C.V.MATHEW vs P.Babu

THIS appeal is preferred by Dr. C.V. Mathew i.e. the opposite party in O.P. 459/93 of the District Forum, Idukki questioning the order of the District Forum directing the payment of compensation of Rs. 10,000/- with interest @ 12% per annum from 24.4.1993.

THE complaint was originally preferred by the husband of Smt. Sulochana, but later she was impleaded as 2nd complainant. It was alleged in the complaint that the 2nd complainant was admitted in the Arpana Hospital at Thookkupalam on 22.4.1993 in connection with her third pregnancy, as after the 2nd delivery she was advised to avoid third pregnancy. Her grievance is that after abortion and PPS by the opposite party, she was discharged from Arpana Hospital on 26.4.1993. Later she developed little pain and when approached, the opposite party consoled her that there is nothing to worry. On 13.5.1993 she developed acute stomach ache and bleeding and after two days treatment by opposite party she was referred to Nedumkandom Medical Trust Hospital, but after examination they referred her to Medical College Hospital (MCH), Kottayam. But due to financial difficulties, instead of going to MCH she went to St. Johns Hospital, Kattappana where she was treated from 13.5.1993 to 19.5.1993. Subsequently on 23.5.1993 again she developed pain and admitted at Kadamappuzha Hospital and discharged on 31.5.1993. Later, Kadamapuzha Hospital referred her to MCH and she was under treatment there from 15.6.1993 to 21.6.1993. Hence she alleged that she had to undergo all these ordeal and suffering because of negligence at the hands of the opposite party. In his written version the opposite party states that the complainant was admitted at Arpana Hospital on 23.4.1993 and M.T.P. and minilap were done on 24.4.1993.. She was discharged on 26.4.1993 and she had no complaints at that time. He added that she was later brought to him on 11.5.1993 for pain and vomiting related to disorder in the small intestine, hence referred to Kattappana Hospital on 13.5.1993. He also states that as M.T.P. is a blind procedure, bleeding, incomplete abortion, perferation of uterus etc. can be happened and this could happen even when done by experts. Hence he denies the liability to pay any amount and maintains not negligent.

On the part of the complainant Exts. A1 to A11 were marked and second complainant was examined as P.W. 1 and Dr. Achamma Thomas was examined as P.W. 2. On the side of the opposite party Exts. B1 to B3 were produced and Dr. C.V. Mathew the opposite party was examined as D.W. 1.

WE have carefully perused the records of this case and heard the learned Counsels appearing for the petitioner as well as respondent. The question which we are called upon to consider is whether there is negligence on the part of the appellant/opposite party. It was urged by the learned Counsel for the appellant that there is no negligence on his part. He was conducted only D & C and minilap on 24.4.1999 and not M.T.P. as alleged by the complainant. The learned Counsel argued that even in cases of D & C conducted by experts, incomplete abortion, bleeding, perferation of uterus etc. will happen and he contended that incomplete evacuation is one of the complications of D & C.

IN reply to this the complainant/respondent stated that what actually done on 24.4.1993 was M.T.P. and not D & C. The learned Counsel for respondent/complainant quoted the relevant portions of the written version filed by the opposite party/appellant. "xxx xxx xxx xxx xxx xxx". The respondent/complainant also contended that as D.W. 1 he has deposed that he has only M.B.B.S. and diploma in Orthopaedics and no other qualification. The District Forum came to the conclusion that even though in so many words admitted by him that what he did was M.T.P. and minilap, the opposite party when examined as D.W. 1 made an attempt to turn round and say that what was done in his hospital was only a D & C. The learned District Forum also found in favour of the complainant that M.T.P. Act does not entitle every medical practitioner to do M.T.P. whereas only persons authorised under the Act can perform the surgery, that also only in recognised hospitals. Then the District Forum concluded that the opposite party has no such pretentions. He does not claim to have had any training or authority to perform the surgery. Nor is the hospital a recognised institution to perform any such surgery. This commission fully agrees with the finding of the District Forum in this point. The next question raised before this Commission is whether the appellant is responsible for the later consequential incidents and subsequent ailment, torture and ordeal suffered by the 2nd complainant. If he is responsible how far he is responsible. It is an admitted fact that the second complainant was under the treatment of the opposite party at Arpana Hospital from 22.4.1993 to 26.4.1993. Again in his version the opposite party has also admitted that the complainant was brought to him on 11.5.1993 with stomach pain and vomiting and she was under his treatment till 13.5.1993 for disorder in the small intestine. As there was no improvement in her condition after his treatment for 3 days for intestinal disorder she was referred to a hospital with better facilities. It is also proved that she was admitted in M.C.H. for the same ailment on 15.6.1993 and discharged on 21.6.1993. When Dr. Achamma Thomas of M.C.H. who has treated the complainant at M.C.H. was examined (P.W. 2), she deposed that ultra sound scan was obtained and diagnosis was incomplete abortion.

FROM the above it is very well clear that some portion of the foetus was there in the uterus of the complainant at least from 23.4.1993 to 15.6.1993 till it was evacuated in the M.C.H. which was the sole reason for the ailments of the complainant.

IN the light of the above facts only remaining question is whether there is negligence on the part of the opposite party/appellant. As the Hon. High Court of Kerala said in 1985 - "the true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has proved to be guilty with failure as no doctor of ordinary skill would be guilty of it acting with ordinary case" (1985 KLT 970).

In the light of the above we analysed the various facts of this case. On perusal of records it is clear that the complainant approached the opposite party on 11.5.1993 with stomach pain and vomiting and opposite party/appellant treated her till 13.5.1993 and as there was no improvement he referred her to another hospital. He stated "xxxxxxxxxxxxxxxxxxx". We noted the fact that the complainant was operated on 23.4.1993 by the opposite party. There is nothing to show that the opposite party has made any attempt on these days from 11.5.1993 to 13.5.1993 to decide whether the ailment is in any way connected with the operation conducted by him on 23.4.1993, especially when he asserts that there is possibility of partial abortion and explains its consequences. He himself says as his treatment was not successful he referred the patient to another well equipped hospital. No reasonable cause or explanation is given for not adopting anything to ascertain whether the ailment is due to failure in D & C/MTP especially because he himself has done the MTP/D & C about 5 months back. In all probabilities this is beyond the expectation of anybody that a doctor with minimum qualification will treat his patient in such a negligent manner.

THE appellant would argue that in the light of the decision of this Commission, that even if diagonosis made by him was wrong "that cannot lead to conclude that there is deficiency in service..." (C.P.R. 1995 (1) Kerala). This definitely leads us to two questions what is professional care and what is doctor''s negligence. Regarding appropriate standard of care, a very good definition is given in Bolan v. Friern Hospital Management Committee, 1957-1, WLR 582. "The appropriate test is the standard of an ordinary skilled man exercising and professing in have that special skill. It is well established now that it is sufficient if he is a competent man exercising that particular act."

WHEN we are dealing with this case we are well aware of the concept of negligence in the medical profession. It reminds us of the following famous sentence of Lord Denning, M.R.- "A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure or for an error of judgment. He was only liable when he fell below the standard of a reasonably competent practitioner in his field. So much so that his conduct might be deserving of censure of inexcusable". Hucks v. Cole, (1968) New.LJ 469. In the light of the above quoted sentences especially that of Lord Denning we are of opinion that there is negligence on the part of the appellant/opposite party, and that the appellant "fell below the standard of a reasonably competent practitioner", when he has not made any attempt for ascertaining the reason for the ailment, whether it is in any way connected with the operation he has done previously. Having regard to overall aforesaid circumstances we have no hesitation to hold that there is negligence on the part of the appellant/opposite party at two stages. First doing M.T.P. without prescribed qualification at a hospital not recognised for doing MTP. Secondly when the complainant was under his treatment from 11.5.1993 to 13.5.1993, even after he found his treatment a failure he never considered the possibility or probability of incomplete evacuation. In view of the above we conclude that there is no reason whatsoever to differ from the findings of the District Forum, which is hereby affirmed and the appeal is dismissed. There will be no order as to costs in this appeal. Appeal dismissed.