SHODA DEVI Vs. DDU/RIPON, HOSPITAL

JUDGEMENT

(1.) The brief facts in this case are that the complainant, Ms. Shoda Devi (for short "the patient") was suffering from abdominal pain and some menstrual problem. She visited the Deen Dayal Upadhyay Hospital (for short "the DDU hospital) at Shimla (OP-1), on 10-07-2006. She was examined by Dr. Rita Mittal (OP-2). After investigations and Ultrasound (USG) study, she was diagnosed as having fibroid and endometrial hyperplasia. She was advised to undergo minor operation i.e. Fractional curettage (DAndC). Accordingly, on 19-07-2006, D And C was performed by OP-2. It was alleged that D And C was performed without any anesthesia. It was also alleged that, on the instructions of OP-2, injection Phenargan and Fortwin in her right forearm were given by the staff nurse, Neelam Gupta (OP-3), who was not competent to administer injections. During administration of injection, the complainant felt acute pain in right hand and also pain during the D And C procedure. She informed the OP-2, but the OP-2 ignored her cries and unbearable pain undergone by her. Throughout the procedure, she continued to feel acute pain in her entire right forearm. No remedial measures were taken for 1½ hours of DAndC procedure. The doctors attended to her after considerable delay and thereafter, referred her to Indira Gandhi Medical College And Hospital, Shimla (IGMCH); where amputation of her right forearm above elbow was performed. The complainant filed an FIR before the Police Station, Sadar Shimla; also filed a complaint before the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short "the State Commission") for alleged medical negligence against the OPs, which led to amputation of her right hand and 100% disability. She also had suffered loss of income at the rate of Rs.5,000/- per month; besides Rs.2,000/- as extra financial burden on keeping a personal attendant. The complainant claimed Rs.37,80,000/- before the State Commission.

(2.) The OPs resisted the complaint and raised preliminary objection that, the complaint was not maintainable because the complainant was not a consumer, and the OPs had not provided any services for any consideration. The services rendered to the patient were free of charge. Therefore, her case was not covered under Section 2(1)(d) and 2(1)(o) of the Consumer Protection Act, 1986. The OP-2 further submitted that, on 19-07-2006, Fractional curettage (DAndC) was conducted under IV sedation in the minor operation theatre (OT). On the same day, about 14 other cases were scheduled for similar procedures in the minor OT. The complainant was taken to the minor OT at around 1:45 P.M.; the OP-3 administered IV Phenergan and Fortwin injections; for sedation and analgesia. The OP-3 was a qualified and experienced staff nurse having more than ten years of experience and competent to administer the injections. The Fractional curettage procedure was completed in minor OT within five minutes and there was no pain to the patient. The patient was fully cooperative and properly sedated. The patient was shifted to Gynec. ward and kept under observation. She had no complaint of any pain in her right arm. At about 2:30 P.M., the attendant of the complainant approached the OP-2 and informed about severe pain in her right forearm since 30 minutes; immediately the OP-2 attended the patient. As, there were no clinical signs or changes in color of the patient's right arm; the pain killer injection Voveran and IV fluids were prescribed. Again at 3:30 P.M., the OP-2 examined the patient, which revealed feeble Radial pulse and her right forearm was pale, thus, it was the beginning of ischemic process in the right hand. The OP-2 immediately called for second opinion from the Department of Medicine and in the meantime, prescribed injection Tramadol. Around 4:00 P.M. it was confirmed that the right hand had suffered ischemia and, therefore, the patient was immediately referred to IGMCH for further management. Consequently, on 27-02-2006 at IGMCH, amputation was performed because of gangrene of right hand. Thus, there was no negligence on the part of the OPs.

(3.) On the basis of the pleadings, evidence and medical record, the State Commission did not find either medical negligence or deficiency in service on the part of the OPs and dismissed the complaint. However, as per the directions vide Government Order dated 16-09-2008, an ex gratia amount of Rs.2,93,526/- was allowed to be paid to the complainant. Being aggrieved by the impugned order, the complainant filed this appeal for enhancement of the compensation.