2006 (3) CPR 309
M.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, M.P., BHOPAL
Hon’ble N.K. Jain, President, Smt. Pramila
S. Kumar and Smt. Neerja Singh, Members.
Mrs. Veenita Chandok—Complainant
versus
Dr. Meera Sanghi & Anr.—Opposite Parties
CC No. 42/2001
Decided on 4-10-2006

IMPORTANT POINT
Injury which could be foreseen or anticipated by operating doctor but no steps if taken to prevent such injury or to repair it at earliest amounts to negligence on part of doctor.

Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Medical negligence—Complainant a married woman aged 24 years was admitted as a case of I.U.D.—Pelvic sonography revealed 14.5 weeks foetus with head crumpled and no cardiac activity or movements—D&C was performed by opp. party under anaesthesia—Perforation of uterus was suspected—Exploratory laparotomy revealed perforations on posterior wall of fundus of uterus mucosa and gut was going into uterus—Abdomen was closed and patient was referred to Hospital where surgery was performed—After four months another surgery had to be taken up and again after 4 months colostomy closure was done—Compensation claim alleging negligence in performing D&C—Literature on internet revealed that risk of perforation though rare was very much there related to stage of pregnancy and skill and experience of abortion provider—Injury caused to complainant was not one which did not occur or something which could not be foreseen or anticipated by operating doctor—It was not a case of mere perforation in uterus or injury to bowel or bladder but very substantial parts of colon both transverse or descending as also of rectum were cut off and seemed to have been taken out along with dead foetus—Principle of Res Ipsa Loquitur could be preferred in service—Opp. Party was guilty of medical negligence—Complainant had undergone five surgeries and spent Rs. 5 lakhs —Amount awarded with further compensation of Rs. 5 lakh for physical and mental trauma—Opp. Party doctor and insurer held liable jointly and severally to pay compensation amount of Rs. 10 lakhs.

       Held: Turning to the facts of the case in hand, it may be observed at the outset that the injury caused to the complainant was not the one which does not occur or something which could not be foreseen or anticipated by the operating doctor. That being so, opposite party – Dr. Sanghi was expected to take care that either the injury does not occur or that it is repaired at the earliest. However in the instant case Dr. Sanghi, we are constrained to say, did not seem to have done either. The affidavits of two doctors Dr. Diwani and Dr. Dhananjay Sharma who examined the patient and also conducted exploratory laparotomy of the complainant the same afternoon, are rather revealing. They found that entire anterior part of distal transverse colon, descending colon and sigmoid colon missing which prevented any salvage of traumatized bowel. It was not a case of mere perforation in the uterus or injury to the bowel or the bladder, but very substantial parts of colon both transverse or descending as also of rectum were cut off and seemed to have been taken out along with the dead foetus. Needless to say that this happened while trying to scrape the embryo or foetus and placenta from the uterine wall. How and why all this had happened was for the opposite party - doctor to explain. The principle of “Res Ipsa Loquitur” can certainly be pressed in service and unless the opposite party-doctor furnishes proper explanation, it can safely be inferred that she did not exercise, with reasonable competence, the skill which she claimed or was expected to possess. She is clearly guilty of medical negligence causing the aforesaid injuries to the complainant and putting her to lot of expenses, besides mental and physical trauma for all these years.

       As regards the compensation, complainant had to undergo five surgeries after the procedure in question. Three were done at Mumbai. Her claim for Rs. 5,00,000 incurred in the follow-up treatment cannot be thus termed as unreasonable. A further compensation of Rs. 5,00,000/- for the physical and mental trauma suffered by the complainant will in our opinion, meet the ends of justice.

       Opposite Party – Dr. Sanghi on the date of operation was insured with opposite party No. 2 – the National Insurance Company Ltd. to the extent of Rs. 10,00,000/-. The Insurance Company is, therefore, liable to indemnify Dr. Sanghi against the liability imposed on her for payment of compensation to the complainant. (Paras 12 to 14)

       Result: Complaint allowed.