SUPREME COURT OF INDIA
S. Rajendra Babu & K.G. Balakrishnan, JJ.
VINITHA ASHOK—Appellant
versus
LAKSHMI HOSPITAL AND ORS.—Respondents
Civil Appeal No. 2977 of 1992 from Judgment &
Order dated 8.5.1992 of National Consumer Disputes Redressal Commission,
New Delhi in O.P. No. 11 of 1991—Decided on 25.9.2001

Headnote: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).

       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 laparotomy 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 RW4, stated that whether perforation was by an instrument or not can be clearly seen after laporotomy 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perforates the uterus, it can be stopped by suturing and it may even stop automatically when the instrument is withdrawn.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:-

       "Laparotomy (G.A), i.e. General Anesthesia

       While doing the MTP patient started bleeding profusely and signs of internal bleeding was present. So an exploratory laparotomy 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."

       If the appellant had ectopic pregnancy in the cervical canal as stated above, the only remedy is Hyterectomy 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 for 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 of 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.

       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 of 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.

       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 appellants 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.

       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.

       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 and 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.

       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.

       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).

       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 laparotomy 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 RW4, stated that whether perforation was by an instrument or not can be clearly seen after laporotomy 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:-

       "Laparotomy (G.A), i.e. General Anesthesia

       While doing the MTP patient started bleeding profusely and signs of internal bleeding was present. So an exploratory laparotomy 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."

       If the appellant had ectopic pregnancy in the cervical canal as stated above, the only remedy is Hyterectomy 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 for 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 of 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.

       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 of 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.