NANJAPPA HOSPITAL Vs. P S SHYLAJA

JUDGEMENT

(1.) This revision petition has been filed to challenge the order dated 21.7.2006 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore ('State Commission' for short) by which the State Commission allowed the appeal of the complainant who is respondent herein and set aside the order of the District Forum. Petitioners herein were OPs 1 2 before the District Forum. For the sake of convenience, the parties have been referred to by their status before the District Forum

(2.) The factual matrix of this case are that on 15.8.2000, the complainant approached OP-1 Hospital for Hysterectomy operation. On 16.8.2000, the operation was conducted by OP-2 who is Gynecologist, who after removal of the uterus sutured the abdomen. She was discharged from the hospital on 19.8.2000 with an instruction to present herself in the Hospital on 23.8.2000 for removal of the stitches. Accordingly, the complainant came to the hospital on that day where OP-2 examined her. After examining her, she informed that all the stitches except one are healed and by saying so, she removed all the sutures. When the complainant got down from the examination table, blood started to ooze from her abdomen from the sutures site. On seeing this, OP-2 told the complainant that there was burst abdomen at the sutures site and immediately shifted her to the operation theatre and performed secondary suturing under general anesthesia. The complainant was treated as in-door patient in the hospital upto 27.8.2000 on which day she was discharged after collecting an amount of Rs. 7,925/-. It is further contended that as per the direction of OP-2, the complainant appeared again in the hospital on 4.9.2000 on which day, alternative sutures were removed and after one week, the remaining sutures were removed. It is the case of the complainant that bursting of the sutures site on 23.8.2000 occurred as a result of carelessness and inefficiency of OP-2 doctor. As a result of which, the complainant not only suffered pain and agony but also had to spend 4 days in the hospital thereby making payment of hospital bill of R. 7,925/- apart from incurring other incidental expenditure. The complainant, therefore, alleged deficiency of service on the part of the OPs and filed a consumer complaint before the District Forum and sought for a direction to the OPs to refund Rs. 7,925/- which the complainant was made to spend unnecessarily and also to pay Rs. 50,000/- as compensation for deficiency of service. , physical suffering, mental agony caused to her plus cost of litigation. The OPs resisted the complaint and denied the allegations of negligence. They submitted that the Monophilament used for suturing had lowest incidence of burst abdomen. They also submitted that enough precaution was taken in anticipation of burst abdomen. The best suited traverse incision was adopted. They contended that burst abdomen was beyond anybody's control and the complainant was properly treated. They, therefore, denied any liability to pay any compensation in the matter. After enquiry and affording hearing to the parties, the District Forum dismissed the complaint mainly on the ground that the complainant has not produced any expert evidence to show that burst abdomen was on account of negligence on the part of OP-2. Aggrieved by the order of dismissal of the complaint, the complainant carried the matter to the State Commission in appeal, which found favour with the State Commission, which accepted the complaint and allowed the appeal of the complainant thereby setting aside the order of the District Forum. The OPs have now approached the National Commission challenging the order of the State Commission.

(3.) We have heard counsel for the parties at length and perused the record of the case. While not disputing the broad facts of this case regarding the operation being carried out, suturing being done, complainant being called on different dates for removal of sutures, oozing of blood and burst abdomen after removal of the sutures on 28.3.200 etc. , learned counsel for the petitioners relying on the ratio laid down by the Apex Court in the case of Martin F. D Souza Vs. Mohd. Ishfaq, 2009 3 SCC 1 submitted that the allegations made by the complainant against the doctor must be proved by an expert evidence and it was for the complainant to prove the negligent act of the doctor in treating the complainant and also that the option exercised by the doctor in treating the patient is not proper. Learned counsel further submitted that the court could not give a decision against the doctor in respect of alleged medical negligence merely on allegations made in a complaint. In the present case, since there was no such expert opinion or proof of negligence against doctor, the District Forum was right in dismissing the complaint and unsuiting the claim of the complainant. In particular, learned counsel has drawn our attention to the observations of the Apex Court in paras 31,42 and 106 of Martin F. D' Souza's case which are reproduced below:-