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“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

English: Schematic drawing of types of hystere...

English: Schematic drawing of types of hysterectomy Deutsch: Schematische Darstellung des Umfangs verschiedener Hysterektomieformen (Photo credit: Wikipedia)

NEW DELHI

 

FIRST APPEAL  NO.115 OF 2005

(From the order dated 02.03.2005 in Complaint No.70/2000 of the

State Commission, M.P.)

 

Prem Bala                                                                                                                                                                                …Appellant

Versus

Dr.(Mrs.) Satinder Saluja & Ors.                                                                                                                                            …Respondents

 

BEFORE :

 

          HON’BLE  MR. JUSTICE  ASHOK  BHAN,  PRESIDENT

          HON’BLE  MRS. VINEETA RAI,  MEMBER

 

For the Appellant                            :         Mr. D.S. Chauhan, Advocate

 

For the Respondents                       :         NEMO.

 

Pronounced on 13th July, 2012

 

ORDER

 

PER VINEETA RAI, MEMBER

 

Smt.Prem Bai, Appellant herein, has filed this First Appeal being aggrieved by the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh(hereinafter referred to as the ‘State Commission’) which had dismissed her Appeal of medical negligence against Dr.(Mrs.)Satinder Saluja (Respondent No.1), Dr.Paras Shrimal (Respondent No.2) and others, Respondents herein.

The facts of the case according to the Appellant are that on 15.07.1998 she had consulted the Respondent No.1 at her Nursing Home in Ujjain with complaints of abdominal pain for which she was prescribed medicines and in case there was no relief, she was asked to contact the Respondent No.1 again.  Since the pain in the abdomen persisted, Appellant again visited the Respondent No.1 on 28.07.1998 and after undergoing ultra-sonography, she was diagnosed with bilateral T.P.Masses in the uterus and Pelvic Inflammatory Disease (PID) for which she underwent a hysterectomy on 08.09.1998 for removal of her uterus. Appellant was discharged on 16.09.1998.  But since the abdominal pain continued and after a few weeks, Appellant also experienced leakage of urine, she again consulted Respondent No.1 who referred her to Respondent No.2, Dr.Paras Shrimal, a Urologist who after diagnosis and examination advised that another another surgery was required to repair a small Vasico Vaginal Fistula (VVF).  According to the Appellant, this occurred because the hysterectomy was not performed with due care.  The Appellant was discharged on 14.09.1999 and during this period, the doctor also inserted a catheter in her vagina.  However, when this was removed, leakage of urine restarted.  It is only when Appellant went to Indore for further treatment under one Dr.Rajendra Lahoti to repair the VVF that she could get relief.  Since the Appellant had to undergo unnecessary physical and mental agony and three surgeries because of the negligence in treatment by Respondents No.1 and 2 and had also to incur a heavy expenditure on her treatment/medicines,  she approached the State Commission with allegations of medical negligence and deficiency in service on the part of the Respondents and requested that the Respondents be directed to pay her Rs.12 lakhs for the expenditure incurred and the mental and physical sufferings caused to her.

The allegations of medical negligence were denied by the Respondents who stated that all necessary care and precautions were taken in the treatment of the patient and there was no medical negligence in this case.  Respondent No.1 contended that on the basis of clinical diagnosis including ultrasound, patient was detected with bilateral T.P. Masses in the uterus and Pelvic Inflammatory Disease (PID) for which she was initially prescribed medicines but when this did not clear the infections, she underwent a hysterectomy and was discharged from the hospital in a satisfactory condition.  Since, it takes about 6 weeks to recover from hysterectomy, she was given  post-operative advice not to lift heavy items and also to abstain from sexual intercourse.  During her subsequent visits on 13.10.1998 and 16.11.1998, Appellant did not have any complaints except general complaint of abdominal pain for which she was given medicines and tonics.  It was only on 28.01.1999 i.e. after a period of 4½ months of the hysterectomy that Appellant approached Respondent No.1 with a complaint of leakage of urine. As this was a urological problem, she was referred to Dr.Paras Shrimal, a Urologist, who after examination and ultra-sonography diagnosed that this was a case of small Vasico Vaginal Fistula(VVF) and surgery was advised to repair the VVF.  The Appellant was again discharged in a satisfactory condition with post-operative advice and it was only 6 months later i.e. on 06.09.1999 that she approached the Respondent No.2 with a complaint of leakage of the urine for which a Cystoscopy was performed on 21.09.1999 and she was discharged from the hospital in a satisfactory condition.  Respondents stated that the problem of urine leakage was not linked to hysterectomy because if this was so, this would have occurred within 7 to 10 days of this surgery and not after 4½ months.  Medical literature on the subject was also cited in support of this contention.  According to the Respondents, the problem of leakage of urine occurred on both occasions i.e. after the hysterectomy and the repair of VVF because the Appellant did not take due care to heed medical advice given to her i.e. not to have sexual intercourse.

The State Commission after hearing the parties and on the basis of evidence on record concluded that there was no medical negligence.  The operative part of the order of the State Commission is reproduced below:

“So far as the question No.2 is concerned, whether Dr.(Smt.) Satinder Saluja has correctly diagnosed the problem of the complainant and has acted with due diligence and care, we find that on clinical examination the opposite party No.1 doctor has diagnosed pelvic infection disease and therefore gave treatment in the prescription dated 15.07.1998.   It was after a month when there was no relief then her sonography test was performed which confirmed the swelling in uterus i.e. bulky uterus with tubooverial masses and pelvic inflammatory disease (PID) and therefore the hysterectomy operation was advised.  All this shows that the opposite party No.1 doctor rightly diagnosed the disease which was also confirmed in ultrasonography and therefore rightly performed hysterectomy operation.  This was the standard procedure as per medical text and norms.

What has been stated above we find that the delayed development of VVF cannot be attributed to hysterectomy and therefore we do not find that the opposite party No.1 Dr.(Smt.) Satinder Saluja has acted negligently and therefore we do not find her guilty of committing medical negligence.

So far as the operation performed by the opposite party No.2, Dr.Paras Shrimal is concerned, it is clear from the record that the complaint of leakage of urine was reported on 28.01.1999 and on the same day ultrasonography test was advised.  The ultrasonography report revealed that Irregular echogenic area seen in posterior bladder wall – appears to be small VVF with simple rt.ovarian cyst.  The operation was performed on 29.01.1999 and the patient was discharged after 10 days with instructions that she should not lift the weight, should refrain from intercourse and keep better hygiene.  On 22.02.1999 the catheter was removed and it was found that there was no complaint and there was no leakage of urine per vagina.  It was on 09.09.1999 i.e. after six months from the operation of VVF that the complainant came to the opposite party No.2 and told that there is leakage of urine as per vagina.  Then again VVF was repaired and the patient was discharged on 14.09.1999 with the same instructions for observing precautions.  In her complaint the complainant herself has stated that after this operation she felt some relief but after some time the problem of VVF again developed.  This shows that the operations performed by the opposite party No.1, Dr.(Smt.) Satinder Saluja and opposite party No.2, Dr.Paras Shrimal were performed as per procedure prescribed in the medical norms and therefore they cannot be said to have committed any medical negligence.”

Hence, the present Appeal.

Counsel for the Appellant was present.  None appeared on behalf of the Respondents.  Since, service is complete it was decided to proceed with the case ex parte.  In his oral submissions, Counsel for Appellant contended that the State Commission erroneously concluded that there was no medical negligence whereas it is a fact that even after the hysterectomy, the Appellant continued to suffer from various medical complaints and the leakage of urine started only after the hysterectomy.  Counsel for Appellant contended that when the Appellant first came for a post-operative check-up on 13.10.1998, she was only given a painkiller and Respondent No.1 did not care to properly diagnose the problem by conducting an ultra-sonography or any pathological or diagnostic tests which could have revealed the exact problem at an early stage.  Further, no written medical advice was given in the discharge slip about any precautions to be taken.  Counsel for Appellant pointed out that the State Commission also failed to appreciate that it was only after the third surgery conducted by Dr.Rajendra Lahoti at Indore which gave relief to the Appellant because it was properly conducted and Dr.Lahoti rectified the errors made in the earlier operations including the surgery to repair the VVF by Respondent No.2 which apparently did not give due relief to the patient.  From this sequence of events, it is clear that the subsequent complications of urine leakage from which the Appellant suffered following the hysterectomy and the VVF was clearly due to medical negligence by Respondent No.1 which persisted even after the second surgery performed by Respondent No.2 because this was also not properly done.   Both Respondents were therefore, clearly guilty of medical negligence and deficiency in service.

We have considered the submissions made by the Counsel for Appellant and have carefully gone through the evidence on record including the medical literature on the subject.  The fact that Respondent No.1 conducted a hysterectomy on the Appellant and that a subsequent surgery was conducted about 4½ months later by Respondent No.2 to repair the VVF are not in dispute.  In this connection, we have perused the evidence on record and note that the patient was correctly diagnosed for her medical problems and following the hysterectomy she was discharged in a satisfactory condition.  There is no evidence on record that at that time or even during the two post-operative visits, she had any complaints regarding leakage of urine.  The only complaints that she had were of some abdominal pain which as per medical literature is not unusual since it takes about 6 weeks for a patient to recover from a major surgery like hysterectomy.  We have also gone through the medical literature filed by Respondents in this case that leakage of urine after 4 ½ months of the surgery cannot be attributed to any complications or defects in the surgery itself.  It is only when such complications occur within 4 to 10 days of the hysterectomy that there could be a nexus between the problem and the surgery [Source: Postgraduate Obstetrics   & Gynaecology (3rd Edition) by M.K. Krishna Menon, P.K. Devi & K.Bhasker Rao].  Respondent No.1 in her cross-examination had sought to explain the medical complication of urine leakage suffered by the Appellant by citing evidence that this can occur several weeks after hysterectomy if the patient not heeding medical advice indulges in sexual intercourse (Source: Principles of Gynaecology by Prof. Jeff Cate).   In the instant case, since the patient was discharged in a satisfactory condition with no complaints of leakage of urine, it is obvious that it occurred because patient had not followed the post-operative medical advice given to her in writing to abstain from sexual intercourse.   We further note that Appellant has not produced any medical expert or medical literature to contradict or counter these contentions. Therefore, keeping in view the evidence on file from which it appears that due medical care was taken by Respondent in both in diagnosing the Appellant’s problem and subsequently treating it as also the medical literature on the subject, we are unable to conclude that there was any medical negligence or deficiency in service on the part of Respondent No.1.

Regarding the second surgery conducted by Respondent No.2 to repair the VVF, we note that this was conducted after it was correctly diagnosed through ultra-sonography and a clinical examination and successful surgery conducted, she was discharged after 10 days with no complaint of leakage of urine.  It was only after 6 months that the problem occurred and, therefore, it cannot be attributed to surgery to repair the VVF.  This time also, it appears that the patient did not take due care in following medical advice to abstain from specific activities which are contra-indicated following such surgery.  Further, the Appellant on whom there was onus to do so has not been able to produce any evidence to indicate that there was any medical negligence on the part of the Respondent No.2 in treating her case.

What constitutes medical negligence is now well established through a catena of judgments.  The Hon’ble Supreme Court inJacob Mathew v. State of Punjab, (2005) 6 SCC 1 has observed as follows:

“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

 

(4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”

 

Applying these principles in the instant case, it can be seen that there is no evidence to conclude that the Respondents did not have the necessary qualifications or that they did not exercise reasonable competence and skills in dealing with the case.  Both surgeries were performed after correctly diagnosing the problem and giving proper post-operative care/medical advice.  On both occasions, the patient was discharged without any medical complications. Medical literature on the subject also confirms that the problems suffered by the patient were not linked to the surgeries. The State Commission in its well-reasoned order has documented all these facts and concluded that no case of medical negligence is made out against the Respondents.  We see no reason to disagree with the findings of the State Commission and uphold the same.   The First Appeal is dismissed with no order as to costs.

Sd/-

…………..…………………

(ASHOK BHAN   J.)

PRESIDENT

 

Sd/-

………….……………….

(VINEETA RAI)

MEMBER

/sks/

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