Dr.Smt.Vijaya Vs. Myakala Komuraiah and Others - Court Judgment

ORAL ORDER: (Per Honble Sri K. Satyanand, Member.)

This is an appeal filed by opposite party against whom the District Forum passed an order imposing liability in a sum of Rs.2,00,000/- and odd payable to the complainants within a time frame.

The facts of the case are briefly as follows:

An young lady by name, Makala Lakshmi, who was the wife of the first complainant and daughter of second and third complainants and mother of fourth complainant was admitted into the nursing home of the opposite party on the eve of an expected confinement. The complainants alleged that at about 8.50 p.m. an operation was conducted by the opposite party and a male baby was born. Soon the mother of the baby (hereinafter referred to as the deceased) developed heavy bleeding and that the kith and kin claimed to have alerted the doctor. The doctor, however, kept herself busy with other patients and did not bestow her attention upon the patient. As a result, the patient ultimately bled to death. According to the complainants, the death could have been averted but for the negligence of the opposite party and therefore they alleged deficiency in service signified by her callous indifference to attend upon an emergency case as that of the patient at the relevant point of time.

Opposite party filed a counter totally resisting the claim and emphatically contending that the allegations of her indifference to the patient were false and that she had attended upon the patient with utmost diligence and did everything necessary to rescue her out from the sudden complications that developed. Inspite of best efforts, the patient ultimately died due to atonic uterus for which she can never be blamed of any negligence on her part. She claimed that she had arranged for the blood by requesting an employee of the medical shop in her own premises and transfused to the patient but with no avail ultimately. She pleaded that the delivery was natural and no operation was conducted by her as alleged by the complainants. She also refuted the other allegations made against her.

In support of their case, the complainants filed affidavits of first complainant as also that of brother, mother and friend of the deceased. By way of documentary evidence, they relied upon Exs.A1 to A14. As against the evidence of the complainants, opposite party also filed her own affidavit as also the affidavit of the Lab technician working in the same premises as also the employee of the medical shop situated in her own premises, who in fact who gave blood to save the deceased. She relied upon Ex.B1, RC Proceedings before the Magistrate in Crime No.52/99 that had come to be registered at the instance of the complainants.

On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that the opposite party was guilty of negligence essentially for two reasons. The District Forum formed an opinion that the opposite party did not mention in her counter that she was present in the hospital as stated by the Magistrate in his report. Similarly it recorded a finding that the opposite party failed to produce the case sheet before the Forum to prove that she was present and administered the blood transfusion and taken care in treating the patient. On these two grounds, the District Forum allowed the complaint and awarded compensation of Rs.2,00,000/- with interest as also costs.

Aggrieved by the said order, the present appeal came to be filed by the opposite party urging particularly that the District Forum failed to see that the cause of death was given in the final opinion and not in Ex.A4, post mortem report. Similarly it failed to notice that the case sheet was seized by the police during the course of the investigation as came to be observed in Ex.B1 proceedings before the Magistrate.

Heard both sides. Quite a good number of days after the matter was reserved for orders, the counsel for R1 and R3 got the case reopened and filed written arguments reiterating the very points that have already been taken and heard at length.

The points that therefore arise for consideration are:

1. Whether the District Forum is justified in giving a finding of negligence against the appellant?

2. Whether there are any good grounds to interfere with the order of the District Forum?

1. The answer to this question is critical to the just determination of the whole complaint in that the factum of negligence alone would amount to deficiency in service which in turn would justify the award of compensation. In this view of the matter, it is necessary to keenly examine whether the case of negligence is made out against appellant or not. Though several contentions are traded between the parties, the essential contentions that are relevant to identify the controversy are very few. The negligence attributed to the doctor is two pronged. It is the case of the complainants that the opposite party doctor did not attend upon the deceased who within 10 minutes of the delivery developed a serious complication of profuse bleeding ultimately leading to her death and which could have been averted had the opposite party bestowed greater attention in stead of distracting herself by keeping herself busy with other patients when the call of emergency was very much centering round the deceased at that point of time. But the opposite party tenaciously denied the allegation and maintained that she attended upon her continually and the case sheet seized by the police amply bears testimony to that effect. However, the District Forum had taken a view that in as much as the opposite party failed to state in the counter that she had maintained the case sheet and also failed to positively mention in her counter that she was present in the hospital as stated by the Magistrate, her refutation of the charge of negligence cannot be countenanced. There is a flaw in this view for the simple reason that it is not even the case of the complainants that she left the hospital. On the other hand, the complainants specifically pleaded that she diverted her attention towards other patients and thereby ignored the deceased. Therefore, the observation of the District Forum is not factually correct. The other head of negligence, according to the complainants was that the opposite party did not conduct tests to identify blood group and keep ready with such blood before embarking upon the treatment. But according to the doctor it was a natural delivery. Perhaps in order to lend support to this count of negligence, the complainants introduced the theory of ‘minor operation with an eye on linking up the bleeding to that surgery. But there was no surgery at all or at least there is no cogent proof of any such surgery. Failure to keep blood bottles ready in a hospital situated at a small place, hardly expected to have such kind of infrastructure, cannot be readily accepted as a ground of negligence. Similarly the District Forum also commented on non production of case sheet but Ex.B1, referred police record, clearly shows that the case sheet was seized by the police in connection with a complaint given to them by no other than the complainants themselves. That fact is evident from Ex.B1 proceedings wherein the learned Magistrate extensively relied upon that case sheet in order to preclude the possibility of her indifference to the deceased as also her non attendance upon the deceased at the crucial point of time. Now that Ex.B1 is very much on record, the two circumstances that troubled the mind of the District Forum in order to reject the defense of the opposite party virtually disappeared. No doubt the proceedings of a criminal court are not binding on either a civil court or a tribunal adjudicating a matter of civil nature. Yet there could be no shying away from the facts and the facts have come to be recorded by the Magistrate meticulously in this regard. It is therefore in this context that some extracts from Ex.B1 would enrich the narrative. Before extracting the passages from Ex.B1, it is also pertinent to observe that there was expert opinion also on record obtained by the S.I. of Police showing that the deceased died due to shock and hemorrhage and atonic uterus. The lady Medical Officer, who conducted the post mortem examination also ruled out the atonic uterus being caused by negligence of a doctor. The observations of the Magistrate in Ex.B1 based on the record which cannot be disparaged on surmises for the reason that they drew strength from the undisputed record like post mortem examination, final opinion, case sheet seized by the police at the earliest point of time in the wake of the police complaint given by the complainants themselves, go a long way in clinching the issue of negligence and pointing at the innocence of the appellant in this matter. It is therefore deemed fit and proper to extensively quote from Ex.B1 paragraphs 4 to 10, which read as follows:

4. ‘The Professor of Pathology, K.M.C., Warangal, who examined viscera and tissues gave report. The Lady Medical Officer who conducted autopsy over the dead body of the deceased after perusing the report of Professor of Pathology gave final opinion that the cause of death of the deceased is due to shock and haemmorrhage due to Atonic Uterus. Thereafter the S.I. of Police, consulted the APPO, Peddapally and also sent a questionnaire to the Lady Medical Officer who conducted autopsy for clarification whether the complication of Atonic Uterus can be possible by the negligence of the Doctor, and the Lady Medical Officer negatived the same and issued her clarification. Thereafter the S.I. of Police consulted his superior officers and other doctors and submitted his final report as there is no negligence on the part of Doctor who treated the deceased Makala Laxmi @ Sunitha.

5. After receipt of final report by this court, a notice was issued to the defacto-complainant u/s.173(3) Cr.P.C. for which the defacto-complainant filed objection for the same.

6. Now the point for consideration is whether there is any prima-facie case made out by the Police as against the Accused Dr.Smt.Vijaya or not.

7. The defacto complainant filed objection to call for the documents such as CD file and other documents and the same was allowed by this court and this court inclined to call for the documents i.e. 161 Cr.P.C. statements of witnesses, Post Mortem report, questionnaire to Lady medical Officer and answers given by Lady Medical Officer, Peddapally case sheet seized by the Police during the course of Investigations.

8. On a careful perusal of entire CD file I am of the view the then S.I. of Police made hectic efforts during the course of investigation to make out a prima-facie case against the accused herein. The S.I. of Police after receipt of Post Mortem Report from the Lady Medical Officer then addressed a letter to the Lady Medical Officer for clarification vide C.No.52/Cr-SI/99 dt.28-8-1999 asking her the following questions:

1. Whether the complication of Atonic Uterus can be possible to the patient by the negligence of Doctor or not?

2. Please go through the case sheet seized during investigation and clarify whether the Doctor has taken all necessary precautions who administered all possible drugs to control the complication.

9. The Lady Medical Officer clarified the above questions vide

Lr.No.128/LMO/99 dated 1-9-1999 as follows:

1) No.

2) She can not anything to question No.2 as she is concerned with the Post Mortem Examination finding only.

The above clinchingly shows that the death of the deceased was due to Atonic Uterus but not caused by the negligence of the Doctor, as the Lady Medical officer negatived the question No.1. Therfore it can be safely held that the deceased Mekala Laxmi died due to Atonic Uterus and such death of the Deceased is not due to the negligence of the Doctor.

10. On the other hand on a careful perusal of case sheet of patient it clearly shows that at 4.00 p.m. the deceased Laxmi was admitted for delivery and at 8.45 p.m. she gave birth to a male child and again the accused visited the patient at 9.15 p.m. and checked blood pressure and other conditions and found normal. Again at about 9.45 p.m. the accused visited the patient and tested the condition of the patient. Again on 10.00 p.m. she visited the explanation risk and asked them for arrangement of blood transmission. At about 10.30 P.M., blood transmission was started and at about 11.00 p.m. Doctor advised and explained risk and advised the parents of the deceased to shift the patient to Karimmagar for further treatment. Thereafter at about 12.10 p.m. the accused and another Doctor Mallesham has declared the death of the deceased”.

Those findings of fact naturally suggest that the negligence attributed to the opposite party was not at all tenable or sustainable. Apart from the evidence discussed above, there is also the evidence adduced by the opposite party by tendering the evidence of the technician and the employee of the medical shop situated in the premises of the nursing home. The evidence of the medical shop employee is of greater significance for the reason that he claimed to have donated blood for transfusion to the patient. In his affidavit, Mohd.Mukthar Pasha categorically stated that the residence and nursing home of doctor Vijaya is the same within same premises. He stated on oath as follows:

‘I was called and requested by my owner S.Srinivas to give blood sample to give the patient if my blood is matching. M took was taken by Vijit Simha Rao, Lab-Technician and my blood was found matching as “A” positive with the blood of the patient…… I was requested by the doctor to donate my blood to help and assist her to save the deceased. My blood about 300 ML i.e. one bottle was taken and made transfusion to the patient at about 10.00 p.m.”.

The evidence given by Mohd.Mukhtar Pasha is corroborated by evidence of Lab technician, K.Vijit Simha, who also filed an affidavit in which he deposed as follows:

‘I took the sample blood of patient Myakala Suntha @ Laxmi and found her blood as “A” positive. The respondent/Doctor was enquiring several persons including the attendants of the patient and asked them to give blood sample for blood group examination…………… lastly the employee of Medical shop, by name Mohd.Mukhtar Pasha was requested to give blood and his blood was found as matching with that of the patient and at the request of the doctor, he has donate blood about one bottle i.e. 300 M.L. and was transfused to the patient. But unfortunately, the patient did not survive due to excess bleeding……..”.

Lastly it is urged in the written arguments on behalf of R1 and R4 that the burden of disproving negligence is very much on the doctor, mentioning half a dozen citations without filing those rulings. In the absence of those so called supporting law the proposition of law submitted by them cannot but be disregarded as absurd. Thus all these circumstances point at the absence of negligence on the part of the opposite party and it was rather the other way round. We are therefore of the firm opinion that the proof of negligence tendered by the complainants was merely conjectural and on the other hand the proof to the contrary adduced by the opposite party/appellant appeared to be more convincing. In other words, we feel that the finding of the District Forum on the issue of negligence cannot be upheld. Once it s established that there was no negligence on the part of the appellant, the whole claim falls to the ground. Consequently the relief granted by the District Forum cannot be sustained. In these circumstances the appeal merits to be allowed.

Accordingly the appeal is allowed and the order of the District Forum is set aside and the complaint before it is dismissed but without costs in the circumstances of the case.

Appellant is permitted to withdraw the statutory amount deposited by filing a competent petition.