State Consumer Disputes Redressal Commission
Savitri Devi vs Sir Ganga Ram Hospital on 27 March, 2008
Complaint No IN THE STATE COMMISSION: DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 27.03.2008 Complaint Case No.89/1999. Mrs. Savitri Devi, Complainant W/o Sh. Subhash Chand Chauhan, R/o D-275, J.J. Camp, Rangpuri, Pahari Nala, P.O. Mahipal Pur, New Delhi-110037. Versus 1. Medical Supdt., .. Opposite Parties Sir Ganga Ram Hospital, Rajinder Nagar , New Delhi. 2. Dr. S.K. Bhandari, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi. CORAM: Mr. Justice J.D. Kapoor President Ms Rumnita Mittal 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 is claiming a total compensation of Rs.7 lacs for the failed sterilization procedure conducted by OP-2 Dr. S.K. Bhandari of Sir Ganga Ram Hospital.
2. The complainant underwent sterilization procedure at Sir Ganga Ram Hospital on 05.01.1998 for the purpose of family planning. However, the procedure failed and she became pregnant due to which she suffered loss of face in the society mental agony and also extra financial burden of raising one more child. According to the complainant the procedure has failed due to the medical negligence committed by the OP s.
3. According to the OP hospitals record, the complainant for the first time visited the OP hospital on 25.12.1997 in OPD for medical termination of pregnancy and family planning operation and after thorough and detailed medical investigation in the hospital on 25.12.1997 and 30.12.1997 was admitted in the Maternity General ward on 05.01.1998 and the complainant was duly counseled regarding the nature of operation and possibility of occasional failure which is reported all over the world. The medical termination of pregnancy with Laparoscopic sterilization was performed on 05.01.1998 by one of the senior resident doctor Jyotsna with a Post Graduate degree (MD) in Obstetrics and Gynecology under the supervision of a Senior consultant of the OP hospital Dr. Harsha Khullar. As is made out from the Hospital record/document. After the operation the complainant was discharged from the OP hospital on 06.01.1998 and was also issued the certificate of sterilization on 13.01.1998 when she came for stitch removal in OPD and on the said date the complainant was also paid the incentive money by the Family Planning Officer.
4. According to the OP Hospital, the categorical statement made by the complainant that the complainant during the month of June 1998, contacted the opposite party No.2 regarding some abnormality, when read in the context of hospital records of OP No.1 is absolutely wrong and misconceived. That the complainant came to OP Hospital for her check up in February 1998. The complainant again came to the OP of OP Hospital on 25.08.1998 and not in the month of June 1998 as alleged by the complainant with no periods for approximately two months. That on the said date i.e. 25.08.1998 she was examined in the OPD and was found to be pregnant. The complainant after ultra sound test done in the OP Hospital was told that she was 12 weeks and 3 days pregnant. Dr. Harsha Khullar, consultant of the unit explained to the complainant on the said date about occasional failure of family planning operation and advised her admission in the hospital for termination of pregnancy with repeat ligation if the complainant does not want another baby. That this is the procedure followed under normal circumstances when there is sterilization failure and pregnancy has occurred. But the complainand did not get admitted and came back on 15.09.1998 with the desire to continue pregnancy. So she was booked in General Ward for delivery and ligation after delivery.
5. That the complainant again reported in OPD of OP Hospital on 29.09.1998 with the history of pain abdomen. She was therefore admitted for observation and was observed for 24 hours and was thoroughly and extensively investigated wherein all investigations done were found normal. So the complainant was discharged after 24 hours on 30.09.1998 in a fit condition as per hospital records wherein her expected date of delivery was given as 05.03.1998.
6. That as per Indian laws and established medical practice termination of pregnancy can be safely performed till 20 weeks of pregnancy and this was told to be complainant clearly but the complainant had expressed her desire to continue the pregnancy and that is why, the complainant booked herself at OP Hospital as per hospital records. The OPs have denied any negligence on their part and have stated that patients can conceive after laparoscopic sterilization in 2-4 /1000 cases.
7. We have heard counsel of the parties at great length and accorded careful consideration to the rival contentions.
8. However, on the concept of negligence while treating a patient we have drawn out certain criteria from catena of authorities and judgments starting from Bolams case which still holds the field and is followed by large number of judgments of our own Supreme Court of India and foreign judgments. These criterion 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?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
9. During the course of arguments, counsel for the complainant contended that the complainant was neither informed nor given any explanation as to the operation being not perfect and there being failure rate of the operation and it was only on the assurance of the OP that this operation is necessary and would be foolproof that the complainant went for operation because she was already having four children.
10. However, there is no dispute and the complainant also admitted that the OP No.2 is skilled and one of the eminent doctors and had performed large number of such operations and attended to every kind of gynecological problem. There is no dispute and is borne out from the medical literature that the rate of failure is or may be 2 or 4 in thousand.
11. We have taken a view that wherever there is minimal rate of failure the imperfection of the operation can be inferred, unless and until the inference or presumption is dislodged by convincing evidence to the effect that particular case comes under the category where aforesaid rate of failure was applicable.
12. Counsel for the OP contended that the complainant had also been a mother four times and the factum of having gone through the pregnancy four times and a missing mensuration period could have alerted her but she ignored the missing periods and the complainant did not on missing mensuration or immediately thereafter approach the OP for termination of unwanted pregnancy and the complainant as per her own admission contacted the OP only in the month of August 1998 i.e. on 25.08.1998 by which time she was 12 weeks and 3 days pregnant and her pregnancy could have been safely terminated but she did not choose to do so and expressed her desire to continue with the pregnancy and had accepted the position regarding pregnancy.
13. However in the given fact and circumstance of the case and finding no negligence of the kind which may be so demonstrative or may be of such nature which may speak of lesser skill of the doctor coupled with no convincing evidence as to the fallopian tubes uncut or cut in defective manner or not in effective manner, we by way of sympathy gesture direct compensation of Rs.25,000/- to be paid by the OP No.1 Hospital which will meet the ends of justice. However this case will not be precedent because we are awarding this compensation in peculiarity of the facts of case and particularly for the reason that she has been waiting for nine long years after filing the complaint and has suffered mental agony. The complainant was already having four children and has been burdened with another child, we deem that hospital will show gesture for the lady who belonged to poor section of the society. Payment shall be made within one month from the receipt of a copy of this order.
14. Copy of order, as per statutory requirement, be forwarded to the parties and thereafter file be consigned to record.
Announced on 27th day of March 2008.
(Justice J.D.Kapoor) President (Rumnita Mittal) Memebr Tri