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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member and Dr. S.M. Kantikar, Member
Madaan Surgical & Maternity
Hospital —Petitioners
versus
Smt. Santosh & Anr. —Respondents
Revision Petition No. 3527 of 2012
(From the order dated 17.05.2012 in First Appeal No. 587/2003 of State Consumer Disputes Redressal Commission, Haryana, Panchkula)
Decided on 1.4.2014
(ii) Torts—Medical negligence—In medical negligence cases there is no presumption of or inference of negligence merely because of an unfortunate result which might have occurred despite exercise of reasonable care—Under law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless its proven that an error of judgment was result of negligence—Mere error of judgment occurs when a doctor makes a decision that turns out to be wrong—But to determine whether an error is one of “judgment” or whether it constitutes negligence it has been suggested that court is to look at whether error is so “egregious” as to constitute negligence—It may be more helpful to say that question should be formulated as whether it was a judgmental error that would have been made by a reasonably competent and diligent practitioner. (Para 12)
(iii) Torts—Medical negligence—Doctor is not liable for every injury suffered by a patient—He is liable for only those that are a consequence of a breach of his duty—Once existence of a duty has been established, Petitioner must still prove breach of duty and causation—In case there is no breach or the breach did not cause damage, doctor will not be liable. (Para 13)
Result: Revision Petition disposed of.
Dr. S.M. Kantikar, Member —The present Revision Petition being filed against the impugnedORDER dated 17.05.2012 of the State Consumer Disputes Redressal Commission, (in short, ‘State Commission’) Haryana, whereby the compensation awarded by District Consumer Disputes Redressal Forum, (in short, ‘District Forum’), Sonepat was upheld.
2. In brief, the Complainant Smt. Santosh went to Madaan Surgical & Maternity Hospital, the OP-1 and Dr. Sushma Madaan, the OP-2 did her Ultra-Sonography (in short “USG”) on 17.08.2000. The OP-1 told the complainant that the child has died and dried in the uterus. Thereafter, the Complainant went to Maharaja Agrasen Hospital, who referred her to Madhumita Diagnostic Centre/ OP-3, for another USG. On 18.08.2000, OP-3 performed USG and reported as no evidence of pregnancy, no mass, no free fluid seen in pouch of Douglas, urinary bladder is normal. Thus, alleging it a case of medical negligence and deficiency of service the Complainant filed a complaint before District Forum.
3. The District Forum held the OP-1 and 2 liable andORDERed to pay jointly and severally the sum of Rs.1,00,000/- to the complainant for negligent services as well as for mental harassment, and the sum of Rs.2,000/- towards costs.
4. Aggrieved by theORDER of the District Forum the OP 1 & 2 filed the First appeal before the State Commission, it was dismissed.
5. Against, the impugnedORDER of State Commission, the OP-1 and 2 filed this revision.
6. We have heard the Counsels for the both parties, perused the medical records on file and the evidence adduced before the fora below. The Counsel for the petitioners denied any negligence and any mistake in their USG report. He argued about the limitations of USG study, and stressed upon expert evidence which was not produced by complainant in this case. The Counsel for the complainant vehemently argued that the OP 2 has collected Rs.4,000/- but, no receipt was issued , hence no proof as such.
7. We have perused both the USG reports one reported by OP- 2 Dr. Sushma Madan (Pathologist) and another by OP-3 Dr. Meeta Gupta (Radiologist). Relevant portions of both reports are reproduced as follows:
Report from OP1 & 2 : Madaan Surgical & Maternity Hospital, Dated: 17.8.2000 is as follows:
LOWER ABDOMEN ULTRA SOUND REPORT
A. Uterus and cervix are measuring together 13.2 cm.
B. Uterus is bulky and picture is suggestive of missed abortion.
C. There are different vibrate echoes.
D. Pt. ….(illegible) a mass sign it may be bulky uterus or Rt. Ovarian cyst
i.
Suggested D&C.
Sd/-
Dr. Sushma Madaan
M.B.B.S., M.D. IPCU
ii.
Report from : OP-3 Madhumita Diagnostic Centre,
Dated:18.2.2000 is as follows:
LOWER ABDOMEN U/S EXAMINATION
UTERUS IS NORMAL IN SIZE AND OUTLINE ECHO PATTERN of PARENCHYMA AS NORMAL
NO MASS LESION SEEN
NO EVIDENCE of PREGNANCY SEEN
SIZE of uterus is 4.7 × 4.8 × 3.8 cm.
Thickening of Endometrium 8.6 mm
BOTH THE OVARIES ARE NORMAL
NO MASS OR INFLAMMATORY LESSION SEEN IN ADENEXA BOTH SIDES.
No Free Fluid Seen in Pouch of Douglas
Urinary Bladder is Normal.
8. We have given a thoughtful consideration to these submissions. It is clear that the Petitioner is a senior Pathologist and running a Surgical and Maternity Nursing Home. There is no evidence to say that whether she is competent and qualified to perform and report the USG. In our opinion the said USG report appears to be incomplete, having no details. Just writing “Uterus and cervix are measuring together 13.2 cms appears” is an unscientific way of reporting. Further, the patient was advised for ‘D & C’. In contrast, the other USG report from Madhumita Diagnostic Centre was reported by a qualified Radiologist Dr. Meeta Gupta, MD, which clearly mentions about the size of uterus and thickness of the outline and other findings which is standard way of reporting of USG lower abdomen.
9. No doubt, both reports are divergent. We have to decide whether it is an error of judgment? In our opinion “
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