MRS. POONGUZHALI vs RUWSEC HEALTH CENTRE

THE complainant was pregnant by six weeks and went for a medical check up with the second opposite party on 20.4.1998. She requested the second opposite party to terminate the pregnancy and perform family planning operation. THE second opposite party directed the complainant to admit herself at the Health Centre of the first opposite party for doing termination of pregnancy. On 22.4.1998 the operation for medical termination was carried out and the complainant was discharged on 28.4.1998. She was asked to come back after 15 days for review. As there was abscess in her abdomen, she requested the opposite party to treat her for the same. THE second opposite party refused to give treatment and also refused to come to the first opposite party''s clinic for giving her treatment. Hence, the complainant went to Dr. Nehru Selvakumar for consultation. She was advised to have a scan and a scan was taken at Kancheepuram and it was found that there was a baby in the womb of the complainant. She was admitted on 29.6.1998 at the Chengalpattu Medical College Hospital and on 2.7.1998 surgery was done for termination of pregnancy and family planning. Thus, it is clear that the second opposite party has not carried out operation properly. From 22.4.1998 to 2.7.1998, the complainant suffered much hardship and her health deteriorated. She suffered from mental agony and sustained monetary loss. THE complainant estimates the damages at Rs. 5,00,000/-. THEre being negligence on the part of the second opposite party, both the opposite parties are liable. Hence, the complaint.

THE first opposite party submitted that it is a gross-roots women''s organization founded in 1981 to bring about adult education. Members were educated about the issues concerning family health and planning. THE activities of the first opposite party covered about 57 hamlets. THE members are drawn from the agricultural labourers. It is an organization intended for community based action for health promotion through a community health worker, through publication and distribution of popular education material on health and enpowerment programmes for adolescents. It is not profit making body. It is a social organization. THE complainant was admitted at the request of the second opposite party. THE averments made in the complaint are denied. THE complainant never came for any check up to the first opposite party and did not come for any subsequently to the first opposite party. THE complaint has been filed only to damage the reputation of the first opposite party. Only nominal charges were collected by the first opposite party and that too for using of the facilities in the hospital. THE first opposite party, therefore, submits that the complaint may be dismissed with costs. The second opposite party has filed a version alleging as follows. The second opposite party is working as a consultant in the first opposite party organization. He is doing honorary service. On 22.4.1998 the second opposite party has operated upon the complainant after doing abortion and sterilization. The opposite party has not charged any amount. The complainant was discharged without any complaint. The complainant was advised to have a regular follow up. The complainant approached this opposite party''s personal clinic and she was advised to have follow up with the 1st opposite party and she never did the same. The complications had happened to the complainant due to her own negligence in not following the advice of this opposite party and in not attending the regular check up with the first opposite party. Hence, this opposite party was not in a position to give proper medical care. If she had come regularly for post-medical check up, the unnecessary complications would not have happened. Hence there was only negligence on the part of the complainant. The allegation that the complainant spent huge sums towards medical expenses is false and imaginary. The alleged mental agony is also fanciful. The complaint is laid to cause damages to the opposite parties.

The lower Forum by its order dated 7th day of October, 1999 dismissed the complaint. Hence, the appeal.

IT has to be seen whether there is any deficiency in service as alleged by the complainant. The complainant underwent medical termination of abortion at the hands of the second opposite party in the clinic of the first opposite party as a consult of first opposite party. The grievance of the complainant is that in spite of undergoing such a surgery, it was found out when a scan was taken on 28.6.1998 that there was a baby in the womb and if the medical termination of pregnancy (MTP) operation had been done properly, this would not have happened and thus there was negligence and resultant deficiency in service. In paragraph 3 of the complaint, the complainant had not originally alleged anywhere that the complainant has paid for the service. But it is only by way of afterthought, she has stated that she paid Rs. 600/- to the first opposite party and she was discharged from the Health Centre of the first opposite party on 28.4.1998. She had not stated anywhere that she paid any sum to the second opposite party for MTP. The first opposite party is admittedly a voluntary service organization founded with a view to improve and educate the rural women and train them. As part of service activities, they are running a clinic for attending to the poor village women as a service to them. IT is not a profit making organization. Nor it is like other hospitals run on commercially. The complainant says that 15 days after the operation, she approached the second opposite party for treatment. Since she had an abscess on her abdomen and the second opposite party refused to treat her or attend upon her and that she had to go and consult a doctor by name Dr. Sivan Kumar and who has suggested that a scan be taken. Accordingly on the taking of the scan, it was seen that she had a baby in the womb. In the complaint, it is stated that she went to Dr. Nehru Selvakumar, who had advised her to check up with Dr. Sivankumar and thereafter she was advised by Dr. Sivankumar to admit herself in Chengalpattu Medical College Hospital. In this case on hand, we find that it is stated by the opposite parties that the complainant did not show up for follow up action and treatment. Once she was discharged and, therefore, if at all a complication had set in, the complainant has to blame herself for the same. It is not disputed that the second opposite party is a doctor of repute and who is doing service for service sake by attending to the patients and treating them at the clinic of the first opposite party. Therefore, what we find in this case is that the opposite parties 1 and 2 are not and could not have been prompted by any commercial consideration and they are rendering service to humanity and, therefore, any allegations of deficiency in service against such persons have to be made out to the satisfaction of the Forum by producing clinching materials. We have in this case only the interested assertions made by the complainant. The complainant has not paid a paise to the second opposite party for his service. She has paid only Rs. 600/- to the first opposite party towards operation charges. The nature of operation done is mentioned as total abdominal Tubectomy. The history sheet which has been marked as Ex. A7 shown Hysterotomy Excision of Sinus and scar excision.

NOW in the above background, we have to see whether the allegations of deficiency in service can be held to be maintainable. The National Commission has held that in the absence of any expert evidence on behalf of the complainant, the complainant cannot succeed in a case of allegations of deficiency in service against the doctor I (1998) CPJ 110 (NC). To the same effect, yet another decision reported in I (2003) CPJ 239 (NC) where it was held that even if there is no negligence, there could be a case of stray pregnancy taking place. Therefore, it was imperative that expert evidence should have been led to show lapse on the part of the Doctor concerned and, therefore, from the fact that the patient who underwent tubectomy operation conceived again, it is not possible to spell out a case of deficiency in service. Of course, this is a case where it is not the allegation that the tubectomy operation performed failed. In a decision reported in 1997 (1) CPR 486 where it has been observed as follows. "It is quite understandable when the doctor states that she had to be more careful in doing the MTP and sterilization. The contention of the opposite party is that in the case of twin pregnancy,"superfecundation" the fertilization occurs in two different menstrual cycles and the fertilized ovum will be in the uterine cavity, and the other one in the process of embedding in the myoma and hence by D&C, only the foetus which has been already in uterine cavity can be curated and the other one cannot be because it will not be exposed in the uterine cavity and will be buried deep in the uterus. However, considering the facts and circumstances of the case, it appears to us that this could be a case of "Superfoetation". "Superfoetation" is meant the impregnation of an ovum belonging to subsequent period of ovulation after the ovum discharges from a previous ovulation has been developing for a month or more. The occurrence of superfoetation is possible, though rare, inasmuch as ovulation may take place especially during the first three months of gestation until the deciduals reflexa and the decidual cavity is obliterated. Its occurrence in a bipartile or double uterus is certainly probable. The result of superfoetation would be the birth at the same time of two foetuses showing different stages of development, or the birth of two fully developed foetuses at different periods varying from one to three months. In Ex. A7, it is noted that there was adhesion of orientum around uterus. It was found to 24 weeks size. It is stated that Bougie applied under aseptic precaution and expelled without any effort. Thus according to the doctor, Suction Evacuation method was followed. Apparently it was a case of superfoetation and the two foetuses have allowed in separate cavities or the ovum belonging to the subsequent period of ovulation might have impregnated. That would not have been foreseen by the doctor who conducted the operation. This could have been rectified had the complainant attend the first opposite party''s clinic by way of follow up treatment or when period did not occur or when there was any postponement of the menstrual cycle. Therefore, in such circumstances, we cannot find fault with the Doctor or make him liable for the same. The patient has been advised to attend the first opposite party for follow up treatment and perhaps the existence of another foetus could have been found out by the doctor had she attended and followed the advice of the doctor. Therefore, in such circumstances, considering the peculiar nature of the case, we have to hold that we cannot find the doctor guilty of any deficiency in service. If really, there were two foetuses when the abdomen was opened for operation, definitely it would not have been seen by the doctor. Therefore, it is clear that the ovulation must have had taken place elsewhere or subsequent to the operation. The first operation was done on 22.4.1998. She did not attend the clinic of the first opposite party but contacted a doctor by name Dr. Sivankumar on 27.6.1998 and on 28.6.1998 scan was taken and it was found that there was another foetus in the womb. Therefore, it is clear that the complaint cannot be accepted as against the opposite parties. The lower Forum was, therefore, justified in dismissing the complaint holding that there was no deficiency in service. For our part, we do not find any reason to hold that any mistake has been committed by the lower Forum in coming to such a conclusion. Consequently, we dismiss the appeal upholding the order of the lower Forum with costs. In the result, the appeal is dismissed confirming the order of the lower Forum with a cost of Rs. 250/-. Time for compliance: Two months. Appeal dismissed.