Asha (Dr.) vs Mohd. Quasim

REVISION petitioner, Dr. Asha has initiated the current proceedings against concurrent orders of the District Consumer Disputes Redressal Forum, Deoghar and Jharkhand State Consumer Disputes Redressal Commission. The complaint of respondent/Mohd. Quasim, was allowed by the District Forum and the appeal against it by the RP/OP -Dr. Asha was dismissed by the State Commission. The complaint had arisen out of a surgery (hysterectomy) performed by the O.P. on the wife of the complainant on 23.7.2003 and her subsequent death in another hospital on 28.8.2003, resulting from alleged post -surgery complications. In a detailed and analytical order the District Forum reached the conclusion that it was a case of medical negligence and awarded compensation of Rs. 1.70 lakh to the complainant. While doing so the District Forum has observed: Without doing required tests, O.P. has done the operation for removal of uterus. O.P. has also transfused two bottles of blood but after taking money. O.P. had denied taking money in her evidence and written statement. O.P. has also stated in her written statement and evidence that after seeing the critical condition of the wife of complainant Matiza @ Sahida Khatoon and at the request of the complainant and his relatives, she has refused to give treatment and advised to take her Asansol or Patna but on the continued request made by the people she agreed to treat the patient but for this purpose she has not taken any money. The husband of the patient, the present complainant, had assured to give Rs. 3,000 after operation. So far is the question of Blood Test, X -ray and other necessary test as ultrasound is concerned the patient was so advised. But Ultrasound Machine was not operational at that time at Madhupur. The O.P. has produced the document of Rahul Medical Clinic, Madhupur, dated 23.7.2003 and of further dates to support the fact that the doctor had suggested for blood test and other test but the complainant had not mentioned these things in his complaint and even O.P. has not mentioned these things in the prescriptions issued by her. O.P. has also not mentioned of these things in Bed Head Ticket that before operation the doctor has seen the test reports. The O.P. has not mentioned in the prescription issued on 5.8.2008 that she had given the advice for blood test and X -ray or ultrasound and the report of the same reached to her before operation and on the basis of which the patient was operated. Before doing operation 1 unit of blood was transfused on the patient and 1 unit of blood A+ was transfused on 30.7.2003. O.P. has also stated regarding the treatment in her evidence and written statement but to prove these things no register/record has been produced by the O.P. and due to which the statement of O.P. is not reliable. Without producing the register/record, the aforementioned facts cannot be proved. Therefore, it seems that the O.P. has performed the operation in haste without getting necessary test done. O.P. did not get creatinine level of blood tested, due to which the damage occurred in the kidney could not be detected by her. All these facts clearly establish the negligence committed by O.P."

IN the appeal filed by OP/Dr. Asha, the State Commission has gone into the question which arises first and the fore -most in this case viz. what was the urgency to perform the hysterectomy, late in the evening on 23.7.2003, when admittedly, the patient had been bleeding for three days and had been brought to the OP in a critical condition. In this behalf the State Commission has observed that: In such view of the facts we confine ourselves to consider whether the Histectomy performed on 23.7.2003 was required and done as per normal practice of ordinary skilled doctor in such cases. The doctor has filed the records of the treatment in FA No. 323/09 from page 31 and 32 Ann. 4 and 5 and further from page 68 to 85. We have perused these papers minutely to find at page 31 the risk bond signed by Md. Quasim in English, page 32 is the blood test report dated 25.7.2003 showing hemoglobin at 7.5% per gram.

Mr. Subodha Kr. Jha and Mr. R.K. Singh Counsel for the appellant has drawn our attention toward the Bed Head Ticket and the discharge slip from pages 68 to 85 of the memo of appeal to assert that the lady was brought in her clinic in very serious condition, bleeding for three days, from her private parts. As such when the bleeding could not be controlled inspite of conventional treatment she had to be operated for which the complainant has given consent vide Ann. 4 at page 31 of the memo of appeal. On perusal we find that the risk bond does not mention the name of the patient and the surgeon. English details were signed by one Md. Quasim Ansari, without date and the name of the doctor. We find that this risk bond does not disclose who was to be operated even.

We have further gone through the B.H. Tickets from page 73 to 85 to find that Sahida Khatoon was brought with severe bleeding for three days on 23.7.2003 to the clinic of the appellant. By 1 p.m. the doctor found bleeding not controlled to advise transfusion of blood two units. It mentions at that time B.P. 90/50. She was further advised for higher centre but the complainant preferred to keep her in appellant''s care. Then at 7 p.m. she was advised USG of abdomen which was for uterus and appendices. This test was not done and abruptly O.T. has been prepared for abdominal Hysterectomy operation performed under spinal Anaesthesia same evening. It is submitted that the emergent situation had forced the appellant to perform the operation. However, we do not find any mention of such a situation on B.H. Ticket nor the risk bond mentions it. We further find that no where the Anesthetist was named nor the blood required was transfused. As such we are unable to accept the plea of emergency raised by the appellant We do not even find the diagnosis by the doctor, which could have compelled her to take up the operation after 7 p.m. on 23.7.2003.

In the background of the above findings we have considered the grounds on which the order of the State Commission has been assailed. The records produced on behalf of the revision -petitioner has been considered and Mr. M.K. Singh, Advocate heard on behalf of the RP/OP. One of the grounds is that the patient died over a month after the surgery by the OP. It is also urged that the hospitals where the patient was treated after her discharge by the OP, have not alleged any negligence in performance of the hysterectomy. This is nothing more than an attempt to shift the focus. In a case of medical negligence what is required to be proved is that the diagnoses, treatment given, the measures adopted and the precautions undertaken, conform to the conduct of a reasonably competent medical professional in similar situation. On those counts, the OP has clearly failed before the Fora below. Therefore, this contention of the revision -petitioner does not merit any serious consideration.

IT is also urged that the impugned order needs to be set aside as criminal proceedings initiated against the OP before the Judicial Magistrate have already been set aside. These are two separate type of proceedings, requiring different nature of evidence. As observed by Hon''ble Supreme Court of India in Jacob Mathew v. State of Punjab, : III (2005) CPJ 9 (SC) : VI (2005) SLT 1 (SC) : 122 (2005) DLT 83 (SC) : III (2005) CCR 9 (SC) : (2005) 6 SCC 1: The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

Therefore, acquittal in criminal proceedings can, by itself give no relief in proceedings before the Consumer Fora.

IT has also been urged on behalf of the revision -petitioner that neither the District Forum nor the State Commission had obtained any opinion of any independent medical expert. It is not the case of the revision -petitioner that his prayer before either to seek independent expert opinion on any specific issues was made but declined by the concerned Forum. The case before us is one in which the OP on the one hand claims that the patient had arrived in a critical state and that in her professional judgment needed to be referred to a major hospital. On the other, the OP has been able to give no explanation to the Fora below as to what was the emergency that required her to perform this hysterectomy, late in the evening, even without any proper diagnostic tests. The claim of OP/Dr. Asha that it was done under the demand and pressure of the relatives of the patient in itself carries a certificate of her unprofessional conduct. Evidence examined by the Fora below also brings out that it was a case of surgery performed under spinal general anesthesia yet the operation note does not even carry the signature of the anesthetist We, therefore, agree with the conclusion reached by the State Commission that deficiency and negligence on the part of the OP in conducting the hysterectomy were apparent and did not require confirmation by any independent expert. In the result the revision petition is found to be completely devoid of any merit and is dismissed as such. In the facts and circumstances of this case, we also deem it appropriate to impose a punitive cost of Rs. 25,000 on the revision -petitioner. The same shall be credited to the Consumer Welfare Fund of the Central Government, in terms of the provision in Rule 10A of the Consumer Protection Rules, 1987, within a period of three months of this order. Delay, if any, shall carry interest at the rate of 10% per annum.