(REVISION PETITION NO. 3868 OF 2017)
ORDER DATED: 27.02.2019 (National Consumer Disputes Redressal Commission)
The brief facts are that on 03.07.2008, who complainant’s wife was suffering from abdominal pain was taken to the clinic of opposite party(OP) – doctor, who advised for operation. On 05.07.1998, OP operated her for repair of perforation in the uterus and charged him Rs. 4 lakh. Thereafter, it was alleged that due to negligence during operation, patient suffered serious complications like fecal discharge through the operated area since 11.07.1998. The patient thereafter consulted Dr. Kamal Ashraf at Patna, who noted that the uterus was not repaired and rectum of the patient was damaged. The patient was again operated on 16.07.1998 by Dr. Kamal Ashraf. It caused great financial loss, mental and physical agony to the patient and her family members. Being aggrieved, the complainant filed a complaint before the District Forum for alleged medical negligence.
The OP in her written version submitted that there was no negligence on her part. However, on the basis of pleadings and evidence, the District Forum allowed the complaint and directed the OP to pay Rs.50,000/- on account of medical negligence and compensation of Rs.10,000/- alongwith litigation cost of Rs.10,000/-.
Being aggrieved, the OP filed first appeal before the State Commission, Bihar, whereby the State Commission allowed the appeal of the opposite party – doctor and set aside the Order dated 07.12.2010 of the District Consumer Disputes Redressal Forum, Nalanda. The State Commission was of the view that the case of medical negligence need to be proved by an expert or by cogent medical literature. The doctor could not held liable without any expert opinion.
Being aggrieved by the impugned order, the petitioner-complainant filed the instant revision petition. The Court observed that it is evident from the medical prescriptions dated 11.07.1998 of Dr. Kamal Ashraf that the patient was brought to him with the complaint of fecal discharge from the wound. He performed the operation on 16.07.1998 and the rectum was required by closing the perforation. Nothing was mentioned in the prescription about any fault during the operation conducted by the appellant doctor which caused injury to patient’s or uterus or rectum.
It is transpired from the medical record that on 02.07.1998 patient got terminated her pregnancy of 1 1⁄2 months by the hands of an unqualified person and it was not disclosed to the opposite party-doctor. The patient approached the OP on 03.07.1998 with the complaints of pain in lower abdomen and she had amenorrhea of 1 1⁄2 months. On clinical examination and ultrasound, the opposite party diagnosed that some mass present in the posterior fornix. Therefore, the OP operated the patient. However, there was no visible perforation of either uterus or of large bowel. There was erosion of intestine inflammation over the site of perforation of uterus. Though uterine perforation was suspected but, there was no bleeding, therefore, the OP did not do any surgical intervention to repair and the adopted conservative mode of treatment. In this context, the opposite party relied upon the C.S. Dawn Text Book of Obstetrics and Neonatology 12th edition page 325. On the basis of the medical text, the Court was of the view that it was the case of delayed perforation of intestine, which could have occurred after 7 to 11 days of D & C performed by an unskilled person. There is no iota of evidence to prove that there was any surgical injury to the small or large intestine during surgery performed by the opposite party.
Considering the entirety of the case, that the OP who is a qualified gynaecologist, had treated the patient as per reasonable and standard of care and that the complainant has not produced any expert opinion to prove its case, the Court did not find any negligence on the part of OP doctor. Thereby finding no merit in the revision petition, it was dismissed.