Delhi District Court
Smt. Sarwari Khatoon vs Municipal Corporation Of Delhi on 24 May, 2011
In the Court of Civil Judge04 (South), Saket
Court Complex, New Delhi
Presided By : Ms. Vijeta Singh
Suit no. 267/10
Case ID No. 02406C0352352010
In the matter of :
1. Smt. Sarwari Khatoon
W/o Shri Khisal Ahmed,
C/o Madan Lal Stowala,
59, Shastri Market,
Bhogal Jangpura,
New Delhi110 014. .......................Plaintiff
Versus
1. Municipal Corporation of Delhi
Through its Commissioner / Medical
Superintendent,
Town Hall,
Chandni Chowk
Delhi110 006.
2. Medical Officer Incharge,
MCW & FW Centre, Maternity Centre,
Jangpura,
New Delhi.
3. Dr. Dutta,
MCW & FW Centre, Maternity Home,
Jangpura,
Suit no. 267/10 1/21 pages
Sh. Sarwari Khatoon Vs. M.C.D.
New Delhi. ...............Defendants
Date of Institution :01.04.1999
Date of Reserving of Judgment :23.05.2011
Date of Pronouncement of Judgment :24.05.2011
J U D G M E N T
1. The plaintiff, Smt. Sarwari Khatoon W/o Shri Khisal Ahmed, R/o 59, Shastri Market, Bhogal Jangpura, New Delhi110 014, has filed the present suit against defendant no. 1, Municipal Corporation of Delhi, through its Commissioner / Medical Superintendent, Town Hall, Chandni Chowk, Delhi110 006, defendant no. 2, Medical Officer Incharge, MCW & FW Centre, Maternity Centre, Jangpura, New Delhi and defendant no. 3, Dr. Rajni Dutta, MCW & FW Centre, Maternity Home, Jangpura, New Delhi, for recovery of a sum of Rs. 55,000/ along with pendentelite and future interest @ 18 % per annum.
2. The plaintiff's case is that after conception and during her pregnancy from April 1997 she was being regularly treated by defendant no. 3 at the maternity center that is managed by defendant no. 2. On 16.08.1997, the plaintiff was admitted in the hospital and a female child was born. However, due to the negligence and carelessness of defendant no. 3, a large amount of adherent placental tissues were left in the uterine cavity. The plaintiff was then discharged from the maternity home Suit no. 267/10 2/21 pages Sh. Sarwari Khatoon Vs. M.C.D. on 18.08.1997. As defendant no. 3 failed to remove the placental issues completely, the plaintiff's condition deteriorated and the plaintiff started bleeding on 24.08.1997. Thereafter, the plaintiff approached the maternity home on the same day but she was left unattended. Instead, defendant no. 3 sent her to Lady Hardinge Medical College. At the Lady Hardinge Medical College, she was kept in the corridor of the hospital for hours and nobody attended her there, as well. She, thereafter, was taken to one Jeewan Hospital & Nursing Home, Jeewan Nagar, New Delhi, by her husband. On 25.08.1997, the plaintiff was admitted at the Jeewan Hospital & Nursing Home. It was diagnosed that a part of placenta was not removed from the uterus. On 26.08.1997, the plaintiff underwent an operation and a large amount of adherent placental tissues were removed from the uterus. The plaintiff was discharged from the Jeewan Hospital & Nursing Home on 01.09.1997. However, she continued to be under treatment till she recovered completely. The plaintiff is hence, aggrieved by the fact that defendant no. 3 did not observe reasonable care towards the plaintiff as she failed to remove the placental tissues at the time of birth of the child of the plaintiff due to which the plaintiff had to incur an additional medical expenses. Therefore, the plaintiff has sought recovery of Rs. 55,000/ from all the defendants as they are vicariously, jointly and severally liable for the negligence, carelessness and professional misconduct of defendant no. 3 being the employee of defendant no. 3 and as defendant no. 2 has complete control over the maternity home, under the following heads Suit no. 267/10 3/21 pages Sh. Sarwari Khatoon Vs. M.C.D. "(a). Claim for the expenses incurred for the operation at Jeewan Hospital and Nursing Home Rs. 20,000/
(b). Compensation for mental torture and agony for the wrongful and negligent act on the part of the defendants Rs. 35,000/ Total Rs. 55,000/ and the interest at the rate of 18 % per annum as per market rate, custom and usages."
3. Plaintiff also sent a notice dated 07.11.1998 under Section 478, Delhi Municipal Act,1957 to the defendants and a reply dated 23.12.1998 was received thereto. A complaint was initially filed before the consumer forum but it was withdrawn with liberty to file the suit to avoid any technical objections.
4. The cause of action is stated to have arisen on 16.08.1997 when the plaintiff gave birth to her child in the Maternity Home. It is further stated to have arisen on 24.08.1997 when she was left unattended in the maternity home. It is further stated to have arisen on the expiry of the statutory period from the service of the notice dated 07.11.1998.
5. The defendants filed a joint written statement on 06.12.1999. They contested the claims of the plaintiff and took the preliminary objections that the statutory notice under Section 477 / 478, Delhi Municipal Corporation Act, 1957 had not Suit no. 267/10 4/21 pages Sh. Sarwari Khatoon Vs. M.C.D. been issued; that the plaintiff was guilty of suppression of material facts and was taking advantage of her own wrongs; that the suit was bad for misjoinder of parties as neither defendant no. 2 nor defendant no. 3 could be sued in their personal capacity as they are the employees of defendant no. 1 and had the protection of provisions of Delhi Municipal Corporation Act,1957.
6. In the reply on merits, the defendants denied that defendant no. 3 was either careless or negligent. The allegations are refuted as baseless, malafide and motivated with no iota of truth in them. It is averred that defendant no.3 observed utmost care and caution at the time of delivery of the female child of the plaintiff. There was neither any complication nor any symptoms of the complication at that time and the delivery was under normal conditions. The plaintiff was admitted in the maternity centre on 16.08.1997 and came to the ward at about 12.30 hrs. The birth of the child was normal and healthy and she was discharged on 18.08.1997 only on the persistent requests of the plaintiff. At the time of the discharge the plaintiff was perfectly fine. If there would have been large amount of adherent placental tissues left in the uterus then at the time of the discharge, the plaintiff would have been having excessive bleeding and would not have been discharged. The problem that the plaintiff is referring to as negligence is a normal phenomenon in uterine cavity called lochia subsequent to parturition. All precautions were taken at the time of delivery and forcible removal of placental tissues cannot be done as it can cause harm to the patient. It is denied that when the plaintiff revisited the Suit no. 267/10 5/21 pages Sh. Sarwari Khatoon Vs. M.C.D. maternity home she as not attended. It is averred that due attention was accorded to her and for further treatment she was sent to Lady Hardinge Medical College. She was sent to the Lady Hardinge Medical College in a van provided by the defendants and she was accompanied by the A.N.M. on duty. The A.N.M. is stated to have got the plaintiff admitted in the Gynecology casualty vide C.R. No. 27261/97. The plaintiff is stated to have left Lady Hardinge Medical College against the medical advice of the doctors. It is, therefore, alleged that the plaintiff has been negligent. The defendants have denied that the plaintiff had been taken to Jeewan Hospital & Nursing Home for treatment and it is stated that the documents relied upon by the plaintiff are false, fabricated and procured. It is also stated that at the time of delivery the plaintiff had 8 gms/d. haemoglobin and it continued to be the same. Thus, it is sated that the allegations of the plaintiff that she suffered excessive bleeding during and after delivery due to negligence of the defendants are absolutely false.
7. No replication was filed by the plaintiff.
8. Vide order dated 03.02.2000, the following issues were framed: "1. Whether the defendants no. 2 & 3 were negligent and careless in leaving large amount of adherent placental tissues utris cavity of the plaintiff ? OPP
2. Whether the plaintiff suffered irreparable loss and injury on account of negligence of defendants no. 2 and 3? OPP
3. Whether the plaintiff is entitled to a recovery of the suit amount from Suit no. 267/10 6/21 pages Sh. Sarwari Khatoon Vs. M.C.D. defendants strictly & vigorously? OPP
4. Relie.f"
9. In support of her contentions, the plaintiff examined PW 1, Sh. Khisal Ahmed (her husband), Ex. PW 2, Smt. Savita Sabharwal (Doctor from Jeewan Hospital & Nursing Home who treated the plaintiff) and PW 3, the plaintiff herself.
10. PW 1 in his examinationinchief stated that the plaintiff was taken for regular check up at the Maternity Home, Bhogal Jangpura and was under the care and treatment of defendant no. 3. On the advice of defendant no 3, the plaintiff was vaccinated during her pregnancy from April 1997 till date of delivery that is 16.08.1997. On 16.08.1997 plaintiff gave birth to a female child. On the day of the incident when he returned from the office, he found that his wife was serious and so took her to defendant no. 2. But she was referred to Lady Hardinge Medical College. He deposed that after waiting till 3 a. m. on 25.08. 1997 in Lady Hardinge Medical College, he shifted his wife to Jeewan Hospital & Nursing Home where it was diagnosed that the placental tissues were not completely removed by defendant no. 3. The tissues had to be then removed in Jeewan Hospital Nursing Home. The claim of Rs. 55,000/ was stated to have been based upon medical expenses, taxi fare, the services of a maid engaged to look after the plaintiff and the legal expenses borne by the plaintiff due to the negligence of defendant no. 3. He also tendered documents Ex. PW 1/1A and Ex. PW1/1B which are photocopies of vaccination Suit no. 267/10 7/21 pages Sh. Sarwari Khatoon Vs. M.C.D. slips of maternity home, Ex. PW 1/3 which is special power of attorney in favour of PW 1, Ex. PW 1/ 4 which is date of birth certificate of the child born to the plaintiff on 16.08.1997, Ex. PW 1/5 which is legal notice dated 07.11.1998, Ex. PW 1/6 to Ex. PW 1/8 which are postal receipts, Ex. PW 1/9 to Ex. PW 1/11 which are AD cards received back to the plaintiff. Documents Mark A to M which are prescription and bills of Jeewan Hospital & Nursing Home.
11. During his cross examination, he admitted that during the treatment for pregnancy, no complaints were made as regards the services rendered by defendant no. 3. Only once, a complaint was made about the checkup of urine but he failed to attribute the same to defendant no. 3. He admitted that there was no problem to the plaintiff and the child at the time of delivery and after delivery. He denied that the discharge of the plaintiff from the Maternity Centre on 18.08.1997 was at his behest. He admitted that at the time of discharge the plaintiff and child were healthy. He admitted that there was no complaint at the time of discharge regarding tissues in the uterus. He also admitted that at the time of discharge there was no complaint of any kind of bleeding by the plaintiff. He reiterated that he was residing at 7, Church Lane and further admitted that in the notice Ex. PW 1 some other address was given. He denied the suggestion that he A.N.M. had visited his house and his wife was not present. He admitted that from 18.08.1997 to 25.08.1997, he did not take his wife to any hospital although she was bleeding. He denied carelessness on his part that may have led to increased bleeding and complications.
Suit no. 267/10 8/21 pages Sh. Sarwari Khatoon Vs. M.C.D.
He admitted that the plaintiff was properly attended at the maternity home by the A.N.M. and the doctor. He denied that the A.N.M. who accompanied the plaintiff to Lady Hardinge Medical College got her admitted. He deposed that it was he got her admitted on the basis of earlier card that he had as the A.N.M. had failed to carry the documents from the Maternity Home. He admitted that he had no proof of the expenditure incurred by him for taxi fare and service of a maid servant.
12. In reply to the Court's question whether he had incurred any expenses or fees on visiting the maternity home or at the time of delivery, he deposed in the negative.
13. PW 2, Dr. Savita Sabharwal, tendered Ex. PW 2 1/A that is photocopy of the admission registration having relevant entry that plaintiff was diagnosed with retained products of conception at point A. She also tendered Ex. PW 2/A which is a photocopy of hospital preparation and therapy register having relevant entry at point A that placental tissues were removed under anesthesia. She also tendered Ex. PW 2/3 which is the cash memo dated 25.08.1997, Ex. PW2/ 4 which is the bill dated 07.10.1997,Ex. PW 2/5 which is the histopathology report, Ex. PW 2/6 which is the blood examination report dated 28.08.1997, Ex. PW 2/7 which is the blood examination report dated 25.08.1997, Ex. PW 2/8 which is the bill dated 07.10.1997 for a sum of Rs. 692/,Ex. PW 2/9 which is the certificate by PW 2 that the plaintiff was transfused with two liters of blood, Ex. PW 2/10 which is cash memo dated 25.08.1997,Ex. PW 2/11 which is prescription ,Ex. PW 2/12 which is Suit no. 267/10 9/21 pages Sh. Sarwari Khatoon Vs. M.C.D. the report of Radiologist dated 25.08.1997,Ex. PW 2/14 which is the discharge slip, Ex. PW 2/15 which is the ultrasound images.
14. During the cross examination she admitted that she had not made any observation of the plaintiff at the time of admission in the hospital. She admitted that PW 2/2 did not bear the name of the hospital and that the same pertained to the operations conducted in the hospital. She admitted that removal of placental tissues did not find mention at point 'A' in Ex. PW 2/2 but stated that there "were retained products of conception (placental bits)" which were removed from the uterus as mentioned at point 'B' in Ex. PW 2/2. She admitted that Ex. PW 2/3 to Ex. PW 2/14 were not authored by her. She also admitted that Jeewan Nursing & Nursing Home, Jeewan Nagar, did not keep the records of bills and of documents Ex. PW 2/3 to Ex. PW 2/13 as they were handed over to the patient. Copies of Ex. PW 2/3 to Ex. PW 2/13 were admitted not be maintained by the hospital. She denied the suggestion that she did not operate the plaintiff and stated that at point 'A' of PW 2/5, she had signed. She also admitted that except for her signature at point 'A', the document had not been prepared by her. The same was admitted to have been prepared by the histopathologist. She denied to have acted on the opinion of the pathologist but admitted that PW 2/5 did not include her opinion. She admitted ultrasound that Ex. PW 2/14 was not done by her and that it did not bear the name of the plaintiff. She admitted that Ex. PW 2/14 and Ex. PW 2/12 had no serial numbers. As regards Ex. PW2/14 she stated as under
Suit no. 267/10 10/21 pages Sh. Sarwari Khatoon Vs. M.C.D. "I am not sure, it is correct that document Ex. PW 2/14 belongs to the patient Sarwari Khatoon."
She denied the suggestion that there was no necessity for the operation and that the same was superfluous. She also denied that the hospital had helped plaintiff manufacture the document.
15. PW 3 in her chief reiterated her claims. During cross examination she admitted to have sent notices thrice to the defendant no.1 prior to the filing of the suit. She stated that she had already filed the details of expenses incurred by her. She denied that she had filed the details of Rs. 35,000/ as sought to be recovered. She reaffirmed that defendant no. 3 had been negligent and that placental tissues were left unremoved in her uterus. She admitted not to have spent any money at the maternity center. She admitted that at the time of discharge from the maternity center she was having bleeding against which she had not filed any complaint in writing. She admitted that she had informed the doctor who gave her an injection and the bleeding had stopped. She admitted that she was sent to Lady Hardinge Medical College in the Ambulance along with sister. She deposed once again that she was not attended by any doctor in Lady Hardinge Medical College and had to be therefore, shifted by her husband to Jeewan Hospital & Nursing Home. She admitted that she had not made any complaint in writing or orally against the doctor of Lady Hardinge Medical College. She admitted that notice Ex. PW 1/15 did not bear her signature.
Suit no. 267/10 11/21 pages Sh. Sarwari Khatoon Vs. M.C.D.
16. By way of the defence evidence, the defendants could only examine PW 1 on 19.03.2008 and subsequently, after affording opportunities, the defence evidence stood closed vide order stated 22.05.2009. The application of the defendants to recall order dated 22.05.2009 were also dismissed vide orders dated 29.07.2010 and 26.03.2011.
17. DW 1 tendered her affidavit Ex. D 1 in examination in chief along with documents Ex. DW 1/1 check up card, Ex. DW 1 /2 which card no. 415 and Ex. DW 1/3 which is infant card. She deposed that the discharge from vagina is normal for 40 days subsequent to delivery and the discharge consists of pieces of membranes and placental tissues. On 19.08.1997, for a follow up the P.N.C. visited the address given in the anti natal card that is 7, Church Lane and the address was found to be fake and incorrect. She deposed that the plaintiff was referred to Lady Hardinge Medical College in an ambulance accompanied by an A.N.M. and has also been admitted vide CR No. 272 61/97 in gynecology casualty but left the same against medical advice. She deposed that she had performed her duty carefully and that the discharge from the vagina called lochia is a normal phenomenon as per medical science and cannot be termed as negligence. However, since defence evidence was closed vide order dated 22.05.09, plaintiff was not afforded an opportunity to crossexamine the witness and hence, it cannot be read in evidence.
18. Final arguments were heard on 09.05.2011.
19. Learned counsel for the plaintiff urged that the plaintiff is entitled to the Suit no. 267/10 12/21 pages Sh. Sarwari Khatoon Vs. M.C.D. relief claimed for as the plaintiff has successfully proved that on 16.08.1997 entire placental tissues were not removed. On 18.08.1997 she was discharged even when defendant no. 3 was not duty. Ex.PW 2/5 confirmed the presence of placental tissues and PW 2 who is a medical expert testified before the Court that the placental tissues had not been completely removed at the time of child birth.
20. Learned counsel for the defendants placing reliance upon Text Book of Obstetrics by D.C.Dutta, published by New Central Book Agency argued that the requisite care and caution had been adhered to. The management of third stage of Labor ( that is the period following delivery of the child) involves the expulsion of the placenta and membranes by way of either watchful expectancy or active management PostPartum Hemorrhage ( herein after refer to as PPH.) is also of two types :
(a). Primary which occurs with in 24 hours of parturition,
(b). Secondary which occurs after 24 hours and anytime upto 6 weeks from parturition.
21. It was urged that the fact that Sarwari Khatoon was in the maternity home from 16.08.1997 to 18.08.1997 without seeking any help for excessive bleeding is evident that it is not the case of primary PPH. There can be no case for cutting and removing placental tissue as the uterus should not be kneaded or fiddled with as it may lead to Primary PPH. If at all, the plaintiff had a problem, the same could be secondary PPH as it has occurred subsequent to the discharge and the same could Suit no. 267/10 13/21 pages Sh. Sarwari Khatoon Vs. M.C.D. have occurred due to lack of nutrition and personal hygiene in the postpartum period. It has also been argued that the plaintiff was shifted on 24.08.1997, when she returned with slight fever and slight bleeding to Lady Hardinge Medical College as defendant no. 3 suspected secondary PPH on account of infection and for evacuation of the same, the maternity home is ill equipped. It is argued that thus, the defendants discharged their duties well and they even got her admitted in Lady Hardinge Medical College but she left from there against medical advice.
22. It has also been argued that there is no denial by the defendants that products of conception were retained but that does not tantamount to negligence as it is a possibility as per medical science, Learned counsel for the defendants has drawn the attention of the Court to the cross examination of PW 2 who has deposed that "placental bits" were retained. PW 2 is also stated not to have proved as to what happened in the operation. The registers relied upon did not bear the name of the hospital. As regards discharge of the plaintiff is concerned, the attention of the Court has been drawn to Ex. DW 1 /2 where in it has been repeatedly recorded that the plaintiff wanted to be discharged. Learned counsel for the defendants also relied upon the judgment of the Apex Court titled "Jacob Mathew Vs. State of Punjab & Anr." (2005) 6SCC I and Ms. INS Malhotra Vs. Dr. A. Kripalni & Ors. (2009) SCC 705, Martin F. D'souza Vs. Mohd. Ishafaq 157 (2009) DLT 391 (SC). Having given anxious considerations to the material on record that the issue wise findings of this Court are as under : Suit no. 267/10 14/21 pages Sh. Sarwari Khatoon Vs. M.C.D. ISSUE NO. 1 Whether the defendants no. 2 & 3 were negligent and careless in leaving large amount of adherent placental tissues in the uterus of the plaintiff ? OPP
23. The onus to prove this issue was upon the plaintiff. The plaintiff was required to prove that large amount of adherent placental tissues were left behind in the uterus of the plaintiff and such an act amounted to carelessness and negligence on the part of defendants no. 2 and 3.
24. In support of her contentions the plaintiff examined PW 1 who deposed that at the Jeewan Hospital & Nursing Home, the doctor told him that defendant no. 3 had not removed the tissues from the uterus of the plaintiff and they also showed him the tissues in a bottle which he did not keep with him. The PW 2 deposed that the plaintiff was having retained products of conception that were removed under anaesthesia on 26.08.1997. She tendered Ex. PW 2/5 that is the histopathological report dated 03.09.1997 which confirmed retained placental tissues leading to secondary PPH. The report was admitted to have been prepared by the pathologist and not by PW 2. Therefore, this Court does not deem it to have been proved as per law as the author of it was not examined and the same is therefore, inadmissible. But she also deposed that defendant no. 3 had not completely removed the placenta at the time of birth of the child. She denied the suggestion that there could have been a possibility of blood clots appearing to be placenta. Ex. PW 2/11 wherein PW Suit no. 267/10 15/21 pages Sh. Sarwari Khatoon Vs. M.C.D. 2 had recorded that large amount of adherent placental tissues were removed and sent for histopathological examination was also proved. However, in her cross examination PW 2 referred to the retained products of conception as "placental bits". PW 3 also deposed that placental tissues were left in her body. Hence, it is established that adherent placental tissues did remain in the uterus of the plaintiff but that the quantum to be large has not been clearly established by the plaintiff.
25. The second aspect of the issue also to be proved was whether defendants no. 2 and 3 had been negligent as in the present case the principle of res ipsa loquitur was neither pleaded nor found to be applicable. Therefore, the question that now arises is whether the depositions of PW 1, PW 2 and PW 3 show the negligence and carelessness of defendants no. 2 and 3.
26. To decide this, in the considered opinion of this Court, it is essential to reflect upon the law on medical negligence which is no longer is res integra in view of the ratio decidendi in Jacob Mathew (Supra).
27. In Jacob Mathew (Supra) the Apex Court has in great detail discussed the concept of Negligence as a tort and has held as under in paragraphs no. 10 and 11: "The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian Jurisprudential thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (TwentyFourth Edition 2002, edited by Justice G.P. Singh ). It is stated (at pp 441442)"Negligence is the breach of a duty caused by the omission to do something which a reasonable man, Suit no. 267/10 16/21 pages Sh. Sarwari Khatoon Vs. M.C.D. guided by those considerations which ordinary regulate the conduct of human affairs would do, or doing something which is prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.....The definition involves three constitutes of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs for, damage is a necessary ingredient of this tort."
11."According to Charlesworth & Percy on Negligence (Tenth Edition, 2001) in current forensic speech, negligence has three meanings. They are : (1) a state of mind, in which it is opposed to intention : (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstance but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence as recognized, are three "duty", "breach" and "resulting damage", that is to say:
1. the existence of a duty to take care, which is owned by the defendant to the complainant:
2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty: and
3. damage, which is both casually connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23).
In paragraph no. 18, the Apex Court has thrown light upon Negligence by Suit no. 267/10 17/21 pages Sh. Sarwari Khatoon Vs. M.C.D. professionals and the relevant portion is as under : "...a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams and Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth and Percy, ibid, Para 8.03 ).
28. Thereafter, the Apex Court has adopted the BOLAM Rule which was enunciated by Justice McNair in Bolam Vs. Friern Hospital Management Committee (1957) IWLR 582 to be applied in cases of medical negligence. The Rule 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 not 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 Suit no. 267/10 18/21 pages Sh. Sarwari Khatoon Vs. M.C.D. exercising that particular art." (Charlesworth and Percy, ibid, Para 8.02) ."
29. It has been further held in paragraph no. 25 as follows : "The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of profession skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used."
It has been categorically held in paragraph no. 21 as under: "Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice ; (2) that the defendant has not adopted it' and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care"
Suit no. 267/10 19/21 pages Sh. Sarwari Khatoon Vs. M.C.D.
Coming to the facts of the present case, no evidence was led to the effect that the adherent placental tissues were per force required to have been removed at the time of third stage of management of labor and that defendant no. 3 failed to adopt it. It has also not been shown that the course in fact adopted by defendant no. 3 is one which gynecologist of ordinary skill would not have taken had she / he been acting with ordinary care. In the absence of evidence being led on this behalf, the issue is decided against the plaintiff and in favour of the defendants. ISSUE NO. 2
Whether the plaintiff suffered irreparable loss and injury on account of negligence of defendants no. 2 and 3? OPP
30. In view of the findings, of this Court on issue no. 1 wherein it has been opined that negligence on part of defendants' no. 2 and 3 has not been proved by the plaintiff, this issue is also decided against the plaintiff and in favour of the defendants.
ISSUE NO. 3
Whether the plaintiff is entitled to a recovery of the suit amount from defendants strictly & vigorously? OPP
31. In view of the findings of this Court on issue no. 1 wherein it has been opined that negligence on part of defendants no. 2 and 3 has not been proved by the Suit no. 267/10 20/21 pages Sh. Sarwari Khatoon Vs. M.C.D. plaintiff, this issue is also decided against the plaintiff and in favour of the defendants.
RELIEF
32. In view of the findings on issues no. 1, 2 and 3 this Court is of the opinion that the plaintiff is not entitled to any relief.
33. However, before parting with the matter, this Court expresses its anguish for having failed to provide any relief to the plaintiff who has tirelessly pursued the matter since April 1999, till date because unfortunately, she failed to place on record any evidence as required in matters of medical negligence wherein meticulous and detailed elucidation of the process is required to have been adopted lest the matter falls under purview of res ipsa loquitur.
34. The suit is hereby dismissed in view of the above discussions.
35. Decree sheet be prepared accordingly.
36. Parties to bear their own cost.
Announced in the open Court
On 24.05.2011 (Vijeta Singh)
Civil Judge04/South District
Delhi
Suit no. 267/10 21/21 pages
Sh. Sarwari Khatoon Vs. M.C.D.