Gurvinder Kaur vs Dr Bharti Gupta & Anr

Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member

The present Revision Petition has been filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) against a common Order dated 26.07.2012, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘for short ‘State Commission’) in First Appeal No. 1472 of 2009 and First Appeal No. 1480 of 2009 respectively. In the impugned order dated 26.07.2012, the Respondent / OP Doctor’s appeal was allowed, thereby setting aside the Order dated 02.09.2009, passed by the District Consumer Disputes Redressal, Forum, Bhatinda (“District Forum”) in Consumer Complaint No. 256 of 2008, wherein the Complaint filed by the Complainant was partly allowed.

As per report of the Registry, there is 4 days delay in filing the present Revision Petition.  Vide order dated 08.10.2013 passed by this Commission, the said delay was condoned.

For convenience, the parties in the present matter are denoted as per their positions in the Consumer Complaint before the District Forum. Mrs. Gurwinder Kaur is identified as the Complainant. Meanwhile, Dr. Bharti Gupta is referred to as Opposite Party (OP no.1 in the original complaint).

Brief facts of the case, as per the Complainant, are that the Complainant approached OP-1 at Amar Hospital during pregnancy for delivery of her child. OP-1 suggested her to undergo caesarean section (C-Section) for delivery. Consequently, on 18.07.2007 Complainant was admitted in Amar hospital and the C-Section was performed on the same day and she gave birth to a child. However, post operation her condition became critical necessitating transfusion of 8 units of blood. Despite this, her condition worsened. OP-1 got Complainant’s X-ray and Ultrasound Scan conducted. In the said scan and subsequent medical examination, presence of ‘free fluid in her abdomen’ was detected. Thereupon, owing to her critical condition, Complainant was discharged from the Hospital on 24.07.2007 and was referred to Dayanand Medical College and Hospital, Ludhiana (DMC) for further treatment. Upon referral to DMC, Ludhiana, she was shocked to learn that typically no blood transfusion was required during a C-section. It is her case that it was the carelessness and negligence of OP-1 due to which she sustained a urinary tract injury, which led to urine leaking into the peritoneum and required the transfusion of 8 units of blood.

On 25.07.2007 Cystoscopy was conducted on her by the Doctors at DMC wherein it was revealed that the bladder had a 5 cm defect, necessitating surgery. Due to the complainant's critical condition, DMC doctors delayed the operation and prescribed medicines in the meantime. The Complainant was readmitted at DMC, Ludhiana on 27.11.2007 and it was revealed in her medical reports that her Uterus and Urinary Bladder had been mingled-up and urine was passing through the uterus and, during menstruation, it also passed through bladder. Consequently, Complainant had to undergo major operation at the said hospital on 03.12.2007 in which her bladder was repaired and the doctors had to remove her uterus to save her life. She remained admitted to DMC, Ludhiana till 15.12.2007, post which she was discharged but kept vising the hospital for regular treatment and check-ups. Complainant contended that she was charged Rs.20,000/- by OP-1 along with other miscellaneous expenses and further expenses of Rs.4,00,000/- for her treatment and surgery at DMC, Ludhiana.

Alleging negligence and deficiency in service on part of OP-1 in the initial treatment, Complainant claimed a compensation for loss of uterus, mental and physical agony, litigation charges etc.

Top of Form7.   In reply before the learned District Forum, the OP-1 contended that Amar Hospital being a charitable body took no charges from the complainant and negated the view that the Complainant was a consumer. It was contented that OP-1 was neither the employee of Amar Hospital nor the owner of Amar Hospital, hence the complaint was not liable to be entertained in the absence of necessary parties. It was also averred that there being no evidence of the operation being conducted by O-1, the matter needed to be decided before a competent Civil  Court as proper evidence was required to be led for the same. The Complainant's husband was personally known to the OP-1 and used to visit OP-1 for personal help on the pretext of being poor. The complainant already had two daughters by two previous caesarean operations which also led to massive bleedings during her previous operations. The couple was also advised not to have another child as the same could be life threatening to both mother and child. Despite this, they went against medical advice and decided to have a third child. Her husband approached the OP-1 for helping him, when his wife became pregnant and doctors advised him against undergoing a third major operation. OP-1 used to occasionally visit the Hospital to help the patients and staff but denied operating on any patient. Complainant was informed about the possible dangers of a third operation, and was suggested to go to a bigger hospital but on her assistance of being poor, the hospital doctors agreed to operate on the patient. OP-1 admitted that Complainant had a condition of placenta privia prior to the operation hence, there was moderate blood loss during the operation and 8 units of blood had to be administered to her by the hospital to save her life. On 24.07.2007 Complainant had certain health problems. Thus, an x-ray and ultra sound were performed on her. Thereafter, she was shifted to DMC Ludhiana for better management. At the time of reference, there was no leakage of urine from vagina or otherwise and the ultra sound performed on 24.07.2007 by Parampal diagnostic Centre, showed urinary bladder perfectly normal in outline. All allegations of negligence during operation were denied by the OP-1. OP-1 referred her for a Cystogram report of DMC, Ludhiana wherein the urinary bladder of the Complainant was reported to be normal even post C-section. A further reference was made to various test reports dated 12.08.2007, 20.8.2007 which showed gradual development of clots in the urinary bladder. It was contended much later that on 03.08.2007 during one of the procedures of stitching, urine started oozing out of wound, which was managed conservatively and patient was discharged in satisfactory condition on 06.09.2007 by DMC Hospital and hence, there could be no nexus proved between the operation at Amar Hospital on 18.07.2007 and the subsequent issues faced by the Complainant at DMC Hospital. Moreover, on 27.11.2007 she was readmitted at DMC Ludhiana for gall bladder stones, where she underwent a lap chole and open hysterectomy, along with bladder repair under general anesthesia. These procedures were unrelated to her previous caesarean operation at Amar Hospital. She was admitted in DMC on 27.11.2007 she was having chole lithniasis with utroviescal fistula, which could be a consequence of an infection, weakening of walls of urinary bladder and uterus or rescuing of the wound done at DMC itself on 03.8.2007. There being no evidence to the exact cause, OP-1 cannot be made liable. Further, even if there was any communication between the uterus and urinary bladder and urine starts following from vagina it could not have entered the abdominal cavity as in this case. Hence, the cause of her illness for which she was referred to DMC had no link to the subsequent conditions faced by her.

The Ld. District Forum vide Order dated 02.09.2009, allowed the complaint. It observed that it was indeed OP-1 who operated on the Complainant on 18.07.2007. It was concluded that "while performing her professional duties OP-1 caused deficiency in service, as a result of which, the complainant suffered not only physical pain and sufferings but also mental agony, tension, harassment and financial loss on account of her repeated visits to DMC, Ludhiana and incurring expenditure for her repeated minor and major operations”. Thus, OP-1 was deemed responsible for the complainant's pain and suffering. Based on these findings, the District Forum director OP-1 to pay Rs. 1,00,000/- being pre and post treatment expenditure and Rs. 3,00,000/- as compensation to the Complainant along with litigation expenses of Rs. 5,000/-.

Being aggrieved by the District Forum Order, the OP filed FA No. 1472/2009 praying for it to be set aside. Simultaneously Complainant filed FA No. 1480 of 2009 for enhancement of compensation. The State Commission vide order dated 26.07.2012 by a common Order allowed FA No. 1472/2009, thereby setting aside the Order passed by the District Forum with the following reason/findings and Dismissed FA No. 1480/2009.

“48. In the impression also there is no evidence if there was injury to the urinary bladder or to the urinary tract of if the fluid had come from the urinal bladder or from the urinal tract or if the collection of the free fluid was due to any medical negligence of the appellant who operated the respondent on 18.7.2007. This report dated 26.7.2007 Ex. C-2 also falsifies the version of the respondent if the appellant had caused injury to the urinary tract while operating the respondent on 18.7.2007.

Otherwise also it appears very strange that is any injury has been caused to the urinary bladder or to the urinary tract by the appellant while operating the operation on 18.7.2007. The urine would have flowed in the abdomen cavity in huge quantity and the respondent would have come in critical condition right from 18.7.2007 itself.

Moreover the respondent has not produced on the file the medical record of DMC, Ludhiana where she remained admitted from 24.7.2007 to 6.9.2007 to prove if the doctors of the DMC, Ludhiana had opined anywhere that the free fluid in the abdomen cavity was due to the medical negligence committed by the appellant while operating the respondent on 18.7.2007.

... This affidavit of Dr. Atul Mishra, therefore, clearly reveals that there was no medical negligence on the part of the appellant when she had operated the respondent on 18.7.2007. From the above discussion, therefore, it is clearly proved that there was no fault of the appellant when she operated the respondent on 18.7.2007 and there was no injury to the urinary tract or the urinary bladder.

In view of the discussion held above, it is held that there was no medical negligence on the part of the appellant but the respondent has put the blame on the appellant as she remained admitted in DMC, Ludhiana for a long period, although the reason was not medical negligence of the appellant.

The judgment of the District Forum dated 2.9.2009 is totally illegal and is based on misreading of facts and law.

This appeal is accordingly accepted and the impugned judgment dated 2.9.2009 is hereby set aside. Resultantly the complaint of the respondent is dismissed.

The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal on 15.10.2009. This amount of Rs. 25,000/- with interest accrued thereon, if any, be refunded by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.

FIRST APPEAL NO. 1480 OF 2009 :

Since the complaint of the respondent (appellant in the present appeal) has been dismissed and the impugned judgment dated 2.9.2009 is set aside, therefore, there is no question of any enhancement in the amount of compensation. AS such the present appeal is dismissed.

Being dissatisfied by the Impugned Order dated 26.07.2012 passed by the State Commission, the Petitioner/ Complainant filed the present Revision Petition No. 4691 of 2012.

I have examined the pleadings and associated documents placed on record, including the Orders of both the fora and rendered thoughtful consideration to the written arguments submitted by the learned counsel by the complainant and arguments advanced by the learned counsel for respondents.

The issue in question in this case revolves around the alleged medical negligence and deficiency in service by OP-1 who allegedly performed C-section surgery on the Complainant. The Complainant had contended that due to improper treatment and care during surgery, she suffered complications, as a result of which her uterus had to be eventually removed, resulting in physical and mental trauma. Conversely, OP-1 refuted any negligence before the District Forum and asserted that the surgery was conducted in accordance with accepted medical practices and that she was not the one performing it at the first place. The primary issue to be determined is whether there was any negligence during performing the C-section by the OP-1 leading to the Complainant's suffering as contended by her. If it is so, to what extent OPs are liable to compensate her.

It is uncontested position that the Complainant had previously undergone two C-sections and decided to opt for it for a third time. The diagnosis and the scope of treatment administered to her are undisputed. It is also an admitted position that, before performing the surgery, she was diagnosed with plecenta privia as has also been emphasized in the Order of Ld. State Commission. It is a pregnancy condition wherein the placenta partially or fully covers the cervix and it can lead to probable heavy bleeding during childbirth and often necessitates careful monitoring. Allegedly, despite medical opinion to the contrary, the Complainant voluntarily decided to opt for such an operation. Further, whenever any discomfort was reported by her, the same was properly attended to by the doctors at Amar Hospital and immediate treatment in the form blood transfusion and medicines was also given. When subsequent problems were reported, OP-1 ensured further x-ray test and scanning, wherein no leakage of urine from the vagina or otherwise was reported. The ultrasound conducted on the complainant on 24.07.2007 revealed that the urinary bladder was perfectly normal in outline, post which she was discharged. It was due to specific critical health reasons of the complainant she was referred to DMC, Ludhiana for better management. What happened post that has no nexus with the C-section performed by OP-1 at Amar Hospital. More so, Amar Hospital is not made a party to the present Complaint, thus proper records of the administration of medicines and procedure followed are not brought on record. However, from the the medical reports available, the evidence and the testimonies of the doctors, there is no reason to believe that there was any medical negligence or deficiency in service by OP-1.

In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam, (2009) 7 SCC  130 the Hon’ble Supreme Court observed the following:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the in- violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

Based on the discussion above, I find no reason to interfere with the detailed and well reasoned order of the learned State Commission dated 26.07.2012 with significant details of the treatment and processes adopted. Therefore, the Revision Petition No.4691 of 2012 is dismissed.

There shall be no order as to costs. All pending Applications, if any, stand disposed of accordingly.