IMPORTANT POINT
Medical negligence – Onus to prove medical negligence lies largely on claimant.

ORDER

Sunita Yadav, President—Aforesaid appeals arise out of the order dated 23.01.2013 passed by the District Consumer Disputes Redressal Commission, Bhopal (for short ‘District Commission) in C.C.No.575/2004 whereby the complaint filed by the complainants has been allowed.

2. First Appeal No.232/2013 is filed by the opposite party no.1 and 2 doctors for setting aside the impugned order whereas the First Appeal No.468/2013 is filed by the complainants for enhancement of compensation. Since both appeals arise out of same order, therefore, they are taken up together and are being disposed of by this order. Facts of the case are taken from First Appeal No.232/2013 unless otherwise stated.

3. The brief facts giving rise to the complaint before the District Commission are that the complainant no.1’s wife and complainant no.2 & 3’s mother Smt. Kavita Talwani having complaint of acute lower abdomen pain consulted the opposite party no.1-Dr. Malti Bhojwani first time on 26.01.2002 and the opposite party no.1-doctor after getting some investigations started treatment. Again on 06.03.2002 she visited the hospital and the opposite party no.1-doctor after examination and investigations prescribed medicines. Thereafter on 21.03.2002 again the patient approached the opposite party no.1-doctor and was admitted as indoor patient in opposite party no.1’s hospital on the same day i.e. on 21.03.2002, where she underwent an operation on 22.03.2002. It is alleged by the complainant that during operation the operating surgeon opposite party no.1-informed the complainants that by mistake large intestine was cut and therefore the opposite party no.1 and 2 doctors called Dr.B.M.Loya but he was busy therefore, the opposite party no.3 Dr. Ashok Nigam was called. It is further submitted that the doctors told that colostomy is necessary to save the patient and informed that tumor was removed and the large intestine was packed with sponge to close the bleeding from large intestine.

4. It is alleged that the opposite party no.1 doctor without treating the patient discharged her on 03.04.2002 when she had no relief. Thereafter the complainants took the patient for post-operative follow ups but when there was no relief, they took the patient to Adarsh Hospital, Bhopal of Dr. B.M. Loya, where the patient admitted on 01.06.2002. On 06.06.2002 Dr. B.M. Loya performed surgery and found that a sponge was fixed near large intestine. Dr. Loya informed that in order to stop the bleeding from the large intestine sponge was put and after repairs, sponge used to taken out but the earlier surgeon left the sponge in abdomen due to which the sponge strangulated the large intestine which was to be repaired first. Thereafter he treated the patient till 02.07.2002 and discharged on 03.07.2002 stating that now her treatment is not available at Bhopal and advised to go to Indore or Mumbai for further treatment. Thereafter the patient was taken to Bombay Hospital, Mumbai where she was admitted and Dr. S.K.Mathur told the complainants that there are 50-50% chances of survival and treatment will continue for one and half month. On 13.07.2002 Dr. Mathur performed surgery and patient remained in ICU. On 01.09.2002 the patient died in ICU. The complainants therefore filed a complaint before the District Commission alleging negligence and deficiency in service on part of opposite party no.1 & 2-doctors and the insurance company.

5. The opposite party-1 doctor in her reply before the District Commission admitted that for the first time the patient was brought to her on 26.01.2002 with complaint of acute pain in lower abdomen. On clinical examination and investigations found Tubo Ovarian Mass in her lower abdomen which was not mobile and was tender. The patient was prescribed some medicines and was asked to come after one week for follow up but she did not turned up. Thereafter on 06.03.2002 the patient visited with complaint of pain in lower abdomen, medicines were continued and advis