Judgment:
M. THANIKACHALAM J, PRESIDENT
1. The Doctor who suffered an adverse order, as opposite party in O.P.28/2001 on the file of the District Consumer Disputes Redressal Forum, Tiruvallur, is the appellant.
The facts leading to the complaint:
2. The complainant/respondent herein approached the appellant/opposite party on 16.12.2000, for medical check up and for confirmation of pregnancy, which was confirmed. Thereafter, for general check up, the complainant went to the hospital on 26.12.2000 to the opposite party and she was advised to be in the hospital for observation, to conduct test, for which, medicines also given. On the advice given by the opposite party, scan was taken and the complainant was informed that she is suffering incomplete abortion, thereby, evacuation was done under sedation on 26.12.2000 itself. On the same day, the complainant was also discharged as per the advise given by the opposite party.
3. After two days i.e. on 28.12.2000, the complainant had severe abdominal pain, for which, immediately she went to the opposite party, who after physical examination said that there is nothing found incrementing in the uterus, prescribing general medicines which had no effect of reducing the pain, whereas, she continue to suffer abnormal pain.
4. The complainant being a teacher, applied leave, due to severe abdominal pain and for the relief, she approached Dr.Shobha, informing her that bleeding was present for past three days, further giving information about the evacuation done on 26.12.2000 at Julia Hospital. Dr.Shobana examined the complainant and on local examination, informed that the D and C was not done properly, resulting, present pain in abdomen due to infection, further informing 50% of the pieces were left out in uterus and they should be removed immediately. Thus, in order to give relief, D and C was done under sedation. Due to deficiency in service of the opposite party, the complainant suffered mental shock, pain, suffering due to the infection, leading to the other complications, for which, the opposite party is answerable. By the negligence of the Doctor, the complainant has lost 50% chances to become pregnant. Therefore, the opposite party should be directed to pay a sum of Rs.3,75,000/- towards compensation, for mental agony, Rs.10,000/- towards medical expenses and Rs.5,000/- towards cost of the complaint.
The appellant/opposite party opposed the claim as follows:-
5. On 16.12.2000 as admitted by the complainant, upon examination, pregnancy was confirmed, treatment was given, prescribing proper medicines. On 26.12.2000 when the complainant reported to this Doctor regarding pain in the abdomen and bleeding, it was diagnosed as threatened abortion and she was advised admission, in addition to, put on conservative management, with complete bed rest. Even thereafter, the bleeding was not under control and investigation done, taking Ultra Sound Scan, which revealed incomplete abortion. Therefore, after explaining the condition and the consequence thereon, not only to the complainant, but also to her husband, medical advice for evacuation was given and thereafter under sedation and sterile conditions instrumental evacuation was done, the products of conception was removed and shown to the complainants husband. Thereafter, while discharging since the complainant was stable, medicines also prescribed.
6. Again on 28.12.2000, the complainant came to the hospital of this opposite party, complaining of right lower abdominal pain and clinical examination, revealed that she was normal with mild tenderness in right iliac fossa present and there were no products of conception seen. Thus, while treatment given by the Doctor, she took all precautions adopted, all precautionary measures with care and therefore it is false to allege that she committed any negligent act or deficiency in service. The other averments are all denied as false. In fact, there is no specific allegation regarding the alleged deficiency of service and this being position, the opposite party is not liable to pay any compensation for the alleged sufferings. Hence, it is prayed that the petition may be dismissed with cost.
7. On the above pleadings, the lower Forum framing three points for determination, took the case for trial.
8. At the time of the trial, on behalf of the complainant, she was examined as CW1 and the Doctor who had given treatment, at later stage namely Dr.K.C.Shoba has been examined as CW2. They have also sought the support of Ex.A1 to Ex.A5. In order to eclipse the above materials, the opposite party alone has been examined as OPW1 and no exhibit has been exhibited on her side, except relying on medical literature in support of the defence.
9. The lower Forum after evaluating the above materials, deduce the conclusion that the opposite party had committed medical negligence thereby the complainant was put to sufferings, for which, the lower forum granted a sum of Rs.50,000/- as compensation with interest thereon at 12% per annum, in addition to, awarding a cost of Rs.1,000/- as per order dated 30.09.2002 which is impugned before us.
10. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
11. The learned counsel for the appellant urged before us, that when the complainant has miserably failed to plead and prove the medical negligence said to have been committed by the opposite party, the lower forum erroneously awarded compensation which should be set aside. In support of the above submission, our attention were drawn two documents relied on by the complainant, as well as medical literature, further, relying on the judicial precedent also. Opposing the above submission, it is the submission of the learned counsel for the complainant/respondent, that only because of the negligent act committed by the opposite party, the complainant was put to untold sufferings, for which, only a moderate compensation was awarded which deserves only acceptance not disturbance, thereby, prayed for the dismissal of the appeal.
12. By going through the order passed by the lower Forum, having gone through Written Submissions filed by either parties, evaluating the evidence available on record and further giving our anxious thought and deep consideration, we are of the view that the complainant had not only failed to plead the medical negligence, giving particulars, but also failed to prove the alleged medical negligence or the negligent act said to have been committed by the opposite party by producing satisfactory evidence, and this being the position, it is our further considered opinion that ordering the opposite party to pay a sum of Rs.50,000/- as compensation without any basis, is erroneous and the reasons are hereunder:
13. A leading judgement of the Apex Court in the field of professional misconduct i.e. medical negligence ruled, what are the duties of the complainant and under what circumstances the act or acts of the professional could be labeled or branded as medical negligence etc., which is reported in âAIR 2005 SUPREME COURT 3180â rendered in âJacob Mathew, Appellant Vs. State of Punjab and another, Respondentsâ. A Constitutional Bench of the Apex Court in the said judgement has ruled, a professional could be held liable on two grounds namely; that
(1) he was not possessed of requisite skill which he professed to have possessed;
(2) he did not exercise with reasonable competence in given case, the skill which he did possess. On the above lines, it is observed that that âA 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. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligenceâ. It is the further dictum of the Apex Court that an error of judgement on the part of the Doctor is not negligence perse and the doctor has not followed one procedure, resulting failure. Having the above principle in mind, the conduct of the opposite party should be assessed, based upon the averments in the complaint, supported by evidence.
16. Before going through the facts of the case, it is to be remembered what is incomplete abortion (inevitable abortion) and the procedure to be followed for evacuation and the consequential result also. Based upon a Text âM.K. Krishna Menon and B. Palaniappan, Editors Mudaliar and Menons Clinical Obstetrics, Orient Longman, Hyderabad, Ninth Edition Reprint 1997, Page 211â, it was submitted before us that incomplete abortion âdenotes that the ovum has practically separated from the uterine wall and is, therefore dead and bound to be expelled. In such cases the pain is more severe, the bleeding more profuse, the cervix is dilated, and occasionally a portion of the ovum may be felt protruding through the cervical canal. When only a part of the products of conception has been expelled, it is termed incomplete abortionâ. As repeated in the Written Argument, based upon the same Text, it is the submission of the learned counsel that âWhen small bits of the placenta are left behind, they may give rise to irregular bleeding and occasionally a placental polypus may form at a later date. They may also give rise to secondary infection. Where a portion of the foetus itself is left behind, decomposition is bound to occur; resulting in septic discharge, elevation of temperature, passage of small bits of the foetal remnants associated with increasing pain and discomfortâ. Thus it is seen, in case of incomplete abortion and incomplete evacuation of uterus lead to secondary infection which result in septic discharge, elevation of temperature, etc. Having the above facts in mind, the case has to be seen.
17. It is an admitted fact that the complainant went to the opposite party on 26.12.2000, complaining abdomen pain, in view of the fact previously, the opposite party alone had confirmed the pregnancy. The opposite party after physical examination, probably doubting threatened abortion, advised ultra sound scan which revealed âGestatinal Sac present. Foetal anatomy not demonstrable. Few retained products seen. Foetal heart activity absent. Cervical OS openedâ. Therefore, under sedation, evacuation was done on the same day, products of conception was removed, in which, we find no dispute, though the complainant would urge, that there was no complete cleaning. After Dand C, the complainant was discharged on the same day, prescribing medicines and advising rest. Thereafter, on 28.12.2000, the complainant approached the opposite party complaining abdominal pain. The complainant was clinically examined and as seen from the medical history, BP, Temperature, Systemic examination found normal and mild tenderness in right iliac fossa present. The Scan also disclosed that there was no product of conception has remains in the uterus. Thus, the opposite party satisfying herself, there is nothing wrong in the uterus or her evacuation has not caused any consequential problem, advised the complainant to take rest, prescribing medicines. In the process so adopted, even as seen from the averments in the complaint, nothing is stated as negligent, or any procedure to be adopted, has not been adopted.
18. It is also not the case of the complainant that the opposite party/Doctor is not a qualified Doctor whereas she pretended to be a qualified doctor. Therefore, by pleadings and even as per evidence given by CW1, it is impossible to fix a seal of negligence or carelessness or want of carelessness upon the doctor, in this case. However, according to the complainant, the suffering has not come to an end and in this way, it appears, she entertained a doubt in the medical advise or procedure adopted in the evacuation, as if there should have been negligent, which the complainant alone has to prove as ruled by the Courts of this land. In order to prove the same, the doctor who treated, atlater point of time, has been examined as CW2. Therefore, whether the case spoken by CW2 is proof sufficient, to hold that the opposite party should have committed negligence, is the question to be decided by us.
19. As averred in Para 8 of the complaint, it is the case of the complainant that CW2 had informed that the D and C performed by the opposite party is the cause for the subsequent pain, as well as infection, as well for the remains available in the uterus. CW2 has stated that she treated the complainant on 17.01.2001 medically. Thereafter, according to CW2, she has done check-curettage and it is admitted by her that she has not done D and C second time. It is elicited from CW2, during the cross examination, that on examination, that the complainants general condition was normal, B.P., pulse rate etc., were normal and it is also the case of CW2, that the complainant did not have any loss of blood, though she was having nominal vaginal blood. It is the further assertion of CW2 that she did not have any infection at that time. As pointed out supra, placing upon the medical literature, if there was incomplete abortion, allowing some particles inside that will reflect externally, such as secondary infection leading septic discharge, elevation of temperature etc., As admitted by CW2, the complainant was normal, therefore, it should be ruled out that nothing remained in her uterus, causing abdominal pain.
20. As submitted by the opposite party in her Written Submission, the abdominal pain caused on 17.01.2001 and thereafter, must be due to the normal period which a lady will have, and same cannot be attributed to the medical negligence. When CW2 has specifically stated, that the complainants vagina was healthy, there is no possibility of 50% of pieces had been left during D and C, as claimed by the complainant. If there were 50% of the pieces left behind, certainly that would definitely decomposed, emanating foul-smell, within a few days after the evacuation performed i.e. 26.12.2000. In this case, though the complainant was examined on 17.01.2001, no smell of foul-smell, consequence of decomposition if noticed, and no temperature also noticed, thereby showing nothing went wrong, on 26.12.2000 when the opposite party had evacuated threatened abortion. As rightly submitted by the learned counsel for the appellant, CW2 has not produced any inpatient hospital documents, having done evacuation and removal of left over the product of conception, and she has not produced any documents also, that evacuation was done on 18.01.2001 and in fact the documents produced namely Ex.A5 also did not indicate, that the complainant underwent evacuation on 18.01.2001 and the alleged removal specimen was also not sent for examination to confirm its nature. In the absence of the above materials, when there is a possibility of normal period, accusing the opposite party as if she had committed medical negligence, is in our considered opinion, unwarranted.
21. The lower forum has not properly analysed the case whereas accepting the oral evidence of CW1 and 2 as if sufficient to prove medical negligence, ignoring the answers elicited during cross examination, has erroneously came to the conclusion, that the case is prove, which, we are unable to concur. The complainant accused the doctor that because of her negligence act and due to deficiency in service, she had lost 50% of chances, to become pregnant in future. The above allegation is proved to be false, since CW1 has admitted that she was pregnant, at the time of the examination. Further, when the Forum has questioned, she has stated apart from Ex.A5 series, she has having some other documents to prove the treatment taken by her, at Sivaprakasam Nursing Home, which she failed to file the same before the Forum. The suppression of documents, if any and the non-mentioning of the negligence said to have been committed by the opposite party in Ex.A5, and the complainant is also pregnant, would suggest, concretely, that nothing had been wrong when the opposite party treated the complainant, while evacuation threatened abortion and the consequential result would, be no mental agony or suffering due to the alleged act of the opposite party. The reasons given by us, once again, if analysed with the absence of specific plea of negligence would take us to the irresistible conclusion, that no case of medical negligence has been proved and therefore as ruled by the Apex Court, the Doctor cannot be blamed. For these reasons, the appeal deserves acceptance.
19. In the result, the appeal is allowed, setting aside the order of the District Forum in C.C.No.28/2001 dt.30.09.2002, and the complaint is dismissed. There will be no order as to cost throughout.
The Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant/ opposite party, duly discharged.