M.JEEVA vs R.LALITHA

THIS is an appeal against the order dated 10th July, 1992 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu at Madras in O.P. No. 183 of 1991. That complaint was filed by the present Respondent Smt. R.Lalitha and in it the Opposite Party was M.Jeeva, who is now appellant before us. Hereinafter the parties will be referred by their original nomenclature. By the impugned order the State Commission has awarded Rs. 2,50,000/-as compensation to the Complainant plus Rs. 2,000/- which had been paid by the Opposite Party as advance at the time of her admission in the Opposite Party''s hospital. The facts as alleged in the complaint are that the Opposite Party-M.Jeeva is running a hospital in the name of Jeevan Hospital on Tanjore Road, Triverumbur, which is a suburb of Trichy for the last nearly 4 decades. There is an operation theatre in the said hospital and medical service is rendered round the clock. Trichy town is surrounded by about thisty villages. The Opposite Party made the rural people, including the Complainant, to believe that she is a qualified doctor and the people also believed that she is a doctor. She was rendering medical services to the potential users/consumers, for a consideration which includes prenatal medical services, delivery, after delivery and allied medical services to inpatients and out patients at her above said hospital. The Opposite Party never issued receipts to the consumers for the charges collected by her for the medical services. The Complainant availed of the medical services rendered by the Opposite Party at the prenatal and delivery stages of her first delivery in 1989 when she was blessed with a female child by caesarean operation. During her second pregnancy, she again availed of the prenatal services of the Opposite Party in her hospital. She was asked by Dr. Gnanavel, a Consultant attending the hospital to take a scan. The scan report dated 2nd October, 1990 showed that she was bearing a child of 35 weeks old with normal activities. The Complainant developed labour pains on 21st October, 1990 and went to the said hospital of the Opposite Party at 11 a.m. on that day. The Opposite Party attended to her and admitted her in the hospital as an inpatient and started giving her treatment. The Complainant paid Rs. 2,000 /- as advance for the ongoing medical services rendered by the Opposite Party. At about 7 p.m. on the same date, the Opposite Party took the Complainant to delivery ward and administered two injections on both the hands and two injections on both the hips. At about 10 p.m. again the Opposite Party administered 4 injections on the complainant''s hands and hips. At about 1.00 a.m. on 22nd October, 1990 the Complainant had started heavy bleeding from her uterus. The Opposite Party at once referred the Complainant to the City Hospital, Salai Road, Tiruchirapalli and made available her car for her to that Hospital. The Complainant was admitted in the City Hospital at 1.50 a.m. on 22nd October, 1990 with II Gravida with ruptured uterus as an emergency patient. She underwent an operation and a dead male child was delivered. Her uterus was also removed. She remained as in inpatient at the City Hospital till 29th October, 1990 and spent about Rs. 10,000/- as medical expenses. The grievance of the complainant is that the Opposite Party rendered deficient medical services which caused rupture of her uterus and the delivery of a dead male child. The deficiency in the medical services also lead to the removal of her uterus. She also suffered pain and mental agony and cannot bear child in future. According to her all this is due to the negligence of the Opposite Party in the rendering of medical services. She estimated her loss at a sum of Rs. 9 lakhs and has claimed that amount from the Opposite Party.

IN the counter the Opposite Party admitted that the building in which the operation is being done, belongs to her and she is running the hospital with the help of Consultant Physicians and Surgeons and services of only qualified doctors are utilised and they attend the hospital regularly throughout the day. She averred that she is a duly registered nurse and mid-wife to practice mid-wifery as provided in the Tamil Nadu Nurses and Mid-wives Act, 1926 (as amended). She is also qualified and registered under the Indian Nursing Council Act and she is a registered nurse to practice nursing. She never made any attempt to make believe people that she is a doctor. She is living in that place, practising nursing and mid-wifery. The Complainant who has apprehension of her (i.e. Opposite Party''s) qualifications had all the comfort and medical assistance at the time of her first delivery which took place on 21st April, 1989 by means of caesarean operation. The operation was performed by Dr. Gurumoorthy and Dr. Gnanavelu. During the caesarean there was certain amount of foul smelling liquor which indicated infection and the Complainant was advised not to have a child at least for 2 years, because it was found that haemoglobin percentage was unsatisfactory and she should wait for the improvement of the blood haemoglobin and the healing time of the suture in the uterus, which will be longer in her case might facilitate her to avoid complication. On that date in question le, 21st October, 1990 the Complainant came to the Hospital at about 7.00 p.m. A qualified doctor was present at that time. She was advised to go to the hospital or nursing home in the town as she needed a ceasarian once again. Because the pregnancy had ensued within one year the doctor present thought it fit that she may be sent to the hospital situated in the town and if further complications might arise she could be better attended by the doctors who were in the city limits. The Complainant had preferred the City Hospital because Dr. Gurumoorthy who performed the first ceasarian on her was working in hospital and the Complainant wanted that the second ceasarian should also be performed by the said doctor. Further the Complainant was of a rare blood group RH-Negative and the Opposite Party though fit that in the event of any blood transfusion at the time of ceasarian it would be conducive for her to have blood at the City Hospital where it could be easily procured. There was no male member with the Complainant when she had come on that date at 7.00 p.m. and she was waiting for a male member to accompany her to the hospital. As it was getting late the Opposite Party and the doctor present thought fit to send her in their car to the City Hospital at the earliest as there would be sufficient time to prepare her for the caesarian. The timely medical attendance and the conveyance given to the Complainant by the Opposite Party enabled the Complainant to have a safe caesarian operation in the City Hospital. It was the further case of the Opposite Party that she had not collected any fees and the service rendered by her was free of charge. The Complainant remained in the hospital only for about two hours while waiting for a transport after being advised to go to City Hospital. There is no negligence or deficiency of medical services on the Opposite Party''s part. The Opposite Party is not at all responsible for the events which took place in the City Hospital. Negligence if any could be attributed only to the said hospital where the Opposite Party was not all involved. Other allegations of the Complainant were also denied by the Opposite Party. Before the State Commission the parties led oral evidence. The Complainant examined herself as PW 1 the Deputy Superintendent of Police as PW 2 and Dr. Kamala Surendran of City Hospital as PW 3 while the Opposite Party had examined herself as RW 1 and Dr. Prakash of her hospital as RW 2. Some documents were also tendered in evidence. The State Commission disbelieved the story of the Opposite Party-Appellant, M.Jeeva that she did not render any material service to the Complainant on 21st October 1990. After examination of all the evidence it came to the conclusion that the Opposite Party was guilty of gross negligence while rendering medical service and made an award against her in the terms noticed at the beginning of this order. Not feeling satisfied with that order the Opposite Party has filed this appeal.

THE learned Counsel for the Appellant vehemently argued that Opposite Party i.e. M.Jeeva now Appellant is a qualified mid-wife and is registered under Tamil Nadu Nurses and Mid-wives Act (III) of 1926 and there is no prescribed standard of service that is expected from a midwife and that any decision taken by her according to the exigencies of the case cannot amount to deficiency in service as she alone will be the best person to take decision in the interest of patient and the child. We do not want to dwell upon this point such as it is not the case of the Appellant that she rendered any kind of medical service to the Complainant on 21st October, 1990. The story as given by her in the Counter has already been narrated above in detail. According to that story the Complainant had remained in the hospital only for two hours while she was waiting for transport and for some male member to accompany her to the City Hospital after being advised by the Opposite Party to go to the City Hospital. In the memorandum of appeal the Appellant had slightly changed her version. She has stated that on 21st October, 1990, the Complainant had come to her Hospital with complication of threatened rupture of the uterus and thus there was nothing wrong or unnatural on the part of the Appellant herein to have referred the Respondent-Complainant to another doctor for better facility and treatment particularly when it was the choice of the Complainant herself that she should be attended by Dr. Gurumoorthy, who was available at that time only in the Civil Hospital.

THE story of threatened rupture of the uterus has now been introduced because in the City Hospital an entry was made at 1.50 a.m. on 22nd October, 1990 to the following effect : "22.10.90 1.50 a.m. patient referred from Jeevan Hospital, through phone as .a case of previous caesarean with threatened rupture." The above entry falsifies the case of the Opposite Party that the Complainant had remained in the hospital for only about two hours after 7.00 p.m. and thereafter she was sent to the City Hospital without rendering any medical attendance.

The State Commission has considered all the evidence led before it and was in our opinion perfectly right in holding that the Complainant''s story is true and she had been despatched to the City Hospital only after it came to be known that she was facing rupture of the uterus that is when her condition because serious.

LEARNED Counsel for the appellant argued that the appellant''s story that no male member had accompanied the complainant when she came to Jeevan Hospital finds support from the fact that in the City Hospital the father of the complainant has given consent for the operation done in that hospital and this shows that the husband of the Complainant had not accompanied the Complainant to the Jeevan Hospital as alleged by her. We are not prepared to arrive at that conclusion from the mere fact that the father of the Complainant has signed the consent form at the City Hospital. The husband of the Complainant at that relevant time might have gone to procure blood or medicines and when the doctor found that the operation was to be performed immediately, the consent form was got filled up by the father of the Complainant. If no male member had accompanied the Complainant to the Jeevan Hospital, it is not understood how the father of the Complainant happened to be present in the City Hospital. This shows that one or more male members had accompanied the complainant to Jeevan Hospital when she had reached there on 21st October, 1990 at 11.00 a.m. The vacillating stance taken by the appellant does not inspire confidence and we are j inclined to accept the version of the Complainant that she reached Jeevan Hospital at 11.00 a.m. on 21st October, 1990 with labour pain and there she was admitted in the hospital and was attended upon by the appellant who gave drips and injections and there was prolonged labour pain which caused rupture of the uterus.

EVEN according to the Opposite Party Appellant the case was a complicated one as the pregnancy had ensured within one year of the previous caesarian and the patient was of a rare blood group. In such a circumstances the Opposite Party was not justified in keeping the Complainant in her hospital for about 14 hours. The Appellant is only a mid-wife and she should not and have tried to manage the delivery in her hospital on account of complications which were likely to arise. Thus the Appellant undertook the task which she knew or ought to have known that she was not qualified to perform. Therefore, she is fully responsible for the harm which happened to the Complainant and her child. As this is an order of confirmation of the finding of the State Commission on the question of negligence on the part of the Appellant we need not tread the same grounds again. The State Commission has dismissed all the evidence led before it. We uphold its findings that the Appellant acted Rashly, recklessly with culpable negligence and the consequences squarely lie on her shoulders.

AS far as the quantum of compensation is concerned, we think that on account of rupture and removal of her uterus, the State Commission rightly awarded to the complainant Rupees one lakh as compensation and Rs. 50,000/- as compensation for the loss of the male child. However, we are of the opinion that the award of compensation of Rupees one lakh to the Complainant for pain and agony for the prolonged labour is on the excessive side. At the time of delivery, there was bound to be some labour pains though in the present case, the Complainant has suffered the pains for a longer period due to the negligence of the appellant. We think that Rs. 50,000/- will sufficiently compensate the complainant for the prolonged labour pains. In the light of the above discussions, we modify the order of the State Commission to the extent that the total amount of compensation payable by the appellant to the complainant is reduced from Rs. 2,50,000/- to Rs, 2/- lakhs. The remaining part of the order of the State Commission is maintained. The appellant will pay Rs. 10,000/- as costs of the present proceedings to the complainant.