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Vinubhai Parsottamdas Patel - Appellant
Versus
Vijay K. Ajmera - Respondent
Decided On : 05/10/1996
Complaint No. 100 of 1995
Advocates Appeared :
Dr. M.K. Joshi,Ms. S.H. Shah
Headnote:Consumer Protection Act, 1986 - Section 17 read with Section 12 Medical negligence - Complainant wife admitted in opponent hospital Advised termination of pregnancy by operation of D & E - Complainant wife did not get relief - Suffered abdominal pain - Taken to another hospital - Doctor Advised immediate operation as there were perforations in uterus and intestine and pus had collected in abdomen - Another doctor consulted - Operation for faecal fistula performed and part of intestine removed - Complaint Opponent denied allegation of negligence - Mere denials not sufficient to establish that opponent performed D & E operation with care and caution - Followed standard medical practice in treating complainant wife expected of reasonably qualified doctor - Gross negligence on part of opponent in performing D & E operation Complainant wife suffered physical pain and mental anguish on account of negligence on part of opponent -Opponent directed to pay complainant Rs. 1,50.000/- spent on medical treatment and Rs. 50,000/- as compensation for physical pain and mental anguish.
Held: Considering the evidence on record which is discussed above, we have no hesitation in holding that there was gross negligence on the part of the opponent in performing the D & E operation. The opponent had displayed lack of knowledge and competence in the subject or in the branch of medicine which he was practising. As already observed above, the opponent has not taken care to give proper treatment to Kumudben which is expected of a reasonably qualified gynaecologist. It was on account of negligence on the part of the opponent that Kumudben suffered physical pain and also mental anguish which could have been avoided had the opponent given proper and adequate treatment to her. In our opinion therefore, the complainant has successfully made out a case for payment of compensation by the opponent. . (Para 9)
The next question which is required to be considered is with regard to the quantum of compensation. The complainant has stated that he spent Rs. 1.50.000/- for the ,medical treatment of Kumudben. In absence of any cross examination of the complainant, there is no reason to disbelieve this statement. In our opinion, therefore, the complainant is entitled to claim this amount from the opponent because of opponent performed O & E operation negligently and carelessly; and (2) Kumudben had to undergo two more operations on account of such negligence. The next question is with regard to compensation claimed for physical pain and mental anguish. The complainant has claimed Rs. 5 lakhs. There is no measure for assessing damages or compensation for physical pain and mental anguish. However, considering all the facts and circumstances of the case, in our opinion, compensation of Rs. 50.000/- under this liead would meet the ends of justice. There seems to be no justification to award Rs. 5.00.000/ - under the said head as claimed by the complainant. (Para 10)
Result: Complaint partly allowed.
R.C. Mankad. President.- The complainant who is husband of Kumudben has filed this complaint for recovery of Rs. 6,50,000/- from the opponent on the ground that the opponent was negligent in giving medical treatment to Kumudben
2. Kumudben did not menstruate for three months and therefore the opponent who is a gynaecologist was consulted on March 24, 1995. The opponent examined Kumudben and found that she was pregnant. He advised termination of pregnancy by operation of D & E. Kumudben was admitted to the opponent's hospital and with the consent of the complainant she was operated for D & E on the same day i.e. March 24, 1994. It is the case of the complainant that Kumudben did not get any relief and that she suffered abdominal pain. The abdominal pain increased and the abdomen started swelling. Kumudben also suffered from fever, nausea and vomiting. The opponent's attention was drawn to the condition of Kumudben but he did not take any step to help her or treat her and the condition of Kumudben deteriorated on March 25, 26 and 27. When the opponent did not take any step to give proper treatment to Kumudben, complainant requested the opponent to remove her to bigger hospital. Thereupon the opponent wrote a note which is at Annexure A and gave it to the complaint. The note was not addressed to any particular doctor but it was addressed to a Gynecologist at Ahmedabad.
3. Kumudben was taken to Ahmedabad where Dr. Rajul Shah was consulted. Dr. Shah found that condition of KUl11udbcn was serious. He therefore suggested immediate X-ray examination and sonography. The Xray examination and Sonography were done by Dr. A.N. Dave at midnight and he gave report which is at Annexure -B to the complaint. Dr. Shah, after perusing the report gave opinion to the effect that there were perforations in the uterus and intestine and that pus had collected in the abdomen. Dr. Shah advised immediate operation as the condition of Kumudben was serious. Since, it was not convenient to the complainant to get Kumudben operated at Ahmedabad, she was taken to Vadodara. The complainant consulted Dr. Shashikant M. Shah who was known• to him. Dr. Shah, after investigations, operated Kumudben on March 30, 1995. After this operation, the condition of kumudben slightly improved. Thereafter another operation for ‘faecal fistula’ was performed on Kumudben and part of the intestine had to be removed. It is the case of the complainant that his wife Kumudben recovered after two months of intensive care.
4. The complainant has alleged that the two operations which were performed by Dr. Shah became necessary on account of negligence of the opponent. It is alleged that the opponent had not taken due care and caution in performing D & E operation and therefore there were perforations in uterus and intestine. Complication of 'faecal fistula' was also on account of negligence of the opponent. On the above grounds, the complainant has claimed compensation of Rs. 6,50,000/- which includes expenses incurred for operation etc. and compensation of Rs. 5,00,000/- as stated in para 8 of the complaint.
5. The complaint is resisted by the opponent by his written statement Exh. 5. He has denied the allegation of negligence made by the complainant and submitted that he had performed curetting operation with utmost care. According to the opponent, Kumudben had come to consult him with three months pregnancy on March 24, 1995. She had complained of bleeding. It is submitted that Kumudben's case was of inevitable abortion and therefore, it was necessary to perform D & E immediately. Opponent accordingly gave that advice to the complainant. Consent for operation was obtained. Thereafter operation was performed. Opponent has stated that he gave proper treatment to Kumudben on March 5, 1995 also. However, since Kumudben had pain in abdomen and she was feverish, antibiotic medicines were prescribed. The opponent has stated that he suspected perforation in uterus and. Therefore, suggested l
