In such cases, standard treatment is removal of bleeding tube. Denying all other allegations, dismissal of the complaint with costs was prayed.
6. OP No.4 in its written reply admitted that Dr. J.S.Pandhi (OP No.1) and Dr. S.P.Gupta (OP No.3) were insured with it vide its provisional insurance indemnity policy No.040100/46/09/35/00003903 effective from 5.12.2009 to 4.12.2009 and provisional indemnity policy No.040100/46/10/35/00002078 effective from 31.7.2010 to 30.7.2011, respectively. It was pleaded that the complaint was baseless and flagrant abuse to process of law and had been filed just to harass and blackmail it. Denying all other allegations, dismissal of the complaint with costs was prayed.
11F.A. No. 1894 of 2011
7. OP No.5 also filed its written reply pleading therein that OP No.2 treated the complainant free of cost, on behalf of Govt. of Punjab, in discharge of his official duty. Thus, she does not fall within the definition of the consumer as defined in Consumer Protection Act. It was clear that complainant never availed its services and as such she was not its consumer. It was denied that complainant was ever operated upon by OP No.2. There was no negligence on its part. Denying all other allegations, dismissal of the complaint was prayed.
8. Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same and hearing the learned counsel for the parties on their behalf, allowed the complaint, in a foresaid terms against OP No.1 and 3 only.
9. Aggrieved by this order, appellants/OPs No.1, 3 & 4 have filed this appeal on the grounds that no negligence can be attributed on their part as no specific, scientific and justified allegations with regard to negligence or deficiency in service have been made out by the complainant. She has totally failed to explain as to how they were negligent. It was submitted that Dr. S.P.Gupta was not a person who conducted the laparoscopic surgery on the complainant. Nitin Hospital, Patiala is a proprietary concern of Dr. Neena Gupta who is an MD, Gynae and Endo Gynae (Laparoscopic Gynae) Surgeon and Dr.S.P.Gupta, who is also a MBBS, MS and also conduct laparoscopic surgeries. But in the present case, the procedure upon the patient was performed by Dr. Neena Gupta and, thus, there was a mis-joinder of parties. OP No.3 has been wrongly roped in and held negligent by the learned District Forum. It was further submitted that 12 F.A. No. 1894 of 2011 laparoscopy is not a shortcut to open abdomen surgery but is a standard, more advanced and precise surgical technique for treatment of ectopic pregnancies. It was further submitted that fallopian tube of the patient could have been saved only in case the ectopic pregnancy was intact and less than 4 cm in size, whereas, in the present case, it was of 10 cms in size and rupture of the fallopian tube had already taken place and, thus, it was a case of emergency. It was further submitted that in the end, result would have been the same, whether the operation was done with open abdomen surgery or through laparoscopic surgery. The choice was to save the life of the patient rather than to maintain her fertility. The uterus as well as both ovaries of the patient were intact and thus by the use of IVF (Invitro Fertilization), the patient can procreate. The diagnosis of pregnancy when the fetus is 4 weeks +, in itself is a remarkable achievement. OP No.1 was able to diagnose the same and he further advised the patient to follow up after 2 weeks. Even with the best techniques with best equipments, it is hard to see a pregnancy which is less than 5 weeks after the last menstrual period. It is a matter of record that patient did not allow TVS or vaginal check up from male experts. No expert view of the subject specialist has been obtained to establish the allegations levelled against them. It was further submitted that District Forum failed to appreciate the fact that the ectopic pregnancy was dangerous for the life of the patient. It is settled proposition of law that where more than one option is available and the attending specialist chose one particular method over and other, the same cannot be termed as negligence. District 13 F.A. No. 1894 of 2011 Forum has awarded a consolidated amount of Rs.5 lacs and even in unlikely event of the appellants being held liable, the amount of compensation awarded is highly excessive. No details have been given as to how this figure of Rs.5 lacs was arrived at. Even in the entire claim, no detail justifying the quantum of compensation have been furnished. Acceptance of the appeal and setting aside of the impugned order was prayed.
10. Learned counsel for the complainant submitted that there was no merit in the appeal as the learned District Forum has arrived at the correct conclusions based on the evidence and the medical literature brought on record.
11. We have thoroughly gone through the pleadings of the parties, and have carefully perused the record of the District Forum and heard at length the learned counsel of the parties on their behalf.
12. The complainant, in her Complaint alleged medical negligence against Dr. J.S.Pandhi (Appellant/OP No.1), Dr. Jasbir Singh Aulakh (Respondent No.2/OP No.2) and Dr. S.P.Gupta (Appellant No.2/OP No.3). However, the District Forum allowed the complaint only against appellants/OPs No.1&3 while the same was dismissed against OP No.2. Her specific case against OP No.1 is that on 12.8.2010, she visited OP No.2 in emergency condition as she was having pain in her abdomen and was having blood staining. OP No.2 advised her to go for TVS and other lab tests. However, when she visited OP No.1, he performed trans abdominal ultrasound instead of TVS and gave the report about having seen 'Single Intrauterine gestational sac in the fundal region of uterus. No fetal pole was seen 14 F.A. No. 1894 of 2011 at the time of examination and same was suggestive of EARLY PREGNANCY. She was advised to follow up after two weeks. It is further her case that when she approached OP No.2 on 19.8.2010, she was again advised TVS as well as trans abdominal ultrasound scan, but, OP No.1, after attending her, conducted only abdominal ultrasound and gave findings suggestive of 'Adnexal mass with fluid in pelvis with suspicion of Ruptured Ectopic Pregnancy'. It is further her allegations that OP No.2 cleverly made additions in the ultra sound report dated 12.8.2010, by making additions of 'for adnexal mass of ectopic'.
13. The OPD slip, prepared by OP No.2 on 12.8.2010, has been proved by complainant as Ex.C-3; perusal of which, shows that he specifically prescribed TVS for detection of Ectopic Pregnancy. Even previous history of the patient about having undergone SCS in 2000 and occurrence of Ectopic pregnancy in 2007 was mentioned in it. The ultrasound report dated 12.8.2010 has been proved by OP No.1 himself as Ex.R-7. In this report, it is clearly mentioned that said test was done as per the reference made by Dr. J.S.Aulakh (OP No.2), but, still, he preferred to ignore prescribed test of TVS and instead conducted trans abdominal sonography. In his report, OP No.1 mentioned about having seen single intra-uterine 'gestational sac in the fundal region of uterus' though no 'foetal pole' was seen at the time of examination. It was, thus, suggestive of EARLY PREGNANCY. Apparently, OP No.2 recommended TVS in view of the previous history and the current condition of the patient. OP No.1 should have gone for TVS only, more so, when the previous history of 15 F.A. No. 1894 of 2011 Ectopic pregnancy was stated in the reference slip. Furthermore he has himself admitted in his written reply that complainant was diagnosed to be a case of Ectopic pregnancy as per USG done by him in January, 2007 and that her right fallopian tube was removed by OP No.3 and further that Dr. J.S.Aulakh also advised TVS. It is not his case that the facility for TVS was not available at his centre. Had OP No.1 conducted TVS, Ectopic Pregnancy could have been detected at an early stage enabling the surgeon to terminate the same in time to save her left fallopian tube. The contention of the OP No.1 that the patient refused to undergo TVS test due to her personal reason and that under the circumstances, he had to perform abdominal ultrasound, is not tenable. In the modern day medical practices, examination of a women patient by male doctors is well accepted practice without any inhibition. Moreover, it is highly improbable that a lady, who had suffered ectopic pregnancy a couple of years back and had undergone surgery due to complication of Ectopic pregnancy, would refuse to undergo such a test for personal reasons. While admitting that he conducted Trans Abdominal Sonography instead of TVS of his own, OP No.1 has tried to justify the same by arguing that abdominal ultrasound did not delay the diagnosis. We find no merit in this argument. When signs of early pregnancy were observed by OP No.1, it was all the more important to conduct TVS to confirm whether it was a normal pregnancy or ectopic pregnancy. He, instead advised her to follow up after two weeks. Even on 19.8.2010 when complainant again visited OP No.1 upon specific reference made by Dr.J.S.Aulakh, he again did not 16 F.A. No. 1894 of 2011 conduct TVS and rather conducted the Trans Abdominal Sonography. In his ultrasound report dated 19.8.2010 Ex.R-8, done after one week (instead of two weeks as advised by OP No.1), the presence of 'Adnexal mass with fluid in the pelvis' and 'Ruptured Ectopic Pregnancy' was confirmed. Apparently, the complainant was having Ectopic pregnancy which could not be detected by OP No.1 because he failed to conduct TVS as advised by treating doctor on 12.08.2010. This lapse on the part of the OP No.1 cost the complainant heavily because by 19.8.2010, fallopian tube had already ruptured due to Ectopic pregnancy and she had to undergo laparoscopic surgery at Nitin Hospital on 20.8.2010 under emergency conditions. It clearly establishes negligence on the part of OP No.1.
14. On careful perusal of report dated 12.8.2010 (Ex.R-7), it is further proved that OP No.1 tempered with this report by making addition in his own hand about 'for adnexal mass of Ectopic' as those remarks do not match with earlier part of the report as neither any indication is available, nor any reference is made about adnexal mass. It was only suggestive of early pregnancy. There was no occasion for him to add the said remarks at the time the report was prepared. He added these remarks only when presence of adnexal mass and ruptured ectopic pregnancy was confirmed on 19.8.2010. Apparently he tempered with his earlier report only to cover his act of negligence. Therefore, he is also found responsible for tempering with the document. It rather shows that OP No.1 was, himself, aware of his lapse.
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15. The complainant has contended that OP No.3 did not attempt to save her left fallopian tube knowing fully well that he had already operated upon the patient and removed her right fallopian tube in the year 2007, as he adopted laparoscopic technique instead of open surgery. It is seen that OP No.3 as well as Dr. Neena Gupta, who conducted the surgery upon complainant on 20.8.2010, were competent to perform the same as they were having qualification of MBBS, MD (General Surgery). It is further seen that the complainant, Baljit Kaur, was admitted in their hospital under the care of Dr. Neena Gupta on 19.8.2010 in emergency conditions with diagnosis of 'Ruptured Ectopic (Tubal) pregnancy with abdominal bleeding'. The USG report of Amit Scan dated 19.8.2010 (result of which are mentioned on the hospital record, Ex.R-13) reveals that adnexal mass of 10.4x4.3x9.1cm ĉ ascites + non viable fetus (7 wk+2days) was present. The patient was operated upon by laparoscopic technique. The condition of tube was also shown to Mr. Manjit Singh, the husband of the complainant, who gave written consent for removal of the same. The consent form, proved as Ex.R-14, has been signed by the patient herself and witnessed by her husband Manjit Singh. In this intra operative consent, it is mentioned as under :
"I have seen the extent of bleeding inside the abdominal cavity and damage to the fallopian tube on the monitor and I have been explained the risk of preserving this. So I the give my consent for removal of tube for the safety of my patient, whatever may be the effect on future pregnancy."
Thus, the surgery was done by way of laparoscopic procedure as per this specific consent. It has been contended by OP No.3 the tube saving procedure is possible only in few cases where the size of 18 F.A. No. 1894 of 2011 Ectopic pregnancy is less than 4 cm and the pregnancy is not disturbed and is without intra abdominal bleeding, whereas, in the case of the complainant, the tubal pregnancy was 10 cm of size which was disturbed with intra bleeding of 800 ml (Ascites). In such cases, standard treatment is removal of the bleeding tube alongwith pregnancy. It was further contended that the laparoscopic technique has several advantages over open operation.
Perusal of medical record of the complaint, Ex.R-13 to Ex.R-25, shows that the laparoscopic surgery was done by Surgeon Dr. Neena Gupta and operation 'Laparoscopic Right Salpingotomy' was done under GA. The procedure carried out is explained in the operative motes. The patient was diagnosed as a case of 'disturbed right Ectopic (Ampulary) pregnancy with Hemoperitoneum'. Apparently, the size of the tubal pregnancy was 10 cm of size and the same was disturbed with internal bleeding. In the medical literature 'Williams Obstetrics' 22nd Edition authored by F.Gary Cunningham, MD and others (Ex.R-26), it is mentioned under 'Medical Management' as under :
"Active intra-abdominal hemorrhage is a contraindication to chemotherapy. The size of the ectopic mass is also important and Pisarska and colleagues (1998) recommend that methotrexate not be used if the pregnancy is more than 4 cm. Success is greatest if the gestation is less than 6 weeks, the tubal mass is not more than 3.5 cm in diameter, the fetus is dead, and the β-hCG is less than 15,000 mlU/mL (Lipscomb and colleages, 1999a; Stovall, 1995). According to the American College of Obstetricians and Gynecologists (1998), contraindications include breast feeding, immunodeficiency, 19 F.A. No. 1894 of 2011 alcoholism, liver or renal disease, blood dyscrasias, active pulmonary disease, and peptic ulcer.
Patient Selection. Candidates for methotrexate therapy must be hemodynamically stable. They are instructed that :
1. Medical therapy fails in at least 5 to 10 percent of cases, and this rate is higher in pregnancies past 6 weeks' gestation or with a tubal mass greater than 4 cm in diameter.
2. Failure of medical therapy requires retreatment, either medically or with elective surgery. If tubal rupture occurs- a 5- 10 percent chance - emergency surgery is necessary. "
It is evident that in present case the size of pregnancy was 10 cm and same was also disturbed. Moreover patient was hemodynamically unstable. Under these circumstances, her left fallopian tube could not have been saved. Therefore, the Surgeon had taken the correct decision to go for removal of the fallopian tube. Moreover, there is no expert opinion of a subject specialist to suggest that such a damaged fallopian tube could have been saved. Apparently, saving the life of the patient was of paramount importance.
16. In view of the above, it is to be held that no medical negligence can be attributed to OP No.3 while conducting surgery upon the patient. District Forum has wrongly held him deficient on the basis of medical literature, which was neither referred nor discussed. Such a non-speaking order is not sustainable in the eyes of law. Therefore, the complaint against appellant No.2/OP No.3 is dismissed. However, the deficiency on the part of appellant No.1/OP No.1 is upheld. Keeping in view the nature of negligence on the part of that opposite party, the amount of consolidated compensation awarded by District 20 F.A. No. 1894 of 2011 Forum is reduced to Rs.2,00,000/- from Rs.5,00,000/- which is to be paid to the complainant by appellant/OP No.1. He is however, at liberty to recover the said amount from his insurer as per provisions of the Insurance Policy. The appeal is disposed of accordingly.
17. The appellant/OP No.1 have deposited Rs.25,000/- at the time of filing the appeal before this Commission. This amount alongwith interest accrued thereon, if any, be remitted to the complainant by way of crossed cheque/bank draft after the expiry of 45 days.
18. The arguments in this appeal were heard on 26.08.2015 and the order was reserved. Now, the order be communicated to the parties.
19. The appeal could not be decided within the statutory period due to heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (VINOD KUMAR GUPTA) MEMBER October 01, 2015 KK 21 F.A. No. 1894 of 2011 22 F.A. No. 1894 of 2011