IMPORTANT POINTS
(1) Burden of Proof & Expert Opinion – Under the Consumer Protection Act, to establish medical negligence, there must be material on record or appropriate medical evidence (Expert Opinion) tendered. Negligence cannot be presumed merely from a complication or the need for a second surgery.
(2) Distinction between Complication and Negligence – A known complication (such as sub-acute intestinal obstruction) occurring after a surgical procedure does not constitute medical negligence unless there is substantial evidence or expert opinion demonstrating a specific failure of duty by the doctor.
(3) Res Ipsa Loquitur – The doctrine of Res Ipsa Loquitur cannot be applied simply because a patient failed to respond to treatment or required a second surgery; it applies only when the negligence is so “glaring” that it speaks for itself, which was not the case here as the patient’s condition allowed for conservative management initially.

ORDER

Dr. Monika Malik, Member.—This order will govern disposal of above mentioned two appeals No.1301/2015 (filed by opposite party-Dr. Vandana Adhikari) and 1312/2015 (filed by the complainant) as both the appeals arise out of a common order. However, for the purpose of convenience facts are taken from appeal No.1301/2015, unless otherwise, stated.

2. These appeals are directed against the order dated 5.10.2015 passed by the District Consumer Disputes Redressal Commission, Mandleshwar (for short ‘District Commission’), in complaint case No.99/2014, whereby the District Commission has allowed the complaint filed by the complainant-Smt. Manisha and has directed the opposite party- doctor to pay Rs.1 lakh to the complainant within one month failing which the aforesaid amount is directed to paid with interest @ 8% per annum from 22.9.2014, till payment. Compensation and costs Rs.25,000/- and Rs.2,000/- respectively has also been awarded. The complainant filed appeal for enhancement of impugned award, whereas the opposite party filed the appeal for setting aside of the impugned order.

3. Case of the complainant is such that she had consulted the opposite party/doctor, who is a qualified Gynecologist during the entire term of her pregnancy. On 11.4.2014 she was admitted in her hospital and delivery via caesarean section was done. On 14.4.2014 the complainant developed severe gastric pain and constipation. There was no improvement in her condition despite treatment and was therefore referred to Indore. It is alleged that the complainant was admitted in Synergy Hospital, Indore, where she was re-operated and around 1 ½ litres of pus was removed. It was also observed that the intestines of the complainant got stitched at the time of caesarean section, which was done earlier. The complainant remained admitted in the said hospital for around 10-11 days and had to incur huge expenses. She therefore, alleged deficiency in service against the opposite party/doctor.

4. The opposite party/doctor resisted the complaint on the ground that when the complainant had approached her, upon sonography it was observed that there was a single live foetus in transverse position. She was therefore, advised delivery via Lower Segment Caesarean Section (LSCS). After delivery she also passed motion in the hospital of opposite party, which is mentioned in the treatment sheet produced by the opposite party/doctor. Antibiotics as per protocol were administered and the complainant also started consuming food through mouth. When the complainant complained of pain in her abdomen proper investigations were carried out. Sonography was found to be normal and there was no collection in peritoneal cavity. The complainant despite treatment was observing no relief and she was therefore, referred to higher centre at Indore, as there are better facilities for investigations and therefore, line of treatment could be changed accordingly. Allegations that the intestines of the complainant got stitched are nowhere proved. The complainant subsequently got cured. Therefore, it was prayed that the complaint be dismissed.

5. Heard. Perused the record.

6. Learned counsel for opposite party/doctor and the doctor, who appeared in person argued that the District Commission has failed to observe that the operation was successful and on 4th day of operation, the complainant had complaints of stomach pain. If her intestine got stitched, during said operation, as has been alleged, the complainant could not have survived for that much period. There is no evidence which could prove that the intestines of the complainant were found to be stitched at the time of caesarean section. The Doctor at Synergy Hospital had only repaired uterus and peritoneum stitches. Stitches were put only to repair the uterus. It is submitted that due care and caution was taken by the opposite party/doctor during caesarean section operation. There is no iota of glimpse of negligence in the discharge summary of Synergy