State Consumer Disputes Redressal Commission
Meena W/O Rambabu vs Dr.Shylaja Occ: Doctor on 23 March, 2011
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.803 OF 2008 AGAINST C.C.No.16 OF 2006 DISTRICT FORUM SANGAREDDY AT MEDAK DIST Between: Meena W/o Rambabu Aged about 25 years, Occ; Private Teacher R/o H.No.3-5-48/c, Opp.New Bus Stand Snagareddy, Medak District Appellant/complainant A N D Dr.Shylaja Occ: Doctor O/o Balaji Specialty Hospital Near Telephone Exchange Sangareddy, Medak District Respondent/opposite party Counsel for the Appellant Sri M.Hari Babu Counsel for the Respondents Sri B.Ravishankar QUORUM: SRI SYED ABDULLAH, HONBLE MEMBER
AND SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER WEDNESDAY THE TWENTY THIRD DAY OF MARCH TWO THOUSAND ELEVEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The appellant working as a teacher in St. Joseph School had approached the respondent for abortion in view of their decision to have one child who was 13 months old and for the reason that she had undergone caesarean section at the time of delivery of her son as also she had acted upon the advice of the respondent. On 5.12.2005 as per the advice of the respondent, the appellant had got conducted urine test at Balaji Diagnostic centre which issued report with the result for pregnancy as positive and on 6.12.2005 the respondent had admitted the appellant in her hospital and conducted abortion to terminate the pregnancy of the appellant.
2. The appellant has charged the respondent with negligent treatment administered to her and stated that after the termination of pregnancy, on 22.12.2005 she has suffered from bleeding which was reported to the respondent who assured her that it would subside within two or three days which however turned into heavy bleeding continuously for an hour whereby the appellant became unconscious for treatment of which the respondent prescribed medicines and again on 27.12.2005 when the appellant became unconscious on being contacted on phone by the appellants husband, the respondent advised two registron tablets and on 28.12.2005 the appellant had gone to the Govt. Hospital Sangareddy where the doctors after going through the scanning report, informed her that the respondent had performed incomplete abortion due to which she suffered for about one month and she was advised to undergo operation for removal of remnants and if they are not removed, turn poisonous and the appellant would die.
On the same day the appellant was admitted to Jyothi Mother and Child Hospital where three units of blood was transfused to her to increase her haemoglobin percentage from 5.5% to 7.5%.
The doctors stated to have informed the appellant that conducting dilation and curettage (D&C) for second time is risky and for performing the operation haemoglobin percentage has to be maintained at 9.0%. on 31.12.2005 after transfusion one unit of blood the doctors performed operation upon the appellant and they removed the remnants.
3. It was contended by the respondent that after the appellant was discharged, her husband informed on 23.12.2005 that his wife suffered from occasional bleeding and the respondent advised him to bring the appellant to her hospital which the appellant had not done on the premise that the bleeding appellant suffered from was occasional and basing on his statement the appellant prescribed medicine and asked him to bring the appellant for further tests. The respondent had charged the appellant with the ultra sonogram report issued by an incompetent doctor. The respondent had contended that she is not responsible for the onset of any complications as she has not committed any medical negligence.
4. The appellant as PW1 and Dr.Ushakiran, as PW2 had been examined and Exs.A1 to A12 are marked. On behalf of the respondents, she was examined as RW1.
5. The District Forum has dismissed the complaint on the premise that the appellant failed to establish her case and examine an expert.
6. The points for consideration are:
1) Whether the respondent had committed any medical negligence in administering treatment to the appellant?
2) To what relief?
7. POINT NO.1 The appellant has submitted that as per the advice of the respondent she had decided to undergo abortion whereas the respondent has contended that she has not given any advice to the appellant and the appellant and her husband on their own volition decided for the appellant to undergo abortion in view of a child they already had by that time. The fact remains that the appellant had undergone abortion on 6.12.2005 and a day prior to 6.12.2005 the respondent had got conducted the urine test of the appellant which had shown positive for pregnancy.
8. The appellant has stated that her husband had informed the respondent about the bleeding she suffered from and the respondent advised some medicines. The respondent has denied the appellant intimating her about the bleeding the appellant stated to have suffered. Leaving the allegation and denial thereof aside, if we proceed to examine the proceedings on 23.12.2005, it is clear that there is no dispute of the fact that the appellants husband informed the respondent that the appellant had suffered from occasional bleeding for which the respondent advised him to bring the appellant to her hospital and the appellants husband refused to do so on the premise that the bleeding was occasional and very less and also informed the respondent that he would bring the appellant after three days thereof and relying upon the information from the appellants husband, the respondent prescribed medicines and advised him to bring the appellant.
9. PW2 Dr. Usha Kiran, has deposed that she worked as Civil Assistant Surgeon at the Govt. Hospital Sangareddy from August 20054 to 6.3.2006 and on 21.12.2005 the appellant came to Govt. Hospital with the complaint of vaginal bleeding and after conducting tests she had performed operation on 31.12.2005 and during evacuation she had removed remaining products of conception from the uterus of the appellant. She has stated that she had done evacuation of the products as there was incomplete abortion. In her cross examination PW2 has stated that that the abortion done to the appellant was incomplete and as such she had performed surgical abortion upon the appellant.
10. There is no evidence of the fact that the appellants husband had informed the respondent that the appellant was bleeding on 22.12.2005 and except that fact the negligence of the respondent is clearly established by her carelessly conducting the abortion whereby the remnants of conception were the uterus of the appellant. On 23.12.2005 the respondent has prescribed Registron Tabs without examining the patient. The case record of Govt. Hospital, Sanga Reddy and Jyothi Mother and Child Hospital, Sangareddy would show that three units of blood was transfused to the appellant.
The discharge card of the Govt.
Hospital establish that the appellant suffered complications on account of incomplete abortion performed by the respondent and admitted to the hospital on 31.12.2005 and evacuation and check and curettage.
11. PW2 in her evidence referring to the complications of vaginal bleeding due to incomplete abortion as stated:
She complained as the medical termination of pregnancy was done outside, private nursing home on 6.12.2005 ultrasound scanning was done at Dist.
Hospital on 29.12.2005. The ultrasound report was given (sic) shown) incomplete abortion.
That report is dated 29.12.2005.
We obtained high risk consent from the husband of the complainant. Ex.A11 is such consent which is filed along with case sheet . Ex.A10 is case sheet relating to the patient Meena. On 31.12.2005 I performed operation upon the complainant under anaesthesia. I have done evacuation and check curettage.
12. The evidence of PW2 coupled with the medical record of Govt. Hospital and Jyothi Mother and Child Hospital would show that the respondent had negligently performed abortion. The medical negligence of the respondent thus invite application of res ipsa loquitor.
13. The Honble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital in Civil Appeal No. 2641/ 2010 after considering the entire case law and where the principles of res ipsa loquitor have been made applicable in the case of medical negligence held :
In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
14. The Honble Supreme Court in Savita Garg (Smt) v. Director, National Heard Institute reported in 2004 CTJ 1009 (SC)(CP) (2004) 8 S.C.C. 56 in which it is held as follows:
Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent and that as a result of such negligence the patient died, then in the case the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment.
Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence.
It is the hospital which engages the treating doctor, thereafter it is their responsibility. The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it is responsible to provide efficient service and if in discharge of its efficient service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.
15. In Jacob Mathew v. State of Punjab reported in III (2005) CPJ 9 (SC), the Apex Court has held in para 48(3) as follows:
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, 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.
16. The principle laid down in the aforementioned decisions is squarely applicable to the facts of the case on hand.
17. The appellant had undergone abortion on 6.12.2005 and consulted the respondent with the complications of bleeding and pain which had gone unheeded by the respondent whereby the appellant was constrained to approach the Govt. Hospital and Jyothi Mother and Child Hospital. In the Govt. Hospital the appellant had undergone another operation. It cannot be said that she had incurred any expenditure in the Govt. Hospital. Taking into consideration of the totality of the circumstances, we are inclined to award an amount of `25,000/- towards compensation on all counts in favour of the appellant.
18. In the result the appeal is allowed. The order of the District Forum is set aside.
Consequently the complaint is allowed directing the opposite party to pay an amount of `25,000/- together with costs of `2,000/-. Time for compliance four weeks.
MEMBER MEMBER Dt.23.03.2011 KMK*