State Consumer Disputes Redressal Commission
Ghanshyambhai Rathod vs Dr. (Mrs.) Ushaben H. Shah,The ... on 6 July, 2004
To be reported:Yes/No
BEFORE
THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE , AHMEDABAD
APPEAL NO. 18 OF
1999
Ghanshyambhai
Rathod
At
Dhobin-o-Kacho
Kapadiawad
Sarangpur
Ahmedabad 380 001 Appellant
versus
1.
Dr. (Mrs.) Ushaben H. Shah
E/2, Flat No. 4 & 5
Ishwarnagar Society
Vatva
Road, Khas
Ahmedabad
2.
The Superintendent Officer
L.G.
Hospital
Maninagar
Ahmedabad 380 008
3. Dr. Kishorebhai Patel
Quarter No.9
LG Hospital, Maninagar
Ahmedabad 380 008 Respondents
BEFORE:
Justice M.S. Parikh,
President
Dr. M.K. Joshi, Member
Smt. Leenaben Desai, Member
Appearance:
Mr. A.M. Raval, Advocate for
the Appellant
Mr. M.A. Bhatt, Advocate for
Resp. No.1
Mr. R.P. Patel, Advocate for
Resp. No.2
ORAL
ORDER:[By Justice M.S. Parikh, President] [Date: July 6, 2004] By way of this appeal, the original complainant seeks to challenge order of dismissal of Complaint No. 926 of 1994 passed by the learned Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad on 31.1.1997.
2 At the outset it may be noted that the complainant/appellant has stated in the appeal that the appeal is within the period of limitation but in fact it has been registered pursuant to the order of condonation of delay passed by this Commission on 8.8.1998 in Civil Misc. Application No. 598 of 1997.
3 Since the complainant has made number of grievances against the learned Forum in the memorandum of appeal, we propose to deal with this appeal by making a note of the allegations of fact made in the appeal by the complainant. The complainant, husband of deceased Jyotsnaben approached the learned Forum with following prayers:
"(A) Opposite Party No.1 may be directed to pay compensation of Rs.2,00,000/- for the loss of complainant's wife for her negligence in terminating the pregnancy of complainant's wife and for compensation for maintaining two minor daughters.
(B) Opposite Party No.2 should be directed to pay Rs.50,000/- for the deliberate suppression of material evidence and for destroying the medical evidence for the cause of death.
(C) Opposite party No.1 should be ordered to pay Rs.30,000/-
for the expenses spent by the complainant for medical expenses and expenses for after death ceremony (D) Opposite Party No.1 and opposite Party No.2 may be ordered to pay Rs.10,000/- for mental pain, agony, tension and suffering to the complainant.
(E) Opposite party No.4 may be ordered to cancel the certificate of practice of opposite Party No.1 (F) Opposite party No. 1 and 2 may be ordered to pay Rs.2000/- each as the cost of the complaint towards the expenses incurred for correspondence postage and other expenses in pursuing and filing this complaint".
4 The complainant alleged that he got his wife Jyotsnaben admitted to the hospital of opponent no.1 on 8.4.94 at 6.30 p.m. for termination of her pregnancy.
According to him, the pregnancy was of 18 weeks and therefore he sought his wife admitted to the opponent no.1's private hospital and at that point of time he alleged to have paid Rs.1,200/- in cash but no receipt was issued. It has been alleged that opponent no.1 assured for issuance of receipt at the time of discharge of the patient. Opponent no.1 is alleged to be a Gynaecologist and authorised to terminate pregnancy as per The Medical Termination of Pregnancy Act, 1971. It has also been alleged that after admission of the patient to the hospital, opponent no.1 gave injection to her and thereafter she went into coma and she was transferred to L.G. Hospital, opponent no.2. After she was admitted to that hospital, she was declared dead. It has also been alleged that the complainant did not file police case although no postmortem was performed with a view to suppress the mistake of the opponent no.1. It has therefore been alleged that there was negligence on the part of opponent no.2 in providing medical service to the complainant's wife. The complainant paid Rs.411/- to opponent no.2. Opponent No.3, the doctor who treated the complainant's wife was made party to the complaint with a view to know from him what complication had set in to the complainant's wife and further to know why no police case was filed and no postmortem was conducted. Opponent No.4 Indian Medical Council has been joined for the relief with regard to cancellation of certificate of practice of opponent no.1. It has been alleged that after opponent no.1 gave injection to his wife she suddenly developed complication and thereafter went into coma.
As opponent no.1 failed to control the situation, she was admitted to opponent no.2 hospital at about 12.05 (midnight of 9.4.94). The complainant's wife was sent to the said hospital in ambulance with oxygen cylinder along with a nurse and assistant of opponent no.1. It has been alleged that in spite of the fact that it was emergency case, no police case was registered and name of opponent no.1 was not mentioned and only private hospital was mentioned in the record of the said hospital. It has therefore been alleged that there is collusion between the first two opponents.
The complainant has asserted that during the course of treatment at LG Hospital, Dr. Kishorebhai, Senior doctor Mahadevbhai Desai and other doctors attended to the patient but there was no improvement in the health of the complainant's wife and she died on 13.4.94 on account of negligence displayed by the opponent no.1 in termination of pregnancy of complainant's wife. Reference has then been made to the provisions of The Medical Termination of Pregnancy Act, 1971. The complainant has also made a reference to the criminal complaint filed against opponent no.1 by some other person. The complainant therefore issued notice dated 28.4.94, but as no reply was given, the complainant was compelled to file the aforesaid complaint before the learned Forum.
5 The opponents resisted the complaint as per their respective written statements supported by affidavits. 1st opponent has contended that the complaint filed against her was false, frivolous and vexatious and would deserve dismissal with cost as provided under Section 26 of the Consumer Protection Act. She alleged that no consideration was paid by the complainant or complainant's wife and therefore complainant could not be said to be consumer in the eye of law. She had asserted that complainant being the neighbour and friend of her brother in law (younger brother or her husband) Shri Jatinbhai K. Shah approached her through him and upon the request of Shri Jatinbhai, medical termination of pregnancy of the complainant's wife was performed absolutely free of charge.
Jatinbhai being popular BJP worker of Raipur area, managed for free samples of parenteral fluid bottles and other medicines for the complainant's wife in view of the weak economic condition of the complainant. Most of other injectable medicines and medical disposable devices required for the complainant's wife were provided by opponent no.1 free of charge from the emergency stock which was maintained in her hospital. At the relevant time of emergency, the complainant was not available and the opponent no.1' brother in law paid around Rs.300/- from his own pocket to buy Mannitol injection and other medicines. At the time of emergency she had to call Dr. Smitaben Shah, Anaesthetist and Dr. Ashokbhai Parekh, Physician to attend to the complainant's wife. The said doctors attended to the patient at the complainant's request without any consideration. According to first opponent before performing medical termination of pregnancy second opinion of Dr. Reshmiben Bhavsar was also taken by her. That opinion was also given free of charge by Dr. Reshmiben Bhavsar at the instance of 1st opponent. She has asserted that after the medical termination of pregnancy was performed, complainant's wife was stable for 31 hours (subsequent to administration of injection Emcrydil 100 ml. (Ethacridine Lactate Solution) through the cervix extra amniotically. The complainant's wife was freely moving around and was permitted to perform all normal activities and kept on normal diet.
She accordingly had taken normal diet twice. All of a sudden complainant's wife complained of breathlessness at 7.15 p.m. on 9.4.1994. 1st opponent started oxygen inhalation and administered injection Deriphyline with 5% Dextrose Solution through intravenous route and also directly gave injection Hydrocortizone Succinate and Inj. Dexona along the drip simultaneously. 1st opponent, within no time called Dr. Smita Shah, Anaesthetist and Dr. Ashok Parekh, Physician to attend to the emergency. Both the said doctors rushed to opponent no.1's maternity home within 10 minutes and attended to the patient. Dr. Smitaben did the intubation to ensure continuous respiration and immediately administered injection Soda bi-carb out of the 1st opponent's emergency stock. The respiratory acidosis got neutralized immediately. Dr. Ashok Parekh found that the complainant's wife started showing symptoms of cerebral anoxia. He therefore started administration of injection 20% Mannitol simultaneously along with injection Hydrocortisone Succinate 2 vials straight. Indwelling Folly's Catheter was also inserted by the 1st opponent.
Complainant's wife then settled at about 8 p.m. However, pulse rate and blood pressure were being checked at every 10 minutes by 1st opponent who continued other treatment. Dr. Smita Shah and Dr. Ashok Parekh left the nursing home at 8.15 p.m. advising 1st opponent to transfer the patient to L.G. Hospital or any other bigger hospital in case there was relapse.
As there was no gynaec complaint and there was only medical emergency which had set in, such an advice was rendered by the said doctors. 1st opponent immediately explained and informed the complainant who reached the nursing home at around 8.30 p.m. the seriousness that had suddenly developed.
She had also transferred wife of the complainant to LG Hospital where all amenities and facilities would be available. According to 1st opponent, at first the complainant was hesitant to transfer his wife to LG hospital on account of his weak economic condition.
1st opponent therefore called Shri Jatinbhai who explained the seriousness of the situation since he was the best friend of the complainant.
The complainant accordingly agreed to get his wife transferred to L.G. Hospital. She was accordingly transferred there at around 10.30 p.m. 1st opponent has rendered complete assistance for transferring the patient to L.G. Hospital as per the particulars set out in the reply.
The patient was shifted to L.G. Hospital at 10.45 p.m. with continuous oxygen inhalation and infusion of parenteral fluids.
The 1st opponent asserted that she had equipped the complainant with all emergency medicine/injection namely injection Effcorline, inj. Avil, inj. 5% glucose and inj. Soda bi Carb and Nurse Hina Joshi had accompanied the patient to L.G. hospital and she returned at about 2.30 a.m. next day. In view of such facts, 1st opponent asserted that she attended to the complainant's wife with due care and caution. According to her there is no proximate cause attributable to her for the death of complainant's wife who had developed medical emergency unconnected with gynaec problem or termination of pregnancy carried out by 1st opponent. She has set out her qualification to be Post graduate in Gynaecology and Obstetrics and has 15 years' standing in practice. She has asserted that the complainant could have filed criminal complaint and could have insisted for postmortem report if at all he smelt foul play as alleged by him. According to information received by 1st opponent, the complainant approached his advocate and he was properly advised not to move criminal complaint as there was no prima facie case against any of the opponents. She has denied all the allegations made in the complaint and has set out the facts at length in her reply. She has accordingly prayed for dismissal of the complaint with cost.
6 With regard to the criminal case referred to by the complainant, she has asserted that the said case came to be dismissed by the Court of Metropolitan Magistrate. According to her, the complainant has set out such facts with a view to give colour to his case which would merit dismissal.
7 Opponent no.2 resisted the complaint inter-alia on the ground that there was no cause of action against the opponent no.2. According to opponent no.2, there was no privity of contract between the parties and complainant cannot be said to be 'consumer' in the eye of law. While denying the allegations made in the complaint, second opponent has asserted that the complainant's wife was admitted to the Intensive Care Unit of the hospital on 10.4.94 with indoor registration No. 437 at about 12.10 a.m. with history of breathlessness followed by convulsion and loss of consciousness after the alleged medical termination of pregnancy was performed, with alleged history of use of Eucredi at a private nursing home. At the time of admission of patient names of doctor and hospital were not provided. At that point of time, complainant's wife was comotose, poorly responding to painful stimuli with suppressed respiration and blood pressure. A clinical diagnosis of amniotic fluid embolism with cerebral anoxia was made and the best possible treatment with artificial respiration using Ambu bag and later on mechanical device was provided by the hospital staff and services of anaesthetist and gynaecologist were also made available. However, condition of the patient remained precarious and she died at 6.30 p.m. on 13.4.94 due to cardio respiratory arrest. The cause of death in the diagnosis was made known to the relatives of the patient and the complainant who signed the death certificate stating the cause of death. The complainant and the relatives did not make any police complaint and they were satisfied with the cause of death. Hence, no postmortem examination was requisitioned. The cause of death was stated to be 'cardiorespiratory arrest due to amniotic fluid embolism'. As there was no fault or imperfection on the part of the opponent no.2 hospital it sought for dismissal of the complaint with cost.
8 After considering the material placed on record and the facts of the case, the learned Forum came to the conclusion that there was no negligence on the part of any of the opponents. The complainant failed to establish deficiency in service on the part of any of the opponents. He also failed to prove payment of any amount to the 1st opponent. The complaint was therefore dismissed.
9 We have heard the learned advocate for the appellant (original complainant) at length. We have gone through the written arguments submitted by him. We have heard the learned advocate appearing for the 1st opponent. We have also gone through the decisions cited by the parties. No one has appeared for opponent no.2. In our considered opinion the finding of the learned Forum that there was no deficiency in service on the part of the opponents cannot be faulted for following reasons.
I 10 Attempt has been made to correlate deficiency in service with the alleged violation of the provision of The Medical Termination of Pregnancy Act, 1971 by the 1st opponent. We would therefore take ourselves at the first instance to the provisions contained in Section 3 of the said Act which has been referred to in this appeal.
That provision reads as under:
"3. When pregnancies may be terminated by registered medical practitioners- (l) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that -
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation I.- Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.
(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause
(a), no pregnancy shall be terminated except with the consent of the pregnant woman".
11 It may be noted that the complainant has conveniently kept silent with regard to the facts which prompted him and his wife to go for medical termination of pregnancy. We have noticed that they had two daughters (female children). In the background of the fact that they had two female children, the complainant has kept complete silence about the reasons for going for termination of pregnancy of his wife. Number of circumstances might be inferred but we refrain from the issue.
Suffice it to say that as per the explanation to the aforesaid provision, any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. In our considered opinion it was not necessary for opponent no.1 to set out the reasons and possible grave injury to the mental health of the complainant's wife.
It was for the complainant to set out the reasons why they had to rush for termination of pregnancy of his wife.
Besides, as can be seen from clause (b) of Section 3 of the aforesaid provision, written consent was given by the patient. That consent was very much on the record of the complaint proceeding. No complaint has been filed by the complainant in respect of alleged violation of the aforesaid provision. Opinion of 2nd doctor was also taken before undertaking termination of pregnancy. That has come on the record of the complaint proceeding. This is apart from the fact that the complainant and his wife went for termination of pregnancy of their own to the nursing home of opponent no.1. The circumstances in which the complainant and his wife approached opponent no.1 at her nursing home have been elaborately stated by opponent no.1. The complainant has not been able to bring in evidence to show that he made payment either of Rs.1,200/- or any amount for the medical services rendered by 1st opponent. It can be seen from the statement of facts that no complication occurred in the process of termination of pregnancy. Case papers have been produced by 1st opponent in support of her affidavit. As alleged, violation of provision of Section 3 of the Act can hardly be correlated with the subsequent complication which unfortunately occurred to the complainant's wife.
12 It has however been submitted that the 1st opponent had not produced evidence to show that her hospital was approved for the purpose of carrying out termination of pregnancy as contemplated under the provision of the aforesaid Act. 1st opponent is a qualified Gynaecologist and Obstetrician. She has her gynaecology hospital/nursing home/maternity home. It cannot be presumed that she did not have required permission from government. No material has been produced to show that she was carrying on the profession unauthorisedly. Indian Medical Council was party opponent no.4 in the complaint proceeding and it has also not produced any material to show that 1st opponent was unauthorisedly carrying on her medical profession.
13 All that can be stated from the merits of the submission made from the provision of The Medical Termination of Pregnancy Act, 1971 is that no violation or infringement of the provisions of the aforesaid Act will amount to consumer dispute as would confer jurisdiction in the Consumer Forum under the Consumer Protection Act, 1986. As stated above, the complainant did not move either the police authority or the criminal court into the matter.
14 We have set out at length the allegations of facts made by the complainant as also the statement of facts made by the 1st opponent. It would clearly appear from the statement of facts made by the 1st opponent supported by her case papers that nothing went wrong when the medical termination of pregnancy was performed and the relevant injection was given. The patient was comfortable and was moving and had couple of occasions to take normal diet. It was after passage of 31 hours or quite a long period after the termination of pregnancy was performed that some medical emergency occurred which has been described at length by 1st opponent. Umpteen efforts were made to see that the life of the patient was saved.
Ultimately 1st opponent also saw the patient being transferred to a bigger hospital. She was accompanied by 1st opponent's nurse and assistant. If there was any mind to escape the situation she would not have sent her nurse and assistant with the complainant and his wife. There is no evidence to show that there was any effort on the part of the 1st opponent to see that the name of her nursing home was not stated in the case papers or 2nd opponent hospital. It was an emergency case and ordinarily what the complainant or complainant's relatives would disclose to the hospital would be recorded in the case papers. It was not the accompanying nurse or assistant who were to give particulars of the patient. It was for the staff of opponent no.2 to record whatever was stated from the side of the complainant. Nothing turns out on the recording of private hospital without naming it in the case papers. Even in the 2nd opponent hospital, efforts were made to save the life of the patient. Same has been described at length in the affidavit filed by opponent no.2 hospital.
We have noted at length the rival contentions of facts in the foregoing part of the order. We need not repeat them. What is important is the statement on facts made by the 1st opponent are supported by the case papers produced on record. Even when the case papers were placed on record the complainant did not bother to obtain expert opinion. He has not been able to support his case about any act or omission on the part of the 1st opponent which might have resulted into complication that occurred to the complainant's wife. In our considered opinion, finding of the learned Forum that the complainant failed to establish negligence or deficiency in service on the part of the opponents is thus appropriate in the light of the material placed on the record of the case.
15 Before we proceed to dictate the order, we may make note of what the appellant has stated on page 10 of the written submissions thus:
"The appellant having faith in this Hon'ble Commission most respectfully prays that if this Hon'ble Commission comes to the conclusion that it has no jurisdiction, the appellants may be permitted to approach the Human Rights' Commission in the interest of justice".
We do not approve of such expression of submission before the matter is opened up for hearing.
This Commission has no jurisdiction to issue any such direction as has been sought for in the written arguments.
Neither this Commission nor the Human Rights Commission has any appellate power over the authority of the other under the provisions of the Consumer Protection Act, 1986. We, therefore, pass following order.
O R D E R This appeal is dismissed with no order as to costs.
[M.S. Parikh] President [Dr. M.K. Joshi] [Leenaben Desai] Member Member