SATWANT KAUR Vs. KANWALJIT KAUR

JUDGEMENT

(1.) This appeal is by the complainant, Mrs. Satwant Kaur challenging order of District Forum, Amritsar dated October 31, 1996 whereby the complaint was dismissed. Satwant Kaur delivered a female child through caesarian operation on September 1,1993 at Guru Amar Dass Hospital, Amritsar. The delivery was conducted by Dr. Kanwaljit Kaur-the opposite party. Since pain in the abdomen persisted, she was readmitted on October 24,1993. A surgery was conducted by the opposite party for tubectomy. Finding no relief, another surgery was conducted by the opposite party to probe the cause. At this stage, it may be observed that this part of the version of the complainant is denied by the opposite party. Ultimately in December, 1993, the complainant was removed to Dr. Prem Rai Nursing Home where Dr. Harbilas Rai performed the operation and recovered a cotton sponge from the rectum, which gave ultimate relief to the complainant. Alleging negligence on the part of the opposite party in leaving the cotton sponge in the body of the complainant while performing the operation referred to above, the complainant claimed Rs.7 lacs as compensation for the loss suffered. The complainant had to employ a servant and a teacher for household duties @ Rs.300/- per day from September 1, 1993 and compensation on that count was claimed. Costs of Rs. l.000/- were also claimed. The opposite party on notice of the complaint submitted its version admitting about delivery of the child through caesarian operation and thereafter performing tubectomy. It was denied that during the operation performed, any cotton sponge was left. Story of recovery of sponge from the colon was denied. Even otherwise, it was stated that it was improbable as the colon had no connection with the uterus on which the opposite party had operation. Both the parties produced their evidence on affidavits. The statement of Dr. Harbilas Rai was recorded by the District Forum. The District Forum vide detailed impugned judgment came to the conclusion that the complainant had failed to solve the mystery as to how the sponge was found in the colon. While making reference to the evidence of Dr. Harbilas Rai, which was recorded in the Forum, the opinion was expressed that sponge could not be thrusted into body through anus or through mouth, the only two approaches to the colon. Furthermore, with the existence of the sponge, the patient could not live for about four months as the sponge had completely blocked the exit (anus ).

(2.) Mr. Updip Singh, learned Counsel for the complainant vehemently argued that it is a case of prima facie negligent act on the part of opposite party in leaving the sponge while performing caesarian operation or tubectomy. This contention is devoid of merit. No medical experts' evidence has been produced by the complainant that either in the process of caesarian operation for delivery of the child or for performing tubectomy, the sponge could enter the colon. It may be observed that Dr. Harbilas Rai did not refer to any damage/injury caused to the colon that it could be assumed that sponge could enter the colon. It may be observed that all the vital organs in the body remain sealed and in separate compartments. It is only after injury is caused that the contents of such organ would come into cavity and cause damage to other organs. Dr. Harbilas Rai rightly stated when unable to give source of entry of the sponge in the colon that it was for the complainant to explain. Otherwise, his evidence is not helpful to the complainant in coming to the conclusion that while performing caesarian operation for delivery of the child or for tubectomy or for probe operation of the abdomen without causing injury to the colon, the sponge could enter therein. Ipse dixit of the complaint in such like matters cannot be accepted to hold the charge of negligence on the part of the doctor in such circumstances.

(3.) To be fair to the Counsel for the appellant, reference be made to the three cases cited by him. S. Mahendran V/s. Chirayinkil C. P. Bhadrakumar,1992 2 CPR 667. That was a case of deficiency in rendering service alleged against a local Lawyer, who was engaged to file the suit for specific performance. The Lawyer was giving evasive answers to the queries of the complainant regarding filing of the suit. Subsequently, it was found that no suit was filed. The observations on which reliance is placed refer to decision of the case on probabilities, if no decisive documentary evidence from either side has been produced. The ratio of the decision aforesaid cannot be applied to the case in hand. In order to prove medical negligence, FORA can take up the case of apparent negligence or negligent act proved by expert opinion as laid down by the Supreme Court in Indian Medical Association V/s. Y. P. Shantha, 1995 3 CPJ 1. If the complainant had failed to produce any such evidence, no relief can be granted to the complainant. The other case relied upon is of Goa State Commission in Ramanand B. Raikar V/s. Salgaonkar Medical Research Centre and Anr.,1993 3 CPR 300. It was laid down that the hospital rendering service to patient for consideration is liable for payment of compensation, if its services are found to be deficient. In that case, gauze towel was left negligently in abdominal cavity of the complainant during the operation performed by the opposite party. This resulted in post splemectomy fever and septicemia. The complainant was treated in another hospital for about 71 days. There such towel was removed. On facts, the ratio of the aforesaid decision cannot be applied to the case in hand. As already observed, the sponge was not found from the cavity or from the uterus for which the opposite party had operated the complainant. The third case is of Gujarat State Commission in Aphraim Jayanand Rathod V/s. Shailesh Shah, 1996 1 CPJ 243. The complainant was operated for apendicitis. He was second time operated under the guise of removal of stitches for which no consent was taken from the complainant and it was held that this amounted to deficiency in rendering service. In the present case, it has been asserted that the opposite party had not taken consent of the complainant for tubectomy and thus the opposite party should be held to be negligent. This contention cannot be accepted as such a written consent was taken, which is Annexure-IV.