13-49 OBSTETRICS/GYNAECOLOGY.

See also Sterilization

Obstetrics/Gynaecology-Anaesthesia-Caesarean under local anaesthesia-Oeath-Criminal negligence-No negligence held-Medical negligence- Death in operation theatre-Deceased admitted for delivery-Caesarean operation under local anaesthesia as general anaesthesia would affect the child-Soon after the local anaesthesia was administered blood pressure began to fall-Doctors did their best to save the deceased and the child but in vain-Case against the doctor who administered anaesthesia contending that he was not an anaesthetic expert and he did not give a test dose-As post-mortem was not conducted cause of death whether by anaesthesia or some other reasons could not be made out-Whether death caused due to rash and negligent act of the doctor-Held: no, anaesthesia used was a common local anaesthesia that is normally given to all the patients and non-giving of a test dose was not an indication of rashness or negligence; treatment given was proper, fair, competent and reasonable. Criminal proceedings quashed-Penal Code, 1860, section 304-A and Code of Criminal Procedure, 1973, section 482. [Dr. Krishna Prasad v. State of Karnataka, 1989 ACJ 393 (Karn.-HC).]

Obstetrics/Gynaecology-Nurse undertaking a complicated case of de- livery beyond her competence-Uterus ruptured and new-born child died-Negligence held-Compensation of Rs. 2 lac and costs Rs. 10,000 awarded-The complaint was regarding negligence of a private doctor's hospital which the complainant attended for prenatal treatment, etc. Her uterus got ruptured on account of delayed labour and the male child, who was born, died. The State Commission observed:

"Here is a case where the opposite party who is merely a nurse and mid-wife, has taken upon herself, the management of a situation pregnant with dire consequences as this was a case of second caesarean operation and her management has ultimately led to the rupture of the uterus, removal of it and to the death of her male child. The opposite party has acted rashly, recklessly and with culpable negligence."

It held the opposite party guilty of gross negligence and awarded compensation of Rs.2,50,000 as under: Rupees one lac for rupture and removal of the uterus which is a permanent injury of a grave character; Rupees one lac for the pain and agony suffered; and Rupees fifty thousand for the death of the male child. On appeal, the National Commission upheld the decision of the State Commission except that compensation for pain and agony reduced from Rs.l, OO,OOO to Rs. 50,000. Also awarded Rs. 10,000 as costs. Negligence was held on following grounds: attempting to undertake a known complicated case of delivery beyond her level of competence; delaying referral to higher centre; and false and vacillating statements, e.g., patient had remained in hospital for 2 hours; she was referred without any medical assistance; she had come with complication of threatened rupture of uterus; no male member had accompanied her, etc.

v. M. Jeeva, 1992 (2) CPR 409 (TN SCDRC); M. Jeeva v. R. Lalitha, 1994 (2) CPJ 73 (NCDRC)]

Obstetrics/GynaecoIogy-Cervical pregnancy-Profuse bleeding- Emergency hysterectomy done-No negligence-The complainant alleged that the obstetrician and gynaecologist of the Ist opposite party negligently removed her uterus. After examining all the evidence on record, the National Commission held that:

.it was a case of cervical pregnancy; use of lamineria tent for dilating cervix instead of dilapan is not negligence as it is one of the accepted standard procedures;

.as the complainant was bleeding profusely she needed an emergency operation which was carried out with due care, circumspection, professional skill and competence; and in case of emergency, the operating doctor has wider discretion about the treatment, since the bleeding could not be controlled even by evacuation of the products and since the patient was sinking, an emergency hysterectomy was performed. Complaint was dismissed. [Vinitha Ashokv. Lakshmi Hospital and Ors., 1992 (2) CPJ 372 (NCDRC).] Note: This decision of the National Commission was affirmed by the Supreme Court in Vinitha Ashokv. Lakshmi Hospital, 2002 (1) CPJ 4 (SC): 2001 (8) SCC 731.

13-49.5 Obstetrics/Gynaecology-Complicated case of delivery-Both mother and child died-Misrepresentation of facts about qualifications of doctor-Negligence held-Compensation of Rs. 77,000/- awarded against the hospitaI-In the instant case, it was held by the National Commission that: As fee was charged for room rent, treatment etc., the service rendered falls within the scope of the Consumer Protection Act. Heirs/legal representatives of deceased consumer are entitled to file complaint. .Medical negligence existed on following grounds: Patient was known to have complications during her first delivery in same hospital and after admission, to induce labour, she was started on syntocinon (oxytocin) drip. Artificial rupture of membranes was done. At this point the doctor left the patient to attend patients in the OPD. This was against standard medical recommendations (of reasonable care & skill). The condition of patient became bad. Doctor was called who applied vacuum extractor. The baby extracted was asphyxiated and mother started bleeding severely. Both died subsequently. The name board exhibited by the hospital mentioned M.D. (Gyn.) against her name creating an impression and misleadi11g the patients that the doctor possessed P. G. degree in Gynaecology. The degree M.D., Gyn. was obtained from Freiburg, Germany, which, as per the rules and directions from M.C.I., should have been mentioned. This degree is equal to M.B.,B.S. in India. Although the doctor had undergone practical training courses in Gynaecology, she had not acquired any qualification in the form of degree or diploma in that discipline, hence she was not entitled to claim that she is M.D. (Gyn.) in India. Hence, she was not qualified to undertake this procedure and the resultant vacuum slip had led to complications. Also held liable for misrepresentation of facts. Complainant was awarded Rs. 77,000 as compensation, to be paid by the society which was running the hospital. [(Dr.) Sr. Louie and Ors. v. (Smt.) Kannolil Pathumma and Anr., 1993 (1) CPR 422.]

Obstetrics/Gynaecology-Case of ectopic pregnancy diagnosed as missed abortion-Diagnosis difficult-No Negligence-In the instant case, it was alleged that during the early stage of patient's second pregnancy she suddenly fell ill and was taken to Teja Hospital where the doctor diagnosed her to be a case of missed abortion and D&C (Dilatation & Curettage) was done. The abdominal pain and bleeding stopped, and she was discharged the same day. After 16 days she again developed pain abdomen and came to the hospital where pelvic scan was asked for and opinion of another doctor sought, who felt it was a case of ruptured ectopic pregnancy and advised laparotomy. She preferred to go to CMC Vellore, where a diagnosis of "chronic rupture ectopic pregnancy (right), was made and right salpingoophercory ( oophorectomy) was performed and she recovered.

The court held that though it was true that the doctor had diagnosed the case as one of missed abortion whereas this was really a case of chronic ectopic pregnancy in the fallopian tube, negligence was not established on basis of what is said in Williams Obstetrics, XIV Edition, page 547: "The chronic ruptured ectopic: ...These cases present the most atypical manifestations. Since there are various gradations between the acute and chronic ruptures, it is understandable that tubal pregnancy may be associated with a wide and often confusing variety of clinical features.

Diagnosis: Prompt diagnosis in ruptured tubal pregnancy is most important. Indeed, it is failure to make the correct diagnosis promptly that accounts for almost all deaths in this condition. Unfortunately, however. there is no other disorder in the field of obstetrics and gynaecology that presents so many pitfalls. For example, if many reports of ectopic pregnancy are surveyed, the preoperative diagnosis of ruptured tubal pregnancy is shown at operation to be wrong in about 15 to 20 percent of cases. (Emphasis supplied by State Commission.). [K. Vasantha v. Teja Hospital, 1993 (I) CPR 20 (TN SCDRC).]

I. Author's note: When diagnosis is accepted by reasonable body to be difficult, the margin of err accepted to be more.

13-49.7 ObstetricslGynaecology-Sponge left behind after Caesarean-Insufficient evidence-Complaint dismissed-In the Instant case, it was alleged that the opposite party had left behind a sponge in the abdomen after Caesarean operation, leading to complications. The sponge had to be removed elsewhere. The State Commission held that there was insufficient evidence that the sponge was found at the second operation. The Operation Theatre sister, who was the most important witness to this fact, was neither examined nor her name was disclosed. Complaint was dismissed, with costs assessed at Rs. 1,0001-. [Smt. Rina Prakash v. Dechi Ganpati & Ors., 1994 (3) CPJ 358 (Kam. SCORC).]

13-49.8 >ObstetricslGynaecology-Pregnant lady-Developed fever and jaundice-Referred to physician-Died-No negligence held-Trupti, wife of the complainant was 8 months pregnant and had consulted Or. Vani. On 24.5.1992. Trupti developed fever but Or. Vani could not be contacted. Wife of Or. Vani, also a doctor, suggested Metacin tablets. Next day in the evening Or. Vani prescribed Resochin and Oigene. On 26.5.92 temperature shot up to 1060 F. Physician was called, who suggested certain tests. Reports of these tests were given to Or. Vani over the phone and more treatment was advised. On 27.5.92 patient became worse and at 6 am Dr. Vani was contacted who advised that she should be taken to a physician as it was a case not falling under her speciality. At 2.30 pm taken to physician who advised immediate admission, but Trupti died before anything could be done to her.

No negligence was held on the following grounds: Or. Vani came to know over the phone that urine contained bile salts and bile pigments she advised to contact some physician, as it was not a case under her speciality No evidence produced as to establish that the treatment given was not proper. There was no evidence as to how Trupti died. No post-mortem had been made and, therefore, real cause of her death was not known. [Digvijay Sinh A. Zata v. Dr. Narendra T. Vani & Ors., 1995 (1) CPJ 186 (Guj. SCORC).]

13-49.9 ObstetricslGynaecology-Major hysterectomy-Consent taken-No negligence-The complainant (lst complainant's wife) was operated for removal of right adnexa. It was alleged that in fact her left adnexa was bulky and should have been removed instead of right adnexa. It was further alleged that the uterus was removed without consent. The State Commission held that consent had been taken in writing and standard procedure was followed according to the circumstances. No evidence adduced by the complainant to prove her contentions. Complaint dismissed. [ Kanaiya Prasad G. Mishra & Anr. v. Dr. (Mrs.) Tanumati G. Shah, 1995 (2) CPJ 159 (Guj. SCORC).]

13-49.10 Obstetrics/Gynaecology-Caesarean-Premature baby-Not at- tended properly-Paediatrician not called-Same subject matter sub judice before other courts-Complaint not allowed-The complainant's wife Mrs. Bibha Nath was taken to Or. Mrs. Manju Geeta Mishra's Nursing Home on 13.8.91 with labour pains. Considering her history of two previous abortions, breech presentation of present pregnancy, rupture of membranes and EOO (expected date of delivery) 11.9.91, after taking consent, Caesarean was done within 2 hours of admission. After 10 to 12 hours ofbirth the child developed breathing difficulty and was referred to a Paediatrician-Or. Kumar's Nursing Home-where the child died after 2 days. It was alleged that Dr. (Mrs.) 'Mishra had not called any child specialist to attend the baby after delivery, despite knowing that the delivery of the child was premature by about three weeks. Child was underweight (2.3 kg.), and after delivery Dr. (Mrs. ) Mishra took up another Caesarean instead of attending to the child. Child was wrapped in an unsterilized towel. She failed to clean the tongue and the throat of the child and also failed to make the child cry which she should have done due which the child had respiratory difficulty and deficiency of oxygen resulting in asphyxia. The complainant also filed criminal cases against Dr.(Mrs.) Mishra u/s. 304, 304-A IPC and against Dr. Kumar u/s. 304, 304 A and 504 IPC The Judicial Magistrate after examining the complaint and two more witnesses recorded that no prima facie case is made out and there is no sufficient ground for proceeding and hence dismissed both the cases. The complainant has filed revision before the Hon 'ble High Court, Patna against this order. State Commission held that as a matter of policy and principle where the subject matter of the complaint is sub judice before ordinary courts, a concurrent adjudication in respect of the same should not be conducted under the Act, as held by the National Commission in Special Machines v. Punjab National Bank, 1991(1) CPJ 78: 1991 (1) CPR 52(NCDRC) and Santosh Sharma v. State Bank of lndia, 1991(2) CPJ 262: 1991 (1) CPR 103 (NCDRC). For these reasons the complaints were dismissed. [Jitendra Nath (Mrs.) Manju Geeta Mishra & Ors., 1995 (2) CPJ 96 (Bih. SCDRC)I.]

.the child (baby Ralnya) was delivered on same day at 10.20 pm weighing 4.5 Kg; .baby Ramya was found not moving her right arm and parents were advised to consult a neurosurgeon who informed that the complainant had right brachial palsy with Homer's Syndrome; a neurologist and orthopaedician were also consulted who gave similar opinion, they also informed that such paralysis in babies occurs due to excessive traction (force) in the delivery of the shoulders. In the counter filed by Dr. (Mrs.) Reddy it was stated: mother was a case of pregnancy-induced hypertension;

since patient did not progress till evening another doctor's opinion was sought who suggested Caesarean section, but patient refused to undergo Caesarean; the labour which had been induced by Oxytocin drip had to be discontinued as BP continued to be 160/lOO despite treatment; when the amniotic fluid was found to be meconium (green) stained, Caesarean was suggested, but was refused by patient; during delivery , the head of the baby, was spontaneously delivered, but the patient did not co-operate with the shoulder delivery; as the baby was turning blue, there was danger of baby getting asphyxiated and even dying, the doctor had to apply traction for delivery of shoulders; the patient did not disclose that the first issue was forceps delivery , for then she would have insisted for Caesarean. A rejoinder affidavit filed by the complainant contended: it was not correct to say that the mother was having high BP the case sheet is silent with regard to temperature, BP and the plea that the nurse noted BP on white paper was concocted; ultrasonography during pregnancy was never advised; Caesarean operation was never advised; the supporting affidavits of other doctors to the effect that Dr. (Mrs.) Reddy had taken proper care in conducting delivery were without any basis. The State Commission held: Dr. Reddy's contention that by mere clinical examination the size of the baby cannot be ascertained hence the treating doctor did not anticipate the need for Caesarean could not be accepted; no proper case sheet was maintained; patient was not referred for ultrasonography to assess size of baby; patient was admitted at 6.30 am and delivery was effected at 10.20 pm when it was found that the delivery was difficult she should have done Caesarean section; the contention that the patient refused cannot be accepted; consent of mother or husband of the patient who were present at the Nursing Home throughout could have been taken; had Caesarean been done the injury to baby Ramya could have been avoided; .Mudaliar & Menon's text book: Clinical Obstetrics states that 'Brachial palsy or Erb's palsy' results from excessive traction in the delivery of the shoulders; Dr. Vittal Reddy after thorough examination of the complaint stated in his affidavit that the birth injury could have been avoided, if proper care had been taken; Dr. Rangachary, orthopaedician, in his affidavit, opined that the complainant was found to have Erb's Palsy which was due to traction; Dr. V.P. Patnaik, Professor of Forensic Medicine on perusal of the documents gave an affidavit stating that if the cause of distress was elicited before labour, and timely assistance to the mother and fetus were given by way of surgical interference, it could have prevented the Erb's Palsy. Placing reliance on Dr. Patnaik's statement and on consideration of material on record, the State Commission held that the doctor had not exercised due and reasonable care while conducting delivery. The complainant was awarded Rs. 1.75 lac towards general damages for pain and suffering and for loss of use of right hand, but no special damages were awarded in the absence of any proof. Since Dr. (Mrs.) Reddy was insured, the insurance company was made second opposite party and both the parties were directed to pay the compensation jointly and severally. [Baby Ramya, represented by her father K. Raft Reddy v. Dr. (Mrs.) Aruna Reddy & Anr., 1996 (1) CPR 244 (AP SCDRC)I.]

13-49.14 >Obstetrics/Gynaecology-Delivery attempted first by a midwife- Opposite party only clinically examined and advised to remove patient to bigger hospital-No negligence-The complainant alleged that the Ist opposite party had attempted to take child out from the uterus by using forceps and as a result her uterus ruptured. She had to get her uterus removed by another doctor.

There was no evidence to support the allegation that the 1 st opposite party had attempted to deliver t11e child by using forceps. The complainant admitted to having called a midwife who attempted to deliver the child, before consulting the Ist opposite party. The State Commission also held that there was no reason to discard evidence of 1 st opposite party that he only examined the patient clinically and had advised to remove the patient to another hospital at Surendranagar as her condition was serious. Complaint was dismissed. [DudhiBen Navghanbai v. Dr. Ashok BhaiH. Pathak & Anr., 1996 (2) CPR 69 (Guj. SCDRC).]

13-49.15 Obstetrics/Gynaecology-Operated for left T .0. Mass-RVF developed-No negligence-The complainant No.2 was operated for a tumor (left sided tubo-ovarian mass) and removal of uterus. Subsequently, she developed recto-vaginal fistula (RVF). The complainants alleged that the uterus was removed without her consent and due to negligence in operation RVF had resulted.

The State Commission held that there was a written consent given by the complainant for removal of her uterus, and it further appeared from the Medical Authority (text book)

1. Dr. Laxman Ba/akrishna Joshi v. Dr. Trimbak Bapu Godbo/e, AIR 1969 SC 128 and Dr. Pinnamaneni Narasimha AR >v. Gundavarapu Jayaprakash, AIR 1990 AP-HC 207 fo//owed. which was cited in the deposition of Dr. C.B. Nagori (who was examined as an independent expert) that there is risk of rectoanal injury and formation of fistula (RVF) as a result of hysterectomy (removal of uterus) operation. Therefore, mere fact that there was RVF would not necessarily lead to the conclusion that the doctors were negligent in performance of operation.

Allegation about unfair trade practice was not substantiated, and in any case compensation was not claimed on ground of unfair trade practice. The complaint was dismissed. ( Consumer Protection Council & Anr. v. Parol Clinic Maternity Home and Hospital & Ors., 1996 (2) CPJ 157: 1996 (1) CPR 585(Guj. SCDRC).]

13-49.16 Obstetrics/Gynaecology-Caesarean section-Severe pain and urinary trouble after operation-On second operation a mass removed-Metalic tip of suction tube found in cavity of the mass-Negligence held-Compensation of Rs. 2 lac awarded-The complainant underwent Caesarean operation on 11.6.91 but thereafter she continued to have urinary trouble, severe pain abdomen and sometimes, fever. She continued to suffer till she underwent a second operation by another doctor on 14.10.92. A mass (as recorded in the report) was removed, and a metallic tip of the suction tube was found in the cavity of the mass. After this operation the complainant was relieved of her suffering. The State Commission on the basis of material placed on record held that the complainant had suffered physical pain and mental depression due to negligence of the opposite party. Serious mental distress is a killer ailment and can cause varieties of deadly ailments in human beings, which can lead to death. A compensation of Rs. 2 lac was awarded. (RohiniPritam Kabadiv. Dr. R.T. Kulkarni, 1996 (3) CPJ44l: 1990 (1) CPR l42 (Karn. SCDRC).]

13-49.17 Obstetrics/Gynaecology-Artery forceps left behind after Caesarean-Negligence held-Compensation of Rs. 10,000, costs Rs. 2000 and actual expenses of Rs. 29,000 awarded-Complainant-Sau. Madhuri was operated upon by Dr. Rajendra and Dr. Kalpana of Shriram Clinic, Maternity and Nursing Home, Warud, District Amravati, for delivery of a Caesarean child under general anaesthesia. After the operation she continued to have pain in the abdomen, but nothing was done to alleviate her sufferings. She was shifted to Nagpur and admitted in the clinic of Dr. P.K. Tamaskar, who took an X-ray of her abdomen and found " Artery Forceps" inside her abdomen. She was operated upon by him and the forceps was removed from her abdomen. This was recorded in the operation notes. After going through the record the State Commission, Maharashtra concluded that Dr. Rajendra & Others had been negligent. Further as evident from the notes of Dr. Tamaskar, the artery forceps could not be pulled out because small intestine had entwined itself around the forceps, and therefore a part of the intestine had also to be removed. On this basis the Maharashtra State Commission awarded a sum of Rs. 2,000/- as compensation and also an amount of Rs. 29,175/- towards expenditure, which the appellant had incurred for her treatment. The appeal filed by the complainant with the National Commission was on the ground that the compensation awarded by the State Commission at Rs. 2,000/- was a pittance considering the agony and discomfort suffered by her. The Maharashtra State Commission had argued that apart from Rs. 29,175/- the expenses incurred by the appellant, Dr. Rajendra had also paid Rs. 15,000/- to Dr. Tamaskar for performing the operation at Nagpur, and hence quantified the compensation at Rs. 2,000/-. The National Commission was of the opinion that no standard criteria can be prescribed for determining the amount of compensation in such like cases. Each case has to be judged by taking into account the attending circumstances and also the attenuating circumstances, if any. One has also to see the financial status of the doctor as well as the patient, age of the patient, the earning state of the patient, and any other relevant factor having a bearing on the case. The National Commission enhanced the compensation from Rs. 2,000 to Rs. 10,000 and also awarded Rs. 2,000/- as costs to the patient, in addition to Rs. 29,197/- on account of expenditure. >[Sau. Madhuri v. Dr. Rajendra & Ors., 1996 (3) CPJ 75 (NCDRC).]

13-49.19 Obstetrics/Gynaecology-Causing perforation of uterus during MTP-Negligence held-Awarded compensation of Rs. 2 lac (Rs. 1.5 lac for medical treatment and Rs. 50,000/- for pain and mental anguish)-The complain- ant's wife was admitted in the opposite party hospital and advised termination of pregnancy by operation of Dilatation and Evacuation. But after the operation she continued to have abdominal pain. She was taken to another hospital, as there was perforation of the uterus and intestines. The State Commission, on the basis of evidence on record, held that there was gross negligence in the operation performed by I st opposite party. Rs. 2 lac compensation was awarded-Rs. 1,50,000/- spent on medical treatment and Rs. 50,000/- as compensation for physical pain and mental anguish. [ Vinubhai Parshottamdas Patel v. Dr. Vijay K. Ajmera, 1997 (1) CPR 348 (Guj. SCDRC).]

13-49 .20 Obstetrics/Gynaecology-Hysterectomy-Complications-Death-N o irregularity in treatment-Not negligent-The complainant's wife was admitted for hysterectomy, but after surgery her condition deteriorated, kidney failure occurred and ultimately after 17 days she expired. The State Commission held that from the available records complainant had not proved any alleged irregularities in treatment or attendance or lack of reasonable care by any opponent. It is a sad fact that young life is lost but then it is an accident; a fatal chance-occurrence which was beyond control of treating doctors. As it seems whatever was possible by these doctors they did it (if they failed complainant has not proved it-he carries the burden to prove it because he alleges). Just because patient died during treatment a doctor cannot be held responsible, particularly when the doctor has acted scientifically and adequately as it seems in this case. The complaint dismissed. [Meghdut Gordhanbhai Thakkar v. Dr. Anupama Vidhyut Bhai Desai & Anr., 1997 (1) CPJ 503: 1997 (2) CPR 9 (Guj. SCDRC).]

13-49.21 Obstetrics/Gynaecology-MTP done, but pregnancy continued- Possibility of two ovums, of which one could not be evacuated due to bicornuate uterus-No negligence-The complainant's wife underwent MTP with sterilization by the opposite party , but subsequently found that her pregnancy had continued and gave birth to a child at the end of eighth month of pregnancy. It was alleged that opposite party doctor failed to observe existence of two ovum’s in womb of his wife while performing MTP resulting in birth of a child. Opposite party contended that vigorous curettage and going into depth of uterus was not possible because of two previous Caesarean scars. Patient was instructed to attend her clinic after the next period or if the period was not established, but she failed to follow this advice. MTP was done by suction evacuation method. If both foetuses were in the same uterine cavity both would have been evacuated by this method. One foetus had been evacuated and the other left behind because of the possibility that the two foetuses were in two separate cavities as in bicornuate uterus. The State Commission held that this could have happened because the doctor in good faith did not suspect the possibility of bicornuate uterus, and on the basis of other evidence on record dismissed the complaint. >[ R. Longanathan v. Dr. Rani Mandakumar , 1997 (1) CPR486 (TN SCDRC).]

13-49.22 Obstetrics/Gynaecology-Complications after caesarean operation- Patient died-No negligence-The complainant's wife was admitted in the Benzigar Hospital, Kollam, under care of Dr. Elizabeth Zachariah. It was alleged that she conducted the Caesarean operation negligently resulting in damage to urinary bladder, ureter and kidneys, for which the patient was shifted to Trivandrum, but ultimately she died after 2 months. The State Commission held that there is no evidence of negligence during the operation. I t was also averred in the complaint that wrong medicines were administered, but on basis of material evidence no case could be made of this allegation also, and dismissed the complaint. [Joseph alias Animon & Anr. v. Dr. Elizabeth Zachariah & Ors., 1997 (1) CPJ 96 (Ker. SCDRC).]

13-49.23 Obstetrics/Gynaecology-Chorion biopsy test-Sample unfit for test because of delay in transmission-Deficiency in service-Compensation of Rs. 20,000 and refund of fees awarded-A chorion sample for biopsy was taken out from the womb of the complainant's wife on 26.2.94 for which Rs. 1200/- was charged. Due to delay in transit of 2 days the sample was spoiled. Repeat biopsy was taken on 3.3.94 but this time also the sample reached Indore after 4 days and was not worth testing.

The State Commission held that whenever a sample is taken for any test and charges for test are collected, it is implied that the delivery of test report will be the completion of "service" hired for charges paid. It was the bounden duty of the Mayo Hospital through Dr. Viraj Sharma to ensure timely transportation of the sample. Once the earlier sample had been destroyed, it was her moral duty not to charge for the repeat biopsy, but she did charge Rs. 5001- and still did not take precautions for ensuring timely transportation. This is not only deficiency in service but gross negligence of inhuman nature when committed second time. The State Commission upheld the order of the District Forum which had awarded Rs. 20,000 as compensation and also directed to refund Rs. 1700/- collected as fees, and dismissed the appeal of the hospital. [Mayo Hospital v. Sunil Tiwari, 1997 (3) CPJ 387: 1997 (3) CPR 574 (MP SCDRC).]

13-49.24 Obstetrics/Gynaecology-Caesarean operation-Uncontrolled bleeding-Death-Negligence held-Compensation of Rs. 2.351ac awarded applying same principles as in motor accident cases-The complainant's wife, aged 35 years, was taken to opposite party No.1 for Caesarean operation, delivered a child, but did not regain consciousness shifted to another hospital and ultimately died in early hours next day. Post-mortem was done on the insistence of the complainant.

It was stated by the opposite parties that the patient was a known case of placenta praevia grade 3. Patient was advised operation on 3.8.93 but refused, and when she came on 5.8.93 she was bleeding profusely. Blood was arranged, and she was taken up for emergency Caesarean, under spinal anaesthesia. Other gynaecologists were called to help as an' 'abundant caution' '. All measures to stop oozing from the placental bed were taken and when all was thought well, the abdomen was closed. Since the patient's condition despite 8 units of blood continued to deteriorate it was decided to shift her to another hospital. Removal of uterus was felt not necessary. Report of post-mortem was not correct and mala fide. Request for joining the Insurance Co. was made which was granted by Commission. The post-mortem report stated that :the patient had 1.8litres of haematoma in peritoneum. Uterus was bulky, plenty of blood clots seen around the suturing in various planes. Some branches of uterine artery showed ante-mortem cuts and they were not ligated and there was large haematoma around it. Uterus was repaired deficiently. The cause of death is shock as a result of intra-abdominal haemorrhage following negligent surgical procedure and repair. Histopathological reports are non- contributory."

"Opinion" by Dr. R.M. Jhala was produced, but it was not clear why and in what capacity his opinion was asked. Dr. Jhala was neither examined nor he made any statement regarding present case. Innumerable medical references were given but none of them was comparable to the present situation and the State Commission held that it served no purpose for the complainant or opponent, and seemed to be an exercise in futility. There were material differences in statement of Dr. Shah opposite party No.1 and Dr. Patel, anaesthetist. Dr. Shah said patient was serious on arrival and blood pressure was low. Dr. Patel said patient was fit and normal. Dr. Shah said patient had bleeding per vagina but Dr. Patel denied the same. Dr. Shah had produced two sets of Xerox copies of case papers, but no original copies were presented. There was no clarification as to how there was disparity in both papers.

Dr. Lilaben Trivedi was called as a witness because she was chairperson of Com- mittee appointed by Medical Council of Gujarat who had also instituted inquiry in the present case. Dr. Trivedi admitted knowing Dr. Jhala but the Committee was not knowledgeable about the report of Dr. Jhala. Dr. Trivedi utterly failed to explain why and how so many paragraphs of Dr. Jhala' s report were incorporated in Committee' s report ditto to ditto with no change even in coma or full stop. The State Commission inferred that the Committee prepared its report on basis of Dr. Jhala's report and did not apply its mind or investigated as was expected. Dr. Shah in spite of request failed to present himself for cross-examination by complainant and therefore his statements remained unproven and were not accepted as evidence. No independent, uninvolved (directly or indirectly) expert was called to confirm the claims of Dr. Shah or to refute the charges of, of complainant. The State Commission did raise some doubt regarding the post-mortem report as far as writing the mode of death was concerned, viz., the cause of death is shock as a result of intra-abdominal haemorrhage following negligent surgical procedure and repair, but held that the other findings were corroborative evidence, sufficient to conclude that the patient died because of exsanguinations which, with due diligence and advance precaution, could have been prevented. In assessing compensation, the value of benefit of services to the complainants was assessed at Rs. 12,000/- p.a. Multiplier of 15 was applied making it 1,80,000/-. Rs. 20,000/- for loss of expectancy of life and Rs. 10,000 for pain, shock and suffering of the deceased. Rs. 25,000/- was awarded for the costs of treatment. Thus, the total compensation worked out to Rs. 2,35,000/- together with interest @ 12% p.a. from date of complaint ti11 realisation. Rs. 5,000/- was awarded in addition as costs to the complainants. [Devendra Kantilal Nayak & Ors. v. Dr. Kalyani Ben Dhrov Shah & Anr. , 1997 (1) CPJ 103 (Guj. SCDRC).]

13-49.25 Obstetrics/Gynaecology-M. T .P -Pregnancy continued-Could be a case of twin pregnancy-Appeal dismissed-The complainant underwent M.T.P. but pregnancy still continued and she gave birth to a male child. The opposite party pleaded it was a case of incomplete abortion as it could be a case of twin pregnancy. Further, the complainant had been visiting her subsequently but at no point of time she ever asked for termination of second pregnancy. The State Commission dismissed the appeal and upheld the order passed by the District Forum which dismissed the complaint as there was no deficiency in service. [Uma v. Dr. Nishu Kharbanda & Anr., 1997 (2) CPJ 580 (Har. SCDRC).]

13-49.26 >Obstetrics/Gynaecology-Bilateral Oophorectomy-Developed intestinal obstruction-Operated elsewhere No negligence-The complainant un- derwent operation for removal of ovaries (bilateral oophorectomy). On third day she developed abdominal distention, pain and fever. X-rays of abdomen were done, but allegedly the opposite parties failed to diagnose intestinal obstruction, resulting in worsening of her condition and ultimately she was shifted to Command Hospital, Bangalore where she was diagnosed as a case of intestinal obstruction with perforation and peritonitis and underwent second surgery 

The opposite parties had stated that they had in fact made a diagnosis of intestinal obstruction and put the complainant on conservative treatment. When recovery did not take place they decided to do an exploratory laparotomy but she refused and therefore patient was shifted to Command Hospital. Even there she was operated on the next day. The evidence of the doctors there did not attribute any negligence on part of the opposite parties. Consequently the complaint came to be dismissed. [ Uma Pinglay v. Dr. N.P. Mookherjee & Ors., 1997 (2) CPR 160 (Karn. SCDRC).]

13-49.27 Obstetrics/Gynaecology-Anaesthesia-Meningitis following spinal anaesthesia for Caesarean section-No negligence-The complainant alleged that due to wrong administration of spinal anaesthesia during Caesarean operation by the opposite parties she developed meningitis. This had to be treated elsewhere.

From the evidence of expert medical witness it could not be held that occurrence of meningitis was factually due to negligently administering spinal anaesthesia. Appeal was dismissed. [Kulwinder Kaurv. Dr. KiranpreetKaurMakkar & Ors., 1997 (2) CPJ 355 (Punj. SCDRC).]

 3-49.28 Obstetrics/Gynaecology-Hysterectomy-Complications-Contributory negligence-Chand Bibi w/o complainant was operated upon for removal of uterus. During the post-operative period, despite reported medical advice she consumed the cream, roti, meat and dal, puri and ftied egg. Her uterus disrupted and had to undergo an emergency operation to close the abdomen, but patient died next day.

The National Commission held that there was no delay in conducting the operation and on record it was clear that the patient was not following the advice given toiler. Large number of people were visiting the patient and that might be the cause of infection. Hence the appeal was dismissed. [Md. As/am v. Idea/Nursing Home, 1997 (3) CPJ 81 (NCDRC).]

13-49.29 Obstetrics/Gynaecology-Sponge left behind-Scrub nurse held responsible-Negligence held-Vicarious liability of hospital-Compensation of Rs. 98,000 awarded against the hospital and insurance company with whom hospital was insured-In the instant case, the complainant's wife underwent Caesarean operation, but a large sponge was left behind as was proved by the evidence of the doctor who removed it and also from the C. T. Scan report. The scrub nurse was responsible for counting the sponges and negligence was held on her part. The hospital as employer was vicariously held liable to compensate but as the hospital was insured, the Insurance Company was asked to pay compensation amount of Rs. 98,506/- to the complainant. [A/eyamma Varghese v. Dewan Bahadur Dr. V. Varghese & Ors., 1997 (3) CPJ 165 (Ker. SCDRC).]

13-49.30 Obstetrics/Gynaecology-Caesarean-Incontinence of urine- Foley's catheter inserted-No negligence-The complainant's wife was admitted for third delivery in the hospital of Dr. Thankamma Punnoose. A provisional diagnosis of threatened rupture of the previous Caesarean scar, fetal distress and deep transsexual arrest was made, and after explaining the complications that may arise following surgery, consent was obtained. After preliminary investigations emergency Caesarean section was done and baby was extracted. Five days after discharge she developed incontinence of urine, urinary fistula was suspected and an indwelling Foley's catheter was put in. But the complainant alleged that another doctor of Dr. T. Punnoose Hospital told her husband that some injury was caused to the urine bag at the time of operation and that was the reason for the discharge of urine.

The State Commission held that the complainant had not adduced any evidence to show that there was any negligence on part of the opposite parties and dismissed the complaint. [Pa//attu George & Anr. v. Dr. Thamkamma Punnoose & Anr., 1997 (3) CPJ 341: 1997 (3) CPR 167(Ker. SCDRC).]

13-49.31 Obstetrics/Gynaecology-Caesarean section-Later on gauze piece removed from body at another hospital -No negligence held on facts of the case-In the instant case, according to the complainant, she was operated upon for delivery ofher child in the opposite party , s hospital. As her pain persisted, she underwent X -ray and ultrasound and the report opined', inflammatory mass foreign body inside. For that she was again operated upon by the opposite parties but was not relieved of her pain. Ultimately she got admitted in the P .G.I. Chandigarh, where she was again operated and it was reported that some segment of gauze piece was found in the body. It was taken out and found to have fresh and smooth margins. Aggrieved against that the complainant had filed this complaint.

The opposite parties in their written reply said that the histopathology report of the inflammatory mass revealed tuberculosis. The patient never turned up. The State

Commission upheld the finding of 'no negligence' by the District Forum on the basis of the record and the fact that the report of the PGI at Chandigarh and the final analysis made there had clearly shown that the segment of the gauze piece taken out had quite fresh and smooth margins. The possibility of the complainant having received medical treatment at some other places, i.e., other than that of the respondents at Jagadhri could not be ruled out. Under the circumstances the State Commission found no merit in the appeal and dismissed the same. [Ralni Bansal v. Dr. D. C. Mittal & Ors., 1997 (3) CPJ 511 (Har. SCDRC).]

13-49.32 Obstetrics/gynaecology- Emergency Caesarean-Death of child- No negligence-Smt. Jana who was carrying 29 weeks 4 days pregnancy, started having dribbling of liquor and severe bleeding. Immediate blood transfusion was given, and emergency Caesarean operation was done. Child born was premature and severely asphyxiated and died.

The State Commission on the basis of available evidence and standard text-books held that there were no laches or negligence in the treatment given in the existing circumstances and dismissed the complaint. [Anup Kumar Jana v. Dr. Pabitra Chatter- lee, 1998 (I) CPl-'693, (WB SCDRC).]

13-49.33 Obstetrics/Gynaecology-Paediatrics-Premature delivery-Death of child-N o negligence- The complainant alleged that due to lack of proper care by Dr. K. Bala of Prem Nath Hospital she delivered prematurely a female child weighing 1.25 Kg having nephrology problem. After 2 days, as the condition of the baby deteriorated, the baby was admitted to Pushpanjali Hospital of Gurgaon where she did not show any improvement despite incubator care and ultimately expired on the next day.

In her reply, Dr. K. Bala denied lack of proper skill and care. The complainant was running very high blood pressure it was a high risk case. The possible complications were clearly explained to the complainant and her husband. It was further pleaded that the baby was revived and resuscitated by highly eminent, experienced and skilled paediatrician Dr. Prem Nath and subsequently managed by him. The complainant and her husband themselves decided to shift the baby to Pushpanjali Hospital. According to Pushpanjali Hospital, despite the best medical attention given to the complainant and her baby it was unfortunate that due to respiratory distress syndrome and hyaline membrane disease, the baby did not survive and that the treatment of incubator, oxygen and drip did not help. During the trial of the complaint, Dr. Vanita Bhatnagar, OBS Gyne. Of Civil hospital, Dr. Lt. Col. Yashpuri and Dr. Jai Kishan Yadav appeared as witnesses but they opined that though at the time of delivery the facility of incubator is useful but in the absence of incubator temperature can still be maintained by other means by radiant heat warmers, hot water bottles and cotton pads etc. No evidence in support of any deficiency in the rendering of medical service, remissness or negligence on the part of Dr. K. Bala of Prem Nath Hospital or Pushpanjali Hospital, Gurgaon had been produced on the basis whereof it could be inferred that the baby had expired due to any deficiency in service or want of medical care, attention, or treatment, etc. Despite all this, the learned District Consumer Forum allowed the complaint by awarding compensation of Rs. 25,000/- to the complainant with Rs. 5,000/- as litigation expenses against the Prem Nath Hospital, but dismissed the complaint against the Pushpanjali Hospital. The State Commission set aside the order of the District Forum on the following grounds: -the order passed by the District Forum is not based on any evidence regarding any deficiency in providing medical services; the medical opinion of the three doctors does not suggest any deficiency; .but for this misfortune, the doctors cannot be held liable.

[ Prem Nath Hospital v. Poonam Mangla & Anr. , 19?8 (2) CPJ 205 (Har .SCDRC). ] 13-49.34 Obstetrics/Gynaecology-Allegation of cotton sponge left behind in rectum-No explanation as to how could it enter there-Frivolous complaint-After a Caesarean section followed by tubectomy, pain in abdomen of the complainant persisted. She was operated by another Doctor Harbilas in another hospital who recovered a cotton sponge from the rectum. Expert evidence adduced by the complainant could not explain how the sponge could enter the rectum, without causing any injury. Furthermore, how could the patient live for about four months as the sponge had completely blocked the exit (anus). The State Commission held that in order to prove medical negligence, fora can take up the case of: (i) apparent negligence or (ii) negligent act proved by expert opinion as laid down by the Supreme Court in Indian Medical Association v. V.P. Shantha, 1995 (3) CPR412: AIR 1996 SC 550: 1995 (3) CPJ 1: 1995 (6) SCC 651: JT 1995 (8) SC 119. If the complainant had failed to produce any such evidence, no relief can be granted to the complainant.

Dr. Harbllas, who removed the sponge stated he could not explain the source of entry of the sponge in the rectum, and it was for the complainant to explain.

This was accepted by the State Commission. Ipse dixit of the complainant in such like matters cannot be accepted to hold the charge of negligence on the part of the doctor in such circumstances. The State Commission came to the conclusion that the complaint was frivolous, and dismissed it with costs of Rs. 1,000/-. [Mrs. SatwantKaurv. Dr. Kanwaljit Kaur, 1992 (2) CPR 458 (Chd.-UTCDRC).]

13-49.35 Obstetrics/Gynaecology-Death of patient during surgery-Negligence held on part of surgeons for not taking proper measures needed for the surgery in hand-Compensation of Rs. 2.55 Lac and cost Rs. 5,000 awarded-Mrs. Meena Pilankar was suffering from uterine fibromyometrosis and was advised hysterectomy by Dr. (Mrs.) Rashmi B. Fadnavis. After necessary tests Dr. Shekhar Ambradekar (Cardiologist) declared her fit for surgery. Thereafter she was operated upon in the Nursing Home ofDr. Fadnavis, but unfortunately she died on the operation table itself. Complaint was lodged before the Maharashtra State Commission alleging negligence in the treatment rendered by Dr. (Mrs.) Rashmi Fadnavis (Opposite Party No.1) Dr. Bhalchandra Fadnavis (OP No.2) and Dr. (Mrs). S.S. Kalekar (OP No.3), anaesthetist. The State Commission held OP No.1 & 2 guilty of medical negligence but exonerated the anaesthetist (OP No.3). Opposite parties No.1 & 2 were asked to pay jointly and severally Rs. 2,55,355/- to the complainant. The complainant appealed to the National Commission against the exoneration of the anaesthetist and also prayed for higher compensation. The National Commission set aside the order of the State Com- mission with regard to exoneration of the anaesthetist and held him also liable and observed in its earlier order dated 15.2.1996 in Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi B. Fadnavis & Anr., 1996 (1) CPR 137; 1998 (1) CPJ 49 (NCDRC) as under; "Even if the services of the Anaesthetist were hired by opposite party No.1, then also the deceased happened to be the beneficiary of medical services of the Anaesthetist and hence a 'consumer' and that services of the Anaesthetist are invariably paid for by patients themselves, their charges being generally shown separately in the bill. Section 2(1)(d) of C.P. Act defines 'consumer' as one who 'hires or avails of any services for a consideration " this definition does not refer to any privity of contract for that purpose. Similarly section 2(1) (g) defines 'deficiency in service' as; 'fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service'. The words 'in pursuance of a contract or otherwise' in the section make it amply clear that a privity of contract is not needed for a claim to be made under C.P .Act, so long as there is hiring or availing of services for a consideration. Thus the Anaesthetist who participated in the process of delivery of medical services to the beneficiary is as much liable as the main surgeon herself if her negligence had been established. ' ,

Even though the National Commission made the above observations, it agreed with the finding of the State Commission that in this case the Anaesthetist was not negligent and hence not liable to pay compensation. In the present appeal by Dr. (Mrs.) Rashmi B. Fadnavis & Anr. against the award of compensation the National Commission in its decision dated 4.9.1998 held: the shifting of the patient from the Vikas Kendra Hospital in Andheri (a big hospital) to the small Nursing Home of Dr. Fadnavis was not on insistence of husband oftl1e deceased. The appellants failed miserably to impress upon the husband to procure three bottles of blood and make them available before the operation started; the duration of surgery of about seven hours went beyond the estimated time; .since the duration of any surgery is uncertain, this makes it all the more essential for the doctors to be prepared for any likely contingencies; the patient was having a same blood group (A Rh-negative) and was weighing 124 kg, a 'morbid obesity' patient, and the risk involved in such cases was well known and is foreseeable. And yet, the appellants did not make requisite essential arrangements in the Operation Theatre for managing a potential risk surgery, e.g., keeping adequate units of blood, machine operated artificial respiration, adequately long needle for an intra-cardiac injection knowing full well that the patient was obese, etc. the appellants totally failed in taking those essential steps resulting in the death of the patient on the table. The National Commission confirmed order of the State Commission holding the opposite parties land 2 negligent and awarding compensation of Rs. 2,55,355/- and costs of Rs. 5,000/- to be paid by them jointly and severally and dismissed the appeal. [Dr. (Mrs.) Rashmi B. Fadnavis & Anr. v. Mumbai Grahak Panchayat & Ors., 1996 (1) CPR 137:1998 (3) CPJ 21; 1998 (3) CPR 34 (NCDRC).]

13-49.36 Obstetrics/Gynaecology-Improper anaesthesia-Brain damage- No negligence-The complainant's daughter underwent Caesarean operation in Opposite Party' s hospital but she never recovered from anaesthesia and continues to live in a vegetative state. The complainant alleged that inappropriate doses of spinal anaesthesia were used, and the hospital had lack of adequate facilities for resuscitation. The State Commission held that when, in the initial stage, complaint was lodged before the Medical Council no such grievance was made, and hence the allegations are an after-thought and are not bona fide. The State Commission also observed that patients have the tendency to blowout of proportion the grievance against the doctor. When the patient does not recover the patient pronounces that doctors are responsible for his ill health. They spare no opportunity to blame the reputation of the doctor. In this case the father of Ashwini approached Medical Council, approached also the Press and Video Media thus tried to injure the reputation of the doctors. It was also held that appropriate treatment was given at the appropriate time and the complaint was dismissed. [Nirmala R. Parab & Anr. v. Dr. Kalpana Desai & Ors., 1998 (3) CPJ 66: 1998 (3) CPJ 527 (Mah. SCDRC).]

Obstetrics/Gynaecology-Delivery case-Simultaneous tubectomy- Death due to post-operative shock-No negligence-The complainant's wife under- went tubectomy operation after delivery. Patient died after 25 minutes of operation. Two important issues considered under this case were: (i) was there any negligence; and

(ii) was the complainant a consumer vis-a-vis the Railway Hospital, where she was operated. On the first issue the State Commission held that the hospital notes indicate that after r the operation the patient had become fully conscious and was responding. Post-operative," shock as a cause of death even could not be avoided in spite of timely and appropriate treatment. Hence, no case of negligence is made out. Complaint dismissed on the count of no negligence and on the ground that the complainant is not a consumer because the services rendered in a Railway hospital are predominantly free. [Laxman Thamappa Kotgiri v. Union of lndia & Ors., 1998 (1) CPR 665 (Mah. SCDRC).]

13-49.38 Obstetrics/Gynaecology-Hysterectomy-Death due to complications

of anaesthesia-Negligence of anaesthetist and doctors held-Compensation of Rs.9.951ac awarded-The complainant's 42 year old wife underwent hysterectomy under the guidance of Dr. C.S. Wanier in the maternity home. However, during the operation she developed various complications due to anaesthesIa, and died after about 8 hour. The State Commission held the clinic and three doctors including the anaesthetIst:' ( negligent on account of: the hospital undertaking major surgery without having the basic facilities to perform 1 such a surgery; the operation was not urgent and only elective; 7, .there was negligence of the doctors in not giving proper medical attention after the  complications developed and for delay of 1.5 hours in deciding to transfer the patient. to a bigger hospital with necessary facilities. 

Compensation of Rs. 9.95 Lac was awarded. [7: Padmanabhan v. Hindustan Maternity Raj Home, Decided by the Kerala State Commission, Hindustan Times, Delhi, 9.11.98]

 13-49.39 Obstetrics/Gynaecology-Spontaneous abortion-Dilatation and evacuation done -Developed complications-Held no negligence-The complain- ant's wife who had pregnancy of about six months had spontaneous abortion and ~~ dilatation and evacuation was done in the clinic of 1 st opposite party. She subsequently' developed complications and had to be operated to remove pus from the abdomen. It 1. was alleged that during surgery uterus was removed without their consent, and the operation Itself was performed negligently due to which a hole was formed m the intestine and she again developed serious complications and was taken to the nursing home of opposite party No.2 who again operated upon her, but allegedly without proper investigations and skill due to which she continued to suffer and had to be re-operated elsewhere for her recovery . Considering the entire circumstances of the case and the evidence of Dr. K.N. Sinha, Head of the Department of Surgery where the patient was finally operated, it was held that there was no negligence and the complaint was dismissed. [Arun Kumar Mishra & Anr. v. Dr. Purshoftam Singh, 1998 (3) CPJ 573 (Bih. SCDRC).]

13-49.40 Obstetrics/Gynaecology-Caesarean operation-Post-operative bleeding-New plea by complainant-Not accepted-Negligence not proved- The complainant's wife underwent a Caesarean operation, but allegedly due to lack of post-operative care she died. It was contended that the uterus should have been removed to stop the bleeding but the doctor failed to do so. The State Commission held that this argument was not put forth in the complaint and before the District Forum. It was for the first time that it was argued and therefore it refused to accept this point.

It also held that blood was arranged before the operation, and upheld the decision of the District Forum of dismissing the complaint. [ M. Subramani & Ors. v. Christu Jothi Hospital & Anr., 1998 (3) CPR 428 (NCDRC).]

13-49.41 Obstetrics/Gynaecology-Antenatal examination-VDRL Test- Certificate issued indicating test as 'positive' for 'titre 1:8' which meant either of the spouses was suffering from veneral disease-Report only preliminary, subject to other confirmatory tests not intimated-Deficiency in service-Rs. 50,000 awarded as damages-The complainant's wife, M was referred to OP for antenatal laboratory examinations, who issued a certificate in respect of VDRL (Veneral Disease Research Laboratory) Test as 'Positive' for ‘Titre’ 1 :8' which clearly meant either of the spouses was suffering from V.D., viz., syphilis, etc. In order to confirm this, M was subjected to another test in the laboratory of another doctor which clearly indicated that so far as the complainant was concerned, VDRL test was "Negative" and so far as his wife, it was non-specific-biological false positive. The certificate issued by OP contained no indications to show that the results should be treated as preliminary results subject to confirmatory tests to be performed on both husband and wife. Held: In the Hindu society or even for that purpose other communities, persons suffering from veneral diseases are looked down as persons who are given to debauchery. The first certificate strikes the backbone of the status of the complainant. The subsequent certificates which are corrective in nature are taken by the society are certificates which are maneuvered to retrieve their social reputation. Such stigmatized certificates are not easily forgotten by the society .The society readily believes that either of these spouses is given to extra marital sexual life and this is a serious attack on the reputation of the husband and wife. The medical literature may indicate that these certificates are liable to be confirmed by subsequent tests but Dr. S should have taken adequate care to show in his certificate that the result VDRL test Positive plus Titre 1:8 should not be taken as a conclusive result, but should be confirmed by subsequent medical test as required under the medical literature. Therefore, the case of Dr. S that there was no error on his part or that he did not commit any deficiency in service cannot be upheld. On receipt of the certificate both the husband and wife must have suspected the fidelity of each other and in that light there must have been social commotion in their sentiments and on their behalf. Such  social trauma should be adequately compensated by awarding the damages so as to intimate the society that neither of these spouses suffers from any VDRL, disease. Looking to the status of husband and wife, cumulative damages of Rs. 50,000/- should serve the ends of justice. [Chandrasagar D. Rajput v. Dr. Dinesh J. Shah, 1999 (1) CPJ 434 (Mah. SCDRC)]

13-49.42 Obstetrics/Gynaecology-Post-partum complications-No surgery at the time of delivery-Opposite parties unauthorised and unqualified doctors-No expert medical evidence to show that complications relatable to negligence of opposite parties-A ward of compensation unsustainable- The District Forum was of the view that the opposite parties were unauthorised, unqualified doctors or daies running a clinic in the village, which was not proper and since they assisted in the delivery, compensation was allowed. Held: In the case of unfair trade practice, the direction for stopping such a practice can be given. Still compensation, if any, that could be granted has to be under section 14(1)(d) of the Consumer Protection Act, that is, on proof of negligent act of the opposite party, to reimburse the loss suffered by the complainant. In order to bring the case under section 14(1)(d) of the Act, it was incumbent upon the complainant to prove negligent act of the opposite parties resulting in causing loss to the complainant and in the facts of the present case, it could be established only by producing medical expert witness. In the absence of any expert evidence in this respect, no presumption could be drawn that the complications in the matter of delivery of male child to the complainant occurred on account of any negligent act of the opposite parties. Assuming that some instruments were used to facilitate the delivery, still medical evidence was required to establish the type of complications occurring in the body of the complainant on that account. No such evidence was produced in the present case. The District Forum was not justified in allowing the complaint and granting any compensation to the complainant. [ Charanjit Kaur & Ors. v. Manjit Kaur, 1999 (1) CPR 559 (Punj. SCDRC)]

13-49.43 Obstetrics/Gynaecology-Threatened abortion with foetus without cardiac activity-Complainant not treated as indoor patient-Treatment given to conserve pregnancy and not termination thereof-Patient having shown no response, ultrasound scan done revealing no foetus cardiac activity and thereafter D & C suggested-Not advising ultrasound scan and D&C at the primary stage, not deficiency in service-The appellant complained of pain in abdomen and bleeding per vagina for six days. It was diagnosed as a case of 'Threatened abortion’, which means a type of abortion with a possibility of continuance of pregnancy. The treatment given was bed rest and medicines to retain pregnancy. The main principle in management of threatened abortion is to try to conserve pregnancy by bed rest. This is the most important part of the treatment as bed rest improves internal blood flow and removes mechanical stimuli. The treatment prescribed by the Respondent No.2 was directed mostly to conserve pregnancy and not termination of it at any stage. Somehow when the patient did not respond to the treatment, she was advised ultrasound scan test which revealed that there was no foetus cardiac activity. Then the D & C was advised. Once the doctor has rendered the medical service by adopting the traditional and known procedure and process of treatment based on his professional experience and skill, the mere fact that the ultrasound scan was not suggested at the primary stage of the pregnancy cannot be attributed anyway to the deficiency in rendering service. [ Geeta Devi v. Dr. Ketki Garg, 1999 (2) CPR (Punj. SCDRC)]

13-49.44 Obstetrics/Gynaecology-Caesarean delivery-Trial of labour not succeeded-Foetus dead before surgery-Ruptured uterus not removed but repaired-Birth of a child 3 years thereafter-Complainant not appearing for cross-examination-Plea of inability of bear children failed-No deficiency in service or negligence-The complainant, who had a child by caesarean operation earlier was admitted in the hospital when she was expecting a second child. A trial of labour was done by the opposite party as caesarean delivery is always more risky to mother and child than normal delivery Calculated risk is taken for induction of labour with Oxytocin gel/Pitocin in the low doses (1/2 unit) under observation which had been administered to the patient accordingly. There had been no satisfactory progress of labour for 18-20 hours hence the Pitocin was rightly stopped. While the patient was being prepared for caesarean the uterus ruptured. None of the relatives of the patient offered the blood, which was the immediate requirement, however, the doctor on duty arranged blood from the P.G.I. The complainant alleged negligence as she had apprehended that she might not be able to bear the next baby at all. The uterus of the patient was repaired and not removed; hence the patient was never told that she cannot bear children at any stage. During the course of arguments it has been revealed by the respondents that the patient delivered a male child on 8.9.1998 at P .G .I. The complainant was required to appear for her cross-examination, but she has abstained for the aforesaid purpose. She was actually required for the statement so that she could be confronted with it, but she has chosen not to appear here. It was not a case that after her treatment in the aforesaid hospital she was rendered incapable of conceiving a child. The conclusion is that there was no deficiency on the part of the respondents and the complaint fails. [Kiranjeet v. Dr. Nirlep Kaur, 1999 (3) CPJ 208 (Chd.UTSCDRC)]

13-49.45 Obstetrics/Gynaecology-Recanalisation- Non-conception after operation-Secondary sterility with previous two LSCS following tubectomy-Re- canalisation operation after more than 12 years-Fai1.ure to conceive, no negligence or deficiency in service- The complainant who had undergone secondary sterility with previous two LSCS (Lower Segment Caesarean Section) on 25.8.1978, was subjected to recanalisation operation by the opposite party on 7.5.1991 so that she would be able to conceive. Before the operation, both the fallopian tubes were blocked at the isthmus, and after the operation, right tube was normal with free peritoneal spill on right side, and the left tube had only scant spillage. Having failed to conceive after the operation, the complainant claimed compensation against the opposite party for deficiency in service  which was allowed by District Forum. On appeal, the State Commission held: It cannot be disputed that conception can take place if one of the two tubes is unblocked. With regard to the left side also the tube was not fully blocked as scanty spillage was possible only when the tube on the left side also had been recanalised. It is well known that even when both husband and wife are anatomically fit and normal, there are a large number of factors, which come into play before the lady conceives. The point of significance is that the opposite party undertook to recanalise the tubes, which was successfully done. The opposite party cannot be held responsible simply because the complainant failed to conceive after the operation. Therefore, the opposite party was not guilty of deficiency in service.

Here was a case where tubectomy had been carried out in August 1978 and recanalisation was sought to be undertaken in 1991. The complainant had already undergone two caesarean operations and every operation results in adhesions and in any case no one can guarantee that pregnancy will take place for sure. The opposite party could not have held out such an assurance as probably no doctor ever can. [Dr. (Mrs.) Madhu Rana v. Smt. Bimla Gupta, 1999 (3) CPJ 224 (Del.

13-49.46 Obstetrics/Gynaecology- Treatment for pain in abdomen- Termination of pregnancy alleged to be caused by OP, a Para-medical personnel, not a qualified doctor-Rupture of uterus and damage to intestines detected on ultra- sound scan by another doctor, and removal of uterus and damaged parts of intestine resulting in sterility for life-Medicines and injections given by OP not shown to have caused termination of pregnancy, nor any evidence to show that OP performed pregnancy termination operation-Witnesses relied on by complainant not examined-No deficiency in service attributable to OP-The opposite party in her evidence has stated that for stomach pain she had given injection and prescribed medicines for skin irritation. She had also mentioned the names of the medicines she prescribed. She unequivocally repudiated the suggestion that she had given the injection and prescribed medicines only for termination of pregnancy. As against this assertive evidence of the opposite party, the complainants have not examined either Dr. I. C, who according to the complainants had stated that the uterus and intestine of the I st complainant had been badly damaged due to the mismanagement of the opposite party or any of the doctors, who according to the complainants had told them that without any symptom of pregnancy the opposite party had chosen to perform the exercise of termination of pregnancy. Thus, considering, the allegation that the opposite party had performed the operation of pregnancy termination and on account of that the complain- ant suffered stands unproved. It is then pleaded on behalf of the complainants that admittedly the opposite party was not a qualified Medical Practitioner, but she had called herself as Private Medical Practitioner and had a C.linic and admittedly she had given injections and prescriptions, and this would itself show that there was deficiency in service on the part of the opposite party. But it has not been proved by the complainants by letting in any contra evidence while the opposite party as RW I has categorically stated that the injections and medicines were given by her for stomach pain, that the said injections and medicines could not have been given for stomach pain but should have been given for operation stating that there was pregnancy, and on account of that the complainants had suffered. Therefore, there is no question of deficiency in service on the part of the opposite party and there is no question of the opposite party being liable to pay any compensation. [ T.M. T. Panjali v. S. Jamuna Lokanathan, 1999 {2) CPR 408 (TN SCDRC) ]

13-49.47 Obstetrics/Gynaecology-Death of patient the same day of delivery of child-Allegation of post partum haemorrhage and profuse bleeding from uterus due to negligence, contrary to evidence-Plea of O Ps that Disseminated Intravascular Coagulation (DIC) leading to cardiac arrest, and death due to amniotic pulmonary embolism, supported by post-mortem reports and expert opinions- Deceased attended by a team of doctors when she had a sudden shock- Treatment - given consistent with accepted practice-No deficiency or negligence-It was revealed by the post-mortem report : the brain was weighting 1210 gms. as against 1100 gms. Right lung was weighing 345 gms. as against 300-280 gms. Left lung was weighing 330 gms. as against 250-200 gms. and heart was weighing 220 gms. as against 200-180 gms. Now according to doctor, the higher weight of the lungs indicates congestion. The; liver is actually found congested with a weight of 1200 gms. Post-mortem lividity is; seen at pressure points, though it is faint. The findings in the post-mortem examination are strongly suggestive of death due to shock by amniotic fluid embolism, which is a type of pulmonary embolism, a rare complication of normal delivery. The case papers show that her respiration was irregular. There was pulmonary congestion in the lungs. She brought out frothy fluid through the endotracheal tube, rendering difficulty in ventilating the patient, bleeding from puncture sites indicate possible onset of disseminated intravascular coagulation (DIC) and there was no response to the very vigorous treatment of shock.

Since the doctors have gone through the post-mortem notes, they have unanimously suggested that this was not a case of Post-Partum Haemorrhage, the uterus had con- tracted and this was an indication of slow down of haemorrhage.

Allowing the appeal of the appellant-doctor, the State Commission set aside the order of the District Forum awarding compensation of Rs. 2,50,000/-. [Dr. Ravindra Kulkarni v. Balasaheb Gangaram Gavade, 1999 (3) CPR 219 (Mah. SCDRC)]

13-49.48 Obstetrics/Gynaecology-Medical termination of pregnancy (MTP)-No product obtained, but on second MTP product taken out by suction evacuation-Patient advised for D & C process, an approved method-No negligence, as the chances of continuance of pregnancy are higher when MTP is done prior to six weeks of pregnancy- The complainant, suffering from cold and fever, was subjected to pregnancy test, the result of which was positive, and on her insistence MTP was performed by the opposite party, but no product having been obtained, she of her own got discharged and admitted to another hospital where on second surgery product was obtained by suction evacuation, and the complainant was advised to repeat D & C. The complainant alleged, that the aforesaid sequence of events would show negligence on the part of opposite parties which resulted in her undergoing the second MTP at another hospital which subjected her to pain and agony, apart from herself incurring expenses towards medicine and hospital charges. Therefore, she wanted redressal by way of compensation. Held: D & C is an approved process in the given circumstance. The second opposite party adopting the said method cannot be faulted, and having seen that since it was an early pregnancy the chance of missing the product being there. Simply because the product could not be obtained, one cannot accuse the second opposite party of having been negligent. This is particularly so as she was advised to repeat D & C, she was under observation. The said features would show the care taken by the opposite parties in treating the complainant. [Dr. P.N. Bhaskaran & Anr. v. Mrs. Molly Robinson & Anr., 2000 (1) CPJ 81 : 1999 (3) CPR 442 (Ker. SCDRC)]

13-49.49 Obstetrics/Gynaecology-Incomplete abortion-MTP done without prescribed qualification nor hospital recognised for doing MTP-Ailment after surgery whether due to incomplete evacuation, not considered-Negligence established-Rs. 10,000 awarded as compensation by District Forum affirmed by State Commission-The second complainant was under the treatment of the opposite party at Arpana Hospital from 22.4.1993 to 26.4.1993. In his version the opposite party has also admitted that the complainant was brought to him on 11.5.1993 with stomach pain and vomiting and she was under his treatment till 13.5.1993 for disorder in the small intestine. As there was no improvement in her condition after his treatment for 3 days for intestinal disorder she was referred to a hospital with better facilities. She was admitted in M.C.H. for the same ailment on 15.6.1993 and discharged on 21.6.1993. When Dr. A of M.C.H. who has treated the complainant at M.C.H. was examined, she deposed that ultra sound scan was obtained and diagnosis was incomplete abortion. The District Forum found that the Medical Ten1lination of Pregnancy Act, 1971 does not entitle every medical practitioner under the Act to perfon1l the surgery, which can be done only by authorised persons under the Act, that too only in recognised hospitals. Then the District Forum concluded that the opposite party has no such pretensions. He does not claim to have had any training or authority to perfon1l the surgery. Nor is the hospital a recognised institution to perfon1l any such surgery. Agreeing with the conclusion of the District Forum, the State Commission held that there is negligence on the part of the appellant/opposite party, and that the appellant , 'fell below the standard of a reasonably competent practitioner' " when he has not made any attempt for ascertaining the reason for the ailment, whether it is in any way connected with the operation he has done previously there is negligence on the part of the appellant/opposite party at two stages. First doing M. T .P .without prescribed qualification at a hospital not recognised for doing MTP. Secondly when the complainant was under his treatment from 11.5.1993 to 13.5.1993, even after he found his treatment a failure he never considered the possibility or probability of incomplete evacuation. [Dr. C. v. Mathew v. P. Babu, 2000 (1) CPJ 134: 1999 (3) CPR 461 (Ker. SCDRC)]

13-49.50 13-49.51 Obstetrics/Gynaecology-Caesarean operation-Death of patient after delivery surgeons competent to conduct caesarean-No expert evidence to attribute death due to negligence-No post-mortem conducted to ascertain actual cause of death though complainants registered criminal case-No negligence-An M.B.B.S. doctor having obtained degree from the University was competent to practise medicines, surgery and obstetrics. Caesarean operation is part of the surgery. It may be that the persons obtaining diploma like D.G.O. may be more qualified to conduct caesarean operation but it cannot be said that such persons who had obtained such training only were eligible to conduct caesarean operation. Further, doctor was qualified as well as eligible for conducting caesarean operation, on the basis of her experience also. 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. 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 is on the complainant to prove negligent act on the part of the doctor. 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. [ Surinder Kumar (Laddi) & Anr. v. Dr. Santosh Menon & Ors., 2000 (1) CPR 23 (Punj. SCDRC)]

13-49.52 Obstetrics/Gynaecology-Ovarian cyst-Patient sustaining cardiac arrest at fag end of operation, shifted to another hospital and death after eight days-Cardiac arrest due to administration of excess anaesthesia alleged, but no nexus between the dose and malady established-No evidence to show any remiss- ness on the part of O P to revive cardiac arrest as soon as it could be revived-Lack of intensive care unit and also of automatic ventilator when Doyle's apparatus, which is also a ventilator, was available, not deficiency in service-It is alleged by the complainant that the patient developed cardiac arrest on account of the excessive dose of anaesthesia. In the first place, there is no material whatsoever to support such a submission; nothing is produced before the Commission to create a nexus between the dose administered and the malady suffered. Further, it is elicited in the course of the cross-examination of Dr. CW 3 that such cardiac arrests on the part of those on whom spinal anaesthesia is administered are common. The doctor has precisely stated that there are instances of several reports of unexpected cardiac arrest followed induction of spinal anaesthesia even when the patient is otherwise healthy. It is significant to notice here that even CW 4-doctor has also echoed the same idea, particularly in the course of his cross-examination. Under these circumstances, it is not at all possible to say, in the first instance, that the spinal anaesthesia administered was excessive, and secondly, that the cardiac arrest developed was due to excessive dose. Boyle ' s apparatus is a ventilator and it has got better control than automatic ventilator. As a matter of fact, Boyle's apparatus is more useful during surgery and to handle surgery .Though there is no intensive care unit in Harsha Hospital there are post operative wards. Under these circumstances, the fact that there was no intensive care unit cannot be considered such a lapse, which would amount to deficiency in service. It is really unfortunate that a young girl, developed cardiac arrest and she did not get full consciousness even though the cardiac arrest was revived. However, that by itself cannot be a circumstance to hold that the said development was the result of negligence on the part of the opposite parties or for that matter any amongst them. [ S.B. Kadkol v. Dr. N. Chandrashekhara & Ors., 2000 (1) CPR 131 (Karn. SCDRC)]

13-49.53 Obstetrics/Gynaecology-Post-partum haemorrhage-Deceased 25 years old-Death after 18 hours of normal delivery-Excessive bleeding within 2 hours of delivery and conservative method of sacking to stop it failed-Delay of 5 hours in calling Anaesthetist and patient becoming unfit for spinal anaesthesia for surgery-Negligence held-Compensation of Rs. 1,19,500, with 12% interest awarded applying multiplier of 15 and also Rs. 2,000 towards costs-The medical science clearly states that surgical treatment was evidently required at least after 2-3 hours of excessive bleeding, and even the doctor has admitted that an option for surgery was considered but patient's condition did not permit general or spinal anaesthesia. That means by 12.30 in midnight, patient's condition had worsened so much that even spinal anaesthesia was not possible. The delay of five hours in calling for anaesthetist cannot be taken an honest error of judgment in the facts and circumstances of the case. No doubt, she had choice of packing and she did that but after the choice of packing failed to stop bleeding for even three hours, surgical treatment was urgently required. It is not just a question of subsequent development denying her earlier supposition. There has been a failure on her part in not calling for anaesthetist even after two to three hours of continuous profuse bleeding. Even no record of pads soaking blood was kept, though in her delivery note, the doctor had written specifically 'save all pads'. She definitely fell short of standard of a reasonable skilful medical person. the deceased patient was hale and hearty at the time of admission and gave normal delivery of a female child but died in mysterious circumstances within 18 hours of normal delivery by her. In doctrine of common knowledge the patient's relatives must prove positive act of omission but they did not produce evidence to establish standard of care as the entire process of treatment inside the labour room was carried out in the absence of any of the patient's relatives. Patient's relatives were unable to see as to what exactly happened inside the labour room. They were unaware of the condition of the deceased patient right from her entry in the labour room ti119.00 a.m. next day. Naturally the complainant is not in a position to exactly state the factual aspects, whatever took ;$::q: place inside the labour room. Therefore, it was a duty cast upon the opposite party to i; prove the fact that no sort of the negligence took inside in the labour room. The opposite party negligently delayed inviting the services of Anaesthetist, etc., for five hours, which resulted in deterioration of the condition of the deceased patient to this extent that when the Anaesthetist came at 12.30 p.m., he found her not fit for general/spinal anaesthesia for surgical operation. Compensation of Rs. 1,19,500 with 12% interest awarded applying multiplier of 15 and also Rs. 2,000 towards costs. [Hemant Bahadur Smgh Parlhar v. Dr. Mrs. Maya Pathak, 2000 (1) CPR 191 (MP.". SCDRC)]

13-49.54 Obstetrics/Gynaecology-Threatened abortion and premature labour-Ayurvedic preparations having no side effects administered, preventing abortion and curing spotting-Congestive heart failure and death-No evidence to show death attributable to medicines given-No negligence-Medical literature shows that Gestamine Tab is indicated in threatened abortions, habitual abortions and threatened premature labour. The literature also shows that it does not have any hornlonal side effects. It is also mentioned that administration of Gestamine in combination with bed rest can prevent the threatened abortion in early pregnancy or stop threatened premature labour. It is also mentioned that there are no contraindications. With regard to Leptadine, it is mentioned that it is given in threatened abortion and allied. conditions. It helps pregnancy to proceed to full tem. Therefore, the literature shows

that both these medicines, though they are Ayurvedic preparations, are prescribed in the cases of threatened abortions and premature labour. As is evident from the record, which shows there was spotting, which means that abortion can take place, these medicines were given by doctors. There is nothing on record to show that these medicines had any adverse effects on the pregnancy and these medicines were in any way responsible for the condition, which developed when the patient died. Thus, from the records it is clear that the administration of Ayurvedic medicines and Lasix was made by the doctors on account of the peculiar condition of the patient and not otherwise. The symptoms existed and these medicines were indicated on the symptoms present in the deceased and as a matter of fact the Ayurvedic preparations had prevented the abortion and the spotting was also cured. It is for the doctors to see on the basis of clinical examination and the pathological reports received as to which medicine is to be administered. In the present case, the complainant has failed to show that the medicines prescribed or administered by opposite party No.1 was in any way responsible for the death of the patient. [ Shiv Gopal v. Dr. (Smt.) Sudha Gupta & Anr. , 2000 (1) CPR 243 (UP SCDRC)]

13-49.55 Obstetrics/Gynaecology-Sonography report-Intra-uterine foetal death-Subsequent conception and delivery-Factum of abortion suppressed- Report not wrong, no deficiency in service-The complainant, husband claimed compensation for deficiency in service by opposite party in allegedly giving wrong sonography report dated 13.6.1995 of the pregnancy of his wife wherein the conclusion was Intra-uterine Foetal Death, sonographic age according to femur length is 13 weeks of gestation. It was averred that on this report the opposite party advised immediately to get his wife aborted, but she did not undergo abortion and got her examined by other doctors. Report dated 11.10.199 5 spoke of pregnancy of 10-12 weeks. The complain- ant's wife delivered a child on 2.1.1998. Held: Sonography report speaks of the pregnancy of 10-12 weeks. This itself suggests that after abortion, the complainant's wife conceived again. There is no explanation on behalf of the complainant as to how the pregnancy of 10-12 weeks is written by doctor. It is a well-known fact that when a pregnant lady consults a Gynaecologist, she gives the correct information about her conceivement or pregnancy. In view of Exhibit C-4, it is evidently clear that it was the pregnancy after abortion. The fact of abortion has been suppressed by the complainant. The wife of the complainant has not filed her affidavit nor appeared in witness box to speak the truth about her past disease of vesicular mole and of abortion and delivery of the baby whether it was of first pregnancy or second pregnancy after abortion. Taking all circumstances together and the fact that the complainant has not filed any affidavit of his wife or of the doctors who have treated her during pregnancy and of the Assistant Surgeon who gave certificate, it is difficult to come to a conclusion that the sonography report dated 13.6.1995 was incorrect and, therefore, there was deficiency in services on the part of the opposite party No.1. [MalkhanSinghv. ModernX-raySonography& Photo Centre, 2000 (2) CPJ441 : 2000 (3) CPR 60 (MP SCDRC)]

13-49.56 Obstetrics/Gynaecology-False representation as doctor-ANM, acting as qualified medical practitioner, handling complicated delivery case, manages delivery of dead foetus-Death of patient due to DIC coagulation failure out of intra-uterine death-Negligence held-Compensation of Rs. 2 lac together with Rs. 10,000 as costs awarded-The opposite party, an Auxiliary Nurse and Midwife (ANM) but wrongly representing her qualification as M.B.B.S., undertook a complicated delivery case of the complainant's deceased wife who was actually lodging a dead foetus in her womb at the time of admission. Concealing the fact that she was not a qualified doctor, she administered medicines and managed complicated delivery case where the child had died in the womb. Held: As the opposite party was not qualified doctor, she should not have accepted the case at the outset. The plea of the opposite party that on 23.8.1997, on examination of the deceased, it was found that cervix was fully dilated, excessive bleeding was taking place and foetal head was showing, in this emergency condition the wife of the complainant was immediately rushed to the operation theatre without any loss of time and after some necessary tests and getting consent of the complainant, the opposite party managed the delivery of a dead female foetus who was badly macerated and oedematous, is not acceptable as the opposite party was not qualified doctor and her treatment under the circumstances endangered the life of the patient, i.e., the wife of the complainant. Another plea that neither any surgical intervention was required nor was given as the child had started coming out on its own without requiring surgical intervention is also not acceptable as the case sheet shows stitches on the patient have been done by the opposite party .This alone falsifies the version of the opposite party that no surgical intervention was required. Stitches show that the surgical intervention was done for the delivery of the dead child and the surgical instruments were used. The version of tile complainant is true that opposite party being an Auxiliary Nurse and Midwife was not qualified to attend the patient in such a situation without summoning the medical aid from the qualified doctor and she was to take care of the patient till the medical aid was provided by the qualified doctor. The opposite party was not justified in keeping the patient in the hospital to manage delivery of the dead foetus, more particularly when there was prolonged labour pain, which was worsening the condition of the patient. She was discharged from the hospital at 7.00 p.m. on 23.8.1997 and referred the case for medical specialist, for further treatment. The complainant took his patient-wife to Dr. Sharanjit's Nursing Home where as per Dr. H.K. Eedi's report, the pulse and E.P. of the patient was not recordable and she was declared dead at 9.00 p.m. the same day. Dr. H.K. Eedi informed the complainant that the patient should have been operated upon by a team of surgeons consisting of at least five doctors. The cause of death as recorded is DIC 'coagulation failure' due to intra-uterine death.

The Commission held that the opposite party was guilty of rendering deficiency in service. Compensation of Rs. 2 lac together with Rs. 10,000 as costs awarded. [Dilbagh Hussain v. HarjinderKaur, 2000 (3) CPJ 17: 2000(3) CPR 467 (Punj. SCDRC)]

13-49.57 Obstetrics/Gynaecology-Caesarean section-No specific act of negligence averred in complaint nor expert evidence produced-Death of patient-No negligence-The Doctor was always available for examination and treatment of the patient. The opposite party-1 responded to the call of the patient every time and tried his level best to save the life of deceased. He requisitioned the services of one renowned gynaecologist of the locality and other expert doctors when the condition of the patient deteriorated. All these doctors approved of the treatment prescribed by the attending doctors. There was consultation and the serious condition of the patient was disclosed to the complainant party. It appears that on the advice of Dr. S of Calcutta who had earlier treated the patient, the latter was taken to Calcutta for better treatment and management. The complainants have not produced any expert witness to tell to testify that because of negligence on the part of the opposite party the unfortunate incident occurred. In view of these facts and circumstances, it is difficult to hold that there was negligence on the part of the doctor in the matter of treatment of the patient. [Prasanta Kumar Chakarbortyv. Dr. Jahar Dabnath, 2000 (3) CPJ 91 (WE SCDRC)]

13-49.58 Obstetrics/Gynaecology-Circulatory collapse-Death of mother and foetus in womb-Failure to requisition additional expert and anaesthetist-Negligence held-Rs. 2.51ac awarded as compensation on account of mental agony and suffering caused to family of deceased-Opposite party's cross-examination or affidavits or labour room notes do not bring out the presence of the doctor, sister-in-law of the deceased, in the labour room whereas the latter has categorically stated that she was not allowed into the labour room. Although the deceased was admitted at 3.00 p.m. on 1.6.1990, there does not seem to have been requisite sense of urgency and alacrity on the part of the opposite party in organising the management of the case given the complications of IUD and toxemia of pregnancy. By her admission, opposite party had another operation on hand at 4.00 p.m. that day which would have consumed some of her time. The failure on the part of opposite party in not requisitioning the services of additional expert Gynaecologists and anaesthetist immediately after admission of the patient and not arranging for prior availability of blood supply cannot be brushed aside as not having contributed to the maternal death in the case. Prompt replacement of appropriate blood would have helped to revive the patient. There was carelessness and medical negligence and, therefore, deficiency in service on the part of opposite party in the management of the case of the deceased. As for compensation to be awarded, the complainant has claimed damages and compensation including costs of Rs. 7,47,600/-. It is question of irreparable loss of a mother for two daughters at their very young age. In the facts and circumstances of the case, opposite party is directed to pay a compensation of Rs. 2.51ac to the complainant on account of mental agony and suffering caused to the family of the deceased. Opposite party has also to pay to the complainant cost of Rs. 5,000/-. [Vijay H. Mankar v. Dr: (Mrs.) Mangla Bansod & Ors., 2000 (1) CPJ 37 (NCDRC)]

13-49.59 Obstetrics/Gynaecology-Sterilization-Medical Termination of Pregnancy-Failure of first operation but second operation successful-Compensation of Rs. 5,000/- and cost of Rs. 500/- awarded-The complainant approached the appellant for medical termination of pregnancy (MTP) within 5 to 6 weeks after she became pregnant and the opposite party purported to perform MTP on her. But on subsequent trans-abdominal scan and endovaginal scan at ISMIT Diagnostics it was revealed that the foetus was intact and that it was continuing to grow. The complainant thereafter approached another doctor and got abortion  successfully performed by her on 18.7.1997. Having satisfied that there was deficiency in service on the part of the appellant, the District Forum awarded compensation of Rs. 8,000 and also medical charges of Rs. 850 for the second abortion. On appeal, to the State Commission, held: The award of Rs. 500/- per day for 16 days is not a reasonable way of assessing the compensation for trauma, mental agony and physical pain suffered by the complainant. The compensation is for the failure of the abortion conducted by the appellant because of which the complainant who was desirous of having MTP effected had to undergo the operation for a second time. Under the circumstances the complainant can have only one set of charges, which she had to pay extra for having abortion effect on her. It would suffice if the appellant is required to pay back the medical charges incurred by the complainant for the unsuccessful MTP operation performed by her, i.e., of Rs. 1,200/-. She need not be required to pay the further sum of Rs. 850/- paid by the complainant for having MTP (wanted by her) effected successfully. A consolidated compensation of Rs. 5,000/- would be adequate for the deficiency in service on the part of the appellant and the consequent mental agony and suffering undergone by her for having an MTP

operation performed on her a second time. The complainant shall also have Rs. 5001- towards costs of this appeal to paid by the appellant. [Dr. N. Lalitha Krishna v. Mrs. Deepa Nair, 2000 (1) CPJ 340: 2000(2) CPR 469: 2001 CCJ 1286 (AP SCDRC)]

13-49.60 Obstetrics/Gynaecology-Lower Segment Caesarean Operation- Sponge left in abdomen-No scanning, X-ray or needle test advised-Removal of sponge by another surgery-Negligence held-The complainant had undergone caesarean operation in OP's hospital giving birth to two babies, and she got tubectomy also done the same day. She visited the OP for follow up check up and complained of pain in abdomen for which she was advised for medicines and short wave diathermy (S. W .D. ). As her condition did not show any sign of improvement, she consulted another doctor, who advised scanning, X-ray and needle test, and on the basis of these tests she had to undergo another operation, i.e., exploratory laparotomy and on exploration, sponge was removed from the peritoneal cavity.

Held: The complainant's tale of agony and misery started after the caesarean operation only. She visited the clinic of the respondent No.1 for postoperative check up. Her misery became double folded when she underwent 'short wave diathermy'. Instead of exercising a reasonable degree of skill, care and knowledge, the doctor advised only few pain killers and rest. She should have taken postoperative care of her patient and should have suggested scanning, X-ray or needle test. As per the complainant's version, on her visits after the caesarean operation, respondent No.1 did not examine her physically. Had she been careful, she should have diagnosed the 'mass' which was clearly palpable on touching, according to the complainant. According to the counsel of the respondent No.1, she is a well-qualified P.G.I. (Gold Medalist) Physician but in spite of these qualifications, it is proved on record that she had not taken much of care which a doctor of ordinary skill should have taken. A doctor owes certain duties which must be performed in a reasonable manner and with due care and caution. Had she been cautious about the complaint of pain by the complainant, she could have gone to the root cause of the suffering of the complainant. If a doctor does not act prudently with care, as the respondent No.1 has done in the present case, the complainant becomes entitled to the damages done on account of her negligence and carelessness. [ Harvinder Kaur v. Dr. (Mrs.) Sushma Chawla & Anr., 2001 (3) CPJ 143 (Punj. SCDRC)]

13-49.61 Obstetrics/Gynaecology-Termination of pregnancy-Doctors holding a qualification in practising in medicine known as GCIM, not having specialisation in surgical procedures-Case not one of immediate danger to life of patient and there was enough time to reach patient to appropriate centre for surgical procedure-Removal of dead foetus from uterus and ultimate death of patient- Negligence, held-Rs. 2,01,000 awarded as compensation-{Dr. K. Mahabala Bhat v. K. Krishna, 2001 (3) CPR 137 (NCDRC)]

13-49.62 Obstetrics/Gynaecology-Medical termination of pregnancy-Removal of uterus consequent upon ectopic pregnancy in cervical canal-High risk patient-Removal of uterus to save life-Hysterectomy performed to stop excessive bleeding, an accepted procedure-Non-performance of ultrasonography of no consequence-Failure to send uterus and products of conception for histo pathological examination, not negligence where no signs of cancer suspected-A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice, merely because there is a body of opinion that takes a contrary view will not make him liable for negligence. In the present case, though large amount of medical literature had been placed and expert evidence had been put forth before the Commission to indicate the ultra-sonography would not have established ectopic pregnancy, some text books indicate that it was possible to identify such problem. But when two views even if possible, the general practice in the area in which the respondents practised such procedure was not followed and therefore, no negligence can be attributed to the respondents on that ground. Even assuming for a moment that the uterus had not been sent for histopathological examination after surgery , it would not have helped the case of the appellant in any manner because that would not have established in any manner negligence on the part of the respondents in the course of the surgical procedure adopted in the case of the appellant. If there was a suspicion of cancer, there would have been some manifestation of the same and, in such a circumstance, histopathological examination would have been done to rule out the possibility of cancer. However, there was no complaint of any kind of cancer nor was there any such visible proof of the same. The stand of the respondents is that the case of the appellant was one of a normal trophoblast getting implanted in the upper-most part of cervix and, in such cases, the question of her having carcinoma could not arise. In these circumstances, it cannot be said that the failure to send the uterus and the products of conception after surgery for histopathological examination has resulted in any negligence on the part of the respondents. (Vinitha Ashok v. Lakshmi Hospital, 2001 (8) SCC 731: 2002 (1) CPJ 4 (SC)]

1349.63 Obstetrics/Gynaecology-Male child born but female child given, alleged-Female baby handed over immediately after delivery-Discharge certificate mentioning male child earlier changed to female-Objection of complainant for DNA test of child and mother-Clerical mistake in the certificate, no deficiency in service- The complainant alleged that in the beginning it was written in the discharge certificate that a living male child had been received which was later on changed to female baby, by adding 'fe' before the word 'male' and this amounted to forgery committed by the hospital authorities, hence deficiency in service by making these manipulations and not delivering the male child to the complainant. In an application moved by the opposite party it was mentioned that a female child was born to the wife of the complainant and the only test which can prove this fact was DNA test of the female child in question and her mother. Against this, the complainant alleged that DNA test is done only in those cases where it is to be found as to whether a particular child belongs to which of the couple, and that at the time of handing over the child after delivery, the other child also would have been produced, then the DNA test would have helped. Held: The objection which has been raised by the complainant to the DNA test is not understandable. The DNA test was required to be conducted in order to determine whether the child, the delivery of which was made by the hospital authorities to the complainant, was born to the wife of the complainant or not. There is no question of producing the other child for the DNA test. Had the DNA test been conducted it would have conclusively proved whether the child was born to the complainant or not. There is no other definite way to prove this fact other than the DNA test. Non-concurrence of complainant for conducting DNA test of the child and his mother (wife of complainant)~ raises a presumption against the case of the complainant. Much stress has been made on the original discharge certificate issued by the hospital. authorities in which the word 'male' has been given before the word 'child', On the basis of this discharge certificate alone it cannot be said that the child born to the complainant's wife was a male child, especially when all the papers on record indicate >that a female child was handed over to the mother of the complainant immediately after the delivery .Thus, it can be said to be a mistake on the part of the officials who issued this certificate.

Thus, on the basis of evidence, the case of the complainant has not been proved the fact that a male child was born to his wife and a female child was handed over to his wife. There is no deficiency on the part of the opposite party. [Manish Agarwal v. Administrator, Kamla Nehru Memorial Hospital, 2001 (1) CPJ 42 (UP SCDRC)]

13-49.64 Obstetrics/Gynaecology-Delay in inducing labour pain-Birth asphyxia due to swallowing amniotic fluid mixed with meconium-Coloured vaginal discharge, is of Candida albicans-No negligence in not inducting labour pain and conducting delivery-Once the membranes were ruptured the entire amniotic fluid will gush out and the whole sac is emptied in no time. In other words, the entire amniotic fluid comes out and no part of the fluid stays back after rupture of membranes. Hence, the greenish discharge noticed on the baby cannot be meconium. The first opposite party on examination diagnosed as 'Mionilial Vulvovaginitis' a common infection affecting pregnant woman by a fungus, candida albicans and not meconium.

' The discharge complained of is candida albicans as diagnosed by the first opposite party. 25% of the pregnant women approaching term may develop this problem which probably does not require any treatment as it usually subsides at the end of gestation. Therefore, no negligence can be attributed to the first opposite party in this regard. [ Smt. P. Venkata Lakshmi v. Dr. Y. Savitha Devi & Ors., 2001 (3) CPJ 402 (AP SCDRC)]1

13-49.65 Obstetrics/Gynaecology-Removal of ovarian cyst-Complainant who was passing urine normally before operation, unable to pass urine without use of catheter after operation-Expert opined that the complainant had post-operative retention of urine as bladder was not contracting-Principle of res ipsa loquitur applied -Negligence held-Compensation of Rs. 35,000/- awarded by the District Forum upheld-ln this case both the operative notes as well as the tests conducted before operation were withheld from filing before the District Forum. The inference is obvious. Had they been filed they would run counter to the claim of the opposite party . Without examining the cause of distended bladder proceeding to remove ovarian cyst in our opinion is certainly a deficiency. Opening abdomen for removal of the cyst alone without finding the cause for distended bladder amounts to deficiency in service. The complainant was not told that she would have to run with catheter throughout her life and her consent was not taken. The complainant who was passing urine normally till the time of taking to the operation theatre comes out with catheter. There is no satisfactory explanation forthcoming from the appellant for this situation. As report of the medical board clearly shows that this is a post-operative problem the principle of res ipsa loquitur clearly applies to this case and there is no explanation worthy of acceptance coming from the appellant that the complainant was having this problem even before the operation. There is no iota of evidence supporting the version of the appellant. The learned counsel for the appellant contends that the evidence of R. W. 2 shows that there is no possibility of urinary problem if the cyst is removed. This evidence in our view cannot dwindle the effect of Ex. A-24 -report of the medical board, coupled with the

1. On appeal to the National Commission the matter was remanded back to the State Commission for cons the medical literature produced by the complainant as it was neither referred to nor considered by the State Commission while dismissing the complaint whereas the medical literature produced by the O Ps was referred to and dismissal of cornplaint based on such literature alone was not held proper. [Smt. P. Venkata Lakshmi v. Dr. I': Savitha Devi & Ors., 2003 (5) CLD 207 (NCDRC)]

evidence of P. w, 3. The overwhelming evidence and the circumstances clearly point out that there is negligence on the part of the opposite party in conducting the surgery which alone is responsible for the situation in which the complainant was placed, As such there is deficiency of service on the part of the appellant/opposite party in the C,D. Compensation of Rs. 35,000/- awarded by the District Forum upheld. [Dr. Machineni Rama Rao v. D. Padmavathi @ Padma Sree, 2002 (1) CPJ 380 (AP SCDRC)]

13-49.66 >Obstetrics/Gynaecology-Caesarean operation-Foreign body (old retained sponge) left inside body system of complainant and her condition deteriorated affecting vital organs-When her condition worsened she was taken to Medical College Hospital where she was operated again and the foreign body was removed-Between the date of operation by in OP Hospital and the date of operation in the Medical College Hospital she had undergone no other surgery- Therefore, the leaving of the foreign body was due to negligence of the OP Hospital and its doctors who performed the first surgery-Compensation of Rs. 2 lac awarded for the suffering, loss and mental agony of the complainant, together with costs of litigation Rs. lO,OOO/--The sponge was left negligently in abdominal cavity of the complainant during the operation performed by the opposite parties which endangered the life of the complainant. After the operation, the condition of the complainant deteriorated, She developed constant vomiting and pains. She felt that something had been left in her abdomen at the time of operation. There was no improvement though the opposite parties assured her that she would be alright after some days. On 7.1,1998 the stitches were removed and the complainant was discharged from the hospital by the opposite parties. Even at the time of discharge she was suffering from pain in the abdomen, the complainant suffered vomiting everyday. Eventually, it developed continuous discharge of the pus from sinus of the complainant. The complainant remained under treatment with the opposite parties up to 22.1.1998 when she was asked to consult from other surgeon to drain the probable sinus. On 6.4.1998 she was admitted in the Dayanand Medical College and Hospital, Ludhiana where she was operated upon. During the operation the sinus was explored, a foreign boy (old retained sponge) was found as per report of the doctors operating upon the complainant in the Dayanand Medical College and Hospital. There was no operation in between 26.12.1997 and 6.4.1998. On 26.12.1997 the Caesarean operation was performed by the opposite parties. On 6.4.1998 during the operation in the Dayanand Medical College, old retained sponge was found by the doctors of the D.M.C. Apparently the old retained sponge was that of the opposite parties. The vital organ in the body remained disturbed ever since she was relieved from the hospital of the opposite parties. In the circumstances, it is assumed that the sponge was left in the process of Caesarean operation for the delivery of the child by the opposite parties which could cause damage to other organs. Thus, opposite parties were held guilty of negligence and ipse dixit of the complaint accepted. Compensation of Rs. 2 lac awarded for the suffering, loss and mental agony of the complainant, together with costs of litigation Rs. 10,000/- [Meena Vyas v. City Nursing Home and Hospital and another, 2002 CCJ 1537 (Punj. SCDRC)]

13-49.67 Obstetrics/Gynaecology-Tort-Delivery case-Patient giving birth to a child but she started bleeding-Duty doctor, OP-l removing her to operation theatre, but no Anaesthetist available-Proposal to administer oral ether dropped as the patient suffering from Asthma-Patient referred to Medical College Hospital, wherein after operation for removal of uterus the patient died of excessive bleeding-Complaint alleging negligence and delay in referring to Medical College by OP- 1-Without assistance of an Anaesthetist operation could not be done- Reference to Medical College Hospital where all facilities available-OP-1 not negligent as when she left the hospital after delivery the mother and child not in a bad condition-OP-1 not guilty of negligence or delay-The first defendant called Dr. M who advised that without a qualified Anaesthetist, the operation cannot be carried on. In such circumstances, the first defendant cannot be said to be negligent. The first defendant took a decision to refer the patient to the Medical College Hospital, where all the conveniences were available. The person cannot be blamed because latter took a decision that the patient can be operated more safely in a hospital having better convenience. One cannot say that this decision was wrong. Then the other question is regarding the delay. Nothing has been stated to show that the death was due to the delay. It is true that there was bleeding. But evidence shows that at the time when the patient was discharged from the Women and Children Hospital, her condition was not bad. Whatever that may be, unless there is definite evidence to show that the death was due to the delay of the first defendant cannot be mulcted with the negligence. Hence, the negligence on the first defendant has not been proved. [ Leela Bai v. Sebastian and Ors., 2002 (2) CPJ 363 (Ker.-HC) (DB)]

13-49.68 Obstetrics/Gynaecology-Delivery case in a Government Hospital- Negligence-Tort-Vicarious liability of State-Excessive bleeding after giving birth to a child and emergency surgery required could not be performed in time due to non-availability of doctor or anaesthetist resulting in death of patient-State vicariously liable for compensation awarded by the Court-Compensation of Rs. 1,37,500/- awarded by lower court upheld-lt is submitted that even if the first defendant cannot be said to be negligent, the conditions that existed in Women and Children Hospital and the non-explanation of the cause of death by the Medical College Hospital Authorities show that there was negligence on the part of the second defendant-State of Kerala and it has now come out in evidence that there was a permanent Anaesthetist in the Women and Children Hospital. It has also come out in evidence that at the relevant time no other Anaesthetist was available. The evidence discloses that there is a rule that Anaesthetist should be available within a particular radius. It seems that on that particular day, he was in Cherthala. This is in violation of the rules. It is the duty of the Authorities under the second defendant to see that its employees are available in time in the hospital. If for any reason, a doctor or an expert is not available, the Hospital Authorities would have known it before hand and some other persons should be posted. Here is a case where absence of an Anaesthetist prevented the surgeons in the Women and Children Hospital to conduct operation on the patient. But there is every possibility that the Anaesthetist was available and the operation had been conducted early, probably, the patient would have been saved. So also the Medical College Hospital doctors have not disclosed the cause of death. The patient died within hours and after the operation the patient did not regain consciousness. Inside the operation theatre, admission is restricted to the doctors, nurses and hospital staff. It is their duty to disclose the cause of death of the patient. Government Pleader submitted that the hospital is not vicariously liable and if the plaintiffs cannot prove that any particular doctor was negligent, then the liability cannot be mulcted on the State. There are two answers to it. First, the burden is on the second defendant to prove that there was no negligence on the part of the doctors after the operation in the Medical College Hospital. This has not been discharged. It is true that the plaintiff proceeded on the basis that the first defendant was negligent. But that does not mean that second defendant can keep quiet and not

disclose to the court the true cause for the death. The other aspect is, in many of the cases, there has been a tendency to treat the question of a hospital authority's liability not as one of vicarious liability only but also as one of the primary liability of the authority for breach of its own duty to the patient. In many cases, a patient who approaches the hospital does not know the doctors. He/she approaches that hospital because of the reputation of the hospital. Here, the primary responsibility of the Hospital Authorities is to see that there is no negligence on its part or on the part of its officers. The non-providing of a doctor or anaesthetist or an assistant is essentially a lapse on the part of the Hospital Authorities and hence, the hospital is negligent. Hence, the second defendant-State of Kerala is liable. The Court below has awarded a total compensation of Rs. 1,37,750/-. The High Court was satisfied that the amount awarded was proper. From the total amount of Rs. 1,37,750/-, the first plaintiff-father is entitled to get Rs. 69,750/- with interest at 6% per annum from the date of decree of the Trial Court, i.e., 22.12.1993 till date of realisation and the second plaintiff-daughter is entitled to get a compensation of Rs. 68,000/- with interest at 6% per annum from the date of decree, i.e., 22.12.1993 till the date of realisation. [Leela Bai v. Sebastian and Ors., 2002 (2) CPJ 363 (Ker.-HC) (DB)]

13-49.69 Obstetrics/Gynaecology-Twin pregnancy-Doctor-OP-l applying forceps-Male child dies and female child survived-Allegation that OP-l applied 6~ forceps without any anaesthesia to facilitate delivery in a negligent way that resulted in death of male baby-It was also alleged that as OP-l refused to treat complainant for her body pain due to long episiotomy with secondary PPH she was taken to another doctor M who attributed all the post-delivery complications to negligence and carelessness of OP-I-District Forum holding OP-l negligent, liable to pay compensation-Complainant failed to substantiate allegations of Dr. M-No evidence to show wrong treatment by OP-l resulting in death of the child-Judgment of District Forum unsustainable-Upon U.S.G. test it was ascertained that complainant was carrying twin babies. Doctor advised her complete rest and prescribed some medicines. When the labour pain started she was admitted in Bolpur Sub-Divisional Hospital in a paying bed on 31.8.1999 under the medical care of O PNo. 1.. It has been alleged that the doctor OP-1 applied forceps without any anaesthesia to facilitate delivery in a most negligent way so much so that the male child died instantaneously and the other female child survived, she was detained in the said hospital up to 4.9.1999 when she was discharged abruptly though she was not fit to be discharged. Coming home she felt pain in her body due to long episiotomy with secondary P .P .H. So she again approached the doctor for treatment but the latter refused to treat her further.

13-49.70 Obstetrics/Gynaecology-Caesarean operation-Complainant noticing slight involuntary frequent passage of urine-When the leakage increased immensely, got readmitted in the Nursing Home of opposite parties, a catheter inserted in vaginal parts which fact was not informed to her and got discharged- When the situation worsened a second opinion was sought wherein she was diagnosed to have a hole in the urinary bladder called Utero-Vesical Fistula (UVF) -Complainant had to undergo another surgery at another hospital having been diagnosed with UVF under cystoscopy-O Ps well qualified and experienced-De- livery uneventful and patient having no problems-Nothing on record to show any causal link between the operation performed on 14.6.1996 and UVF diagnosed in January 1997-No negligence-lt is not contended that Respondents 2 and 3 were not qualified, did not have experience. Complainant had been going there from first pregnancy-two MTPs and then for the second delivery. Record does bear that the delivery was uneventful and complainant discharged with no problems. The Respon- dents were qualified professionals who offered to render service to the complainant.

All the material on record brings out the fact that the Respondent took due care. There is no proof that the respondent did not act with due care. Record showed second delivery was uneventful, discharged in normal condition. No case of medical negligence is made out. Other Hospitals suspected U. V. Fistula but not followed it up with any specific advice; confirmed only after six months in January, 1997; and when there is nothing on record to link development of U.V. Fistula with surgery on 14.6.1996, all this goes on to show what the expert opinion says, it can happen in the case of repeat (and not repeated -as the complainant would like us to understand) caesarean operation for delivery. This perhaps was the case here. Medical literature and expert opinion on record does not support the case of the complainant. Thus, the complainant has failed to prove her case and has been rightly dismissed by the State Commission. [Beena Garg v. Kailash Nursing Home, 2002 (3) CPR 254: 2002 (3) CPJ 99 (NCDRC)]

13-49.71 Obstetrics/Gynaecology- Tort-Medical negligence in a hospital of Government undertaking-Patient operated for hysterectomy been transfused blood of her brother-donor-Donor's blood not screened for HIV -Patient becoming HIV Positive-Later her husband's blood on test found to be HIV Negative, but that of the donor, Positive-Invoking the doctrine of constitutional tort, compensation of Rs. 1,00,000 awarded to be paid by the hospital management towards medical expenses of the victim by way of public remedy, independent of any damages or compensation that may be awarded by the civil court for alleged tortious liability-Primafacie, the victim has suffered owing to negligence on the part of the medical and paramedical staff of the hospital of the company. The company itself has disclosed that out of the workforce of one lakh about one thousand workers have been tested HIV+ve and keeping in view the fact that other family members might have been infected, the modest estimate, according to the company itself, would be about three thousand. In a grave situation of this nature prevalent in the area, it was incumbent upon the medical and paramedical staff of the hospital of the company to carry on the requisite tests on the victim for detecting the AIDS at the time when the blood was transfused for hysterectomy operation. Furthermore, no tests were conducted on her at the subsequent stages also. It is really astonishing that if the hospital in Hyderabad could find out that the victim was suffering from AIDS, the hospital of the company which is stated to be equipped with all modern facilities including the equipment to test AIDS, could not do so. Having regard to the peculiar facts and circumstances of the case, particularly, the negligence on the part of the medical and paramedical staff of the hospital of the company in conducting tests on the victim at the appropriate stages, the petitioner is entitled to some reasonable amount of compensation to meet the costs incurred by her for medical expenses in this public law remedy. The respondent company is directed to pay a sum of Rs. 1,00,000 to the victim by way of compensation in this public law remedy to meet the costs incurred by her towards medical expenses. This compensation is in addition to the special and general damages that mayor may not be granted to the petitioner by the appropriate civil court for the alleged tortious liability for negligence, in accordance with law. [M. Vijaya v. Chairman and Managing Director. Singareni Collieries Co. Ltd. & Ors., 2002 ACJ 32 (AP-HC)]

13-49.72 Obstetrics/Gynaecology-Caesarean operation-Surgery performed without necessity-Patient bleeding profusely needing blood transfusion-No blood of patient's group nor oxygen cylinders in the Nursing Home-Persons having same blood group searched and blood arranged by complainant, and oxygen cylinder brought from another clinic-Doctors failing to control bleeding-Patient remained in operation theatre for 7 h6urs and taken to government hospital but died en route-Negligence held-Award of Rs. 99,000 as compensation upheld-The complainant's wife underwent caesarean operation at opposite party hospital where she developed complications with continuous bleeding. The operation was performed at about 5.15 P.M. and blood pressure was monitored. As per statement of the complainant both Doctors were inside the operation theatre for about 7 hours. After operation, the complainant was told to arrange the blood. Dr. S asked him to bring some one who was having matching blood group. The two persons were called who were of B+ve blood group. Blood was collected from both these persons and was given to the patient. But there was so much bleeding that two bottles of blood was not sufficient and the condition of his wife deteriorated. Then government Doctor was consulted who on examination stated that the patient should be immediately shifted to big hospital because blood pressure and pulse were going down. On this it was decided to take the patient to Government Hospital. Hoshangabad. When the patient was being taken to the Government Hospital she died in between. The complainant's case is that the operation was conducted by the Doctors without necessary arrangement and tests. As there was excessive bleeding so need of transfusion of blood arose. Blood was not available so persons having B+ve blood were searched and the blood was arranged, this took much more time. It was alleged that for 7 hours patient was in operation theatre. The District Forum has analysed these points and reached the conclusion that opposite party-doctors have not taken proper steps and not made arrangements when they decided to conduct Caesarean operation. So much so the oxygen cylinder was not in the hospital and when the need arose, it was brought from the clinic of Dr. B The doctors have not acted with due care and diligence which ordinary doctors should have adopted. Therefore, the District Forum was right in recording the finding that opposite party-doctors were equally responsible or guilty of medical negligence. In the circumstances the District Forum rightly awarded a compensation of Rs. 99,000/- to be paid by both the opposite party-doctors jointly or severally. [(Dr.) Urmila Upadhyay Gynaecologist Surgeon v. Anjani Kumar Pandey, 2002 (3) CPR 240 (MP SCDRC)]

13-49.73 >Obstetrics/Gynaecology-Termination of pregnancy-Petitioners practising medicine known as GCIM having no specialisation in surgical procedures though they could resort to such procedures in extreme urgency-Patient not in a condition of her life being in imminent dangers Petitioners having found that the patient carrying a dead foetus performed surgery resulting in her death- State Commission awarding Rs. 2,01,000/- as compensation-No interference called for by National Commission-National Commission also gave direction for apportionment of the amount among survivors of deceased-Wife of the respondent consulted the petitioners for termination of pregnancy. On the same date she was admitted in their Nursing Home when the petitioners found that she was carrying a dead foetus. The questions whether they could resort to surgical procedure in which they were not specialised, were duly considered and after due consideration, it has been found that even if they could take up such a matter in extreme urgency but they should not have done so in the present case because the patient was not in a situation where there was an immediate danger to the life of the patient and there was enough time to reach the patient to an appropriate centre for such a surgical procedure. The petitioners resorted to these procedures and as a consequence thereof, the life of the deceased was lost. The State Commission awarded Rs. 2,01,000 as compensation.

Held: >There is no jurisdictional error or any other ground which calls for interference under section 21 (b) of the Consumer Protection Act. The compensation which has been awarded by the State Commission is quite fair. The deceased has been survived by her seven children. Four out of those seven are minors. Therefore, the National Commission directed that the proportionate amount will be invested in the name of said minors for the period of their minority, in fixed deposit accounts and the balance amount shall be paid over to husband and the adult children of the deceased. [(Dr.) K. Mahabala Bhatt & Anr. v. K. Krishna, 2002 (2) CPJ 127 (NCDRC)]

13-49.74 Obstetrics/Gynaecology-Abdominal hysterectomy-Surgical pack left inside abdomen while closing wound-Tort-Patient suffering severe pain, consulting another doctor who on X-ray found some foreign object in the body of the patient-On correctional operation the foreign body removed was a surgical pad firmly adhered to the small intestinal loops as deposed by the doctor who performed the second operation-Surgeon conducting first operation held negligent-Doctrine of res ipsa loquitur applies-Negligence held-Rs. 5,80,000/- awarded as damages- The foreign object found inside the abdomen, namely, the abdominal pack, has been removed physically which has been spoken to by PW3 who did the second correctional operation. She has also spoken to the fact that after the foreign object was taken out, it was shown to the husband of PW 1, namely PW 2 and he was allowed to take a photograph of the same, which is shown in Exh. A-2. The oral evidence of PW 3 has been substantiated by her report, Exh. A-5 skiagrams and other records. So, the fact that abdominal pack was left behind in the abdominal region of the plaintiff due to her operation in Apollo Hospitals has been proved by the evidence of PWs 1 to 3 arid this has been also corroborated by records. PW 3 as a doctor who has done the second operation has absolutely no reason to swear falsely. In fact she being a qualified surgeon admitted that leaving of a foreign object like abdominal pack during the course of operation and closing the wound is an act of negligence. The evidence adduced by the plaintiff has conclusively established that an abdominal pack was left behind in the abdominal region at the time of operation done by the defendant No.3 in the hospital of the defendant No.1 and this was only an act of negligence and due to want of sufficient care and caution in conducting the operation which is expected of a surgeon like the defendant No.3. So, there can be no escape for the defendant Nos. 1 and 3 and they must be made answerable to the suffering and pain undergone by the plaintiff due to carelessness and negligence of the defendant No.3, while doing the operation in the hospital of the defendant No.1. The doctrine res ipsa loquitur fjquarely applies to the facts of the present case. Therefore, the defendant Nos. 1 to 3 must be held liable for the damages suffered by the plaintiff which was only due to negligence on the part of the defendant No.3 and the operation was done at the hospital of the defendant No.1. Damages (compensation) of Rs. 5,80,000/- (Rs. 80,000/- as special damages and Rs. 5,00,000/ -as damages for pain, suffering and mental agony undergone) awarded against defendant No.l-hospital. [Aparna Dutta v. Apollo Hospitals Enterprises Ltd. , 2002 ACJ 954 (Mad.-HC)]

13-49.75 Obstetrics/Gynaecology-Caesarean operation-Case one of post- dated delivery-Patient complaining less foetal movement and non-stress test (NST) report revealing foetal distress-Emergency operation by OP-2 surgeon with other doctors after obtaining consent of patient's father-But after operation her condition deteriorated and died-No bleeding from operation site nor through Ryle's Tube-Bleeding from mouth or nose not indicative of improper treatment-Depositions of OP-doctors and their affidavits as to the condition of the deceased and the line of treatment given un rebutted-There is an independent second opinion of another doctor who personally visited the patient agreeing with the treatment given by the OPs-OPs not be held negligent in treating the patient- As per complainant's own case, 'the patient' was advised not to come to the hospital (OP No.1) till the labour pains started. The very fact that the patient came to the hospital (OP No.1) on a non-OPD day is enough proof that when she came to the hospital on 12th April, 1993 she was not in normal state of health and had problems, more particularly relating to foetal movements. Keeping in view the condition of the patient and the complaint made by her, the patient was shifted to labour room and a message was sent to (OP No.2), who reached the hospital immediately and after examining her informed the relatives about the requirement to do ARM. The doctors in the Labour Room of hospital (OP No.1), without wasting any time, examined the patient and as the case was a case of post-dated pregnancy and the patient was also complaining of less foetal movement, the patient was put on Non- Stress Test (NST), to check the condition of the baby in the womb. It is contended on behalf of the complainants that the NST report was normal, which is not factually correct because the NST report revealed foetal distress (slow foetal heart). (OP No.2) examined the NST report, explained the position to the patient and her family members and asked the patient to sign a consent form, so as to enable the doctors to examine the patient and thereafter to give her required medical treatment. OP No.2 in her affidavit dated 10.12.1996, has categorically stated that consent was given at the time of admission which was for admission of the patient as well as for medical and surgical treatment. It has been further stated by her that on physical examination of the patient, it was noticed that the mouth of uterus was open and bag of membrane was bulging out and that she placed two fingers in the vagina of the patient and found that the discharge was meconium stained, which indicated that there was meconium inside. It is further stated that presence of thick meconium can be dangerous to the foetus. The fact that meconium was there has been admitted by the complainants in their rejoinder dated 12.9.1996, wherein it has been categorically stated that "admit- tedly the meconium has already started oozing out". OP No.2 goes on to say that she accordingly performed ARM (Artificial Rapture of the Membrane) and thick meconium came out which was indicative of the fact that the child had passed stool in uterus. This can happen when the baby has overstayed in mother's womb. It is stated that the presence of thick meconium suffocates the baby and due to lack of oxygen can be fatal to the baby. As per the version of OP-2 the ARM has also confirmed that the baby was in extreme distress. In the presence of the above facts, which have gone on record un rebutted and unchallenged, it cannot be stated that (OP No.2), ruptured the membrane due to lack of reasonable skill and in a rash and/or in a negligent manner. Less foetal movement and the NST report showing foetal distress and the presence of meconium, fully justified caesarean because failure to do so under such a situation would have endangered the patient and the baby and would have amounted to negligence and deficiency in service. There was no bleeding from the operation site and bleeding from the nose or mouth is not indicative of the fact that the operation was not properly performed or proper haemostasis was not done. The very fact that there was no bleeding at the operation site or the needle puncture site, nor through the Ryle's tube put through nose, nor much vaginal bleeding, confirms that proper haemostasis was done. OP No.2, who performed the operation, in her affidavit has stated that though the operation was completed by 2.30 p.m., yet the patient was observed by her and by Dr. B, Senior Anaesthetist, till 5.00 p.m. Apart from the above Senior Consultants, residents and nurses were also present and attending the patient. It has been further stated by her that the patient had developed breathing trouble post-operatively, for which she was put on ventilator. Even blood transfusion was given to the patient after the operation at 3.00 p.m. as per the version of OP-2. The above facts too have gone on record unrebutted and unchallenged. There is a document on record relating to the visit of Dr. B.N. in his independent second opinion, wherein he, after seeing the patient, has expressed agreement with the line of treatment being followed by OP Nos. 2 and 3 while treating the patient. From the contents of the affidavits of OP No.2 and OP No.3, which have gone on record unrebutted and unchallenged, which there is no reason to disbelieve, it is apparent that there was no deficiency in service (negligence) on the part of Opposite Parties 1, 2 and 3 while diagnosing and treating the patient. In view of the position explained above, it cannot be stated that there was any deficiency in service/negligence on the part of OP Nos. 1,2 and 3, within the meaning of section 2(1)(g) of the Consumer Protection Act while diagnosing and treating the deceased. [Uday Kant Jha v. Moolchand Khairaiti Ram Hospital, 2003 (4) CLD 922 (Del. SCDRC)].

13-49.76 >Obstetrics/Gynaecology-Sterilization-M.T.P.-Complainant, after undergoing tubectomy operation, becoming pregnant and another operation for abortion-As per facts on record, case is not one of sterilization failure but that of unsuccessful Medical Termination-Despite tubectomy or abortion, pregnancy may occur-Complainant alleging abortion done at an advanced stage of pregnancy-As per medical norms and provisions of Medical Termination of pregnancy Act, 1971, abortion can be carried out up to 20 weeks of pregnancy-Abortion done when complainant only had about 12 weeks of pregnancy after tubectomy operation, and if 8 weeks added, then it would be 20 weeks-No negligence-In cases of tubectomy it is possible that while tying the knots of fallopian tube in carrying out the tubectomy, the knots gets loosened soon thereafter and the female ovum from the corresponding ovary slips into the other side of the tube crossing the barrier of knot applied either through recanalisation of the tube or through a false passage developed at the spot called fistula formation and a sort of bye pass is - developed at the tied up lace of the tubes and the female seed gets success to reach the uterus and the pregnancy takes place. Thus from the medical literature placed on record it is amply established that despite abortion or tubectomy, pregnancy may occur. The relevant extract from the reference book: Post Graduate Obstetrics and Gynaecology, Fifth Edition p. 100 states as under: "However, later studies including of the ICMR data suggest that there is not much of a difference in the complication rates when MTP was done at six weeks or at eight weeks. The rates of continuation of pregnancy are higher when MTP was done prior to six weeks. Moreover, it is reported that only 60 to 70 per cent women who request termination earlier than six weeks are pregnant in fact (Fortney, 1977; ICMR, 1981) The contention of the complainant is that the second abortion carried out by the O Ps on 19.6.1995 was done fraudulently without her consent and that the same was done despite the danger to the life of the complainant. In answer to the same the O Ps have categorically stated that as per medical norms abortion carried out up to twenty weeks is neither harmful nor dangerous to the life of the patient. Not only that, but the legislation in this regard also recognizes and permits an abortion up to twenty weeks.-Section 3 of the Medical Termination of Pregnancy Act, 1971. In view of the above provision of law it cannot be said that the abortion carried out on the complainant at 19+ 1 week was done without regard to the danger to the life of the complainant. Therefore the said contention of the of the complainant is devoid of merit. [Asha v. Rohini Hospital, 2003 (1) CLD 537 (Del. SCDRC)]

13-49.77 >Obstetrics/Gynaecology-Dead child born after operation-Appellant not a qualified doctor but an ANM-A piece of sponge/surgical cotton left in the womb of the respondent in operation resulting in bad health said sponge removed by another doctor in a second operation-District Forum holding appellant as negligent-Compensation of Rs. 1 lac awarded by the Forum reduced to Rs. 69,500 by State Commission-At the time of second operation of the complainant a sponge was found inside the body. The District Forum has taken this fact into consideration and has come to the conclusion that there was deficiency in service on behalf of the appellant. 'This opinion of the District Forum is based on the basis of evidence on record which has been filed in this case. The allegation, on the contrary , of the appellant cannot be relied upon in the face of the definite report of Jafa Surgical Centre that a sponge was found inside the body. Thus, the negligence of the appellant is proved on record. State Commission held that Compensation of Rs. 1 lac was on the higher side, and that the respondent be given the compensation of Rs. 50,000/- plus cost of second operation and medicines-Rs. 19,500/-, total Rs, 69,500/- and costs of Rs. 2,000/- plus the cost she incurred in the second operation. [Aruna Mani Mishra Sanchalika Swati Sewa Sanstha Hospital, S.S.S. Hospital Mahmoodabad, District Sitapur v. Smt. Bhagwati & Anr., 2003 (1) CPR 157: 2003 (1) CPJ 69 (UP SCDRC)].

13-49.78 Obstetrics/Gynaecology-Deficiency in service-Complainant undergone LSCS-Complainant visiting the opposite party-hospital regularly after surgery-Complainant, a regular patient of opposite party-Allegation that oozing of pus not been treated by opposite party doctor unsustainable-No negligence-The complainant was a regular patient of OP-Nursing Home and she had no complaint against the OP-Nursing Home and Dr. (Mrs.) P so far as her earlier two deliveries are concerned. There is no valid reasons in the averment that Dr. (Mrs.) P would refuse to see the patient i.e. the complainant who came with the complaint of pus. The District Forum was thus not justified in recording a finding of deficiency in service or medical negligence on the part of Dr. (Mrs. ) P relating to her alleged refusal to see the patient on 19.5.1998 or soon thereafter.[Bhargava Nursing Home v. Mrs. Charan KamalKaur, 2003 (3) CLD 351 (Chd.-UTCDRC)]

13-49.79 Obstetrics/Gynaecology-Caesarean operation-Opposite party pre- scribed medicines for the symptoms complained of by patient apart from other drugs for maintenance of normal pregnancy-Patient put under observation for progress of labour, but having observed no progress and foetus developed distress, opposite party elected emergency caesarean on the basis of the symptoms present- Nettings of Paediatrician also support the stand of the opposite party-No negligence in going for caesarean-The patient was brought at 10.30 P.M. on 15.6.1996 to first O P nursing home and she was put under observation for progress of labour .However

.she noticed on 16.6.1996 at about 10.45 A.M. that there was no progress and the fetus developed distress. As there was no alternative she had to elect emergency caesarean. In view of foetal heart sound having come down to below normal, thick cervical lips, i thick meconium stained liquor, occipito posterior conditions, the first opposite party ~ doctor decided to go for caesarean to save the fetus from distress, No fault can be found fault with this procedure. There is absolutely no material placed by the complainant that these symptoms were not present at that time or the procedure adopted by the doctor is unwarranted. Even the paediatrician recorded in the operation notes as seen from Ex. B-l ' 'meconium stained, heart rate less than 80 cyanotic, while suctioning meconium stained liquor, child grimaced and feeble respiration." Therefore the observation of the paediatrician shows that the child was in distress. These notings also lend support to the timely decision taken by the doctor. Therefore, the objection of the complainant that there is deficiency in service on the part of the first opposite party doctor in electing to go for caesarean section in these circumstances cannot be endorsed with. [M Srinivas v. Dr. (Smt.) Rama Thulasi, 2003 (1) CLD 214;'2003 (1) CPJ 449: 2003 (2) CPR 242 (AP SCDRC)]

13-49.80 Obstetrics/Gynaecology-Caesarean operation-Patient suffering painful urination-Complaint alleging deficiency in not recommending dialysis- Blood urea level and serum creatinine level counts far below the range recommending dialysis-Not sending patient for dialysis, no negligence-According to Harrison's Principles of Internal Medicine 15th edition indications for dialysis are shown as when blood urea is lOO to 150 mg, or creatinine 8 to 10 mg/dL On 17.6.1996 both the counts are below this range. Even on 18.6.1996 blood urea level is 32 mg. while creatinine level is 1.2 mg. which are also far below the range for recommending for dialysis. Ex. A-18 which is a blood report of the complainant's wife dated 17.6.1996 issued by Ambica Clinical Laboratory & X-ray Clinic Eluru also shows the blood urea at 27 mgs% and serum creatinine 0.8 mgs%. So also the same laboratory report under Ex. A-27 dated 18.6.1996 shows blood urea at 32 mgs% and serum creatinine at 1.2 mgs%. From this it is clear that the blood urea level and serum creatinine levels increased day by day from 17.6.1996 but they were below the range for recollU11ending dialysis. Even in Ex. A-28 the death summary issued by the second opposite party among the "" treatment it can be seen that no dialysis was done. Hence not sending the patient for dialysis cannot be termed as negligence or deficiency on the part of the first opposite Ji' party.[M. Srinivas v. Dr. (Smt.) Rama Thulasi, 2003 (1) CLD 214: 2003 (1) CPJ 449: 2003 (2) CPR 242 (AP SCDRC)]

13-49.81 >Obstetrics/Gynaecology-Wrong diagnosis-Patient, pregnant woman, suffering from painful urination-No symptoms of jaundice till caesarean surgery-For jaundice painful urination not a symptom and in pregnant women urinary tract infection is common-Symptoms of jaundice can be diagnosed clinically-Oppusite party not finding any symptoms as per medical literature on clinical examination-No negligence-It is true that the patient was not able to pass urine on 15.6.1996. As per case sheet Ex. B-1 Urine Albumin Sugar nil In the operation notes after surgery at 3.00 P.M. it is noted "informed about jaundice risk explained to parents because of jaundice and also about bad prognosis". On 17.6.1996 at 9.05 A.M. blood urea is noted as .27 mgs. and serum creatinine as 0.8 mg. Common clinical features of jaundice or prodromal symptoms usually precede the development of jaundice with chills, headache, malaise (a vague feeling of bodily discomfort), gastro-intestinal symptoms, anorexia, nausea, vomiting and diarrhoea besides dark urine and yellow tint to the sclerae (eye ). There is no yellow tint to the eye, no chills, no headache. Though the complainant alleged that there was a complaint of vomiting sensation but vomiting were not complained nor diarrhoea, anorexia i.e., loss of appetite though alleged to have been complained as per the complaint but it is not true. So also the patient was not able to pass urine freely was complained on 5.6.1996 as per the complaint, this allegation also is not true. She complained of painful urination on 10.6.1996 only, for that medicine was prescribed and by 14.6.1996 she was relieved of this symptom. The patient complained of heart bum on 14.6.1996 for which also the doctor prescribed some medicines. Therefore the allegation that the doctor did not diagnose the problem properly is not correct. The patient started experiencing heavy pain from 15.6.1996 and she was admitted in the clinic of the first opposite party at 10.30 P .M. Therefore, it is not possible to send for urine test on that day. As foetus is in distress by 10.45 it is decided to go in for caesarean to save the child. Even on 15.6.1996 Ex. B-1 case sheet shows that urine albumin, sugar nil. Before commencing surgery urine was removed to empty the bladder to avoid any complication in the surgery and at that point of time the doctor noticed that urine was yellow and jaundice was suspected. Blood and urine samples were collected and sent for examination to the laboratory which confirmed jaundice. There is no specific treatment except rest in bed till all signs and symptoms for jaundice disappear. Hence there is no any deficiency in the line of treatment adopted by the first opposite party. Death summary Ex. A-28 shows the probable cause of death as cardio-respiratory arrest with hepatorenal shut down with? Septecemia (infection of blood) with ARDS and Hepato (liver). Renal failure is not shown as the cause but only shut down is shown as the probable cause. Therefore, from the above discussion the complainant failed to establish any negligence on the part of the opposite party No. I. [M. Srinivas v. Dr. (Smt.) Rama Thulasi, 2003 (1) CLD 214: 2003 (1) CPJ 449: 2003 (2) CPR 242 (AP SCDRC)]

13-49.82 Obstetrics/Gynaecology-Medical termination of pregnancy (MTP)-MTP performed negligently causing rupture of bladder resulting in Vesico-Vaginal Fistula (VVF)-OP-doctor saying that complainant a case of incomplete abortion, therefore, evacuation done, but sonography report revealing significant amount of post-void residue with internal debris, suggesting that evacuation also not completely done-Complainant undergone three surgeries for repair of VVF + bilateral ureteric reimplantation within DJ stenting-Complainant entitled to expenses incurred for treatment Rs. 25,000/- and compensation Rs. 20,000/- plus costs- The MTP or evacuation was done on 3.4.1999 by the respondent No.1 Dr. Mrs. K. The appellant alleged that she came for MTP, the respondent doctor says that she was a case of incomplete abortion and therefore evacuation was done. Even if we take the version of the respondent that she has done evacuation then also it is found that the procedure was not done properly because when complications developed and the appellant approached J.P. Hospital on 7.4.1999, i.e., after four days of evacuation, she was suffering from urinary problem. This problem continued to 16.4.1999 when sonography was advised. The sonography report dated 17.4.1999 revealed that' 'significant amount of post void residue with internal debris suggestive of cystitis with bulky uterus showing dense echoes in uterine cavity? Blood clot? Products of conception This means that evacuation was also not completely done and there was negligence on the part of the respondent doctor. The treatment of Government J.P. Hospital continued up to 21.5.1999 when the case was referred to Gandhi Medical College, suggestive complication of VVF. The report of Gynaecologist dated 24.5.1999 reveals that "Big Opening seen communicating Vagina with Post-wall of bladder edges sloughed out, admitting two fingers' , .On the basis of this report Dr. S.M. diagnosed VVF and performed surgery in which as per appellant three operations were conducted. The discharge summary of Gurudatt Uro-Hospital of Dr. S.M. reveals that "repair of VVF + Bilateral Ureteric reimplantation within DJ stenting" was done. The District Forum has appreciated the evidence adduced in erroneous approach and wrongly dismissed the complaint, therefore, the findings of the District Forum cannot be sustained and are therefore set-aside. From the papers enclosed with the record it is evidently clear that the appellant has to undergo several ultrasound tests and was required to undergo three-time surgery. The total expenses on medicine and surgery is estimated at Rs. 25,000. Therefore, the appellant is entitled to Rs. 25,000 as expenses incurred in treatment and surgery and an amount of Rs. 20,000 as compensation for mental and physical pain and sufferings the respondent are directed to pay in all Rs. 45,000 to the appellant along with Rs. 1,000 as costs of the proceedings, throughout. [ Smt. Kiran Sharma v. Dr. Kavita Saluja, 2003 (2) CLD 256 (MP SCDRC)]

13-49.83 Obstetrics/Gynaecology-Delivery case-Mismatched blood transfusion-First delivery by Caesarean section reports of which shown to the opposite party Nursing Home authorities when got admitted there for second delivery- Profuse postpartum haemorrhage after delivery-Though patient's blood group A-negative, in the absence of A-negative blood A-positive blood transfused followed by A-negative blood, but patient did not recover and ultimate death-Gross negligence of opposite parties-First delivery being Caesarean the doctors should have anticipated bleeding in a subsequent normal delivery and kept ready required quantity of blood matching the blood group of the patient failure of which amounted to complete lack of diligence and deficiency in service-O Ps liable to pay compensation to the complainant-Compensation of Rs. 3,00,000 awarded with 12% interest and costs Rs. 2,0001--The deceased had her first delivery by caesarean section in another hospital and that she consulted the third respondent for the first time on 26.9.1995 and showed her first delivery records. She was admitted in the first respondent hospital on 20.11.1995 with labour pains and delivered her second baby by 3.30 P.M. and the baby was healthy. Syntocinon at the early stage and methergine after the delivery were given and there was profuse bleeding after the delivery. When the blood grouping was tested and it was found to be' A' negative and when' A' negative blood was not available 2 units of' A' positive blood was given to the patient followed by 6 units of' A' negative blood along with dopamine drip etc. to revive her condition and in spite of that the patient did not recover. No literature of medical opinion is found supporting transfusion of' A ' positive blood when' A ' negative blood is not available. The respondents did not take precaution even when the patient was admitted at 12.00 noon to keep and procure the necessary blood after grouping, typing and cross matching. If first delivery is by caesarean section at the time of second delivery the doctor has to be careful about probability of retained placenta and postpartum haemorrhage. In the present case as per the records due to LCS there was a lower segment scar where the chances of its rupture during labour was there. Therefore, it was imperative that respondent No.3 should have considered the option of delivery by caesarean section as one of the alternatives in case there was emergency, which was not done. One of the reasons for acute renal failure is transfusion of mismatched blood. From the records, it was not found whether this aspect was kept in mind when' A' positive blood was given instead of' A' negative. There is no record of urine out-put or indications of renal failure. In fact it appears that this aspect was not even checked and it is incorrect to say that if' A' negative blood is not available' A ' positive blood can be given.

13-49.84 Obstetrics/Gynaecology-Caesarean operation-Complainant feeling serious pain and irritation in her lower abdominal region after operation-A foreign body was seen left in the lower abdominal region on conducting X-ray, CT scan and ultrasound-Removal of the said foreign body by another operation in the same hospital-Negligence held by State Commission-Plea of OP that the hospital a charitable institution not acceptable since the complainant made payment for the operation and the Consumer Protection Act applies to a person engaged in medical profession as private practitioner and where a person guilty of negligence per se, no further proof is needed-Order of State Commission affirmed by High Court-Where there is negligence on the part of a doctor, then, it would not only attract statutory liability but it would also amount to deficiency in service and the issue can be examined under the Consumer Protection Laws.

At this stage, the argument on behalf of the Hospital that this is a charitable institution, and therefore, is not amenable to the provisions of Consumer Protection Laws be also examined. No evidence was led that the Institution is, in fact, a charitable institution. The complainant paid a sum of Rs. 8,819 to the hospital. Therefore, where the services are rendered by the doctors and hospitals for which charges are required to be paid by everyone availing that services, this would be covered by the term ' , special service' , as defined in the Act.

On the basis of evidence which has come on the record and in view of the legal position vis-a-vis liability of medical profession the High Court was of the opinion: (i) that this is a case where a foreign body was left inside the system of the complainant; (ii) the fact that a foreign body was left in the lower abdominal region of the complainant stands established from the report of the X-ray, CT -scan and also from the report of ultra-sound, which investigations were got done by the complainant from different diagnostic centres; (iii) that after the different reports of X-ray, ultra-sound and CT scan were collected by the complainant, she approached the very doctor who had conducted the first operation and complained of the pain; (iv) that the foreign object was removed in the very hospital where first operation was performed by the appellant Dr. Satya Atri; (v) that this is a case which does demonstrate that Dr: Satya Atri had a duty to act with a reasonable degree of care and skill. This is a part of implied undertaking given by a person in medical profession, which element is missing in this case. In view of the above, no case is made out for interfering with the view expressed by the State Commission thus upholding award of compensation of Rs. 1 lack to be paid by the hospital and the appellant-doctor equally. [(Dr.) (Mrs.) Satya Atri v. Smt. Shashi Sharma, 2003 (1) CLD 419: 2003 (3) CPR 17: 2003 (1) CPJ 612 (J&K-HC) (DB)]

13-49.85 >Obstetrics/Gynaecology-Patient unattended for twelve hours-Failure of doctor to administer proper treatment-Condition of patient becoming unmanageable-Death on account of excessive bleeding-Negligence held-Both the doctor and hospital liable for compensation of Rs. 80,000/- payable to the claimant-The appellant-Dr. J has taken care to examine the patient and to undertake the case and also taken care in deciding what treatment is to be given, but the record

L-:Shows that she has failed to carry out the case in the administration of that treatment. A perusal of the history sheet of the case reveals that she had not cared to look the patient after 8.00 p.m. on 30.3.1999 to 8.00 a.m. on 31.3.1999, that is for complete 12 hours and during this period the condition of the patient became serious and unmanageable. During this period when the bleeding started and the nurses were informed it was the duty of the hospital staff as well as of the appellant-Dr. J to attend the patient on emergency basis and if there was excessive bleeding she should have made efforts to check the bleeding or have decided immediate caesarean operation, removal of uterus packing at the bleeding point, that means administration of the treatment was the duty which should have been performed by the doctor and staff. From the facts which have come on record Doctor as well as hospital staff failed in administration of the treatment, which amounts to negligence. The District Forum analysed the case in details and has found that the appellants were negligent in the administration of the treatment, the conclusion so arrived is based on facts and is on logical grounds, therefore, there is no reason to interfere with the finding of the District Forum. Compensation of Rs. 80,000/- awarded by the District Forum upheld. [Ujjain Charitable Trust Hospital v. Ramesh Chandra & Ors., 2003 (3) CPJ 181 (MP SCDRC)]

13-49.86 Obstetrics/Gynaecology-Caesarean operation or forceps delivery- Opposite parties having stated that the baby being above normal size caesarean to be performed and the complainants gave their written consent-opposite party resorted to forceps delivery-Patient died giving birth to a baby-Forceps application though an accepted method not to be resorted to where the baby is above normal size-opposite party guilty of negligence liable to pay compensation especially where the consent was given only for caesarean-Compensation of Rs. 2 lac with interest @12% p.a. awarded by the State Commission upheld-Forceps application though not out of date could not have been resorted to when baby was above normal size and papers had already been got signed for the appellants to perform caesarean. The application for forceps needs lot of expertise. Nothing has been shown as to what was the experience of the first appellant in applying forceps delivery. State Commission did not find any fault with forceps delivery but says it was done in haste which caused the haemorrhage. It would appear that in her hurry to attend her Govern- ment duty appellants did not go for caesarean operation and forceps delivery was resorted to. There was profuse bleeding, no attempt was made whatsoever to stop the bleeding and the deceased bled to death leaving anew born girl baby deprived of motherly love and husband of consortium of his wife. State Commission has rightly found that the Nursing Home, appellant No.3 also deficient in service as it had no proper arrangements to meet any emergency and not properly equipped. No acceptable attempt was made to stop the bleeding. It was a case of acute deficiency in providing proper medical care to the patient. It is a case of certainly gross medical negligence. Compensation of Rs. 2 lac with interest @12% p.a. awarded by the State Commission upheld. [(Dr.) (Smt.) T. Vani Devi v. Tugutla Lakshmi Narasaiah Alias Narasa Reddy, 2003 (1) CLD 860: 2003 (1) CPJ 180: 2003 (1) CPR 325 (NCDRC)]

13-49.87 Obstetrics and Gynaecology-Caesarean delivery-Death due to amniotic fluid embolism-Patient negligent in care of her health visiting OP for check up irregularly resulting in development of amniotic fluid embolism syndrome which occurs suddenly-Supported by medical literature-op took every care to save life of the patient-No expert examined by complainant to show deficiency in service OP-Burden of proof on complainant not discharged-No negligence or deficiency in service- The burden of proof lies on the complainants to prove that there was negligence on the part of the opposite party .The complainants have not examined any expert to give his or her opinion to prove that there was negligence or deficiency in rendering service on the part of the opposite party. The disease with which the deceased has succumbed to was amniotic fluid embolism. According to the standard Medical Text Book Current Medical Diagnosis: amniotic- fluid embolism is a S)'I1drome in which, following the infusion of a large amount of amniotic fluid into the maternal circulation, there is the sudden development of acute respiratory distress and shock. Twenty-five per cent of these women die within 1 hour. The condition is rare. Probably many cases are unrecognised, the diagnosis being obstetric shock, post-partum hemorrhage, or acute pulmonary oedema. Amniotic Fluid Embolism was discovered by Meyer in 1926 at post- mortem examination. In 1947 the clinical syndrome was described by Steiner and Lusbaugh. They showed that the sudden infusion Amniotic Fluid Embolism of sufficient quantity into the maternal circulation is fatal. Therefore, it can be said that the above syndrome develops suddenly. The deceased had developed it suddenly and the opposite party has taken every care to treat her. The District Forum has rightly held that there was no negligence on the part of the opposite party. [B. Murali Krishna Reddy v. Smt. Dr. E. Adilaxmi, 2003 (5) CLD 672 (AP SCDRC)]

13-49.88 Obstetrics/Gynaecology-Caesarean delivery-Allegation of wrong diagnosis-Opposite party-doctor, on the basis of sonography report saying that the child in the womb of complainant having no head and heart throbs feeble, but complainant delivering a baby having head and normal heart throbs-Due to abnormal position of child in the womb head not visible-Surgeon conducting intrauterine examination to correct abnormal position of child and in that process a slight injury caused to its mouth which was immediately taken care of-Held no negligence or deficiency in service-The report of the Medical Superintendent says: "The mother's post-delivery course was uneventful." The baby was initially managed with IV fluids and was shortly thereafter kept on nasogastric feeds because of the oral wound. Expressed breast milk was given via tube. Eventually the baby could be put to the breast. She developed a mild pneumonia from which she recovered fully with antibiotics. At the time of discharge she had oral thrush for which she was given nystatin. She was being followed up in the OPD and was in good health. 

The report of the Medical Superintendent and all steps taken by the medical personnel of the O Ps exhibit that neither the O Ps nor all of the doctors working with them and attending upon the patient had at any point of time been careless, negligent or unattentive or could be termed as unskilled medical professionals.

The complainant was admitted in the Hospital on 5.8.1994. Not only she was duly attended upon but during the delivery as also after the delivery of the child all care, caution and skill was employed by the O Ps till the complainant and the child was discharged from the ICU/Hospital on 25.8.1994. The complainant has not produced any evidence of any expert in Medical Science to establish that the O Ps or their doctors have been in any way negligent in attending upon the mother and the child or were unskillful which could support the allegations made by the complainant against the OPs. [Harjeet Kaur v. Santokba Durlabhji Memorial Trus!,_2003 (5) CLD 1066 (Raj. SCDRC)]

13-49.89 Obstetrics/Gynaecology-Tort-Surgery for ovarian cyst-Surgeons leaving a gauze pad in the abdominal cavity-Failure to remove the abdominal pad before closing the abdomen-Negligence held-Rs. 3,35,0000 (Rs. 2,00,000 for pain and suffering, Rs. 1,00,000 for mental agony and Rs. 35,000 toward's medical expenses) awarded as compensation by High Court, to be paid to the plaintiffs jointly and severally by the defendant-hospital and surgeons-An abdominal pad was negligently

left inside the body of the second plaintiff during the operation in D. 1 hospital at Jaipur by D.2 and D.3. Therefore, the case of the plaintiffs that an abdominal pad was left in the body during the operation is conclusively proved. It is true that there is no reference in Ex. P.6 with regard to either the size of the paid or the identity of the hospital in the pad but that does not affect the case of the plaintiffs. Therefore, that the defendants 2 and 3 who performed the operation in Jaipur were negligent in performing the operation in not removing the abdominal pad from the abdomen before closing the abdomen at the end of the operation is proved. [Arun Balakrishnan Iyer and Anr. v. Soni Hospital and others, AIR 2003 Mad.-HC 389]

13-49.90 Obstetrics/Gynaecology-MTP-Development of peritonitis for which laparotomy done-Perforation and other complications subsequently alleged to be due to negligence of opposite parties in conducting laparotomy-Evidence that patient fell on a cot and her abdomen came into contact with hard leg of the cot not denied by neither the patient nor her husband-Possibility of perforation due to such fall not be ruled out-Held no negligence-The report of the opposite parties states that:

"Following MTP 10 days back, she developed peritonitis for which laparotomy was done on the next day. At laparotomy small bowel injury was recognised which was closed". Therefore, the District Forum has rightly dismissed the complaint against the opposite parties. besides that it is also alleged in the written version of opposite parties land 2 that the complainant came to the Nursing Home at about 6.30 p.m. and informed them that she was suffering with pain in the abdomen, that she fell on a cot and her abdomen came into contact with the leg of the cot and since then she was feeling the pain. Opposite parties 1 and 2 in their written version have categorically mentioned that a perforation would have been caused due to the stomach coming into contact with the hard surface i.e. the leg of the cot. This may be a probable reason of the perforation. This fact was not denied either by the complainant, P .W. lor her husband, P .W. 2 in their evidence. Therefore, this averment in the counter must be given its due weight. [Thumu Padma v. Dr. Hemalatha, 2003 (6) CLD 108 (AP SCDRC)] .

13-49.91 Obstetrics/Gynaecology-Tubectomy-Injection given in right hand-Becoming septic, developing gangrene and ultimate amputation of the hand-Negligence held-Rs. 80,000 awarded as compensation-The complainant got his wife operated for tubectomy in a government hospital. For this operation she was given an injection in the right hand. It is alleged that this was with negligence without cleaning the hand. It developed into septic and again gangrene and on subsequent production of the victim to the doctors and hospitals, the only way found to keep the victim alive was to amputate her right hand. Subsequently, her right hand had been amputated. She has permanently become disabled due to negligence. The above plea shows that the negligence is admitted. If the negligence is admitted, there was no question of any appeal by the appellant. In the complaint, it is alleged that the hand of the victim has been amputated due to the negligence of the opposite parties i.e., doctors and the Government. In reply to this pleading, it was pleaded in the written statement that there is nothing to say. As regards the quantum of compensation, it has been granted in two heads, but the total is Rs. 80,000/-. But for total amputation of a hand, that too of right hand, a compensation of Rs. 80,000/- cannot be said to be excessive. [ State Government v. Vijay Singh, 2003 (3) CPJ 382 (Uttaranchal SCDRC)]

13-49.92 Obstetrics/Gynaecology-Hysterectomy-Removal of ovarian cyst/mass-Reappearance of cyst even after operation-Second operation-Allegation that second operation necessitated due to negligence of opposite party in the performance of first operation by not removing the ovary-After surgical removal of cystic portion of ovary, it is usually followed by cyst formation in the remaining ovarian tissue as per medical literature-Held no negligence- The book Principles of Gynaecology by Sir Norman Jeffcoate, Fourth Edition, published by Butterworths in Chapter 29 Tumours of Ovary page 450 reads: "Surgical removal of the cystic portion of an ovary, or of a whole ovary, is usually followed by cyst formation in the remaining ovarian tissue. The more ovarian tissue removed the more likely is the remainder to become cystic. This is probably because the underlying cause of disease, hormonal or vascular, persists and becomes concentrated on a smaller target." This means that it is a common feature that after removal of ovarian mass a cyst is usually formed, therefore, it cannot be said that the operating surgeon is in any way responsible for such formation. The appellant-surgeon has acted with due diligence, skill and care and cannot be held to have committed any medical negligence in performing hysterectomy operation. [Dr. Smt. Prabha Choudhary & Anr. v. Shantilal Jain, 2004 (1) CPJ 307 (MP-SCDRC)]

Foreign Cases

13-49.93 Obstetrics/Gynaecology-Caesarean-Motion picture made and shown publically-Patient has cause of action-A patient agreed before undergoing a Caesarean to allow the surgeon to take a motion picture for use at a medical society meeting. The physician and the motion picture producer who made the film exhibited it publicly in two theaters in New York City as a motion picture entitled "Birth". The exhibition was clearly for the purposes of trade. The court held that she had a cause of action. [Feeney v. Young, 181 NYS 481, NY 1920.]

13-49.94 Obstetrics/Gynaecology-Operation for uterus problem-Fallopian tubes found full of pus, performed hysterectomy-Doctor held liable-A patient had frequent miscarriages. The family physician had told her that her uterus was lacerated when she consulted him because she could not get pregnant. He referred her to a surgeon whom she told that she wished to be fixed up so she could get pregnant. When he operated, he found that her fallopian tubes were full of pus and performed a hysterectomy. The court found him liable. The operation was not an emergency one. Treatment for the condition could have been attempted by non-surgical means and he was well aware of the fact that the patient very much wanted to get pregnant. [King v. Carney, 204 Pac 270, Okla 1922.]

13-49.95 Obstetrics/Gynaecology-Appendectomy-Ectopic pregnancy suspected but found to-be normal-Acute appendicitis found-Appendectomy with- out consent-Doctor held not liable-A patient was diagnosed as having an ectopic pregnancy. When surgery was begun, the surgeon discovered that she had a normal pregnancy but acute appendicitis and removed her appendix. The patient sued him for taking out her appendix without her consent. The court held that he was entirely justified and pointed out that if her appendix had been allowed to remain, she and the unborn child could have been seriously jeopardized. [Barnnett v. Bachrach, 34 A 2d 626, Dc 1943.]

13-49.96 Obstetrics/Gynaecology-Antiseptic burns-Held negligent-A patient's buttocks were burned during delivery. The antiseptic solution applied before delivery had dripped onto the rubber sheet on which she lay and had collected in puddles underneath. She recovered damages. [Woronka v. Sewall, 69 NE 2d 581, Mass 1946.]

13-49.97 Obstetrics/Gynaecology-Caesarean delivery-A baby's face was severely cut when the incision was made to perform a Caesarean. The court held that the allegation of the fact was sufficient to state a cause of action. [Graham v. Sisco, 449 SW 2d 949, Ark 1970.]