YASMEEN KHAN Vs. SABIHA HAMID MAJOR

JUDGEMENT

(1.) These two cross appeals filed under Sec. 19 of the Consumer Protection Act, 1986 (in short, the 'Act') challenge the order dtd. 6/10/2021 of the State Consumer Dispute Redressal Commission, Uttar Pradesh, Lucknow (in short, the 'State Commission') in consumer complaint no. 32 of 2013. FA 751 of 2021 filed by the appellant doctor challenging the order of the State Commission upholding the complaint filed by the respondent patient who has filed appeal no. 60 of 2022 seeking enhancement of the compensation awarded by the State Commission. This order will dispose of both the appeals. In view of both the appeals emanating from the same order, and being based on the same set of facts, FA 751 of 2021 is taken as the lead case.

(2.) The relevant facts of the case, in brief, are that the appellant doctor who is a gynaecologist in Dr M. Khan Hospital, Stadium Road, Bareilly performed a caesarian Sec. operation on the respondent patient in the above hospital on 1/11/2010 under epidural anaesthesia and the respondent delivered a healthy male child After post operative procedures the respondent and child were discharged on 4/11/2010 when her vitals were found normal with advise to follow up after 10 days. While she did not return for any follow up, on 16/2/2011 the respondent contacted Dr Javed Khan on the said hospital complaining of pain in the abdomen which was diagnosed as acute colitis and she was managed conservatively between 16-23/2/2011. On getting no relief, she consulted Dr Rajeev Gupta, a gastroenterologist on 28/2/2011 and thereafter went to the Sanjay Gandhi Post Graduate Institute (SGPGI), Lucknow on 8/5/2011. An ultrasound examination done here revealed an air shadow in the Pouch of Douglas with anterior elevation of lower uterine body. On 28/5/2011 she underwent transvaginal scan which revealed bulky uterus and cervix with thickened walls. The culture sensitivity was found sterile. On 10/6/2011 per speculum examination was done, vaginal smear taken for culture and sensitivity, PAP smear taken and scanty curettings sent for histopathological examination. She was managed conservatively till 22/6/2011 when Dr Deepa Kapur found a gauze coming out from a rent in the vaginal wall on per speculum examination. The respondent was operated upon on 23/6/2011 and the gauze (mop) was removed through the vagina. The gauze measured 12 x 12 cm soaked in faecal material and was therefore sent for incineration. As there was a rent in the vagina of 4x3 cm diameter, the respondent was operated on 28/11/2011 and transverse loop colostomy performed. She was discharged after post operative treatment on 2/7/2011. A follow up closure of colostomy was done on 6/1/2012 and she was discharged on 11/1/2012 whereafter her condition improved.

(3.) The respondent's husband filed an FIR No. 571/2011 at the Police Station, Baradari, Bareilly and also complaints against the appellant and the hospital alleging medical negligence and claimed damages. The matter was referred to the Chief Medical Officer (CMO) and a Medical Board was constituted comprising two senior gynaecologists and one Additional CMO. The Medical Board, after detailed enquiry, including recording the statement of the Operation Theatre (OT) Assistant Rajveer and inspection of the OT, held that there was no conclusive evidence since the size and shape of the mop used in the hospital was different to the one that was removed from the genitals of the respondent (who did not appear before the Board) and the mop in question was not presented for examination.