Chitrangini Ramchandra Mujmule vs Manoj Jain and Ors.

THE present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 5.11.2007 in Appeal No. 863/2007 and 965/2007 passed by the State Consumer Disputes Redressal Commission (in short, ''State Commission''). The State Commission allowed both the Appeals filed against the order in Complaint No Consumer Complaint 238 of 2006 dated 22.5.2007 passed by the District Consumer Disputes Redressal Forum, (in short, ''District Forum''). The Complainant, Chitangini Ramchandra Mujmule (in short, ''the patient'') on 25.11.2005, underwent Laparoscopic Sterilisation Operation (tubectomy) at Shri Sai Hospital, Madha owned by Dr. Abhay Lunawat and Dr. Sapna Lunawat (OPs -2 and 3). It was performed by Dr. Manoj Jain, the OP -1 who was a visiting surgeon coming from Solapur. About 6 months later the patient became pregnant; she visited the OP -3 Dr. Sapna on 2.5.2006 who confirmed it by doing Urinary Pregnancy Test (UPT). The OP -3 told the Complainant that because of two previous Caesar deliveries there was a danger to her health, therefore, OP -3 performed (MTP) abortion. As a mandatory the O.P. did not inform the Civil Surgeon about MTP. On the same day at 3.35 p.m. the OP -1 was called from Solapur, who again performed tubectomy by open method, and stitches were put. Patient was kept under observation of OPs -2 and 3 for two days. On 4.5.2006 evening, some complications cropped up in the patient like vomiting, pain in abdomen. Therefore, the patient was shifted to Solapur in Jain Hospital of OP -1, wherein OP -1 performed one corrective surgery, but the patient''s condition did not improve, the patient further deteriorated and on 5.5.2006 shifted to another tertiary hospital named Ashwini Sahakari Rugnalaya & Research Centre, Solapur (In short Ashwini Hospital). The patient was treated in Ashwini Hospital by Dr. Nitin Toshniwal, performed Exploratory Laparotomy and after improvement discharged on 20.6.2006, which incurred heavy expenses Hence, the patient alleged that there was a medical negligence done by all the OPs and also the OPs -2 and 3 being holders of BAMS degree in Ayurveda, they are not qualified/allowed to do allopathic practice. Hence, filed a complaint before the District Forum at Solapur.

THE District Forum allowed the complaint and directed the OPs -1 to 3 to pay Rs. 1,10,000 to the Complainant and Rs. 20,156 towards medicines, Rs. 25,000 for physical pain and Rs. 5,000 for mental agony and Rs. 1,000 for cost of litigation. The OPs challenged the order of the District Forum by filing Appeals before the State Commission. Dr. Manoj Jain filed an Appeal No. 863 of 2007 and OPs -2 and 3 filed an Appeal No. 965 of 2007. The State Commission allowed both the Appeals and dismissed the complaint. Aggrieved by the order of the State Commission the Complainant filed the Revision Petition here.

WE have heard both the parties. The learned Counsel for the Complainant. Ms. A. Subhashini vehemently argued, that there was negligence in performing first tubectomy operation by the OP -1 which resulted into pregnancy. Subsequently, on 2.5.2006, the OPs -2 and 3 who are non -qualified for Allopathic practice performed the abortion/MTP (Medical Termination of Pregnancy). On the same day OP -1 was called by the OPs -2 and 3 for performing tubectomy again, as there was failure of sterilisation operation performed by OP -1 about six months back. The OP -1 visited the Sai Hospital, and at 3.30 p.m. performed an open tubectomy and put single stitch. Thereafter, on 4.5.2006, evening the patient developed some complications like pain in abdomen and vomiting, for which OP -1 advised to shift the patient to his hospital at Solapur.

THE Counsel for OPs -2 and 3 admitted that, both are Ayurvedic practitioner, but denied about any treatment done by them to the patient. It is submitted that, the patient came to their hospital with bleeding, after examination she (OP -3) performed Digital evacuation. The Counsel for OPs -2 and 3 brought our attention to the Registration Certificate issued by District Health Officer, (DHO), Zila Parishad, Solapur showing that they were entitled to practice modern system of medicine, as also the OPs -2 and 3 were granted permission to carry out tubectomy/vasectomy/IUD Insertion, etc. The Counsel for OP -1 argued that, OP -1 performed tubectomy operation on 2.5.2006 by open method and put a surgical stitch. There was no negligence. Due to complications after 2 days, she was shifted to his hospital at Solapur, where he performed exploratory laparotomy and repaired the small ileal perforation and kept the patient under observation. But, the patient further developed breathlessness therefore shifted to ICCU at Ashwini Hospital. The case on hand entails dual issues of negligence one is the failure of 1st tubectomy operation, and another is Intestinal Injury which has occurred after either by abortion or by open tubectomy surgery. We are of considered view that, the failure of tubectomy is not a negligence, it has been decided by Hon''ble Supreme Court in State of Haryana v. Santra, : IV (2000) SLT 93 : I (2000) CPJ 53 (SC) : II (2000) CLT 152 (SC) : (2000) 5 Supreme Court Cases 182. Now, the important question swirls around to decide that, why, when and who has caused the intestinal perforation/injury herein? Whether it was by a qualified Surgeon -OP -1 during open tubectomy or by the Ayurvedic practitioner (OPs -2 and 3) who performed "Digital Evacuation". On perusal of entire medical record, it is certain that the signs of intestinal injury were noticed by OP -1 after 2 days, i.e. after the digital evacuation and tubectomy operation. We are unable to subscribe that, what was the hurry and why OPs -2 and 3 ventured the Digital evacuation? This act of OPs -2 and 3 is unbelievable and unacceptable to us. The OPs -2 and 3 themselves cautioned the patient about the risk due to previous two Caesarian operations. The Digital evacuation is not a method for complete evacuation of products of conception. Therefore, we are of considered view that, the OPs -2 and 3 had applied instrumentation in this case, which might have caused uterine perforation and subsequent intestinal injury.

EVEN the surgeon Dr. Manoj Jain (OP -1) should be alert before performing 2nd open tubectomy operation on 2.5.2006, he should have been prudent enough to ascertain whether, there was history of recent pregnancy or abortion, or any surgical intervention to the patient. He should have thoroughly assessed the patient without relying upon the OPs -2 and 3. He failed to diagnose any perforation of uterus which might have occurred due to intervention of OPs -2 and 3 i.e. digital evacuation. This is an act of omission by OP -1. Even otherwise, whether it was an urgent need to perform 2nd tubectomy. Therefore, the entire acts of all OPs create lot of suspicion in our mind.

IT is pertinent to note that, the OP -1 was called by OPs -2 and 3 at 12.30 p.m. Accordingly, OP -1 visited the Sai Hospital at 3.30 p.m. and conducted open tubectomy. According to medical literature, the early signs of perforation will not visible within 4 to 6 hours. We know the surgeon (OP -1) is qualified as MS Surgery and having experience of two decades; hence we don''t think that, his surgical approach was careless during performing 2nd tubectomy. It is very rare and remote possibility that, surgeon will injure the intestine during the open tubectomy. The patient developed the signs and symptoms of intestinal perforation i.e. pain in abdomen, vomiting after 2 days of digital evacuation/tubectomy. This is clear from notes dated 3.5.2006 in the case paper of Sai Hospital, that there was a distension of abdomen at 6.30 a.m. and 9.30 a.m., thereafter at 11.00 a.m., the pain went on increasing. Thereafter, the patient was shifted to OP -1 hospital in the evening on 3.5.2006, wherein, OP -1 performed exploratory laparotomy, aspirated pus, noted the perforation in the mid ileum and perforation was closed in 2 layers. Subsequently, the patient developed further complications and she was referred to Ashwini Hospital I.C.C.U. for further management on 4.5.2006. These events are clear from perusal of Discharge Summary of Ashwini Hospital as follows: "H/o Laparoscopic sterilization on 25.11.2005.

Patient was all right for 5 months then she have pregnancy, D & C done and again tubectomy done 1.5.2006 in Madha. Difficulty in breathing so shifted to Jain Hospital Laparotomy done for intestinal perforation. Patient was shifted here for further management."

The case papers of Sai Hospital clearly show that, OPs -2 and 3 administered entire allopathic treatments to the patient right from 1.5.2006 to 3.5.2006. Thus, it is unbelievable that, OP -2 performed digital evacuation only. We have perused the certificate, Annexure R -1 issued by the DHO, Solapur dated 2.5.2003, mentioned that the OP -2 Dr. Abhay Lunawat was accorded permission to Tubectomy or Vasectomy, IUD insertions. The said certificate does not specify whether the OPs -2 and 3 are permitted to do allopathic practice. Therefore, OPs -2 and 3 being Ayurvedic practitioner indulged in Allopathic practice and performed digital evacuation, it amounts to a medical negligence. We have specifically asked the Counsel about the "Digital Evacuation", but he failed to satisfy us. Therefore, the certificate issued by DHO, Solapur is not immunity for OPs -2 and 3 who are practicing allopathic system. Medical negligence is an act of commission or an act of omission which a prudent doctor of average skill, knowledge and experience would not do. The essentials of negligence are, four "D"s: (i) there is duty towards patients; (ii) there is deficiency in duty towards patients; (iii) this directly results in; and (iv) damage which may be physical, mental or financial loss to patient or relatives. In the case of Poonam Verma v. Ashwin Patel & Ors., : II (1996) CPJ 1 (SC) : (1996) 4 SCC 332, the Apex Court held that negligence, as a tort, is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.

THEREFORE , on the basis of forgoing discussion we are of considered view that, OPs -2 and 3 are misleading the Commission, trying to escape by using a term "Digital Evacuation". The fact is true that there was perforation of intestine, but OPs failed to explain why it has occurred. The OP -1 along with OPs -2 and 3 is working in cahoots with each other, by which the patient suffered. As discussed supra, OP -1 is liable for act of omission, while the OPs -2 and 3 are liable for act of Commission which both are not supposed to do and practice. The extent and nature of damage to the intestines of patient, the principle of res ipsa loquitur is also applicable in this case. On the basis of foregoing discussion, we allow this revision petition and set aside the order passed by the State Commission. For the extent of liability we direct, the OPs -2 and 3 shall pay 80%, while OP -1 shall pay 20% of total award as awarded by the District Forum, within 90 days otherwise it will carry interest @ 9% p.a. till its realisation.