KAMINI JAIN vs PADMA PARAKH

THIS appeal is directed against the order dated 27.1.2003 passed by the District Consumer Disputes Redressal Forum, Rajnandgaon (hereinafter referred to as ''District Forum'' for short) in Complaint Case No. 54/2002 whereby the District Forum had dismissed the complaint.

BRIEF facts of the case necessary for disposal of this appeal are-as per the averments of the complaint earlier two deliveries of the complainant had taken place at the Nursing Home of the opposite party and there had been no problem. So far as the third delivery is concerned, the complainant was admitted to the Nursing Home of the opposite party on 22.10.2001 and the next day she was blessed with a male child. However, due to deep incision there was a lot of bleeding but the doctor told not to worry about the same. On 24.10.2001 stool of the complainant started passing through vagina and she complained regarding this also but the opposite party paid no heed to the same and the complainant was discharged from the hospital on 26.10.2001. As at home also the problem of stool passing through vagina persisted the complainant again approached the opposite party doctor on 29.10.2001 and she was admitted to the Nursing Home. Despite such admission, and treatment by the opposite party doctor there was no relief, the complainant was referred to Dr. Kamla Tiwari, Raipur.

As per the averments of the complaint Dr. Kamla Tiwari told the husband of the complainant that opposite party No. 1 had negligently given deep incision at the time of delivery and had failed to properly stitch the same. It was due to this that rectum was cut during giving incision to the patient and that was the reason why stool was passing through vagina. Dr. Kamla Tiwari operated the patient twice and after the second operation there was some relief. However, the problem was not completely cured. The complainant was advised to get further treatment at Bombay.

THE complainant had filed her own affidavit and also that of her husband. The opposite party denied the allegation of deficiency in service and averred in the written version that she had not given any incision at all at the time of delivery. It was natural tearing of vagina during delivery and it was a 3rd degree perineal tear. It was further averred in the written version that the patient was very non-co-operative during delivery and she used to jump a lot and this resulted in 3rd degree parineal tear. It was further averred that the opposite party had properly stitched the same. The opposite party No. 1 has averred that as her condition was satisfactory the patient was discharged on 26.10.2001 and there was no complication. While at home the patient did not properly follow the advice and failed to take laxative as prescribed and also exerted while passing motion. Hence stitches given by the opposite party for repairing perineal tear had given way, resulting in the stool passing through vagina. After treating the patient for two days she had referred the complainant to Dr. Kamla Tiwari. The opposite party No. 1 repeatedly reiterated that she had not given any incision to the complainant.

THE opposite party No. 1 has filed her own affidavit besides the affidavit of Bindu K.J., a nurse of the Parakh Nursing Home. The opposite party No. 2/the insurer has admitted issuance of professional indemnity insurance policy, bearing Policy No. 46/2000/870045, in favour of the opposite party No. 1. The said policy was valid for the period from 22.12.2000 to 21.12.2001. However, the opposite party No. 2 has denied the liability in the instant case because, as per the insurer, there was no negligence on the part of the concerned doctor. An affidavit of Parvinder Singh Bindra, Branch Manager has been filed in support of the written version filed by the opposite party No. 2. The learned District Forum did not feel convinced by the version of the complainant and dismissed the complaint, consequently the complainant has filed this appeal.

HEARD the learned Counsel for all the parties and perused the record.

MAIN submissions of the learned Counsel for the appellant are that the learned District Forum has erred in not properly appreciating the material on record. The learned District Forum has also failed to appreciate the case law relied by the complainant and that is the reason why the Forum has held that the same do not apply to the case of the complainant. The learned District Forum has further erred in not appreciating the doctrine of res ipsa loquitur. The learned Counsel for the opposite parties supported the impugned order and reiterated the stand taken before the District Forum. In view of the admitted position that the complainant is the consumer of the opposite party No. 1 the first question to be decided by us is as to whether the opposite party No. 1 had given incision to the complainant during delivery?

The complainant has specifically averred that when the complainant was referred to Dr. Kamla Tiwari, Raipur, after examining the complainant the said doctor had told that the problem of stool passing through vagina was the result of negligently given deep incision at the time of delivery. This statement has also been duly supported by the affidavits of the complainant and her husband. However, the opposite party has repeatedly denied giving incision to the complainant at the time of delivery. The opposite party doctor has also filed case sheet of the patient. It is written at the second page-''Patient very un-co-operative during delivery. ''Patient had small 3rd degree perineal tear. Repaired with catgut and thread.'' This is exactly the version of the opposite party doctor. However, as it is the document inscribed by the opposite party herself and was in her possession, the same cannot be blindly relied.

AS noticed earlier the complainant was referred for further treatment to Dr. Kamla Tiwari, hence the documents relating to treatment of the complainant by the said doctor would be relevant for deciding the controversy. It is to be noted that in the letter of reference dated 31.10.2002 the opposite party has written that she was referring a case of 3rd degree perineal tear. Dr. Kamla Tiwari had treated the complainant and the Discharge Tickets are on record. We would like to reproduce the relevant portions of the Discharge Ticket dated 19.12.2001 hereinbelow: ''Diagnosis: R.V.F. following incomplete ealing of 3rd degree perineal tear.'' ''Complaints : Delivered on 23.10.2001. Had Toxaemia. Had gapping of Episiotomy Wound.'' ''M.H. : On Examination Gapping of Episiotomy wound. Small R.V.F. seen.'' ''Operation Notes: Repair of Episiotomy and R.V.F. done...''.

WE will have to decide on the basis of the aforesaid discharge ticket as to whether the opposite party had given any incision to the complainant at the time of delivery or not. For this we will have to decide the abbreviations. WE are told by the learned Counsel for the opposite party/respondent that R.V.F. stands for ''Recto-Vaginal Fistula''. As per New Concise Medical Dictionary by Gupta and Gupta, Second Ediction, published by AITBS Publishers and Distributors (Regd.) Fistula is - ''An abnormal opening between two internal structures or between an internal structure and the surface of the body.'' Episiotomy-''It consists of an incision in the perineum in order to enlarge the vaginal introits to provide enough room for the head or breech to escape more safely.'' In view of the aforesaid meaning of the word ''fistula'', there remains no doubt that Recto-Vaginal Fistula would mean that the abnormal opening is between the rectum and vagina. Now we have to see whether the same was due to incision given by the doctor or 3rd degree perineal tear, caused due to non-co-operation by the complainant/appellant and further by not following the advice given by the doctor at the time of discharge. Before arriving at any conclusion, we have to see as to what does perineal tear mean. As per Taber''s Cyclopedic Medical Dictionary, Edition 17, published by F.A. Davis Company, Philadelphia the word ''Perineal'' means ''concerning, or situated on, the perineum.'' Meaning of the ''tears of the perineum'' as stated in the aforesaid dictionary is -''There are four degrees of severity caused by overstreching of the vagina and perineum in delivery........'' It appears from a reading of the detailed meaning given in the dictionary that 3rd degree parineal tear involves tearing of superficial tissues of the perineum and vaginal mimosa with tearing of the muscles of the perineum and that of the anal sphincter. It appears from the letter of reference that the respondent had stated that she was referring a case of ''3rd degree perineal tear''. However, it is apparent from the relevant portions of the Discharge Ticket reproduced hereinabove that Dr. Kamla Tiwari had noted that ''in examination gapping of Episiotomy wound, small R.V.F. seen.'' It is further noted in the operation note that repair of Episiotomy and R.V.F. was done. It is to be kept in mind that the complainant was referred to Dr. Kamla Tiwari as a patient of 3rd degree perineal tear but she found that the patient had ''gapping of Episiotomy wound and small R.V.F.'' Such findings were recorded after examination, operation and treatment of the complainant, hence there is no reason to disbelieve the same.

HOWEVER, it appears from record that the opposite party had filed a document referred to as letter sent by Dr. Kamla Tiwari, whereby the said doctor has tried to justify and support the stand of the opposite party No. 1. It further appears from the material on record that on an application from the complainant, the aforesaid Dr. Kamla Tiwari was directed to furnish the bed Head Ticket relating to the treatment of the complainant. HOWEVER, the said Dr. Kamla Tiwari had vide her letter dated 20.11.2002 informed the District Forum that ''the room where the said records were kept had a lot of seepage and due to that the records were destroyed by termites (Deemak).'' It was further written that the doctor had given discharge ticket to the patient, which gives all details. Copy of that discharge ticket was not supplied to her. It was yet further written that the doctor tried her best to complete the bed head ticket to send it to the Forum. The copy sent to the Forum with the aforesaid letter reproduced the matter of the letter filed earlier by the opposite party No. 1, with minor modifications. It is stated in both of the aforesaid letters that Dr. Kamla Tiwari asked for the copy of Discharge Ticket but the same has not been provided.

WE are of the opinion that the details given in the letter dated 25.7.2002 of Dr. Kamla Tiwari filed by the opposite party, and the (constructed) Bed Head Ticket sent by Dr. Kamla Tiwari on 20.11.2002 gives so minute details as the B.P., blood report, details of the medicines prescribed and such other details that are not humanly possible to remember after more than one year after treating a particular patient. So the said letters, written after more than one year of treating the patient, appear to have been written solely to support the case of a fellow doctor, hence the same cannot be relied in case there is any discrepancy between the said letters and the discharge ticket given to the patient at the time of discharge, immediately after treatment. Now we have to consider the damages to be awarded to the complainant for the damage suffered by her due to negligence of the opposite party doctor. The complainant has claimed a total sum of Rs. 4,60,000/- being: (a) A sum of Rs. 60,000/- towards the expenses incurred in further treatment necessitated by the negligent treatment by the opposite party No. 1. (b) A sum of Rs. 50,000/- for the suffering of the complainant for not providing due love and care to the new born child. (c) A sum of Rs. 1,00,000/- towards the loss of chances of again becoming a mother in future. (d) A sum of Rs. 1,00,000/- towards future expenses to be incurred in treatment. (e) Rs. 1,00,000/- towards physical and mental sufferings. (f) Rs. 50,000/- towards loss of marital bliss.

However, in view of the circumstances of the case we are of the opinion that a consolidated sum of Rs. 1,00,000/- will be sufficient to compensate the loss suffered by the complainant. It is noticed that the opposite party doctor has obtained doctor''s professional indemnity insurance policy from the opposite party No. 2. Hence the liability of both the opposite parties shall be joint and several.

IN view of the above discussion the order of the learned District Forum cannot be sustained. This appeal is allowed. The order of the District Forum is set aside. Hence, it is directed that the opposite parties shall jointly and severally pay: (a) A sum of Rs. 1,00,000/- to the complainant within a period of 2 months from the date of this order. (b) The respondent shall pay the aforesaid sum together with interest calculated @ 9% p.a. from the date of complaint. (c) The respondent shall also pay a sum of Rs. 2,000/- towards the costs of proceedings.

Appeal allowed.