JUGAL KISHORE vs Sunita Mehta

THIS appeal has been filed by Shri Jugal Kishore, together with his two daughters, against Dr. Sunita Mehta and New India Insurance Company Ltd. The impugned order was passed by the State Commission on 25.10.2007. Before the impugned order, the State Commission by an earlier order of 5.12.2006 had decided that the District Forum, Neemuch, M.P., had no pecuniary jurisdiction to decide this consumer complaint. The State Commission has therefore, set aside the order passed by the District Forum Neemuch and withdrawn the matter to itself for decision on the complaint.

THE facts of the case, as seen from the records, are that Smt. Sumitra Bai wife of Complainant No.1 was admitted to the hospital of OP-1 and delivered a female child through Caesarean Section at 6.58 in the morning on 16.8.2001. THE same day, in a subsequent operation, hysterectomy was performed. She died the same evening. Allegedly, due to the negligence of OP-1, while performing the surgery, a blood vessel was cut, which resulted in heavy loss of bloods. THE deceased had therefore, to be given nine bottles of blood in the course of the day. Secondly, during the operation to perform hysterectomy no anesthetist was present. It is further alleged that despite serious condition of the patient, the uterus was removed which led to further loss of blood and death. Responding to the above allegations of negligence, OP-1, Dr. Sunita Mehta informed that even the first child of the deceased was delivered by her. As the first child was born after the age of 35 years, the deceased was advised to keep a gap of at least five years between the two pregnancies. According to OP-1, as the deceased had undergone a caesarean delivery just two years earlier and as she was having severe pain, it was considered dangerous to wait. After the delivery her uterus had contracted, pulse, heart rate and BP were normal and there was no bleeding. However, at 10:30 in the morning there was sudden hemorrhage after which her BP fell drastically. In consultation with other doctors it was decided between 12:15 and 1:15 P.M. to perform the hysterectomy. According to OP-1, an anesthetist Dr. Soni was present in both the operations. The second operation revealed that the uterus had not contracted due to which there was heavy bleeding.

The State Commission arrived at the following conclusions on the allegations made by the Complainant a) The allegation that OP-1 was not qualified to deal with the case of the deceased, was rejected on the ground that OP-1 possessed qualifications of MBBS and MS in Obstetrics and Gynecology with experience of 33 years. b) The allegation that the blood vessel had been cut during operation, was held not substantiated by the Complainant with any documentary evidence. c) The allegation, that hysterectomy was performed despite serious condition of the patient, was examined with reference to evidence on record and medical literature. The Commission has held that there is no hard and fast rule as to when hysterectomy should be performed as a life saving measure. It can be decided by the concerned doctor only, after assessing the condition of the patient.

CONSEQUENTLY, the Commission held that the Complainant had failed to establish the charge of deficiency in service and dismissed the complaint. In the appeal before us, the Complainant has questioned the logic of the State Commission in setting aside the order of the District Forum on the ground of lack of pecuniary jurisdiction. The relevant order by which the State Commission had held the proceedings before the District Forum to be without jurisdiction, was passed on 3.12.2006. A perusal of this order shows that the complaint was filed before the District Forum on 5.12.2002, claiming compensation of Rs.10 lakhs. On that day complaints up to valuation of Rs.5 lakhs only, could be filed before the District Forum. The limit of pecuniary jurisdiction of District Forum was raised, as correctly pointed by the State Commission, to Rs.25 lakhs, by an amendment to Section 11 of the Consumer Protection Act 1986, which came into effect on 15.3.2003. Therefore, the State Commission has rightly held that on the day the complaint was filed before the District Forum, it did not have pecuniary jurisdiction to deal with it, as relief of Rs.10 lakhs was claimed in the complaint.

BEFORE us, the counsel for the appellant/complainant referred to the Book of Obstetrics and argued that one of the primary causes of postpartum hemorrhage is mismanagement of third stage of labour. It is caused by unnecessary message or compression of the uterus. Therefore, the cause of hemorrhage should have been identified first before deciding on the measures to manage it. In the meanwhile, lost blood should be replaced by transfusion. However, he could not point to any evidence which was led before the State Commission to show that mismanagement of third stage of labour was the cause in this case. Without it, the argument does not travel beyond the stage of a medical possibility. Moreover, the complainant himself stated before the State Commission that as many as nine bottles of blood were given to the deceased. For the same reason, we are unable to accept the argument of the learned counsel that medical negligence lay in the failure to make timely diagnosis, resulting in wrong or no treatment. Countering the arguments above, the counsel for the respondent pointed out that the complainant has relied upon his assumptions and not on opinion of any medical expert. The appellant has also alleged that the OP has withheld the notes of the anesthetists and other material medical record and therefore, prays for adverse inference to be drawn against the OPs. The State Commission in the impugned order has referred to the evidence of Dr. Sunita Mehta as pointing out that Dr. Soni, was the anesthetists in both the operations. There is also a reference to the record of treatment, to the effect that appellant No.1 is in possession of the original records of treatment in respect of which medical negligence is alleged.

IN the written response of R1/Dr. Sunita Mehta, to the memorandum of appeal, it is mentioned that the appellants have themselves submitted the notes of the anesthetist before this Commission. Further, from the records we find that notes of the anesthetist from 7.10 AM to 7.45 AM were examined by the District Forum. The District Forum has however, observed that his notes after 7.45 AM were not produced for perusal of the Forum. We are unable to appreciate what prevented the appellant/complainant from producing them before the State Commission. We also note that in para 11 of his affidavit evidence, Appellant-1/Complainant-1 himself refers to the record till 1.30 PM. If any part of the record of treatment was not in his possession, he could have sought a direction from the State Commission for the OP/respondent to produce them. It is not the case of the appellant that such a prayer was made to and rejected by the State Commission. We therefore, reject this plea as well of the appellants/complainants.

IN the final analysis, we do not find any merit in this appeal. The same is therefore, dismissed and the impugned order of Madhya Pradesh State Consumer Disputes Redressal Commission in CC No. 22 of 2006 is confirmed. The parties shall bear their own costs.