Back
2009(2) CPR 221 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
Ashok Bhan, President and B.K. Taimni, Member
Mrs. Varsha Priya —Complainant
versus
Dr. Sushma Pandey & Anr. —Opp. Parties
Original Petition No. 204 of 1998
Decided on 24.4.2009
Case Referred:
1. Jacob Mathew v. State of Punjab and Another (2005) 6 SCC 1. (Para 7)
Counsel for the Parties:
For the Complainant:Mr. Shashi Shankar, Advocate.
For the Opp. Party:Mr. Atul Kumar, Advocate.
IMPORTANT POINTS
(1) So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would have chosen to follow or resort to the practice or procedure other than what was followed by the Doctor attending.
(2) Burden to prove medical negligence is on the part of the complainant.
Headnote:Consumer Protection Act, 1986—Sections 2 and 14—Medical negligence—Burden to prove is on complainant—A case of occupational negligence is different from one of professional negligence—A simple lack of care, an error of judgment or accident is not proof of negligence on part of medical professional—Complainant delivered child by Caesarian operation and when brought of operation theatre she was found blue and cold, gasping and had serious breathing problem—Opp. Party was alleged to have malafidely concealed fact that complainant had suffered a cardiac arrest on operation table and had been revived after massage and on artificial respiration—She was treated in Heart Hospital and was diagnosed suffering from Anoxie encephalopathy—Negligence alleged was that though only a gynaecologist, O.P. herself had administered spinal anaesthesia which induced hypertension, cerebral anaxia and patient went into coma for 18 days—Complainant failed to prove medical negligence—Spinal anesthesia was given by anesthetist who filed his affidavit—No expert was examined if condition of patient could have developed for any act of negligence or omission—Complaint was without merits. (Paras 7 to 12)
Result: Complaint dismissed.
Ashok Bhan, President—Smt. Varsha Priya, Complainant No.1 and Shri Sarvipriya, husband of Petitioner No.1 have filed this complaint alleging medical negligence on the part of Dr . Sushma Pandey, Opposite Party No.1 who was at the relevant time running Pandey Nursing Home, Opposite Party No. 2 herein. She has claimed total compensation to the tune of Rs. 27.07,800/- in terms of relief claimed in Para-14.
Facts as alleged by the complainant are under:
2. Smt. Varsha Priya, complainant No.1 delivered a female child at Brindavan Nursing Home, Salimpur Ahra, Patna on 21.8.1995. The said delivery was normal. On 12.9.1996, Varsha Priya, complainant No.1 was admitted in the Pandey Nursing Home, with 8¼ months pregnancy with blood stains. It was diagnosed to be a case of Amenorrhoca. She was attended to by Dr. Sushma Pandey and was discharged on 13.09.1996 after prescribing certain medicines and bed rest. She was re-admitted on 20.09.1996. Opposite Party No.1 advised caesarian operation as the life of the foetus was in danger. She was taken to the labour room at 5.30 p.m. and on the same day at about 7.30 p.m. Opposite Party No..1 informed the complainant No. 2 and his family members, friends and relatives that the complainant No.1 had delivered a male child at 7.20 p.m. Opposite Party No.1 assured the family member of complainant No.1 that she was in the operation theatre and was normal. Complainant No.1 was brought from the operation theatre to her room at 10.40 p.m. on 20.9.1996 in unconscious state in the presence of her husband, mother Mrs. Pandey Lally Sahay, mother-in- law Smt. Premlata Prasad, brother Sri Raj Kumar Sahay, Mr. Prabhakar Roy and friends and relatives. At about 3.30 a.m. on 21.09.1996 Shri Raj Kumar Sahay, brother of the complainant and other relatives noticed that hands of Complainant No.1 were turning blue and cold. She began gasping for air and developed serious breathing problems. They franticly called for help but nobody was available immediately and later on relatives and friends of complainant No.1 forced the respondent Doctor who stays on the upper floor of the Nursing Home to come down and attend to the patient. According to the complainant, Opposite Party No.1 had malafidely concealed the fact that the complainant had suffered a cardiac arrest on the operation table and that she was revived after massage on the chest and kept on artificial respiration. The condition of the complainant deteriorated further and became very serious forcing the family members of the complainant to call Dr. Achal Sinha, a Cardiac specialist to the Nursing Home at about 8.30 a.m. who advised the family members of the complainant No.1 to take her to Dr. A.K. Thakur’s Heart Hospital (Pvt.) Ltd. According to the complainant, the respondent doctor kept the treatment book of the patient in her custody which was lateron handed over to them on their insistence. Dr. A.K. Thakur immediately sent Dr. Emanul Haque at 9.00 a.m. to Pandey Nursing Home to examine the patient. Dr. Haque took the ECG of the patient at 9.05 a.m. and diagnosed that the patient was suffering from Anoxic encaphalopathy and further advised that the patient urgently needed vital support systems and cardiac monitoring.
3. The negligence alleged is that the Opposite Party No.1, who was only a gynecologist, had without the assistance of an anesthetist, herself administered Spinal anesthesia to the complainant No.1 although she was completely incompetent and unqualified to do so. Spinal Anesthesia induced hypertension, cerebral anaxia, and the complainant went into coma for the next 18 days. She has still not fully recovered and is suffering from complete loss of memory and has no control over her physical movements.
4. On notice being issued, Opposite party filed her reply denying each and every allegations, averments, contention and statement as set out in the complaint save and except those specifically admitted. It was stated that Opposite Party No.1 had passed
