IMPORTANT POINT
Complainant neither preferred first appeal against OP1 & 2 nor filed revision petition against order of State Commission for enhancement of compensation, neither able to fasten liability upon OP2 nor able to restore order of District Forum.

Dr. S.M. Kantikar, Member—The complainant, Mrs. Poonam Suhas Mali, (in short referred herein as “Patient” ) approached the OP1, Dr. Kishori Kadam on 18.1.2008 with complaints of irregular periods. The OP examined her and advised treatment. On 3.3.2008, patient went to OP1 with complaints of cough and fever. Also, she informed OP1 that she did not get her periods, but OP1 ignored it, and advised medicines for cough only. Thereafter, the patient approached, on 8.3.2008, the Gastroenterologist-Dr. K.C. Kokal (OP2) for her complaints of vomiting and other gastric problems. Dr. Kokal advised some blood tests including Australia antigen, ultrasonography (USG) of upper abdomen and Barium X-ray to rule out gastric ulcer. The patient got investigated, the OP-2 advised medicines accordingly. The patient also consulted the OP3 Dr. Prabha Sawant another Gastroenterologist, who suggested same treatment as OP2. On 14.5.2008, the patient approached Dr. Mamta Shriyan, a Gynecologist, wherein patient was diagnosed as three months pregnancy. After going through the reports, Dr. Shriyan informed the patient about risk of malformation due to multiple (six) X-rays taken during barium study. The USG report dated 13.5.2008 revealed normal study and no obvious fetal anomalies. Thereafter, the patient was examined by another gynecologist Dr. R.M. Saraogi on 26.5.2008, who advised medical termination of pregnancy (MTP); it was performed on same day. The aborted fetus did not show any evidence of abnormality, no postmortem was conducted. Therefore, alleging medical negligence on the part of OP1 & 2 which led to termination of her pregnancy, causing irreparable loss of child, the complainant filed a complaint before the Mumbai Sub Urban Additional District Forum and sought compensation of Rs.19,78,250.

2. The District Forum partly allowed the complaint and held OP1 liable for deficiency in service and negligence and directed OP1 to pay Rs.3,00,000 as compensation along with Rs.50,000 towards mental agony and Rs.15,000 towards cost and the complaint against OPs 2 & 3 was dismissed.

3. Aggrieved by the order of the District Forum, the OP1, Dr. Kishori Kadam filed First Appeal before the Maharashtra State Commission at Mumbai. The State Commission modified the order of the District Forum, that OP1 was not guilty of negligence but there was termination of pregnancy, therefore, fixed the liability upon OP-1 to the extent of Rs.50,000 as a compensation to the complainant and rest of the order was maintained as it is.

4. Aggrieved by the order of the State Commission, the OP Dr. Kishori Kadam (OP1) approached this commission through revision petition.

5. We have heard both the parties. The petitioner/OP1 was present in person along with his authorized representative, Dr.Gopinath Shenoy, who, argued the matter. He submitted that the patient was treated properly. The OP1 is not liable for the MTP which patient underwent. OP1 did not refer the patient to Dr. Kokal (OP2). Even otherwise, the investigations and treatment suggested by Dr. Kokal could not have caused any harm to the patient or the fetus, therefore MTP was avoidable. Further, he brought our attention to the expert opinion given by Dr. Parulekar of K.E.M. Hospital. As per the report, the termination of pregnancy was not warranted in the light of scientific information that, the barium study is not harmful to the fetus. In fact, Barium Meal study found that the complainant had duodenal ulcer, which had been treated by Dr. Kokal. The complainant has not produced any material to show that, the Barium meal ray exposure to the upper part of the abdomen could have adversely affected the fetus. Complainant seems to have relied on material available on internet and seems to have come to the conclusion that such exposure to x ray was harmful to fetus. In any case, termination of pregnancy has absolutely no nexus to any treatment given by the OP1 or suggestion of the OP1 to go to a Gastroenterologist. Therefo