Indu Devi & Anr vs Dr. Vijay Laxmi Sharma

M. Shreesha, J

Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 06.08.2014 passed by the Bihar State Consumer Disputes Redressal Commission, Patna (in short "the State Commission"). By the impugned order, the State Commission has allowed the Appeal preferred by Dr. Vijay Laxmi Sharma (hereinafter referred to as "the treating Doctor") and set aside the order of the District Consumer Disputes Redressal Forum, Bhojpur at Arrah (in short "the District Forum), thereby dismissing the Complaint.

The facts in brief are that the Complainants contacted the treating Doctor for abortion and ligation on 19.09.1997. The procedure was conducted on 20.09.1997 and it is averred that without taking consent of the first Complainant, namely, Indu Devi (hereinafter referred to as "the Patient"), her Appendix was removed and during the procedure of removal of the Appendix, the treating Doctor negligently damaged the Patient's intestine, on account of which, there was discharge of heavy blood. It was averred that the treating Doctor had damaged the uterus and removed the Appendix without taking consent and on account of the negligence of the treating Doctor the Patient's condition worsened. It was averred that the treating Doctor had mentioned that the Patient's condition would improve, but it did not, even after waiting for a considerable period of time. Thereafter, the Patient was admitted in Kurji Hospital on 24.09.1997 and there the Doctor, who treated the Patient, informed the Patient and the second Complainant that during the abortion, the uterus and the sigmoid was perforated, which necessitated a laparotomy to be performed at Kurji Hospital. It was specifically pleaded that it was only at Kurji Hospital that Dr. M. Hamidi, the General Surgeon stated that there was an injury to her rectum which was not even mentioned in the referral letter. Even preliminary tests were not taken. On the third post-operative day peritonitis developed. It is pleaded that it was without the consent of the Patient that the treating Doctor had removed the Appendix and perforated the uterus. The Complainant had to undergo a second operation at Kurji Hospital and spent an amount of Rs. 30,000/- towards medical expenses and also suffered physical and mental agony for which the Complainants seek compensation of Rs. 3,00,000/- with interest @18% p.a.

The treating Doctor filed her Written Statement admitting that the Patient approached her for medical termination of pregnancy (MTP) and ligation of fallopian tubes on 19.09.1997 and after clinical examination, the Patient was found to be pregnant with 14 weeks duration. It was informed to the Patient that MTP at 14 weeks duration was risky but the Complainant returned on 20.09.1997, along with the second Complainant and persisted that the MTP and ligation operation be performed. It is averred that the treating Doctor has agreed to take up the case of the Complainants only after explaining them the risk that the MTP would be performed through the vaginal route and the ligation of fallopian tube would be performed by the laparotomy procedure. It is denied that the risks were not explained. It is pleaded in the Written Version that during the course of procedure of tube ligation, it was found that there was perforation of the uterus and slight damage to the adjacent structure and accordingly, the uterus wall perforation and injury to the adjacent structures were meticulously repaired and bilateral tube ligation was performed. Before closing the abdomen, other organs were scrutinized for pathology, and an Appendix was found pathological i.e. unhealthy, which required removal and having no alternative, it was removed. It is a routine procedure to scrutinize other organs for any other pathology while performing reparative operation and carry out additional procedure in the best interest of the Patient.

It is denied by the treating Doctor that she was only asked to perform MTP and ligation and that the Appendix was removed without consent. The perforation in the wall of the uterus was detected and the repair of uterus and adjacent structure was carried out and therefore there is no negligence on her part. It is also averred that a surgeon of vast experience and repute Dr. B.P. Yadav was called immediately and the reparative operation was performed diligently with the help and guidance of Dr. B.P. Yadav, M.S. (General Surgery) and Dr. R. Sharma. After coming out of the operation theatre, the second Complainant was informed about the complication that had occurred during MTP and the remedial operation performed and there was no danger to the Patient's life. The appendectomy and the reparative operation was performed in the best interest of the Patient and that complication or perforation of uterus is a common complication which arises during MTP and that the Patient had suppressed from the treating Doctor that she was suffering from tuberculosis and the tuberculosis lead to softening of the uterus, which might be the cause of uterine perforation during MTP. The Patient was taken away to another Hospital on their own demand and therefor there is no negligence on her behalf.

The District Forum based on the evidence adduced allowed the Complaint directing the Treating Doctor to pay a total amount of Rs. 1,80,000/- together with interest @ 12% p.a. on the amount of Rs. 1,00,000/-, which was spent towards medical expenses.

Aggrieved by the said order, the treating Doctor preferred First Appeal No. 78 of 2002 before the State commission, which allowed the Appeal and set aside the order of the District Forum, dismissing the Complaint observing as follows:

"7. Upon considering the submission of the appellant as also the notes of argument filed on her behalf as well as the respondent, it would appear that the learned District Forum while holding the medical negligence on the part of the appellant basically relied upon the evidence of Dr. Hamid, Kurji Holy Hospital. There is nothing on the record to suggest that Dr. Hamidi could be taken as an expert on the subject. What was the qualification of Dr. Hamidi and his experience on the subject, in absence of such material on the record, it was not justified in law to rely upon the evidence of Dr. Hamid, whose competency to give such opinion is not on record nor explained in the affidavit. On the perusal of the order under appeal, what was the consideration of the evidence of Dr. Shanti Roy examined on behalf of the Complainant. It would appear that Dr. Shanti Roy had also gave opinion to the effect that injury during the medical treatment of pregnancy operation occurs. The removal of Appendix and repair of colorectal injury of Indu Devi was not done by the appellant. The appellant had performed the operation of the treating of pregnancy and repaired the uterus. It also appears that the complainant had taken decision of her own to take the complainant from Ara to Kurji Holy Hospital at Patna. There is nothing on the record that there was no reference for transfer of the patient and as such, inconvenience and financial expenses incurred in the treatment at Kurji Holy Hospital, the appellant-Doctor cannot be held responsible.

From the above, it would appear that no cogent materials were brought on the record to establish/ suggest the medical negligence on the part of the appellant in performing the abortion. The complication, which had cropped up was not abnormal as per medical expert opinion of Dr. Shanti Roy, a professor of Gynecology Department, Patna Medical College and Hospital. "

Learned Counsel appearing for the Revision Petitioner vehemently contended that the State Commission could not have discarded the testimony of Dr. M. Hamidi only on the ground that he was not a Gynecology but a General Surgeon; that the State Commission ought to have appreciated the expert witness, who had an M.S. degree in General Surgery; that the Appendix was removed without the consent of the Patient; that while removal of the Appendix on 20.09.1997, the treating Doctor damaged the intestine, rectum and uterus of the Patient on account of which her condition deteriorated; that further the treatment was rendered by Dr. M. Hamidi, who had deposed before the fora below that there was a hole in the rectum, which was a result of the previous injury, which was repaired; that the District Forum had rightly appreciated that the evidence of Dr. Yadav could not be taken into consideration as admittedly Dr. Yadav did not take any steps to conduct any pre-investigative tests or even enquired if such were performed on the Patient earlier and that the State Commission had erroneously relied on the expert opinion of Dr. Shanti Roy only on the ground that she is a Gynecologist and Dr. M. Hamidi is only a General Surgeon.

Learned Counsel appearing for the treating Doctor vehemently contended that the State Commission had rightly relied on the report of Dr. Shanti Roy; that the treating Doctor had adhered to all normal standard practices; that the Appendix was removed only because it was pathological; that the MTP procedure was conducted in a proper manner; that the Affidavit of Dr. M. Hamidi of Kurji Hospital cannot be relied upon as he was not an expert on the subject and that the injury which happened during the medical treatment is a common complication and that the treating Doctor had repaired the uterus and therefore no negligence can be attributed to the treating Doctor.

It is admitted that the treating Doctor performed MTP and ligation of the fallopian tubes on 20.09.1997; that during the procedure of MTP, the Appendix was removed; that during the course of procedure of tube ligation it was found that there was perforation of the uterus and the same was repaired and that the Patient was under the treatment of the treating Doctor from 20.09.1997 to 23.09.1997 and was referred to Kurji Hospital Patna on 24.09.1997.

For better understanding of the case, the report of Dr. Shanti Roy relied upon by the State Commission, while, allowing the Appeal of the treating Doctor, is reproduced as hereunder:

OPINION

I have gone through the details of Mrs. Indu Devi wife of Vinod Kumar Roy resident of Village-Koram Dihari P.S.-Sahar, District - Bhojpur who had undergone M.T.P. & Ligation on 20.09.1997 by Dr. Vijay Laxmi Sharma at Arah. She had developed complication of perforation of the uterus and adjacent gut colorectal junction for which she was treated by Dr. Vijay Laxmi Sharma and other Surgeons at Arrah on that very day.

Considering the facts and circumstances of the case I have come to the conclusion that-

The risk of perforation of uterus and injury to adjoining structures are inherent in the procedure of M.T.P. as it is a bling procedure. The rectum and colo are very near to the uterus posteriorly. There is anatomical variation of the uterus from patient to patient which also increases the risk factor.

The complication rate in M.T.P. of 2nd trimester (i.e. 12 to 16 wk of pregnancy) is even more than in first trimester, such type of complication during M.T.P. may occur anywhere and even by the most expert gynaecologist.

The complication of perforation of uterus and gut is treated by surgical repair of the affected part. The help of a general surgeon, if available, is desirable for repair of gut.

According to the records available of the aforesaid case, I find that surgical repair of the uterus and colorectal part was undertaken timely without any delay. Moreover it is also important to note that she had sought the help of two experienced surgeons namely Dr. B.P. Yadav, M.S. retired Civil Surgeon and Dr. Ramadhar Sharma, M.S., Mch. an experienced, surgeon for the repair of the uterus and colorectal part which shows her concern for adequate and ideal treatment under such circumstances and also her due diligence and care.

That from the above facts and circumstances and the case history of said Smt. Indu Devi it is evident that the complication of perforation of uterus and gut was accidental. As soon as the aforesaid perforation was detected by Dr. Vijay Laxmi sharma, she very promptly and timely got the perforation repaired with the help of Dr. B.P. Yadav and Dr. R. Sharma.

That the above opinion is based on my knowledge as well as my experience and the records of the case.

Shanti Roy

09.04.2001 "

(Emphasis supplied)

As against this Report, learned Counsel for the Revision Petitioner relies on the report given by Dr. M. Hamidi, who has treated the Patient subsequently on 24.09.1997, which is reproduced as hereunder:

"Name- Indu Devi

W/o Sri Vinod Singh                I.P. NO. 10548

D.O.A.-24.09.1997                  OPD NO. 23945

D.O.D.- 24.10.1997

The above mentioned Patient came in room of Kurji Hospital on 24.9.97 at 7.25 P.M. with C/o Fever, Pain, abdomen distension and absolute constipation- 2 day. At the time of admission her general condition was very poor. She was in septicemia her B.P. was 90/60 pulse 110 mt. and she had breathing difficulty. On history taking her husband gave the history on 20.09.97 she was taken to gynaecologist in Arrah for MTP and ligation she was in the OT for 7 hrs.

During MTP there perforated the uterus which was repaired by opening her abdomen and appendectomy was also done. Which the doctor wrote in the referral letter while sending the Pt. to Kurji.

Once she was admitted in critical ward and was put on I.V. fluid, Ryles tube aspiration and broad spectrum antibiotics. At the time of admission her HB % was 9.8 gram normal is fourteen gram her X-ray chest showed pleural effusion which was due to septicemia . She was given 3 units of blood her USG showed collection of fluid in the peritoneal cavity. She did not respond to conservative treatment and surgery was planned.

She was taken to the operation Room on 30.09.97, her abdomen was opened by midline incision. Her abdomen was full of feacal matter. After cleaning the abdomen I could assess the injury.

She had tear in the uterus which was repaired and she had big tear in the rectum which was also repaired. But it has leaked the repair was open. This injury was not mentioned in the referral letter. I did colectomy and closed the abdomen. Her post operative period was very stormy. She developed anaemia, would infection all because of faecal peritonitis. She was given 9 units of blood. Finally she was discharged on 24.10.97 with advice to come after 3 to 6 months for colostomy closure and reanastomosis. Her septicaemis was due to faecal peritonitis.

She was again admitted on 13.4.98 and was posted for surgery on 16.4.98. This time colo rectal anastomosis was done using staples and tube ligation was also done. She was given two units of blood she was discharged on 24.4.98.

Dr. M. Hamidi

Kurji Holy Family Hospital"

(Emphasis supplied)

The Hon'ble Supreme Court in Laxman Balakrishna Joshi Vs. Trimbamk Bapu Godble, 1969 AIR 128, has defined the duty of care as under:-

• duty of care in deciding whether to undertake the case

• duty of care in deciding what treatment to give

• duty of care in the administration of that treatment.

Whether the 'duty of care' as contemplated by the Hon'ble Supreme Court has been exhibited by the treating Doctor in the instant case, is to be seen from the material on record. The point for consideration, with respect to duty of care is whether any post-operative complications has arisen and if the treating Doctor has addressed to the post-operative complications as per standards of normal medical parlance and if the injuries that had occurred are common complications or not.

It is evident from the material on record that while referring the patient to the higher management center the treating Doctor did not send the basic discharge summary and it is the case of the Complainant that based on the report of Dr. Hamid it can be established that the injury to the rectum was not even informed to the referral Hospital. It is evident from the referral letter that no such injuries were even mentioned.

From the aforenoted report given by Dr. M. Hamidi, it is stated that she was admitted in a critical condition and was put on diet fluids and as the Patient did not respond to the conservative treatment, surgery was performed on 30.09.1997. It is pertinent to note that the Dr. M. Hamidi who had treated the Patient ten days after the M.T.P. had stated that the Patient's abdomen was full of faecal matter and after cleaning the abdomen, he assessed that there was a tear in the uterus, which was repaired and another big tear in the rectum which was also repaired but it was leaking and this injury was not mentioned in the referral letter. The Patient had developed anaemia and infection because of feacal peritonitis.

The deposition of Dr. M. Hamidi, clearly explains the condition of the Patient, when she was admitted in Kurji Hospital. It was clearly deposed that the hole was a result of the previous injury and that her post operative period was stormy and that her general condition was very poor. We place reliance on the judgement of the Hon'ble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda, (2008) 2 SCC 1, in which the Hon'ble Supreme Court had laid down the Principle of 'Informed Consent'. In the instant case no consent was taken prior to removal of Appendix. Be that as it may, if we take into consideration the submission of the learned Counsel appearing for the treating Doctor that it was performed in the best interest of the Patient, it is significant to note that the treating Doctor did not even mention the injuries to the rectum and to the uterus in her referral letter to Dr. M. Hamidi, who subsequently treated the Patient. Even if this can be construed as a known complication as submitted by the learned Counsel for the treating Doctor, yet the law of medical negligence stipulates that necessary 'duty of care' is to be exhibited even post operatively. Whereas, in the instant case the deposition, opinion and treatment record given by Dr. M. Hamidi clearly depicts that there was still a hole in the rectum though an attempt was made to repair it. The State Commission has erroneously discarded the opinion of Dr. M. Hamidi only on the ground that Dr. Shanti Roy is a Gynaecologist and Dr. M. Hamidi is a General Surgeon. In fact in the deposition of Dr. Shanti Roy, she had clearly stated that she did not have the record of the Patient; that she was not present during the operation of the Patient; that she cannot state as to which part of intestine was damaged; that she had given her opinion only on those papers, which were produced before her. Further, she had also deposed in her cross examination that it is essential to take consent of the lady, who is to be operated. She has further stated in her deposition that any injury occurred during MTP should be repaired immediately. In the light of this clear deposition read together with the report given by Dr. M. Hamidi, we are of the view that the State Commission has wrongly discarded the opinion of Dr. M. Hamidi, when he was the Doctor who had performed the subsequent surgery.

For all the aforenoted reasons, we are of the considered view that the treating Doctor is negligent in rendering treatment to the Patient and not having followed the standard normal medical parlance as laid down by the Hon'ble Supreme Court in a catena of judgements. A perusal of the order on record, shows that the District Forum had allowed only a very meagre amount of Rs. 1,80,000/- with interest @ 12% p.a. on an amount of Rs. 1,00,000/- which was spent towards medical expenses and the same has not been challenged by the Complainant before the State Commission.

Keeping in view, all the aforenoted reasons we allow this Revision Petition and restore the order of the District Forum, which has allowed a meagre amount of Rs. 1,80,000/- and has awarded interest @ 12% p.a. only on Rs. 1,00,000/-. Time for compliance is four weeks from the date of receipt of a copy of this order, failing which, the entire amount shall attract interest @ 14% p.a. from the date of filing of the Complaint till the date of realization.