State Consumer Disputes Redressal Commission
Sau Megha Sharad Adoni vs Rekha Navin Thakur on 25 March, 2014
Daily Order
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH AT NAGPUR
5 TH FLOOR, ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES, NAGPUR-440 001
First Appeal No. A/10/520
(Arisen out of Order Dated null in Case No. Miscellaneous
Application No. of District None)
1. DR. SAU MEGHA SHARAD ADONI
Near PWD office Paratwada
Tah- Achalpur Dist-
Amaravati
...........Appellant(s)
Versus
1. SAU REKHA NAVIN THAKUR
Vilayatpura Achalpur City Tah-
Achalpur Dist- Amaravati
...........Respondent(s)
First Appeal No. A/622/10
(Arisen out of Order Dated 23/06/2010 in Case No. CC/09/166 of
District None)
1. NATIONAL INSURANCE CO.LTD
DIVISIONLA OFFICE GOPAL PLAZA
DEVRANKAR NAGAR BEDNERA ROAD AMRAVATI
...........Appellant(s)
Versus
1. SAU .REKHA NAVIN THAKUR
VILAYATPURA ACHALPUR DIST AMRAVATI
2. DR.SAU.MEGHA SHARAD ADONI
SARLA MATERNITY & SURGICAL
NURSING HOME
NEAR PWD OFFICE PARTWADA
TQ/ACHALPUR DIST AMRAVAT
...........Respondent(s)
BEFORE:
HON'ABLE MRS. Jayshree
Yengal PRESIDING MEMBER
HON'ABLE MR. S.B.SAWARKAR MEMBER
PRESENT:
Adv.
Mr. W.G. Paunikar for National Insurance
Adv. Mr. U.S. Bapat
for Dr. Sau Megha Adoni
Adv. Mr. Chichbankar
for Sau. Rekha Thakur
ORDER
(Passed On 25/03/2014) Per Shri S.B. Sawarkar, Honble Member
1. These two appeals bearing No. 520/2010 and 622/2010 are against the order dated 23/06/2010 passed by Amravati District Consumer Disputes Redressal Forum in CC No.166/2009. They are filed by Original Opponent No.1, now Appellant No.1 in appeal no. 520 of 2010, Dr. Megha Sharad Adoni. The original Opponent No.2, now appellant No.2 in appeal no. 622 of 2010, National Insurance Company Ltd. The complainant in original complaint Smt Rekha Navin Thakur is respondent no. 1 in both appeals and all the parties are being referred so for brevity
2. Vide the above impugned order, the Forum allowed the complaint of Respondent Rekha Navin Thakur against now appellant No.1 & 2 and directed to pay her the compensation of Rs.1 lac within a period of one month from the date of the order and if delayed, to pay interest @9% p.a. thereafter, attributing medical negligence to the appellant No.1 doctor.
3. Aggrieved against the order, the original Opponent No.1, now appellant No.1 (called for brevity as above) has filed the appeal. The appellant no. 1 during the hearing of the complaint had requested the Forum to implead the Opponent No.2, the Insurance Company in complaint, which had indemnified, the appellant No.1 for any damages due to her medical negligence. The Forum permitted to implead opponent no. 2. The Opponent No.2 (now appellant No.2) has filed the second appeal No.622/2010. Both appeals being against same order, we heard them together and pass this common order to dispose of the appeals.
4. The brief facts of the case are that the respondent No.1 in both appeals had approached appellant No.1 for treatment of her pregnancy. The appellant being a doctor gave her medicines and subjected her to a Sonography test on 01/05/2007. It is alleged by the respondent No.1 that appellant was not competent to conduct the sonography. After the sonography the appellant no. 1 gave a report that there is healthy one foetus of 19 weeks in the womb. It was alleged by the respondent that the appellant did not have the expertise of conducting sonography test and no expert doctors were available. The sonography was done on the illegally purchased machine of the appellant. However the appellant also did her pathology test and she was regularly taking the medicine given by the appellant. On 19/8/2007, the respondent No.1 suddenly started severe pains and was admitted to a nearby cottage hospital by her husband. She delivered at the hospital in the evening at 6.50 hours. She delivered a child weighing 2 kgs. and immediately thereafter, gave birth to an another child weighing 1300 grams. But both the foetus were still born. It is the complaint of the Respondent No.1 that the appellant No.1 did not inform her about the presence of two foetus inside her womb after sonography. She also did not do repeat sonographies as minimum 3 sonographies are necessary during pregnancy. Therefore, she could not take proper care of her foetus hence both of them died during delivery. She, therefore, alleged medical negligence to appellant No.1 and requested compensation of Rs.4 lac + Rs.1 lac + Rs.2 lac + Rs.2 lac total Rs.9,04,000/- with interest @18% upon it. Respondent issued notice to the appellant No.1 and after not getting reply, filed complaint as above, before the Forum.
5. The appellant No.1 appeared before Forum and submitted that the respondent/complainant had given consent to the sonography. Appellant no. 1 denied that she was not expert in conducting the sonography test but stated that she took training of sonography in hospital. The appellant No. 1 submitted that there was no difference between the care to be taken for a pregnancy of one foetus or a pregnancy of twins. Appellant No. 1 submitted that when the respondent No.1 had undergone pathology test on 11/7/2007, she had suspected toxemia of pregnancy in her for which she had prescribed proper antibiotics to her. The appellant No. 1 submitted that the respondent No. 1 may not have properly taken the medicines. She also did not come to her for treatment. While giving medicines, the appellant No. 1 had given her directions of taking medicines and to come regularly for the consultations.
6. The appellant No. 1 further contended that the respondent was appropriately directed by her when she came for the treatment; she was also advised to take appropriate medicines on 11/7/2007 after the result of her pathology test. Her expected delivery date was around 23/09/2007 whereas she prematurely delivered on 19th of August, 2007 in the hospital. The appellant No. 1, therefore, denied negligence and stated that during sonography, one foetus might have hidden behind the another and, therefore, only one foetus might have been seen. The appellant No. 1 stated that she knew and was trained in sonography test and her hospital was registered. Appellant No. 1 also submitted that she had taken indemnity from the Insurance Company/appellant No.2.
The original Opponent No. 2 and now appellant No.2 filed written version and thereby denied their responsibility and submitted that they had insured the appellant No.1 to the extent of Rs.3 lacs only.
7. The Forum heard both parties and considering the contentions, held that
a) The appellant No. 1did not have the knowledge of radiology though she had a diploma in gynecology and she had undergone training at Nawrojjee Wadia Maternity Hospital, Mumbai to conduct Sonography test. The degree in radiology is required to conduct the sonography test. As she did not have the degree and she gave wrong opinion on the report therefore it is a medical negligence.
b) The Respondent No. 1 did not come to the appellant No. 1 after 11/7/2007. The appellant No. 1 during the above testing did not give her, in writing that the respondent No. 1 should undergo medication and also did not give her advice for additional sonographies leading to a negligence in service. It was the contention of the respondent no. 1 that three sonographies were required prior to delivery during pregnancy.
c) The appellant No. 1 suspected toxemia of pregnancy on 11/7/2007 and prescribed medicines, but did not especially direct her in writing for re-testing. Appellant No. 1 did not call her for re testing to verify if the symptoms of toxemia got eliminated or not.
d) The Forum did not accept the opinion given by the appellant No. 1 of one Dr.Pushpa Somawanshi on the ground that one expert would not like to opine against the another expert.
e) The appellant No. 1 did not give any cogent opinion from the books on medical science justifying that small foetus may hide behind the big foetus showing only one foetus in the sonography.
1. Hence, the Forum did not accept the contention of the appellant No. 1, and attributed medical negligence to the wrong sonography opinion of appellant.
2. The Forum held that the demand of Rs.9,04,000/- by the respondent was not justifiable, but as the respondent lost her children and suffered mental torture granted compensation of Rs. 1,00,000/- as above.
8. Aggrieved by the order, the appellant No.1 and the appellant No.2 respectively filed the above two appeals before us.
9. We heard the parties and perused the documents, written notes of arguments and the case laws submitted by them. The appellant No.1 submitted that, the Respondent No. 1 submitted to the sonography test voluntarily on 1/5/2007. She further submitted that, to evaluate the various medical issues it was necessary to have medical accumenship and knowledge of medical science to the Forum and counsel. As they did not have, Forum should have taken the opinion of the experts. She relied on the Supreme Court judgment in Martin F. D.Souza Vs. Mohammad Ishfaq reported in 2009 AIR SC(IN) 1807 in which the Honble Apex Court, stipulated that on receiving complaint against a doctor or a hospital, the consumer Forum should refer the matter to a competent doctor or a committee of specialist and receive the opinion. After which only, the notice be issued to the doctor. As the Forum here did not consult such expert committee, the impugned judgment needs to be set-aside and case be remanded back Forum to decide afresh. The appellant No. 1 denied the negligence and deficiency in service in her Appeal.
10. The appellant No. 1 relied further upon referred judgment as above that a medical practitioner is not liable to be held negligent simply because things went wrong through an error of judgment in choosing one course of treatment in preference to another. The negligence of doctor must be gross negligence amounting to recklessness. The appellant No.1 also submitted that a non cooperation of the respondent No. 1 in not taking the medicines as per the advice of the doctor cannot be attributed as negligence to the doctor.
a) Appellant relying upon the case law referred Supra stated Apex Courts opinion that It must be remembered that despite the best efforts of a surgeon if the patient dies, that does not mean that the Doctor or the surgeon must be held to be guilty of medical negligence unless there is a strong evidence to suggest that he is:-
Thus, the appellant no. 1 denied negligence and requested for remanding the case back to Forum to hear afresh.
The appellant no. 2 submitted that unless the Doctors negligence is established no responsibility can be fastened upon the medical practioner. Appellant no. 2 stated that a simple lack of error of judgment or an accident is not a proof of negligence on the part of practioner. Therefore the insurance company cannot be held liable for that. The respondent No. 1 was not regular and therefore the appellant no. 2 is not liable for any compensation. It therefore prayed for setting aside the order of the Forum.
b) 1. The respondent No. 1 with her written argument vehemently opposed the contentions of the appellants. The respondent No. 1 submitted relying in the case of National Consumer Disputes Commission, New Delhi in Bombay Hospital and Medical Research Center Vs. Sharifa Bai Ismail Sayyad and others (Reported in AIR 2008 in (NOC 1991) (ALI) stating that it is a duty of a consulting Doctor to correctly interpret, the report of MRI films and scan images presented to him by junior Medical Staff. Mistake or error in interpreting MRI film then the consulting Doctor would be guilty of medical negligence.
2. The respondent No. 1 also relied on in the case of Punam Varma Vs. Ashwini patel, (Reported in AIR 1996 Supreme Court 211) stating that a homeopathy practioner is not permitted to practice in Allopathy as well as a Doctor of any another pathy cannot practice in Homeopaty and Therefore if a Doctor tress passes into a prohibited field and prescribes Allopathy medicine which caused the death of a patient, his conduct is actionable negligence.
The above case law does not appear to have any Applicability to the above case as in the above case, the allegation is not of death by medicine. The appellant No. 1 is M.B.B.S. DGO and was permitted to practice of allopathy medicine.
3 The respondent also relied in the case of Laxman Balkrishna Joshi, Doctor. Vs. Dr. Trimbak Bapu Godbole (Reported in AIR 1969 Supreme Court 128) stating that a person, who holds himself out ready to give medical advice and treatment, impliedly undertakes that he possesses skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duty. This case also does not appear to have relevance to the present case as the appellant appears to have proper degrees and experience. The respondent no. 1 has stated the appellant no. 1 to be a renowned doctor.
4 These case laws have little significance in the present case that the present appellant No. 1 had not given any treatment other than in which she did not have the training but the opinions expressed in the case laws provide that the medical practitioner has no doubt discretion in choosing treatment which he proposes to give to the patient such discretion is relatively ample in cases of emergency.
The respondent also relied on Case Law set in Devkumar Singh Vs. Dr. C.B. Sinha (Reported in AIR 2008 (NOC) 673 of NCDRC, New Delhi, stating that failure on the part of pathologist in exercising adequate care in transfusion of blood is a medical negligence. An incorrect blood report by pathologist on RH factor prevented Doctors from admistering appropriate treatment which resulted in abortion of first two pregnancies.
5 This case law also does not have relevance as in the present case the death is not by an active administration of some agent in the respondent No. 1 body.
6 The respondent No. 1 also citeda case law wide NCDRC judgment in Indrayani Bhattcharyaji Vs. Chief Medical officer and others stating therein that the patient visited hospital with a complaint of discomfort pain and sweating ECG was not found normal and revealed mild Ischemia. It was a duty of a Doctor to advise him to consult cardiologist. Failure to advise amounts to deficiency in service in the event of death of diseased due to cardiac arrest Doctor was held deficient in service.
In this case there was a positive sign of abnormal ECG which the doctors should have certainly treated. Such is not the present case. The respondent No. 1 also cited Nadia minor, represented by guardian VS. Fatim Hospital Kalikat and Others (Reported in 2001(1) 559 CDRC Kerala) stating therein that the burden of proof is on the complainant to establish negligence. In the absence of any material to support defence pleaded by OP, the complainants case for negligence and deficiency in service has to be accepted. This opinion has no relevance to the present issue under consideration.
7 As per the case law, cited above the complainant has to prove with proper evidence the negligence on the part of the opposite party. In the case, the appellant no. 1 has submitted action taken by her hence it is the duty of the respondent to prove the negligence. Hence this case law also does not have any applicability to the present case. The respondent No. 1 also submitted a case law wide Oriental Insurance Company Limited Vs. Nanjappan and others (Reported in AIR 2004, Supreme Court 1630) stating therein that the insurer is liable to pay the quantum of compensation fixed by the tribunal.
11. We considered the contentions of appellant No.1, appellant No.2 and the respondent No. 1. We see from the facts presented before us that the respondent underwent the sonography on 1/5/2007. She had missed her period from the month of December, 2006 and was expected to deliver in the last week of September 2007. It is the contention of the respondent No. 1 that minimum three sonographies are required. She was last seen by the appellant on 11/7/2007 which is about two months before her expected date of pregnancy.
12. The appellant No. 1 has submitted that she underwent a training in sonography in Wadia Hospital and was a DGO Postgraduate diploma holder after MBBS in Gynecology.The sonography is a non invasive test performed by a computerized instrument. The test is a suggestive measure in the medical treatment. The sonography was done in the early stages of the pregnancy. Therefore, only the mistake in stating one foetus in place of two foetus would certainly not be the total negligence or deficiency of service on the part of appellant doctor, that too after only the first test of sonography.
13. The appellant No. 1 had also sent her for blood and urine test. She inspected her pathological reports and gave her medicines for treatment. It would be a farfetched reasoning to expect that a doctor treating a patient in the rural circumstances would give the instructions to come again in writing to the patient. It is always a practice of the doctor to ask the patient to come for examination after a certain period.
14. The respondents contention that on 19/8/2007, she had sudden pain for which she was admitted to a Cottage Hospital. She there delivered either still born two childrens or childrens died immediately. This indicates that her admission to another hospital and the delivery was in different circumstances and was not a natural delivery of full tenure. There is no record before us to show that the childrens born to the respondent No. 1, died because of the wrong opinion of the appellant No. 1, or because of wrong care by the respondent No. 1 because of the non advice of the appellant. The delivery appears to be premature. The circumstances have also not been fully explained before us by the respondent No.1 Under such circumstances, stretching the probability that the death of foetus was a result of the wrong opinion of the appellant no. 1 and attribute it as medical negligence and carelessness to the appellant No. 1 does not appear to be reasonable, probable and appealing to the conscious.
15. There is no record before us to show that sonography was performed in any wrong manner. Only the opinion is in question. The appellant No. 1 is a M.B.B.S. D.G.O. holder running a hospital which is registered. Therefore it cannot be said that she did not the have the knowledge to conduct and read the sonography test. There also does not appear to be any intention to state a wrong opinion by the appellant No. 1. There is no other evidence to show that respondent No. 1 would have taken any other extra care so as to prevent the incident in her delivery.
16. The appellant No. 1 has submitted that the Forum should have referred the issues before them for expert opinion to come to the conclusion and have requested to remand the case to Forum for hearing afresh.
17 She has also relied on the judgment to indicate that there should be direct evidence to justify the Medical negligence to attribute deficiency of service to the treatment given by the appellant no. 1 but in the circumstance of the present case we do not find it necessary to remand back the case only on the ground that the opinion of the expert was not called.
18 The respondent no. 1 had relied on the judgment of NCAC New Delhi in Bombay Hospital and medical research centre Vs. Sharifa Bai Ismail Sayyad and others reported in AIR 2008 (NOC) 1991 (ALL). In the it is held judgment opinion that it is the duty of consulting Doctor to correctly interpret report of MRI Films and scan images presented to him by junior medical Staff (Radiologist) He cannot endorse same without reading. A mistake or error in interpreting MRI films would be medical negligence of the Doctor.
19 We carefully examined the above judgment and the ratio to be applied to the present case. We do not find the present cited case to have any bearing on the present case. It is because of the fact that the appellant No. 1 appear to have given the opinion about the condition of the foetus in the report of the sonography. It does not appear that she has negligently given a wrong opinion because the report gives the details of the foetus its age as well as its conditions.
20 We also do not find any overt or direct relation between the opinion of the sonography test and the premature delivery of the respondent no. 1 and the delivery of two dead foetus. It is seen from the record that the respondent no. 1 had undergone the sonography test on 1/5/2007. She was pathologically examined on 25/06/2007 and showed her blood reports on 11/7/2007 to the appellant no. 1. The respondent no. 1 thereafter on 19/08/2007 got admitted to collage Hospital with pain and in emergency where she delivered the two still born babies. It shows that the respondent no. 1 delivered after 54 days after the sonography in the conditions which the respondent no. 1 has not clearly explained in the complaint. The hospital where she was admitted was different than the hospital of appellant No. 1. In these circumstances of delivery in the unexplained circumstances, we do not find any co-relation between the opinion and death of the foetus. We also find no reason to attribute the negligence to the appellant no. 1 when the delivery happened in unexplained circumstances and in premature period.
21 Thus, in the light of the above reasoning we come to the conclusion that deficiency of service and negligence in treatment cannot be attributed to the appellant no. 1. The appellant no. 1 and no. 2 cannot be fastened with the responsibility to pay the compensation.
22 Thus, we come to the conclusion that the Forum failed to appreciate the circumstances of the premature delivery of the still born foetus and erred in fastening the negligence to the appellant no. 1 making her liable to pay the compensation for which appellant no. 1 cannot be held to be responsible.
23 We, therefore with all compassion in the heart for the respondent no. 1 decide to set aside the order of the Forum as below. In the circumstances of the case no cost need to be provided to any of the parties, thus the order.
ORDER
1. The appeal bearing no. 520/2010 is allowed.
2. The appeal bearing no. 622/2010 is allowed.
3. The impugned order dated 23/06/2010 passed in complaint bearing no. 166/2009 is set aside the complaint stands dismissed.
4. In the circumstances of the case each party to bear its own cost of the litigation.
[HON'ABLE MRS. Jayshree Yengal] PRESIDING MEMBER [HON'ABLE MR. S.B.SAWARKAR] MEMBER ph