PRABHA CHOUDHARY Vs. SHANTILAL JAIN

JUDGEMENT

(1.) This is an appeal filed by the opposite party Dr. Smt. Prabha Choudhary of Ujjain against the order dated 3.4.2000 passed in Case No.45/1999 by the District Consumer Disputes Redressal Forum, Ujjain (for short the 'district Forum' ).

(2.) Facts of the case in brief are that Smt. Nirmala Devi Jain, wife of respondent/complainant Shantilal Jain who was having some abdominal problem, consulted Dr. Smt. A. Parulekar who is a Gynaecologist at Ujjain. She advised for obtaining ultra-sonography report which was done on 11.7.1997 at Mehta Diagnostics Centre, Ujjain. This report gave a finding that "large Mass in Left Adnexa and Anterior to Uterus measuring 63x96x51 mm could be due to left ovarian mass" and, therefore, suggested operation of uterus and ovary. On 5.8.1997, the complainant's wife was admitted in the nursing home of the appellant No.1 known as Shri Siddeshwar Memorial Maternity and Nursing Home and on the same day Abdominal Hysterectomy under spinal anaesthesia was done which showed that there was ovarian mass. The patient was discharged on 15.8.1997 and was advised to come for check-up after 15 days. The patient came on 1.9.1997, the Doctor prescribed some medicines and the treatment continued but there was no relief in the abdominal pain. The appellant, therefore, again advised for ultra-sonography which was done on 6.10.1997 at Mehta Diagnostics Centre, Ujjain. This report again showed "bulky Left Ovary with cyst measuring 30x26 mm". The patient remained in the treatment of the appellant and when she was advised for another operation then she consulted other Doctors of Indore, who treated the patient but all advised for another operation. The complainant alleges that the appellant Doctor has not performed the first operation with due care and has left some mass in the ovary which has resulted a physical and mental pain to the patient and she is still suffering. She, therefore, filed a complaint before the District Forum and claimed a compensation of Rs.3,20,000/-. The District Forum found that the appellant has committed medical negligence by not romoving the left ovary at the time of performing hysterectomy operation and, therfore, awarded compensation of Rs.40,000/- and Counsel fee of Rs.150/-. It is against this order the appellant has preferred this appeal.

(3.) In her appeal, the appellant had submitted that she had performed operation with due skill and care and as per medical procedure prescribed in medical books. The so-called cyst which was removed earlier can subsequently develop in some of the patients. The medical literature is clear on this point and for a subsequent formation of cyst an operating surgeon cannot be held negligent. The District Forum based its findings on surmises and conjectures. Before the District Forum, the appellant had shown medical literature and produced expert opinion which was not controverted by the complainant. All this medical literature and medical expert opinion proved that cyst may develop after removal of mass/cyst. The District Forum did not consider these points and has erroneously held the appellant responsible for medical negligence. Therefore, the order of the District Forum should be set-aside.