Prabha Rawat Vs. Deepti Srivastava (Dr.) and Another. - Court Judgment

J.D. Kapoor, President (Oral):

1. Vide impugned order dated 30th January, 2001 the complaint of the appellant seeking compensation and payment of expenses incurred by her due to the medical negligence of the respondent was dismissed.

2. Feeling aggrieved, the appellant has preferred this appeal.

3. The allegations of the appellant, in brief, were that she was suffering from severe abdominal pain and irregular menstrual cycle in July, 2000. She went to the respondents clinic on 13.7.2001 for treatment. She was examined by the respondent superficially and diagnosed to be suffering from PID with cervicitis with urinary tract infection. The respondents treatment continued from 13.7.2000 to 24.8.2000. During the period, no tests were prescribed. Since the appellant was not having relief, the respondent continued changing medicines on every occasion. On 14.9.2000, the appellant went to Timarpur alongwith her husband to a friends place where she had severe pain in abdomen and collapsed. She was taken to Dr. Khuranas ultrasound clinic who did ultrasound and found that the appellant was having tubal pregnancy of 8-9 weeks and suggested that she be rushed to a nearby hospital for emergency surgery as fallopian tube may burst any moment with serious risk to appellants life. She was immediately taken to Tirath Ram Shah Hospital where she was operated upon and saved by timely arrival. The hospital charged Rs. 16,645 for the treatment. Besides an amount of Rs. 10,000 was spent on medicines. The appellant alleged that on account of miscalculation and lack of clinical sense, the appellant and her family members suffered mentally, physically and financially. The appellant further stated that it was respondents duty to prescribe and advise tests like ultrasound, X-ray abdomen, C.T. Scan and/or MRI for proper diagnosis instead of using hit and trial methods and that had caused grievous hurt to her. Appellant claimed Rs. 1,03,845 towards costs of operation, amount spent on ongoing medical treatment and damages for harassment.

4. As against this the version of the respondent was that the appellant was under treatment upto 24.7.2000 and thereafter never turned up for further examination. The appellant never reported having missed menstrual period during 13.7.2000 to 24.7.2000 and question of asking her for pregnancy test did not arise. The respondent stated that appellant was advised protected intercourse as PID itself pre-disposes to ectopic pregnancy which advice must not have been followed. The appellant had reported LMP on 5.7.2000, on 13.7.2000 and periods were due on or after 5.8.2000 and appellant never came for examination after that and pregnancy test could not be advised. As per prescription slip dated 14.9.2000 of Dr. Poonam Khera, LMP was mentioned as 24.8.2000. which had been over written as 5.7.2000 which showed that the appellant might have had bleeding on 24.8.2000. The allegations contained in the complaint alleging superficial examination, miscalculation and deficiency in service on her part were specifically denied.

5. Perusal of the impugned order shows that the District Forum absolved the respondent from the charge of deficiency in service on the strength of the medical literature culled out from ‘New Encyclopedia Britannica 15th Edition, 1995 vol. 9 page 251 that the incidence of ectopic pregnancy is 7 to 10 times higher in woman with history of PID. The treatment of PID consists of intensive antibiotic therapy along with bed rest, pain healing medications and abstention from sexual intercourse till infection disappears.

6. The plea of the appellant that the respondent should have prescribed investigations such as ultrasound abdomen, X-ray, C.T. Scan and M.R.I. for proper diagnosis to save the appellant from the problems which she had to face and continued hit and trial methods was repelled for want of any medical literature. In support of the plea that in cases of PID which is a common problem with women, the doctor would invariably advise the said tests in order to avoid ectopic pregnancy.

7. In support of the aforesaid contention the Counsel for the appellant has placed reliance upon the following medical literature:

“Te Lindes Operative Gynecology

Eighth Edition Editors

John A. Rock, MD and others”

8. The above literature under the title Diagnosis shows that about 75% of patients with PID have an associated endocervical infection and co-existent purulent vaginal discharge. Nausea and vomitting are comparably late symptoms in the course of the disease. Abnormal vaginal bleeding, especially menorrhagia or spotting is noted in about 40% of the patients.

9. However, going through the entire aforesaid literature and the diagnosis we find that the conclusions drawn by them are as under:

“The diagnosis of most episodes of acute PID is often made on the basis of clinical history and physical examination. Although it is suggested that laparoscopy be offered to all patients with an uncertain diagnosis, it is strongly indicated for patients who are not responding to therapy, in an effort to confirm the diagnosis, obtain cultures from the cul-de-sac or fallopian tubes, and drain pus if necessary. In summary, laparoscopic studies have shown the following:

(a)   The clinical diagnosis of acute PID may be inaccurate.

(b)   Acute PID is sometimes found in patients undergoing laparoscopy for other causes of pelvic pain.

(c)   Laparoscopy is a relatively safe method for making the visual diagnosis of the latter stages of PID.

(d)    Laparoscopy is an excellent means of obtaining cultures directly from the tube.”

10. However, as regards the ectopic pregnancy the same literature makes the following observations:

“The number of ectopic pregnancies has doubled over the past 10 years. This increased rate is directly proportional to the increase in cases of STD and acute PID. The chance of ectopic pregnancy is increased six to 10-fold in patients with a previous episode of acute salpingitis.”

11. So far as treatment is concerned, the same book prescribes as under:

“Women in whom the definitive diagnosis of acute PID is in question should also be hospitalized, and diagnostic measures should be instituted. As previously stated, at least 10% of all patients have other serious diagnisis, such as acute appendicitis, ectopic pregnancy, or andnexal torsion; these should be ruled out.”

12. In nut shell the learned Counsel for the appellant contends that the aforesaid literature shows that the treatment with regard to abdominal pain with irregular menstrual period should have been undertaken by subjecting the patient to ultra sound, abdominal X-ray, abdominal C.T. Scan, MRI and other kinds of tests should have been done.

13. While refuting the aforesaid allegations and the charges, the Counsel for the respondent has contended that on 13.7.2000 she came with complaint of abdominal pain and burning in micturition and irregular menstrual cycle. She told that her last menstrual period was on 5.7.2000 i.e., hardly six days before. Therefore, the question of subjecting her to MRI, C.T. Scan and other x-rays did not arise. However, on 24.8.2000 she told that her last menstrual period was 21.8.2000 i.e., three days before and in that case even no such tests were required.

14. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 All.ER 118, 121 D-F still hold the field. This test, in popular parlance is known as ‘Bolam Test after the name of the petitioner. In short the test is as under:

“Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill..... It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art” (Charies Worth and Percy, ibid., para 8.02)

15. Bolam test was accepted with approval in the following judgments:

(i)    Sidway v. Bethlem Royal Hospital Governors and Ors., (1985) 1 All.ER 643

(ii)    Maynard v. West Midlands Regional Health Authority, (1985) 1 All.ER 635

(iii)   Whitehouse v. Jordan and Anr., (1980) 1 All.ER 650

16. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association v. V.P. Shantha and Ors., III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=(1995) 6 SCC 651, wherein Bolams case was also discusse has adopted this test as guidelines for the Courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect in Jacob Mathew (Dr.) v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=(2005) SCC (Cr.) 1369. Observations of Supreme Court are as under:

“(3) 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, which 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 practises. 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 negligence.

(4) The test for determining medical negligence as laid down in Bolams case, WLR at P. 586 holds good in its applicability in India.”

17. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are—

(i)   That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.

(ii)   Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.

18. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means ‘any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).

19. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:

(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 practises?

(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)   Every thing 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?

20. As is apparent the charge of medical negligence against O.P. is being made on the plea that respondent has not done what she was required to do. It is not that respondent was not qualified or did not possess the knowledge and skill to treat the patient of the kind the appellant was. To expect the doctor straightaway subject the patient who comes with the complaint of abdominal pain and having irregular menstrual period only a week or so is not correct in medical practice or procedure. As per medical practice and procedue it was at the most the clinical examination of the patient that was required. But, in our view, clinical examination was required when the patient came on 24.8.2000 with similar complaints and having informed the doctor that she had last menstrual period on 21.8.2000 whereas prior to that she had lost menstrual period on 5.7.2000. The respondent should have at least on that point of time subjected her to clinical examination or such other tests. But the respondent still continued with the treatment on the basis of hit and trial.

21. In our view the limited deficiency in service on the part of the respondent was that she should not have continued with the same treatment for such a long period i.e., for 1½ months in spite of the fact that the appellant told her that she was still not having any relief by taking those medicines and had also irregular menstrual period. At least ultra sound should have been done on the second visit in the month of August 2000. But however, this is not such a negligence or deficiency which requires to be visited with heavy compensation. Sometimes the effort of the doctor is to first cure the patient through medicines and without subjecting the person to such a vigorous process and procedure of C.T. Scan, MRI, X-ray when there is no relief, then patient should be subjected to clinical examination.

22. In our view lump sum compensation of Rs. 25,000 would meet the ends of justice.

23. Appeal is disposed of in aforesaid terms.

24. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.

25. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.

Appeal disposed of.