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Judgment
This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the Order dated 29.08.2017 passed in appeal No. 07 of 2011 by Bihar State Consumer Disputes Redressal Commission, Patna (for short, ' the State Commission') whereby the State Commission allowed the appeal of the opposite party - doctor and set aside the Order dated 07.12.2010 of the District Consumer Disputes Redressal Forum, Nalanda (for short, 'District Forum').
The brief facts that on 03.07.2008, complainant's wife was suffering from abdominal pain and she was taken to the clinic of opposite party - doctor, who advised for operation. On 05.07.1998 opposite party operated her for repair of perforation in the uterus and charged Rs. 4 lakh from him. Thereafter, it was alleged that due to negligence during operation, patient suffered serious complications like fecal discharge through the operated area since 11.07.1998. Then the patient consulted Dr. Kamal Ashraf at Patna, who noted that the uterus was not repaired and rectum of the patient was damaged, therefore, patient was again operated on 16.07.1998 by Dr. Kamal Ashraf. It caused great financial loss, mental and physical agony to the patient and her family members. Being aggrieved, the complainant filed a complaint before the District Forum for alleged medical negligence.
The complaint was contested by the opposite party and denied any negligence on the part of doctor. Opposite party in her written version before the District Forum submitted that there was no negligence on her part. On 03.07.1998 wife of the petitioner came with a complaint of pain in lower abdomen since last five days and amenorrhoea since 1 ½ months. During the course of patient's external examination, she disclosed dilatation and curettage (D & C) on 2/7/98 for termination of pregnancy of 1 ½ months was done by somebody (not being a qualified medical practitioner). On examination opposite party found a lump in the lower abdominal part and on internal examination the uterus was bulky and posterior fornix was bulging. It was confirmed by ultrasound study. After pre-operative fitness, patient was operated successfully on 05.07.1998. Thereafter, patient approached Dr. Kamal Ashraf at Patna on 11-07-98, who again operated the patient on 16.07.98. The prescription of Dr. Kamal Ahsraf did not disclose negligence which caused perforation of uterus anywhere and damage to the rectum during surgery.
On the basis of pleadings and evidence, the District Forum allowed the complaint and directed the opposite party to pay Rs.50,000/- on account of medical negligence and compensation of Rs.10,000/- alongwith litigation cost of Rs.10,000/-.
Being aggrieved, the opposite party filed first appeal before the State Commission, Bihar and the State Commission allowed the said appeal, dismissed the complaint.
Being aggrieved by the impugned order, the petitioner-complainant filed the instant revision petition.
Heard learned counsel for both the parties. They have made their respective submissions as stated in their evidence. Perused the documents on file and given thoughtful consideration to the arguments. So far as the allegations of the complainant against the opposite party- doctor that due to fault in the operation performed on 05.07.1998 the patient had developed the complication of fecal discharge from the operated site. The patient consulted Dr. Kamal Ashraf at Patna on 11-07-98, who again operated the patient on 16.07.1998. It is evident from the medical prescriptions dated 11.07.1998 of Dr. Kamal Ahsraf that the patient was brought to him with the complaint of fecal discharge from the wound. He performed the operation on 16.07.1998 and the rectum was required by closing the perforation. Nothing was mentioned in the prescription about any fault during the operation conducted by the appellant doctor which caused injury to patient's or uterus or rectum.
The State Commission was of the view that the case of medical negligence need to be proved by an expert or by cogent medical literature. The doctor could not held liable without any expert opinion.
It is transpired from the medical record that on 02.07.1998 patient got terminated her pregnancy of 1 ½ months by the hands of an unqualified person and it was not disclosed to the opposite party-doctor. The patient approached the opposite party on 03.07.1998 with the complaints of pain in lower abdomen and she had amenorrhea of 1 ½ months. On clinical examination and ultrasound, the opposite party diagnosed that some mass present in the posterior fornix. Therefore, the opposite party operated the patient. However, there was no visible perforation of either uterus or of large bowel. There was erosion of intestine inflammation over the site of perforation of uterus. Though uterine perforation was suspected but, there was no bleeding, therefore, the opposite party did not do any surgical intervention to repair and the adopted conservative mode of treatment. In this context, the opposite party relied upon the C.S. Dawn Text Book of Obstetrics and Neonatology 12th edition page 325. On the basis of the medical text, in my view, it was the case of delayed perforation of intestine; which could have occurred after 7 to 11 days of D & C performed by an unskilled person. There is no iota of evidence to prove that there was any surgical injury to the small or large intestine during surgery performed by the opposite party.
Considering the entirety of the case, the opposite party is qualified gynecologist, who treated the patient as per reasonable and standard of care. The complainant has not produced any expert opinion to prove its case. I do not find any negligence on the part of opposite party doctor. There is no merit in the instant revision petition. It is dismissed.