IMPORTANT POINT
Appellant has not been able to establish the case of medical negligence on the part of respondents in the matter of removal of her uterus and thus National Commission was right in dismissing her claim for compensation on ground of medical negligence under Consumer Protection Act, 1986.

Headnote:(i) Consumer Protection Act, 1986-Section 21-Appeal to Supreme Court from judgment of National Commission-Appellant had filed a complaint before National Commission for compensation on the ground of negligence on the part of respondents in the matter of removal of her uterus-National Commission held that the appellant has not proved negligence on the part of respondents and dismissed her claim-Whether the appellant had a normal pregnancy and Medical Termination of Pregnancy (=MTP) was unnecessary? (No)-She had cervical pregnancy and MTP was necessary so there was no negligence on the part of respondents to do MTP-Whether appellant was given sufficient time for MTP? (Yes).
       Held (after referring to evidence and Medical Text books) :
       In the present case, the appellant did not have any history from which presence of cervical pregnancy could have been suspected. The appellant had not complained of any significant bleeding or painless bleeding or bleeding with pain at any time. In the circumstances, the doctors could not have found that the appellant had cervical pregnancy and they cannot be held guilty of any negligence either in respect of diagnosis or in the matter of treatment administered. Hysterectomy was the only solution on account of profuse bleeding or severe vaginal or peritoneal bleeding. There was examination and cross-examination on the question whether it was a case of cervical pregnancy or a normal pregnancy where peritoneal bleeding was caused by instrumental perforation. The evidence of Dr. Rajan is that there is clear evidence in the case that the bleeding by an instrumental perforation can be stopped by a laporotomy and by suturing the site of the bleeding and that would not be the case in a cervical pregnancy. Dr. Balachandran, who is acknowledged to be a very high authority in Kerala and was examined as RW 4, stated that whether perforation was by an instrument or not can be clearly seen after laportomy and if an instrument perforates the uterus, it can be stopped by suturing and it may even stop automatically when the instrument is withdrawn. The main dispute between the parties is that it was a normal pregnancy and not a Cervical Pregnancy. The contemporaneous record at the time of operation indicated as follows: -
       "Laporotomy (G.A), i.e., General Anesthesia
       While doing the MTP patient started bleeding profusely and signs of internal bleeding was present. So an exploratory laporotomy was done. There was plenty of blood in the peritoneal cavity. The bleeding was from the lateral end of the lower uterine segment. The lower segment was opened and the uterine cavity evacuated. The products were actually in the cervical canal perforating the lower segment. Since the bleeding was not controlled even after evacuation and suturing the lower segment, total hysterectomy was done. Both tubes and ovaries retained. A small rent in the bladder was repaired by Dr. C.B.C. Abdomen closed in layers after perfect haemostasis. 3 units of blood transfused at the time of surgery. Urine drained by folleys Catheter continuously. Urine is clear. Output satisfactory."
       The learned counsel submitted that the appellant is admittedly a high risk patient and she had a normal pregnancy at the previous caesarean scar, as noticed by Dr. Mohan, respondent No. 5, Dr. Mohan not having been examined due weight should have been attached, to the notings made by him, particularly when he was one of the persons present in the operation theatre. This argument was based upon the notings made by Dr. Mohan. In his notes about diagnosis he had remarked pregnancy at the previous scar and it was noticed that the PPH means Post Partem Hemorrhage which means following a delivery. Dr. Somalatha P. Shenoy, respondent No. 3 stated that when the uterus was open she saw the amniotic sac with a small foetus and Dr. Santha Warriar, respondent No. 2, evacuated this product the site of implantation was noticed at the upper cervical canal and at the isthmic area. RW 4, Dr. C. Balachandran, stated that when the uterus was opened, his attention was drawn by Dr. Santha Warriar showing him the foetus in a sac with cervionic tissue presenting at the opening and when the tissue was removed it was noticed to be attached over the anterior wall of the uterus below the scar extending to the cervix. He also averred that site of implantation of tissue extended from the scar in the uterus to the upper part of the cervix and the scar means the scar opened by Dr. Santha Warriar at the site of the previous scar caused by earlier caesarean section, therefore, notings made by Dr. Mohan cannot be stated to be inconsistent with the evidence placed before the court. His examination would not have improved the matters. Even assuming that the noting of Dr. Mohan is not entirely in accord with other evidence, his noting cannot be given undue weight as against overwhelming evidence of other doctors with contemporaneous record that the pregnancy of the appellant was ectopic. Hence, the finding of the Commission on this aspect cannot be assailed at all. If the appellant had ectopic pregnancy in the cervical canal as stated above, the only remedy is Hysterectomy in which event, performance of the test of Ultra sonogram would not have improved the matter at all. At best, Ultra sonogram would have disclosed that uterus was empty and that fact does not establish as to where the pregnancy is located. In this background, we consider, it is futile to indulge in the exercise of study of evidence of doctors and medical literature on the question or the need to conduct Ultra sonogram test or the benefits therefrom. The next allegation regarding negligence on the part of the doctors is that lamineria tent for dilating cervix was used instead of dilapan and again on this aspect certain text-books were referred to. In the evidence of Dr. Rajan, RW 1, it was stated that he was using lamineria tent for dilatation of cervical canal. The use of lamineria test in dilatation of cervix is one of the accepted standard procedures and it cannot be stated that the use of that procedure by respondent No. 2 in respect of appellant constituted a negligent act. (Para 12, 13 & 14)
       Held also : The appellant is a high-risk patient is not in dispute. Respondent No. 2 claimed in her counter affidavit as well as in her statement that she had explained all possible risks and dangers involved to the appellant and her husband when they came to her on 3.2.1990 and 10.2.1990 was fixed for MTP so as to give them sufficient time to reflect over the matter about the dangers of going through for MTP. It is possible for the doctors to have done the MTP or within a short period after 3.2.1990 and the fact that there was sufficient gap between the medical examination of the appellant and MTP which is not less than a week is a circumstance which probalises the respondents version that time was given to the appellant to reflect over the matter. (Para 17)
       (ii) Consumer Protection Act, 1986-Sections 14(1)(d) read with 2(1)(d)(ii), 2(1)(g) and 2(1)(o)-Deficiency in medical service-Claim for compensation on ground of negligence on the part of Hospital and its staff in the matter of removal of appellant s uterus-National Commission dismissing the complaint-Appeal to Supreme Court-Has there been negligence due to any failure of respondents to take precautions to prevent accidental injury? (No)-Whether material on record leads the Apex Court to an inference of negligence on the part of respondents? (No)-Result-Appeal dismissed.
       Held : 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 that 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. (Para 19)
       Held further : Now, let us test whether the material on record leads us to an inference of negligence on the part of the respondents. We have elaborately discussed the question of diagnosis in the decision whether MTP should be done or not; whether non-performance of Ultra sonography has resulted in any negligence; whether there has been any negligence on the part of the concerned doctors in inserting the lamineria tent and allowing it to stand over for more than four hours or whether there has been any damage done to any of the organs of the appellant by the instruments used at the time of Laporotomy and D & C. We have drawn conclusions upon the evidence produced on record and after detailed consideration of medical and oral evidence and the evidence recorded by the Commission with respect to contentions urged on behalf of the respondents, that is, there has been no negligence on their part. On any one of the aspects upon which the learned counsel for the appellant has addressed us, he has not been able to establish that there has been negligence on the part of the respondents. The case of the appellant was of such a kind that it was difficult even for a doctor to diagnose on the evidence on record as to whether she had ectopic pregnancy or not. (Paras 25 & 26)
       After referring case law
       Held finally : In the light of the discussion made above, we find that the appellant has not been able to establish the case of negligence on the part of the respondents and, therefore, this appeal stands dismissed. However, in the circumstances of the case, the parties shall have to bear their respective costs. (Para 29)

JUDGMENT

Rajendra Babu, J.-This is an unfortunate case of a woman losing her uterus - vital organ of regeneration - consequent upon an ectopic pregnancy in the cervical canal, which reason is seriously challenged, but denied equally seriously by the other side.

Appellant before us filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi [hereinafter referred to the Commission ] for compensation on the ground of negligence on the part of respondents in the matter of removal of her uterus. The Commission held that the appellant has not proved negligence on the part of the respondents and dismissed the claim. Hence, this first appeal under Section 21 of the Consumer Protection Act, 1986. The appellant claimed compensation in a sum of Rs. 15 lakhs for loss of uterus with no chance of future pregnancy and mental disturbance or depression leading to disharmony and tension in the family.

2. Facts leading to the said complaint are as follows:

The appellant gave birth to a son on 6.6.1989 after caesarean operation. On or about 3.2.1990 having suspected that she was pregnant again, she and her husband went to Lakshmi Hospital for consultation. The appellant was examined by Dr. Santha Warriar, respondent No. 2. On examination, respondent No. 2 informed the appellant that she was pregnant and it was decided to terminate the pregnancy for which 10.2.1990 was fixed. On 9.2.1990 lamineria tent was inserted when the appellant went to the Hospital. On 10.2.1990 the appellant, her husband and her sister-in-law went to the Hospital at about 8.30 a.m. Dr. Santha Warriar, respondent No. 2, took the appellant to the labour room. At about 10 O clock Dr. Somalatha, respondent No. 3, informed the appellant s husband that the appellant was bleeding profusely and therefore, they have decided to conduct an operation. She also informed the appellant s husband that the appellant was in a very serious condition and it was better to inform her near relatives. At about 4 O clock the operation was over and the appellant s relatives were informed that she was better but under sedation. Dr. Santha Warriar informed the appellant s husband that it was a case of Cervical Pregnancy and her uterus had been removed. The appellant was discharged from the Hospital on 22.2.1990.

3. The appellant complained that respondents had not acted with due care and caution required of medical professionals in diagnosing the problem, in taking care to prevent the problem, in the performance of their duties and lack of necessary facilities and infrastructure at the Hospital. The appellant pleaded that the Dilatation & Currettage (D & C) procedure was unnecessarily done on her which led to other problems resulting in loss of uterus at a very young age.

4. This complaint is resisted by the respondents by contending that they have not been negligent to any extent either in diagnosing the appellant s condition or in administering the required treatment; that the appellant herself approached the respondents for termination of pregnancy because she has a small son aged eight months who was born after a caesarean section; that the appellant was having a Cervical Pregnancy extending to the lower segment of her uterus which is very complicated and rare type of pregnancy which cannot be diagnosed by clinical or vaginal examination particularly in the early weeks of pregnancy; that Hysterectomy is a recommended and established procedure for tackling excessive bleeding in the case of Cervical Pregnancy and in the case of the appellant, Hysterectomy had to be resorted to save her life when excessive bleeding started; that such bleeding was not on account of any negligence in the diagnosis or on account of any faulty procedure adopted in the course of surgery.

5. The Commission, analysed the pleadings and evidence placed before it with reference to various decisions on the matter that were cited in the course of the arguments. The Commission found that the allegation

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2001 Supreme(SC) 1332

Cases Referred (3)