SURINDER KUMAR (LADDI) v. DR.SANTOSH MENON
Consumer Protection Act, 1986 - Section 2(1)(g) - Deficiency in Service - Medical Negligence - Onus of Proof - Complainant’s wife gave birth to child - Caesarean operation by doctor - Wife died - Complaint alleging medical negligence - No expert evidence - No post-mortem got conducted - Every unsuccessful operation cannot be considered as negligent act of doctor - Onus of proof of negligence is heavily on complainant - Complainant failed to prove negligence.
Held: There is no evidence much less expert evidence produced on behalf of the complainants that the treatment given to the patient during this period was below the prescribed standard or otherwise not upto the standard skilled. Dr. Santosh Menon from time to time called physician from outside to have second opinion in the matter of providing treatment to the patient, whose condition was deteriorating and accordingly such treatment was given. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. Each failure or unsuccessful operation cannot be considered as a negligent act of the doctor. Something more is required to be established by the complainants to prove negligent act of the doctor. The present is not a simple case of medical negligence that this Commission could straightway give a finding of apparent negligence holding the opposite parties liable. Recently the Supreme Court in Indian Medical Association v. V.P.Shantha, 1996(1)CCJ1(SC)=III(1995)CPJ 1(SC), has laid down the principles to be kept in view while deciding the cases of medical negligence. (Para 9)
Held further: The complainants have failed to prove from any medical expert evidence that there was any negligent act on the part of the opposite parties in the matter of performing caesarean operation. It will not be out of place to mention here that though dead body was available with the complainants immediately after the death and they had gone to the Civil Hospital for approaching the Civil Surgeon and to the police, but surprisingly no post-mortem was got conducted to know the actual cause of death. The very fact that a criminal case was got registered, would have put the complainants to caution that they should have got post-mortem conducted to fasten liability on the doctors. The onus to prove negligent act on the part of the doctor is very heavy on the complainant. As held by National Commission in Sethuraman Subramaniam Iyer v. triveni Nursing Home and Anr. 1998CTJ 7, in the absence of such evidence regarding the cause of death and absence of any expert medical evidence, the complainants have failed to prove negligence on the part of the opposite parties. (Para 10)
Result: Complaint dismissed with costs.
Cases referred:
1. 1996(1) CCj 1 (SC)=III(1995) CPJ 1 (SC). (Para 9)
2. 1998 CTJ7=I(1998) CPJ 10 (NC) (Para 10)
Counsel for the Parties:
For the Complainants : Mr. Ameet Awasthi, Advocate.
For the Opposite Parties: Mr. Rajiv Bhalla, Mr. Rohit Khanna and Mr. Pardeep Bedi, Advocates.
ORDER
Mr. Justice A.L. Bahri, President- The present complaint has been filed by Surinder Kumar husband and Pinku, son of Paramjit Kaur, who is alleged to have died on account of negligent act of the opposite parties, doctors during the performance of caesarean section after delivery of a male child. They claimed RS. 15 lacs as compensation and costs of RS. 10,000/-.
2. Dr. Santosh Menon, opposite party No. 1 is having a clinic at Batala. Opposite party No. 2 Dr. Bhaskar Menon is her husband, who is running eye clinic on the first floor of the premises whereas Dr. Santosh Menon is running her clinic on the ground floor. Opposite party No. 3 Dr. S.S. Johal, M.S. Orthopeadics assisted in the performance of caesarean operation consulted by Dr. Santosh Menon, New India Assurance Company was impleaded as a party vide order dated March 26,1998 from whom opposite party Nos. 1 and 2 had obtained insurance policies. Surinder Kumar, complainant being under mental shock, he appointed his brother Tarsem Lal as attorney through whom the complainant was filed.
3. On October 13, 1996 Paramjit Kaur @ Pinky married Surinder Kumar and started living at Batala. She took up a job as STD/PCO Operator with Shiv Property Dealer, Batala on a monthly salary of Rs. 1200/-. She is a graduate. She becomes pregnant and started getting regular check-ups at the clinic of opposite party Nos. 1 and 2. Routine check-ups were prescribed from time to time and medicines and injections were prescribed. There was normal development of foetus. This happened during the month of May to June 1997. On July 4, 1997 she developed labour pain and was admitted in the clinic by opposite party No. 1, Dr. Santosh Menon. After some tests were performed it was informed that it would be a case of normal delivery. As per reports Annexure C-2, haemoglobin level on blood test was found to 9.6g/ %. On July 5, 1997 at about 7.25 p.m. a male child was delivered. A sum of Rs. 2000/- towards fee was charged by Dr. Santosh Menon. It was given out by the doctor that the delivery was normal and the attendants could go. Hence all the family members left the clinic at 9 p.m. Mother and the child were shifted to another room where Surinder Kumar was sitting. They were directed to arrange for Rs. 18,000/- stating that the delivery was not normal and was through caesarean operation for which charges were Rs. 20,000/- in all and a discount of Rs. 2,000/- was being given. The family members were shocked to know that there were complications. A sum of Rs. 10,000/- was immediately paid. At about 9.15 p.m. Swinder Kaur came rushing to the house in great tension and informed that few bottles of blood were required. The entire family of 14-15 members and persons of the locality reached the clinic. 9 Units of blood was made available. At about 11.35 p.m. Dr. Bhaskar Menon informed about the death of Paramjit Kaur. Dr. Parminder Singh Cardiologist, Dr. Ranjit Singh had been called by the opposite parties. When they came out of the clinic they had told that the patient had died. The body of Paramjit Kaur was handed to over to the complainant. Certificate of Death Annexure C-3 was also handed over. When the attendants demanded the case file the same was not handed over by opposite party Nos. 1 and 2. Subsequently, the same was given. Report with the police was lodged. With the intervention of local M.L.A. Sh. Jagdish Raj Sahni, opposite party Nos.1 and 2 were arrested, on the basis of F.I.R. No. 55 dated July 7, 1997, copy Annexure C-5. The allegation of the complainant was that the death of Paramjit Singh occurred on account of negligence of opposite party Nos. 1 and 2. Copies of the newspaper cuttings were also filed reporting the registration of the case and the arrest as a foresaid. Negligence is attributed to the opposite parties on the ground that the opposite parties were not qualified and equipped to carry out caesarean operation and they adopted unfair trade practice and allegation of deficiency in rendering service was leveled. Some of the grounds specifically were taken such as that the level of haemoglobin was below the level required for carrying out the caesarean operation; no prior arrangement for blood was made before the operation; the opposite parties-doctors were not specialist in Gynae. Dr. Johal, opposite aprty No. 3 was M.B.B.S. (Orthopaedics) and was not competent to carry out the operation, which was got conducted by opposite party Nos. 1 and 2 from him. There was no qualified doctor to administer anaesthesia. Such an operation could not be carried out without availability of oxygen and nitrogen gases. The only Gynae expert M.D. Ms. Nijjar, who was summoned. It was the duty of the doctors to advise post-mortem on the dead body and immediately information was required to be sent to the S.D.M. of the area by the opposite parties. During the operation, blood artery was cut resulting in the death. The opposite parties filed reply to the complaint denying the assertions of the complainant. The Insurance Company filed separate version. Preliminary objections were taken by the doctors. The disputed questions were taken by the doctors. The dispute questions were involved that the matter could be decided by the Civil Court. No cause of death was mentioned in the complainant to ultimately connect the opposite parties. No findings in this respect could be arrived at in the absence of conducting of post-mortem. Opposite party No. 2 was an eye specialist and was having a separate clinic on the first floor though in the same premises. He has no concern with the maternity clinic run by opposite party No.1, against him the complaint was stated to be false and malicious. The complainant had forcibly taken away the records of the hospital. An application before the Commission was filed for directing the complainant to produce such records whereas the complainant admitted having taken away only a register. Opposite party Nos. 1 and 2 were insured with the Insurance Company aforesaid for a sum of Rs. 5 lacs and 2 lacs respectively, particulars of the policies were given. On merits it was denied that the deceased was working as STD/PCO Operator. She was stated to be housewife and was not doing any job. Patient was normal and the development of the foetus was also normal. No such assurance was given that the delivery would be normal. With respect to the facts, it was asserted as under:
"The patient was admitted on 4.7.1997 and respondent No. 1 had no cause to doubt that the delivery would be normal. In fact, the clinical examinations had not revealed any likelihood of complications that would cause a caesarean operation. When the deceased came to the hospital, she was already in pain, i.e. labour and after admission, she was kept under observation. At the time when she came to the hospital, apart from the mild pains, she had a leaking membrane. The patient was administered a Inducing Drip, so as to induce labour. Thereafter, she was kept under observation, but she did not deliver till 5.30 p.m. on 5.7.1997. When she was observed on 5.7.1997 at about 5.30 p.m. there was factual distress, meconium passed, meaning thereby that the life of the foetus was in danger and the foetus has passed meconium. In this situation, the question before the respondent No. 1 was to save there was danger to the life of the deceased. In such a situation in order to save the life of the foetus, the doctor is required to perform an emergency caesarean operation. For that purpose, the attendants of the deceased were asked to arrange one unit of blood as the answering respondent No. 1 had decided to conduct a caesarean operation upon the deceased so as to save both, the deceased and the foetus. At this stage, the deceased was also undergoing forceful contractions, which indicated to the answering respondent No. 1 that in case she did not conduct a caesarean operation, the uterus may rupture. The answering respondent No.1 did all this in good faith and with no malafide intention or in negligence."
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"After the caesarean operation, which was successful performed a male child was delivered at about 7.15 p.m."
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"At about 8.30 p.m. the patient was examined and there was slight bleeding of about 50-70c.c. per vagina. The requisite drugs were administered to the patient, the bleeding stopped and thereafter, one unit of blood, which had already been arranged by the complainant has transfused to the patient after due cross matching."
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"One unit of blood was requested and supplied at the time of caesarean operation and 2 units were requested at 9.45 p.m. and supplied thereafter. In all 2 units of blood were transfused to the patient."
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"At about 9.00 p.m. the blood pressure and pulse of the patient were well-maintained, abdomen was soft and did not suggest of any grave medical emergency. At about 9.20 p.m., the patient developed hypotension, blood pressure 80/50, pulse 110 p/mt. and the patient was little restless. Emergency treatment was given to the patient in the form of injection Mephentine 1cc intravenously and oxygen started. Haemoccele drip was started. Thereafter, the patient was repeatedly examined, the abdomen was soft, uterus contracted and there was no bleeding per vagina. At this stage the respondent No. 1 called in Dr. Parminder Singh, M.D. Medical Specialist who examined the patient. He advised that we should start a Dopamine drip and to continue blood transfusion, oxygen and I/V fluids intravenously. Dopamine 1 Amp. In 500 c.c. was started.
At about 9.45 p.m., blood pressure of the patient was still 80 / 50, the respondent No. 1 asked the attendants to arrange for 2 bottles of blood. By about 10.15 p.m. haemoccele (one bottle) and one unit of blood had been given. In order to transfuse the blood quickly, venesection was done and the and the second unit of blood started Dopamine drip, I/V fluids and oxygen were going on, but the condition of the patient was not improving.
That thereafter, respondent No. 1 called for Dr. R.S. Kalsi, M.D. Specialist for second opinion alongwith Dr. Parminder Singh. Both of them examined the patient when the blood pressure was 80 / 50, pulse 120/mt., respiration 24 p.mt., abdomen soft, uterus contracted and firm. The doctors advised higher antibiotics, i.e. Inj, Fortum and Injection Hydrocortisone. The above injections were given after test done.
At about 11.00 p.m. the patient suddenly became breathless, and restless, B.P. 70 / 40, pulse 140 p.mt., tachycadia, respiration rate 32 p.mt abdomen soft, but per vaginal examination revealed no bleeding. Hydrocortisone Injection again given, oxygen continued.
At about 11.15 p.m., blood pressure dipped and became unrecordable. Patient became restless and cyanosed and then suddenly she went into cardio respiratory arrest. External cardiac message started immediately. Injection Adrenaline 0.5 ml and injection Nikethamide were given, intra cardiac. Dr. Parminder Singh was again called. In the meantime, all efforts of Ext. cardiac message and artificial respiration were made to save the patient. Before Dr. Parminder Singh reached, the patient had no pulse, no respiration. Dr. Parminder Singh also did external cardiac message but all efforts to revive the patient failed. The patient was declared dead at 11.35 p.m."
4. Opposite party No. 1 only received a sum of Rs. 1,000/-. Other allegations received fees were denied. It was further pleaded that there was great altercation after the death and under pressure opposite party No. 1 was asked to prepare a writing that the caesarean operation was done from Dr. Johal. The subgrounds taken up in the grounds were specifically denied that there was no rule prohibiting M.B.B.S. doctors from performing caesarean operation. Dr. Johal was stated to be a surgeon and entitled to assist in such an operation. The Insurance Company in their written statement admitted having issued two insurance policies as referred to above. At the time of arguments, Counsel for the Insurance Company submitted in writing that the act of Dr. Johal was not covered under the insurance policies.
5. On behalf of the complainant affidavit of Tarsem Lal was produced and he was cross-examined. He referred to the documents, copies of which were produced. Affidavit of Ashwani Kumar was also produced to the effect that she was drawing Rs. 1,200/- as salary from him, who was proprietor of of M/s. Shiv Property Dealer, Batala. On the other hand Dr. L.K. Dhaliwal, Addl. Professor, P.G.I. Chandigarh was produced by the complainant as an expert. On the other hand Dr. Santosh Menon produced her affidavit and she was cross-examined. Affidavit of Shashi Sekri, Vijay Kumar Sharma, Kuldip Kaur, Brij Nath Thukral, Gurdial Singh Randhawa, Gurdial Singh, Naranjan Singh and Bhiro were produced, who had stated having their children successfully delivered at the clinic of Dr. S.S. Johal, opposite party No. 3 was also produced and he was cross-examined. The respondent also produced documents. We have heard Counsel for the parties. The following question requires consideration in the present case:
1) Whether M.B.B.S. doctor could perform caesarean operation for delivery of a child.
2) Whether the child was delivered through caesarean operation by opposite party No. 1 Dr. Santosh Menon or by Dr. S.S. Johal.
3) Whether Paramjit Kaur died on account of the opposite parties in the matter of caesarean operation conducted on her ?
4) To how much compensation if any, the complainants are entitled to and against which of the opposite parties?
5) Relief.
Question No. 1:
6) At the outset it may be stated that none of the Counsel for the parties referred to any statute, rule, regulation or instruction of any Authority on the subject of persons qualified to perform caesarean operation in the matter of delivery of a child. Even Dr. L.K. Dhaliwal, Addl., Professor, P.G.I. who appeared as CW-2 could not refer to any such statute or rules. A specific question was put to her on behalf of the complainant as to whether M.B.B.S. doctors were competent to perform operation. Her reply was in the negative and according to her DGO or the M.D. in the subject of Obstetrics and Gynaecology would make the one eligible to carry out the caesarean operation. During cross-examination she stated that she was not aware of any statute or rules prohibiting M.B.B.S. doctors from performing caesarean operation. It was during the training that she gained knowledge that M.B.B.S. doctors should not perform major operation, but she did not know of any rules or statute prohibiting or permitting M.B.B.S. doctors to do caesarean operation. But she admitted that surgery was one of the subjects taught at the M.B.B.S. course. According to her a Gynaecologist, who has taken training in the subject of gynae and obstetrics could do so. She did not know if a doctor who had done house job will be a qualified gynaecologist or such person could practice gynae, but she further stated that the assistant state that the assistant doctor in the team for performing caesarean operation need not to be a gynaecologist, but should be a medical doctors. With respect to leproscopy and hysterectomy, the same could be performed by M.B.B.S. having done in 1969 and completed intership at Amritsar Medical College and studied medicines, surgery, ENT, anaesthesia during the course. She had done one house job at Civil Hospital, Jalandhar in 1970-71 and two years job at Tej Bahadur Sapru Hospital, in Gynae Deptt. and from 1972 to 1988 at M.L. Sarin Maternity Hospital, Batala. The said hospital was founded by her and she is doing private practice at Circular Road, Batala. She has produced copy of her M.B.B.S certificate Annexure 3 to her affidavit as issued by the Punjab University authorising her to practise medicines, obstetrics and surgery. Two certificates issued by Indian Association of Gynaecological Endoscopies have also been produced dated October 12, 1998 and October 9, 1988 having attended the hysterescopy training and leparoscopy training course. Some other certificates were also produced regarding her experience while working in Civil Hospital, Jalandhar. An another certificate was produced from Dainik Prathana Sabha, Batala certifying that she had conducted 3322 delivery case during her working in MLCD Sanan Maternity Hospital and Nursing Home, Batala run by the Sabha during the period from 27.12.1976 to May, 1990. Another certificate by such a Sabha was also produced that all types of delivery cases including caesarean operation were conducted by her.
Question No. 2:
8) Since on behalf of the complainants no one was present in the operation theatre / labour room, oral evidence of Tarsem Lal is not considered sufficient to record a finding that caesarean operation was infact conducted by Dr. S.S. Johal, opposite party No.3. On the other hand Dr. Santosh Menon had categorically stated that it was she who had conducted the caesarean operation and Dr. Johal had assisted her. Likewise Dr. Bhaskar Menon assisted her during the operation Dr. S.S. Johal was also categorically stated having assisted Dr. Santosh Menon in the caesarean operation. The main plank of the complainants is a writing purposed to be in the handwriting of Dr. Santosh Menon Ex. CW-1/B. The original as well as photocopy were so marked. The original was in the torn condition and had been submitted by rejoining it. The time of preparing of this writing is not disputed and the same was after the death of Paramjit Kaur when several persons had collected at the clinic of the opposite party No. 1. According to Dr. Santosh Menon, it was under coercion and pressure of the mob that she wrote it, but she did not sign it. No evidential value to this document can be attached to such writing when tensions were high on account of death o Paramjit Kaur, and the same were prepared. Otherwise no record of the hospital are available to opine or give a firm finding that it was Dr. Johal, who had performed the caesarean operation. The very fact that this document was torn either at that very time or subsequently would indicate that it was not to be acted upon. When it was not got signed from opposite party No. 1, much importance cannot be attached thereto. Furthermore, there was no question for calling Dr. Johal to perform caesarean operation when Dr. Santosh Menon had earlier performed such like many operations during her long professional career. Then it is held that opposite party No.1 Dr. Santosh Menon performed caesarean operation on Paramjit Kaur.
Question No. 3:
9) With respect to the stages of the admission of Paramjit Kaur upto her death, the complete data has been given in the written statementby the opposite party as reproduced above. There is no evidence much less expert evidence produce on behalf of the complainants that the treatment given to the patient during this period was below the prescribed standard or otherwise not upto the standard skilled. Dr. Santosh Menon from time to time called physician from outside to have second opinion in the matter of providing treatment to the patient, whose condition was deteriorating and accordingly such treatment was given. It will not be out of place to mention that doctors only treat whereas it is in the handsome of the Almighty to cure. Each failure on unsuccessful operation can not be considered as a negligent act of the doctor. Something more required to be established by the complainants to prove negligent act of the doctor. The present is not simple case of medical negligence that this Commission could straightway give a finding of apparent negligence holding the opposite parties liable. Recently the Supreme Court in Indian Medical Association v. V.P. Shantha, 1996 (1) CCJ 1 (SC)=III (1995) CPJ 1 (SC), has laid down the principles to be kept in view while deciding the cases of medical negligence. In para 37 of the judgment, it has been observed as under:
"It is no doubt true that sometimes complicated questions regarding recording of evidence of expert may arise in a complaint about deficiency in service based on the ground on negligence in rendering medical service by a medical practitioner but this would not be so in all the complainants about deficiency in rendering services by medical practitioner. There may be cases, which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong patient or giving injection of a drug to which the patient is allergic without looking into the Out-patient Care containing the warning [as in Chin Keow Government of Malaysia, 1967 ACJ 209 (England)] or use of wrong gas during is course of an anaesthetic or leaving inside the patient swabs or other item of operating equipment after surgery. On often reads about such incidents in the newspaper. The issue arising in the newspapers. The issue arising in the complainants in such cases can be speedily disposed of by the procedure that is being followed by Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief."
Question No. 4:
Since the complainant have failed to prove question No.2 referred to above, it is not necessary to determine this question.
Complainant dismissed with costs
