DR. A.K. JAIN, MBBS PGC (SONOLOGIST) DR. USHA JAIN, MBBS, DGO RISHABH MEDICAL CENTRE, ALL AT IXI 2392, STREET NO.12, KAILASH NAGAR, DELHI Vs. SMT. SWETA KHANDELWAL, W/O SHRI AMIT KHANDELWAL, H.NO.1903, GALI NO.3, KAILASH NAGAR, GANDHI NAGAR, DELHI

JUDGEMENT

(1.) All the three appellants were OPs before the District Forum (East), Saini Enclave in Complaint Case No.106/2013 which was allowed vide order dated 30.04.2014. The respondent filed complaint on the allegations that she was pregnant and was treated by appellant no.1 & 2 in appellant no.3 hospital. 13th Sept., 2012 was the expected date of delivery given to her. She was admitted in the Nursing Home of the appellant and was conveyed that delivery would be caesarean, she was asked to arrange for blood. Operation was conducted and a female child was delivered. She was charged Rs.12,000.00 in hospital on medicines and allied requirement for operation. She was discharged on 18.09.2012. Her condition was not good, she approached doctor again, she was sent back after saying everything was fine, her stitches were removed. On reaching home, her condition deteriorated. She visited the doctor at appellant Nursing Home and was told that because of digestion problem she was feeling like that. On 23.09.2012 her condition further deteriorated and her stomach was swollen like balloon. She was shifted to St. Stephen hospital where she was operated and she remained admitted upto 11.10.2012. Her discharge summary recites purulent 1.5 Lts. pus drained, Cavity of sponge found in POD, pus and sponge shown to relatives.

(2.) Appellants contested the case. They pleaded that no cause of action arose, complaint was bad for mis-joinder of parties. Appellant-1 never participated in surgery of respondent for delivery of child. According to them, respondent had not come with clean hands, she had not disclosed that she had already been operated upon for LSCS in hospital in Bharat Pur at Rajasthan. The possibility cannot not be ruled out that sponge was left in hospital at Bharat Pur, was not removed and the same remained in existence. The doctor of appellant-3 did not touch the portion from where alleged sponge was removed as per allegations in complaint. Appellant-3 charged only Rs.29,000.00. At the time of discharge, respondent and her baby was in perfectly good condition and there was no complaint alleged by respondent with regard to the treatment given by respondent-3. Stitches were removed on 22.09.2012 satisfactorily and there was no complaint made by respondent at that time. Thereafter, respondent never came. No sponge was left in the abdomen while conducting surgery by appellant-2 and his associated doctors. There is no documents or allegations in the complaint that respondent suffered permanent disability due to surgery conducted by appellants. Notice was replied on 08.01.2013.

(3.) Both the parties lead evidence by way of affidavit, appellants placed on record various medical literature showing that there had been no deficiency in service and there is no negligence on the part of appellants. Written arguments were filed. Complainant filed her own affidavit only. She did not file affidavit of any doctor nor examined any doctor of St. Stephen Hospital. District Forum directed the appellant to pay Rs.10 lacs as compensation. Hence, this appeal. In appeal, the grievance of appellant is that sponge allegedly found in the belly was not produced. As per requirement and procedure adopted in’ medical science if any foreign body is recovered from the body of a person who has been operated upon, the same is required to be sent for biopsy. In the present case exact length, width and height or shape of alleged sponge has not been given in the alleged discharged summary issued by St. Stephen Hospital. The alleged discharge summary, nowhere shown the alleged pus was found on account of alleged sponge. WBC count were 13.3 whereas normal value is upto 11.00, the WBC is an indicator of infection which is in the body. Since WBC were marginally at a higher side, respondent was not suffering from septicaemia. Sponge was at the back of uterus but while performing caesarean operation, doctor is not supposed to go at the back of uterus. In case of caesarean operation, only uterus is incised from front and there was no question of leaving behind sponge behind the uterus. Pus 1.5 ltr. was allegedly drained and the same was not reflected in ultrasound. The District Forum erred in holding that it was for the appellant to show that respondent was operated upon at Bharat Pur. This is demolished from the fact that respondent had admitted in her rejoinder about caesarean delivery of first child at Bharat Pur. It was incumbent duty of the District Forum to appoint a medical team of experts and seek their opinion as to whether alleged sponge caused the pus. The order of the District Forum used word ‘fresh sponge’ while St. Stephen Hospital discharge summary does not find any such word ‘fresh sponge’. The District Forum erred in holding that before doing caesarean section, it was necessary for the doctor to explore all aspects if patient was not suffering from any infection in abdominal cavity. In caesarean operation of delivery of child, CT Scan or X-Ray is prohibited as CT Scan may cause deformity in the child. Only Ultrasound is conducted. In the present case ultrasound was conducted. Since alleged sponge was at the back of uterus, the same could not be detected. The order is based on surmises and conjectures as it held that respondent might have died and child born to her on 13.09.2012 might have never received love and care of her mother. St. Stephen Hospital and hospital in Bharatpur where the first surgery was perform, were necessary and proper party for deciding the allegations made in the complaint. The award of Rs.10 lacs is arbitrary, unjustified enrichment to the respondent. It has been held by Hon’ble Supreme Court that for negligence consumer’s can claim to be compensated must cause some loss or injury to him. Mere surgery without negligence is not contemplated.